The Great Recession and the Failed Rule of Law

These two segments of the Rachel Maddow show discuss the general American feeling that there is no longer a rule of law here in which everyone, from the President, from CEO's and from the wealthiest Americans, are held to the same standards of law as the rest of us are.

Visit msnbc.com for breaking news, world news, and news about the economy

Here Rachel Maddow interviews Glenn Greenwald about his new book "With Liberty and Justice for all Some."

Visit msnbc.com for breaking news, world news, and news about the economy

As Francis Fukuyama makes very clear in his new book The Origins of Political Order one of the key elements of modern states and nations is the legitimacy that is provided by the assurance that the Rule of Law applies to everyone, not just to the peons. Today the Occupy Wall Street movement is at its core a reaction to the belief that there is one set of laws for the 99% and another for the top 1%.

The core element of legitimacy of the American government has been the belief that the rule of law has applied to Americans. The fact is the financial collapse of 2008 and the lack of any investigation into the collapse and application of blame to the clearly guilty has made it clear that neither the American elites nor the American government actually operate under the rule of law any more. This may well be the most significant reason for the poor ratings currently given to Congress.

Unless the rule of law is brought back and the parties who caused the collapse of the economy are investigated and punished there is a strong likelihood that no party is going to be able to regain and keep control of the American federal government for any period of time. Blame and punishment is going to be more important to the survival of American institutions than the false stability provided by ignoring wrong-doing.

It should also be very clear that the conservative movement and the wealthy elites who created and funded it are directly responsible for the collapse of the American economy.

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Addendum 5:04 PM CST
Check out this article on Rule of Law.

DoJ defends Defense of Marriage Act while also declaring the law should be repealed

This is a legal brief only a lawyer could love. Think Progress presents the story.

The Obama administration has been seeking to dismiss a suit brought by a gay couple in California challenging the Defense of Marriage Act (DOMA). In June, the Obama Justice Department’s brief defending DOMA infuriated LGBT activists because it referenced incest and child rape when talking about marriage equality. Today, however, the Justice Department has filed a new brief making clear it believes DOMA is “discriminatory” and should be repealed. The White House even put out a statement from Obama on the matter:

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

So the Department of Justice is doing its job as directed by law. It is presenting a legal defense of the law when the law is challenged in court. But at the same time, they are telling the court that they feel the law itself is wrong and discriminatory and should be repealed by Congress.

Sometimes the Rule of Law works its way out in strange ways.

Bob Gates exploring not enforcing "Don't Ask Don't Tell" at times

Obama is getting a bad rap from the media and the homosexual community on "Don't Ask Don't Tell" (DADT.) Should he abrogate the Rule of Law to prevent injustice to homosexuals who serve honorably in the military? The media and the homosexual community think so. They want immediate results because people are getting hurt and the security of America is being damaged by the injustices daily. The Obama administration is saying that Congressional action is required.

CNN News has a wire story that Secretary of Defense Bob Gates is exploring "...Obama Administration plans to selectively enforce the “don’t ask don’t tell” ban on gays in the military so that some gays could serve."

Here's what Bob Gates says he is doing:

“What we have is a law — be it a policy or a regulation — and as I discovered when I got into it, it’s a very prescriptive law. It doesn’t leave much to the imagination for a lot of flexibility. And so one of the things we’re looking at — is there flexibility in how we apply this law.”
The secretary appears to be proposing interim measures. “If somebody is outed by a third party … does that force us to take an action? And I don’t know the answer to that, and I don’t want to pretend to. But that’s the kind of thing we’re looking at to see if there’s at least a more humane way to apply the law until the law gets changed.”

President Obama is catching a lot of flak for not unilaterally taking Presidential action to overturn or refuse to enforce the existing law that requires the Pentagon to discharge homosexuals when they surface or are exposed in the military. If it were a right-wing subject, George Bush showed he was not bound by law that the Congress has passed and the President has signed in accordance with the requirements of the Constitution. The misuse of signing statements was just one method the Bush administration got around enforcing law they did not like.

But Obama is a Constitutional Law lawyer, he is very intelligent and capable, and he is simply not a person to take extreme actions on his own except in extreme situations. That's a major reason we elected him President after this last eight years. In spite of the personal injustices currently still being perpetuated on homosexuals in the military who have for one reason or another been accused or exposed as exemplified by Air Force Lt. Col. Victor Fehrenbach, this is not a broad "extreme situation" that requires immediate Presidential action that violates the law. Obama is going to apply the Rule of Law, unlike the previous administration. He's right. Congressional action is required.

What Bob Gates is describing is the only set of executive branch actions that can alleviate any of the injustices prior to Congressional action, unless the courts provide an injunction stopping the current enforcement of DADT. The legal backing for such an injunction is either absent or supports the banning of homosexuals, so court action is not on the horizon. This is the best possible action possible prior to the necessary action by Congress. So Congress is where everyone should focus their wrath.

Media? Are you listening? Grow up and get it right. There's nothing complicated about this.

This one of my "Rule of Law" posts. The Rule of Law, together with the U.S. Constitution, are core to what it means to be "an American."I don't think we Americans can relegate the enforcement of the Rule of Law to the legal profession alone. The rest of us have to understand it and recognize when it is not being applied.

Bush's war against the Rule of Law

One of the core concepts that has made America a great nation is that it is a democracy based on the Rule of Law. That is, Americans are governed by laws rather than by the arbitrary whims and decisions of some leader. Inherent in that idea is the fact that there is no individual in America who has the Constitutional Right to ignore law and act contrary to Law without punishment.

The Bush administration, led by Dick Cheney and David Addington and supported whole-heartedly by George W. Bush, has moved sharply in the last eight years to create a Presidency which is above the law and which is not restrained by the law in any way. The Bush administration is worked diligently to institutionalize government based on the arbitrary rule of the Office of the President rather than Rule of Law.

Glenn Greenwald explains this in an in-depth interview with Bill Moyers. This link leads to both the video of the Bill Moyers interview with Glenn Greenwald and to the transcript.

Of all the very destructive and clearly Unamerican legacies that Bush will leave behind him, including the worst Recession since the Great Depression, the concerted effort to destroy the Rule of Law in America will be the longest and most destructive action Bush has supervised.

Greenwald describes the first time he was aware that the government had totally stepped over the line and departed from a government under the Constitution.

BILL MOYERS: Was there a moment when what you lay what you have called "creeping extremism" became apparent to you in a minute particular?

GLENN GREENWALD: Actually, there was. And I'll describe to you exactly what it was. It was in 2002 when Jose Padilla, an American citizen born in the United States on U.S. soil, was essentially abducted by the government - by the U.S. government. And it was - he was accused in a press conference held by John Ashcroft of being the dirty bomber.

BILL MOYERS: Yeah.

GLENN GREENWALD: Of seeking to detonate a radiological weapon within an American city. Obviously something that is a crime and it should be prosecuted as a crime. But rather than announce that they intended to indict him and bring charges against him, as the Constitution requires, the Bush administration instead announced that it has the power to arrest and detain American citizens on U.S. soil indefinitely based solely on the say so of the president without having to charge that person with a crime and without even having them have access to a lawyer.

And that's exactly what was done the Jose Padilla, a U.S. citizen in this country, for years. And the lynchpin of American liberties since the founding, as the founders said, has been that the government does not have the power, not even the British king had the power since the Magna Carta, to order citizens imprisoned without charges based solely on the unchecked say so of the president. That is the power that this government assorted and seized and exercised. And that's when I realized that things had gone radically awry.
[Underlining mine - WTF-o]

Go watch (or read) the Interview between Bill Moyers and Glenn Greenwald.

Or go to a copy of the full transcript of the interview.

Washington villagers don't believe in the Rule of Law

Which matters more? The continued Rule of Law in Washington D.C. or assuaging the feelings of members of the Bush administration who don't want to be publicly exposed as criminals? Here's what Glenn Greenwald has to say:

A Washington Post article today on the need to restore confidence in the Justice Department quotes former high-level Clinton DOJ official Robert Litt urging the new Obama administration to avoid any investigations or prosecutions of Bush lawbreaking:

Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).

"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."

There is a coherent way to argue against investigations and prosecutions of actions by Bush officials: one could argue that they weren't illegal. Obviously, if one believes that, then that is conclusive on the question.

But that's not what Litt is arguing here. Instead, his belief is that Bush officials should be protected from DOJ proceedings even if they committed crimes. And his reason for that is as petty and vapid as it is corrupt: namely, it is more important to have post-partisan harmony in our political class than it is to hold Presidents and other high officials accountable when they break the law.

Post-partisan harmony is not worth the sacrifice of the Rule of Law. Litt would probably be one of the first to use the argument of "Moral Hazard" when bailing out individuals who made economic mistakes, but apparently does not see the moral hazard of not enforcing the law on government officials who may have broken the laws.

Our Constitution and laws are worthless pieces of paper unless there are institutions and actively used procedures in place to enforce their provisions. Those institutions and procedures are collectively called the Rule of Law. If they are ignored a moral hazard is created. No one follows a law unless they expect that they can be caught and punished for violating it. They learn by watching others around them violate laws and not be caught and punished.

Trying to maintain some vacuous "post-partisan harmony" at the priced of eliminating the Rule of Law will destroy the law and it will not maintain the harmony. It will just encourage more law breaking and thus increase the belief that there are no rules to be followed, so anything anyone does is legitimate.

Conservatives ignore the Rule of Law when they swear to support the Contitution

Conservatives have no real difficulty swearing to support the U.S. Constitution. They simply ignore the Rule of Law. Without the application of the Rule of Law, the Constitution is meaningless.

The Constitution is a set of principles that are supposed to guide American law. It is the basic law of the land. But no "law" matters if individuals do not apply it in their behavior. It is that process of applying law in behavior that we call "the Rule of Law." The courts are merely an administrative process for applying the set of principles that are embodied in the Constitution.

The American conservatives are happy to swear to support the US Constitution. They simply don't want to apply the Rule of Law.

From Bush/McCain: Americans are to abandon civil liberties to protect American "Freedoms"

Here's two stories this morning that show the wrong-headedness and the anti-democratic anti-American manner in which the Bush administration is trying to defend America from "Terrorists." The first is from a McClatchy investigation into the manner in which people are rounded up, imprisoned, and subjected to abuse and imprisoned for indeterminate periods with no way of getting a review of the reason for their imprisonment.

It's not that the imprisonment is always wrong. It's that when it is wrong, it is never questioned, and that along with the imprisonment goes a great deal of abuse to anyone not seen as "cooperating" in the manner the authorities expect and demand. The Bush system is remarkably similar to the way the secret police of the Russian Czars used to arbitrarily arrest and imprison individuals alleged to be threats to the Russian government. What's wrong with it? Here's a description of what the McClatchy investigation has shown:

An eight-month McClatchy investigation of the detention system created after the Sept. 11 terrorist attacks has found that the U.S. imprisoned innocent men, subjected them to abuse, stripped them of their legal rights and allowed Islamic militants to turn the prison camp at Guantanamo Bay, Cuba into a school for jihad.

Today's McClatchy article is entitled "America's prison for terrorists often held the wrong men."

McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.

This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.

The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.

Prisoner mistreatment became a regular feature in cellblocks and interrogation rooms at Bagram and Kandahar air bases, the two main way stations in Afghanistan en route to Guantanamo. [Snip]

One former administration official said the White House's initial policy and legal decisions "probably made instances of abuse more likely. ... My sense is that decisions taken at the top probably sent a signal that the old rules don't apply ... certainly some people read what was coming out of Washington: The gloves are off, this isn't a Geneva world anymore."

This is what the U.S. Supreme Court just rejected. But the demand for arbitrary and unreviewed arrests, detention and abuse of suspected terrorists is strongly supported by the entire Republican Party including John McCain.

The Republican Party has no competences on which to base runs for election and power, so they have to resort to frightening voters and saying "We'll do anything to get elected protect Americans (so that we can keep power.)

This use of fear to extend government arbitrary power in democracies is not unique to the United States. British Prime Minister Gordon Brown and his Labor Party are using exactly the same set of arguments to turn Great Britain into a surveillance state ruled by an arbitrary non-democratic government. But as Glenn Greenwald points out, Great Britain has some politicians willing to stand up to defend traditional British freedoms. Here is the opening of his discussion of British politicians as contrasted to the craven American politicians.

The intense and escalating political dispute in Britain over civil liberties is interesting in its own right, but it also vividly illustrates how craven and barren our own political system -- and the U.S. Democratic Party -- have become. The sacrifices now being made by British politicians of all parties in opposition to expanded government detention and surveillance powers is, with a few noble exceptions, exactly what our political elite in the Bush era have been -- and still are -- too afraid or too craven to undertake. As the Democratic Party prepares this week to endorse the Bush administration's illegal spying program and immunize telecoms which deliberately broke our surveillance laws for years, these contrasts become even more acute.

The current Republican leaders fear and hate democracy, openness in government, and the right of individuals to demand accounting from their political leaders. This can be seen in the consistent Republican efforts to restrict voters to those who keep them in office by voter suppression methods like strict voter ID laws. The shrieking and complaining from the Republicans over the Supreme Court Decision to allow Guantanamo prisoners access to the federal courts for habeas corpus is exactly about this demand that they not ever be questioned in their arbitrary and often illegal government decisions. The most striking complaint was from Justice Scalia in his dissent where he stated that granting Guantanamo detainees access to habeas corpus “will almost certainly cause more Americans to be killed."

Here, from Andy Worthington, is how the Bush administration and the Republican Party accomplished the avoidance of oversight and review:

The Detainee Treatment Act (DTA), which originated as an anti-torture bill conceived by Senator John McCain, was hijacked by the executive, who managed to get an amendment passed that removed the prisoners' habeas rights, although the legislation was so shoddy that it was not entirely clear whether the prisoners had been stripped of their rights entirely, or whether pending cases would still be considered. What was clear, however, was that the DTA limited any review of the prisoners' cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the substance of the administration's allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

For the Rule of Law to exist, laws must be enforced, and for them to be enforced they have to be questioned for fairness as they are applied. The only alternative to a government by the Rule of Law is a government run based on the arbitrary whims of the leaders. Democracy cannot long exist in such a leader-oriented tyrannical environment. Elections are not democracy. Saddam Hussein had elections every so often. Democracy requires laws which the public generally accepts as just. Those laws must be based on a Constitution of basic law and those laws must be enforced by institutions (especially an independent judiciary - look at Pakistan) that make the Rule of Law apply to real people as they interact with government.

The fact is that America is losing its way as a democracy (or as a constitutional democratic Republic if you must be picky) under the 9/11-panicked Bush administration and its conservative backers. Not all of those conservative backers are Republican, either. Guantanamo is only one example of how American is losing its way.

John McCain, by his objection to the recent Supreme Court ruling requiring habeas corpus access to the federal courts for Guantanamo detainees is on the Bush administration side in this debate. McCain would do nothing to change the very worst elements of the Bush legacy. No surprise, he has to attract the previous Bush supporters plus a lot of independent voters to get elected President. But it's also his nature to be autocratic and Imperial. He really is running as Bush/Cheney's third term on a platform of leading America deeper into the ditch the Bush administration has dug.

The Bush administration keeps proving that it is insane

This is insane behavior by the U.S. government. It is also clear evidence that the Bush administration has abandoned the Rule of Law. The Rule of Law means that the government provides administrative certainty. In a given situation, the law is superior to the arbitrary decisions of administrators and the law states what actions the government can and will (or will not) take. It is extremely important for the government to be restricted and bound by law as well as individuals. That is an essential element of the rule of law.

Very clearly in this case Domenico Salerno was not provided administrative certainty. He had no warning and no reason to believe that he would be treated as he was by the immigration officials. But the government admits that they do not apply any law to certain people.

Each year, thousands of would-be visitors from 27 so-called visa waiver countries are turned away when they present their passports, said Angelica De Cima, a spokeswoman for Customs and Border Protection, who said she could not discuss any individual case. In the last seven months, 3,300 people have been rejected and more than 8 million admitted, she said.

Though citizens of those nations do not need visas to enter the United States for as long as 90 days, their admission is up to the discretion of border agents. There are more than 60 grounds for finding someone inadmissible, including a hunch that the person plans to work or immigrate, or evidence of an overstay, however brief, on an earlier visit.

While those turned away are generally sent home on the next flight, “there are occasional circumstances which require further detention to review their cases,” Ms. De Cima said. And because such “arriving aliens” are not considered to be in the United States at all, even if they are in custody, they have none of the legal rights that even illegal immigrants can claim.

Such arbitrary behavior by government officials is pure, unrestrained tyranny.

It is also characteristic of the Bush administration.

The Rule of Law - Is a secret law really law?

Can a law that no one knows exists actually be a law?

In my earlier article Rule of Law vs. Arbitrary Command I describe the Rule of Law as meaning that those subject to that law know what actions the government will take when they perform certain actions. A clear description fo the Rule of Law is:

Rule of Law means that the government provides administrative certainty. In a given situation, the law is superior to the arbitrary decisions of administrators and the law states what actions the government can and will (or will not) take. It is extremely important for the government to be restricted and bound by law as well as individuals.

This is critical for the Rule of Law to exist and to be a controller of government actions.

Senator Russ Feingold is conducting hearings into the secret Executive Orders that the Bush administration has used to justify man of their actions. The New York Times has reported that

the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Is this really the Rule of Law?

The Rule of Law has at least three meanings:

First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice.

Secret Law as practiced by the Bush administration does not regulate government power, and it fails to provide procedural and formal justice in the sense of providing administrative certainty.

Sorry, Bush. You guys are violating the Rule of Law with this garbage.

Since the Rule of Law is essential to enforcing the U.S. Constitution, the members of the Bush administration have been in violation their oath to support and defend the Constitution, an oath taken by every U.S. government employee before embarking on their job.

To answer the question - No. A secret law is not really law. Not as the American legal system and the Constitution view it. A secret law is simply UnAmerican.

Amazing - House Dems defend quaint rule of Law in opposition to Bush

I didn't think I'd see this. The Republicans are in the tank, and Bush/Cheney are nostalgic for a King who rules by the doctrine of the divine right of Kings. The Senate Dems, especially Sen. Jay Rockefeller (another sterling example that inherited wealth is bad for the character), have also bought into the process of destroying the Rule Of Law in America.

Apparently there remains a pocket of Americans in the House who understand that what has made America great has been the Republic under the American Constitution and the Rule of Law. The spokesman for America against the forces of darkness who control the White House is John Conyers (D-MI), supported by Nancy Pelosi. Conyers explains why the House Judiciary Committee has resoundingly rejected retroactive immunity for the telecoms. (From Paul Kiel)

the Administration has not established a valid and credible case justifying the extraordinary action of Congress enacting blanket retroactive immunity as set forth in the Senate bill."

They cite a number of factors as to why it would be inadvisable to remove the issue from the courts and give the telecoms a free pass on lawsuits challenging the program. But the overarching reason seems to be that it's far from clear that the warrantless wiretapping program was legal, as the administration insists. In fact, they write, "our review of classified information has reinforced serious concerns about the potential illegality of the Administration’s actions in authorizing and carrying out its warrantless surveillance program."

The full statement from the House Judiciary committee can be found here.

The new Bill which is expected to replace the idea of retroactive immunity for crimes previously conducted by the telecoms at the demand of the Bush administration will instead give the courts authorization to hear the classified material at issue in the case. Paul Kiel describes it here.. The House is expected to vote on it sometime today, Thursday.

An accurate look at the terrorist threat to America.

I. Introduction
II. Ignatius' review
III. What this means
IV. Bush political response
V. Conclusion

I. Introduction

Ah Hah!

Someone with more expertise than I have has confirmed my belief that the so-called "Clash of Civilizations" that Bush, Cheney, McCain and the conservatives want all of us to panic over is almost entirely fiction! As I have been writing for some time now, there is no great organized massive threatening block of enemies out there in the dark threatening to destroy America.

That is not to say that there are no enemies out there who want to do American and Americans harm. There are. But they are really little more than a bunch of disorganized bandits hiding in mountains and jungles and occasionally trying to make brave statements with their terrorist activities.

Their terrorists actions consist primarily of raids on soft (unprotected) targets for the purpose of getting media attention. The media is catered to by attacks characterized by randomness and utter depraved viciousness designed to frighten Americans, but there are no real militarily effective attacks. There can't be. There is no great organization out there that has the capability of taking over America and converting it to radical Islam or anything like that. So we need to look realistically at what the terrorist threat consists of, at what we can and need to do about that terrorist threat, and why the Bush administration has so greatly exaggerated the terrorist threat to conceal their numerous failures to govern.

First we need to look at the true terrorist threat. Former CIA officer and more recently forensic Psychiatrist Marc Sageman has published a book based on his case studies of over 500 Islamic terrorists to explain "...who they are, why they attack and how to stop them." David Ignatius reviews Sageman's book Leaderless Jihad: Terror Networks in the Twenty-First Century.

II. Ignatius' review of Sagemen's book (excerpt)

Sageman's message is that we have been scaring ourselves into exaggerating the terrorism threat -- and then by our unwise actions in Iraq making the problem worse. He attacks head-on the central thesis of the Bush administration, echoed increasingly by Republican presidential candidate John McCain, that, as McCain's Web site puts it, the United States is facing "a dangerous, relentless enemy in the War against Islamic Extremists" spawned by al-Qaeda.

The numbers say otherwise, Sageman insists. The first wave of al-Qaeda leaders, who joined Osama bin Laden in the 1980s, is down to a few dozen people on the run in the tribal areas of northwest Pakistan. The second wave of terrorists, who trained in al-Qaeda's camps in Afghanistan during the 1990s, has also been devastated, with about 100 hiding out on the Pakistani frontier. These people are genuinely dangerous, says Sageman, and they must be captured or killed. But they do not pose an existential threat to America, much less a "clash of civilizations."

It's the third wave of terrorism that is growing, but what is it? By Sageman's account, it's a leaderless hodgepodge of thousands of what he calls "terrorist wannabes." Unlike the first two waves, whose members were well educated and intensely religious, the new jihadists are a weird species of the Internet culture. Outraged by video images of Americans killing Muslims in Iraq, they gather in password-protected chat rooms and dare each other to take action. Like young people across time and religious boundaries, they are bored and looking for thrills.

"It's more about hero worship than about religion," Sageman said in a presentation of his research last week at the New America Foundation, a liberal think tank here. Many of this third wave don't speak Arabic or read the Koran. Very few (13 percent of Sageman's sample) have attended radical madrassas. Nearly all join the movement because they know or are related to someone who's already in it. Those detained on terrorism charges are getting younger: In Sageman's 2003 sample, the average age was 26; among those arrested after 2006, it was down to about 20. They are disaffected, homicidal kids -- closer to urban gang members than to motivated Muslim fanatics.

Sageman's harshest judgment is that the United States is making the terrorism problem worse by its actions in Iraq. "Since 2003, the war in Iraq has without question fueled the process of radicalization worldwide, including the U.S. The data are crystal clear," he writes. We have taken a fire that would otherwise burn itself out and poured gasoline on it.

The third wave of terrorism is inherently self-limiting, Sageman continues. As soon as the amorphous groups gather and train, they make themselves vulnerable to arrest. "As the threat from al-Qaeda is self-limiting, so is its appeal, and global Islamist terrorism will probably disappear for internal reasons -- if the United States has the sense to allow it to continue on its course and fade away."

III. What this means

Not only is there no great Islamic Jihad based organization that threatens the foundations of America, there cannot be. While there are a number of people motivated to attack America and Americans, to the extent that the organize, train and try to become more efficient they become highly vulnerable to police and special operations attacks. Their very efforts to attack America are self-defeating, and it is only dreamy youths who think that such efforts have any possibility of success.

When the Bush administration took office, Dick Cheney had the idea that successful terrorists had to have state sponsorship, so he essentially ignored al Qaeda and Osama bin Laden. Based on Sageman's analysis, it would appear that Cheney's instinct was correct. In the absence of state support that provides training and safe sanctuary areas terrorist organizations could not become major threats. The only thing that was wrong was that improved technology and greater global travel and communication does allow non-state supported terrorist organizations the ability to conduct occasional spectacular attacks that are politically threatening to the incumbent leaders of attacked nations.

Al Qaeda was, in fact, state-sponsored terrorism. They were funded largely by extremists’ religious individuals who spent oil money through Pakistan to create the Taliban-led state of Afghanistan who provided sanctuary to Osama bin Laden after Saudi Arabia and Sudan kicked him out. The attack on 9/11 was a one-off result of what was almost state-sponsored terrorism. The funding from Saudi Arabia has been allowed by the Saudi Royal family to bleed-off internal discontent within the Arabian Peninsula, and the creation of the Taliban and the Afghanistan state they ran was a result of the semi-failed state of Pakistan. The American invasion of Afghanistan was a completely appropriate reaction to 9/11 and, according to Sageman, has resulted in the effective destruction of the first wave of terrorists.

IV. The Bush political response

9/11 was a spectacular failure for the new Bush administration. It was a clear demonstration that their focus on missile defense and containment of China was a failed foreign policy. They wanted to do something similarly spectacular to cover up for their failure to prevent 9/11. They had intended to attack Iraq from their first month in office, and 9/11 provided an excuse. Unfortunately, as soon as the public was aware that al Qaeda was based in Afghanistan and was being protected by the Taliban, they were forced to redirect some resources to the invasion of Afghanistan. Because of their continued focus on attacking Iraq, Osama was never caught, but as Sageman points out, the first wave of terrorists has since been effectively destroyed. Without a state-provided sanctuary, terrorist organizations cannot survive.

The point to remember is that the invasion of Iraq was intended as an effort to consolidate Republican control of the American government. Such military and foreign policy actions are the strongest power of the American President. That's why Bush, and now McCain, speak of the Presidency as being Commander-in-Chief. The American President is sharply constrained by the Constitution in all other actions, so Bush and Cheney want everything the President does run under the title of Commander-in-Chief, and they need the Iraq War to continue for that to be effective.

The only real threat to the Bush administration from Iraq is the casualty rate, and by extending the time in Iraq to the point where most of the local ethnic cleansing is finished. With the end of the ethnic cleansing, the American casualty rate has dropped to where the American media is essentially ignoring that country. The Shiite government America has installed makes this easier by not protecting reporters, so that no real information can get out. As long as there is no effective information coming out of Iraq and the casualty rate is low, the Bush administration has been able to extend the Iraq occupation (it's no longer a war) until the end of the Bush administration.

After that the Democratic President, who has no need for the war to maintain his or her power, will withdraw the troops, giving the Republicans the opportunity to blame the Democrats for "losing" the war in Iraq. But as Sagemen points out, the war in Iraq has no purpose except to stir up resentment against Americans and create new terrorists out of stupid young men. The creation of those enemies is what maintains the Republican Party as a viable political entity. Without a steady stream of apparent enemies, there is no reason to vote Republican. The Republican Party has demonstrated its total failure and corruption and has no ability to correct itself.

The Republicans are aware of this. McCain is going to run a campaign against (probably Obama) in which is himself runs above the fray and has kind words, much as Bush did in 2000. But below that level there are at least three-quarters of a billion dollars aimed to label the Democratic nominee with a series of repeated and very nasty lies. (See Josh Marshall's description of the coming Republican campaign.)

V. Conclusion

The nature of the terrorist threat has been obvious to the experts for several years now, but with the publication of Sageman's book we now get objective facts we can review without trying to decide who to trust to tell us the truth.

By looking realistically at the nature and extent of the terrorist threat, it becomes clear that the Bush administration has been severely exaggerating it, encouraging the terrorists, and using that threat to extend their otherwise completely failed administration in power. That fact is that in a Parliamentary system 9/11 itself would have caused the government to fall and the Prime Minister to resign. So would the invasion of Iraq, abu Ghraib, Katrina, and any number of other failures over which Bush and Cheney have presided.

So let's look at the situation realistically. There is going to be a Democratic President elected in November 2008, but the current Congress is complicit in the incompetence and failures of the last seven plus years. That includes most of the Democratic leadership, and they are all going to try to avoid investigating the disasters America has suffered under its failed government. That must not be permitted.

America will require years to recover from the Bush administration series of disasters. A close look at the terrorist threat that has been used by our politicians to justify these disasters is one major step in correcting the problems and rebuilding an America under the Constitution and Rule of Law that we can be proud of. Sageman's book is a major step forward in this effort.

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If you find that the use of headings and internal links improves the readability of this essay, leave me a comment. If it doesn't, suggestions would also be nice.

Conservative America - where wealth and power is rewarded instead of work

Work hard and you will be rewarded in America. We still get taught that in school - but under the Reagan Revolution you will only get part of the reward for your work. The rest is siphoned off and redistributed to the wealthy and the powerful. That's what is meant by the statistics showing greater disparity between the wealthy and the superwealthy and the rest of us. It's not better educated workers getting paid more in the global economy for economic reasons. It's the power-based redistribution of income upwards from the workers who produce the wealth to the wealthy and powerful who define the rules of who gets the rewards.

Part of this results from the changes in tax codes that make the middle class pay a larger percentage of their income after family support than is true for the wealthy and especially the superwealthy. But even more comes from the redistribution of power away from workers and from the government to the investors and top management class. The Reagan Revolution is building a Latin-American style plutocracy in America by shifting power from the workers and their government to the wealthy and the superrich.

This is bad economics in the first place since it rewards position and class rather than effort, but it also has social consequences as the connection between effort and the reward for that effort is severed.

For all the conservative rant that America should be a nation based on "free enterprise" what has happened in America since the 1960's is that people get wealthy primarily by getting a government contract or a government-protected monopoly. The ideal of the American economy used to be that the people who did the productive work that created wealth were rewarded more for their productivity than were the managers who organized the work, and the investors who merely contributed money to the enterprise were the least rewarded because their effort was the least productive. That's the ideal of a middle class nation. It is the skills and efforts of the middle class that actually produce more and better goods and services, and the efforts of those who merely reorganize those productive efforts should not be rewarded more than the efforts of those who actually do the final productive work of wealth creation.

How do you get the most wealth creation and greatest productivity from a society with a modern economy embedded in it? You provide the greatest reward to those who do the real work rather than to the managers, investors and politicians.

In the last thirty years especially American has changed. The rewards for productive effort have been distributed away from those who actually create the final goods and services towards those with the power and money to decide who gets rewarded and who does not. David Cay Johnston's new book Free Lunch: How the Wealthiest Americans Enrich Themselves at Government Expense (and Stick You with the Bill) provides numerous examples of how our society now rewards wealth, power and position rather than productive effort.

Contrary to the fictions the Reagan conservatives keep spouting, this redistribution of wealth from the workers and families up to the very wealthy is a political function, not an economic one. Every time a big-box store like Wal-Mart or Costco arranges with local governments to not have to pay local taxes for a decade or more to locate a story in a community, they gain an economic advantage over the local stores which still have to pay those taxes. I used to trade at two local hardware stores where I got good service and advice along with the hardware, tools and parts I needed, but home Depot and Lowe's opened up, cut the prices because of the tax benefits the County gave them, and sucked up the business that had gone to my local hardware stores.

I'm not getting lower prices because now I have to drive ten miles instead of two, and park half a mile from the big box store in a dangerous anonymous parking lot instead of right in front of my local store. I also can't find anyone who can help me figure out how to deal with my plumbing or lawn problem. And oddly enough, the amount of product that Home Depot and Lowe's make is roughly the same as the amount of tax incentive they got the County commissioners court to give them to open in the first place. That money is sucked out of my community into the pockets of those wealthy and powerful enough to get the special government privileges that makes the big-box business model profitable in the first place. So Our community is poorer, we have fewer total jobs and the ones we have pay less than when we had local hardware stores, and the only winners have been the wealthy and politically connected investors. Welcome to the Reagan Revolution - the revolution in which plutocrats, investors and top managers of big business conglomerates are disproportionately rewarded because of the positions they occupy instead of the actual wealth they personally produce.

Rick Perlstein quotes Tom Geoghegan who describes the social and economic results of this failed economic structure in See You in Court: How the Right Made America a Lawsuit Nation :

It took ten years—almost all of the 1990s—for the median family income to get to the same level that it was, in real terms, in 1989. But in 1999, when we got to the same income level we had in 1989, the "median" family had to work six more weeks a year.

To keep from falling, the 1999 middle class had to work six more weeks a year for free. Not a few more hours—six more weeks! By the way, maybe it's worth pausing to say this: No wonder our FDP keeps shooting up, if the middle class is being forced to work for free.

But all this unpaid extra labor tends to undermine the Rule of Law.

Why? The economist John Maynard Keynes put it best: "Nothing corrupts society more than to disconnect effort and reward." That's what did in the old Soviet Union: no matter how hard one worked, one could not get ahead of someone who did not work at all. All that is what is happening in the United States, too. Of course, in a certain way our country would seem the very opposite of the Soviet Union. Here, if people don’t' work, they're going to end up homeless. Then again, if they do work, they may end up homeless, too.

That's the point. Like the USSR, we are slowly breaking the connection between effort and reward. And in terms of the Rule of Law, that's a dangerous thing to do. It's dangerous to push the middle class into questioning the fairness of the rules.

The danger is that people in the middle class will begin to see the world as arbitrary and unfair—unpredictable, a matter of luck, a chance of catastrophe around the corner. It does not matter if they work the extra hours. Over 40 percent of American families have less than $5,000 in savings. One bill, a hurricane out of the blue, can blow everything away.

So, quietly and to themselves, people at the median or below have to wonder, as the country becomes fabulously wealthy: Why play by the rules?

I may even understate the case. The disconnect between effort and reward is much greater than it seems. Some families lost income, though they worked harder. But they became wealthier. How? They made money off their homes. But this is not "effort." It's not even savings. It's just something that happened arbitrarily, to me, but not to many others. The moral is: Hard work doesn't pay.

Let's go back to my earlier example. I doubt many people did actually get back to the same 1989 level of income in 1999. Think of pensions. Fewer working people had pensions, though they worked longer. Or they had bigger administrative fees. Think of health insurance. Fewer people had it. Or they had bigger deductibles. They lost out, even with six more weeks of work. Perhaps our moral character can survive one decade of that kind of thing, but it keeps going.

Why is this so dangerous for the Rule of Law? It's simple. If we do not expect the world to be reasonable and fair, then sooner or later we do not demand or expect those qualities from the law, either. We get used to arbitrariness and unfairness. Sometimes we take a certain glee in it—at least when arbitrary things happen to others. Worse, as fewer of us vote, or even watch the news, we experience the legal system not just as arbitrary but as alien. It's something that is imposed on us. We did not consent to it. We didn't vote.

Worse, the more we drop out, the more arbitrary and unpredictable the Rule of Law becomes. The unions, political parties, and other institutions such as the liberal churches helped us shape a certain legal system. When they began to weaken, the law itself begins to change. It became less rational and predictable. It is not just that people now perceive the law as less rational and predictable. It really is.

Maybe the country will survive it. Maybe the less rational and predictable the law becomes, the more people will go along. They will accept it up to a point, as in backward societies, because they will experience the Rule of Law in the same way they experience the world.

America became a wealthy and powerful nation because the availability of free land severed the connection between rewarding land ownership and rewarding hard work. Individuals who wanted to get rewarded for their own work merely had to open new land and put their effort into the enterprise.

When the wealthy landowners tried to get government to tax the new middle class for reasons that did not contribute to their economic success, they used their numbers to change the way government was controlled. The shock expressed by many who had been leaders during the American Revolution when Andrew Jackson took control of the government is clear in history, but the Jacksonian Democrats were people who were used to being rewarded for their effort and weren't going to let a few large landowners (A.K.A. "The Right People") take the rewards away from them.

The fact that the American South with its plantation culture and slavery did not participate in the early stages of the Industrial Revolution (and has yet to get fully with the program) is a clear demonstration of the economic superiority of rewarding the efforts of labor more than land, capital or that strange, mostly ideological economic concept, Entrepreneurship. [Land, Capital and Entrepreneurship are not unimportant economic factors, but the rewards to those who do the final job of creating goods and services are the most powerfully productive rewards in the system. That's what the statement that "a business' most important assets are its workers" really means.]

The reason why laissez faire economics does not work is that it assumes that the social and power structures of society will somehow automatically gravitate to those which produce the best good, services, and social benefits. Unfortunately, there is no automatic pressure or mechanism that makes that true. In fact, in some markets such as a private insurance-dominated national health care system, the assumption that somehow the market will give the best results at the lowest possible cost is clearly false.
America needs to seriously reconsider the reward structure in has in place and that will include, but not be limited to, the tax structure. What social benefit is returned from the super-rich that justifies their failure to pay a greater percentage on their incomes in taxes than those with the least income? The super-rich get proportionately more form society, they should support it proportionately more. Is there any social benefit at all in allowing great wealth to be inflicted on the descendants of wealthy families? Is that not simply an incentive for them to NOT be productive and instead play power politics for the sole purpose of protect their social position?

America has had a three decade experiment with the Reagan Revolution. The Reagan Revolution and the conservative movement that has inflicted in on America has clearly failed our society and our nation. It needs to be rethought and re-worked.

A major element of that rethinking is how work is rewarded. Today it is more likely for most people to become wealthy by hitting the lottery than by the results of their hard work. That is simply wrong, and destructive on any society that is supposedly built on the rule of law and also wants to be an economically productive nation that can compete in the world economy.

Conservative thought is based on the assumption that the nation exists to support business and reward the rich and powerful. Somewhere in the Reagan Revolution the idea that the heart of our nation is its families, and that business and the economy exist to improve life for the workers and their families, not for the CEOs, the investors and the politicians who enable them. Conservative thought and actions have failed America.

It's time for American to return to its roots as a middle class nation not dominated by an aristocracy. Instead, work needs to be properly rewarded and families supported by the economy.

Another bush attack on the courts and the Rule of Law

I'm no attorney, but this seems like it totally invalidates the travesty that passed for a trial of Zacarias Moussaoui. Clearly, the Bush administration decided to convict him for something, Attorney General Ashcroft announced to the press that Moussaoui was guilty of terrorism, then they determined how to conduct a Soviet-style show-trial to enact that conviction.

Presidential candidates on Executive Power

Charlie Savage of the Boston Globe, one of the nation's best political reporters, has just reported the results of a survey he conducted with the Presidential candidates on their approach on which of the "checks and balances they would respect, and whether they would reverse the Bush administration's legacy of expanded presidential powers." In other words, how much of the set of expanded Executive Powers that Bush and Cheney have claimed would any of the candidates retain, and what powers do they feel are inappropriate to the Executive in the American Constitutional democracy.

First, Who answered the survey?

Six Democrats and three Republicans provided answers to the Globe survey. Three GOP candidates did not respond to the survey: Former New York mayor Rudy Giuliani, former Arkansas governor Mike Huckabee, and former Tennessee senator Fred Thompson.

The Giuliani campaign instead provided a general statement by its top legal adviser, former Bush administration solicitor general Ted Olson. He said that a president "must be free to defend the nation," but provided no specific details about what limits, if any, Giuliani believes he would have to obey as president - in national security or otherwise.

This tells us which candidates feel least responsible to the American people, and which candidates view the Presidency as a modern day monarchy - or in Huckabee's case, modern theocracy.

What are the candidates opinion of Bush's approach to Presidential Power?

Of the nine candidates who answered, Romney expressed the most positive view of Bush's approach to presidential power.

"The Bush administration has kept the American people safe since 9/11," Romney said. "The administration's strong view on executive power may well have contributed to that fact."

By contrast, the other two Republicans who responded - McCain and Paul - both expressed reservations about legal claims Bush has made. For example, both rejected the idea that a president, as commander-in-chief, has "inherent" power to wiretap Americans without warrants, regardless of federal statutes, as the administration has argued.

"I don't think the president has the right to disobey any law," said McCain, an Arizona senator.

Peter Shane, an Ohio State University law professor who studies executive power, said Romney's answers suggest that the former Massachusetts governor will probably embrace the Bush administration's legal theories on executive power.

"It's fair to say that the Democrats, Senator McCain, and Representative Paul are united in supporting a reinvigoration of checks and balances and the reassertion of a meaningful congressional role in national security affairs," said Shane.

I think this also disqualifies Romney as an American President under the Constitution. Romney, Giuliani, Huckabee and Thompson are all telling us the Constitution is a nice idea, but disposable if they decide they don't like it.

The candidates were asked whether they would be restricted by a law passed by Congress that restricted their power to deploy troops.

Among the Democrats, only former North Carolina senator John Edwards refused to say that he would be bound to obey a law limiting troop deployments, instead saying, "I do not envision this scenario arising when I am president."

Similarly, Romney talked generally about a president's need to both "respect" Congress's constitutional powers over war while also remaining "faithful to commander-in-chief powers," but he declined to say whether he believed he could disregard a law capping troop deployments. [Snip]

But the other two leading Democrats - Clinton, a New York senator, and Obama - were both more definitive. Along with Governor Bill Richardson of New Mexico, Senator Joe Biden of Delaware, and Senator Chris Dodd of Connecticut, Clinton and Obama endorsed a more restrained approach to executive power than Bush.

The Democrats said a president must obey laws and treaties that restrict surveillance and interrogation. They also said that the Constitution does not allow a president to hold US citizens without charges as "enemy combatants" - even though Bush has won court rulings upholding his right to indefinitely imprison citizens suspected of terrorist links.

Then the candidates were asked how they would use Signing Statements.

while all the Democrats condemned Bush's use of signing statements, Clinton, Edwards, and Obama each said that they would use them too - just less aggressively. Obama said the problem with Bush's signing statements is not the device itself, but rather that Bush has invoked legal theories that most constitutional scholars consider "dubious" when reserving his alleged right to bypass certain laws.

"No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush administration has gone much further than that," Obama said.

By contrast, Biden, Dodd, and Richardson called for an end to signing statements altogether.

Among the Republicans, their stance was echoed by McCain and Paul, both of whom said they would never issue a signing statement. Romney, by contrast, praised signing statements as "an important presidential practice."

So except for Ron Paul and McCain, the Republicans all approve of how Bush as accumulated more power to the Presidency. That makes all the Republicans other than McCain and Ron Paul primarily anti-Democratic authoritarians. The Republicans consider the Executive Branch to be the supreme branch in the federal government. Combine that with a penchant for secrecy and a refusal to respond to questions from the public and the Republicans are the reactionary party of monarchism.

The Democrats are not as easy to characterize. They support reinvigorating the check and balances established by the Constitution, but are not yet ready to declare Congress as the supreme branch in the federal government. Edwards simply delayed announcing his opinion of the Presidential power to deploy troops contrary to Congressional law which is troubling.

It is interesting that McCain belongs to the camp in which Congress is viewed as a branch of federal government that is equal the Executive branch.

I don't put Ron Paul into either camp, since his Libertarian view is that neither Congress nor the Executive branch have more than minimal functions under his view of the Constitution. That is such an extremist, out-of-the-mainstream view that he cannot be compared to any other candidate.

CQ Politics has an earlier publication on the subject of Presidential powers.

the records and statements of the eight major candidates -- the three Democrats and five Republicans who have had double-digit support in the most recent national polls -- show that the 2008 presidential election is not likely to start a huge shift in the balance of power away from the White House.

That doesn't mean the top candidates would continue all of the Bush administration's practices, and most aren't likely to take the same kind of deliberately confrontational approach to Congress. Also, an upset victory could still go to one of the few candidates whose victory would represent a clear rejection of Bush's overall policies. But there is enough evidence of a preference for strong executive power in the backgrounds of most of the field to suggest that, more likely than not, there will be no U-turn under the next president.

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The only real question is What the Hell is wrong with Charlie Savage asking such stupid questions? Voters don't care what the opinions of the candidates on the limitations of Executive power are! Voters want more reports like the one written by the Washington Post's Robin Ghivan last July in which she wrote the very unflattering description of Hillary Clinton's "cleavage on display." (See The Washington Post doesn't like or respect Democrats) Digby points out what the modern Press wizards all know about how Presidential campaigns should be covered.

We want color and spectacle, not boring policy discussions. Reporters are there just to tell us who they like, so that we can all elect the most likable candidate. Their policy opinions are boring, irrelevant, and totally incomprehensible to reporters and their editors anyway. They have Communications degrees, with majors in hairdos and makeup, not MBA's or Political Science degrees. Who are we mere Plebeian voters to question their professionalism and expertise?

Right?

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Addendum 1 December 23, 9:14 AM CST
Back to the analysis of Charlie Savage's excellent article. Glenn Greenwald weighed in this morning, and here is part of what he said:

...by far the most extraordinary answers come from Mitt Romney. Romney's responses -- not to some of the questions but to every single one of them -- are beyond disturbing. The powers he claims the President possesses are definitively -- literally -- tyrannical, unrecognizable in the pre-2001 American system of government and, in some meaningful ways, even beyond what the Bush/Cheney cadre of authoritarian legal theorists have claimed.

After reviewing those responses, Marty Lederman concluded: "Romney? Let's put it this way: If you've liked Dick Cheney and David Addington, you're gonna love Mitt Romney." Anonymous Liberal similarly observed that his responses reveal that "Romney doesn't believe the president's power to be subject to any serious constraints." To say that the President's powers are not "subject to any serious constraints" -- which is exactly what Romney says -- is, of course, to posit the President as tyrant, not metaphorically or with hyperbole, but by definition.

Each of the questions posed by Savage is devoted to determining the extent of presidential power the candidate believes exists and where the limits are situated. On every issue, Romney either (a) explicitly says that the President has the right to act without limits of any kind or (b) provides blatantly nonresponsive answers strongly insinuating the same thing.

Just go and read what he wrote. It's extraordinary. Other than his cursory and quite creepy concession that U.S. citizens detained by the President are entitled to "at least some type of habeas corpus relief" -- whatever "some type" might mean (Question 5) -- Romney does not recognize a single limit on presidential power. Not one. [Snip]

In a Washington Post Op-Ed this morning, historian and George Washington biographer Joseph Ellis labels Dick Cheney's quest for limitless presidential power "historically myopic" and writes:

Your opinion on the current debate about how much power the executive branch should have will be significantly influenced if you read the debates about the subject in the Constitutional Convention and the states' ratifying conventions. For it will soon become clear that the most palpable fear that haunted all these debates was the specter of monarchy.

Although one would not have thought it possible, a Mitt Romney presidency, by his own description, would remove us still further from those core principles. Romney isn't running to be President, but to be King. Anyone who wants to dispute that ought to try to distinguish the fantasies of power Romney is envisioning from those the British King possessed in the mid-to-late 18th Century.

Apparently others agree with me that Romney sees no significant limitations on the unfettered arbitrary power of the American President. as in so many other things on which he has spoken during this campaign, Romney will say and do anything to become President King.

If Romney is elected President he intends to treat the job as being the Monarch of America with the Divine right to rule in an unfettered, no checks and balances, manner. All Hail King Romney the First!

Did Huckabee become governor of Ark in a coup?

Sandy Levinson at balkinazation presents the story of how Mike Huckabee became Governor or Arkansas.

It's an interesting story. Go read it and ask yourself - was Huckabee's action legal?

What does it suggest about Huckabee's ambition, or his understanding of the Rule of Law and of Constitutions?

Bush administration and conservative tout arbitrary government, ignore rule of law

Want to see an example of arbitrary government command as oppose to Rule of Law? Digby presents the perfect example from the current hearings on prisoners and Guantanamo.

Read her article. Then go read my essay on Rule of Law vs. Arbitrary Command.

America is based on the Constitution as implemented through the Rule of Law. The movement conservatives are simply not Americans. They believe in neither the Constitution, nor the Rule of Law. Instead of Americans, they are plunderers and pirates, who deserve the penalties International Law prescribes for piracy.

U.S. has suffered conservative coup - abandons democracy & Rule of Law in favor of tyranny

The British are a bit shocked that an official representing the Bush administration has told the British court that if America wants to try someone for crimes, it is legal under U.S. law for the U.S. to kidnap the alleged criminal in a foreign sovereign country, bring them to the U.S., and try them. The alleged criminal has no right to be freed merely because he was illegally kidnapped. [From Times on-line]

This is another example of the extremist, go-it-alone and outside the Rule of Law positions taken by the Bush administration.

A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.

The admission will alarm the British business community after the case of the so-called NatWest Three, bankers who were extradited to America on fraud charges. More than a dozen other British executives, including senior managers at British Airways and BAE Systems, are under investigation by the US authorities and could face criminal charges in America.

Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects. [Snip]

Jones [Alun Jones QC, representing the US government, in a hearing that involved the alleged attempted kidnapping of a British citizen while that person was in Canada] replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.

He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s.” [Snip]

“That is United States law.”

He cited the case of Humberto Alvarez Machain, a suspect who was abducted by the US government at his medical office in Guadalajara, Mexico, in 1990. He was flown by Drug Enforcement Administration agents to Texas for criminal prosecution.

Although there was an extradition treaty in place between America and Mexico at the time — as there currently is between the United States and Britain — the Supreme Court ruled in 1992 that the Mexican had no legal remedy because of his abduction.

A treaty with a foreign nation is part of U.S. law. This appears to be conservative judicial activism gone wild, and then carried to extremes by the Bush administration which considers itself bound by no law, treaty, agreement or promise.

The Bush administration believes in Rule by Law, in which the law is an instrument of government and can be used arbitrarily by those in government who are above the law. This was the philosophy of law used by monarchs prior to the English Glorious Revolution of 1688 when the English Parliament deposed King James II and replaced his with William and Mary from the Netherlands.

This article from Perspectives describes the difference between Rule by Law and Rule of Law.

The difference between "rule by law" and "rule of law" is important. Under the rule "by" law, law is an instrument of the government, and the government is above the law. In contrast, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion. As an autonomous legal order, rule of law has at least three meanings. First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice. We will take up these meanings of rule of law one by one.

First, as a power regulator, rule of law has two functions: it limits government arbitrariness and power abuse, and it makes the government more rational and its policies more intelligent.

The opposite of rule of law is rule of person. There are two kinds of rule of person. The first kind is "rule of the few persons," examples of which include tyranny and oligarchy. The second kind of rule of person is "rule of the many persons," an example of which is the ancient Greek democracies. The common feature of rule of person is the ethos that "what pleases the ruler(s) is law." That is, under rule of person, there is no limit to what the rulers (the government) can do and how they do things.

It is the nature of the Bush administration, and of conservatives generally, to practice Rule by Law rather than Rule of Law. They consider themselves superior to the law, and find in it nothing more than a tool, usable to enforce their arbitrary whims but not binding on their own actions.

John Locke wrote his Two Treatises of Government which describe a democratic government, based on the will of the people. The single most critical elements of that democratic government based on the will of the people was that it was operated under the Rule of Law, and no one was above the law. When government officials resort to arbitrary decisions not constrained by law, then the government has become a tyranny. It is irrelevant whether or not there are elections. It is a tyranny because the top government officials have abandoned the Rule of Law and use the law only as an instrument of control of the nation.

The extradition treaties in place with other nations are a part of U.S. Law, but the Bush administration has seen fit to ignore them when it wishes. This is tyranny. That the U.S. Supreme Court has yielded to popular pressure and declared that kidnapping suspected criminals outside the U.S. is legal merely means that the (politically conservative)Supreme Court Justices themselves have abandoned the Rule of Law in this instance, permitting instead tyrannical Rule by Law.

As the description of the Legacy of the Glorious Revolution of 1688 in Wikipedia shows, the action of removing King James II as Monarch and declaring that Parliament was the center of the power of government, functioning under the Rule of Law, was critical to the manner in which the U.S. Constitution was written a century later.

The Judges of the British Appeals Court were quite properly appalled by the declaration of Alun Jones QC, representing the US government, has demonstrated how tyrannical the Bush administration has become. Any American who believes in democracy and the U.S. Constitution should be similarly appalled. When the Rule of Law is abandoned, democratic government and the effectiveness of the U.S. Constitution goes with it. The unwavering practice of the Rule of Law is the central doctrine that permits democracy!

The Rule of Law is also critical to a vibrant economy. It is what permits individuals and businesses to take the statements and promises from the government seriously and base plans on them. Why would an individual buy a truck and start a hauling business if he did not know whether the government might, when it was short of trucks for government projects, simply confiscate the truck for its own use? The individual would do better to buy gold and jewelry and hide any wealth he had from the government. Much of the world functions this way even today. Rule of Law and a system of appeals to remedy arbitrary government actions are essential to both democracy and to a vibrant economy.

The rendition (kidnapping) of foreigners to the U.S. to stand trial for alleged crimes in violation of existing extradition treaties is an example of Rule by American Law (as determined by the U.S. Supreme Court) rather than Rule of Law as represented by the extradition treaty. Remember, without rigorous application of the Rule of Law, no existing law is consistently enforceable. Government officials are permitted the freedom to arbitrarily enforce laws or not as they desire. Sometimes they have to have a tame judge to make it work, but it is still arbitrary. That is tyranny, and the death of democracy.

It is unfortunate that the conservative members of the U.S. Supreme Court as presently constituted do not share the American respect for democracy and the enforceability of the the U.S. Constitution. But that is what happens when a coup, conducted by conservative monarchists (In the present case - the Bush and conservative philosophy of the Unitary Executive conducted without consideration of Rule of Law gives them away as Monarchists), takes over a democracy and imposes a tyranny.

Mario Cuomo describes how America has abandoned the rule of law

In a speech given Wednesday before 2,000 of New York's most influential lawyers Mario Cuomo decried "“power seeking presidents” who engage in “efforts to throw off constitutional restraints” through various means." His theme was the abandonment of “Our Lady of the Law.” Firedoglake's Looseheadprop attended the speech and reported on it.

Among other things he discussed were

• signing statements,
  
• “secret White House task forces,”
  
• the “unprecedented politicization of the Department of Justice.” and the really big one
  
• “the seizing by presidents of the power to declare war.”
  

Here is loosheadprop's readtion to what appears to be Mario Cuomo's most significant charge in the (well-received) speech:

It was one of those smack yourself on the forehead moments. It’s so obvious now that he has said it. He went into some history involving litigation about the Viet Nam War and pointed out that SCOTUS has never ruled one way or the other whether or not the Korean police action, Viet Nam, Kosovo, etc., etc., etc. are legal or not. SCOTUS has neither condemned nor approved of the president engaging in war absent a Congressional declaration of war.

Cuomo asked if American lawyers could march in America in support of the lawyers and the rule o flaw in Pakistan, why can't they march in America in support of the rule of law here in America?

Editors opinion Of course, what Looseheadprop did not point out is that presently the U.S. Supreme Court has a majority of five Roman Catholic, activists pro-Monarchy and anti-democracy Justices, while the other four are all strong conservatives but generally are less activist and less ready to overthrow the Constitution. The Court abandoned the Constitution when they appointed Bush as President in 2000 in their shameful, toadying and disgusting decision. I'd hate to see those people asked to actually apply the Constitution and rule of law to the issue of whether the President could declare War on his own. That has always been the prerogative of the Monarch under the philosophy of the Divine Right of Kings.

Traditionally conservatives have always preferred rule my Monarchs and Priests, while detesting democracy, legislatures and the rule of law. Our modern American conservatives are no different. Editors opinion

The unethical unconstitutional radical so-called 'conservative' Republicans

Digby writes about the way conservative Republicans have gradually removed any hint of ethics in American elections whenever and wherever they can. Nixon was the first great example, followed by the secret deal between Republicans and the Iranian groups who held the American Embassy personnel until after the 1980 election so as to ensure the defeat of Carter.

The partisan idiocy that was the impeachment of Bill Clinton followed, but after that came the presidential election of 2000 in which Justice Scalia not only contributed the fifth vote to stop the Florida recounts, he specifically said when he did it "The Constitution does not guarantee a free vote."

I don't think any of us knew just how jarring that assault would be until the election of 2000, when an attack on the vote became quite direct. Al Gore was the winner of the popular vote and the intended winner of Florida's electoral college vote. It was close. But regardless of the Republican mantras about hanging chads and "divining the will of the voters," from the first moments of the election controversy there was no doubt that the butterfly ballot in Miami caused people to vote in error and if that hadn't happened, Al Gore would have been the clear winner in Florida. The intention of the voters was clear, even if the technical difficulties in rectifying it weren't. We know who the voters chose.

But the Republicans cared nothing for the intention of the voters and didn't even want to count the votes that might have legitimized their own man's victory. They used every mechanism and lever of power at their disposal in spite of the fact that they knew they hadn't really won. And they knew we knew they hadn't really won. That a strictly partisan 5-4 decision of the Supreme Court ratified that maneuver was perhaps one of the most shocking attacks on the spirit of American democracy yet. Supreme Court Justice Scalia even made a point of saying that there was no right to vote in the constitution, which is true. But I don't think many Americans believed before that day that a Supreme Court justice would use that fact as a way to justify installing a man in the presidency who hadn't been the people's choice. Now we know.

(See also The Dallas Examiner.)

Then followed the removal of the elected California Governor.

California followed with a GOP financed recall election of the Democratic Governor, a radical departure from the past where recalls had been understood to be used only to remove criminals from office, not truncate the term of a duly elected executive simply because the political conditions allowed you to do it. Interestingly, this sort of radical direct democracy had been endorsed by that old rock-ribbed conservative Karl Marx, when he wrote favorably about the recall provisions of the Paris Commune. One would say this was a matter of strange bedfellows, but these modern Republicans studied communism with fervor and came to admire many of its adherents' political tactics. And in any case, it was a matter of political opportunity rather than philosophy. They would just as easily argue the opposite case. Their philosophy is to take power, period.

All of this is just about elections. They govern in the same way, as laid out in Charlie Savage's new book "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy."

As Charlie Savage points out, this administration has been centralizing power into the Presidency. It doesn't matter who holds the Presidency. The forms of power that the Bush - Cheney administration have pulled into the Executive Branch will be there for any future President to use. I don't think they every intended for Democrats to again elected and install a President, but it would be a great irony if the powers that Cheney (in particular) have pulled into the Presidency were used against the Republicans in the same ways Republicans have been using them against Democrats for the last eight years.

Irony may provide a level of justice, but I'm not sure we want to keep on living in the America the Re[publicans have been building.

Speculations on the Gonzales resignation

I wonder if Alberto Gonzales is resigning in order to lower the level of conflict between the Executive Department and the Congress? If so, it isn't going to work. If anything, the conflict is going to increase.

Does the resignation of Gonzales make it less likely that the Department of Justice will attempt to influence the 2008 elections? I'd say that depends on the degree of openness that the DoJ is forced to undergo, especially Voting Rights Division. One commitment the Senators need to extract it the rebuilding of the Voting Rights Division and making it more transparent.

The new Attorney General needs to firmly agree that he will take Contempt of Congress cases against White House employees to Court. Gonzales has publicly stated that he would not act on such Congressional requests.

Gonzales' resignation becomes effective September 17th. I wonder if there is any significance in that date? It appears to shut out any possibility of a recess appointment by bush.

Gonzales' legacy will almost certainly be that he is responsible for the effective destruction of the Department of Justice and a sharp reduction of the DoJ's reputation for the honest enforcement of law. It may also be the complete discrediting of the theory that U.S. Attorneys can be fired for purely political reasons, and that the Attorney General sometimes has to tell the President that something the President wants done cannot be done because it violates the Rule of Law.