I told you so

Updated Dammit, dammit, dammit, dammit, dammit! I told you so! I did, I did, I did! You know I did! And more than once!

The day after the election, I told you so:

I strongly suspect that in a while a lot of people are going to be very disappointed in Barack Obama. ...

I believe that those who insist that on matters such as FISA he will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself.

And now it seems even those sort of powers are not enough.

Jewel v. NSA is a suit filed last fall by the Electronic Frontier Foundation (EFF) on behalf of five customers of AT&T (acting on behalf of all AT&T customers) challenging as illegal and unconstitutional the program of dragnet communications surveillance conducted by the National Security Agency. With the EFF's agreement, the initial government response was delayed until April. Now it has come and it's a doozy.

In a motion filed on Friday, April 3rd, the Obama Dept. of Justice (DOJ) demanded that the entire lawsuit be dismissed based on both the Bush administration's claim that a "state secrets" privilege bars any lawsuits against the executive branch for illegal spying, as well as a novel "sovereign immunity" claim that the Patriot Act bars any lawsuits of any kind for illegal government surveillance, unless there was "willful disclosure" of the illegally intercepted communications.

That latter argument is a stunner, an entirely new argument that goes clearly beyond any CYA claim advanced by the Shrub gang. While they had claimed "sovereign immunity" against suits under FISA, even they never insisted that the administration had such immunity against suits about illegal surveillance under any law.

But that is exactly what the Obama DOJ is now claiming. They are saying that if the government illegally spies on you, illegally intercepts any or all of your personal communications, even if the the government knows its spying is illegal, even if you know the government illegally spied on you, even if everyone knows the government illegally spied on you, even if you can undeniably prove the government illegally spied on you, there's not a single goddam thing you can do about it unless the government "willfully disclosed" the information it illegally gathered.

In a statement, the EFF called the argument "deeply troubling," "pernicious," "radical," and "utterly unprecedented."

No one - not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration - has ever interpreted the law this way. ...

Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ's radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama's own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

That sentiment was echoed by Prof. Jonathan Turley, who called the Obama team's claim "breathtaking" and said it represented

yet another break with its campaign promise to fight to restore civil liberties and privacy.... It appears the “yes we can” means “yes we can do most anything that we want” when it comes to unlawful programs.

(Prof. Turley notes that this is not the first time Obama's DOJ has gone beyond Bush's: In February, it threatened to unilaterally "withdraw" a document from a court case when it lost a ruling related to it, something of which Turley said he'd never heard.)

Glenn Greenwald, who said in his commentary on the filing that it's "hard to overstate how extremist [it] is," makes two significant points. One is that this is the initial government response to this suit. That is, this is not the Obama administration just carrying over a Bush administration argument (not that that would be an excuse), flying on autopilot as it were, this is the Obama administration's own, considered, position. There is no hiding behind the Bushites here.

The other point is one he just brushes by, but is very important to understand: You are, he said, "barred from suing [government agencies] unless they 'willfully disclose' to the public what they have learned." To the public. That's the phrase to note.

Because under the Obama administration's position, the information gathered can be kept and it can be disclosed. Depending on exact circumstances, it can be disclosed to other government agencies. It can be disclosed to law enforcement agencies. It might even be disclosed to foreign governments. But as long as it is still called "secret," as long as it has not been officially released to the general public, it has not been "willfully disclosed." And you still have no recourse. In fact, even if the information was deliberately leaked, you likely would have no recourse against anyone but the actual leaker - assuming that by some miracle you could identify them.

That's why Keith Olbermann's description of it as being like someone stealing your money but that's okay as long as they don't spend it, is not right: It's more like someone stealing your money but that's okay as long as they don't tell you what they spent it on.

It's been said by several observers that no president wants to surrender any of the power of the office. It's also been said that power corrupts. Barack Obama gives every sign of proving both adages correct.

And dammit, I told you so.

Updated to note that Dday at Hullabaloo has some additional stuff about a growing anger over Obama's use of secrecy and national security claims to conceal information about Executive Branch criminality. I also found interesting how in comments several people strove mightily to argue that everything is fine, trust in Obama; one even suggested that this is a strategy, that Obama is deliberately abusing assertions of presidential power to force Congress to pass limiting legislation, while another labeled the opposition "simple-minded" and employed the hoary "we don't have all the facts" dodge.

And the good times just keep on rolling

"No, no!" said the Queen. "Sentence first - verdict afterwards."

In a little-noticed ruling last week, McClatchy reported on Monday, a federal judge found a witness's testimony to be unreliable.

Okay, not a big deal in and of itself, in fact an everyday occurrence. What made it notable was that the person in question was a government witness in a "significant" number of Guantanamo cases - and that in those cases the government improperly withheld from the defense information about him, a fellow detainee, including that he was undergoing weekly treatment for a serious psychological problem that cast doubt on his fitness as a reliable witness.

Court records appear to indicate that the witness had an antisocial personality disorder. In a legal brief, Batarfi's lawyers point out the diagnosis could mean the person is prone to lying and lacks regard for the difference between right and wrong.

Batarfi is Aymen Saeed Batarfi, a Yemeni doctor who had been held in Gitmo for seven years until last week, when the government suddenly decided at the last minute that it didn't have sufficient evidence that he was an "enemy combatant" to prosecute him and he could be released as soon as it found a country that would take him.

But that didn't satisfy Judge Emmet Sullivan, who

castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.

"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high ... is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.

"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?"

He also criticized the government's motives for dropping the case against Batarfi at the last minute and suggested that the government didn't genuinely intend to seek a country that would take him.

"I'm not going to let this case drag on, or any of the other cases on my calendar, indefinitely while the government embarks on what it calls its diplomatic process, because I have seen in the past that that diplomatic process can indeed span months and years, and I have some serious concerns as to whether it's yet and still another ploy ... to continue with his deprivation of his fair day in court. ...

"I'm not going to continue to tolerate indefinite delay on the part of the United States government," Sullivan said. "I mean this Guantanamo issue is a travesty ... a horror story ... and I'm not going to buy into an extended indefinite delay of this man's stay at Guantanamo." ...

Sullivan ordered the Justice Department to notify other judges of the psychiatric records so they could assess whether the government's failure to reveal the extent of the witness's mental problems have bearing on other detainee cases.

This was not an isolated case, either.

According to court records in a separate case, an unidentified government witness who was believed to have psychiatric and substance abuse problems provided information to the government about 40 other detainees.

And earlier this year, news reports revealed that the government relied on testimony by detainee Yasim Muhammed Basardah for evidence in dozens of cases although his reliability was questioned by military officials.

In the "get 'em any way you can" atmosphere of fear-mongering permeating the War on Terror^{(c)(reg.)(pat.pend.)}, the niceties of due process and legalities became useless frills if not outright impediments. Even assuming the best of intentions on the part of the Obama administration - which for good reason I'm obviously not going to grant and which would be a bad idea under any circumstances involving any administration - a combination of the criminality of the WHS*, their campaign to populate to DOJ with ideological stooges, and our own complicity with the Democrats' blundering, cowardly, floundering failures to confront them, we have created a pit of immorality and unethical behavior out of which it will take us years to climb. And I have to say that dammit, every instance of someone saying "that was then, this is now" or any version of "But Obama isn't/doesn't/won't" only lengthens that span of time.

*WHS = White House Sociopaths

Good news!

Human rights have taken a step forward in Vermont: This morning, in an historic act, both houses of the state legislature quickly voted to override Gov. Jim Douglas’s veto of a bill allowing for same-sex marriages. This not only secures basic rights for same-sex couples, but it strips away the argument used by the opponents of justice that "no state has ever established same-sex marriage by the legislative process."

The override, which required a two-thirds vote in each house, wasn't even close in the state Senate, as was expected. But in the House, it was a squeaker: 100-49.

[T]he outcome in the House of Representatives was not clear until the final moments of a long roll call, when Rep. Jeff Young, a Democrat who voted against the bill last week, reversed his position.

