The Duke factor
Saturday, April 03, 2004
Did the remants of David Duke's white-supremacist voting contingent help elect a white Democrat to the Louisiana Governor's mansion?
It appears they did indeed:
- New study suggests bias, ex-Duke voters key to Blanco's 2003 win
Unexpected support from the so-called "David Duke vote" was decisive in Democratic Gov. Kathleen Blanco's victory, the detailed statistical analysis by two government professors at Hamilton College in Clinton, N.Y., suggests.
White voters who had backed former Ku Klux Klan leader David Duke in 1991, and who normally vote Republican, instead turned away from Jindal in the 2003 race, according to the analysis by Richard Skinner and Philip A. Klinkner. "Duke voters," particularly in north Louisiana, were enough to provide the new governor her margin, Skinner and Klinkner suggest.
However, before conservative partisans go pointing fingers about this case, it's perhaps worth noting that far more often, the racist vote in the South, and Louisiana specifically, usually favors Republicans:
- In two other recent governor's races, for example, pitting a conservative white Republican -- Mike Foster -- against liberal black Democrats Cleo Fields and William Jefferson, the white's big win could arguably have been attributed to the political conservatism of the Louisiana voter.
Also worth noting:
- The new study appears to confirm the fears of the Republicans who turned away from Jindal. "This analysis provides a solid case that Jindal's ethnicity was the reason a substantial number of voters who normally vote Republican, voted against Jindal," said LSU political scientist Wayne Parent. He called it the "last word" on the role Jindal's ethnic origins played in the 2003 vote.
"They applied sound political science methods to the election results and uncovered some voting patterns that should give us pause," said Lance Hill, executive director of the Southern Institute for Education and Research at Tulane University. "Jindal's Indian ethnicity played a greater role in the outcome of the election than pundits accorded it."
So, how long do you think it will be before we see another minority candidate for higher office in the South being nominated by the GOP?
You may remember that I previously discussed the nature of the anti-Semitism that is likely to emanate from such films as Mel Gibson's The Passion of the Christ, namely, a more "attitudinal" change that would eventually condone various kinds of violence, including those against liberals generally as well as Jews.
There have been, as noted then, at least a couple of incidents in the Denver area that suggest this violence is taking concrete form -- though it must be noted that since then, things have remained fairly quiet. However, a report in today's Washington Post makes clear that the film has in fact affected attitudes about Jews in America:
- The percentage of Americans who say Jews were responsible for Christ's death is rising, particularly among blacks and young people, according to a nationwide poll taken since the release of Mel Gibson's movie "The Passion of the Christ."
The poll released yesterday by the Pew Research Center in Washington is the first statistical evidence that the movie's box-office success may be associated with an increase in anti-Jewish feeling, although social scientists cautioned that cause and effect are not clear.
... The increase was especially pronounced among two groups. The portion of people younger than 30 who say Jews were responsible for killing Jesus has approximately tripled, from 10 percent in 1997 to 34 percent today. The portion of African Americans who hold that view has doubled, from 21 percent to 42 percent.
The original report from Pew makes for fascinating reading:
- The increasing sense among some groups that Jews were responsible for Christ's death comes amid controversy over the Mel Gibson movie "The Passion of the Christ." A relatively large proportion of people who have seen the movie (36%) feel Jews were responsible for Christ's death. However, this is also the case among people who plan to see the movie (29%), suggesting people who are drawn to this movie may be predisposed to this opinion more than others. By comparison, just 17% of those who have no plans to see the movie believe that Jews were responsible for Christ's death.
Also noteworthy: Evangelical Protestants are easily the film's biggest audience, constituting 25 percent of those who've seen the film (compared to 20 percent for Catholics and only 11 percent for mainline Protestants).
In the meantime, the final word on The Passion may belong to South Park, which satirized the film as cultural event hilariously in last week's episode:
- Kyle finally sees "The Passion" and is forced to admit Cartman has been right all along. Meanwhile many of the film's hardcore fans band together under Cartman's leadership to carry out its message.
