Terror Bills and Party Splits -- 10/18/06

Yesterday President Bush signed the terror investigation bill that Congress passed nearly a month ago.  According to the Washington Post (Michael A. Fletcher, Bush Signs Terrorism Measure, 10/18/06), here’s what the bill does in a nutshell: “The new law imposes tight limits on defendants' traditional courtroom rights, including restrictions on their ability to examine the evidence against them, to challenge their incarceration and to exclude evidence gained through witness coercion.” That alone is enough to dramatically change the traditional guarantees of procedural justice that the founders put in place to ensure that people could not be jailed and sentenced in the United States on purely political grounds.  The Bush administration says it will use the new powers only to prosecute terrorists, but the trouble with altering the fundamental protection of rights is that, once you’ve done it, you can’t control how it will be used in the future. What might be the “unintended consequences” of this law?

Also in the news, but not “news” per se, is an article in the Los Angeles Times (Johanna Neuman, Some See “Pink Purge” in the GOP, 10/18/06) about the internal schism in the Republican Party between social conservatives who want the party to stay strictly to its anti-gay agenda, and the party policy of reaching out to moderate voters, some of whom are gay themselves or favor gay rights.  Remember the discussion in Chapter 2 of KTR on the difficulties the Republicans have in holding together a collation that includes those with a substantive position on the role of government in establishing the social order and those with a more procedural position.  The tension between the two sides, exacerbated by recent events like the Foley scandal and a new book that claims that the administration had privately mocked the evangelicals whose votes it has come to depend on, is likely to have repercussions in the upcoming election.  The GOP is counting on its fabled GOTV (get-out-the-vote) machinery, but if social conservatives stay home in large numbers on Election Day, the Republicans will probably lose control of one or both houses of Congress.

The Costs of War -- 9/28/06

A couple of things to note with regard to the Iraq war.

First, as I noted below in discussing the compromise between the White House and the Senate on the interrogation bill, it looks like Pres. Bush is getting much of what he wants, including quick passage of the bill so that he can sign it before Republican congresspeople go home to campaign against any Democrats who vote against it.  The House voted on the bill yesterday and the Senate, having voted down Democratic amendments to beef up detainee rights, is set to do so today. (Charles Babbington, House Approves Bill on Detainees, 9/28/06)  

An editorial in the more liberal New York Times is solidly against the bill but so is one in the usually-supportive-of-the-Iraqi-war Washington Post. 

Andrew Sullivan, a conservative libertarian critic of a war he once supported, has a link on his blog to a YouTube of military, religious, and intelligence experts testifying before Congress on the harmful effects of the behavior that this bill will allow the military and the CIA to engage in.  Sullivan’s blog is kind of eccentric since he covers a variety of issues, but it is the go-to place for anti-torture links and debate on the subject.  He often gives a hearing to his critics, so it is not just one-sided (though there is no doubt about where he stands.)

Jonah Goldberg, in the conservative National Review Online, is one of Sullivan’s critics, claiming that he fails to consider some of the reasons why we engage in coercive interrogation techniques and thinks we are too quick to call them torture. (When Push Comes to Torture, NRO, 9/27/06) 

As you read this stuff, think about the issues raised in Chapter 5 of KTR (p. 157) on the trade-offs between security and freedom.  Thomas Hobbes showed what kind of government fearful people would choose – a Leviathan that protects them but demands all their rights in exchange.  Anything short of that demands debate about how much freedom, how much security.  By urging the quick passage of this bill as an election ploy and threatening to stop all interrogations if it isn’t passed, Bush is silencing the debate that should accompany any decision to reduce the liberties America values.  Even Goldberg concludes his essay with these words:

“In the recent debate over torture, everybody decided to kick the can down the road on what torture is and isn’t. This argument will be forced on us again, no matter how much we try to avoid it. We’ll be sorry we didn’t take the debate more seriously when we had the chance.”

~~~

Another issue to follow today is the partial release by Pres. Bush, yesterday, of the NIE (National Intelligence Estimate), a report prepared by the US intelligence community that basically says that the Iraq war has had a negative effect on US safety.  (Mark Mazzetti, Backing Policy, President Issues Terror Estimate, 9/26/06)

The report, issued in April, was leaked to the New York Times last weekend. Amid calls from Democrats that the report should be made public, Bush declassified a few pages of it, and now the two parties are both trying to spin the results their way.  Most analysis seems to support the Democratic contention that the report paints a grim picture of the war and the impact it has had in breeding new supporters of terror.  Here is the New York Times’ take, but you can find similar views in the rest of the mainstream media: David Sanger, Study Doesn’t Share Bush’s Optimism on Terror Fight, 9/26/06) 

 If Republican members of Congress plan to go home and campaign on Democrats softness on terrorism, the Democrats are headed home to complain that the Republicans’ policies are increasing it.  Hold on to your hats and get ready for a wild ride to Election Day.  The NYT has a nice piece on the increasingly negative campaign commercials that candidates are airing this season: Adam Nagourney, Theme of Campaign Ads: Don’t Be Nice, 9/26/06 

Let's Make a Deal -- 9/22/06

One of the great blessings of politics is that it allows us to negotiate solutions to intractable problems, to cooperate, to make deals, to compromise so that all sides of a dispute can get something of what they want, even if they lose something in the process.

