But Look Here: Iraq

I am posting this from a thoughfully written piece by Christian Caryl in the NYRB because it is all too easy to forget what it is that we are fighting for, have in the past fought for, and what the "good life" means to us. Hint: this does not describe a country that professes to want to spread "democracy" (aka the good life). This describes an utter failure of that country to fulfill the mission: (sorry, I hate to be piling on like this but this is probably the defining issue of our times and is difficult to ignore--when the vets from this war retire, will they be proud or angry for having been there? While an A for effort should be given to the troops could the same be said for those responsible for the planning?)

Small wonder, then, that the American discourse about the war usually ends up saying far more about American domestic politics than Iraq itself. Within the United States, politicians and commentators are fervently debating the issue of whether what is happening there now constitutes a "civil war." In Iraq there is no equivalent discussion that I am aware of. Such a discussion, one presumes, would be bizarrely misplaced when more than one hundred Iraqis (in a country of 29 million people) are dying each day from internecine violence. In a country of America's population, the equivalent losses would be a little more than 1,000 per day—or roughly two September 11 massacres per week. Similarly, New York Times journalist Sabrina Tavernise, who has spent much of the past three years in Iraq tracking down the views and daily experiences of ordinary Iraqis, wrote shortly after the US midterm elections that many members of Baghdad's present-day political class, though well aware of the elections, regarded them as irrelevant to the fate of their country.

From the Crows Nest

Today is Attorney General day as the Post has one, two and three (not blind mice) items and NYT one on this topic.

Yesterday just listening to some commentatary on the Devlin kidnapping case from Missouri, I heard something to the effect that many people are looking for an early plea arrangement in order to avoid the trauma to the kids of testifying at a trial (so it is not as traumatic to just talk about it in private to the REALLY NICE prosecutors, who are VERY interested also in getting that plea).

So, in that view, a trial imposes trauma, and that's a good enough reason to enter a conviction on a plea. Do we no longer CARE whether the man is guilty? Sure, the facts of this case appear open and shut, but it isn't always like that.

Meanwhile, back at the ranch:

This from the Post Thursday on Smith and the Supreme Court death penalty cases is good:

It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

More on Politicized AGs: (from Howard at How Appealing)

"Surging and Purging": Today in The New York Times, columnist Paul Krugman has an op-ed (TimesSelect temporary pass-through link) that begins, "There's something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors."

In related news coverage, The Washington Post today contains an article headlined "Prosecutor Firings Not Political, Gonzales Says; Attorney General Acknowledges, Defends Actions."

And in The San Francisco Chronicle, Bob Egelko reports that "U.S. attorney was forced out, Feinstein says."

Here is a link to one of the first opinions disposing of a challenge to the Adam Walsh Act.

This one is of local interest-- a challenge to an "anti-solicitation" Herndon, Virginia law targeting day laborers: (Washington Post)

Although town officials cited traffic safety as their chief concern, the law was passed in the midst of a debate over the impact of immigrant day laborers, who congregated in the parking lot on Elden Street in the mornings to seek work.

Thomas's attorneys, Rodney G. Leffler and Alexa K. Moseley of Fairfax, asked that the case be dismissed on First Amendment grounds, saying that solicitation has long been protected by the courts as free speech. Specifically, they said Herndon's law is flawed because it focuses only on solicitation for employment, while leaving other forms of solicitation -- such as charitable contributions or the sale of goods -- unrestricted.

Fairfax District Judge Lorraine Nordlund has scheduled a hearing for Feb. 14 but indicated that she could rule earlier based on written arguments. The lawsuit was filed last week.

Herndon Town Attorney Richard B. Kaufman declined to comment. "The Town of Herndon does not comment on ongoing criminal prosecutions," he said.

Vice Mayor Dennis D. Husch said the Town Council can rewrite the ordinance, if necessary.

Bush's War

Maybe not criminal, but close, to send a number of troops into Iraq that by most accounts is not enough to make a difference.

