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September 12, 2007
The Master Narrative that Went Missing During the Bush Years Turns Up in Charlie Savage's BookUnbuilding the Bush presidency: does your candidate support that? Which parts? And if you don't know, isn't that a case of: Iowa, we have a problem?Some new developments this week in the continuing story of how the press was overawed by the Administration of George W. Bush. For those who have followed it, the story has two tracks: what happened then (2002-05, as the case for war was made and then fell to pieces) and what’s still happening now, despite broad awareness of how badly the press failed itself, and the country, back “then.” Boston Globe Reporter Charlie Savage did something great on Track One Monday. He actually supplied at TPM Cafe the missing master narrative for the Bush years: “The agenda of concentrating more unchecked power in the White House.” In one of the first posts I wrote when I started blogging (Sep. 2003), I defined the master narrative in press coverage as “the story that produces all the other stories.” In campaign news on the horse race model, the base narrative is winning; how the campaign is won is the “master” from which thousands of copies—horse race stories themselves—are made. My thought was: change the master, come up with a better one, and maybe you can change the reporting. Well, Savage came up with a better one for this Administration: the drive to concentrate unchecked power in the White House, commanded by Cheney, backed by Bush, centered in the OVP— and a radical project. Not a “new” story but a thread for connecting lots of stories and piecing together better explanations for what was going down. I think that was the narrative the press needed to get back in the game after being gamed in the build-up to the War. The story that produces lots of other stories should have been the attempted expansion of executive power, and the go-it-alone politics that followed from it. Savage is planning a five-week tour around the country. You should try to catch him. But first catch what he’s saying— and the responses. For if we can’t get the presidential candidates of both parties on record about steps to reverse this agenda, if we can’t make a proper issue out of it in 2008, we’re probably screwed. (See Savage on this very point.) Unbuilding the Bush presidency: does your candidate support that? Which parts? And if you don’t know, isn’t that a case of: Iowa, we have a problem? PressThink readers would know Charlie Savage as the Globe reporter in Washington who figured out that Bush’s signing statements were part of a pattern. He put some of the pieces together and got a Pulitzer for it, which was just. I thought his new book, Takeover, was going to be the fuller story of signing statements, but no. It’s about “the Bush administration’s very broad view of executive power,” and the effort to put that view into practice by overcoming all constraints. Savage began calling it the Cheney project because Dick Cheney had “articulated a vision of nearly limitless commander-in-chief power two decades earlier.” In 2005, Savage followed the fight over John McCain’s efforts to get a ban on torture enacted by Congress. “We all thought the story was over when Bush signed the bill into law, but then the president issued a signing statement telling interrogators that he could authorize them to ignore the law.” Then it happened again with oversight provisions in the Patriot Act. Savage reported on both actions for the Globe. “Those two stories got a huge response, and so after that my bureau chief relieved me of daily reporting responsibilities for a month to go find and decipher all the other signing statements Bush had issued since taking office.” (Why do I say bloggers vs. journalists is stupid and should be declared over? Because the two “sides” are already part of one news system. A large portion of that “huge” response he got was the blogosphere roaring its approval for the digging and synthesizing Charlie Savage did, which influenced the bureau chief to spend the manpower on more stories like that. The big response online amplifies the Globe’s voice in the national conversation, and expands the circle of people who care about the newspaper’s reporting.) Savage learned that the president had challenged more laws than all previous presidents combined. If the owner of the policy was Bush and its originator Cheney, the enforcer was David Addington (see Jane Mayer’s profile), a man who does not even speak to the press. The policy predated September 11, after which the attacks became the spectacular (and bottomless) justification. Savage put it this way in the Boston Globe (Nov. 26, 2006): “Over the course of his career, Cheney came to believe that the modern world is too dangerous and complex for a president’s hands to be tied. He embraced a belief that presidents have vast ‘inherent’ powers, not spelled out in the Constitution, that allow them to defy Congress.” A theme Savage develops is the inadequacy of a string of episodes. “Like many reporters, I had been focused in on a close-up of one or two controversies, but had been missing the broader context,” he writes. In fact, journalists have to decide not only what “the broader context” is, but whether there is a broader context building up, a thread connecting these things, or just a series of news stories, episodes that are worth a few cycles but ultimately have to make way for other episodes. Savage tells us what happened when he allowed the “full panorama” into view. It changed what he saw in incidents that had made news. (My italics…) Suddenly, what the Bush administration had been doing across a huge range of issues made much more sense – not just the 9/11-related controversies, but Cheney’s fight to keep his energy task force papers a secret, the attacks on open-government laws such as FOIA and the Presidential Records Act, the use of executive orders instead of legislation to push the faith-based initiative, the decision to pull out of the Anti-Ballistic Missile Treaty without consulting the Senate, the choices for Supreme Court nominations, unprecedented efforts to impose greater White House control over Justice Department lawyers and other executive branch bureaucrats, and many other things. These disparate controversies were all connected. The administration, from its very beginning, had set out to set precedents and take actions that would permanently expand presidential power for the long-term, even when such tactics brought them extra short-term difficulties. A quiet but sweeping constitutional revolution was well underway. See why master narratives matter? While Savage develops his argument for what was going on, Jack Goldsmith’s testimony is unfolding at Slate. They complete each other, clashing only in one respect: the view each has of presidential power. Here we have a conservative, a Republican, and a Bush Administration insider—head of the Office of Legal Counsel in the Justice Department, until he resigned because of the Cheney project—developing what is largely the same narrative, and bringing you into the meetings where key events in it happened. “Why don’t we just go to Congress and get it to sign off on the whole detention program?” Goldsmith asked at one sit down. “Why are you trying to give away the president’s power?” Addington replied. This is the heart of his book, which is a work of dissent from within the Bush camp. Presidential candidates will think twice about “giving away the president’s power,” Savage believes. Once they are successfully asserted, new presidential prerogatives are hard to get rid of. (Especially with a war on.) Which is why Savage thinks Bush and Cheney have largely won. “The expansive presidential powers claimed and exercised by the Bush- Cheney White House are now an immutable part of American history — not controversies, but facts.” Even if the victor in the 2008 presidential election declines to make use of the aggrandized executive powers established by the Bush- Cheney administration, in the long run such forbearance might make little difference. The accretion of presidential power, history has shown, often acts like a one-way ratchet: It can be increased far more easily than it can be reduced. In a statement that struck some people as strange, Savage said “I do not think that presidential power is a partisan issue.” Why? Because “future Democratic presidents will be able to invoke the same novel powers that the Bush administration has pioneered in order to unilaterally impose their own agendas.” They will be able to, but are they as likely to? Savage says it doesn’t matter; the powers are there. But if it doesn’t matter, and if we don’t have live controversies but accomplished facts, then how is there any “issue” at all, partisan or not? Charlie has three days left; he should address this. When Goldsmith suggested going to Congress, he thought he was expanding White House power by adding hugely to its legitimacy without sacrificing much at all. But this is where the radical part in the Cheney project emerged. The very act of seeking broader legitimacy diminished the president’s power, giving it away, according to Cheney and Addington. Goldsmith is good on this: Addington once expressed his general attitude toward accommodation when he said, “We’re going to push and push and push until some larger force makes us stop.” He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. Calling it a “truism among political scientists and historians who study the American presidency,” that “a president’s authority is not measured primarily by his hard power found in the Constitution, statutes, and precedents, but rather by his softer powers to convince the other institutions of our society to come around to his point of view,” Goldsmith points out how great a departure was made under this president. The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action, and legalistic defense. This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise. Only by shifting the narrative could this “entirely different concept of power” come into view and make news, as it were. It has been a truism among Washington journalists that the Bush White House was “good” at politics. (It had discipline, it had Rove, it won twice: case closed.) Goldsmith shows how thin this view was. The Bush White House actually declined to participate in normal politics, but this is not something it ever told the country it was going to do. In any case, the move was a disaster whether you were part of the Bush coalition, or stood outside it. Which might be part of what Savage means by “not a partisan issue.” You can’t run a press system that assumes the President feels a need to explain himself to the nation when the White House is running a system in which no such need is felt. Just one of the many ways in which by declining to develop a more savage narrative the press failed to figure out what was happening to itself under Bush.
