For the Record: You Can't Be Serious~

 

Still from The Manchurian Candidate, 1962.

Special counsel office working to wipe away the charges against Trump before January 20, including the ones about him stealing classified documents from the government, lying about them, refusing to give them back, conspiring to hide them from the FBI, showing them to hotel guests...

— Yastreblyansky (@yastreblyansky.bsky.social) November 8, 2024 at 10:12 PM

Then on January 20 he gets a new security clearance! Is that wild or what? We can't have a trial to find out whether he's guilty of espionage or not, because that might interfere impermissibly with his ability to perform his official duties. We just have to give him the chance to do it again!

— Yastreblyansky (@yastreblyansky.bsky.social) November 8, 2024 at 10:19 PM

That's in spite of the fact that we already know perfectly well he did it. I mean the polite thing is to say he's "innocent until proven guilty", but have you looked at the indictment? Have you looked at his sorry excuse for a defense? "Oh I secretly declassified them all!" I don't think so.

— Yastreblyansky (@yastreblyansky.bsky.social) November 8, 2024 at 10:25 PM

A Government of Lulz, Not Men

 

Halloween costume by Skeleteen.

As we know, when president-elect Trump left the White House in January 2021, he took a lot of stuff that did not belong to him, but to the National Archives and Records Administration, as provided in the Presidential Records Act, according to which all records of a presidential administration are the property of NARA when the administration ends (with a few exceptions for personal stuff), and brought it to his business/home in Palm Beach, where he kept the boxes in various locations, including a storeroom, a bathroom, his own living quarters, and even on a ballroom stage. 

It's not clear how much stuff altogether Trump stole; NARA's first estimate, when they wrote to demand it back in May 2021, was "two dozen boxes". Trump, after eight months of denial and stalling, sent them 15 boxes in January 2022, but it soon became clear to NARA that there was more that he hadn't returned (including famous things like the love letters from Kim Jong Un and the hurricane map he altered with his Sharpie to prove he wasn't bullshitting when he told the nation the storm was heading for Alabama, though that was an obvious forgery and he plainly was bullshitting). Also, in the 15 boxes they got, 100 documents, 700 pages in all, were classified, which got the FBI more seriously involved in the case (it might be case of violating not only the Presidential Records Act, but also the Espionage Act, especially if Trump went around showing them to people, or moved them around to hide them from the FBI, both of which it turned out he definitely did), to the point where they searched the Florida property in August, and found some 11,000 stolen documents in maybe 22 more boxes altogether, including over 100 more classified documents, some with top secret and higher classification. Finally, that November, the attorney general named a special counsel, Jack Smith, to look into the matter of whether the ex-president had violated any laws, and after a seven-month grand jury investigation Smith decided he had, and issued a criminal indictment in June 2023. The indictment didn't mention the tens of thousands of non-classified documents that should have been given to the NARA—LOL, nobody in Washington cares if you steal stuff from a library, apparently—but he was charged, along with a couple of employees, with 37 federal crimes involving the classified documents, illegally retaining them and conspiring to obstruct justice in the government's effort to get its property back from the thief. All this really happened.

Meanwhile, Smith, in parallel with a special committee in the House of Representatives and the district attorney of Atlanta, Georgia, had also been investing Trump's conduct around the same time, after Joe Biden was elected president in November 2020, when Trump worked with a host of confederates to stop Biden's accession to office, with a combination of failed legal moves to cast the election in doubt, outright extortion, fraud, and conspiracy to change or fake the results, and ultimately violence in the riotous invasion of the US Capitol led (or pushed) by Trump-linked paramilitary groups, on January 6 2021. 

All this really happened too, as you know, and led to serious legal consequences for many of the people involved. In the Georgia case, which focused on Trump's efforts to get the state's election authorities to falsify the election results there in his favor (as also, in varying degrees, in Arizona, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), it led to racketeering and other charges against Trump and 18 other defendants, among whom Georgia bail bondsman Scott Hall, Justice Department lawyer Kenneth Chesebro, and Trump personal lawyers Sydney Powell and Jenna Ellis have already pleaded guilty. In Washington, the January 6 insurrection has led to charges against more than 1,400 people, among whom at least 629 have pleaded guilty and another 300 or so have been convicted at trial so far (and two defendants, Wikipedia adds, have been acquitted of all charges). A lot of crimes were committed, and Trump was deeply involved in all of them.

