Bush "Signs" McCain And Graham Amendments

by hilzoy

Via Marty Lederman at Balkinization: On Friday, the President signed the law including the McCain and Graham Amendments. However, he did so with several large caveats. I'm going to put most of this post below the fold, since it's long. However, here's Marty Lederman's short version:

"I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks."

And my even shorter, Cartmanesque version:

"Respect Mah Authoritah!!!!!"

Here, from Bush's statement, is what he said about the McCain and Graham Amendments:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

So there, John McCain! You got an amendment that prohibits torture passed; now I, George W. Bush, will exercise my Constitutional right to sign it into law and then ignore it!

I have no problem with construing any statute in light of the Constitution. I do have a problem with this President construing a statute passed by the Congress in light of his ludicrous view of Article II, which, as I understand it, amounts to his having the right to do whatever he damn well pleases to detainees. (To hear Bush talk, you'd think Congress didn't have any War Powers at all. Certainly nothing like the power "To make Rules for the Government and Regulation of the land and naval Forces", or to "make Rules concerning Captures on Land and Water".) I also have a problem with his signing into law a statute that he takes to be unconstitutional, while signaling in advance his unwillingness to abide by it. Vetoing the bill would be the more honest approach, and would better comport with his Constitutional duty to see that the laws be faithfully executed.

Here's what the President said about the Graham Amendment more particularly:

" Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005."

The post by Marty Lederman that I linked to at the beginning of this post has the text of Article X, so you don't have to slog through Thomas to find it. Basically, Article X, sec. 5, subsection h says:

"(h) Effective Date-

(1) IN GENERAL- This section shall take effect on the date of the enactment of this Act.

(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act."

The part that says that "Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act" would seem designed to exclude claims governed by paragraph (1) of subsection (e). And what is paragraph (1)?

"(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or"

That's right: it's habeas petitions. That being the case, I think it's completely disingenuous for the President to refer to:

"the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus",

and to conclude that because Congress has supposedly made this decision,

"the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005."

This is flatly inconsistent with both the text of the amendment and such statements of legislative intent as this:

"The jurisdiction-stripping provision in the Graham amendment initially approved by the Senate over my objections would have applied retroactively to all pending cases in federal court – stripping the courts of jurisdiction to consider pending cases, including the Hamdan case now pending in the Supreme Court. The revised amendment that we were able to work out with Senator Graham – the so-called Graham-Levin-Kyl amendment – does not apply to or alter any habeas case pending in the courts at the time of enactment."

Lyle Denniston at SCOTUSBlog writes:

"The Bush Administration appears to be preparing to try to scuttle the two most significant pending cases on the legal rights of foreign nationals now being held at the terrorism prison at Guantanamo Bay, Cuba. One of those cases has been granted review by the Supreme Court, the other is awaiting a decision in the D.C. Circuit Court. (...)

This challenge will clearly be aimed at Hamdan v. Rumsfeld (05-184), an appeal that the Supreme Court agreed on Nov. 7 to hear and decide in the current Term. That case involves Salim Ahmed Hamdan, a Yemeni national who is facing war crimes charges before a "military commission" at Guantanamo. The case challenges the constitutionality of those special commissions. Hamdan's brief is due in the Court this Friday.

The other cases being targeted are Al Odah, et al., v. U.S., et al., that the D.C. Circuit heard on Sept. 8, and are awaiting a ruling by a three-judge panel. (The lead case is docketed in the Circuit Court as 05-5064). This involves a series of habeas challenges by Guantanamo prisoners to their capture and prolonged detention by the U.S. military.

The Administration also will be seeking to head off any future habeas challenges by any other detainees who are foreign nationals."

I think Denniston is right. And, lest we forget, among those future habeas challenges are any appeals by Abu Bakker Qassim and A'del Abdu al-Hakim, the Uighurs who are challenging their detention on the grounds that they have been cleared by military tribunals.

The President is as good as saying that he won't obey the McCain Amendment, and adopting a reading of the Graham Amendment that's just disingenuous. It's one more piece of evidence that he does not begin to understand what the separation of powers actually involves, or that Congress has the power to write laws and the President does not; nor does he take seriously his Constitutional obligation to "take Care that the Laws be faithfully executed". Understanding and accepting these things is not an optional matter for a President. It's a minimal prerequisite of the job.