In the deal cut by Senate Republicans and the White House over the president’s interrogation bill, it’s difficult to see what the White House lost.  Despite changes in the language, President Bush will still be allowed to redefine the terms of the Geneva Conventions for all practical purposes when he orders the CIA to interrogate prisoners, and classified information can still be kept from prisoners facing trial based on that evidence.  On a first reading of the deal, what chiefly seems to have been gained by the Senate is deniability.  They are not officially giving the president approval to redefine the Geneva Conventions, but he can effectively do so at his discretion.

I’ll post more on this as analysis comes in, but read the coverage in the Times (Kate Zernike, Republicans Reach a Deal on Detainee Bill, 9/22/06), the WaPo (R. Jeffrey Smith and Charles Babbington, White House, Senators Near Pact on Interrogation Rules, 9/22/06) and the LAT (Julian Barnes and Richard Simon, Bush Bows to Senators on Detainees, 9/22/06) whose headline, at least, sees Bush as capitulating more than the other papers do. Editorials in the Times and the WaPo are both strongly critical of the compromise.   

What this deal appears to do is clear the way for approval of Bush’s bill before members of Congress go home to campaign.  If Democrats vote with them, Republicans can claim a bipartisan victory for Bush.  If Democrats vote against the bill, they can be cast as soft on terror and weak on defense – precisely the outcome Bush and Rove had hoped for in bringing up this issue now. Public opinion polls show that their effort to change the subject to national defense has shown some success as Republican fortunes have improved somewhat (at least, depending on which polls you read.)

Stay tuned….

9/11 and Electoral Politics 9/14/06

With September 11 coming less than two months before Election Day every year, and immediately after the Labor Day launch of the campaign,  it may be too much to hope that politicians would refrain from using it as a rallying cry to get voter support.  Sure enough, on the fifth year anniversary of the bombing of the World Trade Center, Election Day politics got intertwined with memorials and remembrances and warnings against terrorists.

Tuesday morning, Dan Balz and Michael Abramowitz of the Washington Post summed it up: “President Bush's Oval Office speech last night was the culmination of two weeks of efforts to rally the nation behind his policies and presidency by summoning the memory of Sept. 11, 2001.” (President Tries to Win Over a War-Weary Nation, 9/12/06)

Bush’s efforts were about rallying support for the war, as the Post points out, but they were also an attempt to set the agenda for the election campaign. The Republicans would much rather have people talking about the September 11 attacks and national security, issues on which they poll relatively well, than about a war that headlines remind us daily is not going as promised.

Last week, for instance, Bush gave a speech in which he dramatically tried to change the terms of debate by turning some of the most damaging criticisms of his administration into positives. (R. Jeffrey Smith and Michael Fletcher, Bush Says Detainees Will Be Tried, Washington Post 9/7/06)  He has been criticized in the past by both Democrats and Republicans for overreaching his powers as an executive by setting up military tribunals to try terror suspects, for ignoring the Geneva Conventions, for incarcerating prisoners in Guantanamo bay, Cuba, without due process, for allowing the CIA to operate clandestine prisons around the world, for condoning the torture of prisoners of war and for permitting the NSA to eavesdrop on the conversations of Americans. 

In his speech last week he tried to turn those negatives into positives by declaring that his actions were necessary to keep American safe.  He admitted that the US had had held terror suspects secretly and subjected them to controversial interrogation techniques (Bush doesn’t call it torture.) He defended his administration’s actions and said he was transferring 14 prisoners accused of perpetrating the 9/11 attacks to Guantanamo Bay and was asking Congress to give him the authority to order military trials of the sort the Supreme Court had called a halt to in June.  Following his speech, Republicans said they intended to bring his proposals to a vote as soon as possible, hoping to force Democrats into either voting to support Bush or casting a vote against prosecution of the terror suspects, which would help to brand them weak on national security. 

Debate on that vote is currently going on in Congress.  Today (Thursday) Colin Powell, Bush’s former Secretary of State opposed the creation of military commissions for the purpose of trying prisoners, saying that “"The world is beginning to doubt the moral basis of our fight against terrorism." (William Branigin, Powell Opposes Effort to ‘Redefine’ Geneva Provision, Washington Post, 9/14/06.)   At the same time, despite Bush’s personal visit to Capitol Hill to lobby for the passage of his bill, the Senate Armed Services Committee rejected Bush’s proposal that would deny some key rights to prisoners in favor of one that grants them more protections. (David Stout, Senate Panel Defies Bush on Detainee Bill. New York Times, 9/14/06)    Four Republican senators (McCain, Warner, Graham and Collins) joined with all of the Democrats on the committee to reject the president’s version of the bill.

If the Republican strategy is to drive a wedge between the two parties, it may not work if a bipartisan group continues to oppose Bush’s bill.  At issue are whether prisoners have a right to see the evidence that is being used against them and whether statements obtained through torture can be sued as evidence.  Part of the wider debate is whether the U.S. engages in torture, and what actually constitutes torture.  See this video for Bush’s views as expressed to journalist Matt Lauer.  