But Trump himself has escaped all consequences. Not that he's innocent, or makes any serious claim to be innocent; he often claims, without evidence, that the 900 convicted January 6 defendants are innocent (even though most of them have pleaded guilty) and that those in prison are "political prisoners", but he offers no fact defense at all on his own part. His legal defense is based entirely on strategies of delay, legalist quibbling, judge-shopping (to judges who owe him their jobs, including the three "conservative" Supreme Court justices he nominated, half of an invincible majority if they refuse to recuse themselves, which they always do), intimidation and threats against judges and prosecutors and their families that would mean immediate jail for contempt for any other defendant, and endless appeal, and he's managed to avoid trial up through the 2024 election.

That is, not entirely: he's lost his company's criminal case in New York for bank and tax fraud, and a parallel civil case in which he was ordered to pay $450 million, which is still under appeal, so we can call him an adjudicated fraud, and he's lost E. Jean Carroll's civil case against him for defamation, for another $88 million or so making him additionally an adjudicated rapist, and he's got 34 felony convictions for falsifying business records in hiding Michael Cohen's hush money payments to Stormy Daniels in the 2020 campaign and his reimbursements to Cohen after his inauguration, for which he's to be sentenced on November 26. LOL, nobody cares about that either, and he'll appeal in any event. He'll never pay for that crime, and none of them cost him votes.

Trump was an openly criminal president from the day he took office, as I've been explaining since April 2017 with reference to that illegal hotel lease and the unconstitutional collection of foreign emoluments; and the main reason he's gotten away with it is that nobody is prepared for that, and nobody knows how to deal with it, even after eight years. It's not normal for presidents to break the law or violate the Constitution, and we don't have a mechanism for dealing with it. 

James Comey's and Robert Mueller's efforts to pin down a case against his collaboration with Russian intelligence in the 2016 campaign didn't quite add up to a case, obvious though it was that he'd been doing it (and it does add up to a case since the Senate's investigation was published in 2020, but no prosecutor had the stomach to try it), and while Mueller worked up an excellent case against Trump for obstruction of justice, that couldn't be prosecuted either, and not just because Attorney General Barr chose to join in the obstruction—there's that memo from the Office of Legal Counsel stating that indicting a sitting president would impermissibly interfere with his ability to carry out his duties, and practically everybody insists this has the force of law, even though it obviously doesn't. As Walter Dellinger wrote at Lawfare in 2018, there are six competing memos and briefs on the question, and it's not obvious that they even have a consistent message:

Consider the 1973 OLC memo stating that a sitting president should not be indicted. Far from being authoritative, it was essentially repudiated within months by the Justice Department in the United States’ filing in the Supreme Court in United States v. Nixon...Richard Nixon was so named in the Watergate indictment, and that inclusion was sustained by Judge John Sirica and defended by the United States...

Why would you even want a criminal president to carry on with his duties?

Of course there is supposed to be a specific remedy for that. The idea of the Constitution is that it should be dealt with by impeachment, anyway, but this turns out to be a partisan matter; Trump couldn't be impeached for anything until after the 2018 election gave us a Democratic House to do it, and Speaker Pelosi didn't want it to happen (not that she imagined Trump wasn't a criminal, but she thought it was bad politics), and when they finally managed, first over the smoking-gun evidence of Trump's effort to extort campaign help from the president of Ukraine, then over the January insurrection, the Republican Senate was unable to convict. (They came pretty close in the second case, with a majority of 57 to 43, including seven Republican senators, but they needed 67. Majority Leader Mitch McConnell voted to acquit, although he had said that "there is no question that President Trump is practically and morally responsible for provoking the events of that day...a mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.") Then, in the final insult, Chief Justice John Roberts ruled in Trump v. United States that it is unconstitutional to indict a president or ex-president for acts committed while he is acting in his official capacity. We don't know quite how far that extends. 