***

While I'm on the subject, I'd also like to recommend this post by Glenn Greenwald, on the oddness of seeing so many self-proclaimed originalists and opponents of a "living Constitution" embrace all sorts of penumbras and emanations when it comes to Article II and George W. Bush's wartime powers.

"Thus, we have one argument being advanced by the DoJ on Bush’s behalf which claims that a statute (AUMF) which never mentions FISA, eavesdropping or surveillance should nonetheless be "construed" to have "impliedly" amended FISA by giving Bush an "exception" to its mandates. And this argument is made even though the Congress which supposedly gave that exemption says that they did no such thing, but to the contrary, expressly refused to give that authority.

And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the "inherent" authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens with no warrant – even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That’s the part mandating that the President "shall take Care that the Laws be faithfully executed . . . "

So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don’t even reference the law which was supposedly amended. And that's backed up by a claim of Executive powers which are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document."

I couldn't have said it better myself -- which is, of course, why I excerpted Greenwald instead.

If any of you haven't read this NYR review of John Yoo's book, and of his legal views in general, it's also very, very good, and sets out the basic problem quite clearly:

"The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views—they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many US leaders toward international law has grown increasingly disrespectful as the relative strength of the US compared to other nations has increased. But these developments are difficult to square with the doctrine of "original intent," which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries. Yoo's task is to reconcile the contemporary uses of American power with his belief in original intent."

I'd imagine that reconciling a belief in original intent with a determination to arrive at a conclusion the framers tried very hard to avoid would be difficult. My personal favorite Yoo moment:

" He argues that the power to "declare War" given to Congress was not meant to include the power to begin or authorize a war, but simply the power to state officially that a war was on — a statement that would be "a courtesy to the enemy" and would authorize the executive to exercise various domestic wartime powers. (...) He quotes dictionaries from the founding period that defined "declare" as "to pronounce" or "to proclaim," not "to commence."

Yup -- according to Yoo, the Congress's power to declare war is simply the power to declare: Lo! There's a war on! The reviewer rather acerbically notes that "Dictionary definitions of "declare" also offer little guidance, since Yoo ignores that there is a world of difference between someone's "declaring" his or her love for wine or Mozart and a sovereign's declaring war."

Originalism in action. Gotta love it.

Comments

[spartikus]

Shorter everything: Has there been a coup? Discuss.

[Nell]

Bush's clear declaration that he's not bound by statutes reminds me of another Cartman moment: "I do what I want! What-EVah!"

The mental image helps distract from the sinking feeling that we're sinking into a constitutional crisis. With no guarantee of a happy ending.

[cleek]

nation builders and parsers
discoverers of penumbrae
fierce righteous champions of
indefinite imprisonment

every day brings a new way
for conservatives to reverse
positions they loudly held
when they were the minority

[Will]

For me, one of the greatest aspirations of our Constitution and of our country is our protection for those who are not in the majority or who are not like "us." Free speech, freedom of religion, due process, equal protection exist to protect those people that we do not like.

Yet, far too often,we are indifferent to the suffering of those like the Uighurs who are not like us. Until people can imagine walking in their shoes, they do not take any action on their behalf. We have too few Sabin Willets in our country and too many John Yoos.

[bob mcmanus]

Escalation of Resource Wars

Newberry gets bumped to the front page at Kos. The "externalities" are only going to get much, much worse. We are still only at the beginning of the conservative revolution, or as I prefer, the Second Civil War. All catastrophes(9/11, Katrina) and "blowbacks" are opportunities and means for consolidating power. It is very likely that an "event" will happen in the next three years that will make the process irreversible. If it is not too late already.

Attempting to use the system to resist rendition, torture, domestic surveillance, election corruption, and the consolidation of one party power has only accelerated the rush toward dictatorship. I have no use for lawyers anymore. The system is dead, and the law is and will increasingly be, only an obstacle to justice and freedom.

[CaseyL]

It's meaningless for Bush to sign something into law when he believes, and his supporters believe, he has the authority to ignore any law he finds inconvenient.

It really is Nixon all over again - but without a strong Congress, this time, and with a population that remains convinced we're facing a Threat To Civilization bigger than the Axis and Communism combined.

[felixrayman]

I have no use for lawyers anymore.

Seconded.

You are not going to get freedom back by quibbling over legalities with those who gladly submit to the power of the police state.

