Friday, July 20, 2007

What to Make of the Surge

I have not written about the Iraq War in a long time, not since the "surge" began, and for a simple reason -- I do not know enough to know what to make of it. The usual suspects, of course, are claiming that everything is going well. Some seek to enhance their credibility by acknowledging that the war up till now has been a failure. Needless to say, these reports would carry more credibility if war supporters had not been constantly saying we were on the right track and proclaiming victory for the past four years. Clearly some things are going our way. Anbar Province, once an open war zone and hotbed of insurgency, has settled down. Sectarians killings are down in Badgad. But has the killing actually diminished or merely migrated? And are we seeing a long-term improvement in Bagdad, or merely a cyclical downturn during the heat of summer?

Another development that has been noted: Suddenly everyone we are fighting is referred to, not just as "the insurgency" or even "terrorists," but Al-Qaeda. Given that Al-Qaeda has never been more than a small portion of the insurgency (albeit an exceptionally nasty one), what does that mean? Is it simply a cynical propaganda ploy to rally support for the war, or an actual change in strategy? Or are the Iraqis the real propaganda target? Once again, relying only on news reports, I don't know the answer. What makes this especially frustrating is that, if we really are changing strategy, I might be persuaded to support the effort.

At least in Anbar Province, we do, indeed, appear to have changed our approach. We have made an alliance with some of the Sunni insurgents against Al-Qaeda in Iraq. Whether that means we are fighting only AQI, or whether AQI is shorthand for a number of hardline religious factions is not clear. Nor is it clear how much of the insurgency we have a truce with and how many non-AQI factions we are still fighting. There are also accounts of at least sporadically fighting the Madhi Army. The advantage of narrowing our goal from recreating Iraq in our own image to defeating the worst faction(s) in their civil war is that it much more achievable. But we must be realistic about what we can achieve.

Beware of two illusions. First, defeating AQI (and whatever factions of the insurgency we are lumping with it) will not bring peace to Iraq. The Sunni-Shiite feud will remain. General Petraeus has made clear that military victories can only go so far; peace ultimately depends on the Iraqis themselves reaching a political reconciliation. Congress has set artificial "benchmarks" for reconciliation as we define it. Not too surprisingly, Iraqis show no interest in meeting our agenda. Give it up. You can make people who hate each other kiss at gunpoint, but you cannot force them to truly make up. If the Iraqis do reconcile, it will be on their own terms, not on ours. We can pressure them to negotiate and remove the irreconcilables, but we should not be dictating their terms.

The other illusion is about our new-found allies. Their alliance with us is based on the assumption that we will either leave soon or switch to their side in the civil war. If we do neither, we will soon be dealing with the same insurgency once again, this time less bloodthirsty (an improvement), but also less likely to alienate potential supporters (not to our advantage). If we switch sides, we will find ourselves at war with 60% of the population instead of 20%, obviously a bad trade.

So I suppose my willingness to give General Petraeus and his surge a chance will depend on his willingness to play it straight with the public. If he clearly articulates a change in strategy from defeating the insurgency to defeating a sub-portion of it; if he gives a plausible account of the relative size of that sub-portion; if he acknowledges that our alliance with the rest of the insurgency is tenuous; if he is clear that defeating AQI will not end the civil war; and if he explains to Congress that the Iraqis will end the civil war on their terms, not ours, then I would be willing to give him a chance. If he spouts empty platitudes, then I am sick and tired of being lied to and will not stand for any more of it.


Sunday, July 08, 2007

The Latest on Warrantless Surveillance

(NOTE: I was unable to link directly to the relevant cases and am therefore linking instead to sites that contain such links).

The Sixth Circuit Court of Appeals has now struck down the trial judge's ruling in ACLU v. NSA finding the Administration's program of warrantless surveillance unconstitutional. The Plaintiffs' standing to sue was always questionable, since none of them had any actual evidence that they had been wiretapped without a warrant. Instead, various international lawyers, journalists and scholars whose professions brought them into contact with terrorism suspects brought suit claiming the program had a "chilling effect" on their conversations. That being the case the Court, by a 2-1 majority, dismissed the case for lack of standing without making any decision the merits about the Administration's actions. Only Judge Ronald Lee Gilman, dissenting, found standing and expressed the opinion that the Administration acted illegally. Reading between the lines, however, the other two judges do drop hints as to how they might have ruled had a plaintiff with standing appeared.

