Friday, December 08, 2006

Saddam Was not a Threat - And Not Because of WMD

Senator Gordon Smith (R. Or) is late to the game in saying the Iraq war is a disaster. But at least he finally did. Unfortunately he continues to say that the war would have been justified if Saddam had possessed WMD's. Speaking of Bush, Smith said

"He is not guilty of perfidy, but I do believe he is guilty of believing bad intelligence and giving us the same. . . I can't tell you how devastated I was to learn that in fact we were not going to find weapons of mass destruction."

Many commenters, such as Josh Marshall, and politicians, such as Sen. Smith, continue, to this day, to say that if there had been WMD the war would have justified because Sadaam would have been a threat. As long as they continue to think that, they will never understand how truly unjustified this war was, putting aside of course that it was always an unwinnable ahistorical tragedy.

Even if Saddam had chemical weapons in 2003 (nuclear was never even a remote possibility) he was not a threat to us. To be a threat, a country must have more than weapons that can be used to attack another country. It must have a reason and commitment to begin a war. Many countries, such as Russia, China, France and India, which have large conventional forces as well as chemical, biological and radiological weapons are not considered by us to be a threat. For that matter, Saddam had and used chemical artillery shells throughout the 1980s and was not considered by us to be a threat at that time.

Since his ascent to power in the mid Seventies, Saddam had never threatened us or any of our interests. Prior to the Gulf War he had never attacked us or threatened to attack us and was not allied with any countries or groups that sought to attack us. Yes, he was a bit player in fomenting conflict between the Palestinian and Israelis, but his financial support for the Palestinians was a fraction of that provided by the Saudis. From 1980 to 1990 he was a threat to two of his neighbors - Iran and Kuwait. But after having waged and lost two disastrous wars his dreams of a greater Iraq came to an end in 1991. After the Gulf War his saber had stopped rattling and frankly, was growing rusty in its scabbard. His military was a wreck, his chemical weapons had been dismantled, and with the Kurds controlling Northern Iraq and U.S. over-flights in the North and South he was a paper kitten. At that point he was interested in only two things - lifting of the sanctions and the preservation of his power.

And yet this Administration convinced the American people that he was not only a threat to the United States, but our foremost threat in the world. A petty despot with no military power who had fought a war against Iraq with our support and who was viscerally opposed to Al Qaeda, the Taliban and all other radical Islamic fundamentalists was made out to be Hirohito, Stalin, and Hitler combined. A threat to our very nationhood that could not be allowed to stand a minute more. Not since the Germans justified their invasion of Poland on totally fabricated claims of Polish cross border incursions has a more duplicitous justification for war been foisted on a country.

Friday, October 13, 2006

Bush Doesn't Remember His Oath Of Office

How many times have you heard President Bush say that his most important job or his first responsibility is to protect the American people. Another variant is when Bush says it is his "most solemn duty to protect the American people." It sounds good and it certainly is important but it is NOT his first priority and is NOT his most solemn duty.

When Bush was sworn into office his duty, his solemn duty, was told to him by the Chief Justice of the United States and he repeated it as he took the oath -

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

That's right - execute the Office of the President and "preserve, protect and defend the Constitution." This oath is contained in Article II, section 1. (There is a more general requirement in Article VI for all other civilian and military personnel to take an "oath or affirmation to support the Constitution.")

In order to preserve, protect and defend the Constitution one must know what exactly the purposes, goals and objectives of the Constitution are. They are succinctly set forth in the Preamble -

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The first two purposes of the Constitution are to "form a more perfect union" and "establish justice." Next, the Constitution seeks to "insure domestic tranquility" and "provide for the common defense." Lastly, the Constitution was created to "promote the general welfare" and "secure the blessings of liberty" for ourselves and future generations.

Yes, national defense is part of it but only within the context of establishing justice and ensuring the blessings of liberty for ourselves and our children. If our founders had thought personal security was the paramount concern there never would have been a revolution and the United States would never have been born. But that is not how they thought. In fact they believed that personal safety was secondary to liberty. Perhaps it was said best by Patrick Henry on March 23, 1775 who, when addressing the Virginia House of Burgesses, concluded by saying "give me liberty or give me death."

The sentiment embodied in those words, which were a call to war against Britain, is the same sentiment that lead the Founders twelve years later to require the President and all other Federal officials to swear an oath to the Constitution. It was the recognition that liberty - freedom from the tyranny of government - is more important than life itself and is worth fighting for. The Founders recognized that only by strict adherence to the principles embodied in the Constitution, maintenance of the checks and balances in the government created by the Constitution, and vigilant oversight to ensure that the government did not breach the personal freedoms guaranteed by the Constitution would liberty be preserved and tyranny kept at bay.

There is profound significance in the fact that the President is sworn to preserve, protect and defend the Constitution rather than the State, its geographic territory, or its inhabitants. Of course the physical security of our nation and its people is important and must be safeguarded, but the people and the country cannot be protected at the expense of protecting the principles of the Constitution itself.

So when you hear Bush or his apologists say that you will have no freedoms if you are dead, remember that our forefathers thought there were worse things than death. They created a Constitution designed first and foremost to protect our liberty - to protect us from tyranny. To ensure that the President and all other persons entrusted with the solemn privelage of exercising the powers of the government, each of those persons must take an oath to preserve, protect and defend that Constitution.

That is the President's most solemn duty - and it is a duty he has payed scant regard to during his term of office. He has imprisoned people without the most basic rights afforded in the Constitution. He has engaged in unlawful searches and seizures in violation of the Constitution. And he has pushed through the Congress a law that abolishes the Writ of Habeas Corpus in direct contradiction to the clear language of the Constitution.

President Bush would do well to reread his Oath of Office and read the Constitution.

Thursday, September 14, 2006

Swiftboat Victim - A Marine's Story

When the swiftboaters attack a public servant their lies and slander attack other heroes as well. This is the story of of one of those other heroes who was also a swiftboat victim. Many of you probably remember the 2004 anti-Kerry advertisement featuring a veteran throwing his medals over a fence. ( You can see it here, click on the piece entitled "Medals".) The soldier featured in the advertisement is Frank D. Norton, Cpl. U.S.M.C., who was wounded twice, received the Bronze Star for saving his unit from annihilation, and was permanently disabled. He is my brother and this is his story.

The swiftboaters say that Frank "turned his back on his brothers." Nothing could be further from the truth. He is a true American hero who voluntarily shed his blood for his country, grieved at having left his men behind, and finally did the only thing he could to help them - try to bring an end to the war so that all could come home.

Frank enlisted in the Corps right out of High School. It was a three year enlistment in the Summer of 1965, just as the war was getting into high gear. The Corps had become a family tradition. Our Father and Mother both served as Marine Corps officers in WWII. Mom served in Washington during the war and was immensely proud of her service. She was discharged as a Captain, outranking my father much to her glee, and is interred in Arlington. Dad served in the Pacific and China. Like most veterans of his generation he did not talk about the war or his experiences while we were growing up. It wasn't until decades later, near the end of his life, that he opened up about his wartime experiences, especially on Iwo Jima, and I came to realize the profound impact they had on him.

Frank entered the Corps on a delayed enlistment before graduating and was off to Parris Island in early Summer for Boot Camp. He then received training as a mortar man.

After serving stateside a while he was sent on the Med Cruise. For those of you who are not familiar with the cruise, the Corps maintained a presence in the Mediterranean during the Cold War as part of a large U.S. military presence in Europe. The Med Cruise was months of tedious steaming up and down the European and African coasts of the Mediterranean Sea in a hot crowded transport ship, punctuated by periodic training exercises and a few port calls. The only notable event on that trip was that one of their amphibious assault exercises in North Africa was filmed as part of a John Lennon movie, "How I Won The War." Also, he was snookered by a French sailor who traded a butane lighter for Frank's Zippo. Disposable butane lighters had not yet come to the States and it wasn't till a few weeks later that Frank realized he had been had.