Cartman, for those interested, dons Nazi regalia and persuades the South Park townsfolk to march down Main Street chanting for the elimination of Jews in German.
In the meantime, Stan and Kenny go to the movie and reach the same conclusion I did: "That movie sucked." They travel to Malibu to get their $18 back from Mel Gibson himself, only to discover that, as the episode's final line puts it, "Mel Gibson is a wacko loser asshole."
In a career full of amazingly offensive (yet still hilarious) satires, it's one of the most vicious -- and funniest -- South Park episodes yet.
Some of you may recall the World Church of the Creator, the far-right "religion" of white supremacists based in East Peoria, Illinois, who made headlines back in 1999 when one of their members, Benjamin Smith [PDF file], went on a shooting rampage in the Midwest against various minorities, includiing Jews, blacks and Asians, leaving one man dead and four wounded.
A few years ago, the WCOTC -- which had a foothold in Montana dating back to the mid-1980s -- attempted to move its operations out West, with one faction attempting to set up shop in Wyoming, while others tried to make a go of it in Montana. The Wyoming move evaporated, and now -- with Matt Hale, the group's Peoria leader, in prison for allegedly ordering a hit on a federal judge -- the Montana faction is on its last legs.
This was detailed in a recent two-part series by Allison Farrell of the Lee Newspapers' Montana bureau, the first of which, "Down to Two," describes how the WCOTC is now literally on the brink of extinction because its main source of funds -- the library of texts by its founder, Ben Klassen -- is now in the hands of civil-rights groups:
- But before he left, Carl used his key to the group's storage shed in Superior and took all of their remaining publications, some $41,000 worth of books written by the group's founder, and sold them to the Montana Human Rights Network for $300. The network monitors the radical right and other hate groups.
Carl said he wanted to hamstring the group's fund-raising ability. The books, which sell for $10 apiece, were the group's major source of income.
Carl also turned over boxes and boxes of the church's internal documents and e-mails that were stored in the shed. Page after page details the group's strained alliances, infighting and petty bickering.
The documents record Deardorff's brief contact with both the National Alliance and the Ku Klux Klan, and they highlight Hale's ego. The vast majority of the documents, however, paint a picture of paranoia and organizational chaos.
The extent of the group's decline -- already long apparent, as this backgrounder makes clear -- has finally reached the point where a movement that many thought was nearly extinguished back in 1992, when Klassen committed suicide, may finally disappear into the black hole from which it emerged. As the second part of Farrell's series explains, the lingering remnants are truly pathetic:
- "I think they were really overrated in terms of their size and danger,'' Balch said, adding that the rendezvous he attended was 'tiny.' ''
"Mostly, it was people hanging out and talking and eating really bad food, like Kentucky Fried Chicken and doughnuts,'' Balch said. "Nothing much went on.''
Still, this is a group that was well on its way to oblivion once before. Klassen -- who founded WCOTC in the 1970s, based in no small part on the fortune he made by inventing a kitchen applicance -- had been in declining health since the mid-1980s, and his designated successor in the early '90s was a Montana extremist named Rudy Stanko, who happened to be in prison at the time for selling rotten meat for consumption by schoolchildren (Stanko blamed his conviction on the ever-popular massive Jewish conspiracy to enslave the world). Stanko obtained much of Klassen's library, but then declined the WCOTC leadership when released from prison in 1991. Hale then stepped up to the seize the reins of the WCOTC after Klassen's 1993 suicide. Hale was largely responsible for its apparent revival in the late '90s.
As the story observes:
- "The World Church of the Creator very nearly collapsed once before in 1992 after its founder, Ben Klassen, committed suicide,'' said Mark Potok, editor of the Intelligence Report, a quarterly investigative magazine the Southern Poverty Law Center publishes on the American radical right. "Really what allowed the group to come back to life was the store of old Klassen books.''
The remnants of that library, as the recent stories explain, is now in the process of being transformed into a piece of art. As Farrell explains in a followup report, two Montana artists intend to make a kind of educational piece of artwork out of the material and put it on display for the public, sort of like encasing fossils in amber.