[bob mcmanus]

"Shorter everything: Has there been a coup? Discuss"

Yes

But few are ready to seriously "discuss" and I am not going to be the first. In any case, such discussions should probably be held deep in forested areas with a few trusted allies.

[Anderson]

Here's a quote from Justice Jackson's Youngstown concurrence:

The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, "The executive Power shall be vested in a President of the United States of America." Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capable." If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated. * * *

No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.

Forgoten words?

[Anderson]

And from the more conservative Justice Frankfurter:

By the Labor Management Relations Act of 1947, Congress said to the President, "You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation." * * * Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.

Just as Congress in FISA said "You may not spy beyond these boundaries; please report to us and ask for more power if you think it necesary." Whether or not technical advances created "a need for new legislation," that need did not enact same.

More from Frankfurter:

It is not a pleasant judicial duty to find that the President has exceeded his powers and still less so when his purposes were dictated by concern for the Nation's well-being, in the assured conviction that he acted to avert danger. But it would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world. When at a moment of utmost anxiety President Washington turned to this Court for advice, and he had to be denied it as beyond the Court's competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country:

We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States. Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.

A very different George then, of course & alas.

[CaseyL]

Thank you, Anderson. Fine quotes.

So, what the heck happened between then and now?

I wish someone on the Right could answer that.

What is it about today that has, in their view, rendered obsolete their own deep suspicions about encroaching governmental power?

Why is a segment of society that once saw "Federal Tyranny!" in a court decision that granted black people the right to go to school with white people now eager to let that same Federal Government monitor their mail, their conversations, their reading habits, and that of their friends?

Why are the same people who, as recently as 10 years ago, were utterly convinced that government wanted to register gun ownership purely for the purpose of taking away everyone's guns, now eager to let that same government monitor their mail, their conversations, their reading habits, and that of their friends?

Why are the same people who ten years ago passionately trumpeted to the very skies "No one is above the law - not even the President!" now doing an Emily Littela and saying, "Never mind"?

Why do you now believe the President has unlimited authority, when you have never before believed that?

It seems a simple question. Someone ought to be able to answer it.

[cleek]

Someone ought to be able to answer it

it's easy. Bush is president, and Republicans love him. they trust that he won't abuse these wonderful new powers, and that Congress would be able to stop any president from ever really abusing these powers.

faith.

[Katherine]

I have no use for people who say they have no use for people who've done 1000x more about this than they have or ever will.

(I don't put myself in the 1000x more category, I'm thinking of others. OTOH, 10-100x more? Yeah, probably.)

[CharleyCarp]

There seem to be a lot of people more afraid of a ragtag band of pirates hiding out in the Hindu Kush than of a nuclear armed superpower seemingly set on world domination.

[CharleyCarp]

An appeal was filed in the Qassim case, by the way, on 12/23. It's D.C. Cir. No. 05-5477, for those following with PACER accounts.

[Fledermaus]

You know I con't help but wonder where Bush's steely-eyed resolve is in this case. He doesn't even have the stones to veto it but merely pulls off some Stalin-esque "F*** Congress, how many divisions do they have"

[Katherine]

Hendrik Hertzberg called this one pretty early, btw:

"The vision laid out in the Bush document is a vision of what used to be called, when we believed it to be the Soviet ambition, world domination....

The Bush doctrine's answer to this objection is essentially this: Hey, we're the good guys. People—especially people who share our values, like the citizens of democratic Europe, but everybody else, too—should embrace American hegemony, because surely they know that we would use our great power only for good things, like advancing democracy, keeping powerful weapons out of the hands of terrorists, and facilitating peaceful commerce. And so we have done, most of the time; and so no doubt we would do, most of the time. But what a naïve view of power and human nature! What ever became of the conservative suspicion of untrammelled power, the conservative insight that good intentions are not, are never, enough? Where is the conservative belief in limited government, in checks and balances? Burke spins in his grave. Madison and Hamilton torque it up, too. Are we now to assume that Americans are exempt from fallen human nature? That we stand outside history? It's as if the Bush authors' brains had been softened by an overdose of anti-"moral equivalency" vaccine. Conservatives used to fault liberals (often unfairly, but never mind) for thinking that there was no such thing as evil, that the Soviets (and the criminals, and the terrorists) were just put upon and misunderstood. Conservatives spend a lot of time congratulating themselves on their "moral clarity." The Soviet Union was an evil empire; Osama is evil; the axis of evil is evil. Nothing more need be said, nothing more need be understood. And if the other side is absolutely evil then we must be absolutely good, so it's fine for us to be absolutely powerful."