Plaintiffs made claims under the First Amendment, Fourth Amendment, Separation of Powers, FISA, Title III (the law governing domestic criminal warants) and the Administrative Procedures Act (APA). Judge Alice Batchelder, writing the majority opinion, addresses each of the plaintiffs' claims at length to explain why a person who cannot prove warrantless wiretapping has no standing to make it. Many of her opinions are perfectly reasonable, but others are disturbing.

She begins with a tediously long (pages 11-22) analysis as to why there is no claim for violation of First Amendment rights of free speach and association. A mere "chilling effect" on conversation does not constitute injury in fact. Furthermore, it is not the fear of warrantless surveillance, but the fear of any surveillance that causes the "chill," and requiring warrants would do nothing relieve it. The First Amendment claims were always weak, and Batchelder's analysis seems reasonable except for one sentence (p. 20), "[T]here is no evidence in the record from which to presume the information collected by the NSA via warrantless wiretapping is not complying with, or even exceeding, FISA's restrictions on the acquisition, retention, use, or disclosure of this information (i.e., the minimization requirements)." This seems implausible. If the NSA is meeting or exceeding all minimization requirements, why not just get a warrant?

The Fourth Amendment claim she finishes off in less than a page. Absent proof they have personally been wiretapped without a warrant, plaintiffs have no Fourth Amendment claim (p. 23). Batchelder makes a comment (pp. 23-24) on the separation of power claim that raises a red flag, "This . . . accusation . . . presupposes that the Constitution gives Congress the authorityto impose limits on the President's powers under the present circumstances." She does not rule that Congress does not have that authority, only that the plaintiffs lack standing because they cannot prove they were wiretapped. But that comment sounds like a broad hint as to how she would rule if the issue of Congress' constitutional authority to pass FISA ever came before her.

Batchelder also makes quick work (pp. 27-30) of the APA and Title III claims by pointing out that neither statute applies in this case. It is her statements on FISA that are the most disturbing. FISA applies to "foreign intelligence information," including international terrorism, and since Attorney General Gonzales says this program was limited to terrorists, that settles that question. Furthermore, FISA has a specific legal definition of "electronic surveillance," and the plaintiffs cannot prove the NSA's program involved anything within that legal definition (p. 30). Even though Title III claims to be the exclusive means for domestic wiretapes and FISA claims to be the exclusive method for foreign wiretaps, that does not mean that all wiretaps are covered by one or the other (pp. 32-33). According to Batchelder, there are any number of wiretape outside any legal regulation so long as FISA does not specify them. She also holds that, since FISA allows only claims for money damages and not for injunctive relief (p. 31), she cannot enjoin (order) the government to obey the law. Although Batchelder dismisses the case for lack of standing, her ruling contains strong hints that if a plaintiff with standing appeared before her, she would indulge every inference in favor of the government and quite probably find FISA unconstitutional.

Judge Julia Smith Gibbons made a separate concurrence (pp. 36-40), agreeing that the plaintiffs lack standing, but declining to address any of their individual claims (although she finds both other judge's opinions "able.") Why? Presumably because she does not agree with some things Judge Batchelder said on the subject. (One hopes the claim that there is a wide range of wiretapping not regulated by any law is one of them). Perhaps Gibbons is hinting here that if a plaintiff with standing appeared before her, she would treat the claim more favorably than Batchelder.

Finally, Judge Ronald Lee Gilman dissented. His opinion was that the plaintiffs were were attorneys talking to clients overseas had standing to sue. As attorneys, they represented terrorists, talked to terrorist clients and witnesses, and visited terrorist websites. These activities were protected by the attorney-client privilege. Gilman believes that warrantless surveillance could infringe on this privilege in a way that surveillance with a FISA warrant could not because of the "minimization procedures" FISA requires, including the protection of any privileged information overheard. To Batchelder's speculation that the NSA might have met or exceeded the FISA minimization requirements, Gilman offers the words of Administration members involved in the program, that it had a "softer trigger" than FISA, and that the Executive Order on acquisition, retention and dissemination of information (Exective Order 12333) does not protect privileged communications (pp. 49-50). Unless lawyers know such minimization procedures are being used to protect privileged communications, they cannot safely talk to their clients over the telepone (pp. 50-51).

He refutes the contention that some wiretapping falls outside either Title III or FISA, but pointing out that both laws make clear they are the "exclusive means" (not just the exclusive statutory means) of electronic surveillance, and that Title III expressly says that its procedures and FISA's procedures are the exclusive means of wiretapping allowed. Even Attorney General Gonzales has acknowledged that FISA requires a warrant for the type of surveillance being done (pp. 54-56). The claim is not moot, even though the Administration has now agreed to seek a warrant with the FISA court for its surveillance because the President reserves the right to return to warrantless surveillance any time he wants (pp. 56-57).

