Commentary Magazine


Topic: John Yoo

Evening Commentary

Secret recordings were released this week showing Nixon and Kissinger callously dismissing the plight of Soviet Jews. But Seth Lipsky argues that leaders should be judged by their actions — such as Nixon’s appointment of Jews to high-level posts in his administration and support of Israel during the Yom Kippur War — as opposed to their private prejudices: “Is it better to have a president who loves African Americans and Jews and disappoints them strategically? Or one who privately voices prejudice but defends their rights and supports them strategically?”

There was a time when Ehud Barak could have made this call. Bibi kindly points out that now is not that time.

Reports this week that 25 percent of Gitmo alums have already returned to the battlefield further highlight the necessity of keeping the detention center open: “Contrary to the Gitmo myth, innocent teenagers and wandering goat herders do not fill the base. Last May, an administration task force found that of the 240 detainees at Gitmo when Mr. Obama took office, almost all were leaders, fighters or organizers for al Qaeda, the Taliban or other jihadist groups. None was judged innocent,” write John Yoo and Robert Delahunty in the Wall Street Journal.

Mitch Daniels is known for his laser focus on the economic crisis, but values voters shouldn’t discount his solid track record on social issues, writes Mona Charen.

With Rahm Emanuel gone, Joe Biden will begin playing a much larger role in the Obama administration, reports the New York Times. (Could this translate into even more inside access for Bad Rachel?)

Even as the controversy over Juan Williams’s firing dies down, Republicans are still preparing to battle NPR over public funding next year, reports Politico.

Secret recordings were released this week showing Nixon and Kissinger callously dismissing the plight of Soviet Jews. But Seth Lipsky argues that leaders should be judged by their actions — such as Nixon’s appointment of Jews to high-level posts in his administration and support of Israel during the Yom Kippur War — as opposed to their private prejudices: “Is it better to have a president who loves African Americans and Jews and disappoints them strategically? Or one who privately voices prejudice but defends their rights and supports them strategically?”

There was a time when Ehud Barak could have made this call. Bibi kindly points out that now is not that time.

Reports this week that 25 percent of Gitmo alums have already returned to the battlefield further highlight the necessity of keeping the detention center open: “Contrary to the Gitmo myth, innocent teenagers and wandering goat herders do not fill the base. Last May, an administration task force found that of the 240 detainees at Gitmo when Mr. Obama took office, almost all were leaders, fighters or organizers for al Qaeda, the Taliban or other jihadist groups. None was judged innocent,” write John Yoo and Robert Delahunty in the Wall Street Journal.

Mitch Daniels is known for his laser focus on the economic crisis, but values voters shouldn’t discount his solid track record on social issues, writes Mona Charen.

With Rahm Emanuel gone, Joe Biden will begin playing a much larger role in the Obama administration, reports the New York Times. (Could this translate into even more inside access for Bad Rachel?)

Even as the controversy over Juan Williams’s firing dies down, Republicans are still preparing to battle NPR over public funding next year, reports Politico.

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Flotsam and Jetsam

An unnamed NBC exec explains what’s wrong with a talk show host making campaign donations. It’s sort of like Pete Rose betting on baseball. “The minute that a paid commentator starts betting on an outcome, you call into question your credibility in Republican primaries or Democratic primaries, you call into question whether an elected hopeful/official is coming on your air to win a favor, to win your endorsement and then it defeats the purpose of why you have a show in the first place.”

Jon Stewart explains to the media what’s wrong with picking on politicians’ kids. (Yes, it’s pathetic that Stewart is now among the best MSM ombudsmen out there.)

Sounds like he’s figured out what’s wrong with the RNC. “In his announcement [for RNC chairman], Saul Anuzis promised to be ‘a nuts & bolts type of Chairman.’ ‘Of course I will be happy to discuss politics and elections with the media,’ he wrote, ‘but I won’t be competing with valuable airtime from the men and women on our ticket.’ He also pledged to serve only one term.”

John Yoo’s take (which I am delighted matches my own) on what’s wrong with Obama’s anti-terror policies: “The near-total acquittal of an al Qaeda agent by a New York jury this week should, at a minimum, be the last gasp for President Obama’s misguided effort to wage the war on terrorism in the courtroom. But it should also spell the end for a broader law-enforcement approach that interferes with our effective prosecution of the conflict. The best course now is simply to detain al Qaeda members, exploit them for intelligence, and delay trials until the end of hostilities.”

Nothing better sums up what’s right and what’s wrong with Sarah Palin than Matt Labash’s brilliant piece on her new reality show. A sample: “Gravitas, it’s safe to say, is the enemy of freedom. And freedom is about motion—being in it, staying in it. On the show, this involves seein’, and doin’, and experiencin’ things that don’t require a ‘g’ on the end of them, such as shootin’, and rock climbin’, and snow machinin’, and clubbin’ halibut over the head (‘let me see the club, you look crazy,’ says Bristol to her mom when they do the deed on a commercial fishing boat) and media-critiquin’ and BlackBerryin’, which Palin gets caught doing even in the midst of wilderness adventures.” Read the whole thing — and prepare to roar.

Diana Furchtgott-Roth explains what’s wrong with ObamaCare: “If Obamacare offered as much choice as federal health plans, there would be no need to repeal it. Obamacare is a mandatory, one-size-fits-all, expensive, Cadillac plan. The federal health plan allows workers to sign up for low-cost catastrophic plans with health savings accounts (illegal under Obamacare) or high-cost plans with more coverage, all at different prices. Or workers can opt out altogether and pick another system without penalty (again, illegal under Obamacare). Sign-ups and plan changes are once a year, not if you get sick. If Congress replaced Obamacare with the federal plan, everyone would be better off.”

Daniel Kurtzer’s diagnosis of what’s wrong with the Obama peace-plan bribe is screwy. He thinks it “rewards” Israel for settlement-building. But it is instructive in one sense: no one seems to agree it’s a smart move.

What’s wrong with the Obama peace-plan gambit? Elliott Abrams and Michael Singh explain: “The most worrying aspect of Obama’s package is the linkages it establishes between Israeli concessions on settlements (and apparently on the pace of construction in Jerusalem as well) and other unrelated policy matters. Washington has long opposed, and frequently vetoed, U.N. Security Council initiatives targeting Israel. … The suggestion that unless there is a construction freeze America will no longer do so will make it far harder for U.S. negotiators to defeat or soften drafts put forward in the council in future years, and encourage further assaults on Israel there. Leaving Israel undefended in the United Nations will make successful negotiations less, not more, likely, for an Israel that is under constant attack will batten down the hatches not ‘take risks for peace.'” Read the whole thing.

An unnamed NBC exec explains what’s wrong with a talk show host making campaign donations. It’s sort of like Pete Rose betting on baseball. “The minute that a paid commentator starts betting on an outcome, you call into question your credibility in Republican primaries or Democratic primaries, you call into question whether an elected hopeful/official is coming on your air to win a favor, to win your endorsement and then it defeats the purpose of why you have a show in the first place.”

Jon Stewart explains to the media what’s wrong with picking on politicians’ kids. (Yes, it’s pathetic that Stewart is now among the best MSM ombudsmen out there.)

Sounds like he’s figured out what’s wrong with the RNC. “In his announcement [for RNC chairman], Saul Anuzis promised to be ‘a nuts & bolts type of Chairman.’ ‘Of course I will be happy to discuss politics and elections with the media,’ he wrote, ‘but I won’t be competing with valuable airtime from the men and women on our ticket.’ He also pledged to serve only one term.”

John Yoo’s take (which I am delighted matches my own) on what’s wrong with Obama’s anti-terror policies: “The near-total acquittal of an al Qaeda agent by a New York jury this week should, at a minimum, be the last gasp for President Obama’s misguided effort to wage the war on terrorism in the courtroom. But it should also spell the end for a broader law-enforcement approach that interferes with our effective prosecution of the conflict. The best course now is simply to detain al Qaeda members, exploit them for intelligence, and delay trials until the end of hostilities.”

Nothing better sums up what’s right and what’s wrong with Sarah Palin than Matt Labash’s brilliant piece on her new reality show. A sample: “Gravitas, it’s safe to say, is the enemy of freedom. And freedom is about motion—being in it, staying in it. On the show, this involves seein’, and doin’, and experiencin’ things that don’t require a ‘g’ on the end of them, such as shootin’, and rock climbin’, and snow machinin’, and clubbin’ halibut over the head (‘let me see the club, you look crazy,’ says Bristol to her mom when they do the deed on a commercial fishing boat) and media-critiquin’ and BlackBerryin’, which Palin gets caught doing even in the midst of wilderness adventures.” Read the whole thing — and prepare to roar.

Diana Furchtgott-Roth explains what’s wrong with ObamaCare: “If Obamacare offered as much choice as federal health plans, there would be no need to repeal it. Obamacare is a mandatory, one-size-fits-all, expensive, Cadillac plan. The federal health plan allows workers to sign up for low-cost catastrophic plans with health savings accounts (illegal under Obamacare) or high-cost plans with more coverage, all at different prices. Or workers can opt out altogether and pick another system without penalty (again, illegal under Obamacare). Sign-ups and plan changes are once a year, not if you get sick. If Congress replaced Obamacare with the federal plan, everyone would be better off.”

Daniel Kurtzer’s diagnosis of what’s wrong with the Obama peace-plan bribe is screwy. He thinks it “rewards” Israel for settlement-building. But it is instructive in one sense: no one seems to agree it’s a smart move.

What’s wrong with the Obama peace-plan gambit? Elliott Abrams and Michael Singh explain: “The most worrying aspect of Obama’s package is the linkages it establishes between Israeli concessions on settlements (and apparently on the pace of construction in Jerusalem as well) and other unrelated policy matters. Washington has long opposed, and frequently vetoed, U.N. Security Council initiatives targeting Israel. … The suggestion that unless there is a construction freeze America will no longer do so will make it far harder for U.S. negotiators to defeat or soften drafts put forward in the council in future years, and encourage further assaults on Israel there. Leaving Israel undefended in the United Nations will make successful negotiations less, not more, likely, for an Israel that is under constant attack will batten down the hatches not ‘take risks for peace.'” Read the whole thing.

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New START Treaty: Much Ado About Nothing

A lot of foreign-policy experts I respect — including John Bolton, Eric Edelman, John Yoo, and Jim Woolsey — have come out against the ratification of the New START treaty, which would decrease American and Russian nuclear arsenals. For my part, I’m with Bob Kagan in wondering what the fuss is all about.

Arms-control treaties between Moscow and Washington were a big deal during the Cold War when the Soviet Union was bent on global expansionism and the U.S. had to stand on the frontlines of freedom. But the Soviet Union is gone. Today’s Russia may be a local threat to its smaller neighbors, the likes of Georgia or Estonia, but on a global scale it’s more of a nuisance — certainly not an existential threat to the United States. Thus the continuing quest for arms-control treaties seems like a bit of an anachronism.

