Whatever Happened to the Department of Justice?

Maybe we should change the name of the DOJ to the Department of Expedience. The War on Terrorism continues to be a War on the American and our Constitutional idea of justice. Eric Holder’s speech yesterday at Northwestern’s School of Law puzzles many of us that had hoped a change from the Bush/Cheney regime would mean a return to civil liberties.  Assassination of US citizens–implying no trial, no jury of peers, and no due process–by classifying them as terrorists is an end run around our Constitution that must not stand.   Eric Holder’s thin justification of the Obama policy of assassination sounds a lot like triangulation.

Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

Glenn Greenwald explains it like this.

When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence.

This process still seems to be a murky one as pointed out at Empty Wheel. This is beyond unacceptable.

As of a month ago–four months after Awlaki was killed–the Senate Intelligence Committee had not been provided with the legal framework for Awlaki’s kill. This, in spite of the fact that SSCI member Ron Wyden had been requesting that framework for over five months before Awlaki was killed.

I said when Wyden made that clear that it showed there had not been adequate oversight of the killing. By his words–if not his deeds–Holder effectively made the same argument.

The speech appears to be an elaborate justification of a policy that could basically spin on the whims of a president and his/her cronies. This is especially appalling given the FBI “stings” that have been aimed at catching terrorists that seem more aptly labelled as pushing some depressed, emotionally damaged people into becoming aspirational terrorists and then enabling them to do something dangerous. I can only assume that the CIA is probably just as bad if not worse.

The Holder speech was weak as a public explanation.  It’s basis in law appears weaker.

Still, the speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo — or in an account of its contents published in October by The New York Times based on descriptions by people who had read it.

The administration has declined to confirm that the memo exists, and late last year, The Times filed a lawsuit under the Freedom of Information Act asking a judge to order the Justice Department to make it public. In February, the American Civil Liberties Union filed a broader lawsuit, seeking both the memo and the evidence against Mr. Awlaki.

Last month, Justice Department court filings against Umar Farouk Abdulmutallab, the Nigerian man who attempted to blow up a Detroit-bound airliner on Dec. 25, 2009, provided a detailed account — based on his interrogations — of Mr. Awlaki’s alleged involvement.

Mr. Holder, by contrast, did not acknowledge the killing of Mr. Awlaki or provide new details about him, although he did mention him in passing as “a U.S. citizen and a leader” of Al Qaeda’s Yemen branch when discussing Mr. Abdulmutallab.

Holder even objects to the word “assassinations”. 

Holder also noted that in using lethal force, the United States must make sure that it is acting within the laws of war by ensuring that any target is participating in hostilities and that collateral damage is not excessive. And he noted that law-of-war principles “do not forbid the use of stealth or technologically advanced weapons” — an apparent reference to drones.

More broadly, Holder argued that the targeting of specific senior belligerents in wartime in not unusual, and noted the 1943 U.S. tracking and shooting down of the plane carrying Japanese Adm. Isoroku Yamamoto, the commander of the attack on Pearl Harbor.

He said that “because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law . . . and our legal authority is not limited to the battlefields of Afghanistan.”

Holder said he rejected any attempt to label such operations “assassinations.”

“They are not, and the use of that loaded term is misplaced,” he said. “Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the executive order banning assassination or criminal statutes.”

Holder said “it is preferable to capture suspected terrorists where feasible — among other reasons, so that we can gather valuable intelligence from them — but we must also recognize that there are instances where our government has the clear authority — and, I would argue, the responsibility — to defend the United States through the appropriate and lawful use of lethal force.”

I am not a constitutional lawyer.  I do not even play one on TV so I can’t speak to the finer points of the due process clause.  I just know this does not pass my “smell test”.   I have read statements by lawyers.  Here’s a sampling from MOJO and Adam Sewer.

