More On Cornyn

by hilzoy

Publius has already written about Sen. Cornyn's decision to delay Eric Holder's confirmation as Attorney General for a week. I just wanted to add a couple of points. Here's what Cornyn said about his reasons for the delay:

"Other GOP members of the committee, said Cornyn, are also concerned about the potential for prosecutions. The intent of the Military Commissions Act, he argued, was to provide immunity from prosecution if agents believed they were acting lawfully.

"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.
"There were provisions providing immunity to intelligence officials based up on good faith and what they understood the law to be," said Cornyn. "I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse — the very kind of risk aversion…that the 9/11 commission talked about when they talked about what set us up for 9/11.""

First, the Military Commissions Act does not immunize intelligence agents from prosecution for anything. In Sec. 6, it provides a list of things that can be prosecuted as war crimes. One of them is torture. Another is 'cruel or inhuman treatment'. Insofar as we can infer congressional intent from this statute, we have ought to conclude that Congress intended that people who torture someone can be prosecuted: after all, Congress passed a law that expressly provides for their prosecution. 

If John Cornyn and his colleagues meant to immunize intelligence officials for whatever they did, they should have passed a law saying so. If they wanted to immunize intelligence officials for doing anything that the Bush administration said was OK, however implausible the administration's claims might be, they should have passed a law saying that. And if they wanted to add a codicil saying: "For the purposes of this statute, the practice known as 'waterboarding' is not a form of torture", they should have done that.

But they didn't do any of these things. They passed a law saying that people who engage in torture can be prosecuted for war crimes. Eric Holder, like many people, and like our government before George W. Bush got hold of it, believes that waterboarding is torture. Nothing in the Military Commissions Act says otherwise. 

Second, because Eric Holder is not yet Attorney General, he has not yet had a chance to see what, exactly, people did to detainees over the last seven years. That being the case, it would be completely irresponsible for him to say whether he will or won't prosecute them. 

Imagine …

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More On Today’s Executive Orders

by hilzoy Now that I've actually read Obama's Executive Orders on detention (1, 2, 3, 4; the 4th is a pdf), I wanted to highlight a few more points. First: "The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus." This was expected, but it's immensely important nonetheless. It's … Read more

Working for the Meltdown: Too Late to Lose the Weight You Used to Need to Throw Around?

by Eric Martin

For the first installment of the America's Defense Meltdown series, I thought it would be useful to review some of the history applicable to the evolution of America's military institutions as presented in the anthology itself.  That history provides a useful context within which to assess the range of options going forward, and perhaps appreciate some of the anachronistic aspects of our defense posture/industry that have long outlived their utility, passing from asset to hindrance.  The establishment of a permanent standing military force of considerable size over the past century, coupled with the gradual consolidation of war making authority by the Executive branch, has distorted the policy making process to detrimental effect, all at enormous cost.

Lt. Col. John Sayen (US Marine Corps, ret.) provides a summary of the overall picture:

Our military has broken its constitutional controls. Our Founding Fathers wanted no more than a very limited size and role for a federal military. They feared standing armies not only because they might be used against the American public, i.e. to establish military rule, but also for their potential to involve us in costly foreign wars that would drain our treasury, erode our freedoms and involve us in the “entangling alliances” that George Washington warned of in his farewell address. At that time our armies were composed mainly of state militias that the president needed the cooperation of Congress and the state governors in order to use. Today, we have one large all-volunteer federal Army, which for all practical purposes responds only to the president and the executive branch. It has engaged in numerous foreign wars, involved us in many entangling alliances, drained our treasury and eroded our liberties just as our Founding Fathers foresaw. It has enabled the president to take the nation to war on little more than his own authority. The recent repeal of the Posse Comitatus Act of 1878 allows him to unilaterally use the military not only against foreigners, but against the American people as well.

While it is easy for children of the World War II/Cold War era who have grown accustomed to an enormous, permanent standing Army to assume that this was always the state of affairs, a closer look at the preceding decades reveals a different story.  At the time of this nation's founding, there was only a nominal national force – with most arms residing with state-based militias.  While this force was gradually augmented over time, even "as late as 1898 the Army was still authorized only 27,000 men."  It is that point in time that marks the dramatic break from past traditions. 

