Final Thoughts for 2006

As we close out 2006 and inch closer to the day when President George W. Bush will thankfully become former President George W. Bush, perhaps our most important resolution should be to prepare ourselves for the work which lies ahead of us. Although November's mid-term election results are a promising sign that the nation is slowly taking off the blinders it has worn for the past several years, we have a long road to recovery before the ideals and values we espouse are once again supported by the substance of our actions.

As I have written in the past - most recently with A Nation of Hypocrites - we are no longer anything but pretenders to the sort of liberty and justice that we grew up believing were the hallmarks of America. We are a nation of double standards, and while the president's power has been curtailed and his approval ratings hover near all-time lows, he continues to work on shepherding this nation over the edge of a moral cliff. Glenn Greenwald at Unclaimed Territory has more on the utter, ludicrous hypocrisy of Mr. Bush's attempts to set himself up as the champion of due process and the rule of law in the wake of Saddam Hussein's execution, and I think he expresses it in a way that needs no amplification from me.

Have a happy and safe New Year, and enjoy a little end-of-year musical angst from Comedy Central's Last Laugh 2006!

Signs of Life on Capitol Hill?

For those unfamiliar with the term, a signing statement is a proclamation issued by the White House after the president signs a bill into law that provides clarification to federal agencies about the specific manner in which the president intends to carry out the newly legislated direction of Congress. At times in history, such interpretations have run somewhat counter to the focus of the legislation they have addressed, but they have never been intended to contravene it. Instead, when a president opposes legislation passed by both the House and the Senate, or believes that it is out of line with the Constitution, he may veto it. Congress can then override that veto, but needs a two-thirds majority - rather than a simple majority - to do so. In this manner, checks and balances are maintained between the executive and legislative branches of government.

As chronicled in Abject Failure in the Parliament of Whores, however, President George W. Bush has made unprecedented use of signing statements in ways that dramatically and directly contradict legislation passed by Congress, but has only exercised his veto power once during the time he has occupied the White House. In doing so, he has claimed the authority to disobey nearly 1,100 (and counting) provisions of laws that he himself signed, accruing power to himself and significantly undermining the struture of our system of government. The Republican 109th Congress, which will go down in history as one of the worst ever, sat idly by, refusing to exercise the powers of oversight to which it had been entrusted by the Constitution, and the effects of their dereliction of duty will be felt for years to come.

Without GOP majorities in either the House or the Senate however, there appear to be signs of life on Capitol Hill. Senator Patrick Leahy, who has forcefully declared that he intends to work to restore the balance of power between Congress and the President when he assumes control of the Senate Judiciary Committee, may move dormant legislation like S. 3731, the Presidential Signing Statements Act of 2006, out of committee for consideration by the full Senate. S. 3731 would block the Bush Administration's signing statement power grab on two fronts, mandating that all state and federal courts ignore presidential signing statements, and instructing the Supreme Court to allow either house of Congress to file suit in order to determine the constitutionality of signing statements.

At first blush, such a bill - which requires a presidential signature to become law - would seem to be dead on arrival and without the votes to overcome a veto. That may not be the case however, as S. 3731 was originally introduced by Republican Senator Arlen Specter of Pennsylvania, who may be eager to burnish his (justly) tarnished image as a moderate, and might support Democratic efforts to move the legislation forward. The fact that Specter introduced such a bill back in July is itself potentially indicative that there is a growing realization among even GOP members of Congress that they cannot simply let President Bush do whatever he wants.

Also encouraging has been congressional reaction to President Bush's most recent signing statement. On December 9th, mere hours after signing into law H.R. 5682, the United States Additional Protocol Implementation Act, the president crafted a signing statement that directly overrides several of its key provisions. H.R. 5682, which for the first time in 30 years permits the sale of U.S. nuclear fuel and reactors to India, was controversial among legislators, who have eyed with anxiety India's relatively close relations with Iran, and are concerned about American technology falling into that country's hands.

In order to gain approval for his Indian atomic policy, President Bush conceded to all manner of congressional stipulations about the manner in which the nuclear relationship would be managed, and he declared:

As part of the agreement, the United States and India have committed to take a series of steps to make nuclear cooperation a reality, and we're going to fulfill these commitments. The bill I sign today is one of the most important steps, and it's going to help clear the way for us to move forward with this process.

Unfortunately, directives from Congress have never sat well with this president, and he moved quickly to make that clear in his signing statement, writing that his signature:

... "does not constitute my adoption of the statements of policy (in the law) as U.S. foreign policy." Also in responding to reports mandated by Congress, he would consider how releasing data requested by lawmakers might "impair foreign relations."

In one of its most controversial directives, Congress stipulated in the law that presidents should report annually on India's cooperation in restraining Iran's nuclear program, which Bush has condemned as a major international threat.

In the statement, Bush also said he considered as only "advisory" a congressional directive prohibiting nuclear transfers to India that conflict with guidelines of the 45-nation Nuclear Suppliers Group, which the United States helped establish years ago to restrain nuclear trade.

Reaction from newly-empowered Democrats was - happily - swift and strong enough to hint at a coming showdown. Senator Tom Harkin noted that President Bush was essentially dismissing both the Constitution and Congress, observing that, "With his recent signing statement, once again the president has shown he views Congress as a nuisance rather than an equal branch of government under the Constitution," and that it is "outrageous that the president has repeatedly stated the greatest threat to U.S. national security is a nuclear Iran, yet [he] explicitly rejects Congress' declaration that it shall be the official policy of the United States that India will not use its nuclear technology to help develop Iran's nuclear weapons arsenal."

While it would certainly be disturbing if President Bush was thumbing his nose at Congress because he disagreed with the policy statement within H.R. 5862 regarding India and Iran, the fact of the matter is that he does agree with it. Instead, Mr. Bush has opted to use his most recent signing statement to make clear that he will not brook even the perception that Congress has any say in the matter, or that it may place any restraints on him. The White House drove home that point by responding to Senator Harkin's remarks and explaining that the signing statement is intended to deal with the "domestic issue of government power rather than an issue of international nuclear policy."

It is unclear whether Congress placed the policy language in the bill with the specific aim of confronting President Bush's claims to executive supremacy, but the angry reaction to the H.R. 5862 signing statement is encouraging. Congressional checks and balances on presidential power are crucial to maintaining not just sound foreign policy, but civil liberties and accountability as well, and restoring them should be a top priority for the new Democratic leadership. Wherever one looks, the disastrous effects of unrestrained White House power can be seen, and it is high time to cut George W. Bush's imperial presidency off at the knees.