This, in turn, has those last surviving remnants of the species to voice their displeasure in the only way they know how: By issuing not-so-oblique threats:
- Another e-mail posted to the group's Web forum at www.creativityohio.com lists Holmes' home address and phone number, while another declares that Holmes' project "is one of many declarations of war against our religion.''
"We will remain legal in the face of corruption, but once all legal means are denied, a war will be unavoidable,'' the e-mail warns, in seeming contradiction to the group's Web pledge to seek merely legal redress.
The e-mail sent to Holmes calls him a "Jewish boot licker,'' and informs the Helena artist that "more (creators) will be in contact with you.''
It should be noted, of course, that a number of Montanans are already all too familiar with these kinds of threats, particularly the publication of home addresses and Web-based harassment (but then, so are some left-wing bloggers). It may be a cold comfort that WCOTC's remnants for the most appear to be so incompetent and impotent as to be incapable of doing anything other than blowing a lot of smoke.
Unfortunately, there is also the lingering example of Benjamin Smith, even now. A dying scorpion can still pack a nasty sting.
Now there's an idea
Friday, April 02, 2004
Here's a fresh right-wing meme. Look for it in upcoming GOP platforms ... rescindable, of course, upon the (heaven forbid) election of any Democrat to the presidency ...
- Unfounded Accusations Against Presidents Should Be A Felony
There needs to be a law passed where any person who disrespects the "Office of the Presidency" by making false accusations and spreading deliberate rumors about the president, should be charged with a felony or at the very least a high misdemeanor.
Damn, if this had been the law in 1998, every Freeper on the planet -- and about half of Congress -- would have been behind bars.
Thursday, April 01, 2004
Oh, and speaking of media whores ...
Mickey Kaus recently took exception to one of the more astute of Josh Marshall's already keen insights, in Marshall's recent post on Clarke and Condi:
- Perhaps it goes without saying, but let's say it: It was as obvious four years ago as it is today that the most potent threats to America are asymmetric threats, particularly forms of attack that cannot easily be tied back to particular states which we can punish with our conventional military superiority. [Emphasis added.]
To which Kaus dimly responds:
- Huh? Clearly the Bush administration failed, as WaPo's Robin Wright puts it, to "take seriously enough the danger from al Qaeda." (Duh!) They should just admit it. But to say this sort of threat was as obvious four years ago as it was after the World Trade Center was destroyed is idiotic, and reflects a counterproductive, bloggish anti-Bush intellectual overstretch.
Evidently, Kaus never heard tell of the Oklahoma City bombing.
You know -- the event that, before Sept. 11, was far and away the most significant terrorist attack on American soil. An event that, in fact, heralded to world the fact that the modern face of terrorism comprised "asymmetric threats, particularly forms of attack that cannot easily be tied back to particular states which we can punish with our conventional military superiority."
But then, we already knew that Bush and Co. don't take domestic terrorism seriously either.
The Horse, of course
I know a lot of people have been wondering what's going on with our old friend, Media Whores Online, the spunky Web site that for the past several years has been striking terror in the hearts of the sell-out Kewl Kids of the Beltway.
"Out to pasture"? Does that mean -- gulp -- that The Horse is no more?
People have to appreciate just what MWO accomplished in a few short years. Operated simply by a regular citizen, it became the first liberal activist Web site to attract a mass audience -- one, it must be noted, that responded to its pleas by sending out thousands of scathing (and, evidently, sometimes nasty) e-mails to various media miscreants.
MWO demonstrated the power of free speech in an open democracy, and in many ways paved the way for the development of the liberal blogosphere. I know that many of us now in the blogging biz were first able, by watching MWO, to see just how much could be accomplished by simply disseminating important information and working it out of the vast wormholes that the nation's corporate media have become.
Call it the democratization of the media, if you will; the Web has become an important way for important information to be kept alive when it might otherwise be buried. The traditional media did not like it, particularly those from the conservative realm. Tucker Carlson to this day makes rueful references to Media Whores Online.