It comes on the same day that the DC Council voted 12-0 to approve a measure that recognizes same-sex marriages performed elsewhere as valid in DC. That is, if a same-sex couple was legally married in one of the four states that now allow same-sex marriages, they will be regarded as married in DC. It also allows the mayor to certify relationships that fall short of marriage as domestic partnerships.

The district itself has a domestic partnership law but does not allow same-sex marriage. However, this vote is regarded by a number of council members as a sign that it's only a matter of time before the council takes up a bill to legalize same-sex marriage.

Last year, the council gave the mayor they authority to recognize same-sex relationships if they are "substantially similar" to domestic partnerships already recognized by DC. But as of a month ago, he hadn't acted on that authority, using the excuse of questioning what would constitute being "substantially similar." So the council pretty much said "well, screw you, we'll do it ourselves," recognizing marriage and ordering the mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District."

This is an initial vote with a final vote to come next month, but I see little reason to expect the numbers to change. This sets up a possible clash with Congress, which has to approve DC laws under Home Rule. While Congress certainly has been heavy-handed with the District in previous cases and I fully expect the reactionaries to make a fuss over it, to huff and puff and posture and provoke, I honestly don't seem them as prevailing, just as using it as a talking point to rouse the base.

And, happy happy, the good news doesn't stop there. Or, I suppose better said, it didn't start there. Because this comes just days after the Iowa Supreme Court unanimously ruled that a state law barring same-sex marriage was unconstitutional, declaring that

"We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification."

In its press release about the decision, the court said that

[i]n addressing the case before it, the court found one constitutional principle was at the heart of the case - the doctrine of equal protection. Equal protection under the Iowa Constitution “is essentially a direction that all persons similarly situated should be treated alike.” Since territorial times, Iowa has given meaning to this constitutional provision, striking blows to slavery and segregation, and recognizing women’s rights. The court found the issue of same-sex marriage comes to it with the same importance as the landmark cases of the past.

The court's ruling was plain-spoken, even blunt, but what I found remarkable was the level of understanding that there are real flesh-and-blood people involved here, an awareness all too rare in the briefs and circumlocutions that usually fill our legal process.

As the court wrote ... the 12 plaintiffs (six couples) expressed "the disadvantages and fears they face each day due to the inability to obtain a civil marriage in Iowa." These include: "the legal inability to make many life and death decisions affecting their partner, including decisions related to health care ... the inability to share in their partners' state-provided health insurance, public employee pension benefits, and many private-employer-provided benefits and protections," and the denial of "several tax benefits."

"Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs," the court continued, "is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage."

What the plaintiffs wanted, that is, is to be regarded as families. It is to the court's credit that it not only recognized this, it found it to be a significant and relevant factor.

What's more,

[t]he ruling appeared to dismiss the option of civil unions as a marriage alternative, finding that “a new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.”

As an added bonus, a move by conservative forces in the state senate to respond by pushing for an constitutional amendment to ban same-sex marriage will go nowhere, at least for this year. Eleven years ago, Senate Majority Leader Mike Gronstal supported the bill overturned by the Iowa Supreme Court, but when asked by Senate Minority Leader Paul McKinley if he'd join in crafting a bill to move an amendment forward, he said no. He'd learned a lot in the years since, he said.

“I see a bunch of people that merely want to profess their love for each other and want state law to recognize that. Is that so wrong? I don’t think that’s so wrong.” ...

“Friday I hugged my wife. I felt like our love was just a little more meaningful last Friday night, because thousands of other Iowa citizens could hug each other and have the state recognize their love for each other,” he said.

Bravo for growth and learning. They make living worth the effort.

This reminds me of how nearly two years ago a Massachusetts Constitutional Convention rejected an attempt to overturn that state's Supreme Judicial Court ruling that found a ban on same-sex marriages violated the state's constitution. The previous year, it had passed but it had to pass two years in a row before going to a referendum. The second time around,

it did not [pass], thanks to some hard lobbying and the admission of at least one legislator that he changed his mind after same-sex marriages started and, well, life went on as usual and society did not rip itself apart in raging controversy.

That the amendment failed is a measure of how far we've come; that a legislator could be surprised that same-sex marriage did not bring about the collapse of civil society is a measure of how far we have yet to go.

And we do, yes, still have a ways to go. The squealing, bug-eyed, vein-popping reactionaries are still out there and easy enough to find. But, amazingly, it appears that within the ranks of elected officials, the opponents of justice often feel the need to be more circumspect, to veil their bigotry in the language of reasonableness.

Consider, for example Vermont governor Douglas's veto message, which he had prepared in advance and was delivered "moments" after the bill passed the legislature. It was rather odd: He argued that the bill provides no more rights to same-sex couples than they had under the previous civil union law and that they still would not be recognized as married for the purposes of federal benefits. In other words, he was vetoing it because it doesn't really change anything legally one way or the other.

But in that case, why veto it, especially in such an emphatic manner? (I consider having your statement already written, just waiting for the moment the bill is delivered to your desk, to be an emphatic veto.) Why not just say "Yeah, sure, what the hell, makes no difference?"

The thing is, the bill does change something, even if not in some technical legal sense. It enables same-sex couples to say "We're not 'separate but equal,' we're equal. We're not 'as good as' married, we're married. We are that much less 'other' than we were before." I can't escape the feeling that this is the difference, the change, which Douglas was resisting by denying there was any change at all.

That feeling has echoes in the case of Connecticut, which is in the process of revising and cleaning up its laws in response to a state Supreme Court decision in October that the state's civil union law was inadequate recognition of the rights of same-sex couples and violated the principle of equal protection.

Some there are finding ways to dig in their heels where they can:

There was one item of controversy: The five stipulations added to the landmark 1991 anti-discrimination law. In order to placate Roman Catholics and other socially conservative constituencies ... the bill that made it illegal in Connecticut to fire or evict someone for being gay stated: 1) the state does not necessarily condone homosexuality, 2) schools wouldn't be required to teach about it, 3) there would be no quotas of gay employees for businesses, 4) marriage was still between a man and a woman, and 5) gays and lesbians aren't part of a protected class.

[State rep Bruce] Morris, who helped move along amendments clarifying that religious institutions wouldn't have to participate in same-sex unions, says the first stipulation - that Connecticut does not officially condone homosexuality - is important.

He stresses that he "owe[s] all people in [his] district equal protection," but says, "I don't think the state should condone or condemn any lifestyle," adding that, "I think [the statement] is still necessary for some, particularly those that are people of faith who need to know that the state doesn't oppose or want to interfere with their religious beliefs." It's about neutrality, Morris says.

Which is bullshit. What it's about is saying to gays and lesbians "We may not be able to keep you from getting married, but we still think you're scum." Just imagine anyone proposing any similar language in a law protecting the rights of blacks or women or Jews or anyone. They'd be condemned as the bigots they are.

And "lifestyle?" What the hell is that crap? Just as an experiment, I'd like to see someone in the Connecticut legislature or media ask Mr. "It's all about neutrality" Morris how he'd feel about amending the language to saying "the state does not necessarily condone homosexuality or heterosexuality." I wonder what he'd think about thus regarding heterosexuality, by his own logic, as a "lifestyle."

A good way to sum up is to think about this from CBS News:

[M]ost Americans do not support gay marriage: According to the latest CBS News poll on the topic, just one in three back full marriage rights for same-sex couples. Another 27 percent support civil unions, while 35 percent want no legal recognition at all.

Those numbers, however, have been moving, and not in the direction gay marriage opponents might like. In 2004, just 22 percent supported gay marriage – which means that there has been a nine-point increase in five years. And even the most optimistic gay marriage advocate would have been hard pressed, 15 years ago, to predict that 33 percent of Americans would be backing gay marriage by 2009.

In fact, the demographics suggest that support for gay marriage will only increase: Opposition comes largely from those 65 and older, just 18 percent of whom support gay marriage. Younger people – those 18 to 45 – are far more supportive, with 41 percent backing allowing same sex couples to marry.

And, of course, it should be pointed out that another way of expressing those poll numbers is that 60% of Americans favor legal recognition of, and rights for, same-sex couples, differing more on the symbolism of the word "marriage" than on the legal rights involved.