Posted by Jay Rosen at September 12, 2007 1:09 AM
Comments
Recently read another book about the accretion of power to the White House, not so much in national security as throughout all policy and even functional levels of government. Anyone reading The White House Staff: Inside the West Wing and Beyond, by Bradley H. Patterson Jr., would have to seriously wonder if the Cabinet isn't merely a magnificent sham. Don't think a secretary of state or transportation or defense is making policy -- they're more like industrial division chiefs saying yessir to whoever speaks for the CEO. Posted by: John_Hopkins Savage began calling it the Cheney project because Dick Cheney had “articulated a vision of nearly limitless commander-in-chief power two decades earlier.” (It is often called the Unitary Executive.) That's not what "unitary executive" means. An organization with a unitary executive is one in which everyone who executes is ultimately answerable to one person. The US presidency has always been unitary -- Truman's "the buck stops here" was an expression of the fact. The Texas state government, for contrast, has an extremely non-unitary executive; nearly every department head is independently elected. What limits there are on the federal executive's power, and whether that executive is unified or divided, are two separate questions; and it causes confusion to argue the first under a label that properly belongs to the second. (2002-05, as the case for war was made and fell to pieces) Ah, no, that's not what happened -- and what really happened is, if anything, better evidence for your thesis. Bush chose to present only one part of the case for overthrowing the Ba'ath in Iraq, the WMD issue, because that was the only issue the UN would consider. Bush didn't put any effort into presenting the rest of the case against Saddam Hussein, the parts that would convince the American voters, because he thought he didn't need to; as commander in chief he had the right to send the troops, the voters were backing him, so he could dispense with rhetoric. Bush has mentioned the case for fighting the jihadis -- you can find it in several public speeches of his -- but he hasn't put any effort into it. The great failure of the press in 2003, to my mind, wasn't on the issue of WMD in Iraq. It was, rather, in not even trying to understand the rest of the case against Saddam Hussein; the parts that I, for instance, found persuasive, and still do. The press, seeing that Bush was talking most of the time about WMDs, followed his choice of emphasis, working off the assumption that what the powerful choose to speak of is what matters (the cult of savviness again.) Then when the WMDs proved to be phantoms, the press cried out that Bush had deceived them, and the master-narrative of Vietnam rose from its grave. Posted by: Michael Brazier at September 12, 2007 8:35 AM | Permalink You're right about the unitary exec, Michael. I took that part out because my use of it was confusing. Posted by: Jay Rosen at September 12, 2007 9:48 AM | Permalink Michael and Jay, In practice, what Yoo means by "unitary executive" is precisely a vision of limitless commander-in-chief powers. Yoo is not concerned with the purely theoretical question that executive power may be parceled out among competing parts of the executive branch. No one has ever taken that position. Yoo and the administration are solely concerned with defeating other branches of the government--of defeating the claim that these powers are shared with other branches of the government. According to Yoo, in time of war the other branches have no claims or limitations they may place on executive power for any reason at any time. It is a novel claim that what have always been understood as separate and potentially opposed legislative and judicial powers are now and will henceforth be executive powers. It is unitary in the sense that a newly expanded empire "unifies" its new territorial gains, in this case novel claims that only the executive branch has a purchase on U.S. sovereignty. In point of fact, Cheney's claim that the Vice Presidency is not a part of the executive branch precisely refutes Michael's point here. Cheney's "I'm not in the executive branch" strategy actually seeks seeks to deunify--to pluralize--sites of executive power because this makes the effective power of the "unitary" executive that much more formidable and unstoppable. The theory of the unitary executive is precisely a claim that the executive branch has nearly limitless powers in a time of war. The Bush-Cheney administration has attempted to normalize a state of emergency that excludes the division of powers required by our republican constitution and the consultation, contestation, and persuasion upon which democratic conceptions of political process are built in favor of effectively monarchical powers. Constitutional monarchies have traditionally allowed a more republican division of powers than the Yoo-Bush-Cheney theory of the unitary executive permits. Posted by: Mark Anderson at September 12, 2007 11:47 AM | Permalink "The great failure of the press in 2003, to my mind, wasn't on the issue of WMD in Iraq. It was, rather, in not even trying to understand the rest of the case against Saddam Hussein; the parts that I, for instance, found persuasive, and still do. The press, seeing that Bush was talking most of the time about WMDs, followed his choice of emphasis, working off the assumption that what the powerful choose to speak of is what matters." Posted by: Jon Stopa at September 12, 2007 11:53 AM | Permalink Bush's Leviathan State: The Power of One The Bush administration's most dramatic expansion of the unitary executive theory came in memos drafted by Addington and John Yoo at the OLC concerning the war on terrorism. An OLC memo drafted by Yoo two weeks after the September 11 attacks insisted the president, rather than Congress, had "plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001." Another memo, influenced by Addington, claimed that there were essentially no legal limits on the CIA's treatment of foreign prisoners held outside the United States...But the OLC memos and executive orders defending torture, warrantless wiretaps, indefinite detention, military tribunals, and those insisting the Geneva conventions do not apply to the war on terrorism went much further: They argued that Congress can't control the president in the war on terrorism, even if it wants to...But, according to Democratic and Republican critics, Yoo has converted the president's authority to act unilaterally in the face of congressional silence into the authority to act unilaterally in the face of congressional opposition. "There is a strain of legal reasoning in this administration that believes, in a time of war, the other two branches have a diminished role or no role," Republican Senator Lindsey Graham declared after the Hamdan decision. As Dellinger tells me, "They conflate what the world was like before Congress has acted" with the one after Congress has made its views clear. Posted by: Mark Anderson at September 12, 2007 12:26 PM | Permalink Michael Froomkin on the unitary executive: Posted by: Mark Anderson at September 12, 2007 12:36 PM | Permalink Michael Froomkin situates the unitary executive theory as an aspect of the theory of unlimited executive war powers claimed in the torture memos: Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online. Posted by: Mark Anderson at September 12, 2007 12:59 PM | Permalink Maybe it's just a caffeine deficit but I'm having trouble understanding what's meant by this - > "They will be able to, but are they as likely to? Savage says it doesn’t matter; the powers are there. But if it doesn’t matter, and if we don’t have live controversies but accomplished facts, then how is there any “issue” at all, partisan or not? Charlie has three days left; he should address this." Posted by: Anna at September 12, 2007 1:29 PM | Permalink Ah. "issue" == "something that we