Not long after Frank returned from the cruise he was sent to Camp Pendleton to prepare for shipment to Nam. After the training was over and one final leave he shipped out in June, 1967. His unit in Nam was Gulf Co, 2d Bn., 1st Marines, which was initially stationed near Hill 55 about twelve miles South of Danang. Frank was assigned to a line squad and was no longer a mortar man. In August, after barely two months in country, he was wounded for the first time. While on patrol the grunt ahead of him tripped a booby trap and Frank was hit with several pieces of shrapnel in the neck and arms. Compared to what would happen months later the injuries were minor and he returned to duty in a week.

In October the Battalion moved to Quang Tri where they stayed until December, at which time they moved to Con Thien. Many of you may be familiar with the lengthy siege of Khe San but few remember the equally violent struggle for control of the country East of there at Con Thien. The Marines held that ground for month after month while subject to constant bombardment, perimeter attacks and patrol ambushes.

Con Thien was referred to as the "Hill of Angels" by the missionaries and by other names, such as "the meat grinder," by others who were there because of the many who died during the battle. It was at the end of the so-called "McNamara Line" which stretched along the DMZ from the ocean to the Laotian border and was considered vital to preventing unrestricted NVA movement to the South. The base was manned by a battalion of Marines, which was usually rotated with a new unit on a monthly basis because of the horrific conditions to which they were subjected. The base was under constant bombardment, averaging about 200 rounds a day. During one especially violent period between September 19th and 27th they received 3000 rounds. When not on patrol, the Marines lived under ground in a hellish existence of mud, noise, terror and death.

Because of heavy activity that culminated in the Tet offensive of 1968, 2d Battalion was not rotated like its predecessors and was still there in March. The Battalion Commander, having grown tired of his patrols being ambushed by the NVA, decided that it was time to turn the tables on the enemy. He came up with the idea of "Killer Squads." The plan was to send out a full Company which would set up and hold a perimeter for a while. Then, most of the Company would head back to base leaving the concealed Killer Squad to spend the night and hopefully ambush the NVA.

Frank was the squad leader of one killer squad and a second squad was selected from another company. Because each squad was at half of its normal strength, seven instead of 15 members, every man would be trained on every job. All needed to be able to operate the machine gun and LAW, spot artillery, and tend to the wounded in the event any one of them was killed.

Before the plan was made operational two squads were sent out by themselves on a training mission. This was very unusual. Normally the Marines never left the base in less than company strength. But on March 4th, 1968 both squads, operating as a single unit, left the base accompanied by the Company XO, Lt. Cummings, and his radio man.

They arrived at a spot within view of an abandoned village where they set up a 360 degree perimeter. Then, unexpectedly, on Frank’s side of the perimeter NVA troops were spotted behind the next tree line. Thirty yards separated that side of the Marine perimeter and the NVA with an abandoned rice paddy in between. The Marines didn't know there was a Company of NVA in the trees. And the NVA, who were familiar with the Marines’ tactics, could not have had any idea that they were battling only 16 Marines.

Frank yelled “open up and move out” as the NVA began turning a machine gun around to fire in their direction. He ran to a lone tree in the open area, took cover and began firing. There were Marines in a line on both sides of him firing from positions about fifteen yards apart.

As all hell broke loose the machine gunner was the first to get hit. Then Frank began to see, hear and feel the tree being chewed up around him - and then, he was hit. The impact of the bullet flipped him onto his back. The bullet did cruel work, shattering his femur and mangling his intestines before exiting his butt. The Marine to his left, who was in a small depression, started to move towards Frank’s position to render aid. Frank ordered him to stay where he was and keep firing.

LCpl Vernon Pendergrass was on Frank’s right firing the M-79 Grenade Launcher. It was a weapon that he had recently begun to train on to replace a Marine who was a real short timer. Pendergrass got off a few rounds before he was killed.

By this time the Marine perimeter had collapsed so that all of them could engage the enemy. One of the Marines who had been on the other side ran up to Frank to render aid was ordered to get back. Frank knew his position was exposed and a field dressing wouldn’t do him much good.

A fire started in the empty field and the NVA began to use the smoke for cover to advance on the Marines. Things were looking grim until the wind changed and the NVA were forced to retreat.

Lt. Cummings ran to Frank's position, grabbed his M-16 and began firing. As Frank yelled for him to get down the Lieutenant took a round in the chest that flipped him in a somersault. Frank thought he was dead for sure but then, amazingly, the Lieutenant got up a few minutes later, handed Frank the weapon, and ran back. The bullet had hit his chest but somehow not penetrated anything vital.

Frank and most of the Marines were lucky that day. His Bronze Star Commendation said that if he had not ordered the attack those 16 Marines would probably have been overwhelmed by the vastly superior numerical force of the enemy. The wind blew in their favor. And most importantly, the Company was able to reinforce them in time and repel the enemy. Luck is relative of course. Marines were wounded and killed and Frank lost the only member of his squad to die.

It was three hours before Frank was to Medivaced to Dong Ha for initial surgery. From there he was sent to Phu Bai for more surgery and finally to Danang, where he stayed a week, undergoing even more treatment. When he was stable enough he was flown to Japan, where he stayed in traction till early June. Finally, in a full body cast, he was sent to Chelsea naval Hospital in Boston Massachusetts.

While at Chelsea he was awarded his Bronze Star With "V" Device in a ceremony attended by the press. A picture of the award ceremony was actually printed as a full page cover on the next days edition of one of the Boston papers. The medal was presented by a Navy Captain in full Dress Uniform and Frank was sitting up in his bed in a brand new hospital shirt that had been given to him that morning just for the occasion. The ward was filled with over a dozen marines recovering from their injuries, a few other Marines, hospital staff and some family and friends.

All soldiers who receive awards such as this have mixed emotions. You don't really feel you deserve it because you didn't do anything that any other man in your unit wouldn't have done, and in fact hadn't done countless times. You feel that the true heroes are not those who survive, but rather those left behind. Your sense is that the award is really for your men, your brothers, your unit, not just you. But you also feel a small sense of satisfaction in the recognition of your service that the medal represents. Frank had those same feelings.

That Summer as Frank recuperated we did not talk often of what happened on March 4th. In fact we only talked about it once, late at night, after he had recovered enough to leave the hospital for a visit to town. As we drank, he opened up with the story, but mostly with his tears. He cried for Vernon Pendergrass and how he would never see his daughter. (Decades later Frank made a trip to Alabama to meet and console that daughter and share with her his fond memories of her father.) He cried for his men, feeling guilty that he was in the States and they were still in Nam. He wanted to be there with them to help bring them all home safely. He cried the lament of all soldiers who made bonds in battle that can never be broken.

Late that Summer Frank was medically retired from the Corps. Before I began my enlistment in the Army, he went off to Ohio University to begin the college education he had put off in 1965. He was not the same person he had been in high school. War changes men. Also, now he was a Marine, and would be one for life. He loved the Corps in the way that only one who knows its warts, inanities and idiocies can. It's a love/hate relationship that is a brotherhood for life.

As time passed, Frank began to see the war as futile and damaging to our nation. He resolved to do what he could to bring it to an end and bring his brothers home. That is why in 1971 he joined with over a thousand other Viet Nam veterans, including John Kerry, to protest the war. As part of that protest he, along with many others, threw their medals over a fence at the Capitol to demonstrate the depths of their feeling - medals they had earned with their blood, limbs and sacrifice.

This is the man that the Swifties tried to slime by saying he turned his back on his brothers. Those critics forgot, if they ever knew, that Frank and his brothers had fought on behalf of a Nation with a Constitution they had all sworn an oath to defend. A Constitution which guarantees the right of "the people to peaceably assemble, and to petition the Government for redress of grievances." It is a right that the government cannot abridge and that no person should ever be criticized for exercising. The swiftboaters were sworn to defend that same Constitution while in uniform and, as citizens, are obligated to honor, support and preserve it in their daily lives.