The state of military affairs prior to the turn of the 20th century reflected the prevailing political will: there was an overriding concern that a large standing Army could usurp representative government, exert outsized influence over that government and/or lead it into unnecessary adventurism through the seductive lure of martial power.  Rather than constructing a force that could pose a threat to the republic, or facilitate far-flung folly, US leaders by and large relegated the military to one overriding purpose: defense of the nation's homeland. 

A brief recounting:

Congress…established the relationship between the federal government and the state militias with two militia acts passed in 1792. The first gave the president the authority to call out the militia in response to foreign invasion or internal disorder. The second ordered that the militia consist of all able-bodied male citizens between the ages of 18 and 45. Each member would arm and equip himself at his own expense and report for training twice a year. The state legislatures would prescribe the militia’s tactical organization (companies, battalions, regiments, etc.). As time went on, however, and the nation grew more secure, militia service effectively became voluntary. Militia units began to resemble social clubs more than military organizations, but even as late as 1898 the militia could field five times more troops than the U.S. Army.

If the president wanted to take the United States to war, he would need a national army that, unlike the militia, could fight anywhere, not just within its home states. Unless the war was to be of extremely limited scope and duration, the regular U.S. Army would be too small. To enlarge it, the president would have to go to Congress not only to obtain a declaration of war, but also the authority and funding needed to call for militia volunteers. Assuming that Congress was forthcoming, the president would then issue a call for volunteers, ordering each state governor to raise a fixed quota of men from their respective militias. These orders were difficult to enforce and during the war of 1812 and the Civil War several governors refused them. However, those that complied would call on the individual companies and regiments of their respective militias to volunteer for federal service. The members of those units would then vote on whether their units would become “U.S. Volunteers.” Individual members of units that volunteered could still excuse themselves from service for health or family reasons.

Given that most militia units were below their full strength in peacetime, and that a portion of their existing members would be unwilling or unable to serve, they would need a lot of new recruits if they were to go to war. They would also need time for training and “shaking down.” Secretary of War John C. Calhoun in 1818 noted that the United States had no significant continental enemies and was essentially an insular power. Thus, the Navy could ensure that an invader could not land in America before the U.S. Volunteers had time to prepare. The system certainly made it harder to go to war.

The structure of America's military apparatus made it difficult to go to war on a whim, or for anything less than a cause deemed vital by enough actors across a broad swath of geography, class and ideology.  The warriors themselves had, in essence, veto power.  The results that stemmed from this were unsurprising: "In the first 100 years of its existence the United States fought only two significant foreign wars."

Under our current system, on the other hand, the military lacks the same level of autonomy or prerogative when it comes to making decisions.  Our modern day volunteer force receives orders, not ballots, when there is a call to arms.  Further, whereas multiple actors needed convincing prior to fielding an army in the past (from Congress, to sate governors, to militiamen themselves), increasingly, in modern times, there is only the President. 

…[T]he National Defense Act of 1916, passed in anticipation of America’s entry into World War I. In effect…transformed all militia units from individual state forces into a federal reserve force. The title of “National Guard” became mandatory for all militia units and, within the War Department the Division of Militia Affairs became the National Guard Bureau. Instead of the state titles that many had borne since the colonial era the former militia units received numbers in sequence with regular Army units. In addition, the act created a U.S. Army Reserve of trained individuals not organized into units and established a Reserve Officer Training Corps (ROTC) in the colleges and universities.

…The political cost had been high. America now had the large professional standing army (with no counterbalancing militia) that our Founding Fathers warned us against. The president now controlled all of the nation’s armed forces in peacetime as well as in war. He would no longer have to beg either Congress or the state governors for troops.

Within a few years he would not have to ask Congress for a declaration of war, either. Yes, Congress still holds the purse strings but, as other chapters of this book will show, it has never gripped them very tightly…[T]he new U.S. Army was effectively accountable only to the executive branch of government.