might be able to fix" Posted by: Anna at September 12, 2007 1:33 PM | Permalink Jay, I think there is surely some middle ground between Savage's argument for the stubbornness of executive precedent and the question of whether anything is at stake now, however. Savage himself concedes that the consequences of Watergate went one way, then the other. You are right to foreground the nearly deterministic quality he seems to assume with his conclusion though. You are also correct that we simply cannot accept this as a fait accompli. Given that the Bush administration has conducted much of the unitary executive power grab covertly and disingenuously, to claim as Savage does that the die is already cast is to undercut the possibility of Savage's own journalism having public consequences. In effect, Savage is actively discouraging the press, the politicians, and the public from making this an issue for the American people to deliberate over or pass judgment upon. That is where the emphasis needs to be. Unfortunately, the astonishing failure of the Democratic party leadership to exert even organized rhetorical opposition to the Bush coup--in spite of the U.S. public's overwhelming rejection of Bush administration policies--also continues to make a strong case in favor of Savage's fatalism. The DC press corps' complicity in sustaining a fictional GOP hegemony in the face of all polling data to the contrary is also no small factor in the DNC leadership cave-in. What will it take to budge the counterfactual fantasy that passes for common wisdom in DC? Posted by: Mark Anderson at September 12, 2007 2:19 PM | Permalink ... "issue" = "something that we might be able to fix..." Yes, that. And something the people who want to be president can be asked about. Do they have any intention of fixing it? Posted by: Jay Rosen at September 12, 2007 2:37 PM | Permalink Mark: I predict that none of the Democratic candidates for President will object to theories that the Presidency has plenary powers in time of war -- because they will wish to exercise such powers if they get elected. The party of Roosevelt and Truman has no principled objection to an unlimited executive. Republican candidates may object to the theory, but they are unlikely to consider it "the most immediately pressing issue of public policy", because they are worried about threats coming from outside the country, as is the Republican base. If you really rate limiting the powers of the presidency as the most urgent need of the republic, then I think Ron Paul is your man. Posted by: Michael Brazier at September 12, 2007 4:09 PM | Permalink Anderson's right. Savage needs to walk the walk, not just talk the talk. As a journalist, if Savage is truly disturbed by the power grab by Bush, he needs to press the Democrat POTUS candidates about this, otherwise he is just another boring Bush-basher, pushing a book with a "sell by" date set to expire 11/04/08, if not sooner. Posted by: QC Examiner at September 12, 2007 4:35 PM | Permalink Michael: I think the question is rather, will the Democrats object to defining every day from this day forward as necessarily a state of war as long as we may point to some form of evil somewhere in the world. That is the neo-con premise of the Bush Doctrine and I think there is considerable opposition to that, both among the more hawkish Dems and the Scowcroft school GOP realists. That shift alone would fundamentally alter the radicality of the unitary executive doctrine in a military context by revoking or radically scaling back the claim of a perpetual state of emergency. I also expect the GOP will be quite eager to assist in scaling back executive power as long as a Democrat is in the White House. Their behavior under Clinton certainly argues strongly in support of that expectation. Hardly a day went by without charges of executive branch tyranny--even from the likes of John Yoo! Andrew Bacevich has a proposal all ready for how the Democrats should go about rolling back Bush's doctrine of perpetual preemption: I'm afraid you are right that the journalistic and political class have largely agreed that support for an authoritarian executive and an imperial foreign policy is a prerequisite for a "serious" presidential candidate, thus we have Hillary Clinton running as the DLC's GOP-lite. Thus neither Clinton, nor Obama, nor Edwards will promise to evacuate all troops from our new colonial bases in Iraq. On the convergence of imperialism and authoritarianism as signs of legitimacy and serousness, I agree, a lot will have to change before such pressing issues are permissible topics of conversation among the nation's political and pundit class. Posted by: Mark Anderson at September 12, 2007 4:58 PM | Permalink Great post, Jay. The master narrative has always been dictatorship, in service of Empire. Posted by: Richard B. Simon at September 12, 2007 5:33 PM | Permalink will the Democrats object to defining every day from this day forward as necessarily a state of war as long as we may point to some form of evil somewhere in the world. That is the neo-con premise of the Bush Doctrine ... I've read the actual arguments put forward by neo-conservatives, Mark, so I can say with complete confidence that this is nonsense on stilts. Perpetual war is not a neo-conservative policy, and if Democrats try to claim it is they will fail to persuade the voters. Bacevich's article is wrong on nearly every point of fact or law he mentions, and I cannot consider his proposal just or prudent. Posted by: Michael Brazier at September 12, 2007 6:12 PM | Permalink Yes, Mark. Get your euphemisms straight. The correct term is "benevolent global hegemony." Posted by: Andy Vance at September 12, 2007 6:48 PM | Permalink I think Michael's got it right that the press missed the "big picture" on Iraq and chose to boil it down to a bumper-sticker-horse-race-simplify-then-exaggerate narrative. Attention President Bush: What is your bumper sticker for justifying war with Iraq? I've heard a lot of different ones lately: We need to pre-emptively attack before Saddam deploys weapons of mass destruction. We need to change the Iraqi regime to give birth to democracy in Iraq and the wider Arab world. We need to eliminate Saddam because he is evil and may have been behind 9/11. We need to punish Saddam for not living up to the U.N. inspection resolutions.Bush administration has used 27 rationales for war in Iraq, study says Michael: Bush chose to present only one part of the case for overthrowing the Ba'ath in Iraq, the WMD issue, because that was the only issue the UN would consider. President's Remarks at the United Nations General Assembly Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq U.S. Secretary of State Colin Powell Addresses the U.N. Security Council Hi Jay, comment got caught in the queue. Thanks! Interview: Journalist and Author Tom Friedman Discusses his Views on How The U.S. Administration Should Prepare Before Preemptively Attacking Iraq SIMON: First, you've said that the administration has to have a policy towards ousting Saddam Hussein that can fit on a bumper sticker. We've had the vice president and other administration officials begin to speak up publicly. Can you see a slogan coming into focus? Michael Brazier: "I predict that none of the Democratic candidates for President will object to theories that the Presidency has plenary powers in time of war -- because they will wish to exercise such powers if they get elected." That, Michael, is exactly Charlie Savage's point. Cheney's and Bush's expansion of presidential powers insures the advantage of any future president -- whether it be Hillary or Obama or Fred or Rudy or God-knows-who. That's the scary part. Whoever it is won't have to worry about Congress, the Supreme Court or the press. Posted by: Steve Lovelady at September 12, 2007 11:39 PM | Permalink Steve: before you panic, you may wish to consider what happened to the comprehensive immigration bill just this year. The President, Congress