Sen. Edwards is right, the Administration has it exactly backwards: the political solution is the only way. The military "solution" is to recognize that American troops in Iraq are the problem and can't fix it.

To say that there is a "democracy" in Iraq is a complete fantasy. Who wrote that speech?

Politics of Crime

This qualifies for politics of crime (even if it's not habeas stuff which is the more keenly honed edge on this blog), as does the following item from Prof. Berman.
The President can do no wrong, except if his name was Nixon, in which case he gets pardoned, or if his name was Clinton, in which case he gets impeached. The real question:

does the issuance of the signing statement for this technical amendment simply signal the Bush Administration's unusual overreliance on signing statements — so much that they would make a statement to restate existing law even when the paragraph is just moved from one place to another — or does it hint at a previously unknown Administration's practice?*** It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.

More by Orin Kerr here.

Prof. Berman lays this one out in the flats (not the ones out west, near where those Casinos are):

The over/under on tonight's big game right now is set at 46. Were I a betting man, I would take the over. But if 46 was set as an over/under for the number of executions in the United States in 2007, I probably would take the under. *** But, as spotlighted by ODPI in posts here and here, the death penalty landscape is probably more impacted by evolving political realities than legal issues. If elected officials (including state judges) discover they can disrupt marches to death chambers without serious political fall-out, there could be amazingly few executions (except perhaps in Texas) throughout 2007.

Who can take this one in for the TD?

Nothing good can come of this, then too I could be wrong. Scot Henson just reminded me of this one (the Texas Panetti SCOTUS cert), from Prof. Berman. Here Scot spotlights another innocence issue:

Whitley quotes Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, who points out that "no other county in the country beats Dallas. It’s a county that beats out most states in the country. It’s an indication of a system that needs reform.""So why is Dallas having such staggering numbers of the innocent put in prison?," queries Whitley. "One clue: Potkin says that almost all of those exonerated were convicted with eyewitness testimony that proved to be wrong. 'And these cases are recent, not from the ’80s,' she says."

No wonder so many innocent people are sitting in Texas prisons. The eyewitnesses are "wrong"? That sounds more than just a little "feeshy to mee." Scot assumes that the "eyewitnesses" are not subject to coercion (there are some things that best practices cannot cure) whereas IMO coercion is precisely where, and how, Texas is going wrong in obtaining its convictions.

Lot more goodies here on alternatives to prison, from Scot,

and here, victim advocates oppose "tuffer" penalties (truly amazing, if it did not make so much sense). My earlier post about hearts and heads here.

More Top Ten: "Bill of Wrongs"

The "Outrageous" Top Ten: From (Slate/Dahlia Lithwick)

Definitely good stuff here (there?). Hat tip to Howard Bashman of the award winning How Appealing. (Also need to mention that the guys at Volokh Conspiracy are talking about this: Boumediene v. Bush (Circuit Judge Judith W. Rogers dissented, in a three-page opinion. She argued that the former judges' brief satisfied federal rules of appellate procedure dealing with unopposed motions to file amicus briefs. She concluded that the ex-judges had met the requirement of having an interest in the case by saying that they were retired federal judges who have "dedicated their professional careers to our judicial system," and that the life-long detention of individuals based on credible evidence that they were tortured "challenges the integrity" of the judicial system. The former judges' brief was filed on Nov. 1 by seven retired federal judges, arguing that the new Military Commissions Act is unconstitutional because it would allow the military to use evidence obtained by torture or "inhumane treatment" in detention proceedings, and the courts would not be able to review the legality of such evidence. An earlier post discussing the brief, with a link to the brief itself, can be found here (SCOTUSblog))

Back to the Outrageous Ten

10. Attempt to Get Death Penalty for Zacarias Moussaoui
Long after it was clear the hapless Frenchman was neither the "20^th hijacker" nor a key plotter in the attacks of 9/11, the government pressed to execute him as a "conspirator" in those attacks. Moussaoui's alleged participation? By failing to confess to what he may have known about the plot, which may have led the government to disrupt it, Moussaoui directly caused the deaths of thousands of people. This massive overreading of the federal conspiracy laws would be laughable were the stakes not so high. Thankfully, a jury rejected the notion that Moussaoui could be executed for the crime of merely wishing there had been a real connection between himself and 9/11.