Over at JayV's place the other day, I commented in response to a post about the Iowa decision that

[t]he day will come when even needing to have this discussion will seem as odd as advocating laws against miscegenation does now. I don't know when that day will be and I'm old enough to think I might not live to see it - but it will come.

Not soon enough, but yes, it will come.

Footnote: This is the status of legal recognition of same-sex couples in the US today:

Nine states and the District of Columbia have some form of legal recognition.
- Connecticut, Massachusetts, Iowa, and Vermont recognize same-sex marriage.
- New Hampshire and New Jersey have civil unions. Moves are on in both state legislatures to move from civil unions to marriages; in New Hampshire the measure has passed the House while in New Jersey, Gov. Jon Corzine has said he will sign the bill now in the legislature if it passes.
- California, Oregon, Washington, and the District of Columbia have domestic partnerships.

New York recognizes same-sex marriages performed elsewhere. The District of Columbia has taken initial steps to do the same.

In addition to New Hampshire and New Jersey, at least seven additional states will this year consider relevant legislation. Those include New York, Maine, and Rhode Island.

On the other hand, 43 states, including some of the above, have laws against same-sex marriage and 29 states have constitutional amendments limiting marriage to "one man and one woman" or similar language: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Georgia, Florida, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. The California case, from the infamous Proposition Hate, is under challenge in state Supreme Court but that challenge is expected to fail.

Bad news!

Just over two weeks ago I cited with praise the decision by the DOJ to declassify and release three internal agency memos from 2005 that, in the words of Michael Isikoff of Newsweek,

will lay out, for the first time, details of the "enhanced" interrogation techniques approved by the Bush administration for use against "high value" Qaeda detainees.

Those memos were described as "ugly."

Unfortunately, I may have to take back that praise or at least put it in the refrigerator for a while, because Isikoff is now reporting that

[a] fierce internal battle within the White House over the disclosure of internal Justice Department interrogation memos is shaping up as a major test of the Obama administration's commitment to opening up government files about Bush-era counterterrorism policy. ...

U.S. intelligence officials, led by senior national-security aide John Brennan, [have] mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official....

Yes, that is the same John Brennan who flopped as nominee for the post of CIA director because he is, let's call it, soft on torture. He didn't go very far away, did he?

Brennan ... argued that release of the memos could embarrass foreign intelligence services who cooperated with the CIA, either by participating in overseas "extraordinary renditions" of high-level detainees or housing them in overseas "black site" prisons.

Which seems to me an argument in favor of the memos' release, but that's just not the way things work among "serious" people. At the same time, I wonder how serious they can be if they've never heard of the word "redact."

For the moment, Isikoff says, Brennan and CIA Director Leon Panetta have succeeded in

stall[ing] plans to declassify the memos even though White House counsel Gregory Craig had already signed off on Holder's recommendation that they should be disclosed, according to an official and another government source familiar with the debate. No final decision has been made, and it is likely Obama will have to resolve the matter....

This is the basic divide: If the memos are released, it will significantly increase the chances of there being some means of holding Bush administration officials "accountable" - I would prefer the term "liable" - for their crimes in the War on Terror^{(c)(reg.)(pat.pend.)} by making available previously-classified evidence. If they are not released, it would seriously hamper any effort in that regard.

Based on Obama's record to date, which has reflected an extreme reluctance to investigate or even directly address (much less prosecute) the crimes of the Shrub gang, I don't have a lot of hope that he is going to come down on the correct side of this.

I could be wrong; as I said, I don't have a lot of hope but I didn't say I had no hope. But even if I'm not wrong, that may not be the end. Remember that this all came up as the result of on on-going suit filed by the ACLU. Even if Obama declines to willingly declassify the memos, the possibility remains that the court could order him to do so, which would considerably raise the stakes for an administration that aggressively touts its commitment to "transparency."

Unhappy anniversary

I missed an important anniversay last week, but better late than never and all that.

Last Saturday, March 28, was the 30th anniversary of the meltdown at the Three Mile Island nuclear plant. As Democracy Now! described it,

[i]n the pre-dawn hours of March 28, 1979, the cooling system of Three Mile Island’s Unit Two reactor malfunctioned, causing temperatures inside to skyrocket. Without water to cool them, more than half of the reactor’s 36,000 nuclear fuel rods ruptured.

Lieutenant Governor William Scranton first appeared on local TV and told residents there was no need to evacuate but advised all citizens within ten miles of the plant to stay indoors with their windows closed. Pennsylvania Governor Richard Thornburgh then evacuated pregnant women and small children living within five miles of the plant. Some estimate that well over 100,000 people fled Harrisburg and the surrounding areas.

The breakdown, exacerbated by human error, lead to a situation that was much more serious than officialdom initially admitted. As the New York Times noted,

[w]hen the accident occurred, movie theaters nationwide were showing the movie "China Syndrome" about a nuclear plant meltdown. After engineers finally got inside the stricken Three Mile Island Unit 2 after the accident, they learned how closely reality had closed in on fiction.

With the initial loss of cooling water, portions of the 100 tons of radioactive uranium fuel quickly began to heat up. A chain reaction of multiple equipment failures and control room operators' mistakes followed. Before the damage was brought under control, nearly half of the reactor core with its fuel had melted down. A bubble of hydrogen gas exploded inside the reactor, and fears of another explosion gripped the Harrisburg area for several days.

It was very nearly a death blow to the nuclear power industry in the US. But while nuclear power was certainly was put into a coma, it didn't die and even today some people remain too willing to swill the swill the industry puts out about the accident. One such is Marc Levy of AP, who wrote last week that

[n]o one was seriously injured in the accident, in which a small amount of radiation was released into the air above the Susquehanna River island 12 miles south of Harrisburg. Studies of area residents have not conclusively linked higher rates of cancer to radiation exposure.

But as Harvey Wasserman has pointed out,

stack monitors were saturated and unusable, and the Nuclear Regulatory Commission later told Congress it did not know - and still does not know - how much radiation was released at Three Mile Island, or where it went. [Emphasis in original.]

He told Democracy Now! that

there’s just been two new studies released in Harrisburg this week. One indicates that as much as a hundred times more radiation escaped than the government and the industry have been willing to admit. And the other is that the statistics clearly show ongoing problems of cancer, leukemia, other radiation-related diseases.

(Video about those reports is available here.)

But that doesn't matter to the PR flacks of the industry.

"There's a lot of support for nuclear now, and most of that support is borne out of a concern for the desire to have emissions-free energy sources," said [nuclear industry economist Doug] Biden, who still advocates for power companies as the president of Electric Power Generation Association in Pennsylvania.

And the propaganda, driven in part by a bizarre notion that nuclear power is an "answer" to global warming, appears to be having an effect.

Policymakers in numerous states are warming to nuclear power, even in states where the facilities are banned. Nuclear reactors generate one-fifth of the nation's power. Some see nuclear as a stable, homegrown energy source in light of last year's oil price spikes. Others see it as a way to meet carbon-reduction goals.

Public interest is emerging, too: A Gallup Poll released in recent days shows 59 percent favor the use of nuclear power, the highest percentage since Gallup first asked the question in 1994. ...

In the last two years, 26 applications for new reactors been submitted to the Nuclear Regulatory Commission, which expects to issue a license no earlier than 2011. No such application was filed in the 28 years following the Three Mile Island accident.

Levy is misleading about nuclear's contribution: It provides about 20% of the US's electricity supply, not its power supply; the latter should include elements such as the heat supplied to homes and businesses by fossil fuels and solar panels as well as electricity.

More importantly, this push for more nukes is not happening without opposition. For one example, the original economic stimulus bill contained $50 billion for the nuclear power industry. It was stripped out in the Senate and attempts to reinsert it failed, all as the result of the efforts of a coalition of environmental groups and the work of some Congressional leaders. (Wasserman credited Nancy Pelosi and Harry Reid for their help; assuming that's true and not just political game-playing, good for them and credit where it's due.)