All these things really happened, but they didn't stop Trump from getting reelected on Tuesday. The price of butter is still kind of high, and on the reality side credit card interest rates are genuinely usurious (if you think Donald Trump is going to do a better job of lowering your credit card interest rate than a Democratic government getting its banking advice from Senator Elizabeth Warren, you deserve to be paying 23%, but I don't. Sweet Jesus.)

One of the most important things about the Jack Smith cases was that trying them would explore how far that insane new immunity rule can really be carried, but we aren't going to find out: the cases are going away, apparently, as well (we don't know about Georgia yet), even though we all know he's guilty of the crimes (including the less ignorant among the Republicans, who think it's funny, the fuckers—LOL, nothing matters), because Trump will be a sitting president (couch potato–in-chief) again before the trial can be held, a criminal president once again, for four more years of supervising his racketeering operation and watching out for his personal interests and funneling government money into his businesses and promoting his family and minions and grifting money out of his supporters for his lawyers and all the impulsiveness and ignorance and venality that characterized his first term endangering our human rights, our economy, our national security, and our planet. 

As I was typing through that last bit President Joe Biden came on the radio, as Kamala Harris did yesterday, for one of the inevitable unity rituals, congratulating Trump and offering his help in the peaceful transfer of power (the rituals Trump refused to participate in, committed as he was to the lie of the stolen election), and urging us all to stay calm and hopeful, because we're American, and I get that, I really do. He's still working, at the last minute, for the restoration of the norms that Trump smashed to pieces. He's showing Trump how to behave, though there's no chance Trump will learn. It has to be done. All the foreign leaders and all the legislators and governors here will try to do the same. They'll be doing it to protect us, because they don't want Trump to do anything crazy out of pique or rage, and they'll be doing it because they really care about the norms.

I really get it, but I was brought up with the slogan that we should have a government of laws, not men. I understand that's never been perfectly true and probably never would be, but I feel in elevating this lawless man and his minions to the highest position a second time, helplessly (we can't do otherwise), after we've learned so much more fully what he is, we are irretrievably losing—throwing in the trash—the aspiration the slogan represents.. 

Official Proceedings

Joseph Fischer in the Capitol, via LebTown.com.

Following the reporting on the arguments in the Supreme Court on behalf of Joseph Fischer, a cop from Lebanon County, Pennsylvania, who had already started driving home from Trump's Stop the Steal rally on 1/6/20 when he heard on the radio about the crowd gathered around the Capitol and turned his car around to join the fracas, and made it as far as the East Rotunda where he turned on his phone's video recorder, yelled "Charge!" and went at a group of Capitol police who pepper-sprayed him as he slid to his ass on the slippery floor and into their line, and then hustled him back out of the building.

This behavior, while plainly illegal, did not do a lot of harm: it was already 3:24, well after the congressmembers had fled, and he was only there for about four minutes. How he became one of the 300-odd January 6 defendants, including former President Trump, to be charged with a felony count of "obstruction of an official proceeding" is something else, the insurrectionary violence of his intentions, as revealed in a series of texts and Facebook posts from before and after the riot: 

Vivisecting Section 3

I'm still kind of dubious about the magical qualities of the 14th Amendment Section 3, as I was back in September, but I should add that I'm a lot more impressed than I was expecting to be by the case Colorado's Supreme Court makes for reversing the original district court ruling, which had concluded that Donald Trump did indeed "engage in" an "insurrection" against the United States, but 14/3 didn't apply to him, because as president he was not an "officer under the United States", as the Amendment specifies:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

The president isn't an officer? Even though he holds the Office of the presidency and swears to execute the Office faithfully when he is inaugurated and can be removed from Office if he's impeached and convicted? Not to get all originalist on you, but that's what "officer" meant in the 18th century, what we more often call an official, somebody who holds an office in an organization, and of course the president of the United States is one. Imagine a law that removes all the other officers, in Congress or the judiciary or the civil service, it they've taken part in a rebellion against the government, but doesn't disqualify the big cheese? That won't let Lieutenant Henry Numbnuts of the former Confederate Army serve as a section head in a customs office, but it's OK for Jefferson Davis to be president? No.

