Just Above Sunset
Volume 5, Number 10
March 11, 2007

The Basics

 The world as seen from Just Above Sunset -

"Notes on how things seem from out here in Hollywood..."

Odd News and the Long View - As the September 11 anniversary approaches we find that everything we were told was not so.

The odd news always comes on Friday.

Friday, September 8, 2006 - the Senate Intelligence Committee announced that there's no evidence that Saddam Hussein had ties to al Qaeda or to that Abu Musab al-Zarqawi fellow before we invaded Iraq. The Washington Post story is here.

One wonders what Christopher Hitchens will say. He scoffed at the doubters. The administration said Zarqawi has been there, and even if in the northern part of Iraq Saddam Hussein didn't control, that was good enough. The war resolution congress passed way back when, the authorization to use force to get the bad guys, justified that we invade Iraq and take over the joint, because they were part of this. The White House pretty much stipulated there was a connection - "pretty much" because it was just assumed by everyone. The Vice President harped on the Zarqawi connection, and Condoleezza Rice, who was National Security advisor at the time, said it was so - there's a neat video on that all here, with all the quotes.

And now this.

This "oops" is part of a four-hundred page set of reports - summarized here if you're short on time. No one can get Pat Roberts, the Bush-is-God chair of the Senate Intelligence Committee, get off the dime and investigate whether someone was manipulating information - that required report is three years late now - but the basic facts did get released, and Pat isn't happy. Of the two things to be investigated - prewar intelligence and the manipulation of same - we only get the first part. It'll do.

The new report "reveals" - for the first time - that a CIA assessment in October 2005 concluded that Saddam Hussein "did not have a relationship, harbor, or turn a blind eye toward Zarqawi and his associates." It also seems the CIA had been reporting the guy had all along been a bit afraid of al Qaeda - those mad jihad-types were, as Saddam Hussein saw it, a real threat to his power. Many had argued this, but now we get confirmation. Not that it matters now. When you're scammed, you're scammed. Suck it up. Move on.

The scam? Cheney and Bush repeatedly argued that there really was a linkage between Saddam and Zarqawi. Bush on October 2004
here - "Zarqawi's the best evidence of a connection to al-Qaida affiliates and al-Qaida." He kept that up through March of this year - six months after the CIA had concluded that Zarqawi had no relationship with Saddam. He didn't get the memo? One can assume the idea was that no one would double-check anything. But they did.

In the Associated Press account
here, Senator John Rockefeller, the ranking Democrat on the Intelligence Committee, says the new report shows how the Bush administration "exploited the deep sense of insecurity among Americans in the immediate aftermath of the September 11 attacks, leading a large majority of Americans to believe - contrary to the intelligence assessments at the time - that Iraq had a role in the 9/11 attacks." He doesn't like being the sucker while Cheney and Rove giggle. But it's a bit late now.

As for the committee's Republican chairman, Roberts, he says whatever Rockefeller is saying is "little more than a vehicle to advance election-year political charges." The Democrats are trying "to use the committee to try and rewrite history, insisting that they were deliberately duped into supporting the overthrow of Saddam Hussein's regime."

This is a very odd concept of what it means to rewrite history. And perhaps it doesn't matter. Suck it up. Move on.

The other odd story of the day concerned John Bolton, our UN ambassador, who the president put in place as a "recess appointment" because the Senate would not confirm him. The thought was that we needed someone up there who would tell all the others they were corrupt fools and probably common thieves, and the whole UN was a joke, and only the United States could save them from any more foolishness. But as a recess appointee, Bolton needs to be confirmed for real, before the new congress convenes early next January. Otherwise, he's out. And that not going well, as reported
here, and many other places - the Senate Foreign Relations Committee has postponed a confirmation vote for the guy, as a key senator balked. It's just not going to happen. This is very odd. Will the president defy the Senate and just keep him on? Can he do that? We'll see. That would be a new constitutional crisis.

But wait! There's more! Osama bin Laden!