And yes, that is to the good because despite the claims and the hype and the desperation of some environmentalists, nuclear power is not the answer - or even an answer - to global warming. From Greenpeace:

The promotion of nuclear power as the answer to climate change is a dangerous diversion from the real solutions: a massive uptake of renewable energy and the adoption of energy efficiency are the only effective ways to combat climate change. They are available now; they are clean, cheap and have the added benefit of providing energy security.

Nuclear power belongs in the dustbin of history; it is a target for terrorists, and a source of nuclear weapons. The future can be nuclear free. Renewable energy is peaceful energy and it is available today. ...

Nuclear power has not suddenly become safer or cleaner. The legacy of the nuclear waste remains unsolved and accidents happen across the world daily. ...

The environmental, social, security and proliferation problems that have always plagued the nuclear industry continue to do so, despite over half a century of attempts to find solutions. We should not be conned into accepting one environmental threat on the premise that it will avert another when a future free of both nuclear and dangerous climate change is possible through the speedy deployment and development of renewable energy technologies and energy efficiency.

But perhaps the most telling point with regard to global warming is this:

Even if it were climate-friendly, nuclear power could do little or nothing in the fight against global warming. Nuclear power is used only to generate electricity. It represents a mere 16% of the world’s electricity. Electricity itself only accounts for approximately one third of greenhouse gases.

It's generally agreed by environmental scientists that a worldwide reduction in greenhouse gases on the order of 50% by 2050 is needed to head off the worst effects of global warming. That means that even if we were to more than sextuple the use of nuclear power in the next 40 years (even if that were possible, which it very likely isn't) so that all the world's electricity came from nuclear, we still would fall well short of what we need to do - even as we multiply the issues of the health effects of mining, milling, living near tailings piles, and the still-unsolved problem of waste disposal (as well as drastically driving up the price of uranium - already five times what it was a few years ago).

A "dangerous diversion" indeed.

Footnote: Another question about nuclear power is just how long the uranium for fuel will last. According to Steve Fetter, dean of the University of Maryland's School of Public Policy, known and suspected uranium resources are enough to supply nuclear power for roughly 230 years at today's rate of consumption. If we max out nuclear power build enough plants to more than sextuple their total power output, those resources then would last only about 40 years. Yes, we could build fewer in order to stretch the supplies, but that would only reduce the nukes' already-insufficient contribution to adequately cutting greenhouse gases.

No matter how we cut it, it doesn't work.

Poorly served

Updated It's there. It's always there, as an undercurrent, a tension, if you will, a leitmotif. No matter how often or how vigorously we thump ourselves on the back about how "generous" and "good-hearted" and "fair-minded" we are, no matter how many times we praise ourselves for our unique measure of understanding and compassion, no matter how loudly we proclaim our vaunted lack of class-consciousness, it is still there: our contempt for the poor, our Calvinist-slash-Puritan conviction that people are poor as a result of their own shortcomings of character and morals.

No, of course I am not claiming everyone feels that way. I am claiming what I said: It is a constant undercurrent in our society, in our political discourse, and in our social programs. We blame the poor for their poverty, regarding it as less a matter of economic circumstances than as - although we would rarely be this direct - a judgment of God.

I was a little slow to pick up on the latest example of this sneering condescension; it was my wife who spotted an AP article in our local major newspaper explaining how there are moves in at least eight states to require

recipients of food stamps, unemployment benefits or welfare to submit to random drug testing. ...

"Nobody's being forced into these assistance programs," said Craig Blair, a Republican in the West Virginia Legislature who has created a Web site ... that bears a bobble-headed likeness of himself advocating this position. "If so many jobs require random drug tests these days, why not these benefits?"

Blair's bill, which would cover food stamps, unemployment compensation, TANF, and WIC, is the most extreme but not the only example.

On Wednesday, the Kansas House of Representatives approved a measure mandating drug testing for the 14,000 or so people getting cash assistance from the state.... In February, the Oklahoma Senate unanimously passed a measure that would require drug testing as a condition of receiving TANF benefits, and similar bills have been introduced in Missouri and Hawaii. A Florida senator has proposed a bill linking unemployment compensation to drug testing, and a member of Minnesota's House of Representatives has a bill requiring drug tests of people who get public assistance under a state program there.

The Florida proposal is particularly creepy: It would require 10% of new applicants for unemployment benefits to be tested, 10% of those currently getting them to be tested (I'm assuming each year) - and the costs of the test would be paid for out of the benefits of the person tested.

Although, as the AP article notes, this doesn't seem to be a coordinated effort, Phillip Smith, the editor of Drug War Chronicle, notes that advocates are "using remarkably similar rhetoric" in their pitches, ones I say are based on fear and even more on resentment, suspicion, hostility, and bigotry toward the poor and the struggling.

Oh, but we're told, there's nothing punitive about these bills, nothing at all. Oh no, it's all about our abiding, deep, concern for the health and well-being of the poor and about their ability to get jobs because, y'know everybody does drug testing these days, just everybody, so what's the big deal. And besides, think of the children!

Instead, think of the bigotry! Think of the rancid, putrid, vomit-inducing ignorance, paranoia, and bullshit that drives this kind of - to engage in my own abuse of language - "thinking." Think of how it equates being poor, being on welfare, needing Food Stamps, hell, with being unemployed with using drugs, indeed with being a drug addict. Think of how it approaches those who need help as somehow socially inferior creatures who we must control, test, guide - for their own good, oh of course, for their own good. Because we are their betters and so we know what they need - which is a good hard smack on the head, the lazy, drug-addled bums.

This is nothing new, it's been there from the start, it's not even something we created, it's something we inherited. In a previous job I did some research on early laws in England intended to address poverty, laws that dated back to the mid-1500s. In those laws and in the various attempts to amend them in ways to make the laws "work" as intended - which almost universally failed to do so - I found one constant, underlying, assumption, which repeatedly undermined the efforts: the assumption that there is work enough for everybody. So unless you are too young, too old and feeble, or in some way physically incapacitated to a degree that makes work impossible, if you're not working it's because you're either a shiftless good-for-nothing or a criminal. If you can't support yourself or a family, it's your own fault and you need to be sent to the workhouse or to prison.

We supposedly have grown beyond that, we supposedly have become more understanding. But while that old social bigotry may not be as rampant or as obvious, it is still there. It's been revealed in the various canards about "welfare dependency" that even lead some legislators to illustrate a talk about welfare with pictures of public parks with signs saying "Don't Feed the Animals." It's been revealed in the basic tenet of supply side economics that the way to reduce unemployment is to "lower unemployment benefits to increase the incentive to get a job," which if it means anything, means that people - the "underclass," that is, the "others" - will work only if their condition is so bad that they have no choice; they must be forced to work.

And it's revealed in these bills. An editorial in the News-Herald of Panama City, Florida, which took a libertarian-type stance against that state's proposal, noted that "the idea is that publicly funded benefits should be earned through good behavior," that there is in the minds of the bill's supporters a "moral component" to receiving aid. But as the editorial goes on to ask

[d]oes drug testing apply just to direct cash payments? Are only those who are out of work or indigent required to be drug-free? Or should anyone who receives taxpayer largess first prove that they are clean?

Pell Grants, guaranteed student loans, farm subsidies and other forms of corporate welfare, Medicare, Medicaid, Social Security, the Earned Income Tax Credit, Bright Futures scholarships, federal bailout funds - the list of government goodies is vast and constantly growing.

For that matter, lawmakers are compensated with direct cash payments of tax dollars. Why not make them relieve themselves in a cup before each vote to prove they aren't conducting the people's business under the influence?

The latter being the question I asked my wife when she first pointed me to the article. "What's your problem?" I asked of the person who wasn't there who would object to that notion. "How can you be against it? Or do you approve of legislators debating and voting on laws while they're stoned?"

But of course that suggestion will not be acted on; as Jeremy Meyer, director of the master’s program in public policy at George Mason University in Arlington, Virginia, wrote in Politico on Sunday, this is

a classic demonstration of how America has always had one drug law for the rich and one for the poor.

Except for certain medical uses in certain states, he pointed out, marijuana, a central focus of the "concern," remains illegal virtually everywhere in the country even though we have just elected our third consecutive president who smoked it as a youth - all three of who support "imprisoning people for making the same choices [they] made."