Although we do not address the issue of torture directly, we discuss the conflicts involved in protecting civil liberties and national security on pp. 157-158 of KTR.  How do you respond to the criticism that if we torture prisoners and deny them their rights, we have become little better than the people we seek to protect ourselves against?

Playing Catch Up After A Busy Week 9/12/06

I am working on a post that will attempt to make some sense of the flurry of speeches given recently by White House personnel, including President Bush.  These speeches, which aim to remind Americans of the horrors of the September 11 attacks on the World Trade Center are also designed to be the opening salvos in the electoral battle for the control of Congress.  I’ll get that post up as soon as I can.  In the meantime, here are some important articles to keep up with.

Dan Balz and Michael Abramowitz , President Tries to Win Over a War-Weary Nation, Washington Post, 9/12/06

R. Jeffrey Smith and Michael Fletcher, Bush Says Detainees Will Be Tried, Washington Post 9/7/06)  

Jim VandeHei and Chris Cillizza, In a Pivotal Year, GOP Plans to Get Personal Millions to Go to Digging Up Dirt on Democrats

Washington Post, 9/10/06.

Dana Priest and Ann Scott Tyson, FIVE YEARS LATER: An Elusive Target Bin Laden Trail 'Stone Cold': U.S. Steps Up Efforts, But Good Intelligence On Ground is Lacking, Washington Post, 9/10/06.

Charles Babbington and R. Jeffrey Smith, Bush's Detainee Plan Assailed Military Lawyers and Senators Call Proposed Rules Unfair, Washington Post, 9/10/06.

David E. Sanger and Eric Schmitt, Cheney’s Power No Longer Goes Unquestioned, New York Times, 9/10/06
Jeffrey Rosen, A Terror Trial, With or Without Due Process, New York Times, 9/10/06
Michael Abramowitz, Cheney: Domestic Iraq Debate Encouraging Adversaries, Washington Post, 9/10/06 

Civil Liberties: Moussaoui's, Al Qaeda's and Ours -- 3/16/06

Good morning, everyone.  Spring Break here at I.U. – hope yours is good wherever it finds you.

A couple of stories to follow this week. 

First, there is the curious story about the FAA lawyer in the Moussaoui sentencing trial. The lawyer, Carla Martin, seems to have single-handedly undermined the federal government’s effort to get the death penalty for 9/11 conspirator Zacarias Moussaoui. In opposition to the expressed orders of the judge in the case that the witnesses should not be exposed to the trial proceedings so that they could not alter their testimony, Martin sent emails to seven witnesses, strategizing about what they were going to say on the stand. (Adam Liptak, Crossing a Fine Line on Witness Coaching, NYT, 3/16/06.) The judge called her behavior “egregious,” and  said that the federal case against Moussaoui had to proceed without the testimony from the witnesses. Prosecutors say this deals their case a death blow, and have asked the judge to reconsider. (Jerry Markon, Prosecutors Scramble to Salvage 9/11 Case After Ruling, WaPo, 3/16/06.)

Since Moussaoui has pled guilty, it is hard to see what the fuss is about here. What is at stake is not whether he gets off free (he won’t) but whether he faces the death penalty or life imprisonment. It will help to understand what is happening here if we apply the procedural/substantive distinction we lay out in Chapters 1 and 2 of KTR (pp. 10-11, 47-48). We explain that often in procedural cultures (like ours) it is more important to ensure that the rules are followed properly than to achieve some particular substantive outcome. We put our faith in procedural due process, to be sure that the rules treat everyone fairly and impartially, and trust that fair results will follow. We could of course say, “Well, we know Moussaoui is guilty, he has confessed after all, so what difference does it make if we ignore this witness tampering at the sentencing stage. What the judge in the case has to grapple with is the fact that because our system guarantees fair rules to everyone, to deny Moussaoui his rights will jeopardize the rights of all of us. If they can be waived for him, they can be waived for anyone.

This issue throws into relief the ongoing scandal of the American treatment of prisoners at Abu Ghraib and at Guantanamo Bay. Some have tried to claim that because the stakes are so huge here (preventing a future terrorist attack) or because these prisoners are not on American soil or are not American citizens, that American procedural guarantees do not apply. Others argue that we are bound by the Geneva Convention and by our own standards of morals and decency to protect the human rights of those we take prisoner. Perhaps the most compelling reason against the torture, offered by critics such as Senator John McCain, himself a former prisoner of war of the Vietnamese, is that to treat the captives as we fear they would treat us sinks us to their level and endangers the American democratic ethic which is what we want above all to protect. The online journal Salon.com has excellent in depth coverage of the Abu Ghraib scandal and has just put up on its site an archive of 279 photos and 19 videos of the abuse, obtained form the Army’s Criminal Investigation Command. (Joan Walsh, The Abu Ghraib Files, salon.com.) 

Take a look at those photos and ask yourself what difference it makes if the United States engages in torture of its prisoners. Is this kind of substantive behavior (treating people as if they are guilty without a trial and taking an “ends justify the means” approach) ever justified? In the Abu Ghraib case, who is responsible for maintaining American standards of behavior – the people on the ground or the people in charge? Does the Abu Ghraib situation shed any like on the judge’s ruling in the Moussaoui trial?