Happy Holidays!

Sensen No Sen's usual, twice-weekly posting schedule will be limited to about one post per week until after the first of the year. Have a joyous and safe close to 2006!

A Nation of Hypocrites

The trial of Jose Padilla, one-time accused "dirty bomber," appears likely to be delayed yet again. The Associated Press reported that it has been ruled that Padilla, an American citizen designated an "enemy combatant" by President Bush, and subsequently held in solitary confinement without charge and without access to counsel for three and a half years, must undergo a competency evaluation. From the AP story:

A psychiatrist and clinical psychologist who evaluated Padilla in September and October at his attorneys' request concluded independently that he has post-traumatic stress disorder (PTSD) and is unable to help his defense lawyers prepare adequately for trial.

"His reasoning is clearly impaired and paranoid tendencies are evident throughout the interviews," the psychiatrist, Dr. Angela Hegarty, said in a formal assessment filed late Wednesday in federal court. "Facial tics are prominent when he becomes distressed. He appears hypervigilant at times."

Padilla, a 36-year-old U.S. citizen, is scheduled to stand trial January 22 along with two others in a terrorism support case. He claims he was tortured during his years in military custody at a naval brig in Charleston, SC. He has asked U.S. District Judge Marcia Cooke to dismiss the Miami charges against him because of "outrageous government conduct" during his detention and interrogations.

The circumstances of Jose Padilla, about whom I have written on several occasions (in chronological order: The Constitution as Inconvenience, The Abyss Stares Back, The Disappeared) are terrifying, shameful and sad in the extreme. Although he may indeed be guilty of some or all of the charges that have been leveled against him since his arrest and imprisonment, it is a sobering fact that no matter what the outcome of his ordeal, his day in court only came about because of relentless outside pressure. Absent that pressure, George W. Bush was content to incarcerate a U.S. citizen indefinitely and without trial.

Some legal scholars believe that the government's case against Padilla is weak, and that he will either be convicted of a relatively minor charge or acquitted altogether. While there are those who might find comfort in this, telling themselves that "the system works," Mr. Padilla will still have undergone extremely harsh treatment - including sensory deprivation, as pictured above - the effects of which he will have to deal with for the rest of his life.

Of paramount importance - and what needs to be stated as clearly as possible and repeated often - is the fact that the case of Jose Padilla is in no way a one-time "mistake". Although it appears that many Americans are content to see foreigners in our custody denied fundamental rights, letting them suffer longterm solitary confinement, force-feeding and a complete lack of legal redress, additional accounts of U.S. citizens receiving similar treatment will perhaps generate the shock and anger that are crucial to reversing the tide of anti-civil liberties excesses from the Bush Administration.

The New York Times reported on just such a case this weekend, and while there will almost certainly be those who cling to the belief that Jose Padilla's troubled past and poor choices are ample cause for his unconstitutional imprisonment, it will be much harder to muster similar justification about Donald Vance. Vance, a 29-year-old Navy veteran from Chicago working in Iraq as a security contractor, was also passing information to the FBI as a whistleblower. He had stumbled upon suspicious activities at the security firm where he was employed - including what he believed to be trade in illegal weapons - but when U.S. soldiers raided the company at his urging, Vance and a fellow American contractor, Nathan Ertel, were detained as suspects.

According to official statements, the military was unaware that Mr. Vance was actually their confidential informer, and, giving him a taste of what foreign-born prisoners endure for years, disappeared him into solitary confinement for over three months without access to an attorney or contact with the outside world. From the Times story:

Mr. Vance said he began seeking help even before his cell door closed for the first time. “They took off my blindfold and earmuffs and told me to stand in a corner, where they cut off the zip ties, and told me to continue looking straight forward and as I’m doing this, I’m asking for an attorney,” he said. “ ‘I want an attorney now,’ I said, and they said, ‘Someone will be here to see you.’ ”

Instead, they were given six-digit ID numbers. The guards shortened Mr. Vance’s into something of a nickname: “343.” And the routine began.

Bread and powdered drink for breakfast and sometimes a piece of fruit. Rice and chicken for lunch and dinner. Their cells had no sinks. The showers were irregular. They got 60 minutes in the recreation yard at night, without other detainees.

Five times in the first week, guards shackled the prisoners’ hands and feet, covered their eyes, placed towels over their heads and put them in wheelchairs to be pushed to a room with a carpeted ceiling and walls. There they were questioned by an array of officials who, they said they were told, represented the FBI, the CIA, the Naval Criminal Investigative Service (NCIS) and the Defense Intelligence Agency (DIA) ...

... The two men slept in their 9-by-9-foot cells on concrete slabs, with worn three-inch foam mats. With the fluorescent lights on and the temperature in the 50s, Mr. Vance said, “I paced myself to sleep, walking until I couldn’t anymore. I broke the straps on two pair of flip-flops.”

Granted hearings because of their American citizenship - something to which foreign-born prisoners have no guarantee - Nathan Ertel pleaded with the review board: “Please, I’m out of my mind. I haven’t slept. I’m not eating. I’m terrified." Mr. Vance, meanwhile, asked "Does my family know I’m alive?" to which he was given the response, "I don't know." Two weeks into his detention, Vance was allowed to call his fiancée in Chicago, who told him she thought he had been killed. Mr. Vance begged her to talk to anyone she could, and to bring as much pressure to bear as possible. That was the last time he spoke to her during his captivity.

Nathan Ertel was released relatively quickly, but for some reason which has yet to be explained, the military continued to label Mr. Vance a "threat," despite having cleared up the issue of his whistleblower status. Mysteriously, after an "additional review" months later, he was released and returned to the United States. Ashamed, depressed and paranoid, Mr. Vance is now preparing to sue former Secretary of Defense Donald Rumsfeld for violating his constitutional rights.

Again, to be clear: Charles Vance, an American citizen and Navy veteran, was interned for 97 days without access to the outside world and without independent judicial review. His family had no idea what had happened to him - or whether he was alive or dead - and it is only because the military deigned to release him - with implied threats that he'd better keep his mouth shut - that he is today a free man. Mr. Vance's ordeal is what happens when habeas corpus, a fundamental human right in Western civilization for more than 900 years becomes optional. It is what happens when checks and balances fall by the wayside and we do not hold our leaders to account.