Yet it is an anachronism that has been pursued by both Republican and Democratic administrations. As this crib sheet from the Arms Control Association reminds us, George H.W. Bush signed START II in 1993, Bill Clinton followed with a START III framework (never completed) in 1997, and George W. Bush reached agreement on SORT (a.k.a. the Moscow Treaty) in 2002. Kagan sums up the results of all these treaties along with New START:

The START I agreement cut deployed strategic nuclear weapons on both sides roughly 50 percent, from between 10,000 and 12,000 down to 6,000. The never-ratified (but generally abided-by) START II Treaty cut forces by another 50 percent, down to between 3,000 and 3,500. The 2002 Moscow Treaty made further deep cuts, bringing each side down to between 1,700 and 2,200. And New START? It would bring the number on both sides down to 1,550.

The final figure of 1,550 warheads is plenty big enough to maintain America’s nuclear deterrence; actually, we will have more than that because for the purposes of the treaty B-2 and B-52, bombers are counted as one “warhead” even though they can carry dozens of nuclear warheads. Opponents of the treaty throw out all sorts of other objections, arguing that it would constrict the development of missile defenses or non-nuclear missiles; but no such prohibition is to be found in the language of the treaty.

Let me be clear. I do not buy the Obama administration’s rationales for the treaty. Administration officials cite the need to “reset” relations with Russian and to take a step toward the eventual elimination of all nuclear weapons. I very much doubt that this treaty will do anything substantial to achieve either goal. We are likely to continue clashing with Russia diplomatically as long as it remains an authoritarian state. As for the quixotic goal of eliminating nuclear weapons: Suffice it to say, reductions in the American arsenal are not going to encourage North Korea or Iran to give up their nuclear programs. But nor will relatively modest reductions in our nuclear forces prevent us from vaporizing Iran or North Korea, should they use nuclear weapons against us or our allies.

One of the important benefits of the treaty is that, in the course of negotiations over ratification, Senate Republicans have won assurances from the administration that it will spend $80 billion over 10 years to modernize our nuclear program. Yet this doesn’t seem to be enough. Sen. Jon Kyl, who has been the lead GOP negotiator, now says he doesn’t want to see a vote during the lame-duck session.

As Kagan suggests, this will allow the administration to blame Republican “obstructionism” if and when relations with Russia deteriorate. Therefore, Republican foot-dragging on ratification isn’t smart politics. It’s not necessary for the national defense either. Republicans should keep their powder dry to fight off attempts to slash the defense budget — an issue that really could imperil our security. That will be harder to do, however, because there are a number of Republicans who appear willing to go along with defense cuts, even as they’re taking pot shots at the (largely symbolic) New START treaty.

A lot of foreign-policy experts I respect — including John Bolton, Eric Edelman, John Yoo, and Jim Woolsey — have come out against the ratification of the New START treaty, which would decrease American and Russian nuclear arsenals. For my part, I’m with Bob Kagan in wondering what the fuss is all about.

Arms-control treaties between Moscow and Washington were a big deal during the Cold War when the Soviet Union was bent on global expansionism and the U.S. had to stand on the frontlines of freedom. But the Soviet Union is gone. Today’s Russia may be a local threat to its smaller neighbors, the likes of Georgia or Estonia, but on a global scale it’s more of a nuisance — certainly not an existential threat to the United States. Thus the continuing quest for arms-control treaties seems like a bit of an anachronism.

Yet it is an anachronism that has been pursued by both Republican and Democratic administrations. As this crib sheet from the Arms Control Association reminds us, George H.W. Bush signed START II in 1993, Bill Clinton followed with a START III framework (never completed) in 1997, and George W. Bush reached agreement on SORT (a.k.a. the Moscow Treaty) in 2002. Kagan sums up the results of all these treaties along with New START:

The START I agreement cut deployed strategic nuclear weapons on both sides roughly 50 percent, from between 10,000 and 12,000 down to 6,000. The never-ratified (but generally abided-by) START II Treaty cut forces by another 50 percent, down to between 3,000 and 3,500. The 2002 Moscow Treaty made further deep cuts, bringing each side down to between 1,700 and 2,200. And New START? It would bring the number on both sides down to 1,550.

The final figure of 1,550 warheads is plenty big enough to maintain America’s nuclear deterrence; actually, we will have more than that because for the purposes of the treaty B-2 and B-52, bombers are counted as one “warhead” even though they can carry dozens of nuclear warheads. Opponents of the treaty throw out all sorts of other objections, arguing that it would constrict the development of missile defenses or non-nuclear missiles; but no such prohibition is to be found in the language of the treaty.

Let me be clear. I do not buy the Obama administration’s rationales for the treaty. Administration officials cite the need to “reset” relations with Russian and to take a step toward the eventual elimination of all nuclear weapons. I very much doubt that this treaty will do anything substantial to achieve either goal. We are likely to continue clashing with Russia diplomatically as long as it remains an authoritarian state. As for the quixotic goal of eliminating nuclear weapons: Suffice it to say, reductions in the American arsenal are not going to encourage North Korea or Iran to give up their nuclear programs. But nor will relatively modest reductions in our nuclear forces prevent us from vaporizing Iran or North Korea, should they use nuclear weapons against us or our allies.

One of the important benefits of the treaty is that, in the course of negotiations over ratification, Senate Republicans have won assurances from the administration that it will spend $80 billion over 10 years to modernize our nuclear program. Yet this doesn’t seem to be enough. Sen. Jon Kyl, who has been the lead GOP negotiator, now says he doesn’t want to see a vote during the lame-duck session.

As Kagan suggests, this will allow the administration to blame Republican “obstructionism” if and when relations with Russia deteriorate. Therefore, Republican foot-dragging on ratification isn’t smart politics. It’s not necessary for the national defense either. Republicans should keep their powder dry to fight off attempts to slash the defense budget — an issue that really could imperil our security. That will be harder to do, however, because there are a number of Republicans who appear willing to go along with defense cuts, even as they’re taking pot shots at the (largely symbolic) New START treaty.

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Holder — a People Pleaser!

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

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Journolisters Risked Their Integrity

When you read those who were part of the now infamous Journolist group — hundreds of mostly liberal journalists and academics who joined an online listserv — they present their discussions as inoffensive, unexceptional, and even high-minded. Here’s how Time‘s Joe Klein describes Journolist:

[Ezra Klein and I] became friends and he asked me to join his list-serve–which, he said, would be the kind of place to have the sort of creative discussion we’d had over breakfast. It turned out to be exactly that…and more, a place to chat about music and sports, a place to meet some spectacularly smart academics I’d not met before–and, not least, a chance to interact with the latest generation of opinion journalists, most of whom didn’t have a very high opinion of me…. These conversations were private, as most good ones are. We were taking risks, testing our ideas against others…

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When you read those who were part of the now infamous Journolist group — hundreds of mostly liberal journalists and academics who joined an online listserv — they present their discussions as inoffensive, unexceptional, and even high-minded. Here’s how Time‘s Joe Klein describes Journolist:

[Ezra Klein and I] became friends and he asked me to join his list-serve–which, he said, would be the kind of place to have the sort of creative discussion we’d had over breakfast. It turned out to be exactly that…and more, a place to chat about music and sports, a place to meet some spectacularly smart academics I’d not met before–and, not least, a chance to interact with the latest generation of opinion journalists, most of whom didn’t have a very high opinion of me…. These conversations were private, as most good ones are. We were taking risks, testing our ideas against others…

It sounds positively Platonic: great minds gathering to discuss great issues of the day. Iron sharpening iron. Who could object? And then, thanks to the groundbreaking work of the Daily Caller, we have the chance to read what Journolisters actually wrote. Creative and spectacularly smart things like this:

LAURA ROZEN: People we no longer have to listen to: would it be unwise to start a thread of people we are grateful we no longer have to listen to? If not, I’ll start off: Michael Rubin.

MICHAEL COHEN, NEW AMERICA FOUNDATION: Mark Penn and Bob Shrum. Anyone who uses the expression “Real America.” We should send there a** to Gitmo!

JESSE TAYLOR, PANDAGON.NET: Michael Barone?  Please?

LAURA ROZEN: Karl Rove, Newt Gingrich (afraid it’s not true), Drill Here Drill Now, And David Addington, John Yoo, we’ll see you in court?

JEFFREY TOOBIN, THE NEW YORKER: As a side note, does anyone know what prompted Michael Barone to go insane?

MATT DUSS: LEDEEN.

SPENCER ACKERMAN: Let’s just throw Ledeen against a wall. Or, pace Dr. Alterman, throw him through a plate glass window. I’ll bet a little spot of violence would shut him right the f*** up, as with most bullies.

JOE KLEIN, TIME: Pete Wehner…these sort of things always end badly.

ERIC ALTERMAN, AUTHOR, WHAT LIBERAL MEDIA: F****** Nascar retards…

Ah, but there’s more.

NPR producer Sarah Spitz wrote that that if Rush Limbaugh went into cardiac arrest, she would “laugh loudly like a maniac and watch his eyes bug out” as Limbaugh writhed in torment.

Spencer Ackerman of the Washington Independent urged his colleagues to deflect attention from Obama’s relationship with Jeremiah Wright by changing the subject. Pick one of Obama’s conservative critics, Ackerman wrote — “Fred Barnes, Karl Rove, who cares — and call them racists.”

Bloomberg’s Ryan Donmoyer adds this: “You know, at the risk of violating Godwin’s law, is anyone starting to see parallels here between the teabaggers and their tactics and the rise of the Brownshirts? Esp. Now that it’s getting violent? Reminds me of the Beer Hall fracases of the 1920s.”

And, of course, there is Fox News. “I am genuinely scared” of Fox, wrote Guardian columnist Daniel Davies, because it “shows you that a genuinely shameless and unethical media organisation *cannot* be controlled by any form of peer pressure or self-regulation, and nor can it be successfully cold-shouldered or ostracised. In order to have even a semblance of control, you need a tought legal framework.”

“I agree,” said Michael Scherer of Time. “[Roger] Ailes understands that his job is to build a tribal identity, not a news organizations. You can’t hurt Fox by saying it gets it wrong, if Ailes just uses the criticism to deepen the tribal identity.”

I understand people speaking candidly in e-mail exchanges and wanting to create a group of like-minded people to exchange ideas. And I accept that Journolist was started with good intentions. But somewhere along the line, it slipped off track.