And so the Colorado Supreme Court reversed that, unsurprisingly, but there was no reason to mess with the main part of the decision, which was very solid, and it's intact in the new ruling. Unless you were working on such a tight deadline that you didn't have time to read it, as apparently happened to Jonathan Chait:

Our McGyver Constitution

Illustration by George Cruikshank, via.

Once upon a time there were three brothers, the youngest one called America, and one day America was out in the forest chopping wood, and when he knocked off for a lunch break, bread and cheese and a pint of beer, a little man appeared next to him looking hungry. So America shared his lunch with the little man, and when they were done the little man said, "Hi, I'm Jemmy Madison, and if you dig under the root system of that sugar maple over there you'll find a nice little gift from me, in thanks for your hospitality," and wandered away.

So America dug, and sure enough there was a whole Constitution, stuffed with stuff America would be able to use when he went out to seek his fortune! I won't tell the whole story of how many scrapes that Constitution got him out of (I will note that the oldest brother Britannia said, "I don't need no stupid constitution" and the middle brother Francia said, "One lousy constitution? I'm going to need at least five!") but in the climax, when he's been all but defeated by a treacherous and tasteless orange-faced villain, when he thinks of looking for help one more time in the good old Constitution, and it turns out there's this little apparently useless trinket right there in the 14th Amendment, Section 3, that says or at least suggests it's illegal for treacherous villains to run for president, so hahaha, Mr. Orange-Face, you cheated last time around so this time you're not allowed to play! Go eat salted dicks!

I'm not sure what I hate most about this latest please-God-save-us-from-Trump proposal, but it's probably the idea that we can get rid of Trump without doing any work—that there's this little totally scientific doohickey in our McGyver Constitution toolbox that does it for us, automatically, for free. As if that's what a constitution were, a collection of old screws from old projects for which a use might turn up some day.

Or maybe it's the suddenness with which the legal eagles have developed this concern for the constitutionality of Trumpery:

Teh Stupid It Burns

 

Image by Lightspring/Shutterstock via Psychology Today.

I can't get over how bogus this whole Texas Mifepristone case is, from start (the lawsuit was originally filed by a group calling itself the "Alliance Defending Freedom", because nothing spells freedom like getting the state to block women from taking control over their own bodies) to finish. 

The five (5)  pieces of by now completely outdated research the anti-abortion faction has been pulling out of its briefcases for the last 23 years to "prove" Mifeprestone was dangerous didn't prove anything of the kind, The New York Times reported in an exhaustive report covering over a hundred (100) different up-to-date studies on Friday:

The Village Lawyer

 

The Village Lawyer, by Pieter Breughel the Younger, 1624, Web Gallery of Art:, via Wikimedia Common.

Emptywheel gives a pretty clear legal account of the foreground lies the key passages from the memo Bully Barr commissioned from his office to "advise" him not to charge Trump with obstruction of justice (i.e., the advice he'd ordered up from them)

To our knowledge, the Special Counsel's investigation of potential obstruction is not similar to any reported case that the Department has previously charged under the obstruction-of- justice statutes. The Report identifies no obstruction case that the Department has pursued under remotely similar circumstances, and we have not identified any either. Of course, any investigation concerning the President would be exceptional, but the President is hardly the only public official who could be subject to investigation. The Department has investigated the potential misuse of official authority, including the obstruction of official proceedings. in a host of different circumstances. 

The Special Counsel's obstruction theory would not only be novel, but, based on his own analysis, it would also be unusual because Volume I of the Special Counsel's Report is conclusive: that the evidence developed “was not sufficient to charge that any member of the Trump Campaign [including the President] conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.” Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving the President toward which any obstruction or attempted obstruction by the President was directed. It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime. Moreover, much of the President's potentially obstructive conduct amounted to attempts to modify the process under which the Special Counsel investigation progressed, rather than efforts to impair or intentionally alter evidence (documentary or testimonial) that would negatively impact the Special Counsel's ability to obtain and develop evidence.