To be sure, the human desire for security is a natural one, but it is vital to recognize that the founders of the United States wrote the Constitution with the express purpose of subordinating security to freedom. Today, as there have been throughout our history, there are men who ask us to surrender our freedoms, to place our fates in their hands, and to trust their benign despotism. Their rallying cry is that "the Constitution is not a suicide pact," ignoring the fact that the Declaration of Independence concludes "And for the support of this Declaration ... we mutually pledge to each other our Lives, our Fortunes and our sacred Honor," a statement that freedom is worth any price, if ever there was one.

The notion that individual liberty is more important than the convenient exercise of police power is fundamental to our national character. It is what has defined us as a nation of laws rather than men, and it is what shaped the admiration for the United States held by a good portion of the world's population in the post-War era. It is no coincidence then, that as we have abandoned our principles through stupidity and arrogance manifested in the invasion of Iraq, Guantanamo Bay, Abu Ghraib, and the Military Commissions Act, we have seen our standing plummet in the eyes of the world.

As Donald Vance puts it:

“Even Saddam Hussein had more legal counsel than I ever had. While we were detained, we wrote a letter to the camp commandant stating that the same democratic ideals we are trying to instill in the fledgling democratic country of Iraq, from simple due process to the Magna Carta, we are absolutely, positively refusing to follow ourselves.”

Our claims to fairness are belied by the kangaroo courts we have established to "try" our captives, and the cases of men like Padilla and Donald Vance amply demonstrate that we can no longer even claim to treat our own citizens as we would have others treat theirs. In the eyes of the world, we are greatly diminished, and deservedly so. We are - after all - what we do and not merely what we say, and by that measure, our leaders have made us little more than a nation of hypocrites.

[For more on Donald Vance, click on the radio icon for the podcast of a December 19th interview on NPR's On Point with Tom Ashbrook.]

Oversight at Stake

Two days after suffering an apparent stroke, Senator Tim Johnson of South Dakota is recovering in the Intensive Care Unit of George Washington University Hospital, having undergone what appears to have been successful brain surgery. As it turned out, Senator Johnson did not, in fact, suffer a stroke, but instead fell victim to a congenital defect called an arteriovenous malformation, that is essentially a tangle of malformed blood vessels. While it will be some time before Johnson would be back on his feet in a best case scenario, his initial prognosis is tentatively positive. (Nonetheless, this can only be a frightening time for the senator and his family, and I wish them the very best, along with a speedy recovery.)

As has been widely reported, the ramifications of Senator Johnson's incapacitation or death would be significant with regard to the balance of power in the Senate. While the November elections pushed the Democrats into a 51-49 majority, if Johnson is unable to complete his term, South Dakota Governor Mike Rounds, a Republican who would appoint his replacement, could pick a fellow member of the GOP to fill the seat until the next election in 2008. Such an appointment would result in a 50-50 partisan split within Congress' upper house, and maintain GOP control through Vice President Dick Cheney's tie-breaking vote.

From the perspective of the types of legislation that move through the Senate, such a shift might not, in fact, be earth-shattering; historically, it has been difficult to fully control the agenda of the Senate without a margin of significantly greater size than two votes. The House of Representatives would remain firmly in Democratic hands, and it is likely that that would be enough to at least set the tone for the types of laws that would pass through Congress. Where a potential restoration of Republican control truly matters however, would be in the role of oversight.

As Senator Patrick Leahy of Vermont expressed in a speech at Georgetown University Law Center:

This Administration has rolled back open government laws and systematically eroded Americans’ privacy rights. It has brazenly refused to answer the legitimate oversight questions of the public’s duly elected representatives, and it has acted outside lawful authority to wiretap Americans without warrants, and to create databanks and dossiers on law-abiding Americans without following the law and without first seeking legal authorization. This White House has behaved as if the Constitution begins with Article II* and they have taken their extreme ideology of a “unitary executive” to strip both Congress and our independent federal judiciary of their rightful roles.

The constitutional balance must be restored. Congress has a solemn duty to protect the rights of the American people and to perform meaningful oversight to make sure the laws are followed. Real oversight makes government more accountable and more effective in keeping us safe.

While legislation and laws are unquestionably important, at this point in time, what is even more crucial to the country is a restoration of Congress' role as watchdog. Senator Leahy, the incoming Chair of the Senate Judiciary Committee, has promised just such oversight, but he will only be able to deliver if the Democrats retain control of the Senate. Without that control, the egregious Arlen Specter will once again preside over the Judiciary Committee, a position he has used consistently to rubber stamp the wishes of the Bush Administration and to undermine Congressional authority.

Fortunately, while there has been somewhat hopeful speculation in some quarters about the possibility that the Republicans could maintain control of the Senate at the expense of Senator Johnson, it appears Governor Rounds would only be able to fill his seat if it were vacant. Since there is no federal provision for forcing the senator to vacate, and the definition of "incapacitation" - a circumstance that might allow for vacating the seat under South Dakota law - is vague, this is unlikely to occur.

As long as Senator Johnson recovers from his surgery, or at a minimum does not resign, there is ample precedent for his maintaining the office to which he was elected. That is good news for the nation, and we can only hope that the news is as good for the senator and his family as he recuperates.

* This is a reference to the fact that the Constitution begins with the legislature - not the presidency - in Article I.

More Debates We Should Not Be Having

Last month, former Speaker of the House Newt Gingrich addressed an audience at an awards dinner held by the Nackey S. Loeb School of Communications to honor defenders of the First Amendment. Oddly, Mr. Gingrich - who is eying a run at the White House in 2008 - took this occasion to advocate the curtailment of free speech as a weapon in the fight against terrorism:

And I want to suggest to you that right now we should be impaneling people to look seriously at a level of supervision that we would never dream of if it weren’t for the scale of threat...

This is a serious long term war, and it will inevitably lead us to want to know what is said in every suspect place in the country, that will lead us to learn how to close down every website that is dangerous, and it will lead us to a very severe approach to people who advocate the killing of Americans and advocate the use of nuclear of biological weapons.

And, my prediction to you is that either before we lose a city, or if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up their capacity to use the internet, to break up their capacity to use free speech, and to go after people who want to kill us to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us.

