alternative hippopotamus

Dan Froomkin points out a very common error that people make about the Bush Doctrine. The way Charlie Gibson put it was:

“The Bush doctrine, as I understand it, is that we have the right of anticipatory self-defense, that we have the right to a preemptive strike against any other country that we think is going to attack us.”

A more accurate version is:

“Incompetence and Internal Warfare.”

“A noun, a verb, and 9.11″ would also have been acceptable.

This WaPo vignette is one of the clearest illustrations of how a small group of individuals can game a system and destroy what was up to that point a charmingly quirky democratic republic. I like this quote for starters:

But two sources who spoke on the condition of anonymity said that Card called to reject the names shortly after the list arrived at the White House.

“The message was that there was only one candidate they wanted, and that was John Yoo,” one source said.

Yes, of course he was.

Yoo did not emerge from the head of Beelzebub post 9.11 of course. He was one of the gangsters in the Reagan justice department who came up with a series of remedies for Watergate. That is, how to prevent a future Republican presidential lawbreaker from being held accountable for a future Watergate.

Now, I know that RiverMalkin and the Meowists are satisfied that we’ll be just fine with divided government in the form of McCain and a Democratic Congress, no matter how light the Democratic seasoning of that Congress is. Having seen how Oz functions, I have little doubt that McCain will continue in the same vein. The Executive has been gamed, and it will take a generation of dedicated reformers to heal it. McCain is not that reformer. I dearly hope Obama is.

“It seems that no matter what happens in Iraq, opponents of the war have one answer: retreat,” Bush said at a press conference this morning. “When things were going badly in Iraq a year ago, they called for withdrawal. Then we changed our strategy, launched the surge, and turned the situation around. . . .

“It’s interesting that many of the same people who once accused me of refusing to acknowledge setbacks in Iraq now are the ones who are refusing to acknowledge progress in Iraq.”

President Bush as quoted in White House Watch

“What’s lost … by embracing a tyrant who puts his people in prison because of their political beliefs?” he said. “What’s lost is, it’ll send the wrong message. It’ll send a discouraging message to those who wonder whether America will continue to work for the freedom of prisoners. It’ll give great status to those … who have suppressed human rights and human dignity.

Warming to the subject, Bush continued: “Sitting down at the table, having your picture taken with a tyrant such as Raul Castro, for example, lends the status of the office and the status of our country to him. He gains a lot from it by saying, ‘Look at me. I’m now recognized by the president of the United States.’”

Bush, as quoted in Politico

A very interesting link here, where the Boston Globe’s Charlie Savage asks the presidential candidates questions about presidential power. I’ll get to McCain’s answers in just a sec, but first I wanted to mention how I found the link. It was on a blog post by Andy McCarthy, age 10. Here’s what Andy says:

I wonder whether, if, er, O’Bama becomes president, someone will explain to him that the United States Senate does not ratify treaties. The Senate consents to treaties. The president ratifies them — and can void them unilaterally.

The president can void a treaty unilaterally? I don’t think so. The closest thing I can find to that is that a treaty is void if it’s declared unconstitutional (FindLaw ref). Allegedly, McCarthy was a constitutional legal advisor to Reagan, so the fact that he’s saying stuff like this is bothersome. It may be that unilaterally voiding a treaty is one of those made-up superpowers that the Unilateral Executive types conjured up during their magic mushroom phase.

Anyway, some of McCain’s thoughts on Executive Power are interesting. Like this:

If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

No. Article I, Section 8 gives Congress that power. Unless the president chooses to willfully violate the law and suffer the consequences, he must obey the law.

Unless I’ve completely missed the point of the FISA hearings, that’s precisely the issue. If the president defies the law, are there any consequences? So far the consequences have been that senators such as McCain are put to the inconvenience of having to draft legislation to make the president’s wrong-doing legal. Other than that, having the president willfully violate the law looks like an attractive option.

The story goes that a bunch of crack right-wing legal theorists were sitting around during the Reagan administration trying to figure out how to avoid another Nixon crisis. One of the issues that drove them was that of executive power. How do you keep the Congressional and Judicial branches from undermining the authority of the president? That’s the problem they were trying to solve.

One of the things we know they came up with is the Unitary Executive theory. Another is the use of signing statements to act essentially as a line-item veto.

What had escaped many of us was a substantial loop-hole in the Office of Legal Counsel. Let’s say that President Bush wants to waterboard American citizens suspected of voting for the Democratic Party. He appoints someone to the OLC who believes that sort of method is legitimate, and has them draw up an opinion to that effect. He also classifies the memo so that no one can review the decision.

I know it sounds crazy. But it’s just crazy enough to work: (TPMmuckraker)

Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was “insulated from criminal liability?”

Mukasey wanted to say it more carefully. “I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.”

But even if that opinion was “inaccurate,” Delahunt wondered, and that behavior really did violate the U.S. criminal code, you’re saying that someone who relied on it would effectively have “immunity from any culpability?”