and the press were all in favor of it when it was first introduced. The whole political class thought the bill was the only way to do justice to illegal immigrants. And yet it died. Bush is not good enough as an advocate to persuade the voters of his theories of presidential powers. Nobody in the Democratic field is notable for rhetorical powers, so they won't manage it either. I won't start to worry unless a silver-tongued demagogue becomes a plausible candidate for the presidency ... and does that seem likely to you? Also, Friedman's "What is your bumper sticker for justifying war with Iraq?" is not the silliest thing ever written about that war, but it may be the silliest thing written by a serious person. The war with Iraq was and is justified by arguments and evidence; but nobody could put an argument on a bumper sticker. If Friedman meant that the Western press has no patience for an argument and refuses to listen to one or repeat it, he was blasting the press with a worse charge than anything our host has ever said. If he meant the voters lack patience for argument, well, the rise of the Internet has refuted him. Posted by: Michael Brazier at September 13, 2007 12:38 AM | Permalink The unstated rationale, power, via Mark Danner: The image remains, will always remain, with us; for truly the weapon that day was not box cutters in the hands of nineteen young men, nor airliners at their command. The weapon that day was the television set. It was the television set that made the image possible, and inextinguishable. If terror is first of all a way of talking — the propaganda of the deed, indeed — then that day the television was the indispensable conveyer of the conversation: the recruitment poster for fundamentalism, the only symbolic arena in which America’s weakness and vulnerability could be dramatized on an adequate scale. Terror — as Menachem Begin, the late Israeli prime minister and the successful terrorist who drove the British from Mandate Palestine, remarked in his memoirs — terror is about destroying the prestige of the imperial regime; terror is about “dirtying the face of power.” President Bush and his lieutenants surely realized this and it is in that knowledge, I believe, that we can find the beginning of the answer to one of the more intriguing puzzles of these last few years: What exactly lay at the root of the almost fanatical determination of administration officials to attack and occupy Iraq? It was, obviously, the classic “over-determined” decision, a tangle of fear, in the form of those infamous weapons of mass destruction; of imperial ambition, in the form of the neoconservative project to “remake the Middle East”; and of realpolitik, in the form of the “vital interest” of securing the industrial world’s oil supplies. Posted by: Andy Vance at September 13, 2007 2:12 AM | Permalink Michael Brazier beat me to it. There is a certain conceit in, the press let Bush do this, or Congress let Bush do this. The immigration bill should have remained everyone the ultimate power resides in the people. It may be the public has a fair idea what is going on with Bush and is OK with it. When it is not they have the ability to speak their own truth to power.
This also assumes a press which acts as an honest broker of what the president says. Posted by: abad man at September 13, 2007 9:08 AM | Permalink Michael: If you could be go so kind as to cite any specific respect or data point in which my interpretation of neoconservatism is mistaken, I'll be happy to cite chapter and verse establishing why it is dead on. The Project for a New American Century mission statements and the Bush administration's own official security papers declare military prevention of rivals from emerging as their stated policy. If your understanding differs, I'm afraid you'll have to take up your argument with the Bush administration and the neo-cons, not me. The military’s job during the Cold War was to deter Soviet expansionism. Today its task is to secure and expand the "zones of democratic Based on performance to date, in neo-con speak, "deterrence" means blowing off diplomacy and militarily intervening before the rival power may become a threat. The first target of choice was China, but they were happy to switch on to the Iraq track since they already wanted to take them out too as their letter to Clinton in the 1990s explicitly states. Numerous international legal experts have concluded that PNAC doctrine and the Bush doctrine in themselves would constitute Class A war crimes under Nuremberg or Tokyo War Crimes codes. I invite you to read the codes. Preventive military action is the very definition of an unprovoked war of aggression, the definition of a class A war crime. Based on Iraq, it is clear that when neo-cons say "pre-emptive" (implying present danger) they really mean "preventive." I'll give you a link for the last claim later today. Posted by: Mark Anderson at September 13, 2007 9:41 AM | Permalink Jay, I thought you might find this interesting: Delia P.S. it's related to one of your prior articles but the comments are closed there so I hope it was ok to post it here D. Charlie Savage's original story defined Presidential signing statements as "official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law," which are recorded in the federal register. What's left unexplained, at least to me, is the theory behind regarding signing statements as having any legal force at all, much less the kind of force that would basically undercut the very law they are referring to. Any legal scholars out there? Posted by: Tracy Thompson at September 13, 2007 1:03 PM | Permalink The Bush Doctrine discussed at the Crimes of War project website: Iraq and the Bush Doctrine of Pre-emptive Self-defense Among our experts, the principles of the Bush doctrine met with a wide spectrum of responses. On one extreme, Byers argued that even if there were some legal right of pre-emptive self-defence, the Bush doctrine was so far beyond it as to be transparently unlawful. On the other, Taylor said that the proliferation of weapons of mass destruction made the claims of the administration reasonable, when dealing with extreme cases like Iraq. Posted by: Mark Anderson at September 13, 2007 6:42 PM | Permalink White House Memos Reveal Internal War Crimes Warnings, Posted by: Mark Anderson at September 13, 2007 6:49 PM | Permalink The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts. Posted by: Mark Anderson at September 13, 2007 7:17 PM | Permalink What I don't get is that if groups like the Crimes of War project are correct, that "even if there were some legal right of pre-emptive self-defense the Bush doctrine was so far beyond it as to be transparently unlawful" why no one has prosecuted these "transparently unlawful" acts. If there are "transparently unlawful" war crimes committed by Bush and his administration, why hasn't the War Crimes project or some other national or international body prosecuted said "war crimes"? I'm not too impressed by the Crimes of War project if all they do is wring their hands and employ rhetoric to froth up The Faithful. It's just more talking the talk and not walking the walk---sound and fury, signifying nothing. Why don't they, or somebody actually DO something about all these "war crimes"? This "illegal" war has been going on for over four years, yet no one will prosecute these obvious "war crimes" and other "transparently unlawful" acts. Why not? Posted by: QC Examiner at September 13, 2007 8:43 PM | Permalink QC Examiner: The closest such actions have come to fruition so far was in Germany where Rumsfeld and others were sued in German courts that claim universal jurisdiction by twelve Iraqi torture victims once held in Abu Ghraib. The German federal prosecutor chickened out. War Crimes Complaint Against Rumsfeld Posted by: Mark Anderson at September 13, 2007 9:12 PM | Permalink A quick comment, Mark: there's no such thing in international law as universal jurisdiction, and