In other words, in order to preserve America and the values that make it the country it is, we must destroy the very things which inform the character of the nation. Absurd? Absolutely. Surprising? Unfortunately, not. Since George W. Bush claimed the White House, there have been a number of issues that have become the subject of debate which would, simply, never have entered the pale of serious conversation only a few years ago:

• Should basic human rights like habeas corpus be denied?
• Is it acceptable to torture?
• Is the President of the United States above the law?

Each of these questions, when posed as simply as they have been asked above, are generally pretty easy for most people to answer in the negative. Yet somehow, we find ourselves in the midst of conversations and arguments parsing out which people it's OK to imprison indefinitely without due process, which ones it is alright to abuse, and whether - as long as he means well - it is permissible for the president to blatantly ignore the rule of law. To this list, we can now add the "debate" Mr. Gingrich would like to spark centering on the circumstances under which we, as citizens, should be grateful for benevolent rulers who will determine for us what kind of speech is acceptable and what is not.

Astonishingly, according to his website, Newt Gingrich is "recognized internationally as an expert on world history, military issues, and international affairs." Given his purported expertise, one can only conclude that the lessons of history have either thoroughly escaped the former Speaker, or that he understands what happens when free speech is restricted, and is an advocate for repression in the United States.

For even blind to history, one need only look around today to see the unintended consequences of short-sighted policies of exceptionalism. Fox News reported in September that Muslim cab drivers working at Minneapolis-St. Paul International Airport often refuse to serve customers they know are transporting alcohol, out of religious concerns. It can certainly be argued that the drivers should expect to carry passengers with alcohol - a legal substance in the United States - or that they should find alternative employment. How to square that though, with the wide latitude given pharmacists in refusing to provide Plan B contraception based on "moral concerns," a policy wholly supported by Christian conservatives? Likewise, in Albemarle County, Virginia, parents who pressured the public schools to permit distribution of leaflets on Christian activities to students are finding it a bitter pill to swallow that local pagans are taking advantage of the same outlets for information.

Beyond these relatively small examples however, lies the simple fact that Mr. Gingrich's claims of unprecedented danger are patently false. The Bill of Rights was written and made law at a time when the very survival of the United States as a nation was profoundly in question. Great Britain, the world's preeminent power in the 18th century, posed the most serious, direct and imminent military threat that our country has ever faced, and loyalists to the British Crown literally lived side-by-side on American soil with those who favored independence.

It was in this treacherous, perilous environment that the essential freedoms encapsulated in the first ten Amendments to the Constitution - including freedom of speech - were both written and enshrined. While terrorists are unquestionably a frightening enemy, the idea that the danger they represent justifies compromising the Bill of Rights - a document birthed in the most threatening of environments - is unsubstantiated by even a cursory examination of history. Mr. Gingrich's claims to the contrary are nothing more than un-American, fear-mongering authoritarianism at its worst, and conversations about restricting free speech are simply a debate we should not be having.

Keith Olbermann has more:

Vietnamization 2.0

On Wednesday, the Iraq Study Group (ISG) released its final report, and while hardly groundbreaking, the contents of that analysis and recommendation represent a sobering departure from the delusional language of "stay the course" and "we are winning" that has been rote recitation from the Bush Administration. The opening sentence of the document's executive summary notes that "the situation in Iraq is grave and deteriorating," and while the ISG's report is in no way binding, the rebuke to the policies of President Bush and his followers is clear: mature men of high diplomatic standing - at least in the persons of James Baker III and Lee Hamilton - have assessed the situation as dire, and pressure on the White House to change direction will be even heavier than it has become in recent weeks.

The conservative blogosphere, long enamored of the machismo of "regime change" and "spreading democracy" has reacted with dismay, dubbing the ISG the "Iraq Surrender Group" and questioning how we can ask men to die to "mitigate defeat". Unfortunately, that question should have been asked a long time ago, perhaps when wargames conducted in 1999 revealed that at least 400,000 troops would be required to invade and occupy Iraq; the administration pointedly ignored that inconvenient recommendation by firing the general who voiced it, and then invaded with less than half that many. Better questions to ask might have been "How can we ask men to die for a wretchedly-conceived fantasy that detracts from pursuing the real enemy, al-Qaeda?" or "Will the lessons of Vietnam (and now Iraq) ever teach the United States to stop wasting lives in countries about which our leaders are demonstrably ignorant?"

Indeed, despite the fact that casualty counts (to date) are much lower in Iraq than they were in the Vietnam War, the ISG exit strategy remains the same. Vietnamization - the passing of responsibility to the South Vietnamese during that conflict, and a precursor of "As Iraqis stand up, Americans will stand down" - was lipstick on the pig of failed policy 35 years ago, and the fact that the Report recommends what is effectively the "Iraqification" of the current conflict would be ironic if it weren't already tragic. Vietnamization as a means of creating stability was a failure, and as with the current recommendation, there was no time table for withdrawal - just rough goals that kept the U.S. in-country for years longer. Ultimately, it was rendered moot by a back door deal struck at the Paris Peace Accords which allowed the United States to declare victory and withdraw completely, leaving the Vietnamese to fight it out amongst themselves. This recommendation of the Iraq Study Group - the Iraqification element if you will - will also fail to stabilize Iraq.

What we will witness in the Persian Gulf over the coming months will be tragic: more loss of life; the potential collapse of Iraq into the status of an Iranian backwater and the rising friction that status will cause with Saudi Arabia; tension and likely combat along the border with Turkey as that country works to keep its Kurdish minority from seceding to join a de facto independent Iraqi Kurdistan. It will also happen whether or not the U.S. remains or fights on to "honor" those who have already fallen. To use a somewhat crass business analogy - but one that is "realist" to the core - losses to date are a sunk cost; since they cannot be reclaimed, they should not factor in determining our course going forward.

To be sure, there are positive recommendations in the Iraq Study Group report. But while it is without question better than the policy vacuum we have experienced to date, the lack of a schedule for troop withdrawal is an untenable political compromise. Worse, it is one that will provide the Bush Administration with just enough political cover to make nothing more than token adjustments, while "staying the course" in practice if not in name. Without a time-bound plan for withdrawing our forces, we risk sacrificing more American lives to a cause that was lost before it ever began, and George W. Bush is free to pass along his mess for someone else to clean up.