And the big mystery, of course, was Who's really behind MWO? Because it couldn't just be an ordinary pissed-off citizen. That would cede waaaay too much power to ordinary people. The very concept blew Beltway minds like so many overinflated balloons. (Remember the limp but snide profile in Salon that attempted to answer the question, and just wound up embarrassing itself?)
In any event, MWO has been taking increasingly long vacations in the past year or so, culminating in the most recent hiatus announcement. A lot of people are wondering if we've lost the valued MWO voice for good.
I happen to have a long-running correspondence with the person primarily responsible for MWO's content, and so I wrote and inquired about what was up. The answer, to put it most simply, is that real life outside the Web intruded on MWO's online career, as it does for most of us.
Without revealing too much of what was explained to me in confidence, I think it's safe to say that MWO's editor became unable to post as often one might have liked to be effective. There is also a bandwidth issue, but putting out a tin cup is not on the agenda.
The editor explained to me that MWO hopes to return before the election, bigger and badder than ever, weighing in when it counts most. It may return as early as May ("at the rate the admin is going with their lies and corruption!").
Let's all hope so. That may be a horse of a different color, but it's the one many of us rode in on.
Wednesday, March 31, 2004
More corroboration for Richard Clarke:
- Top Focus Before 9/11 Wasn't on Terrorism: Rice Speech Cited Missile Defense
I guess now we'll be hearing that the Washington Post just wants to sell newspapers.
Maybe this will explain that seven-month gap -- you know, the time between Clarke's first request for a top-level meeting on al Qaeda and the actual meeting. Missile defense came first.
Josh Marshall has more.
The true shape of terrorism
One of the significant points made by Richard Clarke -- and largely obscured in the detritus of the ad-hominem attacks on his testimony -- is that the Bush administration, both before and after Sept. 11, has displayed an abysmal failure to grasp the real nature of terrorism.
It started off well enough, attacking the one state (Afghanistan) that was known to support al Qaeda and harbor their camps. But that military orientation in the "war on terror" obviously dominated the Bush strategy both before and after 9/11, and led ultimately to the adventure in Iraq that has proven not only to be an ever-deepening quagmire with a increasingly mounting toll in American lives, but has, as Clark asserts, actually weakened the real fight against terrorism.
A military orientation, as I discussed recently, almost perforce orients the "war on terror" to formulating attacks on those states -- the "axis of evil" -- that support terrorism. And the reality, as I've explained at length, is that terrorism as a phemonenon is not likely to be defeated under those terms.
The reason is what I've called the "corpuscular" nature of modern terrorism -- it does not need a state for support, and in fact can, as in Oklahoma City, manifest itself simply as a hostile entity within a given state. Home-grown right-wing extremists are every bit a manifestation of the same phenomenon as al Qaeda, and in fact not only share a great deal in common with them ideologically and strategically, but have in many cases (as in the anthrax attacks) clearly piggybacked off of al Qaeda terrorism to create an "echo" effect.
A fascinating piece by terrorism expert Jessica Stern, published in the respected journal Foreign Affairs in July/August 2003, was recently brought to my attention by a colleague because it provides some disturbing details about the rising likelihood of an actual coalescence of American right-wing extremists and Islamist right-wing extremists, including al Qaeda:
- The Protean Enemy
Stern points out that there have been several indications that American terrorists are now commingling with Middle Eastern extremists in, of all places, the no-man's land of South America:
- The triborder region of South America has become the world's new Libya, a place where terrorists with widely disparate ideologies -- Marxist Colombian rebels, American white supremacists, Hamas, Hezbollah, and others -- meet to swap tradecraft. Authorities now worry that the more sophisticated groups will invite the American radicals to help them. Moneys raised for terrorist organizations in the United States are often funneled through Latin America, which has also become an important stopover point for operatives entering the United States. Reports that Venezuela's President Hugo Chavez is allowing Colombian rebels and militant Islamist groups to operate in his country are meanwhile becoming more credible, as are claims that Venezuela's Margarita Island has become a terrorist haven.