***

Other stories to follow this week. President Bush is issuing a document today reaffirming the “Bush Doctrine” of preemptive war that we discuss in Chapter 18 (pp. 811-812). (Peter Baker, Bush to Restate Terror Strategy, WaPo, 3/16/06.) Essentially, the document will recommit the U.S. to the strategy we embarked on with the war against Iraq in 2002. Should that commitment be tempered by any of the events of the last three years?

Finally, take a look at the NYT article about how Republicans are seizing on Senator Russ Feingold’s efforts to censure President Bush over the NSA spying issue. With Bush’s approval ratings at new lows in the polls, Republicans need to rally their base to get them to turn out in the November congressional elections. Declaring that it is necessary to vote Republican in order to hold off censure or even impeachment proceedings gives them a way to excite voters who are frustrated with the previously popular president’s performance since he was reelected. (David D. Kirkpatrick, Call for Censure is Rallying Cry to Bush’s Base, NYT 3/16/06.) Feingold’s efforts have not been met with any marked success – far more senators voted to censure President Bill Clinton over the Monica Lewinsky scandal than have stepped forward to support Feingold on this civil liberties issue. Why?

Cartoons, Hunting and U.S. Port Security -- 2/22/06

Sorry for the long time between posts. We were traveling and then dealing with a very sick dog.

While a number of events have taken place in the last two weeks, the three that have gotten the most air time by far are the worldwide protests about the Danish printing of cartoons depicting the Muslim prophet Muhammad, the Cheney hunting accident and, most recently, the hullabaloo over the transfer of the control of six American ports from a British owned company to a company owned by the government of the United Arab Emirates.

The Danish cartoon story is a complex one, and it doesn’t really have to do with American domestic politics so I won’t cover it in any depth. It’s a good way to understand the concept of political culture we discuss in Chapter 2, however, (especially the clash between procedural societies in the west and more substantive cultures in the Arab world) and it illuminates some of what’s at stake in the melting pot versus crazy salad controversy. It also may help us think about a few issues that arise in Chapter 5 on civil liberties. One is freedom of religion. We see in the chapter (pp. 165-172) how Americans have struggled to find a balance between allowing religious freedom, but not permitting the state to establish or endorse a religion. A variation of that conundrum arises in the Danish cartoon case. Does religious freedom, with the toleration and respect that that implies, require all people to observe the strongly held religious norms and proscriptions of each religion? Another issue is freedom of the press. Does the fact that the press can print what it likes mean there are no limits on what it should print? This may not be a constitutional question, but an ethical one, that is, it raises issues not of what is legal, but of what is right. This ties into a third civil liberties issue that the Danish cartoon story raises – what is the role of self censorship in a democratic world? Revisit the discussion of free speech on campus (pp. 180-181) and ask yourself if there are any parallels between the political correctness issues raised there and the issues being debated with respect to the Danish cartoons.

About Cheney, I want to say only this. What is interesting to me from a political scientist’s perspective is the way the story developed “legs” and refused to go away despite the Vice President’s best efforts to make it do so. Lots of important stories fizzle for lack of public and media interest, and lots of trivial ones stick around forever. How come? The best analyses of this I have seen argue that it is not because what happened was of such earth-shaking importance (except, of course, to the people involved) but rather that it fit so well with the views many people already held about the Vice President, what political scientist Larry Sabato, who has studied the anatomy of such scandals, calls playing into the “subtext.” People already thought that Cheney was secretive and that he set his own rules, so his behavior over the hunting accident only reinforced that. Other than to weaken his own popularity ratings, however, there is probably minimal fallout from what Sabato calls the “feeding frenzy.”

Finally, this morning all the papers are abuzz with Bush’s declaration that he would veto any congressional legislation to halt the deal his administration has made to turn over control of 6 U.S. ports to a company owned by the United Arab Emirates. (David E. Sanger and Eric Lipton, NYT Bush Would Veto Any Bill Halting Dubai Port Deal, 2/22/06.)

Not only Democrats but many Republicans including House Speaker Denny Hastert and Senate Majority Leader Bill Frist are calling on Bush to stop the deal since they fear it will endanger U.S. security to have our ports out of our control. Bush, who has not yet vetoed a bill (KTR, pp. 334-335) says he will veto one interfering with this deal and argues that Congress and the American people should trust him.

An editorial in the Washington Post (Port Security Humbug, 2/22/06) takes Bush’s side here, pointing out that the ports are already managed by a foreign-owned company (in Great Britain), that the UAE are allies, and that port security is currently and will continue to be controlled by the U.S. Coast Guard.

Nonetheless, Bush is getting clobbered by liberals and conservatives alike on this one, and in that sense he is probably reaping what he has sown. Since 9/11 he has emphasized that national security should take precedence over even such essentials to the American system as civil liberties and checks and balances. His detractors are simply using the same issue frame (a term borrowed from the media chapter, KTR p. 659) that the administration has polished over the years. He has yet to make a convincing case to the public that the port control issue does not present a case of “business as usual” trumping security concerns.