These critics, these swiftboaters, are still at it today attacking the patriotism and service of veterans running for office. And they damage others in the process. They are the antithesis of the patriots they attack. The swiftboaters have lost sight of the true meaning of patriotism. It is not love of a leader, policy or Party. It is love of the Constitution and all the rights and privileges it grants to us as Americans. Our Constitution is what makes our Country great, and we all have an obligation to insure that it is not breached by the government or ignored by the people. Supporters of that war or any war have every right to express that support by whatever means they chose. But they do not have the right to defame the patriotism of those who hold a different point of view. And no true soldier would ever demean the sacrifice of another.

Sunday, August 20, 2006

Bush's Choice - Withdraw Before Or After The Election?

Every war has an end. And every limited war, of which Iraq like Korea and Viet Nam before it is one, reaches a point at which one (and sometimes both) of the parties finds a way to convince itself that it has achieved its objectives and can begin the process of disengagement. While many believed we were at that point a year or two ago with Iraq, the facts on the ground are so clear now that even Bush will be forced to accept that the time has come. The only question is when to begin the process of disengagement. Odds are that it won't begin until after the election.

This is a political decision, not a military one. Yes, the sequencing of the disengagement steps are largely dictated by the force protection needs of the military. However the decision to begin the process is purely political. In this case it is not small "p" political, as in how it affects the well being of the country, but big "P" political, as in how it affects the upcoming election.

(By way of full disclosure this is all speculation. Also, I was opposed to this war, unlike the Gulf War, a year before it began. I did not see Iraq as an enemy of the U.S., believed the war to be illegal, and believed we would only sow more chaos in an already unstable region. And when we were first informed that the insurgency was in its last throes I called for withdrawal here.)

Some people may be thinking that Bush will make a withdrawal announcement before the election to stem the growing tide of anti-Iraq war sentiment before the votes are cast. The stakes could not be higher. He knows there is a serious risk that one or both Houses of Congress could revert to Democratic control, in which event the many scandals and Constitutional outrages that his compliant enablers in the Republican Congressional leadership have kept out of sight will be exposed for the public to see. While that is clearly an outcome he is seeking desperately to avoid he will continue his "stay the course" strategy because he believes that to change course before the election will only cement his defeat. This is one of those rare occasions where he is right.

Bush is a one trick pony. That trick is fear. He has been very effective playing the fear card and is only now beginning to understand that it has lost much of its salience. People are becoming less willing to buy it, as evidenced by his failure to get a bounce from the alleged British plane bomber threat. But it is still his only card. He has to play it for all its worth between now and the election for one simple reason. If he announces now that we can begin to withdraw he will be conceding that Iraq is unwinable and in the process cut the rug out from under his remaining supporters. At that point, the Democratic election victory would become a true landslide.

The only real question is whether he will actually begin the disengagement process after the election, leave it to his successor, or wait until it is mandated by the Congress. If you listen to his rhetoric and watch his behavior there is reason to doubt he will withdraw voluntarily. He is so incapable of admitting error publicly that one must suspect he can barely do so in the sanctity of his own mind. We also have his public statements to the effect that the Iraq war will continue past his Presidency. Lastly, he gives every evidence that he has bought into the neocon mantra of the "long war" as the substitute for their much missed cold war.

However, he is a political animal and the political pressure he will be getting from his own party will be enormous. (This doesn't even factor in the potential impact of a Democratic victory in November.) His own party will tell him that if we are not substantially disengaged from Iraq in 2007 with the process complete in 2008 it will be decades before the Republicans will survive the electoral tsunami in 2008. By then Republican nominee will be touting his own plan to end the war, but it will be too late.

The tragedy of all this is how unnecessary it was. We have destroyed the lives of thousands of our soldiers and their families; set loose forces that have killed and injured hundreds of thousands of Iraqis; destroyed American credibility, goodwill and standing throughout the globe, spent hundreds of billions of dollars that are desperately needed at home; saddled our children and grandchildren with a mountain of debt; and destroyed the military that took so long to rebuild after Viet Nam. And it will only end because of partisan political necessity. How truly sad.

Thursday, August 17, 2006

First Decision Denouncing Illegal NSA Wiretapping

ACLU, et al v NSA, et al is the first District Court decision declaring that the NSA warrantless wiretapping program in contravention of FISA is illegal. The District Court opinion granted a partial summary judgement in favor of the plaintiffs and an injunction against the Government continuing with the program.

The opinion disposes of the Administration's AUMF and Commander in Chief arguments with aplomb but my favorite part is the following discussion of the President's claim of inherent powers.

"Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). " (Citations Omitted)

This case has a long way to go, but its biggest hurdles will not be the substance of the case, which I think Scalia, Roberts and Alito would agree with. If it is not upheld it will fall due to the the issue of "standing", which means can these plaintiffs even bring this suit, or the Government's claim that the case cannot be heard without revealing state secrets and thus must be dismissed.

Friday, July 14, 2006

Did John Yoo Pass The Bar?

Yesterday morning, while listening to Morning Edition on NPR, I heard something that almost caused me to fall off my chair. They were interviewing John Yoo about the decision in Hamdan v Rumsfeld. When asked about the Hamdan decision Yoo started by saying "as a LEGAL MATTER the President made the right call when he said that Al Qaeda wasn't covered by the Geneva Conventions." (there is no transcript yet , but you can listen here.)

Yoo was the Justice Department lawyer who authored the opinion that laid the foundation for the Administration's detainment at issue in Hamdan as well as the Administration's torture policies. Also, Yoo's opinion, which said that the President's "Commander in Chief" powers were virtually unlimited and unreviewable and that the powers granted President under the Authorization For The Use Of Military Force resolution following 9/11 were all encompassing, provided the legal basis for the NSA warrantless wiretapping.

You don't need to be a lawyer to know that "as a legal matter" the President, and Yoo, were wrong. Ever since the 1803 decision of Marbury v Madison it has been understood that the Supreme Court is the ultimate arbiter of the law, not the President or some DOJ lawyer. And the Supreme Court held the Common Article Three of the Conventions does apply to Al Qaeda. Yoo could have said he disagreed with the decision, but it is the law of the land and it is astounding that he doesn't understand that.

It should also be noted that on this point it this wasn't just the five member majority speaking. None of the dissents disagreed with the Majority's reasoning on this question. Even Justice Thomas, for whom Yoo clerked, said it was a plausible interpretation of the Conventions. He only said that in this case the Court should have deferred to the Administration's contrary interpretation.

It may be time for Yoo to take a refresher course in Constitutional Law.

Friday, June 30, 2006

Commander in Chief of the Army and Navy - Not of the Congress, Courts and the People

In Hamdan v. Rumsfeld the Supreme Court has put a stop to President Bush's sweeping assertions of it's broad unreviewable powers under the "commander in chief" phrase of Article II. The opinion notes of the broader range of legislative authorities in the Constitution related to the military and wartime judicial administration -

The Constitution makes the President the "Commander
in Chief" of the Armed Forces, Art. II, §2, cl. 1, but vests in
Congress the powers to "declare War . . . and make Rules
concerning Captures on Land and Water," Art. I, §8, cl. 11,
to "raise and support Armies," id., cl. 12, to "define and
punish . . . Offences against the Law of Nations," id., cl.
10, and "To make Rules for the Government and Regula-
tion of the land and naval Forces," id., cl. 14. The inter-
play between these powers was described by Chief Justice
Chase in the seminal case of Ex parte Milligan:
"The power to make the necessary laws is in Con-
gress; the power to execute in the President. Both
powers imply many subordinate and auxiliary powers.
Each includes all authorities essential to its due exer-
cise. But neither can the President, in war more than
in peace, intrude upon the proper authority of Con-
gress, nor Congress upon the proper authority of the
President. . . . Congress cannot direct the conduct of
campaigns, nor can the President, or any commander
under him, without the sanction of Congress, institute
tribunals for the trial and punishment of offences, ei-
ther of soldiers or civilians, unless in cases of a con-
trolling necessity, which justifies what it compels, or
at least insures acts of indemnity from the justice of
the legislature." 4 Wall., at 139, 140.21

Yes, the President is commander in chief of the military, and as such he is the super general. But that doesn't mean that in times of war all of the other provisions in the Constitution fade into oblivion.