As for the plaintiffs' causes of action, Gilman does not address their constitutional claims, commenting that their statutory claims are stronger (p. 58). (Although he denies it, this probably means he would not rule in favor of the constitutional claims, given the chance). He repeats the endlessly given explanation why the AUFM did not repeal FISA (a specific statute trumps a general one; FISA has provisions for wiretapping during a war; the Administration sought changes to FISA after the AUFM passed and did not seek approval for its program because it did not expect to get it) (pp. 59-61).

Only at the very end (pp. 62-63) does he address the argument that FISA unconstitutionally infringes on the President's "inherent authority" to warrantless wiretap, and he does not address it at length or in depth. His argument is that the Constitution divides war making powers between the President and Congress. Congress has regulated the President's war making authority before. Under the famous Youngstown decision, the President's wartime powers are at their highest when he acts with authorization of Congress, intermediate (but still, in war decisions, generally lawful) if he acts when Congress is silent, and weakest if he acts against the will of Congress. "Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting on the subject" (i.e., by finding the law unconstitutional). The government relies on In re Sealed Case (which I have also addressed) to argue his "inherent authority." Gilman dismisses this on the grounds that it is dictum, based on pre-FISA cases, and that all post-FISA cases addressing a challenge to the Act's constitutionality have upheld it.

This is good enough for a dissent on the issue of standing. But if any court is going to make a binding decision upholding FISA against the Bush Administration, it is going to have to make a stronger argument than that. There are two more cases on the subject pending.


Saturday, July 07, 2007

But Is It Impeachable?

The Washington Post has described some decidedly outrageous conduct by Vice President Dick Cheney, but is any of it impeachable? I think it safe to say that Cheney's domestic initiatives, though sometimes distasteful, did not do anything illegal. His role in authorizing closed military commissions, not-quite-torture and the like were struck down after the fact by the Supreme Court, but Cheney can always offer as a defense that he believed in good faith his actions were lawful, and an "activist judiciary" is simply "criminalizing policy differences." I do not see how Cheney could have believed in good faith that not-quite-torture was lawful, or that disputes over its legality are legitimate "policy differences." But in cases like that it can be very hard to prove an intent to break the law.

Warrantless surveillance is a different matter. Anonymous Liberal has an excellent post on the subject, which points out something the authors of the WP series missed:
[B]etween September 25, 2001 (the date the [warrantless surveillance] program was first authorized) and October 25, 2001 (the date the first members of Congress were informed), something very important was happening up on Capitol Hill; the Patriot Act was being debated, amended, and eventually enacted by Congress. In fact, the Patriot Act was finally approved by the Senate on October 25 and sent to the President for his signature (it had passed the House the day before).This is important, of course, because the Patriot Act largely consisted of amendments to the Foreign Intelligence Surveillance Act (FISA), the very law that John Yoo had concluded--in a memo dated a full month prior to passage of the Patriot Act--could be disregarded at will by the president. . . .Moreover, though administration officials asked Congress for a number of significant amendments to FISA, they did not ask for any amendments that would have permitted the sort of surveillance that they had clearly already resolved to conduct (if not implemented). As Alberto Gonzales conceded in a rare moment of candor on December 19, 2005, the Bush Administration did not try to amend FISA to permit the NSA program because it knew that “it was not something we could likely get.”There is simply no way that Congress would have authorized warrantless surveillance, and there is no way it would have passed the amendments to FISA that it did pass had it known the Bush administration did not consider itself bound by that law.*

This is a mind-boggling display of pre-meditated law breaking. The Administration first sought passage of the AUFM, not telling Congress that they would interpret the law to allow warrantless surveillance. They then asked for modifications to FISA, with no intent whatever of being bound by them. They decided not to ask for what they really wanted because Congress would refuse, and their actions would be harder to defend if they were doing something Congress had expressly declined to authorize than something Congress never considered. Advocating for a law with no intention of following it and breaking it from the very start sounds as impeachable as can be.

But two problems still remain. One is the practical matter of getting it done. To actually remove Cheney from office, half of all Senate Republicans have to support the measure. Given that Senate Republicans are obstructing even non-controversial bills (to make Democrats look bad), it seems unlikely they would vote for removal. The only way to change that is by an overwhelming public outcry for impeachment. Ultimately, an impeachable offense is whatever public opinion will support. Richard Nixon was forced to resign because public opinion demanded his impeachment. Bill Clinton was acquitted because public opinion supported him. And Democrats did not even attempt to impeach Ronald Reagan over Iran-Contra because he was just too popular. No doubt it made a difference that Nixon had just reached an unsatisfactory end of an unpopular war and was presiding of the beginnings of stagflation, whereas Reagan and Clinton were presiding over general peace and prosperity. That is one strike against Cheney, but not enough.