German courts have no right to hear pleas by non-Germans against non-Germans outside Germany. Anyone who tells you otherwise is not an international legal expert, but a political activist. Posted by: Michael Brazier at September 13, 2007 10:23 PM | Permalink Okay but does this have anything to do with my post? Posted by: Jay Rosen at September 13, 2007 10:42 PM | Permalink Actually, the thing is very simple. The administration does not trust the press. The administration is right not to trust the press. Therefore, the administration does its communication in other ways, which both annoy the press and leave it unable to figure out what's really going on, even if they gave a turd, which they don't. That being the case, they make up their own narratives, which they would, anyway. See, for the latest example, the NYT's odd discounting of ad rates. For non-lawyers, that amounts to an illegal donation from a corp to a pac. When that sort of thing is both common and obvious, it seems kind of, I don't know, dishonest or stupid, to insist the president is dissing the press for no good reason at all, the meanie. Posted by: Richard Aubrey at September 13, 2007 11:12 PM | Permalink Eric Boehlert had a column up recently cataloging the administration's dissing of the press. Posted by: JJWFromME at September 13, 2007 11:27 PM | Permalink Jay, I would think so...Looks like the Project for Excellence in Journalism took a look at Digg and Reddit (Del.icio.us also) Here's the relevant exchange: Delia: if traditional media is going South, looks like the public will end-up being *less* informed, although richer information may be out there none the less -- that's why I think this is a serious issue... D. Jay: (...) Ever heard of Digg? Reddit? (...) Delia: As for Digg, you are kidding right! I mean they are usually entertaining but *informative*? only occasionally... Absolutely right, the next president absolutely must explicitly and emphatically renounce the Bush expansion of unchecked power. Otherwise, we're stuck with the precedent forever. Even with a strong renunciation, there's a real danger that the precendent will linger on anyhow. Much of the lawlessness of the current presidency can be traced back to the failure of Congress to take stern measures against Reagan for his own contempt for constitutional checks. Posted by: smintheus at September 14, 2007 1:38 PM | Permalink I found it striking that the Judith Miller gambit -- in which the Administration leaked questionable or false WMD intel to Judith Miller, then asserted on the Sunday talk shows that Miller's story in the Times was additional support for the Administration's claims -- has been replayed as the Petraeus gambit. In which Petraeus, a soldier whose commander-in-chief is Bush, packages his "progress report" so that it supports Bush's stone-set policy -- that we must stay in Iraq indefinitely, just as in Japan and Korea and Germany -- and then Bush gives a speech citing Petraeus' report as additional support for his policy, that we must stay in Iraq indefinitely. There seems to be coverage of "skepticism" of the President's speech, but not of this being a pattern. Clearly, the plan has always been for us to stay forever. The Bush team goal has been to kick the can farther and farther down field -- not to get us out of the mess, but to entrench us so deeply in it that we can never leave. Every speech, every supposed policy shift, every action and every piece of rhetoric points to the same thing: Heads, we stay; tails, we stay. Forever. Even the President's speech two weeks ago at the VFW made this clear -- his analogy is to Japan and to Korea and to (NOT) Vietnam. We're still in Japan, and we're still in Korea, 50, 60 years later. We left Vietnam, and therefore we lost, so that's why we must stay. Bin Laden says we should leave, so therefore we have to stay. So why is the press not covering the Bush policy as if the plan is to stay in Iraq forever? Why is that master narrative missing from the press coverage? How long ago did we build 14 permanent military bases? And when was the last time we saw any analysis, in any newspaper, that the plan is to stay permanently? Maybe the question is why does a master narrative go missing? Maybe it is that the 24-hour cycle is so consuming, the race to scoop so draining, that there is no sense of perspective, no ability to see the greater pattern. People who have worried, publicly, for years, about the expansion of executive power have been largely ignored. I think it may be that claims about the Bush folks are so bad, that people just do not want to believe the worst -- and yet it has so often turned out to be even worse than the worst. Who wants to believe that the people in charge of our country are cementing the Executive Branch as a dictatorship? Who wants to believe that we were given false evidence to support a war, with the full knowledge that, even should the truth come out someday (Joe Wilson, Joe Wilson), it would be too late -- the country would be so committed to the occupation that it would be impossible to extricate our forces? Who wanted to believe that the plan was a permanent military presence in Iraq? No one wanted to believe that. And yet. We need to be able to hear what we don't want to hear, and the news media need to be able to tell us what we don't want to hear. They don't, because bad news that pulls one's sense of reality out from under one's feet does not sell advertising space or time. Newspapers, at least, are dying from ad-dollar starvation. How about TV? What would happen if Charlie Gibson or Brian Williams or Katie Couric or Chris Matthews came on and did a special report on the Bush Administration throwing all the rules -- including the rule of law -- out the window? And adding up all the evidence, in an hourlong show? They would be Dan Rathered, Bill Moyered, and Bill Mahered, even today. Today, they would be attacked by "Freedom's Watch," the White House's new propaganda wing. And then advertisers would pull dollars. So the coverage of the war continues as "How is Bush going to get us out?" when the reality is obvious: Bush's plan is for us to stay permanently. Perhaps because editors and writers are afraid to admit that, after all this -- after 4 1/2 years of "the liberation of Iraq," they're going to have to explain that it's been about the oil all along, and that there's no damn good reason why they haven't reported it as such for all these years. Posted by: Richard B. Simon at September 14, 2007 1:54 PM | Permalink I hate to inject reality into "The Reality Based Community" (tm), but how on Gaia's green earth would you prove: 1. "Clearly the plan has always been for us to stay (in Iraq) forever". 2. The Bush team goal has been to kick the can farther down the field". 3. "Heads we stay, tails we stay...forever". 4. "Who wants to believe that the people in charge of our country are cementing the Executive Branch as a dictatorship?" Dictatorship? HAHAHAHAHHAH! Prove it! This is why mainstream media will not parrot what the anti-war, anti-Bush zealots believe is true----they would experience total and complete loss of credibility, which frankly, I don't they they have anyway, so they might as well go for it. The secular fundamentalist zealots know what they know---facts be damned. For better or worse, the MSM know better than to lead the charge over the cliff----though I really wish they would. It couldn't happen to a more deserving bunch. Posted by: QC Examiner at September 14, 2007 5:40 PM | Permalink This vision for a reduced American presence also has the support of Iraqi leaders from all communities. At the same time, they understand that their success will require U.S. political, economic, and security engagement that extends beyond my Presidency. These Iraqi leaders have asked for an enduring relationship with America. And we are ready to begin building that relationship in a way that protects our interests in the region and requires many fewer American troops.