(One passing note for all the "strict constructionists" out there, taken literally the President is not Commander in Chief of the Air Force, Marine Corps and Coast Guard since they are not specifically mentioned.)

The opinion then goes on to note -

Whether Chief Justice Chase was correct in suggesting
that the President may constitutionally convene military
commissions "without the sanction of Congress" in cases of
"controlling necessity" is a question this Court has not
answered definitively, and need not answer today. For we
held in Quirin that Congress had, through Article of War
15, sanctioned the use of military commissions in such
circumstances. 317 U. S., at 28 ("By the Articles of War,
and especially Article 15% Congress has explicitly provided,
so far as it may constitutionally do so, that military tribu-
nals shall have jurisdiction to try offenders or offenses
against the law of war in appropriate cases”).

The Court then rebuffed the President's assertion the the earlier Quirin decision had given carte blanche to the President to establish commissions outside of the stautory framework

Contrary to the Government’s assertion, however, even Quirin did
not view the authorization as a sweeping mandate for the
President to “invoke military commissions when he deems
them necessary.” Brief for Respondents 17. Rather, the
Quirin Court recognized that Congress had simply pre-
served what power, under the Constitution and the com-
mon law of war, the President had had before 1916 to
convene military commissions—with the express condition
that the President and those under his command comply
with the law of war. See 317 U. S., at 28–29.23

And then there is the final nail in the coffin of absolute Presidential authority from footnote 23 -

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

All in all, it was a bad day for John Yoo and David Addington, two of the principle authors and proponents of Omnipotent President theory.

Thursday, June 29, 2006

The Constitution Is Still Alive

Rejoice. Ring the bells in the Cathedrals. The Supreme Court has begun the process of returning our great nation to one which the founders would have recognized, a country that is not ruled by an omnipotent king, but by a President who must follow our Constitution, laws and Treaties. In Hamdan v. Rumsfeld, a long awaited decision regarding the fate of a Guantanamo detainee, the Court has made clear that the President does not have unlimited powers. It was a 5-3 decision with many concurring and dissenting opinions. Justice Roberts did not participate because it was his D.C. Circuit Court's opinion that was overturned.

There are many noteworthy aspect to this decision, which I am still digesting. Among other things, the Court held that the Authorization for the Use of Military Force (AUMF) did not override existing legal requirements, particularly the Uniform Code of Military Justice and the Geneva Conventions, regarding the establishment and conduct of military commissions. The Court also ruled that the Geneva Conventions apply to persons detained in the Afghan conflict.

Both of these rulings could have much wider implications. The AUMF is one of two arguments used by the President to justify bypassing the Foreign Intelligence Surveillance Act (FISA) warrant requirements in connection with domestic electronic surveillance. The President has argued that FISA can be ignored if another law provides authority for wiretapping and that AUMF provides that separate authority. Hamdan casts serious, but not absolute, doubt on that argument. While there are some other issues involved, there is good reason to think that if AUMF doesn't provide a separate statutory authority to try enemy prisoners it doesn't provide statutory authority to wiretap. That leaves only the President's second argument, that the Commander in Chief authority gives him uncontrollable and unreviewable authority to do whatever he deems necessary in furtherance of that authority. That argument also took a big hit.

The same two legal arguments undergird the President's torture policies and practices and are similarly in jeopardy.

Hamdan could well mean that the Administration's torture policies and practices are not only illegal but also criminal and that the extra-judicial wiretapping outside of the FISA Court is similarly illegal and criminal.

Wednesday, June 21, 2006

Public Financing - A Different Approach

This recent poll indicating there is widespread support for public financing of elections caused me to dust off an idea that's been floating in my brain for a decade. I'm not just talking about Presidential elections, but Congressional elections as well. The main legal problem with any public financing scheme is how to make it mandatory and and still avoid Constitutional challenges by those who want to contribute to candidates.

One possible answer is to establish an inflation adjusted spending amount for each type of election, President, Senate and Representative (possibly adjusted for Senators by the state's population) and appropriate funds to each party's candidate for that office. Primaries will also have to be addressed. Any person can make a campaign contribution to the candidate of their choosing but those contributions must be remitted to the Treasury to offset the funds appropriated for that candidate. If the contributions exceed the amount appropriated the candidate can spend the surplus amounts.

Under this type of plan people and organization are free to contribute to candidates but they will not know if their contributions will ever be received by the candidate. If the public funding limit is set high enough it is likely that few campaigns will ever see "surplus" contributions.

I'd appreciate any thoughts people have.

Friday, May 12, 2006

Of Course They Are Listening

No person who cares even a little about preserving the Constitution and the rule of law can help but be outraged about the most recently disclosed NSA abuse - the collection of call logs for all Americans, except those lucky enough to use Qwest. It is outrageous on its face. As described, it may not violate the Fourth Amendment proscriptions against unreasonable searches and seizures, but it clearly violates several statutes, including the Foreign Intelligence Surveillance Act and the Telecommunications Act.

But the key phrase is "as described." They say they are only analyzing the data for patterns. They are not recording calls or collecting names and addresses. BALONEY. Who do they think they are fooling? There would be no point to "looking at patterns" unless you did something once the patterns are detected.

Before this is over, if we ever get to the bottom, we will find out that this is only the first step in a process of listening in on phone calls. Not just for the previously disclosed NSA wiretaps of foreign to domestic calls, but also purely domestic calls. That means you and me, not just the guy behind the tree.

Given this administration's track recording in detaining innocent people, they have been eavesdropping on thousands of innocent Americans for every one they identify who is even remotely connected to terrorism. We should not forget that of the approximately five thousand people arrested after 9/11 not one was prosecuted for anything related to terrorism. Of the five hundred plus cycled through Gitmo, the worst of the worst according to our esteemed and knowledgeable Vice President, hundreds have been release, only a few have actually been found by the Gitmo court to be enemy combatants and none have been tried for terrorism.

This administration has been conducting warrantless surveillance since 9/11 with precious little to show for it. Remember that Richard Reed was apprehended by the passengers on his flight rather than the NSA or the FBI. Zacarias Moussaoui was arrested before 9/11. The few other so called "terrorism" cases have involved a doctor wrongly accused of involvement in the Madrid bombing, people from Lebanon or Palestine who have raised funds for Hamas, which has never declared itself our enemy and is now the elected government of Palestine, and a few pathetic morons who may have gone to an al Qaeda training camp but who were never shown to have been planning anything in this country.

We are turning the Constitution and laws of our nation inside out for what. Because there are some radical Islamists in the middle east who were outraged by our stationing of troops in Saudi Arabia after the First Gulf War and acted on that anger by committing a heinous crime. We started to wipe them out in Afghanistan but let them off the hook so that we could invade Iraq. This only gave them a new recruiting tool.

These Islamists have declared themselves our enemy. But their enmity is not grounded in abstract principles. It is based on their opposition to our policies and actions in the Middle East. Instead of trying to address some of the underlying problems, we only make them worse.

The islamists have clearly demonstrated a capacity to cause us harm. But as horrific as 9/11 was for the victims, families and our nation as a whole it was not a threat to our nation's survival or our way of life. Only we can do that. And we do it by shredding the Constitution in the name of security.