Volume I couldn't be "conclusive" on all the possible Vol. I cases, she explains, because the investigation of at least one of Trump's associates, Roger Stone, over his evident involvement in the Russian hack of the Democratic emails. was still going on at the time. And yet...

We Are Not a Lawyer

WNYC's Brian Lehrer on the radio yesterday morning, previewing the hearing, reminding us as a "devil's advocate" that Trump asked his audience in the Ellipse speech "to peacefully and patriotically make your voices heard" in their march on the Capitol, so maybe his intentions weren't violent at all, and I felt I needed to send him a tweet, as I do from time to time:

@brianlehrer the "peacefully and patriotically" line was probably written by Stephen Miller--trademark alliteration. The "fight like hell" language was Trump's own improvisation.

— Woke Mob For Constitutional Right to Choose (@Yastreblyansky) July 12, 2022

Well, Brian never responds to my tweets anyway, but I got something better than that in the afternoon; a fairly vivid account of how my speculation was exactly right, featuring Miller himself, on videotape, telling the January Six committee how he drafted the speech, with Trump demanding the insertion of denunciations of Vice President Pence, and Miller trying to pull them back out on the advice of counsel, in Rep. Stephanie Murphy's retelling:

Deep in the Dark of Texas

 

Wendy Davis, ready to run, via KTSA TV.

Maybe the most personally infuriating thing to me about the current flurry of state anti-abortion legislation is its open contempt for the rule of law: I mean these mean-minded, pinched and intolerant people, so ready to judge others for the slightest deviations from their own idea of propriety, passing laws that are flagrantly illegal according to settled law (as the members of a Supreme Court majority from Roberts through Kavanaugh and Barrett have maintained in their confirmation hearings). 

The "trigger laws" in something like 20 states from the previous wave were designed to take effect only after such a time as Roe and Casey are overturned, should that happen (I'm not convinced it will, at least this year, though they'll undoubtedly continue working to cripple abortion rights around the edges). The current wave, in Mississippi and Florida and Oklahoma and wherever else, is as if the law doesn't even exist; it's pretty much as if they passed a law legalizing slavery, or denying women the right to vote. Saying, as they do, that it might be constitutional soon, after the Court rules on the Mississippi law, doesn't cut the mustard: it's unconstitutional now, and they know it.

And the Texas law, the infamous SB8, is the worst of all, with its sly legalism in the provisions designed to prevent the Court from considering it—since the state is not enforcing the law, simply inviting bounty hunters to enforce it privately by suing anybody who assists in providing patients with abortion services in the state, for $10,000 in punitive damages, nobody has standing to sue the state, as decided just last week. 

Green Lanternism

 

I've never been an aficionado of the Green Lantern, and one of the things I didn't know about him, or them, since there is apparently a whole Green Lantern lineage, sometimes coexisting in an intergalactic Green Lantern Corps managed by the Guardians of the Universe, was this thing in the earlier phases of development in which his magic power ring didn't protect him from attacks with wood, or vegetable matter in general. This is blamed on the very first Green Lantern, or first one on Earth at any rate, in ancient China, one Yalan Gur. Wikipedia explains,

Power ultimately corrupted this early Green Lantern, as he attempted to rule over mankind, which forced the Guardians to cause his ring to manifest a weakness to wood, the material from which most Earth weapons of the time were fashioned. This allowed the Chinese peasants to ultimately defeat their corrupted "champion". His ring and lantern were burned and it was during this process that the "intelligence" inhabiting the ring and the lantern and linking them to the Guardians was damaged.

And the ring and lantern retained this wood vulnerability when they were picked up by the original American Green Lantern, Alan Scott, but it didn't transfer to his successors, beginning in 1959 (Hal Jordan's lantern was vulnerable to the color yellow instead, and the entire topos of Kryptonite knockoffs eventually disappeared from the series).