What we had were journalists creating a “community” in which we see expressions of hatred that are both comically adolescent and almost psychopathic. We have them endorsing slander of innocent people simply because they hold a different point of view, comparing the Tea Party movement to Nazism, and participating in a post thread with the subject, “The line on Palin.” And we have journalists endorsing a “tough legal framework” to control what a news organization says.

What we have, in short, is intellectual corruption of a fairly high order. From what we have seen and from what those like Tucker Carlson and his colleagues (who have read the exchanges in detail) say, Journolist was — at least in good measure — a hotbed of hatred, political hackery, banality, and juvenile thuggery. It is the kind of thing you’d expect to hear from troubled, towel-snapping junior high boys. (It’s worth pointing out that if a principal got a hold of e-mails like the ones produced by Journolist, he would punish and probably suspend the offending eighth graders.)

Journolist provides a window into the mindset of the journalistic and academic left in this country. It is not a pretty sight. The demonization and dehumanization of critics is arresting. Those who hold contrary views to the Journolist crowd aren’t individuals who have honest disagreements; they are evil, malignant, and their voices need to be eliminated from the public square. It is illiberal in the extreme.

Some Journolist defenders argue that what has been published doesn’t capture the true nature of what went on at Journolist and that the published exchanges were taken out of context. The Daily Caller’s Tucker Carlson has a reasonable response:

So why don’t we publish whatever portions of the Journolist archive we have and end the debate? Because a lot of them have no obvious news value, for one thing. Gather 400 lefty reporters and academics on one listserv and it turns out you wind up with a strikingly high concentration of bitchiness. Shocking amounts, actually. So while it might be amusing to air threads theorizing about the personal and sexual shortcomings of various NewRepublic staffers, we’ve decided to pull back…. Anyone on Journolist who claims we quoted him “out of context” can reveal the context himself.

That is a fair challenge. If Journolist turns out to differ substantially from its portrayal, Journolisters should release the full exchanges. Ezra Klein, David Corn, Jonathan Chait, and Joe Klein have all offered defenses, though their efforts range from feeble to pathetic. (It was really and merely “an argument between moderate and left-wing journalists,” Chait assures us.) Assuming that Journolisters cannot provide a stronger defense, other members of the fourth estate should be troubled by what has been uncovered. After all, it is the probity of their profession that is being stripped away.

Those who participated in Journolist undoubtedly hope this story will fade away and be forgotten. I rather doubt it will. It is another episode in the long, downward slide of modern journalism. “We were taking risks,” Joe Klein writes in his own defense. And the Journolist participants surely were — not intellectual risks but risks with their integrity — and several of them have been caught dead-to-rights. “Broken eggs cannot be mended,” Lincoln said. Neither can some broken reputations.

In many respects, the whole thing is dispiriting. On the other hand, it has had a clarifying effect. It turns out that the worst caricatures of liberal journalists were not, at least in the case of some, a caricature at all.

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A Game of JournoList Chicken

Tucker Carlson at the Daily Caller is sitting in the catbird’s seat. He has reams of JournoList e-mails revealing how vicious the blogospheric left is. They wish their opponents dead (Rush Limbaugh). Their contempt for conservatives runneth over. And they plainly are all on the same “team” — plotting, delegating, and coordinating their cheerleading for the Obami, as well as attacks on Obama’s opponents. Moreover, we now have a great mystery, a sort of D.C. parlor game: what else does Carlson have?

“Journalists” — what do we call such people (undercover activists)? — and their editors are waiting for shoes to drop. A case in point: Ben Smith ran a story on the potential involvement of Politico reporters. I then spotted in one of the Daily Caller’s releases the name Laura Rozen, who covers foreign policy for Politico. Her use of a blind quote to relate an accusation of “dual loyalty” against Dennis Ross was widely criticized in a range of Jewish and conservative publications.

A sample via Daily Caller:

Nov. 5

ALYSSA ROSENBERG, GOVERNMENT EXECUTIVE: I’ve gotta be all non-partisan on GovExec, so I hope you’ll all indulge me a minute here. On Monday night in Manassas, the band warming up the crowd before Obama arrived played “I Need You To Survive.” I think the core lyrics are pretty good statement of principles for progressives, especially going forward from a victory like this one:

It is his will, that every need be supplied.
You are important to me, I need you to survive.
You are important to me, I need you to survive.

I pray for you, You pray for me.
I love you, I need you to survive.
I won’t harm you with words from my mouth.
I love you, I need you to survive.

It is his will, that every need be supplied.
You are important to me, I need you to survive.

A lot of horribly ugly stuff got repudiated tonight. But it doesn’t end here. We need to keep making the case to the folks who disagreed with us, the folks who booed McCain during his concession speech tonight.

MATT DUSS, CENTER FOR AMERICAN PROGRESS: [Mccain aide] Randy Scheunemann Fired [last week]

LAURA ROZEN, MOTHER JONES (NOW POLITICO): Can you imagine if these bozos had won?

Nov. 7

LAURA ROZEN: People we no longer have to listen to: would it be unwise to start a thread of people we are grateful we no longer have to listen to? If not, I’ll start off: Michael Rubin.

MICHAEL COHEN, NEW AMERICA FOUNDATION: Mark Penn and Bob Shrum. Anyone who uses the expression “Real America.” We should send there ass to Gitmo!

JESSE TAYLOR, PANDAGON.NET: Michael Barone?  Please?

LAURA ROZEN: Karl Rove, Newt Gingrich (afraid it’s not true), Drill Here Drill Now, And David Addington, John Yoo, we’ll see you in court?

I e-mailed Ben and asked if Rozen didn’t “count” because these comments predated her employment by Politico. He promptly answered that he hadn’t seen this particular e-mail and would have included it and asked his editor about it if he had. He directed me to Jim VanderHei, who asked if I had seen any Rozen JournoList comments after she was hired by Politico. I answered that we were all dealing with what Daily Caller was doling out. He provided this explanation of Politico’s  approach to this issue:

We have an unmistakably clear rule that anyone hired here check their ideology at the door. That means no political contributions or activism — and no partisan comments on air, on Twitter, on Facebook, in print, anywhere. We recognize the people we hire are not dull, blank slates — and that everyone has personal opinions. What we demand is that those opinions remain personal (and private) once hired — and that they fully understand we are a nonpartisan media outlet. We have hired some people with partisan backgrounds and had great success in getting them to go through ideological detox and become straight news reporters. The Laura Rozen emails the Daily Caller reported on pre-dated her work here. I have not seen any emails she wrote as a POLITICO employee that trouble me.

This raises at least two issues. First, it seems that the JournoList participants now have a very high standard of objectivity to maintain, especially if they now want to act as real reporters. Are they really checking their ideology at the door, or are they tipping the scales? The problem with baring one’s partisan views — especially ones so personally vindictive — is that it creates a cloud of doubt about everything you write. Second, VandeHei and every other editor with a JournoList participant is now waiting to see if there are any other e-mails that “trouble” them. If more pop up, will heads roll?

I use Rozen as an example, but the problem is far wider. The Washington Post has been mute. What if anything do they do about Ezra Klein? (Maybe if they were aware of his hyper-nasty attacks on the right, the Post editors wouldn’t have taken his recommendation on Dave Weigel.) The JournoList crowd have done a bang-up job of undermining not only their own credibility but also that of their employers. (Even those who are opinion writers are revealed not to be principled purveyors of ideas but meanspirited attack dogs.) How widespread the damage is has yet to be determined.

Tucker Carlson at the Daily Caller is sitting in the catbird’s seat. He has reams of JournoList e-mails revealing how vicious the blogospheric left is. They wish their opponents dead (Rush Limbaugh). Their contempt for conservatives runneth over. And they plainly are all on the same “team” — plotting, delegating, and coordinating their cheerleading for the Obami, as well as attacks on Obama’s opponents. Moreover, we now have a great mystery, a sort of D.C. parlor game: what else does Carlson have?

“Journalists” — what do we call such people (undercover activists)? — and their editors are waiting for shoes to drop. A case in point: Ben Smith ran a story on the potential involvement of Politico reporters. I then spotted in one of the Daily Caller’s releases the name Laura Rozen, who covers foreign policy for Politico. Her use of a blind quote to relate an accusation of “dual loyalty” against Dennis Ross was widely criticized in a range of Jewish and conservative publications.

A sample via Daily Caller:

Nov. 5

ALYSSA ROSENBERG, GOVERNMENT EXECUTIVE: I’ve gotta be all non-partisan on GovExec, so I hope you’ll all indulge me a minute here. On Monday night in Manassas, the band warming up the crowd before Obama arrived played “I Need You To Survive.” I think the core lyrics are pretty good statement of principles for progressives, especially going forward from a victory like this one:

It is his will, that every need be supplied.
You are important to me, I need you to survive.
You are important to me, I need you to survive.

I pray for you, You pray for me.
I love you, I need you to survive.
I won’t harm you with words from my mouth.
I love you, I need you to survive.

It is his will, that every need be supplied.
You are important to me, I need you to survive.

A lot of horribly ugly stuff got repudiated tonight. But it doesn’t end here. We need to keep making the case to the folks who disagreed with us, the folks who booed McCain during his concession speech tonight.

MATT DUSS, CENTER FOR AMERICAN PROGRESS: [Mccain aide] Randy Scheunemann Fired [last week]

LAURA ROZEN, MOTHER JONES (NOW POLITICO): Can you imagine if these bozos had won?

Nov. 7

LAURA ROZEN: People we no longer have to listen to: would it be unwise to start a thread of people we are grateful we no longer have to listen to? If not, I’ll start off: Michael Rubin.

MICHAEL COHEN, NEW AMERICA FOUNDATION: Mark Penn and Bob Shrum. Anyone who uses the expression “Real America.” We should send there ass to Gitmo!

JESSE TAYLOR, PANDAGON.NET: Michael Barone?  Please?

LAURA ROZEN: Karl Rove, Newt Gingrich (afraid it’s not true), Drill Here Drill Now, And David Addington, John Yoo, we’ll see you in court?

I e-mailed Ben and asked if Rozen didn’t “count” because these comments predated her employment by Politico. He promptly answered that he hadn’t seen this particular e-mail and would have included it and asked his editor about it if he had. He directed me to Jim VanderHei, who asked if I had seen any Rozen JournoList comments after she was hired by Politico. I answered that we were all dealing with what Daily Caller was doling out. He provided this explanation of Politico’s  approach to this issue:

We have an unmistakably clear rule that anyone hired here check their ideology at the door. That means no political contributions or activism — and no partisan comments on air, on Twitter, on Facebook, in print, anywhere. We recognize the people we hire are not dull, blank slates — and that everyone has personal opinions. What we demand is that those opinions remain personal (and private) once hired — and that they fully understand we are a nonpartisan media outlet. We have hired some people with partisan backgrounds and had great success in getting them to go through ideological detox and become straight news reporters. The Laura Rozen emails the Daily Caller reported on pre-dated her work here. I have not seen any emails she wrote as a POLITICO employee that trouble me.