As these developments suggest and Tenet confirms, "mixing and matching of capabilities, swapping of training, and the use of common facilities" have become the hallmark of professional terrorists today. This fact has been borne out by the leader of a Pakistani jihadi group affiliated with al Qaeda, who recently told me that informal contacts between his group and Hezbollah, Hamas, and others have become common. Operatives with particular skills loan themselves out to different groups, with expenses being covered by the charities that formed to fund the fight against the Soviet Union in Afghanistan.
Not only that, but al Qaeda is apparently modeling its own structure on the one adopted by American right-wing extremists in the 1990s -- namely, "leaderless resistance," the splitting up of organizations into a remote network of terrorist cells, so that if one cell is apprehended or stymied, the others remain intact.
- Al Qaeda seems to have learned that in order to evade detection in the West, it must adopt some of the qualities of a "virtual network": a style of organization used by American right-wing extremists for operating in environments (such as the United States) that have effective law enforcement agencies. American antigovernment groups refer to this style as "leaderless resistance." The idea was popularized by Louis Beam, the self-described ambassador-at-large, staff propagandist, and "computer terrorist to the Chosen" for Aryan Nations, an American neo-Nazi group. Beam writes that hierarchical organization is extremely dangerous for insurgents, especially in "technologically advanced societies where electronic surveillance can often penetrate the structure, revealing its chain of command." In leaderless organizations, however, "individuals and groups operate independently of each other, and never report to a central headquarters or single leader for direction or instruction, as would those who belong to a typical pyramid organization." Leaders do not issue orders or pay operatives; instead, they inspire small cells or individuals to take action on their own initiative.
This form of resistance often devolves from the larger five- to seven-person cell to smaller, intensely active spin-offs, ultimately manifesting itself in the form of "lone wolf" terrorists like Buford Furrow, Benjamin Smith or Richard Reid.
- Lone-wolf terrorists typically act out of a mixture of ideology and personal grievances. For example, Mir Aimal Kansi, the Pakistani national who shot several CIA employees in 1993, described his actions as "between jihad and tribal revenge" -- jihad against America for its support of Israel and revenge against the CIA, which he apparently felt had mistreated his father during Afghanistan's war against the Soviets. Meanwhile, John Allen Muhammad, one of the alleged "Washington snipers," reportedly told a friend that he endorsed the September 11 attacks and disapproved of U.S. policy toward Muslim states, but he appears to have been principally motivated by anger at his ex-wife for keeping him from seeing their children, and some of his victims seem to have been personal enemies. As increasingly powerful weapons become more and more available, lone wolves, who face few political constraints, will become more of a threat, whatever their primary motivation.
The Internet has also greatly facilitated the spread of "virtual" subcultures and has substantially increased the capacity of loosely networked terrorist organizations. For example, Beam's essay on the virtues of "leaderless resistance" has long been available on the Web and, according to researcher Michael Reynolds, has been highlighted by radical Muslim sites. Islamist Web sites also offer on-line training courses in the production of explosives and urge visitors to take action on their own. The "encyclopedia of jihad," parts of which are available on-line, provides instructions for creating "clandestine activity cells," with units for intelligence, supply, planning and preparation, and implementation.
The obstacles these Web sites pose for Western law enforcement are obvious. In one article on the "culture of jihad" available on-line, a Saudi Islamist urges bin Laden's sympathizers to take action without waiting for instructions. "I do not need to meet the Sheikh and ask his permission to carry out some operation," he writes, "the same as I do not need permission to pray, or to think about killing the Jews and the Crusaders that gather on our lands." Nor does it make any difference whether bin Laden is alive or dead: "There are a thousand bin Ladens in this nation. We should not abandon our way, which the Sheikh has paved for you, regardless of the existence of the Sheikh or his absence." And according to U.S. government officials, al Qaeda now uses chat rooms to recruit Latino Muslims with U.S. passports, in the belief that they will arouse less suspicion as operatives than would Arab-Americans. Finally, as the late neo-Nazi William Pierce once told me, using the Web to recruit "leaderless resisters" offers still another advantage: it attracts better-educated young people than do more traditional methods, such as radio programs.