(October 2002, this was.)

[Pooh]

Can we at least hope for a "have you no decency" moment?

[Gary Farber]

Wouldn't it be fun to debate the Constitution with President George W. Bush? So I imagine, anyway.

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority

Class, the President (I like the capitalization, it was the way I was brought up; respectful of the office, I am, even though most modern stylebooks lose the cap) has authority. No mention of restrictions. Just authority.

...of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power,

The Judiciary, you must understand has limitations. Only limitations, but no authority worthy of mention.

...which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

Whether Congress has any authority or restrictions in the President's eyes can't be gleaned from here, but the fact that he didm't veto -- in the face of an obvious over-ride of the veto, of course -- does indicate a certain practical appreciation of Congressional authority, although no more.

I do love, incidentally, that this is the only President since... I'd have to look it up, and when I have a moment, might -- who has gone this long in two terms with not one veto, and this is from the guy who claims to want to restrict government and shrink it. Or so he once said; I don't recall even lip service to that in years.

I'm highly unfond of Ronald Reagan -- and, incidentally, tonight's broadcast of PBS's American Experience, a documentary series you will be unsurprised to learn that I often enjoy -- is the second part of the Reagan bio, about a year after the first (broadcast possibly on at a different date in your local, and not if you don't at least have a U.S. satellite feed, etc.) -- but at least Reagan did veto a few things by way of gesture towards "shrinking government" (even though, of course, he grew it at a far huger rate than either his predecessors or anyone until the present incumbent.

I pause now to think dreamy thoughts of David Stockman.

[bob mcmanus]

"I have no use for people who say they have no use for people who've done 1000x more about this than they have or ever will."

What have you done, Katherine? Not just tried, actually accomplished?

Long series on rendition? How do we stand there?

7 part series on habeus? Beautiful work, what did we get?

Just distractions, running in circles and calling it travel. Actually, counterproductive, for it feeds illusions.

[Gary Farber]

Did someone say something about Ukraine, natural gas, and Russia, by the way?

It's also important to not only navel-gaze. Just saying.

"Just distractions, running in circles and calling it travel. Actually, counterproductive, for it feeds illusions."

Bob, piss off, before you choose to piss on Katerhine. When you've personally overthrown the government, get back to us with your high horse.

Note: this is not an invitation for you to go become alone gunman, or a mad bomber; and, yes, it's your bitterness talking, and I know the taste quite well; I deserve wrist slaps frequently myself, as we know; here's yours for today.

Again with the "you have no right to say blahblah when you haven't blahblahed," says someone blahblahing. It would be funny if it weren't, you know, not. It's more like crazed and depressed weasels in too small a cage gnawing at each other.

Note: I'm not calling anyone here a weasel. Except when we bite each other.

[bob mcmanus]

Jesus, I'm sorry, sorry, sorry.

we, no you fought for McCain and we got godforsaken Graham. We sent McCain/Graham to the President and he publicly openly said he will ignore it. America is in the rear view mirror at 90 mph, and I am supposed to award gold stars for effort.

[hilzoy]

Bob: no one is asking you to award gold stars; just to stop slamming people who do not deserve it. You might get to if you actually knew anything about what Katherine (or any of the rest of us) do when we're not blogging. Or at least enough to be able to say with anything remotely resembling confidence that she, we, etc., have no accomplishments to our name. But you don't.

[Gary Farber]

"...and I am supposed to award gold stars for effort."

We're supposed to maintain our own human decency when others have lost theirs, yes.

What else is the point?

[CharleyCarp]

I'm not calling anyone here a weasel. Except when we bite each other.

The moment in 2001: A Space Odyssey when the man-apes are cowering in their cave, listening to the big predators out on the plain, and they growl and snap at eachother, just captures it perfectly for me.

[felixrayman]

You might get to if you actually knew anything about what Katherine (or any of the rest of us) do when we're not blogging.

Yet it is interesting that Katherine can, without knowing what the rest of us do when we're not posting here, determine the order of magnitude by which her contributions exceed ours. Why do you not address your argument to her?