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Executive Orders

by hilzoy TPM Muckraker: "President Obama moments ago signed an executive order closing the Guantanamo detention facility within a year. The move makes good on a key Obama campaign promise. Obama also signed two other orders, reviewing military trials of terror suspects, and banning the harshest interrogation methods. After signing, Obama said: "The message we … Read more

Working for the Meltdown: Introduction

by Eric Martin I've recently completed an anthology edited by Winslow Wheeler entitled, America's Defense Meltdown, and the selections are, at least to this reader, illuminating.  Each chapter is written by a different author (though some authors pen multiple chapters) and each such sub-unit takes on a separate facet of the overall mission.  In its entirety, … Read more

Sweet Blissful Ignorance

by publius It's been difficult to capture in words the swirl of thoughts and emotions I've experienced over the last few days.  There's a fine line between recognizing the magnitude of the moment and being intolerably cheesy.  (Though I've really enjoyed Josh Marshall's readers' takes — especially this one). And while I've had moments of … Read more

Hopeful Signs

by hilzoy From the Washington Post: "In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba – a clear break with the approach of the outgoing Bush administration. The instruction came in a motion filed … Read more

It’s Over

by hilzoy I've been trying to figure out what to say about the inauguration, with no success at all. I will only say: it feels like waking up from a horrible dream. — I have travelled outside the US a lot. All my life, when people have criticized the US, I have tried to stick … Read more

Balance

—by Sebastian   Now there is a mode of thinking I can get behind.  I don’t know if Obama’s speech will reflect the next four years, but if it does I can get behind it.  The speech was characterized by an attempt to move beyond the more rigid frames of ideologies, into what is Obama’s … Read more

Happy Inauguration Day!

by Eric Martin Though I couldn’t make it to DC, my firm is at least getting into the festive spirit – there’ll be free pizza in the conference room, where the flat screen will be showing coverage all day.  Not exactly hobnobbing with Jay Z and Bono at the various balls, but it’ll do. Also, … Read more

Good Morning, Good Morning

by publius Something felt different today when I woke up.  The alarm on my phone had magically changed to the Hallelujah chorus.  Birds — happy cartoon birds like in Cinderella — came to my window chirping and maken melodye.  Children were laughing and playing on the streets.  A big cartoon sun was dancing up the … Read more

Race Since The 80s

by hilzoy


Matt Cooper has a really interesting post at TPMDC, on the difficulty of explaining to people who weren't around (or old enough) at the time just how different, and more troubled, race relations were like in the 80s and early 90s. He asks: "Why is America's racial atmosphere less poisonous than it was then?" And he offers a few answers: the drop in black crime and teen pregnancy, the disappearance of issues like school busing,the mainstreaming of hip-hop, Bill Clinton's ease with African-Americans and Bush's cabinet picks. Josh Marshall adds: "American mass culture found a more useful scary other: Arabs and Muslims. That's a key thing that isn't pretty but I think is also true." 

Since I seem to be around the same age as Cooper, I thought I'd offer a few more possibilities, which I've put below the fold.

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No More Pardons?

by hilzoy From the NYT: "President Bush on Monday commuted the sentences of two former Border Patrol agents imprisoned for shooting a Mexican drug smuggler, but he was preparing to leave office without granting clemency to any better-known figures or government officials who could face liability over administration policies. (…) A senior White House official said that … Read more

Irony Is Dead

by hilzoy Yesterday, various bloggers, including Steve Benen at the Monthly, posted a wonderful YouTube video of Pete Seeger singing 'This Land Is Your Land'. I hope you watched it then, since it's no longer available: HBO has taken it down (h/t). If you click the video, you get the following message: "This video is no longer … Read more

America’s Beinart Problem

by publius A childhood friend of mine had a brilliant strategy to avoid losing basketball games.  Actually, he always lost them, so it was more like a brilliant strategy to convince himself that he didn’t lose.  After we’d score the last points, he’d immediately grab the ball and say “if I hit this, I win.”  … Read more

Eternal Recurrence

by hilzoy The Nation has republished an editorial from just before the inauguration of FDR in 1933, called 'A Farewell To Republicans' (h/t). Except for the absence of any mention of Iraq or global warming, it's downright scary how apt it is today: For twelve years the Republican Party has been in power. During ten of those years … Read more