He also said that "no one has suggested drug testing recipients of billions in bailout cash," which as I expect he knew is not precisely true: T. F. Thompson, contributor to the the Florida Times-Union, did so, as did John Wellington Ennis at the Huffington Post. Surely there were a number of others. But his real point remains valid: No "serious" commentator would dare propose such an outlandish idea, not without losing all claim to "seriousness." After all, the bailed-out bankers are not slackers, they are not lazy, they are the leaders! The producers! The creators! They are... superior! They are your betters and they judge you, not the other way around.

However, what is truly revealing about how much a part of our social fabric this prejudice against the poor is, what truly reveals just how effectively manipulative such grandstanding can be, what is ultimately most depressing, is the response. On the various news sites and in several polls, the comments are overwhelmingly in favor of these bills. One major theme was "I have to do it, everybody in private industry has to do it, so should they." (That actually isn't true; a majority of private employers and a majority of the Fortune 500 do, but that is nowhere near "all.") It's either if I'm treated crummy, so should you be, or if I don't mind being treated like a suspected criminal and having my privacy invaded, you can't, either.

The other was "those drug-swilling layabouts need to get clean before they get any of my tax dollars," which is the very idea that the most reactionary forces are pushing: an equation between drug use and poverty and the ancient distinction between the "deserving" and the "undeserving" poor - that "moral component" of which the News-Herald wrote - with only the most sympathetic included in the first group and the rest tossed into the latter pile like rubbish. The idea that there is a moral judgment involved in being rich or poor remains strong in our society and bills such as these and the support they gather from too many indoctrinated people who should know better are one outgrowth.

Still....

Still it must be said that there has been pushback. For one thing, the Clinton-era "end of welfare as we know it" allowed states to do drug testing as a condition of aid. When Michigan tried to take advantage of the change by implementing "random, suspicionless" drug testing, it was shot down in federal circuit court as a violation of the Fourth Amendment.*

More recently, a measure related to those now under consideration failed in Arizona earlier in the year. And in some perhaps surprising places, the idea isn't even under consideration.

Idaho legislators are not in the mix. ...

Tom Shanahan, Idaho Health and Welfare Public Relations: "I don't think people want to see anyone, especially families with children, going to bed hungry at night. Traditionally, Idahoans who may qualify for food stamps, a lot of them don't apply and we're hoping that people who do need food assistance are coming in and hopefully getting it."

Even in the states where the bills have been proposed, there is opposition and their futures are not assured. For example, Kansas City Star columnist Barb Shelly called that state's proposal "loopy," saying the bill "targets people not because they've committed crimes or neglected their children, but simply because they're poor." She quoted one House member as calling it "crazy and mean."

I think it's doubtful the state of Kansas would ever have money to test welfare recipients for drugs[, Shelly said].

So why did House members spend two hours debating a bill that will probably go nowhere?

And nowhere is exactly where it may be going. After passing the Kansas House handily, the bill apears to have stalled in the state Senate:

Senate President Steve Morris, R-Hugoton, said Friday that he wasn't sure what his chamber would do with the bill, which hasn't received review yet in his chamber.

"I guess we'll see what it looks like," Morris said.

Senate Minority Leader Anthony Hensley, D-Topeka, said he doesn't understand the rationale behind the bill. He also doesn't know whether the Senate will spend much time considering it.

"I think it's questionable whether we would," Hensley said.

In Florida, there was that News-Herald editorial, which asked:

[I]nstead of treating everyone as a potential suspect without probable cause and forcing them to prove their innocence in a lab, why not rely on old-fashioned due process?

In West Virginia, Craig Blair's state, a petition was circulated against the measure.

The letter is signed by representatives of groups ranging from the state AFL-CIO to the West Virginia Catholic Conference and the Mental Health Consumers Association.

The West Virginia Association of Alcoholism and Drug Abuse Counselors also registered its opposition.

In fact, Blair's bill didn't even make it out of committee. Although he hasn't given up on the idea, the method he's trying - getting a bill directly to the floor - has worked only rarely in the past and it appears to be dead at least for now.

More generally, Phillip Smith reports that

[r]andom drug testing of welfare recipients has also been rejected by a broad cross-section of organizations concerned with public health, welfare rights, and drug reform, including the American Public Health Association, National Association of Social Workers, Inc., National Association of Alcoholism and Drug Abuse Counselors, American College of Obstetricians and Gynecologists, National Council on Alcoholism and Drug Dependence, Association of Maternal and Child Health Programs, National Health Law Project, National Association on Alcohol, Drugs and Disability, Inc., National Advocates for Pregnant Women, National Black Women's Health Project, Legal Action Center, National Welfare Rights Union, Youth Law Center, Juvenile Law Center, and National Coalition for Child Protection Reform. ...

"Drug testing welfare recipients or people getting unemployment is a terribly misguided policy," said Hilary McQuie, western director for the Harm Reduction Coalition. "If you find people and cut them off the rolls, what's the end result? You have to look at the end result."

Which simply shows, I expect, how unserious Ms. McQuie is.

Smith gets the last word:

Legislators proposing random drug testing of welfare or unemployment recipients have a wide array of organizations opposing them, as well as common sense and common decency. But none of that has prevented equally pernicious legislation from passing in the past. These bills bear watching. [Emphasis added.]

Absolutely.

Footnote: On his unintentionally-hilarious website, Blair, who charges that opponents of his bill

are either enablers of bad (illegal) behavior, drug abusers or the most despicable of all...have a personal financial interest/gain in the demise of a certain segment of our society [emphasis as per original],

has a poll which asks "Which on describes your position? Do you favor random drug testing for those who receive welfare, food stamps, or unemployment benefits?" The choices are:

-Let's help people get off drugs and back to work!
-I'm interested, but I want more information.
-What are we waiting for? Suspend the rules and pass this bill!

Footnote to the Footnote: Besides wondering just who it is that Blair imagines has "a personal financial interest/gain in the demise of a certain segment of our society" and exactly how that "segment"'s "demise" would be profitable to anyone, I wonder why he doesn't consider the "personal financial interest/gain" on the part of the billion-dollar-a-year drug testing industry that pushes these kinds of measures? Or is that another example of the saying "some questions need only be asked?"

Footnote to everything above: When people like Blair, when people like those who posted comments about drug-sodden poor people who don't "deserve" any public assistance, picture such "undeserving" folks, what do they look like? Or is that, as I suspect it is, yet another question that need only be asked?

Updated to address a point I thought about addressing initially but didn't - but now it has come up comments, so I'll address it now.

In comments, Imee says "Blair does have a point when he asked, 'If so many jobs require random drug tests these days, why not these benefits?'"

I'll give two good reasons:

1. Bluntly, private companies do it for one reason and one reason only and it's the same reason they are increasingly demanding other sorts of personal information: because they can. It's an exercise in power, not in need-to-know.

I'm against such drug testing in private industry, too. You're hired to do a job; what you do in your off hours should be none of your employer's business. If there is evidence of drug use by an employee that affects their work performance, then I'd allow for some sort of drug testing of that person. (Note that this has nothing to do with offering drug counseling or treatment as a voluntary option to any employee that seeks it, with the understanding that seeking such counseling or treatment does not subject them to job-related drug testing lacking additional evidence of an impact on performance.)

2. Ignore my personal opinion for the moment. When the big moves for employment-related drug testing developed, there was a lot of opposition on the grounds of it being what it is: an invasion of privacy. A basic reason that courts allowed these intrusions was that private employers are not government and so are not constrained by the limits of the 4th Amendment, which requires cause. In the case of government jobs, testing was justified only for certain positions and then on the grounds that public safety was such an issue in those cases that it outweighed the right of privacy.

Which means that in reality, something with which he seems unfamiliar, Blair's argument comes down to this: "Private employers can do drug testing because they are not government. Because private employers do it, therefore, government can do it, too, even though government is government."

So no, Blair does not have a point. Except maybe on the top of his head.

*Paragraph edited for clarity.

Now we are six

And as clever as clever, or so we tell ourselves.