Look, Bob's right. If you all want to keep doing what you've been doing with the expectation that the future results will be substantively different than the past ones, go ahead. But pointing out the fact that, if the goal is a free country, what you are doing ain't working is not bitterness. It is a requirement for membership in the reality based community.

[Anderson]

Classy, Bob. Very classy.

Felix, tell us what YOU're doing, why doncha? Because Katherine's numbers looked pretty dead-on to me.

[xanax]

hilzoy: "Respect Mah Authoritah!!!!!"

Wow. hilzoy, quoting Cartman?
Now I've seen everything.

mcmanus: "What have you done, Katherine?"
Voltaire: "To hold a pen is to be at war."

I'm glad you apologized, Bob. I've greatly admired your writing this past year.

[Katherine]

I've done much more stuff offline than on but since it's of the writing and researching and nagging the legislature and the press variety there is equally little effect & people would surely be equally underwhelmed. I'm neither defensive about it, nor do I have any illusions about its effect. I know people who have accomplished much, much more & insofar as I was personally annoyed it was on their behalf. But it's not really personal--it's a generalized frustration at the approach people take with the exec. power issue, wherein either it's no big deal & there's nothing that needs to be done or we're all doomed & there's no point trying.

Anyway, I've said all this before & repeating it accomplishes nothing--I should just ignore throwaway comments like that. Sorry. Nevermind.

[Gary Farber]

"If you all want to keep doing what you've been doing with the expectation that the future results will be substantively different than the past ones, go ahead."

That wouldn't be anything like lecturing people on blogs about how lecturing people on on blogs is ineffective and pointless, would it?

Jeebus, show some self-awareness!

"I'm glad you apologized, Bob."

As often, it's entirely obscure to me whether Bob intended to apologize. In my world, if one is apologizing, one doesn't couple it with sarcastic self-justification. It cancels out even when the intention is, theoretically, sincere. Anti-particles.

Apologies, I've said many times, but I'm hardly the only one, need to stand alone. Uncoupled by any justifications. They can come in a separate message. I'm just saying generally. I'd quote some links, but, then, I can't, now can I?

[Katherine]

As to the original topic:

I'm actually glad they're signalling this openly that they have no intention in changing their actions in response to the McCain amendment.

I've figured all along that there would be some classified memo stating that these interrogation techniques--waterboarding, hypothermia, etc.--are still legal because:
1) the test for whether they're cruel, inhuman and degrading is whether they violate the due process clause to the Fifth Amendment--the "shocks the conscience" test.
2) context is relevant in determining whether a technique shocks the conscience
3) we're at war and these are mass murderers, so waterboarding them etc. to save innocent lives doesn't shock the conscience.
4) even if it did, it's unconstitutional to forbid the president from abusing prisoners.

There was also no doubt at all that they were going to try to use Graham to get the GTMO lawsuits thrown out.

Announcing it publicly is a bad sign only in that it shows that they think that they can be loud & proud with this monarchy crap and get away with it.

As to whether he's right, well, it depends on what the courts do & even more on what Congress does. Like Prof. Levison says in relation to the Alito nomination, if the moderate Republicans in Congress "exhibit some backbone" then the administration might be in "big trouble. If not, then it will be up to the Democrats. Generally, that sentence does not lead one to feel better about future events."

And the upside to Bush saying this publicly is that it might help prevent the press from falling for the storyline that the McCain amendment fixed this.

In general, I'd say the press is awakening on this issue, but apart from a few reporters they are doing so very, very, very, very slowly. Maybe "stirring in their sleep" would be the right phrase.

[Katherine]

Note that the "unitary executive" mumbo-jumbo is amazingly common in their bill signing statements. See this google search.

"Unitary executive" is a federalist society buzzword for folks who like unlimited presidential power, but what they mean by it specifically, I couldn't say.

[felixrayman]

Felix, tell us what YOU're doing, why doncha? Because Katherine's numbers looked pretty dead-on to me.

In other words, you trust estimates made with absolutely no information - literally zero - regarding what the estimate is supposed to be about. Angling for Secretary of Defense there, Anderson?

I think Hilzoy made the point that it might be a good idea to actually know something about what people do when we're not blogging before making assumptions. So far, it seems, Hilzoy is only applying this argument to certain people using criteria that are not stated and not obvious.

That wouldn't be anything like lecturing people on blogs about how lecturing people on on blogs is ineffective and pointless, would it?

