Wednesday, March 28, 2007

Iran-Contra -- It Gets Worse with Time

A recent discussion of the Iran-Contra scandal of the Reagan Administration inspired this post, which I have been wanting to make for some time. The overall facts of the scandal are nothing new. Lebanon's Hezbollah militia, closely allied with Iran, was holding a number of US and other western hostages. Ronald Reagan, trying to secure their release, approved the secret sale of arms to Iran, even though Iran was a hostile power and the sale was illegal. In the mean time, Congress had cut off all funds to the Contras, a US-backed group of rebels against Nicaragua's pro-Soviet government. Reagan had made support for the Contras a centerpiece of his foreign policy, so the Congressional cutoff of funds was a major blow. The CIA and National Security Council secretly diverted the proceeds from the sale to the Contras in order to circumvent the funding restriction.

The largest scandal of the Reagan Administration followed, with an independent commission, Congressional hearings, and a special prosecutor. In the end, the investigation largely backfired against Congress. Oliver North and other participants were able to portray themselves as patriots whose only crime was to want to fight Communism against the wishes of a treasonous Democratic Congress that was trying to thwart them. (Sound familiar?) Furthermore, as the scandal descended into details (as scandals do), as it became a seemingly microscopic discussion of who knew what and when, as shredded documents and grants of immunity made it impossible to prosecute anyone for anything other than perjury and obstruction of justice, scandal fatigue set in and most people just wanted it all to go away. I confess to falling into that error myself. But looking back on it, Iran-Contra was a grave constitutional crisis that, in an ideal world, should have led to impeachment.

Ronald Reagan, a Republican President often in conflict with a Democratic Congress, was, unsurprisingly, an advocate of executive power. However, neither Reagan, any member of his Administration, nor any pro-Adminstration pundit, made the sweeping claims of Presidential power currently being advanced by John Yoo and other advocates of the "unitary executive." No one in the Reagan Administration every claimed that the President had authority to engage in warrantless wiretapping or torture. Still less did anyone during the Reagan Administration claim that the President may do such things in violation of a statute or treaty forbidding them, or that any such statute or treaty is an unconstitutional infringement on the President's authority. In short, no one at the time of the Reagan Administration claimed that the President is above the law on all matters of war, foreign policy, or national security.

John Yoo and others who share his viewpoint deny that they are creating a all-powerful, unchecked executive. Rather, they say, in any confrontation between Congress and the President, Congress can alway win because it holds the ultimate power, the power of the pursestrings. Any time Congress thinks the President is out of hand, it can always cut off funds.

Hence Yoo argues that the Congressional power to declare war does not mean that Congress has the authority to decide whether or not to fight, but only how to define a war. The President, as commander-in-chief, can use the army however he wants.

But this does not mean that the President exercises unlimited power. Instead, Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Congress can choose to block presidential warmaking ex ante, if it chooses, simply by doing nothing.
Yoo makes a similar argument about warrantless wiretapping: "Congress can cut off funding for this program if it wants to. It can reduce the NSA. It can hold up appointments. It can exercise its oversight authority as it's going to do." Investigation and holding up appointments are merely means of excerting political pressure, not ways of making the warrantless wiretapping illegal. Ultimately, the only proposal Yoo offers that carries the force of law is to cut off funding.

Yoo hands Congress a baseball bat to crush the President's programs, then dares them to use it. But he denies that Congress can regulate the President with an instrument any less blunt than his baseball bat. It is an all or nothing choice made intentionally unpalatable. Congress can defund a war and abandon the troops in the field. It can prevent wars by refusing to fund an army. It can prevent warrantless wiretapping by defunding the NSA. But once Congress creates an army or an intelligence agency, it has no say-so in how they are used. Yoo's fine-sounding talk that Congress can always prevail by cutting off funding is a bluff more than anything else. He manages to sound reasonable by saying that Congress is supreme, but the only tool he leaves them to exercise their supremacy is intentionally made as clumsy as possible.