Religious Protests, Congressional Elections, and Presidential Power -- 2/6/06

Good morning. No big events over the weekend but a couple of good pieces to think about.

One, from Sunday's NY Times, (Craig Smith, Adding Newsprint to the Fire, 2/5/06) does a fine job of outlining some of the issues at stake in the demonstrations by Muslims against a Danish newspaper's printing of cartoonists' images of the Prophet Muhammed (Islamic law forbids any imagery of him whatsoever). Consider the issues involved from the point of view of the political culture discussion in Chapter 2 (especially along the procedural/substantive political dimension) and the discussion of religious freedom and toleration in Chapter 5.

This morning's Washington Post has an article about the upcoming congressional elections in November (Dan Balz and Chris Cillizza, Handful of Races May Tip Control of Congress, 2/6/06). While it is way too early to make predictions (and the article doesn’t, in fact, make any) it does do a good job of laying out what are the electoral stakes in the 2006 midterm elections (which seats are vulnerable, what it will take to switch party control in each house, etc.) and putting them into recent historical context. For a close examination of the issues involved in the upcoming elections, (and a spiffy elections map) see CQPolitics.com.

Finally, see the LA Times for a good discussion of what's at stake in Bush's claim to inherent powers to act during wartime as the Senate begins hearings into the latest concrete instance of that claim -- Bush's order authorizing the NSA to eavesdrop on domestic phone calls (David G. Savage, The Power of the President, 2/6/06).  I've posted on the issues involved here, here, and here several times in the last month or so. Remember to refer to the What's at Stake in Chapter 8, and to consider how Bush's views of presidential power affect the checks and balances in the Constitution.

A Summary of the Week's News 1-27-06

No big news items this week on the domestic front, but lots of little ones. I've been saving them for a single post and, since today's news coverage obliging has some good catch up pieces, this post will be kind of long. You can savor it over the weekend.

Mostly the domestic news of the week has been focused on three issues: the Alito confirmation, the White House's offensive on the NSA spying issue, and the leaks and hints about the content of the President's State of the Union Address coming up on Tuesday.

Alito

As far as the Alito hearings go, it looks like the White House has the votes to confirm. No Republicans have defected so far and at least three Democrats will vote to confirm. Other Democrats oppose his confirmation either on the grounds that they think he would vote to overturn Roe v. Wade, which says that a woman's decision to have an abortion in the first three months of pregnancy is an exercise of the right to privacy, or because they believe that he will rule in a way to give too much power to the president (see the post on signing statements, below.)

Thursday Senator John Kerry announced that he would attempt to filibuster the vote on Alito and said he had the support of Senator Ted Kennedy. As we explain in KTR (pp. 306-308) a filibuster allows a minority of senators to halt activity on the Senate floor, but it can be stopped by a vote of cloture (which takes 60 votes.) The White House says it has those votes, and it probably does. In 2005 Republicans threatened to eliminate the use of the filibuster for judicial confirmations(a strategy they called the nuclear option) but a group of moderate Democrats and Republicans reached an agreement to preserve the legislative maneuver in exchange for an agreement not to support a filibuster unless there were extraordinary circumstances (KTR, p. 308.) It is unlikely that Kerry and Kennedy would seriously jeopardize the filibuster's fate here, but if they know they will lose the cloture vote they can take a stand without risking the nuclear option. The tactic is still controversial among Democrats right now. Though it pleases the Democratic base, many in the party fear that it will distract from issues where they feel the Republicans are really vulnerable. (Charles Babbington, Democrats Split Over Filibuster on Alito, WaPo, 1/27/06.) Senator Frist plans to schedule a vote to end debate on Monday and a vote to confirm Alito on Tuesday, a nice send-off for the President's State of the Union speech that night (see KTR, p. 334.)

NSA Eavesdropping

One issue the Democrats want to keep on the public's agenda is the NSA's domestic spying operation. The Bush administration has launched an offensive to frame the surveillance as necessary to keep Americans safe -- fanning out to TV talk shows and making public speeches (Bush even gave one at the NSA) arguing that only Americans having conversations with Al Qaeda members were eavesdropped on. They don't call it spying or eavesdropping they call it a "terrorist surveillance program," and they say they can't discuss it much because to do so would help the enemy. Critics of the eavesdropping dispute that and argue that the issue here is not safety, since Bush could have conducted the surveillance legally had he chosen to get search warrants, but rather the unchecked power of the executive. Nothing is new on this legally since I posted below; what has changed is the Bush administration's decision to take the case to the public in black and white terms. The political fight here is for how the issue is to be understood: If Bush succeeds in making it about security, the public is likely to support him; if his critics can make it about civil liberties and an executive power grab, they are less likely to do so. The latest New York Times poll shows this in graphic terms; 53% of respondents support eavesdropping to reduce the threat of terrorism, but only 46 % support it if terrorism is removed from the question. (Adam Nagourney and Janet Elder, New Poll Finds Mixed Support for Wiretaps, NYT, 1/27/06.) See the KTR public opinion chapter for a discussion of how important question wording can be in polling (pp. 465-466) and the media chapter for a discussion of framing (pp. 659-660) and news management (pp. 666-669.)