Both supporters and opponents of the administration’s targeted killing policy offered praise for the decision to give the speech. They diverged, however, when it came to the legal substance. “It’s essential that if we’re going to be doing these things, our top national security and legal officials explain why it’s legal under international and constitutional law,” said Benjamin Wittes, a legal scholar with the Brookings Institution, who said he thought the speech fulfilled that obligation. “I think [the administration] is right as a matter of law.”

In a statement, Hina Shamsi, director of the ACLU’s national security project, called the authority described in the speech “chilling.” She urged the administration to release the Justice Department legal memo justifying the targeted killing program—a document that the ACLU and the New York Times are currently suing the US government to acquire. “Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”

Here’s a point-by-point list of things that I think is worth reading from Lawfare.  This is a small portion of that article.  I really suggest you go read all of the points to get an understanding of the policy and its process.

That is, the speech asserts that Due Process permits targeting of a citizen at least when the target is:

(i) located abroad rather than in the United States,

(ii) has a senior operational role

(iii) with al Qaeda or an al Qaeda-associated force,

(iv) is involved in plotting focused on the death of Americans in particular,

(v) that threat is “imminent” in the sense that this is the last clear window of opportunity to strike,

(vi) there is no feasible option for capture without undue risk, and

(vii) the strike will comply with the IHL principles of necessity, distinction, proportionality, and humanity

All of this takes away from the many questions surrounding the first recipient of the assassination treatment. Marcy at Empty Wheel reminds of the thin ice upon which Holder skates.

Perhaps it’s because of all the dubious reasons the Administration continues to keep its case against Anwar al-Awlaki secret, but Eric Holder gave the impression of not knowing precisely what evidence the government had shown against Awlaki.

Or, deliberately misrepresenting it.

Holder mentioned Awlaki just once–purportedly to summarize Abdulmutallab’s case against Awlaki they released last month.

For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.  He was sentenced last month to life in prison without the possibility of parole.  While in custody, he provided significant intelligence during debriefing sessions with the FBI.  He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.  Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb. [my emphasis]

Note, this misrepresents what Abdulmutallab said, at least as shown by the summary released last month (setting aside the reasons DOJ chose not to test those claims at trial). What the summary did say was that Awlaki gave Abdulmutallab specific instructions to ignite his bomb while over the US. It did not say Awlaki was “a leader of al Qaeda in the Arabian Peninsula.” That’s DOJ’s elaboration, a frankly dishonest one, given the construction (and one that was probably at least significantly challenged by the intelligence Jubeir al-Fayfi delivered ten months after Abdulmutallab gave his testimony).

This is obviously a complex situation that needs full time attention by a lot of folks with a lot more than I can provide here.  It’s something, however, we all need to follow.


The Blow Back Cometh

Homo-not-so-erectus republicanus

What do you get when you attack women who use birth control as baby killing sluts, announce that your goals include giving more tax breaks to the rich, rail against social security and medicare, bash teachers and state employees as lazy over paid good for nothings, and threaten to start yet another war in the Middle East?  If your answer is Republicans with falling poll numbers and increased negatives, DING DING DING!!!!

As another round of voting takes place this week in the Republican presidential race – with 11 states holding Super Tuesday contests – a new national NBC News/Wall Street Journal poll shows that the combative and heavily scrutinized primary season so far has damaged the party and its candidates.

Four in 10 of all adults say the GOP nominating process has given them a less favorable impression of the Republican Party, versus just slightly more than one in 10 with a more favorable opinion.

Additionally, when asked to describe the GOP nominating battle in a word or phrase, nearly 70 percent of respondents – including six in 10 independents and even more than half of Republicans – answered with a negative comment.

Some examples of these negative comments from Republicans: “Unenthusiastic,” “discouraged,” “lesser of two evils,” “painful,” “disappointed,” “poor choices,” “concerned,” “underwhelmed,” “uninspiring” and “depressed.”

The ever so noticeable march off the right bank of crazy river has driven women to Obama and made marginal front runner Romney’s image worse than Dole, McCain’s and Kerry’s at similar points in the race.