I expect it to be exactly as effective. Thanks for helping to prove my point.

But the truth is still there, obvious for all who care to take a look at it. Bob said it about as well as it can be said, "America is in the rear view mirror at 90 mph". And the main response when this is pointed out? Stay the course, and blame the messenger. Where have I heard that one before?

[bob mcmanus]

Golly, everybody keeps saying I have apologized. It was a general cry of pain. But many of you also seem to think I was "slamming" Katherine & charleycarp & hilzoy. I grovel at their feet, and they should know that by now. We all want exactly the same things, well almost. I need our house poet, something about collecting tears in a bottle.

If you read the original comment of 3:44 it was a perhaps ill-phrased notice that the President has moved us into a constitutional crisis(whatever that means) and extra-legal territory. It is simply surreal to read the posts at Balkinization which state that the President is clearly in violation of the law and then hear the WH say "Yup. Watcha gonna do about it." I have been in this surreal condition for nearly 5 years. I have advocated a variety of tactics most of which suggestions have been ignored. Katherine and I have been in argument since our first exchanges at Tacitus and Calpundit, tho perhaps one her least important exchanges. I hope she realizes I am not her enemy. We have disagreements on tactics.

I really feel today was our Munich. (That is for windler. Bushitler,Bushitler,Bushitler. Quit picking on him.)

And Gary, if I get suits knocking on my door, I am going to blame your comment of 6:59. As far as "bitterness" I have to go look that up. Today "Panic" might be more accurate.

[Anarch]

So what are you doing, felix?

[felixrayman]

Oh, by my estimates, between 10^7 and 10^8 times as much as Katherine...

[Gary Farber]

"I've figured all along that there would be some classified memo stating that these interrogation techniques--waterboarding, hypothermia, etc.--are still legal because...."

Rather than looking it up, since Katherine is here, I'll simply ask: my impression, without checking, was that the McCain language said that practices were restricted to the Army Manual, and that subsequent to that we had the stories on the Manual now having pages added and changed; did I gain a misapprehension?

"Golly, everybody keeps saying I have apologized."

Someday, I, too, will be a person. Jesse Jackson taught me that. I am somebody.

Then Stuart Smalley modified it. Say, whatever happened to him?

[CharleyCarp]

BM, FRM, there's always room for different strategies. Friendly fire isn't generally helpful, though. Among other consequences, it leads to things like the Bush presidency, a consequence of altogether too many people thinking Vice President Gore just wasn't good (or pure) enough. Are they (you?) happy now?

I'm quite certain that Katherine's and Hil's posts have made a real difference on these issues. GLK is better than G alone was, and K&H deserve some real credit for that. Was it enough? We'll find out soon enough. But even if we don't win this round, good groundwork has been laid for the next. And there is always a next round.

[felixrayman]

Friendly fire isn't generally helpful, though.

This is no more friendly fire than it was friendly fire when Rumsfeld was told by his generals they needed more troops.

If your goal is a free country, then first of all, you need to admit that what's being done isn't working - things are getting worse. Now sure, maybe this time if you keep doing the things that aren't working, somehow things will stop getting worse and start getting better.

Is hope a strategy?

[Anarch]

Cute, felix. But since I know at least some of what Katherine's done, and none of what you've done, I ask again: what are you doing?

[Catsy]

"What have you done?" Is this the liberal version of the "chickenhawk" challenge levied unfairly at so many Republicans? Fuck that.

Great bouncing cherry-flavored gummi Christs, grow up. We're all on the same side, here. As the man said upthread, we disagree on tactics. What we want is the same: the preservation of our country and what makes it great, which by necessity involves the end or political neutralization of the Bush regime.

[felixrayman]

But since I know at least some of what Katherine's done, and none of what you've done

Ask Katherine and Anderson. They apparently know enough about me that they can estimate the order of magnitude by which others' contributions exceed mine, and those of other participants in the discussion. Which I find quite odd, to say the least, but with the level of information required to make such calculations, they should be able to provide some details.

But you are distracting from the important point, so I'll repeat it.

We are losing our freedoms, and we are losing our country. The things that are being done to keep this from happening aren't working. If the same things continue to be done, the only sane expectation is that we will continue to lose our freedoms, and we will continue to lose our country.