Enough is enough.

One Last Helping of Pork

The Christian Science Monitor reported last month that President Bush's proposed budget for fiscal 2007 will terminate government funding for research into geothermal and hydropower. The White House's position is that these technologies are "mature," and that, if there is truly merit to developing them further, venture capitalists will step in to fill the void.

Given that energy independence would go a long way to reducing U.S. interests in volatile parts of the world such as the Persian Gulf, it would be reasonable to expect that the amount of funding from the government for geothermal and hydropower must be quite large. After all, the savings would have to be significant in order to justify impeding the move away from fossil fuels - and entanglement with countries like Saudi Arabia, Iran and Iraq - wouldn't it?

Well, not exactly. The sum in question is 24 million dollars - that's "million" with an "m" not "billion" with a "b" - or roughly what it costs to fund just over three days of the Iraq War.

To be sure, there is merit in the idea that private investors will embrace worthy technologies, but there is also the question of speed to market, and the sooner the United States can put a dent in its dependence on oil - foreign oil in particular - the better off the country will be from both environmental and security perspectives. From the Monitor article:

"The idea that geothermal is a mature technology that doesn't need further research doesn't even pass the laugh test," says Mr. Gawell. ... Together, high-tech hydropower and geothermal resources could contribute at least enough power to replace more than 100 medium-size coal-fired power plants with emissions-free electricity - about the number now on the drawing board. ... "There's this view that hydropower is a technology that's been around a long time, and there's not much more we can do to improve it - but we've got the next generation of hydropower - ocean, tidal, wave and conduit energy coming on," says Linda Church Ciocci, executive director of the National Hydropower Association, a Washington trade group.

The share of private equity going to clean energy companies has indeed risen rapidly over the past several years, but there is something undeniably out of whack when American petroleum companies - representatives of one of the most mature industries in the country - received as much as $4 billion in tax breaks last year, and nascent technologies that are both continuing to evolve and showing promises of practicality are cut off completely. In fact, according to a recent piece in The International Herald-Tribune:

In the United States, annual federal spending for all energy research and development - not just the research aimed at climate-friendly technologies - is less than half what it was a quarter-century ago. It has sunk to $3 billion a year in the current budget from an inflation-adjusted peak of $7.7 billion in 1979, according to several different studies.

The effect of this trend is that, as Tom Engelhart wrote in The Nation's blog:

Practically speaking, what that means is: From solar power to wind power, the U.S. is ceding a lucrative energy future to other countries. Whatever breakthroughs might be achieved in alternative fuel development are ever less likely to happen here.

Meanwhile, S. 3711, the Gulf of Mexico Energy Security Act of 2006, was passed in the Senate, and is now on its way to the House of Representatives where the lame-duck Republican 109th Congress is looking to dole out one last, dinner-sized helping of pork to its friends in Big Oil before heading for the exits. While there have been hyperbolic claims about potentially enormous finds in the Gulf, it is far from certain that petroleum reserves there would be significant at all. In fact, the U.S. Minerals Management Service estimates that the area addressed by the bill would only yield enough natural gas for between 26 and 34 days at current national consumption rates, and productive wells would not be online until 2013 at the earliest.

With 80% of the nation's offshore oil reserves already open for development and more than 4,000 oil leases in the Gulf of Mexico that have yet to be developed, it is difficult to see the urgent need for the passage of this bill, especially when potential damage and resultant pollution from frequent hurricanes is considered. But while the national interest in opening up an area that has been off-limits to drilling for more than a quarter century might be hazy, there is little question that the oil industry is rapacious in its desire for new territory, or just as importantly, that revenue re-apportionment language within S. 3711 would benefit Alabama, Florida, Mississippi and Louisiana - Republican strongholds all, with the possible exception of Florida - to the tune of $60 billion over the next 25 years at the expense of the rest of the nation.

Although the threatened House vote on S. 3711 was postponed today by Republican leadership because of insufficient votes, the outgoing GOP remains committed to bringing it back to the floor before handing over control of Congress to the new Democratic majority at the close of this session. So, while their due diligence to the interests of the United States can be questioned, never let it be said that President Bush and the Republicans of the 109th Congress were anything but dutiful in their pork barrel spending for supportive special interests, no matter what the consequences to national energy security, the environment, or the health of the the country's technology sector.

When the final gavel of this Congress is struck on Friday, it will be a very good thing.

Masturbatory Exercises in Substanceless Self-Promotion

The Associated Press reported Monday that, after a delay of more than a year, the Privacy and Civil Liberties Oversight Board (PCLOB) - which had been appointed ostensibly "to guard Americans' privacy and civil liberties during the war on terror" - has been made privy to the inner workings of the government's warrantless electronic eavesdropping program. The reactions of the board members were almost universally positive:

Board members told The Associated Press they were impressed by the safeguards the government has built into the NSA's monitoring of phone calls and computer transmissions and wished the administration could tell the public more about them to ease distrust.

"If the American public, especially civil libertarians like myself, could be more informed about how careful the government is to protect our privacy while still protecting us from attacks, we'd be more reassured," said Lanny Davis, a former Clinton White House lawyer who is the board's lone liberal Democrat.

Davis said he believes the administration could tell the public more about the program's protections without compromising national security.

Close on the heels of this article was another in the The San Jose Mercury News reporting that the Department of Justice (DOJ) is launching an inquiry to determine whether the same Bush Administration warrantless surveillance program complies with government procedures. Prior to the mid-term elections, Congressional Democrats had been stonewalled in this inquiry by Glenn Fine, the Justice Department Inspector General who is now leading the investigation, and further obstructed when Fine passed the inquiry request to the Office of Professional Responsibility, whose investigators were then personally denied necessary security clearances by President Bush himself.

The implication of these stories is that a new spirit of openness has bloomed in the Bush White House, and that checks and balances are slowly being restored in the wake of the GOP's loss of both House and Senate majorities. Most tellingly, it is noted, even the "liberal Democrat" and "civil libertarian" on the PCLOB has expressed his wholehearted support for the protections that are built into the warrantless surveillance program. Clearly, there is a realization among Republican leadership that they have gone too far in their pursuit of the "War on Terror," and that fundamental constitutional rights must be preserved!

Or not.