While the nomination battle has damaged the GOP and Romney, it has only helped President Obama’s political standing. In the poll, his approval rating stands at 50%-45%, his highest mark in the NBC/WSJ survey since Osama bin Laden’s death. What’s more, he leads Romney by six points, 50%-44%, winning independents (46%-39%), women (55%-37%), suburban women (46%-44%), and those in the Midwest (52%-42%). Obama enjoys bigger leads over Paul (50%-42%), Santorum (53%-39%), and Gingrich (54%-37%). Bolstering Obama’s standing is increased optimism about the state of the U.S. economy: 40% believe the economy will improve during the next year, and 57% say the worst is behind us (versus 36% who say the worst is still ahead). Peter Hart, the Democratic half of our NBC/WSJ survey, sums up the current poll’s outlook on the 2012 race: If it were a cocktail, it would be “one part Obama, one part the economy, and three parts the Republican Party’s destruction.”

I heard some interesting conversations over the weekend at the pundit tables.  One was about the possibility of Romney trying to move to the middle after charging hard right to capture the right and secure the nomination. The right wing has not been enthusiastic.  The damage with the middle is stunning.  Is there something called a triple flip flop?  Plus, if he does move to the middle, what does that do to the turn out for the flipped out right?  Do they stay home?  Will any one believe him at this point?  This poll indicates Romney is doing better with the TeaBots.  Seventy-two percent of all Republicans say they’re satisfied with a Mittens outcome.  Will they come out and vote for him on a cold, wet November day?

We’re going to be live blogging Super Tuesday tomorrow and BB’s got a morning thread for you that will have a lot of Super Tuesday information.  Will turn out be any better and will Romney get any where close to the 50% win mark in any state?  What will the eye of Newt do if all he gets is a Milquetoast win in Georgia?  Stay tuned, it’s getting brutal out there.


Monday Reads

Good Morning!

Seven advertisers have now dropped Limbaugh’s show after intense pressure.  ProFlowers became the latest to remove its sponsorship saying that his comments about Sandra Fluke “went beyond political discourse to a personal attack and do not reflect our values as a company.”

Condemnation has come from a variety of sources outside Republican elected leaders.  Yesterday, George Will said that Republicans were afraid of him even though they thought he was a “buffoon”.

ABC’s George Will said yesterday on “This Week” that GOP leaders have steered clear of harshly denouncing Limbaugh’s comments because “Republican leaders are afraid of Rush Limbaugh.”

“[House Speaker John] Boehner comes out and says Rush’s language was inappropriate. Using the salad fork for your entrée, that’s inappropriate. Not this stuff,” Will said. “And it was depressing because what it indicates is that the Republican leaders are afraid of Rush Limbaugh. They want to bomb Iran, but they’re afraid of Rush Limbaugh.”

ABC News political analyst Matthew Dowd said the Republicans’ apprehension to say anything negative about the conservative big hitter is based on the “myth” that Limbaugh influences a large number of Republican voters.

“I think the problem is the Republican leaders, Mitt Romney and the other candidates, don’t have the courage to say what they say in quiet, which, they think Rush Limbaugh is a buffoon,” Dowd said.  ”They think he is like a clown coming out of a small car at a circus.  It’s great he is entertaining and all that.  But nobody takes him seriously.”

I was speaking to BB yesterday about how my experience within higher ed was very unlike Rick Santorum’s accusations that universities are turning students against religion and/or conservative thought.  I have had a large number of extremely conservative colleagues and professors in my time.  So, I was pleased when my anecdotal evidence was backed up by some numbers.  Neil Gross wrote in yesterday’s NYT that “College doesn’t make you liberal”.

But contrary to conservative rhetoric, studies show that going to college does not make students substantially more liberal. The political scientist Mack Mariani and the higher education researcher Gordon Hewitt analyzed changes in student political attitudes between their freshman and senior years at 38 colleges and universities from 1999 to 2003. They found that on average, students shifted somewhat to the left — but that these changes were in line with shifts experienced by most Americans between the ages of 18 and 24 during the same period of time. In addition, they found that students were no more likely to move left at schools with more liberal faculties.