But what happens when Congress calls John Yoo's bluff and actually uses the power of the pursestrings to limit the President? Iran-Contra makes the answer clear -- right-wingers cry foul and unconstitutional. When Congress cut off funding for the Contras, even though this was an exercise of the power of the purse, many right-wing commentators of the day complained that Congress had overstepped its proper authority. When Colonel North and others circumvented this exercise of the power of the purse, right-wingers dismissed it as "criminalization of foreign policy differences." (Links not available, this was from pre-Internet times).

Perhaps the ultimate expression of this viewpoint comes from then-Congressman Dick Cheney in the minority report of the Congressional investigation:

[T]hroughout the Nation's history, Congress has accepted substantial exercises of Presidential power -- in the conduct of diplomacy, the use of force and covert action -- which had no basis in statute and only a general basis in the Constitution itself. ... [M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. ... [T]he power of the purse ... is not and was never intended to be a license for Congress to usurp Presidential powers and functions. (emphasis added).
The reasoning here is extraordinary. Apparently if the President wants to engage in a covert operation, Congress is legally and constitutionally obligated to fund it! Or perhaps Cheney is trying to further blunt the power of the purse -- if Congress funds the CIA, it may not control how those funds are used. The only way to defund the Contras is to defund the CIA altogether.

In any event, Iran-Contra and the Yooian theory of presidential power, each dangerous enough by itself, are terrifying in conjunction. Ronald Reagan never claimed such extensive powers as the Bush Administration currently claims, but when Congress attempted to restrict it by cutting off funding, supporters cried foul. Bush and his followers now claim powers far beyond what anyone during the Reagan Administration imagined, but assure us that Congress can check them at any time by cutting off funds. And the Reagan Administration managed to circumvent the power of the purse and get away with it.

My greatest fear: That Congress will try to use the power of the purse strings to shut down, say, Guantanamo or "black sites" and the Bush Administration will pull an Iran-Contra.

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Thursday, March 22, 2007

Document Dump -- Analysis versus Manipulation and the Gap

I previously criticized the Iraqi Freedom Documents project, in which some 48,000 boxes of documents captured from Saddam Hussein's government were placed in the public domain for bloggers to analyze. I said:

They [Bush allies reviewing the documents] assume that any amateur can analyze raw data as well as a professional, that intelligence professionals who disagree with them are inherently biased, and that their own views are not biased. Above all, they fail to understand what is wrong with beginning with a conclusion and working backward to support it. Indeed, convinced from the start that their conclusion is right, they presuppose that the facts must support it and that anyone who disagrees can only be speaking from bias and preconception.
So, in the interests of consistency, what do I think of the Bush Administration's document dump of some 3,000 pages relevant to the US Attorney firings and blogger Josh Marshall of Talking Points Memo's project to have his readers review them? Is this another example of starting with a conclusion and cherry picking documents, regardless of merit, to support it?

There are some obvious differences. The Iraqi Freedom Documents dealt with 48,000 boxes of documents over a period of 20 years. Talking Points Memo is dealing with 3,000 pages over a much shorter time frame. The documents at TPM were pre-screened to have some relevance to the subject at hand. The documents dump may contain gossip and hearsay, but is unlikely to have any really wild rumors, let alone forgeries. Futhermore, the underlying issue is much narrower and easier to establish than so broad a question as the nature of Saddam Hussein's relations with Al-Qaeda. The question is why eight individuals were fired, a question that may (or may not) be answered just a few e-mails.

Nonetheless, the dangers of cherry picking, citing out of context, and subjecting to maximum spin are all there. For instance, the documents released include a confidential list of the reasons for firing each attorney. Are these the real reasons, or after-the-fact talking points? What of an earlier draft of the same list, with handwritten changes and modifications of the reasons? Is this evidence the official reasons for the firings are false, or merely an attempt to understand the reasons?