Emphasis added. Posted by: Richard B. Simon at September 14, 2007 9:02 PM | Permalink Mr Simon, do you think the USA rules France, Germany, or Japan? Do you think the USA taxes the nations of Europe, or carries off the product of their labors? Bush is talking about extending to Iraq a status similar to that of NATO or SEATO members. If you want to read that as imperialism, nobody will stop you, but very few will believe you. Posted by: Michael Brazier at September 15, 2007 4:19 AM | Permalink Mr. Brazier, If the U.S. "rules" any of those nations -- sixty years later -- it is chiefly through influence, which is waning. The U.S. has long had a policy of neoimperialism (influence of other nations' policies through money, favors, backing of preferred candidates, etc.) The operative difference here is that the United States is the aggressor in Iraq -- and we're there for the resources. That's no longer neoimperialism; it's straight up imperialism. Another operative difference, of course, is that France, Germany, and Japan are not sitting on the world's second largest reserve of oil, of which we are still the world's largest consumer. That said, I don't believe we're there to simply "carry off the products of their labors" -- to take the oil. My understanding is that we're there to 1. (allegedly) change our foreign policy to one that doesn't simply trade acceptance of tyrants for influence and resources; 2. force the de-nationalization of the world's second largest petroleum reserve; and therefore 3. strip OPEC of its power to control price and 4. financially disempower OPEC petrostates so that they are forced to allow "American" oil multinationals back into their countries. Ah, and 5. build a pro-American client-ally that will be the Japan of the Middle East, an engine of modern, stable capitalism. Which will be so pro-American that it will prefer to sell oil to "American interests," cheap (likely in exchange for our continued military presence, as has been the deal with the Saudis) -- rather than to China, in bulk. Again, invading another land to obtain its resources and changing, by force, its culture so that it resembles your own, in order to ease the flow of those resources back to "the homeland" is imperialism by definition -- regardless of the blend of intentions, or eventual NATO membership. India, today, is a booming, rapidly industrializing, nuclear power. But that doesn't mean that England's former reign was not imperialism. My point in "George Lucas, American Orwell" is that imperialism has built-in traps, especially for a democracy, about which both Lucas and Orwell have warned us, quite presciently. Posted by: Richard B. Simon at September 15, 2007 11:23 AM | Permalink If the U.S. "rules" any of those nations -- sixty years later -- it is chiefly through influence, which is waning. In other words, no, the USA doesn't rule any of those nations. Where one has influence, but not control, one does not rule. The operative difference here is that the United States is the aggressor in Iraq -- Not according to international law. Juridically Saddam Hussein started the war back in 1990 by invading and trying to annex Kuwait. The USA responded, pushed him out of Kuwait and imposed an armistice, which he broke by blocking a UN weapons inspection team. Again the USA responded, and unseated him. Juridically Iraq was the aggressor throughout. invading another land to obtain its resources and changing, by force, its culture so that it resembles your own, in order to ease the flow of those resources back to "the homeland" is imperialism by definition The assertion that the USA invaded Iraq in order to extract the oil there is entirely your own, and is not supported by any facts in evidence. Your inability to believe what Bush says about liberty and democracy is not evidence or a valid argument. Also, imperialism by definition is the lasting rule of one nation over another, as with the British Raj in India. Transfer of resources to the ruling nation is not part of the definition. Neither is an attempt to force the ruled nation to resemble the ruling one. Imperialism is a specific legal arrangement. Is Bush offering that arrangement to Iraq? Is Iraq's government asking for that arrangement? From all I know, the answers to those questions are "no" and "hell no". What the Iraqis want, and what Bush is offering, is what the other NATO members have: alliance between sovereign nations. Posted by: Michael Brazier at September 15, 2007 11:57 PM | Permalink On "unbuilding the Bush presidency," some pertinent remarks from Michael Tomasky in the New York Review of Books. (It's a review of Gore's book.) Tomasky is now the editor of the Guardian's American edition: Does the Internet really have a transformative power akin to that of the printing press? Obviously, the influence of the netroots has increased dramatically in a short period of time. A Web evangelist could argue with some justification that YouTube— specifically, one video clip, that of former Virginia Senator George Allen's "macaca" moment—changed that election and hence control of the United States Senate. But Gore's new civic cybersphere is far from convincing as a solution to the accumulated deceptions and brutalities of the Bush regime. We will still need leaders who will take civic and constitutional responsibility seriously by reversing the current administration's policies on the very matters Gore discusses: secrecy, civil liberties, and executive power. This is a question that has received little attention so far in this campaign and deserves far more. I would say all candidates should be pressed on these things. Posted by: Jay Rosen at September 16, 2007 12:44 AM | Permalink And here's Charlie Savage on the same issue: "the candidates from both parties have again volunteered little about their views of executive power" Back in 2000, the Bush-Cheney campaign didn’t say anything about their attitude toward presidential power to voters, even though expanding it would become a conscious and central agenda from their first day in office. Today, even though the 2008 primary campaign has already been grinding on for many months, the candidates from both parties have again volunteered little about their views of executive power and what limits, if any, they would respect on their own authority if voters entrust them with the White House. Debate moderators have not asked the key questions, and the candidates have, for the most part, have been content to leave the topic alone. Posted by: Jay Rosen at September 16, 2007 1:00 AM | Permalink Jay, Do you agree with Charlie Savage that: While Cheney claimed that he and Bush were filling in a valley of executive power, they were actually building atop a mountain.This seems to contradict both your "exceptionalism" theory and the non-public discussion of increasing executive power. In War, It's Power to the President By Dana Milbank Tim: I agree with Savage in the sense that executive branch power has been building for a long time, and certainly the trend has been up since long before the Bush crowd came on the scene. Bush and Cheney took it to new levels; and they never campaigned on it. Nor did they explain to the American people that vast increases in executive power and zero oversight from anyone were part of their plan. Nor did they explain or attempt to legitimate the mountainous increases in classified information. Nor did they try to explain to conservative supporters why vast increases in executive power are "conservative." Nor did they try to explain to average Americans why the Bush Bubble was necessary. And so on. This is primarily because while the Bush team is full of radicals--and innovators--it is also composed of political cowards. Posted by: Jay Rosen at September 16, 2007 9:30 PM | Permalink I agree the mountain got higher. I agree executive power wasn't a campaign issue in 2000. I disagree that executive branch power wasn't a campaign issue in 2004, but it was dispersed in other issues instead of a single issue. I agree it's a good issue for 2008. I don't think political cowardice motivates the information policies of the Bush administration. I do agree with your previous assessment that political realism does. I do understand how finding ways to explain (get your message out) to the American public without "doing battle" with the (filters in the) press or your political opponents can be interpreted as cowardice. There’s a difference between going around the press in an effort to avoid troublesome questions, and trying to unseat the idea that these people, professional journalists assigned to cover politics, have a legitimate role to play in our politics. Ashcroft was out to unseat that idea about the traditional press. He wanted it out of the picture of how you battle for public opinion. Michael, For starters, perhaps you might link to or cite a reference or an authority other than yourself, perhaps a scholar of international law reactionary enough to agree with your fairly extreme views of both law and history. As it stands, your comments are begging far more questions than they