9. Guantanamo Bay
It takes a licking but it keeps on ticking. After the Supreme Court struck down the military tribunals planned to try hundreds of detainees moldering on the base, and after the president agreed that it might be a good idea to close it down, the worst public relations fiasco since the Japanese internment camps lives on. Prisoners once deemed "among the most dangerous, best-trained, vicious killers on the face of the earth" are either quietly released (and usually set free) or still awaiting trial. The lucky 75 to be tried there will be cheered to hear that the Pentagon has just unveiled plans to build a $125 million legal complex for the hearings. The government has now officially put more thought into the design of Guantanamo's court bathrooms than the charges against its prisoners.

8. Slagging the Media
Whether the Bush administration is reclassifying previously declassified documents, sidestepping the FOIA, threatening journalists for leaks on dubious legal grounds, or, most recently, using its subpoena power to try to wring secret documents from the ACLU, the administration has continued its "secrets at any price" campaign. Is this a constitutional crisis? Probably not. Annoying as hell? Definitely.

Bush Wars

Compassion Wanted: George W. Bush is the boy at the bottom of the pile, taking the weight of insult, affront and other abuse from assorted connivers, blowhards and corporation lawyers looking for clients, says Pruden here.

Food for Thought Post-TGiving

That all men are equal is a proposition which, at ordinary times, no sane individual has ever given his assent. Aldous Huxley

A man walked into a bar with his alligator and asked the bartender, "Do you serve lawyers here?". "Sure do," replied the bartender. "Good," said the man. "Give me a beer, and I'll have a lawyer for my 'gator."

Francis Fukyuyama, Professor of International Political Economy at the Nitze School of Advanced Internaional Studies at Johns Hopkins University wrote this almost two years ago:

“The Iraq war has isolated Washington in unprecedented ways and convinced a large part of the world that the United States—not Islamic terrorism—is the biggest threat to global security.”

Is America really not okay? Leaning too far to the right? Taking on too many characteristics of a police state in addition to an indifferently policing one? Reflect also on Professor Fritz Stern's discerning idea, something he calls the “pseudo-religious transfiguration of politics,” describing “Hitler's success in fusing racial dogma with Germanic Christianity,” and “the moral perils of mixing religion and politics.”

Are there hot headed change agents to blame if blame be found, or is this new-fangled American oppressiveness a development which is nobody's fault but simply the unavoidable result of circumstances beyond anybody's control? The acts of a few bad apples; to be blamed on “the terrorists”?

Rather, what if it was really a well planned assault by a cabal purveying a theory of the unitary executive which is both the result of a mistaken and naïve misreading of the U.S. Constitution, and a cause of the document being altered, indeed interpreted, in reactionary, autocratic and merely politically expedient ways? Now, one of this cabal is running the World Bank. So can a tiger change his stripes?

As the undisputed heavyweight world predator and bully is America going to avoid taking responsibility just because it can for violations and abuses of human rights for which it should be accountable whether they occur at home or abroad? The problem, assuming there is one, might well be the ponderous footprint, the inability to cover those tracks, the failure to recognize and cure the damages. Ever heard of the Inquisition? Star Chamber? Sir Walter Raleigh?

The lessons of history need not go unheeded.

Finally, after digesting the turkey, and hearing the venerated Honorable Messrs. Brzezinski and Kissinger debate this question, it is now very clear (to me at least) that what is needed in Iraq is a complete end to the world's perception of unilateral American involvement.