Similarly, the political scientists M. Kent Jennings and Laura Stoker analyzed data from a survey that tracked the political attitudes of about 1,000 high school students through their college years and into middle age. Their research found that the tendency of college graduates to be more liberal reflects to a large extent the fact that more liberal students are more likely to go to college in the first place.

Studies also show that attending college does not make you less religious. The sociologists Jeremy Uecker, Mark Regnerus and Margaret Vaaler examined data from the National Longitudinal Study of Adolescent Health and found that Americans who pursued bachelor’s degrees were more likely to retain their faith than those who did not, perhaps because life at the bottom of the socioeconomic ladder can be rough in ways that chip away at religious belief and participation. They report that students “who did not attend college and two-year college students are much more likely — 61 and 54 percent more, respectively — than four-year college students to relinquish their religious affiliations.”

Right wing populists frequently attack educational institutions and intellectuals.  There’s an interesting piece at Alternet that addresses this phenomenon.  Basically, democracy relies on an informed citizenry and that is the enemy of demagogues and the plutocrats they serve.

Right-wing fundamentalists such as Republican presidential candidate Rick Santorum hate public schools, which he suggests are government schools wedded to doing the work of Satan, dressed up in the garb of the Enlightenment. Santorum, true to his love affair with the very secular ideology of privatization, prefers home schooling, which is code for people taking responsibility for whatever social issues or problems they may face, whether it be finding the best education for their children or securing decent health care.

Actually, Santorum and many of his allies dislike any public institution that enables people to think critically and act with a degree of responsibility toward the public. This is one reason why they hate any notion of public education, which harbors the promise, if not the threat, of actually educating students to be thoughtful, self-reflective and capable of questioning so-called common sense and holding power accountable. Of course, some progressives see this as simply another example of how the right wing of the Republican Party seems to think that being stupid is in. But there is more going on here than the issue of whether right-wing fundamentalists are intellectually and politically challenged. What makes critical education, especially, so dangerous to radical Christian evangelicals, neoconservatives and right-wing nationalists in the United States today is that, central to its very definition, is the task of educating students to become critical agents who can actively question and negotiate the relationships between individual troubles and public issues. In other words, students who can lead rather than follow, embrace reasoned arguments over opinions and reject common sense as the engine of truth.

The Hill reports that a number of lawmakers from both sides of the aisle are working on a “grand bargain” including cuts to entitlements.

A small, bipartisan group of lawmakers in both the House and Senate are secretly drafting deficit grand bargain legislation that cuts entitlements and raises new revenue.

Sources said that the task of actually writing the bills is well underway, but core participants in the regular meetings do not yet know when the bills can be unveiled.

The core House group of roughly 10 negotiators is derived from a larger Gang of 100 lawmakers led by Reps. Mike Simpson (R-Idaho) and Health Shuler (D-N.C.), who urged the debt supercommittee to strike a grand bargain last year.

That larger group includes GOP centrists like Rep. Steve LaTourette (R-Ohio), who has said Republicans should abandon their no-new-tax-revenue pledge, as well as Tea Party-backed members like Rep. Cynthia Lummis (R-Wyo.).

The key test in the coming months will be to see whether the core group can get buy-in from many of the 100 members who vaguely support “going big” on the deficit once real cuts and tax increases are identified.

The talks are so sensitive that some members involved do not yet want to be identified.

Shuler, who is retiring this year, is keen to establish a legacy as a deficit cutter before leaving Congress and he is involved in the drafting effort.

Ezra Klein has some analysis up on how medical procedures in the US are so much more expensive than any place else in the developed world. It’s called “Why an MRI costs $1,080 in America and $280 in France”.

As it’s difficult to get good data on prices, that paper blamed prices largely by eliminating the other possible culprits. They authors considered, for instance, the idea that Americans were simply using more health-care services, but on close inspection, found that Americans don’t see the doctor more often or stay longer in the hospital than residents of other countries. Quite the opposite, actually. We spend less time in the hospital than Germans and see the doctor less often than the Canadians.