This is not the threat of nuclear annihilation we faced in forty five years of the cold war. Why do we behave as if it is? We know why the Administration tries to convince us that it is WWIII. Fear is a potent governing tool. They have used it very successfully. But now it is time for the American people to say "enough."

Wednesday, May 03, 2006

Two Unhearalded Supreme Court Decisions Give Us Hope That The Constitution is still Alive

One can't make too much out of two decisions, but the Supreme Court recently breathed some life into the Constitution.

In Holmes v. South Carolina the Court unanimously held that the defendant has the right to introduce evidence that points to the guilt of another person and that casts doubt on the validity of the forensic evidence the State had introduced against him. Amazing! You read it right, and to think the South Carolina Supreme Court had ruled that this evidence was inadmissable. And what's more amazing is that this was a unanimous opinion of the U.S. Supreme Court.

In Jones v. Flowers the Court held that the State can't sell someone's property for back taxes unless reasonable steps are taken to notify the person. In this case, the registered letters notifying him of the pending sale and of the actual sale were retuned as undeliverable and no followup efforts were made to notify the homeowner. The homeowner didn't get the letters or know the taxes were due because he had stopped living in the house after his divorce. The taxes had been payed by his mortgage company, but after the mortgage was paid off the taxes went unpaid. In a 5-3 decision the Court said that when the State knows that a property owner has not received notice of a pending sale it can't just proceed with the sale. It has to expend some additional effort to locate and notify the homeowner.

Less we get too excited, it's worth noting that Thomas, Scalia and Kennedy dissented. Alito did not participate.

Tuesday, May 02, 2006

It Wasn't a Fighter Plane

I know this is a nit, but it's aggravating.

We just commemorated the third anniversary of the Mission Accomplished fiasco. It seems that every article on the subject misstates one little detail. The media accepts the White House spinmeister assertion that Bush was in a Fighter plane. They did this to magnify his machismo. But just like everything else that happened that day, this too was phony.

Bush did NOT land in a Fighter Plane. The plane he rode in was an S-3B Viking.

The first clue that it is not a fighter is the designation "S." If it were a fighter it would be designated with an "F", such F-14 , or "F/A" for fighter/attack, such as the F/A-18.

So what kind of plane is the Viking? It's principle role is in anti-submarine and anti-surface warfare. It is also can operate as a refueling plane for strike aircraft. It is great at what it does but would be toast if it was used in air to air combat as a fighter.

Friday, April 28, 2006

Maybe Dubya Should Tell Them They Can Stop Bringing it On

Way back in 2003 when the President told the insurgents to "bring it on" they were apparently listening closely and ready willing and able to oblige him. Over two thousand Americans and countless tens of thousands of Iraqis have been killed since then.

Maybe it's time for the President to tell them it is time to stop. They proved their point. They no longer need to bring it on. In fact he'd really be happy if they'd turn it off. They really heeded his words back then maybe they'd do the same now.

Wednesday, April 26, 2006

Tony Snow Agrees To Interdepartmental Transfer

The White House announced today that Tony Snow will be transferring from the Fox Division of White House press operations to the Home Office. This is actually a return to the Home Office where he worked under GHWB before getting some field experience at the Fox Division.

Sunday, April 23, 2006

John Kerry's Speech At Faneuil Hall

John Kerry spoke at Faneuil Hall on April 22, giving an eloquent rebuttal to those who criticize opponents of this Administration's war policy and explaining why it is time to bring our involvement in Iraq to an end. It would have been better if he had displayed the courage and/or wisdom to say these same things three, two or even one year ago. However late, he has added a powerful voice to that of Jack Murtha and others who who recognize the Iraq debacle for what it is.

I would not normally print the whole text of a speech like this, but I do so in this case because it is highly recommended reading. (You may even note some echoes of what appeared on this site on July 1, 2005.)

* * * * * * * *

Thirty-five years ago today, I testified before the Foreign Relations Committee of the United States Senate, and called for an end to the war I had returned from fighting not long before.

It was 1971 - twelve years after the first American died in what was then South Vietnam, seven years after Lyndon Johnson seized on a small and contrived incident in the Tonkin Gulf to launch a full-scale war--and three years after Richard Nixon was elected president on the promise of a secret plan for peace. We didn't know it at the time, but four more years of the War in Vietnam still lay ahead. These were years in which the Nixon administration lied and broke the law--and claimed it was prolonging war to protect our troops as they withdrew--years that ultimately ended only when politicians in Washington decided they would settle for a "decent interval" between the departure of our forces and the inevitable fall of Saigon.

I know that some active duty service members, some veterans, and certainly some politicians scorned those of us who spoke out, suggesting our actions failed to "support the troops"--which to them meant continuing to support the war, or at least keeping our mouths shut. Indeed, some of those critics said the same thing just two years ago during the presidential campaign.

I have come here today to reaffirm that it was right to dissent in 1971 from a war that was wrong. And to affirm that it is both a right and an obligation for Americans today to disagree with a President who is wrong, a policy that is wrong, and a war in Iraq that weakens the nation.

I believed then, just as I believe now, that the best way to support the troops is to oppose a course that squanders their lives, dishonors their sacrifice, and disserves our people and our principles. When brave patriots suffer and die on the altar of stubborn pride, because of the incompetence and self-deception of mere politicians, then the only patriotic choice is to reclaim the moral authority misused by those entrusted with high office.

I believed then, just as I believe now, that it is profoundly wrong to think that fighting for your country overseas and fighting for your country's ideals at home are contradictory or even separate duties. They are, in fact, two sides of the very same patriotic coin. And that's certainly what I felt when I came home from Vietnam convinced that our political leaders were waging war simply to avoid responsibility for the mistakes that doomed our mission in the first place. Indeed, one of the architects of the war, Defense Secretary Robert McNamara, confessed in a recent book that he knew victory was no longer a possibility far earlier than 1971.

By then, it was clear to me that hundreds of thousands of soldiers, sailors, Marines and airmen--disproportionately poor and minority Americans--were being sent into the valley of the shadow of death for an illusion privately abandoned by the very men in Washington who kept sending them there. All the horrors of a jungle war against an invisible enemy indistinguishable from the people we were supposed to be protecting--all the questions associated with quietly sanctioned violence against entire villages and regions--all the confusion and frustration that came from defending a corrupt regime in Saigon that depended on Americans to do too much of the fighting--all that cried out for dissent, demanded truth, and could not be denied by easy slogans like "peace with honor"--or by the politics of fear and smear. It was time for the truth, and time for it all to end, and my only regret in joining the anti-war movement was that it took so long to succeed--for the truth to prevail, and for America to regain confidence in our own deepest values.

The fissures created by Vietnam have long been stubbornly resistant to closure. But I am proud it was the dissenters--and it was our veterans' movement--and people like Judy Droz Keyes--who battled not just to end the war but to combat government secrecy and the willful amnesia of a society that did not want to remember its obligations to the soldiers who fought. We fought the forgetting and pushed our nation to confront the war's surplus of sad legacies--Agent Orange, Amer-Asian orphans, abandoned allies, exiled and imprisoned draft dodgers, doubts about whether all our POWs had come home, and honor at last for those who returned from Vietnam and those who did not. Because we spoke out, the truth was ultimately understood that the faults in Vietnam were those of the war, not the warriors.

Then, and even now, there were many alarmed by dissent--many who thought that staying the course would eventually produce victory--or that admitting the mistake and ending it would embolden our enemies around the world. History disproved them before another decade was gone: Fourteen years elapsed between the first major American commitment of helicopters and pilots to Vietnam and the fall of Saigon. Fourteen years later, the Berlin Wall fell, and with it the Communist threat. You cannot tell me that withdrawing from Vietnam earlier would have changed that outcome.