What is interesting is that the terms of the debate have not changed over the previous three years that the senior diplomats have been having this discussion. What has changed are events on the ground. That tells me that one has been proven correct, with the benefit of hindsight. The unilateralism v internationalism debate has been fought before. What is sad is that the lesson has yet to have taken hold.

My plan to accomplish this is simple: Authorize the U.N. to

(a) take all necessary action in the Middle East (nothing will get done and that is fine, being an improvement over what is going on now, which is only pushing things in the wrong direction and, when things finally do get done the decision will be made by "the people," democratically)

(b) to train Iraqi police, and

(c) precede this by the installation of a new representative to replace Mr. Bolton.

The Baker Commission must go the final mile to internationalize the issue. More bombs going off in the Middle East only aggravates the global warming problem among other things, and this must stop.

But so long as the bombings cannot be stopped, the least we can do to salvage our international reputation, as well as the safety of our young men and women and the nation itself, is to make an effort to be as far away removed as possible from ground zero. We can't fix it, and we must recognize this added "inconvenient truth."

Finally, as an afterthought, containment works.

No Honor in Contientious Objector Aguayo's Court Martial

Here are moving excerpts from the heart, of Agustin Aguayo, an Army medic facing court martial for refusing to redeploy to Iraq. I must say that, especially after seeing Flags of Our Fathers, it is not unreasonable to me that somebody would object on personal and religious grounds to waging war. Only those who have been there could possibly have any idea of what it entails to go to war. The Bush chain of command got it wrong on this one too. It is no dishonor to stand up for what you believe. The prosecution is discretionary, so the Army can only be motivated on political grounds and from an effort to preserve discipline in the unfortunate ranks of the disaffected and demoralized. I can't quite understand what we are fighting for at this time, except to give cover to somebody's big mistake. It was senseless to start this war and senseless to continue to wage it. Even the former Secretary of State and senior statesman Dr. Henry Kissinger was heard on CNN last night, saying this war can't be won. And if you can't win then what's the point? Agustin's statement can be found on his website:

My beliefs and morals come from a transformation as a direct result of my combined religious/family upbringing, military experience, and new experiences I’ve created and sought. Such as, I have surrounded myself with people who cherish life and peace. I have become an active member and supporter of many peace organizations such as The Center on Conscience & War, Military Counseling Network, The Munich Peace Committee, and American Voices Abroad. I have overhauled my life with new practices such as the peaceful art of Yoga and meditation. As time progresses (it has been more than two and a half years since I became a CO) my beliefs have only become more firm and intense. I believe that participating in this (or any) deployment would be fundamentally wrong, and therefore I cannot and will not participate. I believe that to do so, I would be taking part in organized killing and condoning war missions and operations. I object, on the basis of my religious training and belief, to participating in any war. I have to take a stand for my principles, values, and morals and I must let my conscience be my guide.

In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and a harmful.

SQUEEZED IN THE MIDDLE BY GLOB ALIZATION: THE BUSH WARS, TAKE II

This quote used by E.J. Dionne of WAPO here, might explain as much as does the Iraq question (and indeed the two might be VERY related): "much of the gain from excellent macroeconomic performance has gone to just a small segment of the population -- those already in the upper part of the distribution." From a remarkable speech that Janet Yellen, the president and chief executive of the Federal Reserve Bank of San Francisco, gave the day before voters went to the polls. A related and entertaining read from "The Major" in USAVOICE.ORG is here.

Yellen draws on the essential policy book of the year, Jacob S. Hacker's "The Great Risk Shift." Again, if Democrats get tired of recrimination over an election they won -- imagine if they had lost! -- they might spend time with Hacker, who shows how more and more risk is being offloaded from government and private corporations onto individuals. He makes a powerful case for remodeling our social insurance systems to provide genuine economic security for all working Americans.

LONG LIVE MILTON FRIEDMAN as this clip from Doug Berman at SL&P demonstrates!