This raises at least two issues. First, it seems that the JournoList participants now have a very high standard of objectivity to maintain, especially if they now want to act as real reporters. Are they really checking their ideology at the door, or are they tipping the scales? The problem with baring one’s partisan views — especially ones so personally vindictive — is that it creates a cloud of doubt about everything you write. Second, VandeHei and every other editor with a JournoList participant is now waiting to see if there are any other e-mails that “trouble” them. If more pop up, will heads roll?

I use Rozen as an example, but the problem is far wider. The Washington Post has been mute. What if anything do they do about Ezra Klein? (Maybe if they were aware of his hyper-nasty attacks on the right, the Post editors wouldn’t have taken his recommendation on Dave Weigel.) The JournoList crowd have done a bang-up job of undermining not only their own credibility but also that of their employers. (Even those who are opinion writers are revealed not to be principled purveyors of ideas but meanspirited attack dogs.) How widespread the damage is has yet to be determined.

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When Does an Unfulfilled Political Promise Become a Lie?

The president and his hapless attorney general (who, like the former director of National Intelligence, Dennis Blair, seems to be handicapped by his inability to go out in public without unnerving political supporters and giving fodder to opponents) repeatedly promised that they would reverse the Bush administration’s alleged proclivity to politicize the administration of justice. In the end, the accusations against the Bush team proved to be generally groundless (John Yoo and Jay Bybee were cleared, and the allegations that Yoo intentionally provided faulty legal advice were specifically rejected) or trivial (e.g., replacing nine U.S. attorneys, in contrast to other administrations, which replaced all of them). And in the politicization department, no one holds a candle to the Obama team.

This report explains that for all the crying about upholding our legal traditions and rejecting the “lawless” Bush team, the Obama gang is delaying a decision on the KSM trial until the election is in the rear-view mirror. It’s hard to get more political than that (unless, of course, it’s dismissing the New Black Panther intimidation case because left-wing civil rights groups and Holder’s lawyers don’t like enforcing the civil rights laws against minority defendants). Josh Gerstein reports:

Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago. Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections — when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.

Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment. Any further stalling could pose a serious political problem for President Barack Obama on the left — where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history. … Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.

The Obama administration plainly doesn’t have the nerve to stand up to its own base, so it delays and delays. Not exactly upholding our fundamental values, as Obama often preened. When the Bush administration had to combat endless attacks on its detainee procedures, the left, of course, excoriated the Bush Justice Department for dragging its feet and holding detainees in limbo. Some are shocked, shocked, to discover that the Obama gang is much worse:

“The worst possible outcome is not making a decision. … There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”

If there were Democrats willing to exercise any semblance of congressional oversight, the administration might be pressured to end the “weird” and entirely self-imposed paralysis. But for now, onlookers can only fume:

While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

Now, there’s a question for Holder for his next outing on Capitol Hill.

The president and his hapless attorney general (who, like the former director of National Intelligence, Dennis Blair, seems to be handicapped by his inability to go out in public without unnerving political supporters and giving fodder to opponents) repeatedly promised that they would reverse the Bush administration’s alleged proclivity to politicize the administration of justice. In the end, the accusations against the Bush team proved to be generally groundless (John Yoo and Jay Bybee were cleared, and the allegations that Yoo intentionally provided faulty legal advice were specifically rejected) or trivial (e.g., replacing nine U.S. attorneys, in contrast to other administrations, which replaced all of them). And in the politicization department, no one holds a candle to the Obama team.

This report explains that for all the crying about upholding our legal traditions and rejecting the “lawless” Bush team, the Obama gang is delaying a decision on the KSM trial until the election is in the rear-view mirror. It’s hard to get more political than that (unless, of course, it’s dismissing the New Black Panther intimidation case because left-wing civil rights groups and Holder’s lawyers don’t like enforcing the civil rights laws against minority defendants). Josh Gerstein reports:

Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago. Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections — when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.

Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment. Any further stalling could pose a serious political problem for President Barack Obama on the left — where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history. … Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.

The Obama administration plainly doesn’t have the nerve to stand up to its own base, so it delays and delays. Not exactly upholding our fundamental values, as Obama often preened. When the Bush administration had to combat endless attacks on its detainee procedures, the left, of course, excoriated the Bush Justice Department for dragging its feet and holding detainees in limbo. Some are shocked, shocked, to discover that the Obama gang is much worse:

“The worst possible outcome is not making a decision. … There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”

If there were Democrats willing to exercise any semblance of congressional oversight, the administration might be pressured to end the “weird” and entirely self-imposed paralysis. But for now, onlookers can only fume:

While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

Now, there’s a question for Holder for his next outing on Capitol Hill.

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Flotsam and Jetsam

Rep. Bart Stupak’s seat is now a “toss up.” The ObamaCare vote may turn out to be historic after all. Nate Silver proclaims: “Generic Ballot Points Toward Possible 50+ Seat Loss For Democrats.”

Charlie Cook: “As we head toward November’s mid-term elections, the outlook remains dire for Democrats. For the trajectory of this campaign season to change in their favor, two things need to happen — unemployment must drop significantly, and the public’s attitude toward the new health care reform law must become much more positive. Neither seems likely, though. Increasingly, it appears that for Democrats to turn things around, Republicans would have to snatch defeat from the jaws of victory, or a ‘black swan’ — an extraordinarily unexpected event that causes a tremendous change — would have to swim to the rescue of the president’s party.”

James Jones‘s underwhelming description of the state of U.S.-Israeli relations: “ongoing and fine and continuous.” Continuous? Well, good to know we’re not ending the relationship — and at least we’re past the point where the Obami can say “rock solid” with a straight face. Meanwhile, the White House denies that there has been any change in its policy toward the Dimona nuclear reactor. It’s hard to know what to believe at this point, which itself is evidence of the shabby state of the U.S.-Israel relationship.

The best thing about the Obami’s Israel policy? The lack of consensus and total disorganization. “Although the public fireworks between top U.S. and Israeli officials may have died down in recent days, a fully fledged debate has erupted inside the Obama administration over how to best bring Middle East peace talks to fruition, let alone a successful conclusion.” Thank goodness.

Sarah Palin declares that “this administration alienates our friends. They treated Afghanistan President Hamid Karzai poorly  and acted surprised when he reacted in kind. And they escalated a minor zoning decision into a major breach with Israel, our closest ally in the Middle East.  Folks, someone needs to remind the President: Jerusalem is not a settlement. Israel is our friend. And the critical nuclear concerns of our time are North Korea, who has nuclear weapons, and Iran, who wants them. So, ‘yes we can’ kowtow to our enemies and publicly criticize our allies.Yes, we can. But someone ought to tell the President and the Left that just because we can doesn’t mean we should.”

How’s that “imposed peace deal” going to work again? “Officials say Gaza’s only power plant has stopped operating because of a lack of fuel caused by the ongoing dispute between Palestinian political rivals. Gaza’s Islamic militant Hamas rulers and their Western-backed West Bank rivals have argued over who should pay for the fuel for the plant.”

Jamie Fly and John Noonan on nuclear nonproliferation: “Our unwillingness to penalize countries such as Iran, North Korea, and Syria for their illicit activities only empowers them. It sends the message to other states potentially seeking nuclear weapons that the path to a weapon can be pursued with few repercussions. If President Obama were truly concerned about the future of the international nonproliferation regime, he would follow his recent disarmament ‘accomplishments’ with some serious action to ensure that rogue regimes realize that there is a price to be paid by those who choose to pursue nuclear weapons.”

John Yoo‘s prediction on Obama’s Supreme Court pick: “The president’s low approval ratings and the resurgence of Republican electoral victories in New Jersey, Virginia, and, most importantly, Massachusetts, means that Obama will not pick an ideological warrior who will spark a fight in the Senate. No Dawn Johnsen’s or Larry Tribe’s here. Appointing someone on the extreme left of the Democratic party would be a political gift to the Republicans — it would only continue the drive to the left that is promising big gains for the Republicans in the November election and would frustrate Obama’s other priorities.”

Meanwhile, Obama withdraws the nomination of Dawn Johnsen, who had been tapped to head the Office of Legal Counsel. Could it be that the Democrats don’t want any knock-down-drag-out-fights over left-wing  ideologues?

Could a Republican win the special House election in Hawaii? “This is a three-way race featuring two Democrats, former Rep. Ed Case and Hawaii State Senate President Colleen Hanabusa, squaring off against Republican Charles Djou. It is a winner-take-all contest between the three candidates, competing to replace Neil Abercrombie, who left Congress to run for governor. . .Right now, the race is close: according to a Democratic source, the Democratic Congressional Campaign Committee has conducted an internal poll showing Case at 32%, Djou at 32%, Hanabusa at 27%, and 9% undecided.” Well, like they say, as goes Massachusetts so goes Hawaii. Not really, but this year it might be true.

Rep. Bart Stupak’s seat is now a “toss up.” The ObamaCare vote may turn out to be historic after all. Nate Silver proclaims: “Generic Ballot Points Toward Possible 50+ Seat Loss For Democrats.”

Charlie Cook: “As we head toward November’s mid-term elections, the outlook remains dire for Democrats. For the trajectory of this campaign season to change in their favor, two things need to happen — unemployment must drop significantly, and the public’s attitude toward the new health care reform law must become much more positive. Neither seems likely, though. Increasingly, it appears that for Democrats to turn things around, Republicans would have to snatch defeat from the jaws of victory, or a ‘black swan’ — an extraordinarily unexpected event that causes a tremendous change — would have to swim to the rescue of the president’s party.”

James Jones‘s underwhelming description of the state of U.S.-Israeli relations: “ongoing and fine and continuous.” Continuous? Well, good to know we’re not ending the relationship — and at least we’re past the point where the Obami can say “rock solid” with a straight face. Meanwhile, the White House denies that there has been any change in its policy toward the Dimona nuclear reactor. It’s hard to know what to believe at this point, which itself is evidence of the shabby state of the U.S.-Israel relationship.

The best thing about the Obami’s Israel policy? The lack of consensus and total disorganization. “Although the public fireworks between top U.S. and Israeli officials may have died down in recent days, a fully fledged debate has erupted inside the Obama administration over how to best bring Middle East peace talks to fruition, let alone a successful conclusion.” Thank goodness.