“The United States spends more on health care than any of the other OECD countries spend, without providing more services than the other countries do,” they concluded. “This suggests that the difference in spending is mostly attributable to higher prices of goods and services.”

On Friday, the International Federation of Health Plans — a global insurance trade association that includes more than 100 insurers in 25 countries — released more direct evidence. It surveyed its members on the prices paid for 23 medical services and products in different countries, asking after everything from a routine doctor’s visit to a dose of Lipitor to coronary bypass surgery. And in 22 of 23 cases, Americans are paying higher prices than residents of other developed countries. Usually, we’re paying quite a bit more. The exception is cataract surgery, which appears to be costlier in Switzerland, though cheaper everywhere else.

Prices don’t explain all of the difference between America and other countries. But they do explain a big chunk of it. The question, of course, is why Americans pay such high prices — and why we haven’t done anything about it.

So, that’s a few stories to get things started this morning!  What’s on your reading and blogging list today?


Fat Misogynistic Drug Felon makes Faux Apology

Limbaugh “apologizes” with more excuses and lies than sincerity. Maybe the loss of sponsors and a possible law suit got to him?  It certainly can’t be his conscience.

For over 20 years, I have illustrated the absurd with absurdity, three hours a day, five days a week.  In this instance, I chose the wrong words in my analogy of the situation. I did not mean a personal attack on Ms. Fluke.

I think it is absolutely absurd that during these very serious political times, we are discussing personal sexual recreational activities before members of Congress. I personally do not agree that American citizens should pay for these social activities. What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit?In my monologue, I posited that it is not our business whatsoever to know what is going on in anyone’s bedroom nor do I think it is a topic that should reach a Presidential level.

My choice of words was not the best, and in the attempt to be humorous, I created a national stir. I sincerely apologize to Ms. Fluke for the insulting word choices.

Other women deserving an apology for similar outrageous, insulting misogynistic slurs who probably will never get one because they do not have grounds to sue the slop out of him as public figures.

Hillary Clinton

“She sounds like a screeching ex-wife.” –Rush Limbaugh, on Sen. Hillary Clinton

Michelle Obama

“It doesn’t look like Michelle Obama follows her own nutritionary (sic) dietary advice. And then we hear that she’s out eating ribs at 1500 calories a serving with 141 grams of fat … No, I’m trying to say that our first lady does not project the image of women that you might see on the cover of the Sports Illustrated swimsuit issue or of a woman Alex Rodriguez might date every six months or what have you.” –Rush Limbaugh, Feb. 21, 2011


Jocelyn Elders

Sonia Sotomayor

“Here you have a racist — you might want to soften that, and you might want to say a reverse racist,” Limbaugh said of Sotomayor on his show, alluding to the New York federal appeals court judge’s past statement that a “wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Liberals, “of course, say that minorities cannot be racists because they don’t have the power to implement their racism,” Limbaugh said according to a transcript on his website. “Well, those days are gone, because reverse racists certainly do have the power. … Obama is the greatest living example of a reverse racist, and now he’s appointed one.”


The Women’s Movement (or FemiNazis as he calls us)

“I’m a huge supporter of women. What I’m not is a supporter of liberalism. Feminism is what I oppose. Feminism has led women astray. I love the women’s movement — especially when walking behind it.” –Rush Limbaugh, responding to criticism that he is sexist and defending his selection as one of the judges at the 2010 Miss America Pageant, “Fox News’ Fox & Friends,” February 3, 2010

“Feminism was established so as to allow unattractive women easier access to the mainstream of society.”

“We’re not sexists, we’re chauvinists — we’re male chauvinist pigs, and we’re happy to be because we think that’s what men were destined to be. We think that’s what women want.”