Last Thursday, of course, marked the sixth anniversary of the insane, murderous, maddening, invasion of Iraq. It was also a crappy week for me personally (and not only for reasons already mentioned), but I still feel a sense of failure for not having mentioned it at the right time. In one rather skewed way, I suppose that could be regarded as fitting, since pretty much everything about the war has been and still is a failure and wrong. Wrong logically, ethically, morally, politically, practically, and pretty much every other relevant -ly.

But wait, how can that be? How can that be true in the face of what we see and hear every single day in the media, every single time the word "Iraq" is breathed by any of our oh-so devoted officials and oh-so wise pundits, which is that We've won! Victory! Or, if you prefer the more modest version, Success! Who am I to blow against the wind? Where do I get off talking about "wrong?"

Well, the fact is that Iraq today remains what it has been pretty much since our invasion: a nation devastated by death and in a state of economic collapse. Start with the fact that the "official" unemployment rate of 18% soars to 28% if you include part-time workers who want full-time work, according to the Iraq Labour Force Analysis report released by the UN in January.

Among its findings: 28% of males ages 15 to 29 are unemployed, 17% of women have jobs, and most of the 450,000 Iraqis entering the job market this year won't find work "without a concerted effort to boost the private sector."

And that situation could easily get worse due to the way oil prices fell over the last year, as oil provides 90% of Iraq's income. As one direct result of lower oil prices, Iraqi Interior Minister Jawad Bolani has frozen the hiring of 66,000 new members of the security forces - and it also casts grave doubt on the ability of the government to carry though on a promise to find civilian employment for some 100,000 Sunni insurgents who laid down their arms.

Meanwhile, the International Committee of the Red Cross marked the anniversary of the invasion by releasing a statement saying that "millions of civilians are still facing hardship every day."

Even with improvements in the security situation[, the agency said in a separate report,] basic services such as water, electricity and medical care still cannot meet the needs of the population. Job opportunities are scarce and salaries are not enough to live on. For an average Iraqi earning around 70 US dollars per month, prices of goods are too high. In addition, such a person often has no access to health care. Many children, rather than go to school, try to support their families by walking between rows of cars to sell items such as cigarettes, fruit or sweets to drivers stuck in the capital's traffic jams.

On March 8, Oxfam released the results of a survey of Iraqi women which reflected and to some extent quantified that hard reality, revealing that a majority of those surveyed reported that

access to most services, including drinking water and electricity, was worse or the same in mid-2008 as it was in 2006 when levels of insecurity in Iraq were higher. A quarter of the women surveyed - 24 per cent - had no access to clean water. Nearly half of those who did have access to water - 48 per cent - said it wasn’t suitable for drinking.

And nearly 70% said access to water either had not improved or had even gotten worse over the past two years. In fact, even the Iraqi Environment Ministry admits that as of now, 36% of Baghdad's water supply is not safe to drink - and in a bad month that can rise to 90%.

Nearly half of those surveyed by Oxfam said their income had dropped since 2006 and another 30% said it was no better. (Amnesty International said a year ago that "more than four in 10 [Iraqis] live on less than a dollar a day.") Nearly half also said that access to quality healthcare had become more difficult. A third of those surveyed said they had electricity for three hours or less a day and two-thirds had it for no more than six hours a day; over 80% said that was either worse or no better than two years earlier.

Looking at the results, Oxfam International Executive Director Jeremy Hobbs declared that "a whole generation of Iraqis are at risk."

And there is not a great deal of conviction among Iraqis that this is going to change any time soon.

Many Iraqis are sceptical that local governments will deliver on their promises, despite improvements in security that have raised expectations of a better life[, reported the Institute for War & Peace Reporting on March 11].

Iraqis interviewed by IWPR in several provinces listed runaway unemployment, entrenched corruption and faltering reconstruction as the biggest challenges ahead. Having lived in survival mode for years, many said they were eager to see development - but had little hope that provincial leaders elected a month ago would deliver it.

Which is likely a wise expectation, since in its most recent Corruption Perceptions Index, Transparency International, a group focused on government and economic corruption, lists Iraq as being essentially tied with Burma as the second most corrupt nation on Earth, exceeded only by Somalia.

Yet despite all that, the trumpets are now blaring across the media the single, drum-it-into-your-head meme that We've won! Victory! What is the basis of this success? What is it that outweighs the misery, justifies that carnage, overrules the hunger? Why, it's that violence is down! That is the single metric employed. Not even that violence has stopped or peace has come or even the cold peace of "security." Just less violence.

But, truth be told, yes, violence is down, significantly. As Dahr Jamail, author of Beyond the Green Zone, wrote in February,

[m]ost Iraqis I talked with on the eve of the first provincial elections being held after 2005 told me "security is better." ...

Indeed, security is "better," compared to my last trip here, when the number of attacks per month against the occupation forces and Iraqi collaborators used to be around 6,000. Today, we barely have one American soldier being killed every other day and only a score injured weekly. Casualties among Iraqi security forces are just ten times that number.

Such good news! We've won! Victory! But then, of course, he had to go and spoil it all:

But yes, one could say security is better if one is clear that it is better in comparison not to downtown Houston but to Fallujah 2004.

Compared to days of multiple car bomb explosions, Baghdad today is better.

Which is a pretty damn low bar. As I've often said in various contexts, skin cancer is better than lung cancer - but that doesn't mean that skin cancer is a good thing. And it certainly isn't a measure of good health any more than "less violence" is a measure of "success," particularly when you include the price tag of that "success." Dahr Jamail again:

[T]he capital city of the country is essentially in lock-down and prevailing conditions are indicative of a police state. ... [T]he government is exercising rigid and repressive controls over [the] social ... economic ... and political life of the citizenry.

By definition, a police state exhibits elements of totalitarianism and social control, and in today's Iraq, we have plenty examples of both.

Baghdad is a city of ever-present and everywhere-present troops with guns, but all of who still can't dispel the "omnipresent" fear that "anywhere, anytime, a bomb could be detonated." And it is a city, perhaps most particularly, of walls. All around, there are the walls. Some of them 20 feet high.

Baghdad's walls are everywhere, turning a riverside capital of leafy neighborhoods and palm-lined boulevards where Shiites and Sunnis once mingled into a city of shadows separating the two Muslim sects.

The walls block access to schools, mosques, churches, hotels, homes, markets and even entire neighborhoods - almost anything that could be attacked. For many Iraqis, they have become the iconic symbol of the war. ...

Indeed, new walls are still going up.... They could well be around for years to come, enforcing Iraq's fragile peace and enshrining the capital's sectarian divisions.

Psychic walls enforced by physical walls.

Outside Baghdad, the physical walls are not present but the psychic walls are. Iraq remains less a single nation than a collection of three regions: Baghdad and the south dominated by Shiites, the center and west by Sunnis, the north by Kurds. The much-promised, much-predicted "political reconciliation" remains promised and predicted rather than practiced. The signs of underlying tension remain. In a long article in the New York Review of Books last fall, Peter Galbraith of the Center for Arms Control ran through the overlapping conflicts, but this is a summary:

1. The central government of Prime Minister Nouri al-Maliki pretends to be some sort of Shiite-Sunni-Kurdish coalition but in fact is dominated by a Shiite coalition of religious parties, including Maliki's own Dawa party, committed to making Iraq into a Shiite Islamic state.

2. Sunnis, who clearly fear that possibility and still feel they're not getting their due in governance, are backing the Sunni militia known as the Awakening, which arose - with ample US support in guns and cash - when the Sunnis started to regard the foreign insurgents, the ones who adopted the name "al-Qaeda in Iraq," as a bigger threat than the US. That militia, lead by Baathists, now numbers some 100,000 and is potentially a strong force in its own right - which worries the Shiites, who see it as a threat to their own control.

3. Shiites also have their own internal divisions to worry about: Although Moqtada al-Sadr's rivals "outfoxed" him by using him to gain control of parliament, then dumping him, before Maliki sent Iraqi troops to oust Sadr's Mahdi Army from much of Basra and to make inroads in Sadr City, "al-Sadr has not been defeated and has significant residual support." (That support was demonstrated last Friday when "thousands" of his followers turned out in Baghdad to mark the anniversary of the invasion by demanding an end to the US occupation. A bigger test will come in a couple of weeks; there has been a call for a bigger demonstration on April 9, the anniversary of the fall of Saddam's regime.)