Upon closer examination, it is revealed that the new investigation will not deal with the legality of the warrantless surveillance program, which was ruled both unconstitutional and illegal in August . (That ruling is being appealed by the government.) As Mr. Fine put it, the review will focus not on the NSA, but on the Justice Department, and will "examine the department's controls and use of information related to the program and the department's compliance with legal requirements governing the program." In other words, the Inspector General will check to make certain that the DOJ is complying with rules governing a program that violates both the law and the Constitution.

Further, the opinions of members of the Privacy and Civil Liberties Oversight Board - despite having been latched onto with fervor by Republican supporters - are wholly irrelevant. Individuals on the board may take whatever comfort they choose in what they have been shown by the Bush Administration, but it is difficult to understand why anyone should believe or accept that a sunny review from Lanny Davis* somehow trumps the rule of law. In short, the NSA warantless surveillance program remains illegal and unconstitutional, and the opinions of the Board are every bit as meaningless as its supposed powers of oversight.

The investigation by the Justice Department and the quotes from the PCLOB are not chance events, however, despite their lack of substance. Rather, they are elements of Bush Administration efforts to retrench its image and present a less imperial face to the public, while continuing to operate with the same utter disregard for the Constitution they have shown since claiming the White House. Senator Arlen Specter was quoted today expressing doubts that the incoming 110th Congress will be given details about the NSA program, and even the much-heralded Iraq Study Group's upcoming recommendations on the Iraq morass already appear to be nothing more than toothless re-spinning of the current stay-the-course "strategy".

The Democrats' retaking of Congress was an important milestone, but one need only observe that so-called advances and reassurances offered by the GOP continue to be nothing more than masturbatory exercises in substanceless self-promotion to determine that there has been very little actual change emanating from 1600 Pennsylvania Avenue. Recent actions are empty gestures and sound bites that will not restore the civil liberties that have been lost, address the laws that have been violated, or significantly change course in Iraq. The spots on the Republican leopard may no longer be as bold, but they have not changed.

* Even if the PCLOB's position could be considered a relevant counterweight to the most recent ruling on the program's illegality and unconstitutionality, it would still be the kind of conflict of interest that should be embarrassing to those who participate in it. The Board is staffed with people hand-picked by President Bush to monitor a program he himself champions, and to whom they report. Additionally, Lanny Davis' supposedly "liberal" credentials are wholly spurious. He has made statements backing GOP actions on Terri Schiavo, criticizing left-of-center blogs for positions taken within their comment sections by people other than the authors of those blogs, and even fretted that Democrats would somehow "politicize" the Jack Abramoff scandal that was so emblematic of the corruption in the Republican-controlled 109th Congress.

Force Degradation and the Need for a New Draft

On November 19th, Congressman Charles Rangel announced that he planned to once again introduce legislation to reinstate the draft, something he has done with previous bills in 2003, 2005 and earlier this year, without success. The proposed legislation would cover all men and women between the ages of 18 and 26, making military service compulsory for a subset of those individuals to be determined by the President based on need, with alternative national civilian service mandatory for the remainder. Active duty would last for 15 months, and there would be no deferments for education beyond the completion of high school (up to age 20), and for reasons of health or conscience.

Judging from statements by Mr. Rangel, there are three main justifications for this legislation:

1. Insufficient numbers of American troops were deployed for the U.S. occupation of Iraq. Troops can only be kept in the field by extending deployments, calling back veterans who have previously served in combat, and placing additional burdens on reserve forces. These tactics are unsustainable, and are degrading our force structure.
2. As the Iraq War drags on, an all-volunteer military is becoming increasingly unattractive to potential recruits with other career options. Accordingly, the most disadvantaged young people from areas of high unemployment will be increasingly likely to carry a greater share of the military burden.
3. With the strain of deployment in Iraq, the United States does not have enough manpower to address other threats.

Of these supporting arguments, it is unquestionably the second which has received the most media exposure. With public opposition to reinstatement of the draft significantly higher than support for such a measure, Mr. Rangel's pledge has been almost universally tagged as a political maneuver, with the Congressman himself stating:

The President said in his State of the Union address that war was an option that remained on the table in dealing with these countries [Iran, Syria and North Korea]. In my view, the war option would not be on the table if the people being placed in harm's way were children of White House officials, members of Congress or CEOs in the boardrooms. As other people's children endure a grinding war, they have been given huge tax cuts, while our veterans have gotten cuts in health benefits.

Incoming Speaker of the House Nancy Pelosi has stated that she will not support restoration of the draft, but while this might defuse any political fallout from such legislation, it does nothing to address the very real issues of force degradation and the dearth of capacity to deal with additional threats. Further, criticisms of past draft-related legislation from Congressman Rangel - which any new bill will use as a template - that point to the hundreds of billions of dollars in additional costs that would be associated with a compulsory national service program, are justified.

If Mr. Rangel - or anyone else for that matter - is truly serious about addressing the fact that the Army has virtually no non-deployed, combat-ready brigades, the focus of legislation to address that problem must be tightly focused and as free of baggage as possible. National service is a laudable concept - issues of funding aside - but it is not a priority when the very ability of the United States to defend itself and its interests abroad has been hamstrung by the Bush Administration's irresponsible method for fighting the Iraq War.

Ike Skelton, the new Chairman of the House Armed Services Committee has pledged to exercise oversight and to end the corruption and misplaced priorities that have so adversely affected those who currently serve in the armed forces. That is unquestionably the right thing to do, but it is not sufficient when the very soundness of the national defense is in question. The military has already lowered its personnel standards, increased financial incentives and raised the maximum age for enlistment in order to reach its recruitment goals and have a credible chance of doing so in the future. While there is probably some room to continue down the path of looser requirements and better pay, we are clearly running out of options that will allow the United States to field forces sufficient to meet current obligations - let alone potential future needs - without critically undermining the soundness of our force structure.

Undoubtedly, there are those who would see reinstatement of the draft as carte blanche for President Bush to pursue further adventurism, most particularly in Iran, Syria and Lebanon. Mr. Bush cannot pursue military engagement with those (or other) countries unless the ranks of the armed forces grow, but reinstating the draft nonetheless remains the responsible thing to do. The American military cannot continue to operate under current conditions, and conscription would simultaneously help reduce public apathy about our luxury war in Iraq, while placing political constraints on pursuing additional armed conflict.