Tomorrow: Day Of Service

by hilzoy Barack Obama has asked people to spend tomorrow doing something to serve their communities, and he has set up a website designed to make it easy to find ways to do this. It's actually quite wonderful. Anyone can create an event, so in addition to some things one might expect — opportunities to … Read more

A Victory That Needs Protecting

by publius Good news on the net neutrality front.  The House stimulus bill released this week contains $6 billion for broadband deployment.  Even better, the current bill imposes pro-neutrality conditions – essentially, any provider who receives money must operate “open” networks.  To put it mildly, this is a sea change from four years ago.  And … Read more

Fanboyz

by hilzoy I gather there are football games today. Apparently, one of them even involves my hometown team. Buildings all over Baltimore are illuminated in purple. But we haven't gone as far as the mayor of Pittsburgh (h/t): "In light of the big Pittsburgh Steelers vs. Baltimore Ravens matchup this weekend, mayor Luke R. Ravenstahl has officially changed his name … Read more

Flashback

by hilzoy From the NYT: "On his first full day as president, Barack Obama will meet with high-ranking military officers to discuss the Iraq war, a conflict he has vowed to end after six years of fighting, a top adviser to Obama said Saturday." On This Week, George Stephanopoulos asked David Axelrod whether, in this meeting, Obama would … Read more

A Stimulus Question

by publius Help me out here economists.  There's always been an incentive among conservatives and pro-monetary policy advocates to argue that the New Deal (as fiscal stimulus) wasn't very effective.  The modern policy implication, of course, is that we shouldn't be doing fiscal stimulus. The most common variation of this historical argument is the one … Read more

Heckuva Job

by hilzoy


ThinkProgress had a snippet of Bush's 2000 inaugural address, and for some reason I decided to reread it. Looking back on it after eight years, it's pretty breathtaking. For instance:

Today, we affirm a new commitment to live out our nation's promise through civility, courage, compassion and character.


America, at its best, matches a commitment to principle with a concern for civility. A civil society demands from each of us good will and respect, fair dealing and forgiveness.


Some seem to believe that our politics can afford to be petty because, in a time of peace, the stakes of our debates appear small.


But the stakes for America are never small. If our country does not lead the cause of freedom, it will not be led. If we do not turn the hearts of children toward knowledge and character, we will lose their gifts and undermine their idealism. If we permit our economy to drift and decline, the vulnerable will suffer most.


We must live up to the calling we share. Civility is not a tactic or a sentiment. It is the determined choice of trust over cynicism, of community over chaos. And this commitment, if we keep it, is a way to shared accomplishment.


Read this and think of Bush's response to Katrina:

Where there is suffering, there is duty. Americans in need are not strangers, they are citizens, not problems, but priorities. And all of us are diminished when any are hopeless.


And consider this:

America, at its best, is a place where personal responsibility is valued and expected.


Encouraging responsibility is not a search for scapegoats, it is a call to conscience. And though it requires sacrifice, it brings a deeper fulfillment. We find the fullness of life not only in options, but in commitments. And we find that children and community are the commitments that set us free.


Our public interest depends on private character, on civic duty and family bonds and basic fairness, on uncounted, unhonored acts of decency which give direction to our freedom.


Sometimes in life we are called to do great things. But as a saint of our times has said, every day we are called to do small things with great love. The most important tasks of a democracy are done by everyone.


I will live and lead by these principles: to advance my convictions with civility, to pursue the public interest with courage, to speak for greater justice and compassion, to call for responsibility and try to live it as well.


In all these ways, I will bring the values of our history to the care of our times.

I completely agree. But I see no evidence at all that Bush meant a word of it. Worse, I don't see any evidence that he even understood it. Conscience and civility matter enormously. They are, as Bush said, matters of character that turn on "uncounted, unhonored acts of decency". Before Katrina, putting a talented, competent person in charge of FEMA, or making sure that the Department of Justice operated fairly before the US Attorneys scandal broke, would have been uncounted, unhonored acts of decency.  

But Bush couldn't even manage honored, counted acts of decency, like not torturing people, or coming up with something resembling an honorable response when the implications of his administration's policies became clear.