4. Meanwhile the Kurds, who had something of an alliance of convenience with the Shiites, are facing a central government that appears determined to marginalize them, "contain [them] politically and geographically." In early September, Maliki sent troops into a Kurdish town, deliberately picking a fight with the peshmerga, the Kurdish militia. That confrontation was defused, but when Iraq's defense minister proposed acquiring F-16s for the Iraqi air force, the Kurdish deputy speaker of the parliament protested, expressing fear that the planes' most likely target would be Kurdistan.

It was very likely that suspicion about - fear of - the intentions of the Shiite-lead central government that lead Nechirvan Barzani, prime minister of the Kurdish regional government, to say last month that

[t]he United States must resolve policy snags between Baghdad and the autonomous Kurdish region in northern Iraq before any troop pullout,

even suggesting that violence could erupt in the region otherwise. The US military is concerned enough about the rising tension that it has been acting as a mediator and there are plans to "flood the zone" with US troops if things start to flare up between the peshmerga and the Shiite-dominated Iraqi army.

Another recent sign of the continuing divisions came with the visit to Iraq by Iranian politician and former president Akbar Hashemi Rafsanjani.

[W]hile Rafsanjani and other Iranian leaders enjoy close ties with senior Shia and Kurdish officials[, IWPR reported last week], many Sunni Arabs accuse Tehran of meddling in Iraqi affairs and instigating the sectarian violence which crippled the country after the US-led invasion in 2003. ...

Iraqi vice-president Tariq al-Hashemi, a prominent Sunni, snubbed Rafsanjani, refusing to attend his welcoming ceremony.

Hashemi’s Iraqi Islamic Party issued a statement saying Rafsanjani was “unwelcome” while the German news agency DPA reported that protesters in the largely Sunni province of Anbar called Rafsanjani a “killer of Iraqis”. ...

Usama al-Nujaifi, a Sunni member of parliament from the secular Iraqiya coalition, opposed Rafsanjani’s visit and said the red-carpet welcome was “too much” for the controversial figure. ...

Saleh al-Mutlaq, head of the Sunni-led National Dialogue Front, said the Iraqi government should break off relations with Iran until it becomes more democratic.

Okay, so let's sum up: We have poverty, unemployment, lack of clean water, shortages of electricity, inadequate health care, continuing ethnic and religious divisions both spiritual and physical with a constant undercurrent of threat of renewed civil war - not to mention that, as ICRC President Jakob Kellenberger noted, "indiscriminate attacks continue to leave dozens of people killed or injured on a daily basis," something the daily news can confirm.

Quoting Dahr Jamail one last time:

As a succinct summary after a week's stay, I have this to offer: The situation in Iraq has not changed except to worsen. What the passage of four years of occupation during my absence has brought to the people of Iraq is greater displacement, more economic degradation, extreme desperation, untreatable sickness and a near-total loss of hope.

That, friends, is what is being sold to us as "success" simply and solely because Baghdad 2009, while still one of the most dangerous places in the world, is not Fallujah 2004. A damn low bar, indeed.

Giving the devil his due

Maybe not the devil, maybe more of an imp, but still....

I certainly went after the Obama administration for its - the adjective seems apt here - tortured defenses of presidential power, secrecy, rendition, and denial of rights to "detainees." There is very little sign of "change" in these matters. In fact, I may not have gone far enough, since during his confirmation hearings to be head of the CIA, Leon Panetta said the agency

could seek permission to use interrogation methods more aggressive than the limited menu that President Obama authorized under new rules issued last month. ...

Mr. Panetta said that in extreme cases, if interrogators were unable to extract critical information from a terrorism suspect, he would seek White House approval for the C.I.A. to use methods that would go beyond those permitted under the new rules.

In other words, we won't torture - unless we don't get what we want. We'll stick to the new rules - except when we don't. Things have changed - except where they haven't.

(Nor does it say much for the New! Improved! foreign policy that during that same appearance Panetta agreed with Sen. Evan "Don't You Wish I was My Dad" Bayh that there is "no question" but that Iran is seeking a nuclear weapons capability even though Director of National Intelligence Dennis Blair told the Senate Armed Services Committee a couple of weeks ago that

[t]he overall situation - and the intelligence community agrees on this - [is] that Iran has not decided to press forward ... to have a nuclear weapon on top of a ballistic missile....)

Still, it's important that credit be given where it's due and AttGen Eric Holder deserves praise for two weeks ago releasing those nine DOJ memos that showed how law and logic were twisted in the service of justifying torture.

More to the point here, Michael Isikoff of Newsweek reports that

[o]ver objections from the U.S. intelligence community, the White House is moving to declassify - and publicly release - three internal memos that will lay out, for the first time, details of the "enhanced" interrogation techniques approved by the Bush administration for use against "high value" Qaeda detainees. The memos, written by Justice Department lawyers in May 2005, provide the legal rationale for waterboarding, head slapping and other rough tactics used by the CIA. One senior Obama official, who like others interviewed for this story requested anonymity because of the issue's sensitivity, said the memos were "ugly"....

According to the administration official, ex-CIA director Michael Hayden was "furious" about the prospect of disclosure and tried to intervene directly with Obama officials. But the White House has sided with Holder.

Good for them, dammit, good for them.

An important point here, one noted by Isikoff and by Glenn Greenwald in his own comment on the news, is that this disclosure comes as the result of a years-long legal battle waged by the ACLU and the decision was made in the face of a court deadline in a FOIA suit brought by the group. (The ACLU appears to have issued no statement on the news, which is logical: They very likely want to wait until it actually happens or at least until a definite decision to declassify is announced by the White House.) Again, credit where it is due, yes? Even - perhaps especially - if it's not an exception.

Passing through

Things have been a little rough of late, thus my absence: My father-in-law went home on hospice last week and died on Friday. The wake was today, the funeral is tomorrow. So I've been a bit distracted with family stuff and providing support to my wife.

I'll be back in the saddle in a day or two.

Ack! I'm never going to get off this topic!

Damn you, Pruning Shears! You made me aware of one I missed!

The info comes from Saturday's San Francisco Chronicle, which reports that the Obama administration is defending John Yoo,

arguing that a prisoner formerly held as an enemy combatant had no right to sue Yoo for writing legal memos that allegedly led to his detention and torture.

"We're not saying we condone torture," department attorney Mary Mason said at a hearing on the government's request to dismiss a lawsuit filed by Jose Padilla. But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said.

"You're not saying that if high public officials commit clearly illegal acts, a citizen subject to those acts has no remedy in this court?" asked U.S. District Judge Jeffrey White.

Not unless Congress has expressly authorized a lawsuit, Mason replied. She cited the argument the Justice Department made in Yoo's case last year, with President George W. Bush still in office, that courts should not interfere in executive decision-making, especially in wartime.

In other words, it was the Bush administration's position and is now the Obama administration's position that if the Executive Branch fails to prosecute Executive Branch crimes, the people affected by those crimes have no recourse unless Congress, having somehow anticipated the situation, specifically and in so many words allowed for such a suit.

But they're not condoning torture, oh no. They're just covering the asses of those who justified it.

Footnote to all that

I forgot one.

The Obama administration, siding with the Bush White House, contended [on February 20] that detainees in Afghanistan have no constitutional rights.

In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. ...

[F]our Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system. ...

"They've now embraced the Bush policy that you can create prisons outside the law," said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.

The Obama administration says Bagram is different from Gitmo and thus the prisoners at Bagram are not covered by last summer's Supreme Court ruling giving prisoners at Gitmo appeal rights because it's in a war zone and the prisoners are held as part of a military action.

But in that case, instead of being classified as so-called "enemy combatants," they should be regarded either as either POWs or civilian detainees with the protections of the Geneva Accords - among which is being free of inhumane treatment, rather than being beaten and tortured in a facility that is "worse than Guantánamo" and one which Obama is prepared to continue to shield from scrutiny.