“Justified reliance,” Mukasey answered, “could not be the subject of a prosecution.” Simple as that. “Immunity connotes culpability,” he added, so it wasn’t immunity, exactly, but the effect was the same.

Froomkin:

And here’s the kicker: “Asked whether the White House’s reasoning was that torture is illegal, the attorney general has certified that the interrogation practices are legal, therefore those practices are not torture, Fratto replied: ‘Sure.’”

If I was Jonah Goldberg I would have written: Bush had a company named “Arbusto” which is Spanish. The Spanish Inquisition is also Spanish. I think it’s fair to say that the Bush administration, therefore, had its roots in the Spanish Inquisition.

More on this topic at Spanish Inquisition Review Online.

And other maxims of the right.

( Originally posted at dcdl.)

After seeing There Will be Blood, a few of us huddled in Georgetown’s Alamo Grill for a meal of chips, and well… mostly chips. I’d really hate to see how slow the kitchen is on a busy night.

At any rate, in a typically wide-ranging conversation someone touched on the subject of presidential pardons. Would Bush issue pardons for political cronies? Given that’s one of those questions that answer themselves, more generally, would Bush issue a blanket pardon for the entire Executive branch?

Personally, I find the area of presidential pardons to be very interesting. This wikipedia article is a starting point. (Though, given the controversial nature of the subject matter, it really needs to be taken with a grain of salt.)

One thing that the article mentions, supported by Bob Woodward’s Shadow, is that accepting a pardon implies an admission of guilt. See also this NYT article on Ford’s defense of his pardoning of Nixon:

WASHINGTON, Dec. 28 — President Gerald R. Ford was never one for second-guessing, but for many years after leaving office in 1977, he carried in his wallet a scrap of a 1915 Supreme Court ruling. A pardon, the excerpt said, “carries an imputation of guilt,” and acceptance of a pardon is “a confession of it.”

Note that Bush didn’t pardon Scooter Libby. To do so would jeopardize Libby’s defense in Joe Wilson’s civil suit. Instead, he commuted Libby’s sentence.

Note also that Carter’s blanket amnesty for draft evaders was really a pardon (see here). Here, there was not a disagreement over whether draft evaders had broken the law- they clearly had. And, it could be that the argument would be similar for a potential blanket pardon of Bushies: it’s not really a crime to break an unjust law. That is, of course, a rhetorical defense and not a legal defense.

I’d say there’s an unexplored question over how blanket a blanket pardon can be. I think we can all agree that Bush couldn’t issue an executive pardon for all Republicans until the end of time. But, he may be able to issue a blanket pardon for his favorite 12,500 people in his administration. (See this 1974 Time Magazine article. 12,500 was the minimum number that Carter’s pardon applied to.)

Now, getting back to our conversation in the Alamo Grill we all agreed that a President Kucinich would challenge such a pardon. Would a President Obama or Clinton? It seems to me a worthwhile question to ask these candidates while we still have their attention.

I was going through some documents trying to figure out if the National Park Service ever plans to repave the asphalt surface around the Lincoln Memorial. There are sections on the Tidal Basin side that turn out to pretty good for skateboarding. The path that goes past the Korean War Memorial is even pretty good. The paths around the pond on the northern side, however, are in poor condition, and unusable for skating or skateboarding.

Long story short: I haven’t figured out the repaving schedule. But I did run across this stirring passage on the symbolism of the Mall and environs: (National Park Service, Cultural Landscape Inventory)

The national significance of the Mall cannot be overstated. The central landscape itself, as
defined for this inventory, constitutes the fundamental feature of the Mall, clarifying the vista and
thus the symbolic relation between the Capitol and the Washington Monument, representing the
legislative and executive branches of government (since the Washington Monument stands on
axis with the White House) – the primary design intent of both the L’Enfant and the McMillan
Plans. The Mall is therefore a symbol of American democracy.

Which raised an interesting question: Has George W. Bush visited the Mall? You can find articles about his father visiting the World War II Memorial, or his wife visiting the Museum of the American Indian. How about George? I can’t find any article affirming that he has paid an official or unofficial visit since the insurrection of November 2000.

Could this be for the same reason that Damien can’t enter a church?

Recently I’ve finished reading Jeffrey Toobin’s The Nine and Charlie Savage’s Takeover. I’d like to summarize one of the key mutual points of these books in my own words:

The Office of Legal Counsel has been used to game the system during the Bush administration. The result is that Nixon’s dictum about how anything the president of the United States does is legal, is pretty much how things go.

I think we’ve come to understand that just saying things like the Justice Department really needs to be independent of White House influence doesn’t mean much unless there’s some clear check and balance with Congress.

What I’m saying is that to de-Bushify the OLC, appointees would need to be other than friends of duck hunting partners of the president and vice-president. I’d also like to see the Federalist Society declared a terrorist organization, but that’s probably not going to happen.