This story sheds a whole new light on the Green Lantern Theory of the Presidency, a popular myth discovered by Dartmouth professor Brendan Nyhan, as Ezra Klein reported it in Vox in 2014:

For the record: Ranting at Alan Dershowitz, Man of Hackery

That was six weeks ago when Trump was leaking Israeli intelligence secrets to the Russian foreign minister, which is way worse than running a criminal conspiracy to bend the entire government to your reelection effort or launch a war on the basis of doctored intelligence. But apparently Bibi said it's OK so it's all good now.

You misunderstand the situation, and the Constitution, which references "high crimes and misdemeanors" because statute is hard to apply.

— Yastreblyansky (@Yastreblyansky) July 1, 2017

When president evidently appoints new GSA head and orders him to reinterpret the lease of Old Post Office just so he can make more money...

— Yastreblyansky (@Yastreblyansky) July 1, 2017

and statute law has no way of stopping him, we're in a bizarre new world and we need to experiment with the law. https://t.co/2bip3iwfjv

— Yastreblyansky (@Yastreblyansky) July 1, 2017

Artisanal Legal Documents

"Fuck the emoluments clause" says scofflaw @realdonaldtrump https://t.co/V0yR6K5bT9 "You'll just have to trust me."

— (((Yastreblyansky))) (@Yastreblyansky) December 8, 2016

The Times story, which showed up on their website at 8:00 or so last night, was a report on the ongoing planning for how the president-elect is going to put himself beyond suspicion of self-dealing to the benefit of his far-flung business holdings when he's running the country, which is, surprise surprise, not at all. He and Grand Duchess Ivanka will simply go on leave of absence from their respective positions in the Trump Organization, leaving Grand Dukes Donald and Eric to mind the store.

This will make it self-evidently unpossible for anybody to bribe the president by, I don't know, feeding money into one of his hotels, because why exactly?

Annals of derp: Canon balls

Giovanni Venanzi of Pesaro, 1688: King Solomon being led into idolatry by his wives. Via Wikipedia.

Monsignor Ross Douthat, Apostolic Nuncio to 42nd Street, demonstrates once again that he's just not that good at theology and canon law, in his allegations of a "conspiracy" on the part of old Francesco to "rewrite" Catholic doctrine with regard to the policy of allowing divorced-and-remarried Catholics to take communion:

Francis’s purpose is simple: He favors the proposal, put forward by the church’s liberal cardinals, that would allow divorced and remarried Catholics to receive communion without having their first marriage declared null.

...if his purpose is clear, his path is decidedly murky. Procedurally, the pope’s powers are near-absolute: If Francis decided tomorrow to endorse communion for the remarried, there is no Catholic Supreme Court that could strike his ruling down.

#BlackLivesMatter, still

Samuel Dubose, via NBC.

Something that struck me this morning from the NPR coverage of the murder of Sam Dubose, the Cincinnati man who was being busted for a missing front license plate and ended up getting shot to death because a cop felt insufficiently respected, enough that I ended up transcribing it off the audio; an interview with the head of the national Fraternal Order of Police, Jim Pasco, objecting to the murder charge against the cop, toward the end of the segment:

the ground has shifted let's face it prosecutors are sensitive to the mood of the community

it goes to show that to whatever extent people thought that prosecutors were necessarily going to protect police officers couldn't be more wrong in fact in this case it doesn't appear that he is willing to give him the presumption of innocence

White House Fool Report: Ugh, lawyers

Barrel pillory, from Deadly Planet.

Hey Mr. President, you wouldn't be airing out the linens and dusting up the old black sites and revving up the racks and thumbscrews for a spin, by any chance? Because Charlie Savage is reporting in the Times that

President Obama’s legal team is debating whether to back away from his earlier view [on the United Nations Convention against Torture]. It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.