I told you so, Chapter Six

Just last week, at the urging of the Obama team, the Supreme Court declared moot the case of Ali Saleh Kahlah al-Marri.

Al-Marri is a citizen of Qatar who was residing lawfully in the United States under a student visa when he was grabbed, labeled an "enemy combatant" and a sleeper agent for al-Qaeda, and locked up in solitary for five years, without charges, in a Navy brig. In 2008 the Fourth Circuit Court of Appeals, the oppressor's darling, threw out a suit challenging his confinement on Constitutional grounds, ruling everything was just dandy, all properly Constitutional and stuff.

In December, the Supreme Court agreed to hear his appeal. On February 27, he was indicted by a federal grand jury on two charges related to terrorism, after which the Obama DOJ asked SCOTUS to declare his appeal moot. On Friday, the Court did so, thus enabling the government to avoid a decision that could have tossed out the entire concept of the authority of a president to, on their own say-so, imprison people without charge, without access to attorneys, without due process, and potentially without end.

If that sounds at all familiar, it's because it's exactly what was done with/to Jose Padilla. He, too, was seized as an "enemy combatant." He, too, was held in solitary for years. He, too, filed suit (or rather, others did it on his behalf). He, too, lost at the Fourth Circuit Appeals Court; he, too, appealed to the Supreme Court; and he, too, was moved into the regular criminal justice system at essentially the last minute and had his suit declared moot. What did someone call it the other day? "A case of déjà moo - I've seen this bullshit before."

One difference between al-Marri's case and Padilla's is that this time the Court vacated the Fourth Circuit ruling, meaning the case sets no judicial precedent that other courts can look to for guidance. However, since the Padilla ruling was not vacated and so is still precedent, that is very (very) little consolation. The government knows it:

While the government did not defend its power to detain Mr. Marri at present, it left open the possibility that he or others might be subject to military detention as enemy combatants in the future. “Any future detention - were that hypothetical possibility ever to occur - would require new consideration under then-existing circumstances and procedure,” the Justice Department told the court in a brief filed Wednesday.

That is, the administration - the Obama administration - is openly declaring that it still regards itself as free to continue to use the legal fiction of "unlawful enemy combatant" to confine whoever it chooses, whenever and however. As Glenn Greenwald noted,

Federal courts are excruciatingly slow. Even when someone's liberty is being unjustly deprived ... federal judges take their sweet time in issuing rulings: often many, many months - sometimes longer. ... Thus, it's virtually certain that it will take a case of this sort several years to wind its way through the various stages of judicial review, all while the detainee sits in prison with no trial.

This time factor alone vests the U.S. Government with the power to imprison legal residents or even U.S. citizens with no trial for at least a period of several years, as the detainee's constitutional challenge to the process-less imprisonment slowly winds it way through the federal courts. Before the U.S. Supreme Court can rule on whether that is constitutional, the Government can then finally bring charges against (or simply release) the detainee, and then argue to the Court (apparently, with success) that there is no reason for the Court to rule on the constitutionality of those actions because the case is now "moot." That's what just happened in the Al-Marri case (just like in the Padilla case), and there's no reason why it can't continue to happen that way. [Emphasis in original.]

I've thought for some time that not only judges, but the entire court system seems to think that time stops, that the whole world literally comes to a halt, as they ponder their decisions and they believe that the length of time they take to get and make rulings has no impact on the lives of the real people those rulings are about.

But for that very same reason, I can't concur with Greenwald's statement in his otherwise excellent piece (one echoed by Jonathan Turley) that "the Obama administration absolutely did the right thing in indicting Al-Marri." Not when that indictment served as a means to dodge a decision on the constitutionality of his imprisonment these past years.

I'm not saying he should be freed; if the DOJ honestly believes he is guilty of serious crimes, by all means go ahead and charge him. But I'd say hold off on filing them. Continue to hold him but in a civilian prison under improved conditions (since under the alternative of indictment he would still be imprisoned, this does not damage his situation) and don't file charges at least until after the oral arguments on his suit (which had been set for April) - during which you say that upon re-consideration, the White House finds it cannot continue to support the position that the president has the power to detain so-called "enemy combatants" outside of the criminal justice system. That is, urge the Court to make a ruling and to make it in favor of al-Marri.

But the fact is the Obama administration did not do that and would not do that. The Obama team wanted the case mooted, wanted to avoid a judgment which they feared they would lose. How do I know that? There is a legal principle called "capable of repetition, yet evading review" which creates an exception to mooting a case.

Basically, it means that even if a given controversy becomes moot (resolved) before the appeal is heard, the case will continue if the controversy is one that is "capable of repetition", meaning that the same situation can occur again. ...

The second part ("evading review") applies where the mootness is controlled entirely by one party. Here, the government made the case moot by voluntarily changing its own behavior. And the government has sole control over whether it goes back to it the earlier behavior or not.

(Link via Glenn Greenwald.)

The case being described there is actually a January 2007 motion by Bush administration urging that all lawsuits related to illegal wiretapping be dropped, but it fits here just as snugly. And in this case,

[t]he government did take pains to deny that it was manipulating the legal system, an accusation made against the Bush administration when it moved Jose Padilla from military detention to criminal court in 2007.

“The government’s agreement here that vacatur of the decision below would be appropriate,” the brief said, “conclusively demonstrates that the government is not attempting to preserve its victory while evading review.”

That is, the government was at pains to avoid raising that exception to mootness. And again, since the Fourth Circuit's Padilla decision was not vacated, vacating al-Marri doesn't seem to impact the government's legal position; it certainly doesn't impact its claims to authority to imprison "enemy combatants."

Which is why Emily Berman of the Brennan Center for Justice at NYU School of Law is going to be disappointed:

We applaud the Supreme Court for vacating a decision that accepted the extraordinary claim that the president has free-wheeling authority to detain indefinitely people living in the United States.... But we are still disappointed that the court did not take this opportunity to firmly clarify the limits of detention power. It's up to President Obama now to affirmatively renounce the domestic detention power claimed by his predecessor....

I'm sorry, Ms. Berman, but that's something it certainly appears he has no intention of doing.

I told you so, Chapter Five

On February 25, Obama's Justice Department defended the constitutionality of the law providing retroactive immunity to the telcoms that engaged in illegal wiretapping in conjunction with the Bush administration. It comes in response to a suit filed by the Electronic Frontier Foundation arguing the telcom immunity law passed by Congress was unconstitutional.

The language used by the Obama team in its filing was chillingly familiar:

"Electronic communication service providers play an important role in assisting intelligence officials in national security activities. Indeed, the intelligence community cannot obtain the intelligence it needs without assistance from these companies," the Administration's 18-page brief says.

"The committee was concerned that, without retroactive immunity, the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation," it adds.

It continues: "The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation," directly citing the 2008 findings of the Senate Select Committee on Intelligence Report.

Those are precisely the same arguments, almost even the same words, that the Shrub gang used in trying to get the suit dismissed in order to cover up its criminality, a cover-up the Obama administration seems more than ready to continue.

There are also a couple of arguments that should leave people with common sense just blinking in disbelief:

The constitutionality of the law is defended on the grounds that the attorney general is only carrying out powers specifically given to him by Congress.

So it's okay to actively seek to conceal government criminality if Congress says to? What?

"Congress provided the Attorney General an intelligible principle by enumerating specific and narrow circumstances in Section 802 [of the Patriot Act] that control whether and when he may make a certification," it continues. "The Act permits the Attorney General to certify facts to the court only when there is a pending civil action in which a person is alleged to have 'provid[ed] assistance to an element of the intelligence community.'"

Which means, if it means anything, that the law covers those occasions the law is intended to cover and does not cover those occasions it is not intended to cover - and that very "narrowness" makes it valid. I can only assume that if Congress passed a law giving the AttGen power to imprison people without trial but limited it to people who had publicly protested US foreign policy it would also be regarded as passing Constitutional muster by this crowd.

This case, like the Al-Haramain one, is being heard by District Court Judge Vaughn Walker.