“She comes to me when she wants to be fed. And after I feed her — guess what — she’s off to wherever she wants to be in the house, until the next time she gets hungry. She’s smart enough to know she can’t feed herself. She’s actually a very smart cat. She gets loved. She gets adoration. She gets petted. She gets fed. And she doesn’t have to do anything for it, which is why I say this cat’s taught me more about women, than anything my whole life.” –Rush Limbaugh, on his cat

Yup, Santorum. This is truly entertainment!

There’s probably more out there than I can find in the five minutes with which I compiled this post.  Add away.


Economics in a Nutshell

Joseph Stiglitz is one of my favorite economists.  He has that rare ability to put the results of theory, models, and empirical research into pithy common sense statements.  He has shown–with tons of peer-reviewed research–how frictions that exist in all markets distort results.  There is no real world example of a perfect market. In fact, he has a Nobel Prize for it.  Markets are not these efficient, well-oiled, rational deal makers that many Republicans, Libertarians, and Rich People would like you to believe simply because they really really want to believe in it.  They can click their red ruby Hayek slippers as much as they want but decades of study over the results of market have left us with lots of succinct lessons that a lot of  21st century policy makers appear to have unlearned.  In a recent speech and interview, Stiglitz manages to hit all the main ones in short order.  Here’s what the evidence has taught us.  First, it’s really not good for any economy to have income inequality.

Inequality is bad for growth, stability and efficiency. … Inequality peaked both before the Great Depression and before the Great Recession, and it’s not an accident. So basically, when we have a lot of inequality, demand goes down. … All this inequality was offset by creating a bubble. The bubble allowed people to consume more. Now we have the inequality but we don’t have a bubble, and that means that we will have persistent, weak demand, and therefore unless we create another bubble it’s going to be very difficult for us to get back to full employment.

A lot of the inequality that we have in the United States is created by distortions – excessive financial sector, monopolies like Microsoft … giving the oil companies, mining companies resources at a discount. … These things distort the economy, while they create wealth at the top. So it’s not wealth creation – it’s wealth redistribution, which makes the size of the pie smaller.

Second, a lot of government policy and just things inherent to some markets can create distortions that make markets very inefficient. Government actually creates a lot of distortions by trying to put businesses on steroids. Our recent tax policies that give special treatment to capital gains over income earned from labor are an example.  They have created horrible distortions that have drained resources away from useful things and into parasite markets and gambling activities.

And the loopholes, the distortions, the giveaways. … When you tax capital gains at half the rate of others, you encourage speculation. And so you divert resources to speculative activity, including the best brains at Columbia, into speculation rather than into creative activities.

Stiglitz also has his three top Economic Memes and Tropes that are absolutely killing this country’s economy because they have absolutely no basis in any evidence or reality.  He’s actually been tweeting them all morning as the top three Myths.  The first myth is the one about the confidence fairy.  The second and third are part and parcel of trickle down economics.  This is the horrible Republican kneejerk response that we have to appease “job creators” at all costs even when we have evidence they are more job destroyers than creators. Economists have been hypothesizing these things for decades and every bit of evidence from policies meant to achieve these results from Reagan to Bush have shown them to be seriously untrue.  However, they persist in the minds of many policy makers and they are killing our future.

The first is that reducing the budget deficit would stimulate the economy by restoring confidence, which you hear over and over again. No evidence that has ever worked. You might call it the austerity myth – that’s the most serious one.

The second one is that raising taxes on upper-income individuals will lead them to save less, invest less, will have adverse supply-side effects. Again, no evidence of that.

The third is that lowering [the] corporate income tax rate across the board will stimulate investment in the United States. No evidence of that. … If you want to encourage investment, what you do is lower taxes on firms that invest and you raise taxes on firms that don’t invest. You can restructure the taxes to provide incentives to invest.

I’m not certain what it will take to end the impact of these harmful myths.  However, given that harmful myths–notably the ones that come from any religion not based on evidence and reality–have kept us in Dark Ages before and are likely to continue to do so.  For many people, science fiction still holds a broader appeal than science fact.