SOTU

Finally, there is increasing coverage of the issues that Bush is likely to air in his State of the Union address. One issue that he seems sure to talk about is health care. While details of his proposal have not been revealed yet, from various leaks it seems clear that he will try to do something similar to what he attempted with Social Security last year -- focus on revamping the program to transfer more responsibility to individuals. (Peter Gosselin, Health Plan to Revive Debate, LAT, 1/23/06.) In this case, that will mean tax cuts to individuals to cover their own health care costs -- perhaps a beefing up of the medical savings account program where Americans carry health insurance only for catastrophic care, and pay for their other medical expenses out of tax-exempt savings accounts. The idea here, long endorsed by conservatives, is that if people have to pay for their care out of their own pockets (as opposed to having it covered by insurance) they will make more financially savvy decisions and be a lot less likely to seek unnecessary treatment, causing health care costs to decline. Eventually, if the health care system moved in this direction, employers would not offer health insurance packages to employees as they do now, and the entire face of health care provision in the country could change. As with Social Security, however, this could be a hard sell to the American people, many of whom are unwilling to face risk with only their own resources. A NYT piece about how the banks (who would have a central role in these savings accounts) are positioning themselves to take advantage of them does a pretty good job of explaining what's involved. (Eric Dash, Savings Accounts for Health Costs Attract Wall St.)

Other News Worth Noting

Bush held a press conference Thursday. (For a semi-humorous take on the conference, read Dana Milbank, Trying to Maintain Control of the State, in a State of Confusion, WaPo, 1/27/06.) Although as Milbank points out, his discussion was largely devoted to defending executive prerogative, he also fielded questions about the Hamas victory in the Palestinian legislative elections (complicated story, but briefly, Hamas is a terrorist organization, sworn to eliminate Israel; Bush supports democracy in the Mideast in Iraq and elsewhere, hoping that peaceful parties will win, but democracy is not an easy force to control as the Palestinian elections make clear) and the suppression of pictures taken with him and Jack Abramoff (he says the pictures are irrelevant; they seem to have been purged from existing records so they can't be used for "political purposes" but it's not clear who has done the purging). John Dickerson in Slate points out that they aren't irrelevant, they actually help Bush by distracting the press from questions about Abramoff's real influence in the WH. (Dickerson, All the President's Dodges, Slate, 1/16/06.)

The LAT releases new approval ratings for Bush -- 43%, the lowest Bush has received in their poll. This poll also echoes the NYT finding that people support the wiretapping if done to protect us from terrorists. (Ron Brownstein, Bush's Ratings Sink, but Trust Remains, 1/27/06.) See KTR, pp. 342-349; 364-367, to understand how important a president's public approval is to his ability to get things done.

Gonzales vs. Oregon -- 1/18/06

On p. 200 of KTR we discuss the right to die issue and point out that the Supreme Court had agreed to hear a federal challenge to an Oregon law allowing doctors to prescribe (but not to administer) medication to assist terminally ill patients (diagnosed with less than six months to live) to end their lives. 

The Court's decision in Gonzales vs. Oregon was announced Tuesday morning; by a 6-3 vote the justices upheld the Oregon law, ruling that the Controlled Substances Act under which then-Attorney General John Ashcroft challenged Oregon's law didn't empower the federal government to strike down the state law. Dissenting were Chief Justice Roberts and Justices Scalia and Thomas. 

Although we discuss this case in the Civil Liberties chapter under the heading "The Right to Die," it is important to note that the Court didn't decide the case on civil liberties grounds. Rather, it issued a narrow ruling, focused on the federalism issue of whether the congressional statue designed to control drug trafficking and abuse by depriving doctors of their licenses if they used them for illegitimate purposes empowered a member of the executive branch to use that statute to override the state assisted suicide law. It held that the power of physicians to write prescriptions intended to allow a terminally ill patient to end his or her own life was a legitimate medical purpose under the law. The dissenters said it was not.

Out of all the coverage this morning, the New York Times does the best job explaining that this is truly a narrow ruling, not an endorsement of the right to die, which the Court had also refused to endorse in an earlier case. (Timothy Egan and Adam Liptak, Fraught Issue, but Narrow Ruling in Oregon Assisted Suicide Case, 1/18/06.) They quote the Governor Theodore R. Kulongoski of Oregon, who said that the impact of the case will be to allow states to try out policies that their citizens want without forcing them to fit a standardized national mold. He said, "The U.S. Supreme Court recognized the delicate balance between our federal system and the right of the states to be the crucibles for new ideas and new ways to meet the changing needs of their citizens." We discuss this role of the states as "laboratories of democracy" throughout the KTR text, but primarily on pp 126, 139, 596-97, and 695-96.

Other papers are not so circumspect. The Washington Post's headline declares "Justices Uphold Oregon Assisted-Suicide Law: In a Blow to Administration, Ruling Paves Way for Other States to Follow Suit" (1/18/06), but as the LA Times article makes clear, that's not necessarily the case. (Jordan Rau, Is California Next in Line? 1/18/06.)

Things to think about:

Why would the Court sidestep the right to die issue in favor of ruling on a much more narrow legal issue?

