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?

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?

Alito Confirmed and SOTU Addressed -- 2/1/06

As all the papers indicate today, Samuel Alito was confirmed yesterday as expected, pretty much along a party line vote (four Democrats voted for, one Republican voted against). The NYT has a piece on how that may shape cases coming up this year. (Adam Liptak, Alito Vote May Be Decisive in Marquee Cases This Term, 2/1/06.)

By the way, a few days ago Dahlia Lithwick, the legal analyst for Slate had an excellent piece on the impact of the presidential signing statement that Alito supported in his Reagan days. She tends to be on the liberal side, but her analysis is pretty sound regardless of ideology. I noticed that Andrew Sullivan is promoting it on his blog (andrewsullivan.com) and he is generally a conservative libertarian. Anyway, Lithwick's piece is well worth reading and thinking about. (Dahlia Lithwick, Sign Here, Slate, 1/30/06.)

Also yesterday (or last night) was Bush's State of the Union Address. Most of the papers this morning seem to suggest that it was not a path breaking speech. He stuck to defending his foreign policy in Iraq and his NSA wiretapping, and launched a few domestic initiatives -- the tax incentives for medical savings accounts we mentioned the other day, and a modest plan to reduce America's dependence on foreign oil. The WaPo has a good article on why Bush has little political capital to spend this year. (Dan Balz and Jim VandeHei, Lowered Expectations Reflect Political and Fiscal Realities, 2/1/06, and Ron Brownstein, in the LAT, also has a good analysis of what the president proposes to do, and why his goals were modest. (To Still Midterm Waters, Bush's Agenda Is Cautious, 2/1/06.) 

If you missed it, you can read the speech here. The LAT fact checks it here: Peter Wallsten and Maura Reynolds, Bush Stretches to Defend Surveillance, 2/1/06.

Tim Kaine, Governor of Virginia, gave the Democratic Response after the speech. (Michael Shear, Va.'s Kaine Assails "Poor Choices, Bad Management," WaPo, 2/1/06.) 

Alito, SOTU, DeLay and Race -- 1/30/06

A couple of quick things you should read this morning that supply background to events that are coming up this week: the Alito vote, the president's State of the Union Address, and the House vote to replace Tom DeLay.

The NYT has a good piece on the conservative strategy, begun in 1982, that has ended with Alito's nomination (and expected confirmation) to the Supreme Court. In Chapter 10 we make the argument that the Supreme Court, despite its robes and marble columns and velvet drapes, is a political institution. This article should drive that point home. (David D. Kirkpatrick, In Alito, G.O.P. Reaps Harvest Planted in 1982.)

The Times also has a piece, a little fluffy, but interesting, on the process of writing the State of the Union address. (Elizabeth Bumiller, Summing Up the Union, and in the Boss's Words.) There have been lots of leaks in advance of the speech, especially as we noted last week on the subject of the president's possible proposals on health care. Be sure to watch the speech tomorrow night and to read coverage of it the next day.

The Washington Post reviews how current political scandal and negative poll numbers for congressional Republicans are playing out in the House election on Thursday to choose a new Majority Leader to replace Tom Delay. (Jonathan Weisman, Corruption Scandals Cast Shadow on GOP Leadership Race.)

On another less pressing note, the Washington Post also covers a conference of social psychologists who have done some fascinating research on how people form political attitudes. In Chapter 11, we talk about how attitudes are transferred from generation to generation through political socialization, but these individual level studies put a new twist on how attitudes form -- how we process negative information about politicians we like and also how our racial biases influence our political choices. Controversial, but interesting stuff. (Shankar Vedantam, Study Ties Political Leanings to Hidden Biases.)

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?

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?