It also made a difference that Watergate was about illegal measures against political opponents. Although Nixon tried to plead national security, he was utterly unconvincing. Iran-Contra could legitimately invoke national security, and the defendants could plausibly (though not legitimately) claim to be persecuted for trying to protect us. And the Clinton impeachment was ultimately about a sex affair. In the case of warrantless surveillance, Cheney can invoke national security and claim that he is being persecuted for trying to protect us, and millions of Americans will undoubtedly believe him. Suggestion to Congressional Democrats: Investigate the surveillance program thoroughly. No one knows if abuses are taking place. If not, any attempt to impeach Cheney will simply be a replay of Iran-Contra. But if there have been abuses, that might generate the outcry to force even Republicans to turn against this Administration.

The second problem is, if anything, even more troubling. The reason Cheney has been so influential within the Bush Administration is that, whenever there is a dispute, the President almost always supports him. And the obvious reason is that the President agrees with him. Is it so surprising that the President would prefer advisors who tell him he has unlimited power over advisors who tell him he has to obey tiresome laws? So removing Cheney might not, after all, change all that much.

Nonetheless, I still believe that impeaching both would be absurd and hopeless overreaching. Given the choice between removing Cheney and elevating him to the Presidency, I say, IMPEACH CHENEY.

*It should be noted that the revelation that John Yoo intended to interpret the AUFM to authorize warrantless surveillance from the very start goes against AL's earlier speculation that the Administration originally relied on its Article II powers alone and only later adopted the AUFM theory.

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Monday, July 02, 2007

Cheney and the Power Behind the Throne

In my last post, I concluded that Vice President Cheney morally deserves to be impeached for failing to live up to even his own vile principles, but that his disobedience of an executive order is not sufficient legal grounds. This post is devoted to describing a 4-part series the Washington Post recently ran about Cheney's role in the Bush Administration. What the Post described is certainly unsavory, but is it impeachable?

Part 1 addresses Cheney's role in early decisions in the War on Terror. His closest legal advisors following 9/11 were David Addington, Alberto Gonzales (then White House Counsel) and Timothy Flanigan, deputy White House Counsel, with John Yoo as a "supporting player." On September 18, following the attack, Flanigan and Yoo drafted the Authorization to Use Military Force to be as broad as possible, and Yoo prepared a memo arguing that it authorized warrantless surveillance. Members of the administration who might object were not informed of this development, nor was Congress informed that by passing the AUFM it was authorizing warrantless surveillance. Only later did Cheney (not Bush) inform the House and Senate Intelligence Committees of the warrantless wiretaps.

The next major development took place two months later, after the US invaded Afghanistan. The Administration had to decide how to try captured terrorists. On November 6, 2001, John Yoo prepared a memo stating that the President did not require Congressional authorization to prepare closed military commissions for such trials. He reached this opinion without consulting either State Department lawyers or his nominal superior, Attorney General John Ashcroft. Ashcroft was outraged that the Justice Department would also be cut out of the processs and took his objections to the White House, where Cheney (not Bush) met with him and rejected his arguments. On November 13, Cheney took the order to the President to sign, concealing his role in the formulation, bypassing staff review and not informing either Secretary of State Colin Powell or National Security Advisor Condaleeza Rice. Powell and Rice learned about the order on CNN.

The next development began on the very next day when Cheney sought to force the Administration's hand by publicly proclaiming the next day that the Geneva Conventions did not apply to Taliban or al-Qaeda prisoners. Debate ensued as to what protections, if any, terrorists had. Cheney had Addington prepare a memo, which Gonzales then signed as his own, arguing that the Geneva Conventions did not apply. (Apparently he concealed his involvement even from the President in this case).

Part 2 continues the story of Cheney's role on the issue of interrogation. Shortly after the first prisoners reached the U.S. naval prison at Guantanamo Bay, Cuba, on Jan. 11, 2002, CIA members began expressing concern that they would not be able to get any information from them if they were required to observe the Geneva Convention. It was then that Cheney and his team of lawyers formulated the argument that only "torture" was forbidden, and that mere "cruel, inhumane and degrading" treatment was allowed. They further argued that the President could disregard statutes and treaties on the subject. The infamous Torture memo was written shortly after (March 28, 2002) in response to a question from the CIA as to how far they could go in interrogating the newly captured Abu Zubaida. Powell and Rice learned of the Torture Memo two years later, from an article in the Washington Post. When these doctrines were challenged in court, Justice officials urged the Administration not to make such radical arguments that would almost certainly be rejected. Cheney overruled them. When Congress passed a ban on "cruel" and "inhumane" treatment by a veto-proof margin, Bush's advisors prepared a signing statement that would endorse the ban. Addington, on Cheney's directive, replaced that with the notorious signing statement that the law would be interpreted "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief." Even the CIA opposed this provision.