answer. Michael, Richard, and anyone else interested may join me at my blog to carry on a discussion of international law as an aspect of the radicality of the Bush administration under its theory of the unitary executive. My current post establishes that Michael's assertion that universal jurisdiction "does not exist" is flatly contradicted by case law in twelve separate countries including the United States of America. Universal jurisdiction may be contested, and it may be opposed by many, including those on Michael Brazier's far end of the right wing, but it is both polemical and wishful thinking to assert that no such thing exists. The suggestion that Iraq was the aggressor in the U.S. invasion of Iraq, even in a strictly and technically legal sense, is so extreme and comical as to leave me at a loss as to how to respond once I stop laughing. Are you trying to undermine the seriousness of the continuing threat you perceive in Iraq intentionally? Was it the 500,000 Iraqi children who died under Clinton administration sanctions that made Iraq the aggressor? Or was it the 1 million plus who have died as a result of the hell on earth created by Bush administration policy there? Your comments here are effectively making a case for Charlie Savage's master narrative that supporters of the Bush administration's cause, if not its tactics, consider legal revolutions such as the unitary executive theory and its consequences for the militarization of U.S. foreign policy to be just another day at the office. Those who think like you simultaneously insist that everything has changed and nothing has changed. Posted by: Mark Anderson at September 17, 2007 12:32 PM | Permalink Thank you for the invitation, Mr. Anderson, but I'll decline: we can discuss this here, or not at all. The Princeton Principles on Universal Jurisdiction define the term as follows: "universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction." Whether any court exists that has such jurisdiction is a question of fact, and the answer to that question is no -- not even the famous International Criminal Court has universal jurisdiction, although it was intended to. (By the way, if there were courts with universal jurisdiction already, why was the ICC created?) Note, please, I do not deny that there are universal crimes. And I'm not joining the debate on whether there should be a court with universal jurisdiction, to prosecute such crimes. I say merely that there isn't any such court. Was it the 500,000 Iraqi children who died under Clinton administration sanctions that made Iraq the aggressor? Or was it the 1 million plus who have died as a result of the hell on earth created by Bush administration policy there? Whenever people toss around numbers like this I cite Iraq Body Count, since they are scrupulous about reporting only proven fatalities, and nobody could suppose that they're in favor of the war. As I write this their high-end count of deaths is 79,187. You can read here their remarks on the 650,000 estimate published in Lancet last year (basically, "it doesn't pass the laugh test" and "aren't the real counts bad enough?") And since you saw fit to descend to personalities: Mr. Anderson, you are much too prone to believe what left-wing activists tell you. For the legalities of the war in Iraq, I suggest you read the relevant UN resolutions, since they are the international law on the issue. Don't bother with commentary on those resolutions by others. Posted by: Michael Brazier at September 17, 2007 5:04 PM | Permalink [I'm not a laywer (so the discussion of Universal Law is, at this point, above my pay grade). But my understanding is that the invasion -- the case presented for the invasion of Iraq by Colin Powell at the UN was premised on Iraq being in material breach of resolution 1441 (violation of the terms of the cease fire ending the Gulf War), supported by a raft of evidence that has since proven false -- an argument that Powell himself has since discredited as the low point of his career.] On topic, it strikes me that the next President will have to heed the lessons of previous Executive Branch overreaches and illegal actions, which is that they resulted in corrective legislation that has also had negative effects, such as "The Wall" between intelligence and law enforcement that was a reaction to abuses of the 70s and 80s and contributed to 9/11. So, not only should a Presidential Candidate show and discuss a willingness to hand back some of this authority (a la Brown in the UK) and disavow signing statements, but also to understand that the consequences of Executive overreach have consequences far beyond the immediate. In the back of all these candidates' minds must be "well maybe there is something I don't know, and maybe these expanded powers are useful in the war on terror, and maybe I'll just have to wait and see what they brief me when I'm the nominee." Posted by: Richard B. Simon at September 17, 2007 5:54 PM | Permalink Richard B. Simon, Actually, 1441 established that Iraq was in material breach of the "cease fire" resolution (687) Thanks for the correction, Tim. Here is a transcript of Powell's speech on 2/5/03. Posted by: Richard B. Simon at September 18, 2007 11:34 AM | Permalink Michael, It is a matter of fact that such courts do exist. If the German court claiming such jurisdiction didn't exist they would not have been capable of taking testimony on the charges of torture against Rumsfeld I linked to earlier and there would not have been a prosecutor to make a decision on whether to pursue the charges or not. Do they assert the power that they claim for themselves? That is a question I imagine we can agree on. Again, most issues in international law are contested. By your logic I could claim that the Geneva conventions "don't exist" because the Bush adminstration refuses to observe them, even though most other governments in the world do, and even though U.S. law recognizes their authority. By my logic, I say the Geneva conventions exist. By the logic of your argument on universal jurisdiction, if you are consistent you will have to conclude that the Geneva conventions don't exist because there is no court on earth capable of forcing the Bush administration to adhere to them in the breach. Further, to take a second example, U.S. law increasingly claims universal jurisdiction. Do these U.S. anti-terrorisim statutes not exist? Although there is some debate over what additional offenses are now subject to universal jurisdiction, most scholars seem to agree that it extends to the slave trade, genocide, war crimes, and torture. The Nuremberg trials and other war crimes trials following World War II arguably involved the exercise of universal jurisdiction. In addition, Israel invoked universal jursidiction...to justify its trial of Adold Eichmann...More recently, Spain invoked the universal jurisdiction theory in its effort to obtain custody of and try Augusto Pinochet...furthermore, there is growing support for extending the universal jurisdiction theory to certain acts of terrorism, and a number of U.S. terrorism statutes appear to rely on this theory...I argue here that the exercise of universal jurisdiction by the United States is ultimately determined by Congress, not international law or the federal courts. Nevertheless, the international law of prescriptive jurisdiction may properly have some role in the interpretation of Congress's enactments. Curtis Bradley, Posted by: Mark Anderson at September 18, 2007 1:04 PM | Permalink the Germans claim universal sovereignty, but in the breach have refused to exercise it in a single case. Perhaps we could agree that the Germans claim to have it in theory, but have yet to attempt to exercise it in practice. Suppose that I, personally, claim universal jurisdiction over the crime of torture. Do I have it, merely because I claim it? I think not. So what is the relevant difference between me and Germany? Now I must admit, I had forgotten about piracy, which really does fall under universal jurisdiction. But the basis of that is an agreement that pirates are hostis humani generis; piracy is a crime against the whole world. So I'll qualify my first statement: torturers are not hostis humani generis in international law, therefore torture does not fall under universal jurisdiction, and the German court would have had no right to bring charges. It does not follow that because something is a crime in international law, therefore any court in the world can prosecute that crime. Incidentally, Mr. Bradley's statement that war crimes fall under universal jurisdiction is pretty clearly wrong. The victims of the war crimes tried after World War II were citizens of the victorious nations; that gave the victors jurisdiction over the crimes. Posted by: Michael Brazier at September 18, 2007 5:01 PM | Permalink Michael, "I hereby declare that the executive branch possesses judicial powers previously reserved for the judiciary on the basis of which I will defy established legal precedent. Of course, the congress will not have comparable revisionary powers because I want to