The CIA very, very quietly disbanded its "find bin Laden" unit last fall. And then there was this - in the Senate Thursday, Democrats pushed through a measure that would re-fund the unit. Democratic Senator Kent Conrad -"What does it say to violent jihadists that a terrorist mastermind remains alive and well five years after killing 3,000 Americans? Our bill tells the terrorists that protecting our nation is the first priority - and that we are going to deliver to bin Laden the justice that a mass murderer deserves." The Republican "bridge to nowhere" guy from Alaska, Ted Stevens, here whined that the measure was an election-year "slam on the intelligence community" - then he encouraged his fellow Republicans to vote for it anyway. Very odd, but it's an election year.

And there's
this, regarding wiretaps and warrants - Senator Arlen Specter was forced to call off a committee vote on his bill to expand the president's wiretapping authority. That bill would make the president's following the law his own choice - the president would have the option to disregard the rules, and the option to, if he chose, to inform the Senate that he had. Russ Feingold spoke at length against the whole idea, and a group of senators from both parties called for hearings. Very odd, but it's an election year. There must be rumbling from the folks back home.

And there's
this -

    The US military hasn't had much success in building the hospitals or health clinics it promised, but the Iraqi government is moving forward on another building project: As the Washington Post reports today, the Iraqi Health Ministry plans to open "two new branch morgues in Baghdad and add doctors and refrigerator units to raise capacity to as many as 250 corpses a day."

    There's plainly a need. Officials at the Baghdad morgue say they took in 1,536 victims of violent deaths in August. As the Post notes, their initial tallies for August suggested that they had received only 550 bodies - such a dramatic decrease from the 1,800 deaths in July that US and Iraqi officials began to claim that their security plan for Baghdad was working. As the Post says, the new number appears to "erase" most of that.

It seems you should be careful what you say is the truth. Things do keep coming up. Reality can be such a pain.

But all that is ephemera - detail. The fifth anniversary of the September 11 attacks is coming up, and people are looking at the broader issues.

For example, Joan Walsh is working out What We Lost, and, after discussing how the number of American soldiers who have dies is now equal to the dead on that day five years ago - and our 30,000 military casualties and the reported 46,307 dead Iraqi civilians - she's pretty down. And she adds that quick victory in the Afghan war against the Taliban, which everyone here and around the world supported, now seems on the verge being just pointless - every week there's more killing, more repression and the New York Times reported that the Afghan city known as Little America is now the capital of Taliban resurgence and opium production. Add that global sympathy in the wake of what happened five years ago "has turned to global distrust and disdain." It's the usual laundry list.

But she gets personal -

    Maybe the loss I regret most was the shimmer of national and international unity we enjoyed after the attack - the warmth I felt from friends and acquaintances and even strangers those first raw days, a seriousness and purpose I felt more broadly in the following weeks. Like most Americans, I didn't vote for this president. To me, December 12, 2000, the day the Supreme Court stopped the Florida recount that Al Gore would have won, is another day of infamy in US history. But I was willing to give Bush the benefit of the doubt in the weeks after 9/11, let him build on the global support we'd won and do something thoughtful and effective about al Qaeda. His response in those early weeks seemed uncharacteristically measured; he warned against targeting Muslims, he took almost a month before striking Afghanistan.

    Since that time, though, we've seen hubris beyond imagination. We've watched an unbridled executive-branch power grab, warrantless wiretaps, the curtailing of privacy rights; a pervasive smog of secrecy descended to obscure our government. Outrage about torture, rendition and secret prisons here and abroad is dismissed with a flippant "We don't torture" from the president. And all of it has been shellacked with an ugly culture of bullying in which dissent equals treason, shamelessly, five years after the attack. Last week it was Donald Rumsfeld comparing war critics to people who appeased Hitler; this week we had Secretary of State Condoleezza Rice saying they're the sort who would have ended the Civil War early and let the South keep its slaves. Their intimidation is meant to say that the very freedoms worth fighting for - the right to dissent, the right to question our government - might have to be abridged while we fight. Politically, that truly is more than we can bear.