Part 3 is less outrageous and descibes Cheney's role in domestic policy, which is considerable. He played a major role in pushing tax cuts. He plays a major role in managing domestic crises and is very active in the policy-making process. But he does not always win; for instance, he opposed the No Child Left Behind Act. Part 4 is about Cheney's role in environmental policy. Unsurprisingly, Cheney is no fan of most environmental laws, and is eager to grant breaks in favor of business or constituents. His hostility to environmental regulations led Christine Todd Whitman, head of the EPA to resign. He tends to bypass official channels. And he is suspected of rigging scientific reports to get the results he wants, although this is not proven.

Next post: Is it impeachable?

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Sunday, July 01, 2007

The Straw That Broke This Camel's Back, or Impeach Cheney Now

I have long believed that impeaching George Bush would be foolish, since it would just make Dick Cheney the President, and that impeaching both was utterly impractical. But that still leaves another option -- impeach Cheney. He has long been one of the strongest advocates of the "unitary executive" theory that Congress and the courts cannot bind the President in time of war. He has been a strong supporter of unlimited detention, warrantless surveillance, "coercive interrogation" and the like. Still, up till now I have held back, wanting more proof linking Cheney to some specific crime. But the straw that broke this camel's back and convinced me that Cheney should be impeached was a recent article in the New York Times reporting his claim that not even the President can bind the Vice President.

The President apparently signed an executive order requiring all entities in the executive branch that come into possession of classified information to report on their classification and declassification to the Information Security Oversight Office (an executive agency). All other executive agencies complied, as did Cheney in 2001 and 2002, but in 2003 he began refusing to submit to this order and blocked a routine on-site inspection to insure that classified documents were properly secured. His argument (set forth by his faithful enabler, David Addington) was that because the Constitution designates the Vice President as president of the Senate who can cast a vote in case of ties, he is not part of the executive and is not bound by the President's executive orders. When the ISOO took the dispute to the Attorney General for an opinion, Cheney proposed eliminating such appeals and even sought to abolish the Information Security Office altogether.

This is an extraordinary act of audacity, even for Cheney. Up till now, he could at least claim to be upholding a principled belief in executive power and secrecy. Yet for all his morbid obsession with secrecy, Cheney will not even follow proper procedures to protect legitimately classified documents. And this apparently resulted in at least one significant breach of security (not counting the deliberate leak of Valerie Plame). A former vice presidential aide, Leandro Aragoncillo, passed classified information to plotters attempting to overthrow the government of the Philippines. And when Cheney and Addington pushed extreme views of the "unitary executive," however undemocratic and unconstitutional, they could at least claim to be principled defenders of Presidential power. Now suddenly the executive is not so unitary after all, when the President issues an order the Vice President does not like. What are we to conclude except that Cheney has no principles at all, not even bad ones, and cares only for his own power.

But there is an obvious problem in seeking to impeach the Vice President for disobeying an executive order. The President may, after all, modify his executive orders if he wishes. If a power-hungry Vice President demands to be exempted from an executive order, a weak President has the option of caving. Appealing as it may be to impeach Dick Cheney for violating his own concepts of presidential power, if the President declines to enforce his own prerogative, can Congress do it for him?

There is an argment to be made that Cheney is in violation of s statute and not just an executive order the President may change simply by saying he did not intend it to apply to the Vice President. First of all there is aCongressional statute (3 USC 301) requiring that the President's executive orders "shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part." Thus the President cannot modify his order to exempt the Vice President by simply saying (much less thinking) so. The modification must be in writing, although this provision would allow the President to change his order at will. But there is another statute governing the executive order, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." Thus a fair argument can be made that the statute does not allow the President to exempt the Vice President, even if wants to. But these are technical violations of obscure laws and not the stuff of impeachments.

Maddening as it may be, Cheney's violation of his own stated principles will not be sufficient grounds to impeach him. Shortly after the New York Times story, the Washington Post did a four-part series on Cheney's exercise of power. My next post will address whether they found anything impeachable.