be able to ignore them any time I want." It's not that funny, but it does capture the infantile logic of the Bush administration's anti-democratic seizure of power and legalistic "defense" in a nutshell. Posted by: Mark Anderson at September 19, 2007 10:57 AM | Permalink Michael, Or will this purportedly "non-existent" form of sovereignty suddenly materialize when the U.S. state unilaterally flexes its will again? What exactly separates U.S. and German assertions on this score? Either way, this is no longer a legal question. It is, rather, a question of political will and military force as most issues of international law ultimately are. Posted by: Mark Anderson at September 19, 2007 11:04 AM | Permalink In a statement that struck some people as strange, Savage said “I do not think that presidential power is a partisan issue.” Why? Because “future Democratic presidents will be able to invoke the same novel powers that the Bush administration has pioneered in order to unilaterally impose their own agendas.” They will be able to, but are they as likely to? Savage says it doesn’t matter; the powers are there. But if it doesn’t matter, and if we don’t have live controversies but accomplished facts, then how is there any “issue” at all, partisan or not? Charlie has three days left; he should address this. You cannot expect that presidential candidates will argue for a weakening of their potential power. To reverse Bush's claims requires that Congress as an institution reclaim its authority. Posted by: c.l. ball at September 19, 2007 12:47 PM | Permalink You're effectively claiming that U.S. anti-terrorism legislation predicated on universal jurisdiction is unenforceable because no such court exists. Let us say, rather, that to the extent a US statute against terrorism would require that terrorism fall under universal jurisdiction, that statute would be legally void. (I doubt there has been any such prosecution, but who can keep up with every case before every court?) What made you think I would automatically endorse everything Bush might do? It is, rather, a question of political will and military force as most issues of international law ultimately are. I would not have expected someone who endorses a German court's attempt to arraign Americans for torture of Iraqis in Iraq, also to endorse the realpolitik view that international law is a polite fiction disguising a struggle for power among states. And yet you've done both ... how do you manage it? Posted by: Michael Brazier at September 19, 2007 3:48 PM | Permalink I said the logic of your argument requires you to account for U.S. claims to the universal sovereignty you insist doesn't exist, not just blow it off as some cockamamy German scheme. I didn't imply in the slightest that you would support the Bush administration if it tried to enforce these U.S. laws. I did clearly infer, however, that because the U.S. is the only power with the military capacity to enforce such a claim they are the only power likely to pull it off in the near future. Given your stated position, "no such power exists," if and when the U.S. did enforce such a claim, regardless of who was president, your position would then have to change, because a court, having executed and enforced such a law, would then exist by your own standard. It is a hypothetical that your stated position logically entails given the U.S. codes claiming universal jurisdiction. If you predicate the "existence" of a legal power that is already on the books in twelve countries on whether or not those powers have been enforced, you are right here with me in the world of realpolitik. Jump right in, the water's fine. In the world of realpolitik, the Bush administration is a menace. I would heartily welcome the German court documenting and prosecuting the deeds done at Rumsfeld and Bush's command in the torture chambers of Abu Ghraib. I don't seen it happening anytime soon because the German state is as spineless before the neoconservative American bully as the Democratic congress, but there is hardly a contradiction between recognizing the righteousness of bringing Rumsfeld and Bush to justice and appreciating that won't happen without a significant upgrade of German military power and a significant shift in German policy, i.e. the willingness to take on Uncle Sam with cruise missiles blazing if necessary. There are very few aspects of international law that are not contaminated by questions of power and competing national and economic interests. But it is the only justice on most of these issues we have coming in this life. They come as a package. I certainly didn't ask for them to come that way. I'm sorry if the dissonance of reality offends you. Posted by: Mark Anderson at September 19, 2007 6:52 PM | Permalink Mr. Anderson, you clearly don't understand what my position is; if you did, you'd have noticed that I changed it yesterday. if and when the U.S. did enforce such a claim, regardless of who was president, your position would then have to change No, it wouldn't. Nor does it matter that twelve nations have claimed universal jurisdiction by enacting laws, even granting that's correct. It would take general consent, in the form of an international treaty stating that a crime falls within universal jurisdiction, to make it so in international law. In the world of realpolitik, the Bush administration is a menace. That's the one really accurate thing you've said so far. Of course, everything the USA has ever done since its founding has been a menace to the world of realpolitik, including the creation of the United Nations and the signing of the Helsinki Accords. I would heartily welcome the German court documenting and prosecuting the deeds done at Rumsfeld and Bush's command in the torture chambers of Abu Ghraib. You want Bush and Rumsfeld prosecuted for ... ordering the trial and punishment under USA law of those who abused prisoners in Abu Ghraib? For that's what was done at their command -- the perpetrators were under arrest long before anyone outside Iraq learned the crimes had been committed. In fact it was the announcement of their arrests that revealed the crimes to the world. I'm sorry if the dissonance of reality offends you. I've caught you making two major errors of fact and a misstatement of my views, so of course I'm the one who has trouble with reality. "I reject your reality and substitute my own!" -- Adam Savage Posted by: Michael Brazier at September 19, 2007 10:57 PM | Permalink Sorry Michael, You've surrendered all credibility and ethical seriousness when you're impressed that Bush and Cheney have prosecuted underlings for following their own orders. What paragons of virtue! Thanks for offering a model we can all emulate before our exchange comes to its end. When you are a person who believes as you do that Iraq was the legal aggressor in the invasion of itself by a nation that violated U.N. Security Council orders and which demanded the removal of weapons inspectors Iraq had permitted because invading Iraq was more important than solving the problem, you have to expect occasional incredulity. Given that the U.N. itself is fundamentally flawed as a result of realpolitik you are once again wallowing in legalistic incoherence. A different definition of universal jurisdiction (yours treaty based, mine domestic legal-code based) is anything but an error of fact. You can continue to pretend that international law has nothing to do with political will and that assertions of universal jurisdiction do not amount to its existence, but no matter how hard you try a definition is still not a fact. It's pretty clear we don't have enough common ground to communicate. Good luck in your world and thanks for the memories. Posted by: Mark Anderson at September 20, 2007 12:41 PM | Permalink Pushing the Envelope on Presidential Power Posted by: Mark Anderson at September 20, 2007 12:59 PM | Permalink In case you missed it, here's no less prominent a crazy liberal pundit than George Will basically telling the Senate to call Mukasey to the mat on Executive Power. Michael Mukasey, the retired judge nominated to be attorney general, is called a "law and order" conservative. That description is, however, not especially informative, now that the Bush administration's far-reaching claims of presidential powers have unsettled some understandings of what the law is. The following questions, if asked at Mukasey's Senate confirmation hearings, might reveal whether he considers some of these claims extravagant. The questions follow -- and include signing statements (as well as historical precedent for expansion of wartime powers). Posted by: Richard B. Simon at September 20, 2007 6:21 PM | Permalink Mr. Anderson: You cite Lyndon LaRouche to show that my credibility is shot? Why not Robert Welch, or Noam Chomsky? Posted by: Michael Brazier at September 21, 2007 1:14 AM | Permalink Yes, why not Noam Chomsky? Posted by: Mark Anderson at September 21, 2007 1:05 PM | Permalink Michael: Posted by: Mark Anderson at September 21, 2007 1:28 PM | Permalink |
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