And, as Stern observes, there have been other documented examples of an increasing overlap between right-wing extremists and Islamist radicals:
- Focusing on economic and social alienation may help explain why such a surprising array of groups has proved willing to join forces with al Qaeda. Some white supremacists and extremist Christians applaud al Qaeda's rejectionist goals and may eventually contribute to al Qaeda missions. Already a Swiss neo-Nazi named Albert Huber has called for his followers to join forces with Islamists. Indeed, Huber sat on the board of directors of the Bank al Taqwa, which the U.S. government accuses of being a major donor to al Qaeda. Meanwhile, Matt Hale, leader of the white-supremacist World Church of the Creator, has published a book indicting Jews and Israelis as the real culprits behind the attacks of September 11. These groups, along with Horst Mahler (a founder of the radical leftist German group the Red Army Faction), view the September 11 attacks as the first shot in a war against globalization, a phenomenon that they fear will exterminate national cultures. Leaderless resisters drawn from the ranks of white supremacists or other groups are not currently capable of carrying out massive attacks on their own, but they may be if they join forces with al Qaeda.
The important upshot of this is that terrorism is best attacked as the highly amorphous, incredibly volatile thing that it is -- and that a strategy that aims for the root causes both abroad and at home is fundamental to winning the "war." A military-driven operation will seek to attack states where it is believed to be nurtured, with the likely effect being to only drive more and more individuals into the radicalized camps:
- In countries where extremist religious schools promote terrorism, Washington should help develop alternative schools rather than attempt to persuade the local government to shut down radical madrasahs. In Pakistan, many children end up at extremist schools because their parents cannot afford the alternatives; better funding for secular education could therefore make a positive difference.
The appeal of radical Islam to alienated youth living in the West is perhaps an even more difficult problem to address. Uneasiness with liberal values, discomfort with uncertain identities, and resentment of the privileged are perennial problems in modern societies. What is new today is that radical leaders are using the tools of globalization to construct new, transnational identities based on death cults, turning grievances and alienation into powerful weapons. To fight these tactics will require getting the input not just of moderate Muslims, but of radical Islamist revivalists who oppose violence.
Besides countering the milieu in which terrorism arises, winning also means adopting flexible strategies that rely primarily on intelligence and the rule of international law, with an emphasis on eliminating their ability to obtain effective weapons of mass destruction. This means breaking up networks and infiltrating their ranks, the approach that appeared to work for law enforcement in its dealings with the American extremist right after 1995:
- Especially important is the need to continue upgrading security at vulnerable nuclear sites, many of which, in Russia and other former Soviet states, are still vulnerable to theft. The global system of disease monitoring -- a system sorely tested during the sars epidemic -- should also be upgraded, since biological attacks may be difficult to distinguish from natural outbreaks. Only by matching the radical innovation shown by professional terrorists such as al Qaeda -- and by showing a similar willingness to adapt and adopt new methods and new ways of thinking -- can the United States and its allies make themselves safe from the ongoing threat of terrorist attack.
The Bush strategy, in fact, has failed in nearly all these regards. Richard Clarke's point, ultimately, underscores the extent to which the Bush administration has failed to adequately confronted the reality of terrorism: "When the president starts doing things that risk American lives, then loyalty to him has to be put aside. I think the way he has responded to al Qaeda, both before 9/11 by doing nothing, and by what he's done after 9/11 has made us less safe."
Condi Rice and the Great Bush Power Grab
Tuesday, March 30, 2004
It's hard to tell whether the White House is simply playing a kind of shell game, but it's clear that a larger agenda beyond even covering up its failures to protect the nation from terrorist attacks is at play in the refusal to let National Security Adviser Condoleeza Rice testify under oath before the commission investigating the Sept. 11 attacks.
Closer examination, in fact, reveals that the agenda at work is an unprecedented expansion of presidential powers, so that it becomes in effect unanswerable to any power other than the voters every four years.
Rice herself was rolling in the obfuscation this weekend on CBS' 60 Minutes when she explained why she just couldn't testify before the 9/11 commission:
- "Nothing would be better, from my point of view, than to be able to testify. I would really like to do that. But there is an important principle involved here: It is a long-standing principle that sitting national security advisers do not testify before the Congress."