Was Carol Lam fired for investigating Republican corruption too much? Well, there was an e-mail that says, "The real problem we have with Carol Lam leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires." But it does not say what "the real problem" is. Is it an innocent reference to something everyone knows, or something too dangerous to include even in a confidential e-mail? The Justice Department says Lam was fired for being lax on illegal immigration and drug smuggling. One of the e-mails asks, "Has ODAG ever called Carol Lam and woodshedded her re immigration enforcement? Has anyone?" So, is this an expression of frustration at Lam's consistent underperformance? Or is it, as Marshall believes, an attempt to see whether there is anything in the record to support the purported reason for her firing?

Any attempt to evaluate whether the firings were legitmate should include an evaluation of the performances of the fired attorneys. But this is one of those very broad topics that includes a great deal of contradictory evidence and requires rising above the trees to see the forest. For instance, the document dump reveals that in April, 2004 New Mexico's David Iglesias was on the short list of candidates to be promoted to Director of the Executive Office. This is strong evidence that his performance was considered strong in 2004. But it does not tell us whether his performance was still strong in 2006, and, if not, why. There is also a letter signed by 18 Republican Congressmen, including the indicted Randy Cunningham, complaining that Carol Lam was lax in prosecuting illegal immigration. Is this evidence that she was lax, or an attempt to distract her from the prosecution of corrupt Republicans?

In short, Talking Points Memo and its investigators see the documents as incriminating. Other commentators, no friends of the Bush Administration, but less invested in the project, were skeptical. Legal commentators at the liberal Slate magazine found nothing "pointy, sharp, or smoking" in the document dump. Liberal commentator Hilzoy at Obsidian Wings, looking through the documents for larger patterns was struck by two main things: (1) the documents were extremely redundant, and (2) Attorney General Gonzales seemed oddly uninvolved. Even the TPM posters found most of the documents to be innocuous.

But then the TPM investigators came across something not easily dismissed as an anomaly, nor easily interpreted as something innocent - a mysterious gap in the record from November 15 (22 days before the firings) to December 4 (3 days before).

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Wednesday, March 21, 2007

US Attorney Scandal, Continued

Aside from the fact that it threatens their interest, there is another reason Congressional Democrats may prefer investigating the US Attorney scandal to Bush Administration abuses in the War on Terror. National security is not at stake. President Bush cannot claim that he is just trying to keep us safe. Right wingers do not have the option of impugning Democrats' patriotism. This is a purely domestic and partisan matter. What a relief!

It is also true that there have been some disturbing revelations as the scandal unfolds that go beyond the individuals involved. It is more than just Bud Cummins reporting threats if any of the fired attorneys came forward. Or David McKay, fired for failing to find vote fraud when the Democrat won election for Governor of Washington on a fourth recount. Or David Iglesias fired for failing to find Democratic vote fraud when Kerry narrowly won New Mexico in 2004, and for failing to bring more indictments of Democrats just before the 2006 election. Or even Carol Lam, who investigated two corrupt Republican Congressmen and was fired just as she was about to serve a search warrant on a high-ranking CIA official. There is evidence that corruption in the Justice Department may be more systematic than that.

There is the matter of the Shields/Cragan study. This study found that, although prosecutions of Democrats and Republicans was essentially equal for national and state-wide offices, prosecutions of Democrats holding local office outnumbered prosecutions of Republicans nearly seven to one. That study has been critized, and no comparison exists with earlier administrations. But the walls are closing in. Even conservative commentators are finding the firings increasingly difficult to defend. Captain Ed acknowledges that the pressure on Iglesias to bring down indictments before the elections was improper. Conservative lawyer Patterico grumbles that Justice Department officials have acknowledged lying to Congress about replacement appointments, and that all his attempts to defend the Administration are being shot down by the Administration's own actions. And now a New York Times editorial is saying that there may be room for criminal charges for lying to Congress, obstruction of justice, and witness tampering. Speculation is rampant about whether Attorney General Alberto Gonzales will be fired. And now there are calls for a special prosecutor.