Sarah Palin declares that “this administration alienates our friends. They treated Afghanistan President Hamid Karzai poorly  and acted surprised when he reacted in kind. And they escalated a minor zoning decision into a major breach with Israel, our closest ally in the Middle East.  Folks, someone needs to remind the President: Jerusalem is not a settlement. Israel is our friend. And the critical nuclear concerns of our time are North Korea, who has nuclear weapons, and Iran, who wants them. So, ‘yes we can’ kowtow to our enemies and publicly criticize our allies.Yes, we can. But someone ought to tell the President and the Left that just because we can doesn’t mean we should.”

How’s that “imposed peace deal” going to work again? “Officials say Gaza’s only power plant has stopped operating because of a lack of fuel caused by the ongoing dispute between Palestinian political rivals. Gaza’s Islamic militant Hamas rulers and their Western-backed West Bank rivals have argued over who should pay for the fuel for the plant.”

Jamie Fly and John Noonan on nuclear nonproliferation: “Our unwillingness to penalize countries such as Iran, North Korea, and Syria for their illicit activities only empowers them. It sends the message to other states potentially seeking nuclear weapons that the path to a weapon can be pursued with few repercussions. If President Obama were truly concerned about the future of the international nonproliferation regime, he would follow his recent disarmament ‘accomplishments’ with some serious action to ensure that rogue regimes realize that there is a price to be paid by those who choose to pursue nuclear weapons.”

John Yoo‘s prediction on Obama’s Supreme Court pick: “The president’s low approval ratings and the resurgence of Republican electoral victories in New Jersey, Virginia, and, most importantly, Massachusetts, means that Obama will not pick an ideological warrior who will spark a fight in the Senate. No Dawn Johnsen’s or Larry Tribe’s here. Appointing someone on the extreme left of the Democratic party would be a political gift to the Republicans — it would only continue the drive to the left that is promising big gains for the Republicans in the November election and would frustrate Obama’s other priorities.”

Meanwhile, Obama withdraws the nomination of Dawn Johnsen, who had been tapped to head the Office of Legal Counsel. Could it be that the Democrats don’t want any knock-down-drag-out-fights over left-wing  ideologues?

Could a Republican win the special House election in Hawaii? “This is a three-way race featuring two Democrats, former Rep. Ed Case and Hawaii State Senate President Colleen Hanabusa, squaring off against Republican Charles Djou. It is a winner-take-all contest between the three candidates, competing to replace Neil Abercrombie, who left Congress to run for governor. . .Right now, the race is close: according to a Democratic source, the Democratic Congressional Campaign Committee has conducted an internal poll showing Case at 32%, Djou at 32%, Hanabusa at 27%, and 9% undecided.” Well, like they say, as goes Massachusetts so goes Hawaii. Not really, but this year it might be true.

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Obama at Odds with Reality

Matt Welch writes:

The president, who promised in both word and style to usher in a “new era” of Washington “responsibility,” routinely says things that aren’t true and supports initiatives that break campaign promises. When called on it, he mostly keeps digging. And when obliged to explain why American voters are turning so sharply away from his party and his policies, Obama pins the blame not on his own deviations from verity but on his failure to “explain” things “more clearly to the American people.”

This is not an occasional phenomenon. It has become an ingrained habit. As Welch details, Obama has insisted that he’s excluded lobbyists from government. (There are more than 40.) His repeated misstatements on his own health-care bill seem to assume no one is paying attention or is audacious enough to point out he is making stuff up. “It will cut the deficit.” Well, not with the Doc Fix or with any reasonable accounting method. “Special interests are against it.” Except for AARP, AMA,  and Big Insurance. As Supreme Court Justice Samuel Alito pointed out, Obama got the Supreme Court’s decision in Citizens United wrong, too.

And then there are the misdirections and twisted explanations on national security. He routinely says he “banned torture,” which, of course, was illegal long before he assumed office. (He should know this because John Yoo and Jay Bybee were hounded by a kangaroo Justice Department investigation for allegedly facilitating violation of torture prohibitions.) He pulls the rug out from the Czech Republic and Poland, denying the obvious — that it was meant as a sop to the Russians. In pursuing his Israel policy, he offers fractured history and denies the existence of past agreements by the U.S. on settlements.

Even when recounting his own actions, he strays from the truth. No, he really didn’t condemn Palestinian violence, as he claimed. No, he really hasn’t gone to bat for human rights, as he asserted in Oslo. And on it goes.

This was the president who was supposedly freed from ideology and who would operate on facts and evidence. The reality is that the Obami operate as if the president has no obligation to fact check and to adhere to a standard of accuracy worthy of the office. It’s just campaign time 24/7 — and the operating standard is whatever will fly. In a very real sense, Obama has never had his facts or his premises rebutted. He was treated with kid gloves during the campaign, where his garbled history was never questioned and his assumptions were rarely challenged by the mainstream media. And well into his first-year term, a probing interview taking on his facts is the exception, not the rule. He has grown accustomed to parroting liberal dogma with nary a concern that anyone might call him on it. And when someone does — at the health-care summit — he is peeved, condescending, and impatient.

The ultra-liberal president is at odds with the Center-Right country he is trying to lead. But more important, he is at odds with reality — with cold, hard facts. Neither is sustainable for very long. The voters and reality have a way of catching up with presidents who try to ignore both.

Matt Welch writes:

The president, who promised in both word and style to usher in a “new era” of Washington “responsibility,” routinely says things that aren’t true and supports initiatives that break campaign promises. When called on it, he mostly keeps digging. And when obliged to explain why American voters are turning so sharply away from his party and his policies, Obama pins the blame not on his own deviations from verity but on his failure to “explain” things “more clearly to the American people.”

This is not an occasional phenomenon. It has become an ingrained habit. As Welch details, Obama has insisted that he’s excluded lobbyists from government. (There are more than 40.) His repeated misstatements on his own health-care bill seem to assume no one is paying attention or is audacious enough to point out he is making stuff up. “It will cut the deficit.” Well, not with the Doc Fix or with any reasonable accounting method. “Special interests are against it.” Except for AARP, AMA,  and Big Insurance. As Supreme Court Justice Samuel Alito pointed out, Obama got the Supreme Court’s decision in Citizens United wrong, too.

And then there are the misdirections and twisted explanations on national security. He routinely says he “banned torture,” which, of course, was illegal long before he assumed office. (He should know this because John Yoo and Jay Bybee were hounded by a kangaroo Justice Department investigation for allegedly facilitating violation of torture prohibitions.) He pulls the rug out from the Czech Republic and Poland, denying the obvious — that it was meant as a sop to the Russians. In pursuing his Israel policy, he offers fractured history and denies the existence of past agreements by the U.S. on settlements.

Even when recounting his own actions, he strays from the truth. No, he really didn’t condemn Palestinian violence, as he claimed. No, he really hasn’t gone to bat for human rights, as he asserted in Oslo. And on it goes.

This was the president who was supposedly freed from ideology and who would operate on facts and evidence. The reality is that the Obami operate as if the president has no obligation to fact check and to adhere to a standard of accuracy worthy of the office. It’s just campaign time 24/7 — and the operating standard is whatever will fly. In a very real sense, Obama has never had his facts or his premises rebutted. He was treated with kid gloves during the campaign, where his garbled history was never questioned and his assumptions were rarely challenged by the mainstream media. And well into his first-year term, a probing interview taking on his facts is the exception, not the rule. He has grown accustomed to parroting liberal dogma with nary a concern that anyone might call him on it. And when someone does — at the health-care summit — he is peeved, condescending, and impatient.

The ultra-liberal president is at odds with the Center-Right country he is trying to lead. But more important, he is at odds with reality — with cold, hard facts. Neither is sustainable for very long. The voters and reality have a way of catching up with presidents who try to ignore both.

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Holder’s No Good, Horrible Performance

As we’ve noted for sometime, Eric Holder is not exactly wowing either the Right or the Left. As Michael Gerson observes:

Attorney General Eric Holder is controversial on the left for preserving much of the Bush administration’s legal structure for conducting the war on terror. He is controversial on the right for overturning portions of that structure in ways that seem both clueless and reckless. But Holder is the most endangered member of the Obama Cabinet for a different reason: Just about everything he has touched has backfired.

We had the decision to release the enhanced interrogation memos and reinvestigate previously cleared CIA operatives. Result: widespread criticism. Then we had the recommendation to release the detainee-abuse photos. Result: countermanded. We had the advice to close Guantanamo prior to a full review. Result: stalled. We had the recommendation to relocate Guantanamo detainees to Illinois and to hold a public trial for KSM. Result: on hold. There was the Mirandizing of the Christmas Day bomber. Result: ridiculed. This week Holder suggested that we’d never capture Osama bin Laden, because, of course, we’d kill him if we found him. Result: rebuffed by two national-security officials. We also witnessed the ongoing legal persecution of John Yoo and Jay Bybee. Result: reversal by a career attorney who found gross incompetence within the Justice Department’s Office of Professional Responsibility. Then there is the race issue: the dismissal of the New Black Panther case and the accusation that we are a nation of “cowards.” Quite a track record, eh?

As Gerson concludes:

Sometimes haplessness can provoke sympathy. But Holder mixes ineptness with self-righteousness. Critics of his questionable choices, he says, “cower.” They lack “confidence in the American system of justice.” But there is another possibility. Perhaps Holder’s critics — in Congress, in the country and even within the White House — just lack confidence in his judgment.

For now, Holder doesn’t appear to be in immediate peril, in no small part because he has been spared (with a Democrat-controlled Congress) the humiliating oversight hearings of the sort Alberto Gonzales received. But one doubts whether he’ll be around at year’s end. At some point, he and the Obami will want to cut their losses.

As we’ve noted for sometime, Eric Holder is not exactly wowing either the Right or the Left. As Michael Gerson observes:

Attorney General Eric Holder is controversial on the left for preserving much of the Bush administration’s legal structure for conducting the war on terror. He is controversial on the right for overturning portions of that structure in ways that seem both clueless and reckless. But Holder is the most endangered member of the Obama Cabinet for a different reason: Just about everything he has touched has backfired.

We had the decision to release the enhanced interrogation memos and reinvestigate previously cleared CIA operatives. Result: widespread criticism. Then we had the recommendation to release the detainee-abuse photos. Result: countermanded. We had the advice to close Guantanamo prior to a full review. Result: stalled. We had the recommendation to relocate Guantanamo detainees to Illinois and to hold a public trial for KSM. Result: on hold. There was the Mirandizing of the Christmas Day bomber. Result: ridiculed. This week Holder suggested that we’d never capture Osama bin Laden, because, of course, we’d kill him if we found him. Result: rebuffed by two national-security officials. We also witnessed the ongoing legal persecution of John Yoo and Jay Bybee. Result: reversal by a career attorney who found gross incompetence within the Justice Department’s Office of Professional Responsibility. Then there is the race issue: the dismissal of the New Black Panther case and the accusation that we are a nation of “cowards.” Quite a track record, eh?