As Atrios points out, there are multiple problems with this explanation, not the least of which is that the 9/11 commission is not specifically a creature of the Congress -- it was created as an independent body with key members named by the president himself. The traditional understanding of executive privilege is that it extends only to congressional inquiries.
Executive privilege, in fact, deals only in situations in which presidential advisers are compelled to testify before Congress. Of course, national security advisers have in fact testified before Congress on multiple occasions -- but they rarely are compelled to do so.
In other words, Rice is not only arguing against being compelled to testify. She is arguing that any kind of appearance, compelled or otherwise, before the commission might endanger the executive privileges of the president. She's making the preposterous claim that the White House must refuse an invitation to appear -- even though, in her words, they would like to testify [yeh, right] -- because doing so would undermine its power to resist subpoenas at a later date.
What is clearly happening in the Rice case is that Bush administration is seeking to expand the principles of executive privilege to the point where it simply has no accountability to anyone other than the voters. It marks, in other words, a radical rearrangement of the constitutional separation of powers. This is not a new agenda -- and in fact, it has been one of the consistent operating principles of this administration since the day it took power.
In a way, it marks the revenge of the Nixonites -- because at its core, it is a campaign to overturn the Watergate-era precedents and subsequent reforms that placed certain executive-branch functions under the potential purview of the Congress.
The core of these is the Supreme Court's ruling in United States v. Nixon, which first established the limits of executive privilege:
- However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
As it happens, none other than Bush's Solicitor General, Ted Olson, played a central role in the subsequent struggles in the early 1980s between Congress and the Reagan administration over the ramifications of this ruling. As I mentioned recently (and detailed in a 2001 Salon piece), Olson was so eager to test the issue of executive privilege that he forced EPA administrator Anne Burford to assert it over documents which, it later emerged, were not covered by the law.
Olson also filed a civil lawsuit that was promptly dismissed by a federal judge, as recounted in this 1998 article about executive privilege (in the context of Bill Clinton's attempts to assert it):
- In a case known as United States v. The House of Representatives of the United States, the Reagan administration sought in 1982 to clarify and bolster the doctrine of executive privilege in light of a congressional subpoena of environmental policy documents.
U.S. District Court Judge John Lewis Smith Jr. would have none of it. The case, he concluded, demanded a political accommodation rather than a new body of case law: "Courts have a duty to avoid unnecessarily deciding constitutional issues."
Olson, in the course of congressional testimony that attempted to nail down the nature of his fatally flawed advice to President Reagan, was so egregiously evasive that he shortly thereafter became the subject of an independent counsel's investigation of him for possible perjury. The counsel later exercised real prosecutorial restraint when she decided that, though Olson's testimony was "misleading and disingenuous," it did not rise to the level of criminally prosecutable perjury. (Olson's cohort Kenneth Starr, of course, was never accused of such restraint later in his dealings with Bill Clinton.) It also helped that the IC's investigation had been sharply limited by the narrow referral from Olson's superior (and Federalist Society colleague) Edwin Meese.
What was most noteworthy about the investigation, however, was that Olson sued to stop it, arguing that the independent-counsel statute itself was unconstitutional. The case -- known as Morrison v. Olson -- made it all the way to the Supreme Court (with some help from Olson's Federalist Society comrade, Laurence Silberman,), where it was handed an ignominious 8-1 defeat.
However, the lone dissenter was Antonin Scalia -- and his dissent clearly reflects the core thinking of the current administration's views regarding executive privilege, resurrecting even Olson's old arguments in the 1982 civil lawsuit. Scalia essentially argues from an absolutist view of the separation-of-powers doctrine, giving the executive branch unimpeded purview over its realm.
- Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. … No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices.
This was a clear attack on the currently standing principle of the separation of powers, established in 1952 in Youngstown Sheet & Tube Co. v. Sawyer, allowing noncompartmentalization of powers, and a certain amount of overlap. Justice Jackson in his concurrence voiced the underlying principle: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."