    Still, we've seen nothing so brazen as the president's "war on terror" victory lap this 9/11 anniversary week, three speeches to tell us he's made us safer though there's still more to be done, and pay no attention to the carnage in Iraq.

Well, yes, that's about it. But not much can be done.

She says that's not true -

    there's reason to believe 2006 will turn out differently from 2002. This time around the midterm elections are looking grim for the GOP, thanks to the war in Iraq, high gas prices and overall gloom about the country's direction. A CBS News/New York Times poll reported Thursday that when asked if the government had done "all it could reasonably be expected to do" to prevent another terror attack, nearly two-thirds of Democrats and Independents said no. Even among Republicans, only 56 percent said yes. Bush's campaign to convince us we're wrong is just beginning, and maybe it will work as it did in 2002 and 2004, but it won't be easy. The great thing about freedom and democracy is we have multiple chances to get things right.

And we don't always screw up? We'll see.

All of what Walsh says is very emotional, perhaps appropriately so. But can one look at all this dispassionately.

That is what Dahlia Lithwick, the legal expert at SLATE.COM, discusses here in her comments on the new book by Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency.

That calls for a bit of disclaimer - a reader who has contributed these pages in the past has argued many a case in front of Judge Posner and has privately commented that the man is devastating brilliant (and fluent in French, of all things), and she preferred dealing with him and not Scalia down in DC at the Supreme Court, who she found just gratuitously mean.

Lithwick is impressed with Posner because in this new book he raises interesting questions that are above emotion, or below it, or beside it.

Here's how she frames it -

    The Bush administration is marking the fifth anniversary of Sept. 11 this week by launching a charm offensive touting its war on terror. At the less charming end of the spectrum: Donald Rumsfeld's nasty attacks on war critics. More charming: the president's new willingness to empty secret CIA prisons and put the 9/11 ringleaders on trial. But what's missing from all these election-year defenses of the government's actions is the same ingredient that's been missing from the outset: a fair-minded balancing of what's been lost against what's been gained.

    Imagine, for instance, if the president had, in his speech this week defending his actions at Guantanamo, confessed that separating real terrorists from unlucky clods is next to impossible; that some detainees may still be there by mistake, but that the risks are worth it. Instead, he offered the preposterous claim that the 450 men who remain there are virtually all dangerous terrorists, even when evidence to the contrary is indisputable.

    Like the administration's old rationalizations for the war on terror, the new ones write off the president's critics as "appeasers" or insist that we are foiling terrorist plots through torture (or, to use the most recent euphemism, "alternative interrogation procedures"). The president claims that his every suspension of the laws of war, the Geneva Conventions, and domestic civil liberties is justified because it is necessary, and, invariably, it is necessary because he says so. There is never even token recognition that any important freedoms are lost; that water-boarding a prisoner is more than just "tough, and safe, and lawful"; or that programs like the warrantless NSA surveillance of citizens come at a price for everyone.

    That is why Judge Richard Posner is such a welcome voice in the national conversation about balancing freedom against security. Posner, the brilliant and prolific federal appeals court judge, is renowned - and not always in a good way - for putting a price tag on everything. But whatever quibbles liberals may have with his law-and-economics approach to anything from rape to unwanted babies, they should celebrate the intellectual rigor he brings to the problem of civil liberties in wartime.

And in the new book he does just that, approaching the wartime civil-liberties problem "in precisely the manner the Bush administration will not: with a meticulous, usually dispassionate, weighing of what is gained against what is lost each time the government engages in data-mining, indefinite detentions, or the suppression of free speech."

This of course makes him a hero with the pro-Bush crowd. With every new instance of the president breaking the law we all have our conservative friends who repeat that line that "the constitution is not a suicide pact" and how breaking the law is sometimes the right thing to do (sometimes quoting Thoreau from his jail cell). Of course this causes no end of other problems as that would make him a classic "activist judge" - one who says what the constitution literally means can be useless, as times change. That sort of thing led to the idea we have a right to privacy, and that led to Griswold and saying birth control and private sexual behavior was not the government's business and that Lawrence case where the gay guys in Texas said the state had no right to raid their bedroom and arrest them, and it led to the idea the decision to abort a pregnancy was really not the government's business.