As Gerson concludes:

Sometimes haplessness can provoke sympathy. But Holder mixes ineptness with self-righteousness. Critics of his questionable choices, he says, “cower.” They lack “confidence in the American system of justice.” But there is another possibility. Perhaps Holder’s critics — in Congress, in the country and even within the White House — just lack confidence in his judgment.

For now, Holder doesn’t appear to be in immediate peril, in no small part because he has been spared (with a Democrat-controlled Congress) the humiliating oversight hearings of the sort Alberto Gonzales received. But one doubts whether he’ll be around at year’s end. At some point, he and the Obami will want to cut their losses.

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Marc Thiessen on Keep America Safe

Marc Thiessen makes a valiant attempt in his Washington Post column to defend the campaign mounted by the group Keep America Safe, led by Liz Cheney, against the hyperbolically dubbed “al-Qaeda Seven” — seven Justice Department lawyers who, prior to entering government service, defended detainees accused of working for al-Qaeda. He writes:

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.

But the situation is hardly analogous. The pejorative phrases “mob lawyers” and “drug cartel lawyers” refer to attorneys whose practices are consist either solely or mainly of working for rich gangsters. In many cases these lawyers became more or less a part of the criminal enterprise themselves, often taking illegal actions such as carrying a mob boss’s orders to his underlings from jail.

There are in fact “terrorist lawyers” in this sense. For example Lynne Stewart, who was sentenced to 28 months in prison for passing messages from the “blind sheikh,” Omar Abdel Rahman, to his fellow terrorists. Or the French lawyer Isabelle Coutant-Peyre, who is engaged to marry Carlos the Jackal, and has compared the French police to the Gestapo.

If Stewart or Coutant-Peyre had been hired by the Department of Justice, I could see legitimate grounds for outrage. But the lawyers singled out by Keep America Safe are hardly in the same category. All they did was challenge the rules governing terrorist detainees or provide some representation to terrorist defendants. There is no suggestion that they favor terrorism or support al-Qaeda; all they did was what lawyers are supposed to do. As a group of Republican attorneys note:

Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. … Good defense counsel is … key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

Thiessen has a better point when he bemoans the double standard at work here. Many of those now outraged by the attacks on the Justice Department lawyers kept silent or applauded when John Yoo, Jay Bybee, and other honorable Bush administration lawyers were accused of being “war criminals” and threatened with prosecution for advocating a vigorous prosecution of the war against al-Qaeda. Perhaps this controversy will prove salutary if it will lead the Left to call off their attack dogs.

But there is an overriding cost that should be kept in mind: By focusing so much on the lower-level lawyers, Keep America Safe is missing the real problem. That starts at the top with Attorney General Eric Holder and President Obama, who seem willing to give terrorist defendants more rights than they received under the Bush administration — and more rights than most Americans think they deserve. I would suggest keeping the focus on Obama and Holder, not on underlings who are not the ultimate decision-makers here.

Marc Thiessen makes a valiant attempt in his Washington Post column to defend the campaign mounted by the group Keep America Safe, led by Liz Cheney, against the hyperbolically dubbed “al-Qaeda Seven” — seven Justice Department lawyers who, prior to entering government service, defended detainees accused of working for al-Qaeda. He writes:

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.

But the situation is hardly analogous. The pejorative phrases “mob lawyers” and “drug cartel lawyers” refer to attorneys whose practices are consist either solely or mainly of working for rich gangsters. In many cases these lawyers became more or less a part of the criminal enterprise themselves, often taking illegal actions such as carrying a mob boss’s orders to his underlings from jail.

There are in fact “terrorist lawyers” in this sense. For example Lynne Stewart, who was sentenced to 28 months in prison for passing messages from the “blind sheikh,” Omar Abdel Rahman, to his fellow terrorists. Or the French lawyer Isabelle Coutant-Peyre, who is engaged to marry Carlos the Jackal, and has compared the French police to the Gestapo.

If Stewart or Coutant-Peyre had been hired by the Department of Justice, I could see legitimate grounds for outrage. But the lawyers singled out by Keep America Safe are hardly in the same category. All they did was challenge the rules governing terrorist detainees or provide some representation to terrorist defendants. There is no suggestion that they favor terrorism or support al-Qaeda; all they did was what lawyers are supposed to do. As a group of Republican attorneys note:

Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. … Good defense counsel is … key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

Thiessen has a better point when he bemoans the double standard at work here. Many of those now outraged by the attacks on the Justice Department lawyers kept silent or applauded when John Yoo, Jay Bybee, and other honorable Bush administration lawyers were accused of being “war criminals” and threatened with prosecution for advocating a vigorous prosecution of the war against al-Qaeda. Perhaps this controversy will prove salutary if it will lead the Left to call off their attack dogs.

But there is an overriding cost that should be kept in mind: By focusing so much on the lower-level lawyers, Keep America Safe is missing the real problem. That starts at the top with Attorney General Eric Holder and President Obama, who seem willing to give terrorist defendants more rights than they received under the Bush administration — and more rights than most Americans think they deserve. I would suggest keeping the focus on Obama and Holder, not on underlings who are not the ultimate decision-makers here.

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Re: Yoo and Bybee Cleared

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense — which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense — which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

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Yoo and Bybee Cleared, Justice Department’s Shoddy Investigation Exposed

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down. Read More

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down.

UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards.”

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Flotsam and Jetsam

Sen. Richard Shelby’s hold on all Obama nominees to get his pork is getting slammed from all sides. For starters, it takes the focus off the truly egregious nominees (e.g., Dawn Johnsen, Harold Craig Becker).

And he’s done a bang-up job of giving the White House a rare moment on the high ground. “The White House on Friday shot back at Sen. Richard Shelby (R-Ala.) who recently took the unusual step of placing a blanket hold on all of the administration’s nominees. White House Communications Director Dan Pfeiffer accused Shelby of seeking political gain in preventing the government from doing its job.”

But it remains gloom and doom for Democrats at the DNC meeting: “In regional meetings and in the hallways of the downtown hotel where they were meeting, DNC members voiced frustration about their fortunes and, with a measure of urgency, plotted about how best to navigate through what is shaping up to be one of their most difficult election cycles in recent history. Some party officials sought to ward off complacency with pointed reminders about just how perilous this year could be.”

David Broder notes that there was no follow-up by the White House after the televised question-and-answer time with House Republicans, which suggests to Broder that “the president and his people may not realize the degree to which Republican frustration with Pelosi’s management of the House has created opportunities for Obama — if he is willing to engage as directly as he did in his Illinois Senate days.” Or maybe the whole question-and-answer routine was just more spin, and Obama has no intention of altering his far-Left agenda.

John Yoo takes Obama to task: “Obama believes the president should lead a revolution in society, the economy, and the political system, but defer on national security and foreign policy to the other branches of government. This upends the Framers’ vision of the presidency. They thought the chief executive’s powers would expand broadly to meet external challenges while playing a modest role at home.”

Back in September, the Los Angeles Times called on Eric Holder to come clean on the New Black Panther Party case. Now the Providence Journal turns up the heat: “Instead of letting questions fester about a potentially troublesome matter, the Obama administration should come clean about its decision to dismiss a case involving what looked like racist voter intimidation in 2008. Then, hopefully, everyone can move on. …The Justice Department may enforce our laws, but it is not above them. Instead of stonewalling, it should share with the public who made this decision to drop the case, and why.”

The State of the Union bounce seems to have faded: “The Rasmussen Reports daily Presidential Tracking Poll for Saturday shows that 26% of the nation’s voters Strongly Approve of the way that Barack Obama is performing his role as President. Forty-one percent (41%) Strongly Disapprove which Obama a Presidential Approval Index rating of -15. That matches the President’s ratings just before the State-of-the-Union Address.”

Sen. Kirsten Gillibrand might be asked why the repeal of the Bush tax cuts is good for her state: “Federal income-tax rates in the top brackets will be restored to their pre-2001 levels next year, the Bush-era cuts in capital gains and dividend taxes will be partially reversed, and itemized deductions for high-income filers (including deductions for state and local taxes) will be curtailed. If all of this comes to pass, it will spell trouble for the New York state budget for a simple reason: New York’s finances are balanced on a narrow pinnacle of high-income households, and higher federal taxes drive top-earning New Yorkers to lower their overall tax burdens by sheltering incomes, earning less, or moving to lower-tax states.”

Jonathan Chait calls Jamie Gorelick a “corrupt hack” for lobbying for lenders who don’t want the federal government to drive them out of the student loan business. Conservatives may not agree with the reason, but the conclusion — “cross Gorelick off the list of Democrats suitable to hold office” — is one that will get bipartisan support.

Sen. Richard Shelby’s hold on all Obama nominees to get his pork is getting slammed from all sides. For starters, it takes the focus off the truly egregious nominees (e.g., Dawn Johnsen, Harold Craig Becker).

And he’s done a bang-up job of giving the White House a rare moment on the high ground. “The White House on Friday shot back at Sen. Richard Shelby (R-Ala.) who recently took the unusual step of placing a blanket hold on all of the administration’s nominees. White House Communications Director Dan Pfeiffer accused Shelby of seeking political gain in preventing the government from doing its job.”

But it remains gloom and doom for Democrats at the DNC meeting: “In regional meetings and in the hallways of the downtown hotel where they were meeting, DNC members voiced frustration about their fortunes and, with a measure of urgency, plotted about how best to navigate through what is shaping up to be one of their most difficult election cycles in recent history. Some party officials sought to ward off complacency with pointed reminders about just how perilous this year could be.”

David Broder notes that there was no follow-up by the White House after the televised question-and-answer time with House Republicans, which suggests to Broder that “the president and his people may not realize the degree to which Republican frustration with Pelosi’s management of the House has created opportunities for Obama — if he is willing to engage as directly as he did in his Illinois Senate days.” Or maybe the whole question-and-answer routine was just more spin, and Obama has no intention of altering his far-Left agenda.

John Yoo takes Obama to task: “Obama believes the president should lead a revolution in society, the economy, and the political system, but defer on national security and foreign policy to the other branches of government. This upends the Framers’ vision of the presidency. They thought the chief executive’s powers would expand broadly to meet external challenges while playing a modest role at home.”

Back in September, the Los Angeles Times called on Eric Holder to come clean on the New Black Panther Party case. Now the Providence Journal turns up the heat: “Instead of letting questions fester about a potentially troublesome matter, the Obama administration should come clean about its decision to dismiss a case involving what looked like racist voter intimidation in 2008. Then, hopefully, everyone can move on. …The Justice Department may enforce our laws, but it is not above them. Instead of stonewalling, it should share with the public who made this decision to drop the case, and why.”