Scalia, however, contends that his absolutist approach is what the Framers had in mind, while announcing his disdain for the evolved body of law in the interim:
- The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."
The Bush administration -- particularly under Olson's guidance as Solicitor General -- has hewn closely to this reasoning throughout its tenure, particularly when claiming that the records of Vice President Dick Cheney, in his meetings with energy-company officials while plotting out the nation's energy policy, are off-limits.
The Bush legal and PR team, in defending Cheney, cites the well-established principle behind executive privilege, namely, that (as Warren Burger put it in U.S. v Nixon) "the President's need for complete candor and objectivity from advisers calls for great deference from the court." However, Cheney's claim of privilege runs head-on into the same ruling in its insistence that "when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."
As John Dean observes in this recent piece in FindLaw about the Cheney case -- which now looms before the Supreme Court -- the Bush legal team is in fact seeking an unprecedented expansion of presidential powers, to the point of being nearly unaccountable:
- What are the implications if Cheney does win this case, and Scalia's bright-line rule prevails? For a sense of them, it's useful to look to Judge Sullivan's well-reasoned opinion (and remember, Judge Sullivan has been nominated to judgeships by two Republicans -- as well as one Democrat).
Judge Sullivan wrote that "The implications ... are stunning," for Cheney's position is "untenable." He gave a few key examples of what accepting the bright line rule would mean:
- Any action by Congress or the Judiciary that intrudes on the president's ability to recommend legislation to Congress or get advice from Cabinet members in any way would necessarily violate the Constitution. The Freedom of Information Act and other open government laws would therefore constitute an unconstitutional interference with Executive authority. Any action by a court or Congress that infringes on any other Article II power of the President, for example, the President's role as Commander in Chief of the armed forces and the national security concerns that derive from that role, would violate the Constitution. Any congressional or judicial ruling that infringes on the President's role in foreign affairs, would violate the Constitution.
The result, Judge Sullivan argued persuasively, would be to "eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends." In other words, it would be to forever change the government, and the system our Founders envisioned.
What is noteworthy about the Bush power grab is that the administration has leveraged the "war on terror" specifically as a tool for expanding its powers. As I've explored previously, its assertion of military powers for arresting and controlling civilians suspected of abetting the "war on terror" under the guise of its "enemy combatant" status and military tribunals is based on a similar worldview -- namely, that the executive branch's powers under wartime are virtually illimitable, and not accountable to any civilian court.
Recall, if you will, Olson's logic in defending the secret court system underpinning the Bush 'war on terror', as recounted by the Washington Post, in which he described the criteria that would be applied in determining who's an "enemy combatant":
- "There won't be 10 rules that trigger this or 10 rules that end this," Olson said in the interview. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."
And what's to restrain the president? Only the prospect of losing re-election:
- Administration officials, however, imply that the main check on the president’s performance in wartime is political -- that if the public perceives his approach to terrorism is excessive or ineffective, it will vote him out of office.
“At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision,” Olson said. “Who will finally decide that? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?”
The obdurate handling of Rice's testimony before the 9/11 commission is part and parcel of this power grab: Bush, Cheney, Olson and Co. all see any concession of testimony before any other body, congressional or otherwise, a concession of its constitutional powers.
It's all about the Imperial Presidency. The principle -- just as it was for Nixon -- is the power of the president and his advisers to lie, fumble, and even break the law without consequence. Just because he's president.
The concern that Americans might have about getting to the truth of how 9/11 happened, especially in the way of preventing its recurrence, must take a back seat to such principles, evidently.
And who knows? They may even have a leg to stand on, legally speaking, in denying Rice's sworn testimony to the committee. Politically speaking, it's more difficult, given that Rice has been out there on every network imaginable running down Richard Clarke and spreading, well, intriguing explanations about just why she can't testify.
You'd think that a team as politically savvy as the Rove Squad would recognize that drawing a highly visible distinction between what Rice is saying publicly and what she might be forced to say on a witness stand is not exactly a good idea.
After all, don't you wonder why she can explain it all on national TV -- but not under oath?
[Cross-posted at The American Street.]