While it may be ironic that George W. Bush campaigned on the notion that the Clinton Administration had somehow over-used and underfunded our armed forces, and it is tempting and wholly justified to mock those who backed the Iraq War but refuse to serve in it, the reality is that the country is facing imminent crisis in both the near and long terms. The time to address the looming problem of force readiness is now, not when nascent threats have grown into full-blown peril.

The mechanism for addressing this crisis however, should not be Congressman Rangel's bloated national service legislation. Instead, it should be a tightly targeted reinvigoration of the current Selective Service mechanism with minimal deferrments. While there is little political will to pursue a new draft and it is unlikely to be reinstated anytime soon, without some form of conscription, war will remain a convenience that leaves most of the populace unaffected and which can be pursued with little resistance from voters - but only until the readiness of our armed forces is degraded to the point of failure.

Happy Thanksgiving

While the mid-term elections provided much for which to be thankful, there also remains a great deal for which we have every right to be ungrateful. It will certainly be increasingly difficult for President Bush to continue ramming his radical agenda down America's collective throat in the wake of the mid-term elections, but Thanksgiving day in particular can only be heart-rending for the families of those serving extended tours of duty in Iraq and Afghanistan.

As you sit down to dinner with what will hopefully be a warm gathering of those closest to you, please be sure to remember those who are less fortunate, whether because of economic disadvantage, accident or birth, or simply because they risk their lives at the whim of incompetents. (And please be nice to one another, no matter how much you sometimes drive each other crazy!)

Happy Thanksgiving to all, wherever you may be!

(Sensen No Sen will return to it's semi-regular schedule next week.)

Martial Law Made Easy

While the full frontal assault on the Constitution that is the Military Commissions Act (MCA) has garnered some well-deserved attention and criticism, another wretched piece of legislation - with equally ominous implications for American democracy - was signed into law by President Bush on the very same day, but with much less fanfare. That law is H.R. 5122, the John Warner National Defense Authorization Act for Fiscal Year 2007 (JWNDAA). While the MCA has been cast by its supporters as a tool against foreign terrorists, what is most striking and frightening about the Warner Defense Authorization Act is that it explicitly targets citizens of the United States.

Two federal laws, the Insurrection Act of 1807 and the Posse Comitatus Act of 1878, govern the president's ability to deploy troops on domestic soil for the purposes of, respectively, putting down "lawlessness, insurrection and rebellion," and broader law enforcement. Together, they are highly restrictive of presidential power, and they are the primary bastion against the use of America's military against its own citizens. H.R. 5122 removes this safeguard by modifying the Insurrection Act and effectively gutting Posse Comitatus provisions.

Section 1076 of the Warner Defense Authorization Act states:

The President may employ the armed forces, including the National Guard in Federal service, to... restore public order and enforce the laws of the United States...

In short, it allows the President to declare a "public emergency" and station troops anywhere in the United States, commandeering state-based National Guard units without the consent of governors or local authorities. It is an unprecedented level of power in the hands of the executive branch, and it threateningly echoes the MCA by allowing the President alone to determine the circumstances under which he exercises it.

Under this law, President Bush can take control of National Guardsmen from any state - again, over the the objections of that state's authorities - deploy them across the country on law enforcement assignments, and use them to suppress any portion of the citizenry he deems disorderly. Those citizens might be protesters or, given previous statements from Mr. Bush, people who object to forced quarantines in the event of a Bird Flu outbreak. It might be possible to regard H.R. 5122 as merely distasteful or poorly-considered legislation if it had been passed on its own, but the timing of its signing into law clearly marks it as complementary to the Military Commissions Act .

Those with any doubt need only consider that the JWNDAA permits mass round-ups and imprisonment in new large-scale facilities, the construction of which have already been contracted to Halliburton subsidiary Kellogg Brown & Root (KBR). The New York Times reported earlier this year that KBR executives have stated that these facilities would be built to handle an "unexpected influx of immigrants [or] to house people in the event of a natural disaster" but, more chillingly, that they might also be used for "new programs that require additional detention space."

Clearly, the Military Commissions Act, the John Warner National Defense Authorization Act and the KBR contracts are elements of a coordinated assault on fundamental freedoms, from both foreign and domestic perspectives. Anyone who thinks either of these laws was passed for show need look no further than the cases of Ali Saleh Kahlah al-Marri, Ali Partovi or Jose Padilla - all of whom have been held without charge for years - for confirmation that the Bush White House has few qualms about violating human rights or trashing long-standing Constitutional and legal protections, even when it comes to American citizens.

Taken together, the MCA and the JWNDAA represent the product of the fear which so thoroughly informs the national security policy decisions of the Bush Administration. They are emblematic of Mr. Bush's weakness, which chases easy solutions - no matter the consequences to democracy - rather than pursuing more difficult avenues that preserve civil liberties. To be sure, the job of the President of the United States of America is not an easy one, but it isn't supposed to be; and it is inarguable that a chief executive who fails to "preserve, protect and defend the Constitution" - as demanded by his oath of office - has failed in his duties.

The results of the 2006 mid-term elections indicate that the public is awakening to the political, ethical and functional bankruptcy of the modern GOP. Democrats who will be in the majority in both the Senate in the House next January are in position to roll back some of the most egregious elements of the MCA and the JWNDAA, with Christopher Dodd planning to do just that on the former (hat tip to Crooks and Liars), and Patrick Leahy likely to take point on the latter. While these are not issues that will get the coverage or the attention of something like an increase to the federal minimum wage, they are crucial to the continued existence of our nation.

Overturning the Republican Congressional majority was only step one; keeping pressure on our elected officials to turn back government threats to our civil liberties must follow.

The Pitfall of Diminished Expectations

Immediately after the Republican Party lost control of Congress, Defense Secretary Donald Rumsfeld tendered his long-overdue resignation from President George W. Bush's cabinet. Although Rumsfeld was an architect of what may well be the worst foreign policy disaster for the United States in the last 100 years, and despite repeated calls for his dismissal, Mr. Bush had declared less than two weeks before the 2006 mid-terms that he intended to keep the beleaguered head of the Pentagon on the job through the end of his presidency. Just one day after the elections however, the President essentially admitted he had lied to reporters about his intention to keep Rumsfeld, and announced that he was being replaced with Robert M. Gates.