The State of the Union bounce seems to have faded: “The Rasmussen Reports daily Presidential Tracking Poll for Saturday shows that 26% of the nation’s voters Strongly Approve of the way that Barack Obama is performing his role as President. Forty-one percent (41%) Strongly Disapprove which Obama a Presidential Approval Index rating of -15. That matches the President’s ratings just before the State-of-the-Union Address.”

Sen. Kirsten Gillibrand might be asked why the repeal of the Bush tax cuts is good for her state: “Federal income-tax rates in the top brackets will be restored to their pre-2001 levels next year, the Bush-era cuts in capital gains and dividend taxes will be partially reversed, and itemized deductions for high-income filers (including deductions for state and local taxes) will be curtailed. If all of this comes to pass, it will spell trouble for the New York state budget for a simple reason: New York’s finances are balanced on a narrow pinnacle of high-income households, and higher federal taxes drive top-earning New Yorkers to lower their overall tax burdens by sheltering incomes, earning less, or moving to lower-tax states.”

Jonathan Chait calls Jamie Gorelick a “corrupt hack” for lobbying for lenders who don’t want the federal government to drive them out of the student loan business. Conservatives may not agree with the reason, but the conclusion — “cross Gorelick off the list of Democrats suitable to hold office” — is one that will get bipartisan support.

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Another About-Face?

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

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Flotsam and Jetsam

It seems that some human rights organization (or perhaps our secretary of state of 19-million-glass-ceiling-cracks fame) should care about all this: “Who, exactly, is it the misogyny-frenzied brutes in charge of administering ‘justice’ to the Saudi distaff side are protecting — and from what? When they condemn a woman who’s been gang-raped to 200 lashes for ‘having sex outside marriage,’ or give a destitute 75-year-old widow 40 lashes for engaging in ‘prohibited mingling’ by receiving charity from two young male relatives, or, in the most recent (known) instance, sentence a 13-year-old girl to 90 lashes — to be delivered in front of her classmates — for bringing a cell phone to school — what do they believe they are doing?”

Meanwhile, Cliff May reminds us that “in a growing number of Muslim-majority countries, a war is being waged against non-Muslim minorities. Where non-Muslim minorities already have been ‘cleansed’ — as in Afghanistan and Iraq — the attacks are against their memory. Ethnic minorities also are being targeted: The genocidal conflict against the black Muslims of Darfur is only the most infamous example. … In response to all this, Western journalists, academics, diplomats, and politicians mainly avert their eyes and hold their tongues. They pretend there are no stories to be written, no social pathologies to be documented, no actions to be taken. They focus instead on Switzerland’s vote against minarets and anything Israel might be doing to prevent terrorists from claiming additional victims.”

Marc Thiessen dismantles Christiane Amanpour and her misrepresentations of waterboarding. Notice that when an informed conservative goes up against a liberal on terrorism issues (e.g., Cliff May vs. Jon Stewart, John Yoo vs. Jon Stewart), the liberal is never quite prepared. Almost like they all live in an echo chamber, with no one to challenge their firmly held and factually unsupported views.

Stuart Rothenberg moves the Arkansas Senate seat to “leans takeover”: “Multiple independent polls now show Arkansas Sen. Blanche Lincoln (D) losing or running even in ballot tests against any number of lower-tier GOP challengers.”

As if Arlen Specter didn’t have enough problems (including picking the exact wrong year to switch parties): “The deeply odd couple of Sen. Arlen Specter (D-Penn.) and Rep. Michele Bachmann (R-Minn.) appeared together on a Philly radio station yesterday — and things got ugly in short order.” Specter, it seems, told Bachmann to “act like a lady.”

And Specter certainly does have problems: “Republican Pat Toomey now leads incumbent Senator Arlen Specter 49% to 40% in Pennsylvania’s race for the U.S. Senate. The latest Rasmussen Reports telephone survey of Pennsylvania voters also finds Toomey with a 43% to 35% lead over Democratic challenger Joe Sestak.” As goes Massachusetts, so goes Pennsylvania?

Quin Hillyer writes a smart column: you don’t win upset political races unless you compete. “Too many professional pols and pollsters, consultants and consiglieres, allow their assessment of political potential to be hamstrung by conventional wisdom and by past results. Especially on the right of center, the political class in Washington consistently underestimates what can be achieved by solid principles well communicated. Washington Republicans especially act too often as if they expect to lose and are resigned to losing, just a little more slowly.”

It seems that some human rights organization (or perhaps our secretary of state of 19-million-glass-ceiling-cracks fame) should care about all this: “Who, exactly, is it the misogyny-frenzied brutes in charge of administering ‘justice’ to the Saudi distaff side are protecting — and from what? When they condemn a woman who’s been gang-raped to 200 lashes for ‘having sex outside marriage,’ or give a destitute 75-year-old widow 40 lashes for engaging in ‘prohibited mingling’ by receiving charity from two young male relatives, or, in the most recent (known) instance, sentence a 13-year-old girl to 90 lashes — to be delivered in front of her classmates — for bringing a cell phone to school — what do they believe they are doing?”

Meanwhile, Cliff May reminds us that “in a growing number of Muslim-majority countries, a war is being waged against non-Muslim minorities. Where non-Muslim minorities already have been ‘cleansed’ — as in Afghanistan and Iraq — the attacks are against their memory. Ethnic minorities also are being targeted: The genocidal conflict against the black Muslims of Darfur is only the most infamous example. … In response to all this, Western journalists, academics, diplomats, and politicians mainly avert their eyes and hold their tongues. They pretend there are no stories to be written, no social pathologies to be documented, no actions to be taken. They focus instead on Switzerland’s vote against minarets and anything Israel might be doing to prevent terrorists from claiming additional victims.”

Marc Thiessen dismantles Christiane Amanpour and her misrepresentations of waterboarding. Notice that when an informed conservative goes up against a liberal on terrorism issues (e.g., Cliff May vs. Jon Stewart, John Yoo vs. Jon Stewart), the liberal is never quite prepared. Almost like they all live in an echo chamber, with no one to challenge their firmly held and factually unsupported views.

Stuart Rothenberg moves the Arkansas Senate seat to “leans takeover”: “Multiple independent polls now show Arkansas Sen. Blanche Lincoln (D) losing or running even in ballot tests against any number of lower-tier GOP challengers.”

As if Arlen Specter didn’t have enough problems (including picking the exact wrong year to switch parties): “The deeply odd couple of Sen. Arlen Specter (D-Penn.) and Rep. Michele Bachmann (R-Minn.) appeared together on a Philly radio station yesterday — and things got ugly in short order.” Specter, it seems, told Bachmann to “act like a lady.”

And Specter certainly does have problems: “Republican Pat Toomey now leads incumbent Senator Arlen Specter 49% to 40% in Pennsylvania’s race for the U.S. Senate. The latest Rasmussen Reports telephone survey of Pennsylvania voters also finds Toomey with a 43% to 35% lead over Democratic challenger Joe Sestak.” As goes Massachusetts, so goes Pennsylvania?

Quin Hillyer writes a smart column: you don’t win upset political races unless you compete. “Too many professional pols and pollsters, consultants and consiglieres, allow their assessment of political potential to be hamstrung by conventional wisdom and by past results. Especially on the right of center, the political class in Washington consistently underestimates what can be achieved by solid principles well communicated. Washington Republicans especially act too often as if they expect to lose and are resigned to losing, just a little more slowly.”

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Is This Really Worth It?

Former Justice Department lawyer John Yoo writes:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

Yoo was the object of much ire from the Obami and their supporters. As one author of the Bush-era interrogation memos, he was accused of promoting “torture” — an assertion that now will be wielded like a sword by KSM’s lawyers as they try to put the U.S. on trial. And what will Eric Holder’s Justice Department say — no, it wasn’t torture after all? No, none of the information derived from the enhanced interrogations was used for the “prosecution”? It will be only one aspect of a multi-ring circus.

And as Yoo explains, the danger to the U.S. is great, as we will be “forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives.” Aside from blowing the “cover” of personnel and plans known to us, we will be taking an unmistakable step toward criminalizing the battlefield:

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The mind reels as one considers the multiple ways in which the decision to extract KSM from the military-tribunal system and plop him down into a Manhattan courtroom will harm our national security. And will it really stay in Manhattan, in such close proximity to Ground Zero, or should I say, “the crime scene”? Certainly a change of venue motion will be forthcoming among the hundreds, if not thousands, of motions that will flow from the defendant — oh yes, that’s defendant KSM, now entitled to the presumption of innocence — and his stable of lawyers.

If you think Yoo or Obama’s critics are exaggerating, Yoo reminds us of Zacarias Moussaoui, the so-called 20th hijacker: “His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots. All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades.”

The president would have us believe that this is all Holder’s doing. Obama wasn’t even in the country when the announcement was made. If true, Obama has abandoned his obligation to make key decisions affecting national security. But who really believes that? No, this is the president’s call. KSM is landing in a civilian courtroom because Obama wants him there. Whatever flows from that, whatever damage is done to our national security, is his responsibility. And frankly, whatever anguish is experienced by the victims’ families, who will now hear KSM proclaim the virtue of his cause, is also Obama’s. He should have had the decency and the courage to tell them and the American people why he thought this was necessary.

Former Justice Department lawyer John Yoo writes:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

Yoo was the object of much ire from the Obami and their supporters. As one author of the Bush-era interrogation memos, he was accused of promoting “torture” — an assertion that now will be wielded like a sword by KSM’s lawyers as they try to put the U.S. on trial. And what will Eric Holder’s Justice Department say — no, it wasn’t torture after all? No, none of the information derived from the enhanced interrogations was used for the “prosecution”? It will be only one aspect of a multi-ring circus.

And as Yoo explains, the danger to the U.S. is great, as we will be “forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives.” Aside from blowing the “cover” of personnel and plans known to us, we will be taking an unmistakable step toward criminalizing the battlefield:

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The mind reels as one considers the multiple ways in which the decision to extract KSM from the military-tribunal system and plop him down into a Manhattan courtroom will harm our national security. And will it really stay in Manhattan, in such close proximity to Ground Zero, or should I say, “the crime scene”? Certainly a change of venue motion will be forthcoming among the hundreds, if not thousands, of motions that will flow from the defendant — oh yes, that’s defendant KSM, now entitled to the presumption of innocence — and his stable of lawyers.

If you think Yoo or Obama’s critics are exaggerating, Yoo reminds us of Zacarias Moussaoui, the so-called 20th hijacker: “His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots. All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades.”