Why would Roberts, Scalia and Thomas, arguably the three most conservative justices on the Court, at least until Alito is confirmed, dissent in this case? Conservatives  would be more likely to take the "pro-life" position here, but why would they also sign on to an endorsement of executive power over the states?

The 6-3 ruling gives the majority a good margin here. How would the result be likely to differ if Alito had already replaced Justice O'Connor, who voted with the majority? What does that say about the future ideological balance on the Court?

Updates -- 1/17/06

Today's papers have some quick follow-ups to the stories we have been covering here. None of these contain breaking news, but if you are following these stories you'll find them interesting.

Re: Alito. The Senate Democrats, while recognizing that they don't have the votes to stop Alito from being confirmed, still have a parliamentary trick or two up their sleeves to try to dilute the victory for Bush. This Washington Post article explains the maneuvering behind the timing of the Senate Judiciary Committee's vote to confirm him, currently delayed until next week. (Amy Goldstein, Senate Panel's Vote on Alito Delayed Until Next Week, 1/17/06.)

The New York Times has several articles relating to the NSA spying controversy. The most interesting relies on leaks from the FBI, whose agents seem to want to avoid getting tarnished by the emerging scandal. They say that they argued early on that the warrantless searches, which they had to follow up on, were illegal and that there were no real gains from the effort anyway, just a diversion of their time and energy. (Lowell Bergman, et al., Spy Agency After Sept. 11 Led FBI to Dead Ends, 1/17/06.)

Another NYT article discusses the intentions of two groups representing some American journalists and lawyers to sue the federal government on the grounds that the eavesdropping is illegal. The individuals fear that their conversations may have been monitored by the NSA. The Bush administration responds that their actions were legal and necessary to prevent terror attacks in the U.S. and it and opposes the law suits. The same article reports on a story all the other papers carry as well--former vice president Al Gore made a speech Monday declaring his opinion that the NSA spying without warrants constitutes a "gross and excessive power grab."  (Eric Lichtblau, Two Groups Planning to Sue Over Federal Eavesdropping, 1/17/06.)

Finally, the NYT reports on Congressman Bob Ney from Ohio, who, it says, is likely to face an indictment over the Abramoff lobbying scandal for doing favors for Abramoff's clients in exchange for gifts and travel. Ney claims he was tricked by Abramoff. (Anne E. Kornblut, Spotlight on Lobbying Swings to Little Known Congressman, 1/17/06.)

Domestic Surveillance by the National Security Agency -- 1/16/06

The last of our three catch-up posts. This one is a complicated story, with lots of threads, but mostly it is about presidential power and civil liberties. In a nutshell, this is what happened. (James Bamford, The Nation: Private Lives; The Agency that Could Be Big Brother, NYT, 1/25/06--subscription required.)

In the days after September 11, 2001, President Bush authorized the National Security Agency (NSA), a part of the U.S. intelligence community (see KTR, p. 818), to conduct eavesdropping operations within the United States without first stopping to get a search warrant from a special court set up for that purpose called the FISA court (for the Foreign Intelligence Surveillance Act that established it.) 

The domestic spying came to light in a NYT article on December, 16, 2005. (James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts--subscription required.) The NYT had known about the surveillance activity for a year, but had kept quiet at the request of the Bush administration (raising a storm of questions about free speech and the role of the press in holding politicians accountable. Even the NYT's own public editor was critical. (Byron Calame,  Behind the Eavesdropping Story, a Loud Silence, 1/1/06.)  When the Times decided to publish their information, Bush accused them of aiding the forces against the United States.

Bush claims that he was empowered to bypass the step of obtaining search warrants because of the need to provide national security and that Congress had basically authorized him to do so with legislation passed immediately after 9/11. Tom Daschle, who was Senate majority leader at the time, says that the Senate specifically did not give Bush that power. (Tom Daschle, Power We Didn't Grant, WaPo, 12/23/05). Other critics of the administration, including some people in the president's own party, claim that Bush overstepped his executive authority and infringed on civil liberties of Americans who are supposed to be protected against unreasonable searches and seizures (i.e., searches without a warrant). The Senate Judiciary Committee plans to conduct hearings into the legality of Bush's authorization. (Douglas Jehl, Specter Says GOP Will Scrutinize Domestic Spying, NYT, 1/15/06.) 

As we point out in KTR (pp. 157-158), there is always a tradeoff between civil liberties and national security. We could be completely safe in a locked down state, but not very free. On the other hand, total freedom carries all sorts of dangers and security risks. Drawing the line between security and liberty is a tricky political task. We argue in the book that nonauthoritarian governments are limited in the rights they can take away because citizens in a democracy will be outraged at the loss of freedom. (Katherine Shrader, Poll: Americans Want Warrants for Spying WaPo, 1/11/06.)

Things to think about here:

Are the American citizens outraged at the loss of freedom? How do the polls say they make the tradeoff between freedom and security? Who should decide where to draw the line--the president? Congress? The courts? Public opinion?

Similarly, what obligations does the press have to inform the public (or to keep silent) about issues like this? How do we balance freedom of the press and national security?