The lesson here is not that some of us were right about Vietnam, and some of us were wrong. The lesson is that true patriots must defend the right of dissent, and hear the voices of dissenters, especially now, when our leaders have committed us to a pre-emptive "war of choice" that does not involve the defense of our people or our territory against aggressors. The patriotic obligation to speak out becomes even more urgent when politicians refuse to debate their policies or disclose the facts. And even more urgent when they seek, perversely, to use their own military blunders to deflect opposition and answer their own failures with more of the same. Presidents and politicians may worry about losing face, or votes, or legacy; it is time to think about young Americans and innocent civilians who are losing their lives.

This is not the first time in American history when patriotism has been distorted to deflect criticism and mislead the nation.

In the infancy of the Republic, in 1798, Congress enacted the Alien and Sedition Acts to smear Thomas Jefferson and accuse him of treason. Newspapers were shut down, and their editors arrested, including Benjamin Franklin's grandson. No wonder Thomas Jefferson himself said: "Dissent is the greatest form of patriotism."

In the Mexican War, a young Congressman named Abraham Lincoln was driven from public life for raising doubts about official claims. And in World War I, America's values were degraded, not defended, when dissenters were jailed and the teaching of German was banned in public schools in some states. At that time it was apparently sounding German, not looking French, that got you in trouble. And it was panic and prejudice , not true patriotism, that brought the internment of Japanese-Americans during World War II--a measure upheld by Supreme Court Justices who did not uphold their oaths to defend the Constitution. We are stronger today because no less a rock-ribbed conservative than Robert Taft -- "Mr. Republican" himself -- stood up and said at the height of the second World War that, "the maintenance of the right of criticism in the long run will do the country maintaining it a great deal more good than it will do the enemy, and will prevent mistakes which might otherwise occur."

Even during the Cold War--an undeclared war, and often more a war of nerves and diplomacy than of arms--even the mildest dissenters from official policy were sometimes silenced, blacklisted, or arrested, especially during the McCarthy era of the early 1950s. Indeed, it was only when Joseph McCarthy went through the gates of delirium and began accusing distinguished U.S. diplomats and military leaders of treason that the two parties in Washington and the news media realized the common stake they had in the right to dissent. They stood up to a bully and brought down McCarthyism's ugly and contrived appeals to a phony form of 100% Americanism.

Dissenters are not always right, but it is always a warning sign when they are accused of unpatriotic sentiments by politicians seeking a safe harbor from debate, from accountability, or from the simple truth.

Truth is the American bottom line. Truth above all is fundamental to who we are. It is no accident that among the first words of the first declaration of our national existence it is proclaimed: "We hold these truths to be self-evident...".

This hall and this Commonwealth have always been at the forefront of seeking out and living out the truth in the conduct of public life. Here Massachusetts defined human rights by adopting our own Bill of Rights; here we took a stand against slavery, for women's suffrage and civil rights for all Americans. The bedrock of America's greatest advances--the foundation of what we know today are defining values--was formed not by cheering on things as they were, but by taking them on and demanding change.

And here and now we must insist again that fidelity, honor, and love of country demand untrammeled debate and open dissent. At no time is that truer than in the midst of a war rooted in deceit and justified by continuing deception. For what is at stake here is nothing less than life itself. As the statesman Edmund Burke once said: "A conscientious man should be cautious how he dealt in blood."

Think about that now--in a new era that has brought old temptations and tested abiding principles.

America has always embraced the best traditions of civilized conduct toward combatants and non-combatants in war. But today our leaders hold themselves above the law--in the way they not only treat prisoners in Abu Ghraib, but assert unchecked power to spy on American citizens.

America has always rejected war as an instrument of raw power or naked self-interest. We fought when we had to in order to repel grave threats or advance freedom and self-determination in concert with like-minded people everywhere. But our current leadership, for all its rhetoric of freedom and democracy, behaves as though might does make right, enabling us to discard the alliances and institutions that served us so well in the past as nothing more now than impediments to the exercise of unilateral power.

America has always been stronger when we have not only proclaimed free speech, but listened to it. Yes, in every war, there have been those who demand suppression and silencing. And although no one is being jailed today for speaking out against the war in Iraq, the spirit of intolerance for dissent has risen steadily, and the habit of labeling dissenters as unpatriotic has become the common currency of the politicians currently running our country.

Dismissing dissent is not only wrong, but dangerous when America's leadership is unwilling to admit mistakes, unwilling to engage in honest discussion of the nation's direction, and unwilling to hold itself accountable for the consequences of decisions made without genuine disclosure, or genuine debate.

In recent weeks, a number of retired high-ranking military leaders, several of whom played key combat or planning roles in Afghanistan and Iraq, have come forward publicly to call for the resignation of Defense Secretary Donald Rumsfeld. And across the administration, from the president on down, we've heard these calls dismissed or even attacked as acts of disloyalty, or as threats to civilian control of the armed forces. We have even heard accusations that this dissent gives aid and comfort to the enemy. That is cheap and it is shameful. And once again we have seen personal attacks on the character of those who speak out. How dare those who never wore the uniform in battle attack those who wore it all their lives--and who, retired or not, did not resign their citizenship in order to serve their country.

The former top operating officer at the Pentagon, a Marine Lieutenant General, said "the commitment of our forces to this fight was done with a casualness and swagger that are the special province of those who have never had to execute these missions--or bury the results." It is hard for a career military officer to speak those words. But at a time when the administration cannot let go of the myths and outright lies it broadcast in the rush to war in Iraq, those who know better must speak out.

At a time when mistake after mistake is being compounded by the very civilian leadership in the Pentagon that ignored expert military advice in the invasion and occupation of Iraq, those who understand the price being paid for each mistake by our troops, our country, and Iraq itself must be heard.

Once again we are imprisoned in a failed policy. And once again we are being told that admitting mistakes, not the mistakes themselves, will provide our enemies with an intolerable propaganda victory. Once again we are being told that we have no choice but to stay the course of a failed policy. At a time like this, those who seek to reclaim America's true character and strength must be respected.

The true defeatists today are not those who call for recognizing the facts on the ground in Iraq. The true defeatists are those who believe America is so weak that it must sacrifice its principles to the pursuit of illusory power.

The true pessimists today are not those who know that America can handle the truth about the Administration's boastful claim of "Mission Accomplished" in Iraq. The true pessimists are those who cannot accept that America's power and prestige depend on our credibility at home and around the world. The true pessimists are those who do not understand that fidelity to our principles is as critical to national security as our military power itself.

And the most dangerous defeatists, the most dispiriting pessimists, are those who invoke September 11th to argue that our traditional values are a luxury we can no longer afford.

Let's call it the Bush-Cheney Doctrine.

According to the Bush-Cheney Doctrine, alliances and international institutions are now disposable--and international institutions are dispensable or even despicable.

According to the Bush-Cheney Doctrine, we cannot foreswear the fool's gold of information secured by torturing prisoners or creating a shadow justice system with no rules and no transparency.

According to the Bush-Cheney Doctrine, unwarranted secrecy and illegal spying are now absolute imperatives of our national security.

According to the Bush-Cheney Doctrine, those who question the abuse of power question America itself.

According to the Bush-Cheney doctrine, an Administration should be willing to spend hundreds of billions of dollars on the Iraq war, but unwilling to spend a few billion dollars to secure the American ports through which nuclear materials could make their way to terrorist cells.

According to the Bush-Cheney Doctrine, executive powers trump the constitutional doctrine of separation of powers.

According to the Bush-Cheney Doctrine, smearing administration critics is not only permissible, but necessary--and revealing the identity of a CIA agent is an acceptable means to hide the truth.

The raw justification for abandoning so many American traditions exposes the real danger of the Bush-Cheney Doctrine. We all understand we are in a long struggle against jihadist extremism. It does represent a threat to our vital security interests and our values. Even the Bush-Cheney Administration acknowledges this is preeminently an ideological war, but that's why the Bush-Cheney Doctrine is so ill-equipped to fight and win it.

Our enemies argue that all our claims about advancing universal principles of human rights and mutual respect disguise a raw demand for American dominance. They gain every time we tolerate or cover up abuses of human rights in Abu Ghraib or Guantanamo Bay, or among sectarian militias in Iraq, and especially when we defiantly disdain the rules of international law.

Our enemies argue that our invasion and occupation of Iraq reflect an obsession with oil supplies and commercial opportunities. They gain when our president and vice president, both former oil company executives, continue to pursue an oil-based energy strategy, and provide vast concessions in Iraq to their corporate friends.

And so there's the crowning irony: the Bush-Cheney Doctrine holds that many of our great traditions cannot be maintained; yet the Bush-Cheney policies, by abandoning those traditions, give Osama bin Laden and his associates exactly what they want and need to reinforce their hate-filled ideology of Islamic solidarity against the western world.

I understand fully that Iraq is not Vietnam, and the war on terrorism is not the Cold War. But in one very crucial respect, we are in the same place now as we were thirty five years ago. When I testified in 1971, I spoke out not just against the war itself, but the blindness and cynicism of political leaders who were sending brave young Americans to be killed or maimed for a mission the leaders themselves no longer believed in.

The War in Vietnam and the War in Iraq are now converging in too many tragic respects.

As in Vietnam, we engaged militarily in Iraq based on official deception.

As in Vietnam, we went into Iraq ostensibly to fight a larger global war under the misperception that the particular theater was just a sideshow, but we soon learned that the particular aspects of the place where we fought mattered more than anything else.

And as in Vietnam, we have stayed and fought and died even though it is time for us to go.

We are now in the third war in Iraq in as many years. The first was against Saddam Hussein and his supposed weapons of mass destruction. The second was against terrorists whom, the administration said, it was better to fight over there than here. Now we find our troops in the middle of an escalating civil war.
Half of the service members listed on the Vietnam Memorial Wall died after America's leaders knew our strategy would not work. It was immoral then and it would be immoral now to engage in the same delusion. We want democracy in Iraq, but Iraqis must want it as much as we do. Our valiant soldiers can't bring democracy to Iraq if Iraq's leaders are unwilling themselves to make the compromises that democracy requires.
As our generals have said, the war cannot be won militarily. It must be won politically. No American soldier should be sacrificed because Iraqi politicians refuse to resolve their ethnic and political differences.

Our call to action is clear. Iraqi leaders have responded only to deadlines--a deadline to transfer authority to a provisional government, and a deadline to hold three elections. It was the most intense 11th hour pressure that just pushed aside Prime Minister Jaafari and brought forward a more acceptable candidate. And it will demand deadline toughness to reign in Shiite militias Sunnis say are committing horrific acts of torture every day in Baghdad.
So we must set another deadline to extricate our troops and get Iraq up on its own two feet.

Iraqi politicians should be told that they have until May 15 to deal with these intransigent issues and at last put together an effective unity government or we will immediately withdraw our military. If Iraqis aren't willing to build a unity government in the five months since the election, they're probably not willing to build one at all. The civil war will only get worse, and we will have no choice anyway but to leave.

If Iraq's leaders succeed in putting together a government, then we must agree on another deadline: a schedule for withdrawing American combat forces by year's end. Doing so will actually empower the new Iraqi leadership, put Iraqis in the position of running their own country and undermine support for the insurgency, which is fueled in large measure by the majority of Iraqis who want us to leave their country.

So now, as in 1971, we are engaged in another fight to live the truth and make our own government accountable. As in 1971, this is another moment when American patriotism demands more dissent and less complacency in the face of bland assurances from those in power.

We must insist now that patriotism does not belong to those who defend a President's position--it belongs to those who defend their country. Patriotism is not love of power; it is love of country. And sometimes loving your country demands you must tell the truth to power. This is one of those times.

Lives are on the line. Lives have been lost to bad decisions - not decisions that could have gone either way, but decisions that constitute basic negligence and incompetence. And lives continue to be lost because of stubbornness and pride.

We support the troops--the brave men and women who have always protected us and do so today--in part by honoring their service, and in part by making sure they have everything they need both in battle and after they have borne the burden of battle.

But I believe now as strongly and proudly as I did thirty-five years ago that the most important way to support the troops is to tell the truth, and to ensure we do not ask young Americans to die in a cause that falls short of the ideals of this country.

When we protested the war in Vietnam some would weigh in against us saying: "My country right or wrong." Our response was simple: "Yes, my country right or wrong. When right, keep it right and when wrong, make it right." And that's what we must do again today.

Friday, April 21, 2006

A New Name

Frequent readers will note that this site has a new name, "September 1787." Those words were always in the url for the site and it was decided they more closely tie to the subject matter of this site than the old name, "Thoughts To Consider." For those who are new comers, please go to the very first post for an explanation of what this site is trying to promote.

Goodbye old friend. We trust that our thoughts will still be considered.

Retired Generals Have a Right and Obligation to Speak Out

Six retired Generals have so far decided to speak out on the Iraq War fiasco, criticizing the run up, planning and/or execution of this tragedy. As expected most of the administration's blowback against these patriots is not focussed on the merits of their arguments. Rather Administration flacks have tried to argue that it is inappropriate for the Generals to have spoken up after they retired. They should have gone public while still in uniform and resigned if necessary.

What a joke. To begin with, of course they have the right to speak up now. They did not surrender their First Amendment rights when they put on the uniform?

While still on active duty, there were some constraints on their right to speak freely. They worked under a strict chain of command. Yes, even generals have to suffer under the chain like you see in every day room. They are expected to speak their minds to the next person on the chain up from them, and not violate the chain, especially not by speaking out publicly. They are expected to provide their input and then implement the decision, regardless of whether they agree with it or not.

There are some exceptions to the constrains on speaking out publicly while on active duty. Members of the Joint Chiefs have a statutory obligation to speak to the Secretary of Defense and the Congress, even when they disagree with their other Chiefs. Also, any General testifying before Congress has the right to truthfully express an opinion. Doing the latter though, can be unhealthy for your career or your effectiveness in the remainder of your career, i.e.., General Eric Shinseki.

Some commentators have criticized the Generals for not speaking out and resigning in protest while still on active duty. Yes, a General has the right to resign in protest against a policy or an action with which they disagree. However that is a heavy price to pay and one rarely seen. In most cases, as with these Generals, people in their position try to work within the system as long as possible in the hope that a bad situation can be made better. Also, it should be noted that one of these Generals, John Batiste, did the functional equivalent of resigning in protest. After serving as the Commanding General of the First Infantry Division in Iraq from 2004-2005, General Batiste turned down the offer of a third star and the position of the Deputy in charge of all military forces in Iraq.

Some war hawks have said that the Generals' criticism undercuts troop morale. This is yet another make weight argument. Soldiers aren't stupid. They want to get the job done and get home as soon as possible. They see what is working and what isn't. And the Generals are merely highlighting what is plain to see and has been so from the inception of this disaster. If their criticism shortens this war by even a day, the troops and our nation will be better off.

The argument against the Generals that is most steeped in hypocrisy is that as military men they must confine themselves to military matters and avoid commenting on broader policy question. Funny, I never hear that criticism when Generals Myers or Pace or others doing the Administration's bidding defend the Iraq policy. Of course they can speak up on policy matter. They are American citizens and we still have a First Amendment Right of Free Speech.

I applaud the Generals.

Wednesday, April 19, 2006

Medicare Part D - The Drug And Insurance Company Dream

Many have suspected that while Medicare Part D provides some benefit to seniors the largest beneficiaries of the program are the drug and insurance companies. I did a little experiment, the results of which seem to suggest the truth behind that concern.