Blaming the messenger might make you feel better, but it is not a solution. Hoping that things magically change might make you feel better, but it is not a solution. We can discuss what the solution might be, but we can only have that discussion once we come to an agreement that what is being done now isn't working.

Until then, continue the same tactics, and expect the same results.

[Anarch]

Ask Katherine and Anderson.

Oh grow up. There's no particular shame in saying what you've done, or what you haven't done -- especially if you maintain that we've all done f***-all ourselves. This petulance, however, is just stupid. Have you or have you not done anything tangible on these matters? This is a genuine question, btw: if you have, I want to know because that might be something I can do too; if you haven't, I want to know what on earth makes you feel like this particular brand of bomb-throwing is going to accomplish a damn thing.

We can discuss what the solution might be...

But -- and this is the important point here -- you aren't. And unless I've missed something, you haven't. And no, discussing the solution isn't predicated upon agreement that present tactics aren't working*: part of that very discussion is presenting an alternative, something, anything, so that current efforts can be compared with this hypothetical alternative. Because right now, all you're doing is bomb-throwing; and Catsy's gummi Christs notwithstanding, that's not only not productive, it's actively counterproductive to your aims.**

It's also important to note that even if other things were parallel, which they're not, it's still inaccurate to compare the responses here with the "Blaming the messenger" found in pro-war circles re the Iraq war. In that case, there were plentiful alternatives being proffered by anti-war proponents, myself included, not the least of which was: don't friggin' invade Iraq. And that, for all its trenchancy, was a legitimate policy position. Stop friggin' writing letters to your Congressman (or whatever) is, however, not a legitimate (or at least not a meaningful) policy position unless you're going to replace the one activity with another. So sure, I'm not uninterested in a general call to arms amongst progressives -- and, for that matter, right-thinking Americans -- to stop these Executive abuses of power... but simply hollering "What you're doing now sucks!" is a damn poor way of going about it without something tangible to back it up, especially given the mountains of work Katherine et al. have put in.

So -- in a likely vain effort to get something productive out of this exchange, pace Catsy once more -- what should we be doing? And -- pace Catsy a third and final time -- what have you been doing along those lines?

* As an aside, you can note that I haven't taken a position on the matter in this thread, and indeed I generally don't take a position on the matter.. but when I do, I'm generally in agreement that present tactics are not accomplishing their objectives. So your use of "you" (cf "Blaming the messenger might make you feel better") isn't just presumptuous, it's flat wrong.

** Locally defined here as convincing everyone that they're going about this wrong and they (we?) should immediately take up the debate you want them (us?) to have. Obviously, you're not going to find much disagreement amongst progressives in the larger aim of limiting the damage Bush can do, whether that takes the form of political wrangling, judicial nerfing, or Congressional impeachment.

[felixrayman]

And no, discussing the solution isn't predicated upon agreement that present tactics aren't working

Yes, it is. In Iraq, and at home. Yes, it is.

[Katherine]

forget what you've done personally. what is the solution--the equivalent of "let's withdraw our troops because nothing else is going to work" in your Iraq analogy? what exactly do you propose? that's what I don't understand. how is documenting what's going on or turning to the courts (i.e. "quibbling over legalities") an active hindrance here, if you have no better idea than I do how to actually end or mitigate this?

I mean, it does not escape me that this isn't exactly going well right now. But what do you propose we do? Everyone should just give up and think dark thoughts and write occasional, vague weblog comments about the fall of the Republic?

I can understand kvetching about tactics by people even when you, personally, don't have time to do better. I kvetched about ANSWER before the war although I personally organized no antiwar rallies, for instance, and got annoyed by Fahrenheit 9/11 although I was not attempting to make a better documentary. Only so many hours in the day, & some people are in a better position to do something than others. But I at least knew what I'd do differently if I did have the time or was in a position to do something, in those cases. In this case...what?

[Katherine]

Gary, sorry, I was unclear. The army field manual is one part of McCain. It's apparently been changed some & I worry very much that it's been made worse but I'd be shocked if e.g. waterboarding were authorized. The part of McCain I was talking about was the other half, the prohibition on cruel, inhuman & degrading treatment on anyone in U.S. custody no matter where they are held. This applies to some interrogators--esp. the CIA--who aren't bound by the army field manual.