Lithwick points out that a famous hyper-conservative blogger out here in Los Angeles, Glenn Reynolds, got all messed up when he snagged an interview Posner - here getting wrapped around his own axle regarding Posner doing the "living Constitution" thing. That's so BAD, but he likes the idea Bush can break the rules.

But how else do you determine which suspensions of constitutional rights are justifiable in wartime?

Lithwick is impressed because Posner is actually moving the whole issue beyond black and white, beyond all-or-nothing rants from the left or the right. It's far better than the president's simple-mindedness, or the convoluted constitutional theories of his attorneys, however clever. Put the passion and emotion aside. This is a cost-benefit calculation.

Here's the deal -

    What Posner offers is the suggestion that careful balancing of liberties lost against security gained is a better alternative than the current regime that recognizes no cost to freedoms lost and no accountability for security achieved. By virtue of this careful balancing, Posner even criticizes a few Bush administration decisions. He questions, for instance, the decision to suspend the right to habeas corpus of US citizens or foreign terrorists captured in the United States because he deems the cost of indefinite detention to exceed the gain in public safety.

    It is this exercise that makes Posner's book so important, as we begin the pre-election analysis of which elements of the president's surveillance, detention, and prosecution strategy have made us safer, and which actions have merely made us less free.

And here's the problem (emphases added) -

    if we are really to follow Judge Posner's lead; that is, if we are really going to undertake a sober national conversation on the costs and benefits of suspending civil liberties, we need better information on both. Surely Judge Posner would be the first to agree that a good consumer is an informed consumer. And ultimately, the question becomes whether anyone knows enough to engage in such a cost-benefit analysis. For instance, Posner seems to share Bush's assumption that torture is, broadly speaking, worth it, in that it generally extracts information that can disrupt terror plots. He goes on to argue that even in the face of anti-torture statutes, there is a moral obligation in, say, "ticking time bomb" situations, for state actors to exercise a form of "civil disobedience" and ignore those torture statutes. But without fuller information on who is being tortured, and how, and for how long, and how many false confessions are elicited, it's just not clear to me that a cost-benefit assessment is possible.

    I am willing to be persuaded, five years later, that provisions of the Patriot Act really do make us safer. But I am not persuaded by assertion alone. How can I balance the security benefits of so-called national-security letters, or the subpoena of my library records, if the government refuses to disclose how that information is used and why? If I am only weighing the curtailment of my civil liberties against the government's bare assertions that such curtailment makes me safer, then there is no real balancing to be done. And if that information is unknowable, am I not just balancing my own subjective sense of freedom against the president's promise that I am safer?

So doesn't that make the whole thing academic?

Posner also argues that our judges don't have the institutional capacity to decide these questions of national security. So who does?

The whole idea that anyone can decide these things seems silly. None of us has the right information, and everyone has an agenda.

But even so Lithwick says this -

    The real power of Posner's project is that he is absolutely willing to stand back and measure whether Guantanamo is really worth it; whether wiretapping is really worth it. And even if we don't know enough to really offer final conclusions, the very promise of such a reckoning is a good start. It's proof that often the best cure for overheated partisan shrieking is a good old-fashioned pickup game of cost-benefit analysis. Now if the Bush administration would just follow suit by framing the debate about freedom and war in terms of painful civil-liberties sacrifices and corresponding gains in security (as opposed to cheap attacks on its critics or grandiose claims of unlimited wartime authority), we might begin to undertake the sort of measured, careful debate about this possibly never-ending war on terror - a debate that is long overdue.

Don't hold your breath. The elections are coming - overheated partisan shrieking is the order of the day. That's how we decide things.

And the week ended on a Friday full of the expected posturing.


[The Basics]

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik