Gary Wills on "Faith-Based War"

It has long been clear that the President's religious views have had a strong influence on the Bush administration's policies. And that would not necessarily be a bad thing, except that unlike most Christians (and unlike most Methodists, in particular), President Bush's faith exists in a vacuum which is completely devoid of reason and facts. A new article by the eminent historian Gary Wills (who, it should be noted, has written a book titled "Why I Am a Catholic") reveals that faith has controlled a much broader range of policies and decisions than I would have imagined.

The entire article is a must-read. Perhaps the most shocking section focuses on the role of religion in the planning and administration of the Iraq war:

God's war needs God's warriors, and the White House was ready to supply them. Kay Coles James had been the White House personnel scout for domestic offices. The equivalent director of personnel for the Iraq Coalition Provisional Authority (headed by Catholic convert Paul Bremer) was the White House liaison to the Pentagon, James O'Beirne, a conservative Catholic married to National Review editor Kate O'Beirne. Those recruited to serve in the CPA were asked if they had voted for Bush, and what their views were on Roe v. Wade and capital punishment. O'Beirne trolled the conservative foundations, Republican congressional staffs, and evangelical schools for his loyalist appointees. Relatives of prominent Republicans were appointed, and staffers from offices like that of Senator Rick Santorum. Right moral attitude was more important than competence.

That was proved when the first director of Iraqi health services, Dr. Frederick Burkle, was dismissed. Burkle, a distinguished physician, was a specialist in disaster relief, with experience in Kosovo, Somalia, and Kurdish Iraq. His replacement, James Haverman, had run a Christian adoption agency meant to discourage women from having abortions. Haverman placed an early emphasis on preventing Iraqis from smoking, while ruined hospitals went untended.

"A Country Ruled by Faith" [New York Review of Books]

Enron Explorer

Trampoline Systems has created "Enron Explorer," a demonstration of its software based on the 200,000 emails released by the Federal Energy Regulatory Commission during the Enron investigations. This useful application is similar to Vivisimo's demonstration based on the 9/11 Commission Report, which was released soon after the report was published. [Vivisimo]

Trampoline Enron Explorer [enron.trampolinesystems.com]
"Enron Explorer mines Enron's emails" [Boing Boing]

Louisburg, NC in the New York Times

I grew up on Louisburg Road, just outside of Raleigh, NC (Louisburg is a county seat about 30 miles Northeast of Raleigh; I grew up about 7 miles Northeast of downtown Raleigh), and Eastern North Carolina-style pork barbecue is probably my favorite food, so I just had to link to this Times article about humane pig farming in Louisburg. I just got into organic beef during the past year or so, and it is amazing how much better it tastes than regular ground beef (I recommend Laura's Lean Beef from Kentucky, which is sold in the Pathmark grocery store here in Queens). Count me in as a sensitive carnivore.

"Meat Labels Hope to Lure the Sensitive Carnivore" [New York Times]

Fantasy politics gets into the red zone

I'm obsessed with fantasy sports. I have two fantasy football teams (one of which - now known as the Long Island City Lightning, formerly known as the Brooklyn Rottweilers, and as the Raleigh somethings before that - has existed since 1999), two fantasy basketball teams, and two fantasy baseball teams. Needless to say, I found this article about fantasy politics fascinating:

"Fantasy Sports? Child's Play. Here, Politics Is The Game." [New York Times]

Questions about North Korea's nuclear test

#1: What exactly did North Korea detonate?

No one knows for sure, at this point. According to the Nuclear Threat Initiative, the explosion was one kiloton or less in strength, whereas most nuclear powers' first nuclear tests have been in the range of 10 to 60 kilotons. Some experts have suggested that the detonation could have been heavy conventional explosives, while others have said that it was almost certainly a nuclear weapon. [NTI] It will take at least several days to confirm whether the bomb was nuclear or not. [Washington Post]

#2: What are the implications of a nuclear North Korea?

At this point, we have to assume the bomb was nuclear. But even if it was a nuclear bomb, experts believe that North Korea is far from having the technology to put nuclear bombs into a missile.

But whether North Korea has battle-ready nuclear weapons is not really the issue here. The South Korean government - which believes that the bomb was indeed a nuclear weapon - said that it believes Pyongyang's goal was to "secure the status of a de facto nuclear state." [NTI]

Washington's biggest concerns are that a nuclear North Korea could trigger a new arms race among the Pacific Rim countries, and impact weapons negotiations with other problem countries. For example, Rep. Jim Leach (R-Iowa), chairman of the House International Relations subcommittee on Asia, said that it could "encourage Iran to harden its stance in negotiations over its own reported nuclear program and make it difficult to stop North Korea from marketing weapons to 'undesirable parties.' " On a positive note, China - North Korea's closest ally - condemned the Stalinist country's claimed nuclear test. [Washington Post]

#3: What should the U.S. government do about it?

Well, that depends on whether the bomb turns out to be nuclear or not, but in the mean time, U.N. Ambassador John Bolton seems to appreciate the signficance of getting the entire international community on board this time around. Given China's traditional alliance with North Korea, it remains to be seen whether the U.S. can get the world's largest communist country to support embargo proposals. [Washington Post]

A venture capitalist explains why he's betting on biofuels

Vinod Khosla, a co-founder of Sun Microsystems who runs a venture capital firm, explains some of the exciting new developments in biofuel production:

"It may surprise you to learn that the most promising solution to our nation’s energy crisis begins in the bowels of a waste trough, under the slotted concrete floor of a giant pen that holds 28,000 Angus, Hereford, and Charolais beef cattle. But for some time now, I’ve been searching for a renewable fuel that could realistically replace the 140 billion gallons of gasoline consumed in the US each year. And now I believe the key to producing this fuel starts with cow manure – because this waste powers a facility that turns corn into ethanol."

"My Big Biofuels Bet" [Wired]

The Military Commissions Act: an overview

I have abstained from commenting on the terror bill compromise for almost a week, due in part to the fact that the bill is fairly complex, and in part to the fact that I took "National Security and the Law" during my last year of law school, which taught me how complicated this entire area of law tends to be. The Military Commissions Act itself is a mixed bag which is hard to characterize politically; not only would it be foolish to declare it a victory for one side or the other, but it would be foolish even to assume that there are only two sides to the issues at hand.

Senators Graham, McCain, and Warner, despite the perception that they are politically moderate, are all pretty conservative when it comes to most issues - "principled conservatives" or "conservatives who respect American legal traditions" would probably be a better adjective than "moderates." These guys are veterans (and Graham is a former military judge) who respect the traditions of American military law and the Geneva Conventions, but they are also conservatives when it comes to criminal procedure issues.

That is why I was not shocked, as many observers in the media seemed to be, that the compromise bill did not give noncitizen terror suspects federal habeas corpus rights - after all, one of the conservative movement's major legal victories during the last two decades has been to limit the scope of American criminal suspects' habeas corpus rights. During his confirmation hearings, now Chief Justice Roberts discussed this trend after Sen. Feingold asked him about a memo from the early 80's, in which he had complained about excessive habeas corpus appeals in the criminal justice system. During the same hearing, Sen. Graham told Roberts that he thought giving habeas corpus rights to noncitizen foreign terrorists would be an "amazing departure from what we've been as a nation for 200 years."

This post examines the Military Commissions Act of 2006 by cross-referencing the New York Times' September 28 editorial "Rushing Off a Cliff," which provides an issue-by-issue critique of the bill, with specific language from the bill's text, and also includes links to relevant Supreme Court cases and other sources, as well as some of my own commentary.

JURISDICTION

"Enemy Combatants: A dangerously broad definition of 'illegal enemy combatant' in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted . . .

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence. . . .

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial." [New York Times]

The Times' editors are definitely right when they call the bill's definition of "unlawful enemy combatant" extremely broad. The bill defines "lawful enemy combatants" as individuals who: "(A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States." [PDF: S.3930, p. 2]

The "unlawful enemy combatants" category includes: "(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." [PDF: S.3930, p. 35]

This means that those who provide financial or other material support to terrorists can be named unlawful enemy combatants, and that detainees who have already been named unlawful enemy combatants are grandfathered in. And, as the New York Times points out, noncitizen legal residents of the United States and foreign citizens residing in their home countries can be detained as unlawful enemy combatants under the bill, detained infinitely without appeal, and the President can decide who fits this description.

Under the precedent of Hamdi v. Rumsfeld, U.S. citizens cannot be detained as unlawful enemy combatants without being put on notice of the charges against them, and being given the right to challenge their detentions before an impartial judge (habeas corpus). While the Hamdi majority's holding was limited to "citizen-detainees," four of the justices agreed that habeas corpus should be extended to "alleged enemy combatants" generally.

The Military Commissions Act's definition of unlawful enemy combatants does not exclude U.S. citizens, but it does respect the Court's prohibition on stripping U.S. citizens' habeas corpus rights, stating that only noncitizen unlawful enemy combatants will be subject to the military commissions. Therefore, if the President names a U.S. citizen as an unlawful enemy combatant, as he did in the Jose Padilla case, the detainee would presumably have access to American courts.

The bill's denial of habeas corpus and judicial review to detainees could threaten its legality. Sen. Arlen Specter, chairman of the Senate Judiciary Committee, defended his vote for the bill by saying that it had several good provisions, and that "the court will clean it up" by striking the habeas corpus provisions. [Seattle Times]

EVIDENCE

"Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses . . .

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence." [New York Times]

It is embarrassing that the bill allows coerced evidence to be used at all. That said, the justification for this exception - that before 2005, military interrogators had no notice that their actions would be declared illegal by the Detainee Treatment Act - is a pretty solid legal argument, even if it is not much of a moral argument.

The "secret evidence" the Times refers to is evidence protected by the bill's provisions which allow military judges to keeps portions of evidence classified in cases where declassification would compromise national security. To some extent, the Times is misstating the nature of this aspect of the bill, because the editorial suggests that the evidence introduced in the military commissions will be kept secret as a general rule.

Instead, detainees' lawyers have access to all evidence unless it falls into the national security exception, in which case judges can authorize the introduction of summaries of classified evidence, or statements of relevant facts taken from classified evidence, in lieu of the actual classified evidence. For example, if the evidence that supports a terror conviction comes from a key CIA informant working within a terror cell, the judge can black out the individual's name and other identifying characteristics, and a summary of the relevant facts will be introduced.

At the same time, the national security exception to declassifying information has been interpreted extremely broadly, and it is not hard to imagine prosecutors abusing these exceptions in a worst-case scenario. Moreover, the bill assumes that military judges presiding over the commissions will be sufficiently impartial to keep the process fair. Even assuming that the military judges carry out the commissions in completely impartial manner, one has to wonder whether the system will appear fair enough to earn the confidence of the American people, the rest of the civilized world, and most importantly, the Supreme Court.

TORTURE

"The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published . . .

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture." [New York Times]

This is probably the most confusing aspect of the bill. According to Graham, McCain, and Warner, the bill ensures that U.S. military interrogations will abide by the Geneva Convention's prohibitions on torture. However, instead of banning violations of the Third Geneva Convention generally, the bill bars only "grave offenses" of the types of abuse barred by the treaty, by adding specific enumerated offenses to the War Crimes Act.

The War Crimes Act, which was passed in 1996, subjects US agents and troops who commit "grave breaches" of the Geneva Conventions to punishment in the form of fines, prison sentences (including potential life imprisonment), and, in cases where the war crime caused death, death sentences. The nine "grave offenses" of the Geneva Conventions the bill adds to the War Crimes Act are: torture, cruel and inhuman treatment, biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages. [PDF: S.3930, p. 35]

The bill defines torture as "[t]he act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind." [PDF: S.3930, p. 28]

The legal term "severe physical pain or suffering" is defined as "bodily injury that involves (i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty." [PDF: S.3930, p. 28]

The definition of "severe mental pain or suffering" is taken from definition of torture in the federal criminal code: "prolonged mental harm caused by or resulting from: (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality." [Title 18, Section 2340]

While the Military Commissions Act does not specifically enumerate many of the most controversial torture methods, the Times' contention that the definition of torture is too narrow is debatable. According to Elisa Massimino, the Washington director of Human Rights First, the negotiations over the bill's torture provisions made it clear that the senators' legislative intent was to ban activities such as "waterboarding" (simulated drowning), which would presumably fall under "threat of imminent death" prong. Massimino said that "[t]he senators made clear that waterboarding is criminal . . . That's a human rights enforcement upside." [New York Times]

I am not sure what the Times' editors are talking about when they write that "[r]ape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex." The rape provision added to the War Crimes Act seems pretty broad to me, defining it as "[t]he act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object." [PDF: S.3930, p. 35] This would seem to cover the "fluorescent light bulb incident" which occurred at Abu Ghraib (and which does not require much further elaboration).

Similarly, the sexual abuse provision seems broad enough to cover most of the sex abuse which occurred at Abu Ghraib, such as the forced masturbation incidents: "The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact." [PDF: S.3930, p. 35] (For more on the neocons' bizarre, and somehow underreported, obsession with using homosexuality as a weapon against straight detainees, see my post "Conservatives for gay sexual abuse").