Mr. Gates, who has been serving as President of Texas A&M University, is by nearly all accounts professionally qualified to run the Department of Defense, but there remain serious concerns about whether or not he told the truth regarding what he knew about the Iran-Contra Scandal (from the Wayne Madsen Report; scroll to November 9):

Defense Secretary-designate Robert Gates (is) in position to know about the Iran-Contra scandal. The Final Report of Judge Lawrence Walsh, the Independent Counsel for Iran-Contra Matters, issued on Aug. 4, 1993, concluded, "Robert M. Gates was the Central Intelligence Agency's deputy director for intelligence (DDI) from 1982 to 1986. He was confirmed as the CIA's deputy director of central intelligence (DDCI) in April of 1986 and became acting director of central intelligence in December of that same year. Owing to his senior status in the CIA, Gates was close to many figures who played significant roles in the Iran/contra affair and was in a position to have known of their activities."

The report continued, "Gates was an early subject of Independent Counsel's investigation, but the investigation of Gates intensified in the spring of 1991 as part of a larger inquiry into the Iran/contra activities of CIA officials. This investigation received an additional impetus in May 1991, when President Bush nominated Gates to be director of central intelligence (DCI)."

Walsh re-focused on Gates after Clair E. George, the CIA's Deputy Director for Operations stonewalled the prosecutor on the role of Gates in Iran-Contra crimes. Walsh reserved the right to re-open the investigation of Gates but was stymied by the non-cooperation of George and Gates. Walsh said new information "could have warranted reopening his inquiry [of Gates], including testimony by Clair E. George, the CIA's former deputy director for operations. At the time Independent Counsel reached this decision [not to prosecute Gates], the possibility remained that George could have provided information warranting reconsideration of Gates's status in the investigation. George refused to cooperate with Independent Counsel and was indicted on September 19, 1991. George subpoenaed Gates to testify as a defense witness at George's first trial in the summer of 1992, but Gates was never called."

It is clear from the Walsh Report that Gates was an integral part of the illegal network that sold TOW anti-tank missiles to Iran in exchange for the release of U.S. hostages in Lebanon and that proceeds from the arms sales were illegally diverted to the Nicaraguan Contras. That put Gates inside a web of conspirators in the illegal arms sales and money transfers who included Oliver North, National Security Adviser John Poindexter, former National Security Adviser Robert McFarlane, intermediaries Manucher Ghorbanifar, Albert Hakim, Mohsen Kangarlu, and Maj. Gen. Richard V. Secord, Hashem Rafsanjani (the nephew of Iranian leader Ali Akbar Rafsanjani), and other senior CIA officials...

... Gates obfuscation on Iran-Contra continues to this day. As President of Texas A&M University, Gates has been the host for the George H. W. Bush Presidential Library. In the bowels of the library are presidential papers that could shine a bright light on the Iran-Contra scandal. However, in November 2001, George W. Bush signed an executive order that upended the 1978 Presidential Records Act and permits the Bush Iran-Contra papers to be kept secret in perpetuity. The executive order also affects 60,000 pages of papers from the Reagan Presidential Library that include details of then-Vice President George H. W. Bush's role in Iran-Contra.

Of even greater worry than his role in Iran-Contra, however, are the repeated allegations that Gates politicized intelligence when he was at the Central Intelligence Agency (CIA). Considering that just such politicization was a key factor in the Bush Administration's selling of the Iraq invasion to the American people, this simply cannot be ignored. Although he is considered to have done a largely creditable job at the CIA, it is important to remember that a number of his contemporaries recall his editing of intelligence to fit policy rather than to shape it. As MSNBC reported:

When he heard today about Gates's nomination, “I nearly choked on my sandwich,” said Mel Goodman, a former Soviet analyst at the CIA who testified against Gates’s nomination to be CIA director in 1991. “This is not a guy who’s ever been accused of speaking truth to power. If you’re looking for somebody who’s going to change Iraq policy, he’s hardly the guy to do it. The only policy he’s going to consider is what is acceptable to the White House.”

During his 1991 testimony, Goodman testified that Gates, as deputy CIA director, consistently politicized intelligence-community reports about Iran, Nicaragua and Afghanistan in order to cater to the hard-line anti-Soviet policies of the Reagan White House. Gates’s role as deputy CIA director “was to corrupt the process and the ethics of intelligence on all of these issues.” When Goodman protested his actions, Gates “went off like a Roman candle,” Goodman said today. “It was the same kind of manufacturing of intelligence” in the run-up to the Iraq war, Goodman said.

Considering all this, it would not be unreasonable to expect Mr. Gates to be rejected by the new Democratic majority out of hand, but that doesn't appear to be the case. The truth of the matter is that Mr. Rumsfeld did such a horrible job and had such an awful relationship with Congress, that almost any successor will be deemed an improvement. Gates is palatable because he has close ties to the presidency of George H.W. Bush - considered to be representative of "realistic conservativism" as opposed to his son's ideological neoconservatism - and is a member of the Iraq Study Group (ISG), commissioned to reassess the situation in the Persian Gulf and recommend new courses of action in the Iraq War. In many ways, however, these may number among the already-formidable list of reasons he should be rejected as Secretary of Defense.

Of significant concern to the current President Bush, his father and the men of Mr. Bush the elder's administration, is the legacy of this presidency. While Mr. Gates can almost certainly be counted on in a general sense to have the interests of the United States at heart, it is also likely that his actions will be leavened with a strong desire to advance the interests of the Bush family, who are largely responsible for the rehabilitation of his career after Iran-Contra. (See Ron Suskind's excellent The One Percent Doctrine for an account of this type of dynamic in the relationship between President Bush and former CIA Director George Tenet.)

We must not fall into the trap of diminished expectations. A clean break is needed from the recent past, as well as the more distant, and as with the 2006 elections, fresh blood is required to begin righting the ship of state. George W. Bush has done nothing to demonstrate that he values clarity and independence over loyalty, nor, as his repeated attempts to circumvent the Senate with John Bolton's nomination demonstrate, does he appear to be operating in good faith bipartisanship, despite recent claims to such.

While Robert Gates is almost certainly not the worst of all possible choices to be the new Secretary of Defense, he is clearly nowhere near the best. Given the consistent incompetence and negligence that have been the hallmarks of this administration, and the increasingly dire situation in Iraq, it is crucial that we aspire to more than mediocrity. The Senate should reject his nomination.