[bob mcmanus]

I have recommended on Clemon's blog that Democrats simply leave town. My largest concern is the Senate, but it applies to everyone else also. In one scenario, that time until November would be used to educate the public and gain media attention. I have experience, the Texas State Democratic Caucus hid in New Mexico, and although they actually did not stop redistricting, the press coverage was favorable.

This may accomplish nothing. But I am utterly disgusted with Harry Reid's press conferences:"We had a bipartisan bill that was completely changed in a totally partisan conference, and that just isn't right." Jeez, Harry you don't do business under those conditions and get respect. Just leave.
Under what conditions do you return? None, they can't be trusted on any agreement. Short of that, there are filibusters, slowdowns, shutdowns...whatever helps inform the public that the process is broken.

(Unless the process is gone. I visit a lot of left blogs, and many are wondering after four years of unaccountable domestic surveillance, what the Bushies might have on Obama and Russert and Keller in files. If yo think that completely wingnut, google Bill Richardson)

I really think we are one unpredictable terrorist act away from a completely totalitarian state, irreversible in a lifetime. The President has stated that no law binds him, and he is still President.

As far as individuals, this is a very fragile, vulnerable WH. Cindy Sheehan did Bush massive damage. I said three years ago that a quarter million outside the WH drove Nixon insane, and tempted him to self-destruction. Bush would be even easier. We can pressure the Senate. Lord, I feel sorry for the Dems in the house, why are they hanging around? I guess we can pressure them.

And none of this will actually happen. Graham got what, 90 votes? I am not understanding my country, at all, in any way. The Dow is flat over five years, the worst performance in 40 years and Wall Street loves these guys. I just babble.

[Anderson]

Y'all go read some comment threads at the Volokhs if you want to be antagonistic. I lost it with 'em last night, and am going to stay away from any FISA/Article II threads there for a while. The number of people willing to sell this country down the river ... no, wait, there I go again ...

[Katherine]

Graham did NOT get 90 votes. The original amendment passed 49-42. The Bingaman substitute failed 44-54. The Graham-Levin-Kyl substitute passed 84-14. But the thing to remember there is, after the failure of the Bingaman amendment, Graham-Levin-Kyl was an improvement, and the only hope left of getting rid of Graham's original amendment. The 14 who voted against it were doing a protest vote to make sure the press & public knew how much it sucked, and good for them. But did the 30-odd others who voted against Graham & for Bingaman & then for Graham Levin Kyl really support Graham or vote for it in any sense you can really hold against them? No.

As with the Obama bankruptcy thing, I'm pretty sure we've been through this before....

[Drklameth]

This is an odd train of thought, but any military personnel out there are familiar with these two passages:

...
"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

"I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.)
...

As a prior serviceman, I was amazed that in the years since the war, there were no challengers standing up in court against what they though was a domestic enemy of the Constitution, The President himself. Of course, under military provisions such an act could be construed as sedition, and you'd probably never make it to court.

I've always joked that the only reason GWB hasn't been assassinated to this point is no one wants Cheney as president, and the rest of the chain of command on down isn't much better...

[xbox360]

[Comment deleted in its entirety and replaced with something of only slightly higher worth - Slart]

[Gary Farber]

And in the end, what's left is spam. 360 definitive indeed.

[John Palmer]

I've just read through several comments about the "tactics" being used to fix this nation. Folks are quite reasonably frustrated because it seems so hard to break through to some of the folks on the other side.

One thing that I think needs to be addressed and understood is something that a lot of liberal folks ignore.

The average conservative believes that Bush must have had good cause to invade Iraq, because he said he did. The average conservative believes that Bush is not ordering (or allowing) torture because he says so. The average conservative believes that the Bush administration is following a good path (or the best they can follow) because they say so.

In short, the average conservative person is being betrayed.

There have always been right-wing nuts, but the average conservative person is being fed a diet of lies by people who see the entire set of battles as partisan, not principled.

These people, the commentators and politicos and policy makers, will claim that Democrats, despite longstanding support of prisoners' rights, are not upset that detainees are tortured... They claim that Democrats are upset that Bush is the one ordering it.

They claim there is no problem... and the average conservative, confident that so many good, solid, Christian men and women would neverlie about something so important, accept that there is no problem. Without a deep-down, gut-level understanding of this betrayal, talk of tactics is doomed.

Folks need to understand that, first and foremost, 90+% of this country is on the same side of these issues. The only question is how we can make them all see it.