He's a small, small man, who ought to have spent his life in some honorary position without responsibilities at a firm run by one of his father's friends. Instead, he ruined our country, and several others besides. He wasted eight years in which we could have been shoring up our economy, laying the groundwork for energy independence, making America a fairer and better country, and truly working to help people around the world become more free. Instead, he debased words that ought to mean something: words like honor, decency, freedom, and compassion. 

To this day, I do not think he has the slightest conception of the meaning of the words he took in vain. 

Sometimes, when I write things like this, people think I am trying to excuse Bush — as though I cannot condemn him unless I take him to be a scheming leering monster. I disagree. I think that when someone who is not mentally incompetent gets to be Bush's age, if he has no conception of the meaning of honor or decency, he has no one to blame but himself. And to say of a person that he does not understand those things — that he could stand before the nation and speak the words Bush spoke in 2000 with so little sense of what they meant that it's not clear that we should count him as lying — is one of the worst things I think it's possible to say about a person.

Especially if you add one further point: the one and only thing that might have mitigated Bush's failings would have been for him to be sufficiently self-aware not to have assumed responsibilities he could not fulfill. Obviously, Bush did not have that kind of self-awareness. But it amazes me to this day that becoming President did not force him to recognize the nature of the responsibilities he had been given, and to try his best to live up to them. Honestly: I don't know how it's possible to become President and, not try your absolute best to appoint really competent people ('Heckuva job, Brownie!'), to ask obvious questions that people don't seem to have focussed on, like 'have we actually planned for the occupation of Iraq?', and so forth — not to do any of those things, but instead to just go on being the same petulant lazy frat boy you've always been. 

Apparently, though, it is possible. And we all get to pay the price.


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Open Thread: Now with 50% More Links!

by Eric Martin Have at it people.  Some conversation starters/links that I haven't blogged about but are worth mentioning. Jay Rosen deconstructs the media's shaping of conventional wisdom, acceptable discourse and deviance.  Despite its utter lack of self awareness in terms of its part in this affair.  It would get a 5 out of 5 … Read more

The Magical Mystery Tour

by publius I'm not entirely sure how to describe Bush's farewell address.  It was less a coherent description of the last eight years, and more like a hallucinogenic ride through some imaginary world in Bush's head. Although there was a lot of competition, this was probably my personal favorite: So around the world, America is … Read more

Some Facts For Obama To Consider

by hilzoy (1) According to Article II, Section 3 of the Constitution, the President "shall take Care that the Laws be faithfully executed".  (2) According to Article VI of the Constitution, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the … Read more

“Return To Terrorism”

by hilzoy Yesterday, a Pentagon spokesman said: "I can disclose with you the fact that we have a new — we have updated recidivism numbers of people who have been at Guantanamo, and these are the latest numbers we have as of the end of December. And it shows a pretty substantial increase in recidivism. … Read more

The War on War

by Eric Martin This is music to my ears: The chairman of the Joint Chiefs of Staff said Monday that senior officers must work to prevent the militarization of American foreign policy, and he urged generals and admirals to tell civilian leaders when they believed the armed forces should not take the lead in carrying … Read more

Putting the “W” in WPE

by Eric Martin President Bush actually put this knuckle dragger in charge of the civil rights and voting rights divisions of the Department of Justice: To Bradley Schlozman, they were “mold spores,” “commies” and “crazy libs.” He was referring to the career lawyers in the Justice Department’s civil rights and voting rights divisions. From 2003 … Read more

Over One In Eight

by hilzoy Brandon Friedman has a scary article in the Military Times (h/t): "The Army is in the midst of a disturbing trend that threatens not only our immediate goals in the current conflicts, but, more importantly, the long term health of the organization.  The fact is, while the Army has been lowering its entrance … Read more

Supertrains!

by hilzoy Philip Longman has a great article on trains in the Washington Monthly. It's worth reading in its entirety, but two paragraphs really leapt out at me. The first: "Let’s start with the small-scale stuff that needs doing. There are many examples around the country where a relatively tiny amount of public investment in … Read more

A “Disappointment”

by publius In reading over Bush’s press conference transcript, I was almost starting to feel some sympathy for him.  Until I got to this part, which responded to a request to identify his mistakes: There have been disappointments. Abu Ghraib, obviously, was a huge disappointment, during the presidency. A “disappointment.”  That’s the type of language … Read more