The Times editorial also claims that "[t]he bill would effectively eliminate the idea of rape as torture." Well, it is true that the bill does not classify rape under torture, but that's because it classifies rape as a separate "grave offense" to the Geneva Conventions, making it a war crime which carries a potential life sentence.

While I disagree with some aspects of the Times's assessment of the Military Commissions Act's anti-torture measures, I agree that one crucial part of the bill could limit its impact. Without question, the worst aspect of the bill is a provision which gives the President to power "to interpret the meaning and application of the Geneva Conventions" through Executive Orders. [PDF: S.3930, p. 33] The bill goes on to state that the Executive Orders will be authoritative, except as to the nine enumerated "grave breaches" of Article 3, which the President cannot override.

The three senators have defended the provision by saying that it does not grant the President any powers beyond the executive's Constitutional power to interpret treaty obligations. [Wall Street Journal] In that case, why did it need to be written into the law? Given President Bush's unprecedented use of signing statements to bend the meaning and effect of laws Congress has passed, it is fair to assume that his administration will attempt to exploit this provision to minimize the bill's impact.

CONCLUSION

Most of this post has discussed the specifics of the Military Commissions Act. In my view, the bill represents an important step forward on the torture issue. The nine "grave offenses" of the Geneva Conventions, which the bill adds to the War Crimes Act, seem to contain broad enough language to prevent many of the worst kinds of treatment we have seen at Abu Ghraib and Guantanamo. Moreover, Graham and McCain were genuinely outraged by Abu Ghraib, and I do not believe that they would have conceded much to the Bush administration's lawyers on the torture issue. The fact that Human Rights First believes that the "grave offenses" will extend to waterboarding and other similar interrogation methods supports this view.

As for the habeas corpus issue, I do not think it was realistic to expect that the bill would grant habeas corpus to noncitizen detainees. Some observers assumed this was a "concession" by the Republican senators, but as discussed earlier, Graham has consistently said that he opposes habeas corpus for noncitizens. Moreover, only four of the nine Supreme Court justices have endorsed the view. And since Hamdi, Justice O'Connor, one of the four who supported habeas corpus for noncitizen detainees, has been replaced by Justice Alito, who holds an extremely broad view of executive power and has as an ultraconservative record on civil rights. Finally, the major historical cases involving the question, such as Eisentrager, have found that the Constitution does not grant habeas corpus to noncitizen enemy combatants.

For the above reasons, I do not know why Sen. Specter is so sure that the Court will strike the provisions denying noncitizens habeas corpus, but as chairman of the Senate Judiciary Committee, his opinion is worth listening to. Legal issues aside, my personal view is that granting habeas corpus to noncitizen enemy combatants would improve the legitimacy of the military commission system, and frankly, I do not believe that there is much of a risk of the American federal court system becoming a "Get out of jail free" card for dangerous terrorists.

But the bill's most significant implication on American policy will probably not involve the specific details of the prohibitions on torture, or how the commissions are conducted. Instead, we have to look at the bigger picture. The fact that Congress has passed legislation authorizing military commissions removes one of the major legal roadblocks the President's foreign policy has enountered, which is that the Executive Office has often acted without Congressional authorization.

The President and Congress hold a shared responsibility for defending the Nation. In his landmark concurrence in the Youngstown case (1952), Justice Jackson divided Presidential actions into three basic categories. When a President "acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . ." At the other end of the spectrum, when the President "takes measures incompatible with the expressed or implied will of Congress, his power is at his lowest ebb . . ." When the President acts in the absence of a Congressional grant or denial of power, there is a "zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."

In the Hamdan v. Rumsfeld case, the Supreme Court rejected the Bush administration's argument that the Authorization for the Use of Military Force granted the President implied authorization to prosecute terrorists in military tribunals. Now Congress has responded to Hamdan with the Military Commissions Act, which provides express authorization for the tribunals, and could be interpreted as providing implied authorization for other ancillary activities related to the tribunal system. Whenever the President's antiterrorism policies come before the Supreme Court again, this bill could provide what the New York Times has called a "crucial advantage" to the administration. [New York Times]

New York Times editorial: "Rushing Off a Cliff" [New York Times]
Graham-McCain-Warner: "Look Past the Tortured Distortions" [Wall Street Journal]
Times news analysis: "Detainee Bill Shifts Power to President" [New York Times]