What are the long term costs of allowing Bush the kind of strengthened executive authority he is claiming to have here? How do his actions affect checks and balance, given the other ways that the administration has acted to shore up executive authority (see KTR, pp. 319-320; 368, and also the discussion of executive power and “signing statements” in the Alito post, 1/11/06).

Alito, Day 2 -- 1/11/06

Keeping up with the Republic is tricky over the holidays, when we all have so many things going on in our lives. Without recapping the whole last month of news, there are some ongoing stories that readers of KTR will find helpful to illustrate points in the book, and that the framework of the book in turn can help illuminate. Three main catch-up stories seem the most important this week:

• the U.S. Senate confirmation hearings of Judge Samuel Alito to replace Justice Sandra Day O'Connor on the Supreme Court;
• the recent plea agreement of lobbyist Jack Abramoff, with the consequent withdrawal of Congressman Tom Delay from his position as House Majority Leader, and the race to replace him;
• the ongoing debate over the National Security Agency's wiretapping of phones without a warrant.

So I don't overload you with things to think about today, I'll start with Alito this morning and cover the other two over the next few days.

Alito's confirmation hearings kicked off on Monday, with a statement from the nominee and continue this week with questioning from the senators on the Senate Judiciary Committee. As we explain in Chapter 10, Supreme Court justices are nominated by the president with the advice and consent of the Senate, which means the Senate holds hearings on the nomination in committee and then votes as a whole. The hearings can be tedious, as each Senator takes the opportunity to make a little speech, sometime seeming more interested in his or her own views than those of the nominees. While fireworks had been expected in these hearings, none have been apparent so far. (Dana Milbank, "A Day of Qs and As, and a Few Zs," WaPo, 1/11/06)

Many considerations go into a president's nomination of a justice, but perhaps the most important these days is ideology, which in the case of the Court means how the nominee is likely to read the Constitution: literally (a judicial philosophy we call strict constructionism) or flexibly (called interpretivism.) (KTR, p. 437.) In Alito, Bush chose a strict constructionist and the questions the senators are posing to Alito are focused on just how strict a constructionist he would be, especially with respect to abortion. Would he recognize the precedent set in Roe v. Wade that allows a woman to have an abortion in the first three months of pregnancy based on a judicially created right to privacy, or will he say no such privacy right exists in the Constitution and vote to overturn Roe? The Court is divided between constructionists and interpretivists right now, with Sandra Day O'Connor often providing the swing vote, so how Alito would vote makes a difference. Alito, although he is on record as pro-life and has voted in the past to restrict a woman's right to an abortion somewhat (he has, for instance, said a woman ought to notify her husband if she chooses to have an abortion) predictably he is not saying how he would vote, but is rather skating around the issue. (Richard W. Stevenson and Neil A. Lewis, "Alito, at Hearing, Pledges an Open Mind on Abortion," NYT, 1/11/06)

Another issue that has arisen in the Alito confirmation is the question of executive power. Statements from early in Alito's career when he worked in the Reagan White House indicate that he would favor a stronger role for the president, and he in fact favors the idea that a president should issue a "signing statement" when he signs a piece of congressional legislation so that when courts go to interpret the law, they rely not only on what Congress intended but also on the president's understanding of what he was signing. This doctrine, practiced by the Bush administration, which has already made several efforts to expand the power of the executive branch, would strengthen the president's role in the legislative process considerably. Bush issued a signing statement just recently, when he signed an anti-torture bill sponsored by, among others, Senator John McCain. The bill forbade the United States government to engage in torture to acquire information from detainees, essentially on the grounds that, if we fail to protect human rights we are little better than the people who seek to harm us. Bush, who has long insisted that the president needs to be able to wage the war on terror with a free hand, signed the bill and issued a statement that says that he intends to follow the law when he can. The implication, of course, is that sometimes he may not be able to, and depending on how you view the force of the signing statement, it may or may not change the meaning of the law that Congress passed. Alito has supported the expansion of presidential power in the past (which may be one of the main reasons Bush nominated him), but on Monday before the Senate Judiciary Committee, he insisted that the president is subject to constitutional limitations. (Josh White, "Kennedy Makes a Weapon of McCain's Torture Law," WaPo, 1/11/06.) The founders, who wanted a limited executive (and in fact who wanted a limited government period) would have been happy to hear that.

These two issues, strict constructionism/right to privacy/abortion rights and the expansion of executive power, are probably the ones to watch as the hearings proceed, although at least one analyst claims that the Democrats' inability to settle on one overarching criticism of Alito weakens their ability to make a coherent case against him. (Ron Brownstein, "Democrats Cast Wide Net Seeking Alito Flaw," LATimes, 1/11/06.)

Some things to think about:

• How much should the Senate's views count in the appointment of a justice? If a minority is strongly opposed, should it be allowed to filibuster the president's choice? (KTR, p. 306-308; 431.)
• What are the political implications of a justice's commitment to a philosophy of strict constructionism or interpretivism? How does it affect who gets what (who wins and who loses) in American politics? (KTR, pp. 437-438.)
• What should the limits be on the president’s power? The founders debated this issue, but came down on the side of a limited executive (KTR pp. 111-114); the Bush administration seems focused on expansion (KTR 319-320, 368; 340-341.) What are the costs of expanded executive power? What are the advantages?