The president would have us believe that this is all Holder’s doing. Obama wasn’t even in the country when the announcement was made. If true, Obama has abandoned his obligation to make key decisions affecting national security. But who really believes that? No, this is the president’s call. KSM is landing in a civilian courtroom because Obama wants him there. Whatever flows from that, whatever damage is done to our national security, is his responsibility. And frankly, whatever anguish is experienced by the victims’ families, who will now hear KSM proclaim the virtue of his cause, is also Obama’s. He should have had the decency and the courage to tell them and the American people why he thought this was necessary.

Read Less

Flotsam and Jetsam

Rep. Peter King calls moving Khalid Sheikh Mohammed to the U.S. for trial the “worst decision by a U.S. president in history.”

Rudy Giuliani: “Returning some of the Guantanamo detainees to New York City for trial, specifically Khalid Shaikh Mohammed, has now brought us full circle — we have regressed to a pre-9/11 mentality with respect to Islamic extremist terrorism. Khalid Shaikh Mohammed should be treated like the war criminal he is and tried in a military court. He is not just another murderer, or even a mass murderer. He murdered as part of a declared war against us — America.”

John Yoo explains: “Trying Khalid Sheikh Mohammed in civilian court will be an intelligence bonanza for al Qaeda, tie up our courts for years on issues best left to the president and Congress, and further cripple our intelligence agencies’ efforts to fight terrorists abroad. KSM and his co-defendants will have all of the benefits and rights that the U.S. Constitution accords those who live here, most importantly the right to demand that the government produce in open court all of the information that it has on them, and how it was obtained.”

Bill Kristol on the choice for Democrats: “The political consequences will also extend to 54 Senate Democrats who voted recently against legislation to bar such civil trials–and to Democrats in the House who will be put on the spot as well. Congress could insist on military tribunals, and indeed in the past it has provided for such tribunals. I imagine Republicans on the Hill will try to move to overrule Holder, with legislation in the Senate, and with legislation and perhaps a discharge petition in the House. Holder can take his lumps for his reckless ideological decision if he wishes. Will congressional Democrats follow him off the cliff?”

Mark Ambinder on the U.S. trial of Guantanamo terrorists: “If this is politics, it’s really dumb politics.” Well yes, the scary part is that Obama and his attorney general think this is making us safer.

Marty Peretz on Fort Hood: “It was one of thousands of bloodlettings inspired by Islamic motives over the last decades. You can now add 51 victims to the dealing death and maiming numbers inspired by the ‘great God’ invoked by Hasan as he delivered his first gunfire volley. I am afraid that even the ever-so-fair, ever-eye-averting President Obama will have to reconsider his confidently euphonious message about belief and action in the Muslim orbit.” No sign of an end to eye-averting yet.

The McCain staffers are still trashing Sarah Palin. I suspect she’ll be on another presidential campaign. Them? Not so much.

Obama is not the health-care salesman his supporters may think he is: “More Americans now say it is not the federal government’s responsibility to make sure all Americans have healthcare coverage (50%) than say it is (47%). This is a first since Gallup began tracking this question, and a significant shift from as recently as three years ago, when two-thirds said ensuring healthcare coverage was the government’s responsibility.”

Rep. Peter King calls moving Khalid Sheikh Mohammed to the U.S. for trial the “worst decision by a U.S. president in history.”

Rudy Giuliani: “Returning some of the Guantanamo detainees to New York City for trial, specifically Khalid Shaikh Mohammed, has now brought us full circle — we have regressed to a pre-9/11 mentality with respect to Islamic extremist terrorism. Khalid Shaikh Mohammed should be treated like the war criminal he is and tried in a military court. He is not just another murderer, or even a mass murderer. He murdered as part of a declared war against us — America.”

John Yoo explains: “Trying Khalid Sheikh Mohammed in civilian court will be an intelligence bonanza for al Qaeda, tie up our courts for years on issues best left to the president and Congress, and further cripple our intelligence agencies’ efforts to fight terrorists abroad. KSM and his co-defendants will have all of the benefits and rights that the U.S. Constitution accords those who live here, most importantly the right to demand that the government produce in open court all of the information that it has on them, and how it was obtained.”

Bill Kristol on the choice for Democrats: “The political consequences will also extend to 54 Senate Democrats who voted recently against legislation to bar such civil trials–and to Democrats in the House who will be put on the spot as well. Congress could insist on military tribunals, and indeed in the past it has provided for such tribunals. I imagine Republicans on the Hill will try to move to overrule Holder, with legislation in the Senate, and with legislation and perhaps a discharge petition in the House. Holder can take his lumps for his reckless ideological decision if he wishes. Will congressional Democrats follow him off the cliff?”

Mark Ambinder on the U.S. trial of Guantanamo terrorists: “If this is politics, it’s really dumb politics.” Well yes, the scary part is that Obama and his attorney general think this is making us safer.

Marty Peretz on Fort Hood: “It was one of thousands of bloodlettings inspired by Islamic motives over the last decades. You can now add 51 victims to the dealing death and maiming numbers inspired by the ‘great God’ invoked by Hasan as he delivered his first gunfire volley. I am afraid that even the ever-so-fair, ever-eye-averting President Obama will have to reconsider his confidently euphonious message about belief and action in the Muslim orbit.” No sign of an end to eye-averting yet.

The McCain staffers are still trashing Sarah Palin. I suspect she’ll be on another presidential campaign. Them? Not so much.

Obama is not the health-care salesman his supporters may think he is: “More Americans now say it is not the federal government’s responsibility to make sure all Americans have healthcare coverage (50%) than say it is (47%). This is a first since Gallup began tracking this question, and a significant shift from as recently as three years ago, when two-thirds said ensuring healthcare coverage was the government’s responsibility.”

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Was the NSA Terrorist Surveillance Program Illegal?

What are the proper limits of a president’s authority under Article II of the U.S. Constitution? The question is put squarely before the public by the release of a secret 2003 legal memorandum written by John Yoo inquiring whether a president could, among other things, order a prisoner’s eye to be poked out.

Yoo takes the view that the president’s powers as commander in chief in wartime are virtually unlimited, and can ride over federal statutes banning interrogation techniques like assault and maiming. The Justice Department disavowed this doctrine nine months after it was enunciated, and that seems entirely appropriate. Even in wartime, our constitutional history makes fairly clear that there are limits on what a president can do.

But where exactly do those limits reside? And how exactly do they bear on another controversy involving executive power: President Bush’s decision in late 2001 to authorize the National Security Agency to launch the Terrorist Surveillance Program. This program involved the interception of international calls between al-Qaeda suspects abroad and persons in the United States? Because the program seemingly violated the plain language of the Foreign Intelligence Surveillance Act and, as some also argue, the Fourth Amendment prohibition on warrantless searches, was it also every bit as much an overreach of executive power as the actions outlined in John Yoo’s torture memo?

The answer, in my view, is emphatically no.

To begin with, strong arguments have been made that to the extent FISA limited the president’s power, it was itself an unconstitutional usurpation of the president’s power. At first glance this assertion seems to be merely a restatement of Yoo’s thesis that the president’s powers are unlimited. But the difference is that for very good reason warrantless wiretapping in wartime has a long history in this country. For very good reason, legalized torture does not.

The numerous examples of warrantless searches carried out for foreign-policy purposes, some under taken by the Clinton administration even after FISA was on the books (as in the case of Aldrich Ames), suggest that the NSA activities are well within the boundaries of constitutionally acceptable wartime measures. That, in any case, was also the consensus of a panel of retired FISA court judges who testified before the Senate Judiciary Committee in 2006.

Second, Congress was repeatedly briefed about the NSA program over a period of years. Although one or two members expressed reservations, no formal objection was ever lodged. When the program was disclosed to the public by the New York Times in December 2005, members of Congress from both parties voiced dismay that a valuable counterterrorism program had been compromised. The assent of Congress must carry considerable weight in any assessment of the legal status of the NSA program.

Reasonable men (and women) can disagree about this, of course. There was considerable disagreement about the NSA program within the Bush Justice Department itself. But such disagreement, one of the pretexts for the New York Times‘s decision to reveal the highly secret program, is not itself a sign of trouble but of health. If these matters were simple, there would be no need for an extensive legal bureaucracy to consider them. But in the final analysis a mere declaration by the New York Times or any other critic of the Bush administration that an intelligence program was illegal or unconstitutional does not make it so.

What are the proper limits of a president’s authority under Article II of the U.S. Constitution? The question is put squarely before the public by the release of a secret 2003 legal memorandum written by John Yoo inquiring whether a president could, among other things, order a prisoner’s eye to be poked out.

Yoo takes the view that the president’s powers as commander in chief in wartime are virtually unlimited, and can ride over federal statutes banning interrogation techniques like assault and maiming. The Justice Department disavowed this doctrine nine months after it was enunciated, and that seems entirely appropriate. Even in wartime, our constitutional history makes fairly clear that there are limits on what a president can do.

But where exactly do those limits reside? And how exactly do they bear on another controversy involving executive power: President Bush’s decision in late 2001 to authorize the National Security Agency to launch the Terrorist Surveillance Program. This program involved the interception of international calls between al-Qaeda suspects abroad and persons in the United States? Because the program seemingly violated the plain language of the Foreign Intelligence Surveillance Act and, as some also argue, the Fourth Amendment prohibition on warrantless searches, was it also every bit as much an overreach of executive power as the actions outlined in John Yoo’s torture memo?

The answer, in my view, is emphatically no.

To begin with, strong arguments have been made that to the extent FISA limited the president’s power, it was itself an unconstitutional usurpation of the president’s power. At first glance this assertion seems to be merely a restatement of Yoo’s thesis that the president’s powers are unlimited. But the difference is that for very good reason warrantless wiretapping in wartime has a long history in this country. For very good reason, legalized torture does not.

The numerous examples of warrantless searches carried out for foreign-policy purposes, some under taken by the Clinton administration even after FISA was on the books (as in the case of Aldrich Ames), suggest that the NSA activities are well within the boundaries of constitutionally acceptable wartime measures. That, in any case, was also the consensus of a panel of retired FISA court judges who testified before the Senate Judiciary Committee in 2006.

Second, Congress was repeatedly briefed about the NSA program over a period of years. Although one or two members expressed reservations, no formal objection was ever lodged. When the program was disclosed to the public by the New York Times in December 2005, members of Congress from both parties voiced dismay that a valuable counterterrorism program had been compromised. The assent of Congress must carry considerable weight in any assessment of the legal status of the NSA program.

Reasonable men (and women) can disagree about this, of course. There was considerable disagreement about the NSA program within the Bush Justice Department itself. But such disagreement, one of the pretexts for the New York Times‘s decision to reveal the highly secret program, is not itself a sign of trouble but of health. If these matters were simple, there would be no need for an extensive legal bureaucracy to consider them. But in the final analysis a mere declaration by the New York Times or any other critic of the Bush administration that an intelligence program was illegal or unconstitutional does not make it so.

Read Less




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