So what are my own opinions on all this? I believe Congress should exercise great caution in calling for a special prosecutor. After crying no underlying crime in the Lewinsky matter, Democrats will be fine hypocrits calling for a special prosecutor now. Only if further investigation reveals something clearly criminal, as opposed to merely dirty and corrupt, should be be thinking about criminal charges. Further investigation is called for on at least two things. (1) Is there, in fact, a pattern of partisanship in prosecutions under this Administration that is new and unprecedented? (2) Is anything sinister going on in the jurisdictions of US attorneys who were not dismissed? Both of these call for longer-term, lower profile investigation to determine. The answer will tell us whether corruption in the Justice Department is systematic or merely spotty. What to do next will depend on the answer.

Oh, yes, and I think George Bush will fight tooth and claw to keep from having to throw Gonzales under the bus. And not just out of loyalty to a friend, although doubtless this will be among his motives. Bush know that now that Democrats control the Senate, who ever he appoints as Attorney General will have a tough confirmation battle unless he has a stirling reputation for integrity. And any AG with stirling integrity will want to clean up whatever has been going on under Gonzales' tenure.


Wednesday, March 07, 2007

Somebody Else's Problem

Glenn Greenwald is right. Anyone who supported a Democratic takeover of Congress in hopes that they would end the war in Iraq, pass legislation to reign in an out-of-control executive, or impeach is living a day dream. Democrats do not have enough votes to overcome a Republican filibuster in the Senate, let alone the two-thirds needed to override a Presidential veto (or to impeach). What Democrats can do with even the slimmest majority is investigate what the Bush Administration has been up to, and either shame it into mending its ways or else rally irresistible public opinion in favor of restraining measures.

So, what has our Democratic Congress investigated so far? Conditions at Walter Reed military hospital and the firing of US Attorneys for insufficient partisanship in their prosecutions. Congress's approach to scandals is apparently LIFO -- Last In, First Out.

In all fairness to Congressional Democrats, immediate investigation of the Walter Reed hospital and other military hospitals is fully justified. Although conditions at Walter Reed were only recently publicized, the problem has clearly been ongoing for a long time. Our military hospitals will not improve overnight, but publicity and more publicity, shining the light on the full extent of the scandal is a good first step toward positive change. Only exposure of the full extent of the problem will keep administrators from making a few cosmetic changes and sweeping everything else under the rug. And certainly moral outrage is appropriate here. For four years now we have been called upon to support the troops by putting them in harm's way. It is long past time to show some concern for soldiers who come to actual harm. And, more cynically speaking, beginning investigations by looking into the care provided to wounded soldiers is smart politically. I myself recommended that Congressional Democrats begin their investigations with non-controversial matters to bolster their claims to patriotism and undermine the Bush Administration's claim to a monopoly.

Investigation of the firings of eight US attorneys is a different matter. True, this one was also triggered by some explosive revelations. If the Bush Administration believes that the Justice Department should be a partisan tool -- should investigate Democratic vote fraud when Republicans narrowly lose an election and should refrain from prosecuting corrupt Republicans but speed up indictments of corrupt Democrats in order to tip close elections -- then this is a serious matter. But then again, manipulation of intelligence to justify a war, warrantless wiretapping, "black sites," torture, "extraordinary rendition," and indefinite detention without charges are also serious matters. The stakes in the firing scandal are a good deal higher than the careers of a few non-exempt appointees; what is being revealed here is a deeply corrupt approach to law enforcement. But the Administration has long since shown corruption of an entirely different order of magnitude in its penchant for secrecy and unlimited executive power. Why is Congress so interested in these political firings, while neglecting other, grave abuses that cry out for investigation? Unlike the Walter Reed scandal, Congress is not being driven by the need to halt an ongoing outrage, nor does public indignation play much of a part here.

What is driving Congressional Democrats in their investigations of attorney firings is something, from their perspective, far graver than anything else. At stake are not the rights of a few Arabs suspected of terrorist ties, but the political careers of Democrats facing close elections. When the President abuses power in torture, eavesdropping, detention without charges and the like, well, yes, it is serious, but it is somebody else's problem. But when those abuses threaten Democratic seats in Congress, well, now, that's different.