I priced the four prescriptions my wife and I take on Medicare's website in order to identify the cheapest provider. They are two generic and two name brand drugs. I then did the same thing on the Costco website, which is a non-Medicare pharmacy known to have some of the lowest drug prices in the United States. Lastly, I priced those same drugs on one of the largest Canadian on-line pharmacies, (Interestingly, it turns out that in Canada one of the name brand drugs is available as a generic.)

The results were illuminating. The cheapest Part D coverage was with a provider called Yourx. The annual Yourx cost for all four drugs, including premium, copay and deductible, was $1088. The unsubsidized Costco price was considerably more expensive, with an annual cost of $2719. The big surprise was canadadrugs, where an annual supply of those same drugs could be purchased for $1666.

Now Medicare won't let us know how many Federal tax ( and borrowed dollars) are used to subsidize the Yourx cost, but it is a safe bet that Yourx is not buying its drugs and administering its plan at a lower cost than Costco. That suggests that the Government is giving Yourx and the drug companies who are supplying it with drugs about $1631 in tax dollars (the difference between $1088 and $2719) for those four prescriptions.

However, since Canadadrug is not saddled with our insurance bureaucracy and and can more aggressively negotiate through the Canadian Government with the drug companies it is able to sell those same drugs (except one being a generic) for only $543 more than Yourx. That means that if Medicare Part D participants could buy their drugs from Canada the U.S. government would only have to provide a $543 subsidy rather than gouging the taxpayers for $1631.

Alternatively we could scrap the Rube Goldberg complexity of Part D and just have it administered like Medicare Parts A and B, and give Medicare the full authority to negotiate for the lowest possible prices. I'm betting Medicare could do at least as well as the Canadians and save taxpayers about two thirds of the current cost of the program.

But then, that wouldn't be the dream program engineered by the drug and insurance companies.

Monday, April 17, 2006

Iran - A Short History

Michael Kinsley has a short history of Iran since 1950 which deserves reading even if you vaguely remember some of it. It reinforces what I suggested earlier about the need for the U.S. to once again engage the Iranians, and to do so with a little humility. We have obvious greivances against the Iranian regime but they also have some against us. From staging the coup that brought the Shah to power to supporting Sadaam Hussein in his eight year war of aggression against Iran our behavior has often been short sighted and certainly not above reproach.

Isn't it time for us to act like grown ups?

Lugar Recommends Talking To Iran

On Sunday, Senator Lugar said we should talk to Iran about its nuclear program. What an innovative idea. And while we are at it, why don't we talk with them about all the issues that divide us. It really is time for the War Party to realize that diplomacy trumps bluster. That is of course unless their only goal is to keep Americans in a constant state of fear. That couldn't possibly be the case.

Wednesday, April 12, 2006

Nuclear Iran

In yesterdays post, I questioned the legal and moral authority of the United States to assert the unilateral right to go to war to prevent Iran, or any country for that matter, from developing nuclear weapons. In the case of Iran, my premise was far ahead of the facts.

Whether one believes the assertions of the Iranians that they only intend to develop nuclear generating capacity as opposed to weapons is almost beside the point. Iran is years away from developing nuclear power and probably a decade away from developing a bomb. However, it would not be totally farfetched to believe their assertions. There are dozens of countries that have considerable commercial nuclear generating capacity that are not believed to have developed nuclear weapons. While no one doubts that Brazil, Germany, and Japan, to name a few, could not develop such weapons, they are all believed to be complying with their nonpriferation obligations

All that notwithstanding, some would say that an Iran with nuclear weapons is only a matter of time. That may be so, but we should always remember - THE PASSAGE OF TIME CAN CHANGE EVERYTHING. In the absence of hostile intent, a real threat, and actual capacity to do us serious harm it is dumb, immoral and illegal for us to start a war.

The U.S. was at the forefront of helping other nations develop nuclear power and, working through the United Nations, has been largely successful in limiting the proliferation of weapons beyond the five nation nuclear club that included us, the USSR (now Russia), France, Great Britain, and China. (Two of the three known cheaters who have since acquired nuclear weapons are discussed below.). This was done by getting most countries to sign the Nuclear Non-Proliferation Treaty. Iran signed the NPT and, because of that, has been the recipient of legal nuclear power development assistance. They continue to largely comply with the NPT but the IAEA has recently raised concerns, which have been the subject of the current diplomatic dustup. But the inspectors are still there and there has not been a total breakdown of the NPT regime.

Iran's nuclear history started when Iran was our ally, under the Shah. When the Shah was overthrown in. 1979 our relations with Iran soured (an understatement), beginning with the hostage standoff and continuing largely because successive Iranian regimes began and continued to support Palestinian groups, some of which perpetrated acts of terror. So we continue not talking to each other, officially, and limit our contacts to subjects like trading arms for hostages. (OOPS, I digressed.) But does the animosity between our two countries have to continue in perpetuity?

If history is any guide, the answer is no. As with many other countries in the past we could seek to establish normal relations with Iran and try to resolve our differences peacefully. If we were able to have diplomatic relations with the USSR while fighting several proxy wars against each other and with each living under the constant threat of being blown up by the other, certainly we can deal with Iran. Similarly, we were able to normalize relations with a nuclear China, notwithstanding having fought them in the Korean War, competing for power and influence against each other throughout Asia, and nearly going to war over the independence of Taiwan.

Some would say those examples are different, they weren't "rogue regimes." Well, if that term has any meaning in the context of nuclear proliferation it must refer to countries that are not part of the NPT regime. Two of those rogues are India and Pakistan, neither of which signed and has ever complied with the NPT and both of whom have developed nuclear weapons.

When India began its nuclear ambitions it was nominally a "third world" (nonaligned) country but in reality orbited the Soviet sphere. And now it is a new found friend to whom this administration wants to provide U.S. nuclear technology. Are we asking that they join the NPT? No. Are we asking that they open up their military reactors and facilities to inspection? No. They are our friends now so what's the need?

And then there is Pakistan, also a non-signer of the NPT. We turned a blind eye to their nuclear development plans because they were viewed as a counter force to India. They were a friend in name only though, because they were one of only three countries that recognized the Taliban regime in Afghanistan and checkmated our desire to take forceful action against that regime during the nineties. Only after 9/11 did they change their position and thereby pave the way for the military intervention that unseated that Taliban and temporarily defeated Al Qaeda.

All of which says - times change. We have no irreconcilable differences with Iran and no differences justifying war. The only real enemy the Iranians had - Sadaam Hussein - is gone. Someday in the future, they will again be our friend. Let's hold off the bombing for a while.

Tuesday, April 11, 2006

Attacking Iran Isn't Just Dumb, It's Illegal and Wrong

Almost all the discussion about the Administration's plans to attack Iran focus on how stupid that action would be. Success is doubtful, there is no threat, it will inflame the region, our troops in Iraq will be placed in further jeopardy, it will drive the Iraqi Shia further into the arms of the Iranians, etc.

But maybe the starting point should be that such an attack would be illegal, immoral and just plain wrong. How have we become a nation so eager for war. The U.N. charter does not sanction this type of action. Iran has not threatened us. We do not have the right to simply declare that a nation cannot develop nuclear weapons. Our posture is insane. It is difficult to find an apt historical analogy for this Administration's assertion of the right to fight aggressive war.

If we do this, we will truly be the world's foremost Pariah Nation.

Wild Speculation

The President, his press spokesman, and everyone else speaking for the administration responds to the Seymour Hirsh article about intensive planning for an attack on Iran as "wild speculation."

Those words reveal two things. They are, in a phrase coined during Watergate, a perfect example of a "non-denial denial." The President does not say the article is not accurate. Not at all. He only says that Hirsh is speculating. Given Hirsh's track record and the history of war mongering by this crowd, there is no reason to believe the speculation is not accurate.

Additionally, the fact that everyone in the Administration is using the same words to respond to the story is a clear indication that it strikes close to the truth and that the White House felt it necessary to frantically came up with that phrase to respond to the story.