Legalism Watch: Syria

Paolo Uccello, Battaglia di San Romano (ca. 1435-60)

When they tell you that the air campaign against Daesh forces in Syria (yes, I got tired of calling it the "Caliphate") is illegal, we need to keep in mind that that doesn't mean it's illegal like the 2003 invasion of Iraq, as a serious breach of the United Nations Charter; what they're talking about is in the first instance this:

Legalism: No foul, no harm

Spoiler alert: I'm going to be working my way down to Obama here, but it's going to take a while...

Antonin Scalia. "The law is the true embodiment/Of everything that's excellent./It has no kind of fault or flaw,/and I, my lords, embody the law."

As everybody knows, in August 2009, when the Supreme Court ordered a Georgia judge to examine evidence that Troy Davis, convicted of murdering an off-duty police officer in 1989, was innocent, Justice Antonin Scalia dissented on memorable grounds:

Clarifying an Argument

Clarifying an Argument
Very useful post by Erik Loomis on Greenwald's dishonesty. Speaking of clarifying arguments, I just figured out why it bothers me that Greenwald's case against Obama relies so heavily on reminding us that Aulaqi was an American citizen. It's the implication that if the drone program just killed foreigners that would be OK. Or maybe not quite right but not as bad.

To me it's exactly as bad. Nobody should ever have a missile dropped on their head for any reason at all. If there's anything that mitigates the badness, it is when the victim of the attack is an active belligerent. It is not anything to do with the victim's passport.

I think I disagree with Obama on who needs to count as an active belligerent, or how often those missiles need to be dropped, but I agree with him on the basic moral framework here. I think Greenwald's moral framework is perverted and fascist repulsively legalistic.

Our Robot Future. From Animal New York.

Brennan curiosity

MacLeod Cartoons, via In Medias Res.

What Wyden asked (clipped from discussion at Crooks & Liars):

SEN. RON WYDEN: ...What do you think needs to be done to ensure that members of the public understand more about when the government thinks it’s allowed to kill them, particularly with respect to those two issues, the question of evidence and the authority to use this power within the United States?

JOHN BRENNAN: I have been a strong proponent of trying to be as open as possible with these programs, as far as our explaining what we’re doing. What we need to do is optimize transparency on these issues, but at the same time optimize secrecy and the protection of our national security. I don’t think that it’s one or the other. It’s trying to optimize both of them. And so, what we need to do is make sure we explain to the American people what are the thresholds for action, what are the procedures, the practices, the processes, the approvals, the reviews. The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn’t mean that we operate at those out of boundaries. And, in fact, I think the American people will be quite pleased to know that we’ve been very disciplined, very judicious, and we only use these authorities and these capabilities as a last resort.

What Wyden didn't ask: So, uh, what's stopping you?

I'm pleased to hear that Father Brennan thinks I'll be pleased to know how disciplined and judicious they've been, but not sure I'll be as pleased as he thinks I'll be. Or whether what he regards as a last resort is the same as it would be for me. Do they have a sequence of steps they follow, beginning with a warning letter? (Dear Sir, Our current information indicates that you are a paid-up member of Al Qa'eda in the Arabian Peninsula. Please either provide evidence to the effect that you are not currently an imminent threat to the United States or its interests. Failure to respond will be regarded as unfriendly and may lead to adverse consequences for you, your family, your house, and any persons or animals who visit you. Also we would advise you to stay out of motor vehicles.)

It's humiliating to say, but I can't sustain any interest in the legal justifications at all—though I was very much intrigued by Emptywheel's suggestion that the recently "leaked" White Paper seemed to be cobbled together out of different sources, those that found the President's authority to conduct targeted assassinations in the Authorization to Use Military Force of September 2001 and those that found it in Article II of the Constitution (acting without congressional authorization in the nation's self-defense). Perhaps they have inadvertently revealed the real secret of the memos: that they're embarrassing, inadequate, and incompetent.

What I'd really like to see is how the rules are put into action. It's the evening of January 23 and Rabae Laheb is out in a double-cab Toyota Hilux on the road from Marib to Sanaa with four Yemeni companions and one or two Saudis, or perhaps a driver, Saleem Muhammed al Qawili. Laheb has been reported dead before, in a drone strike of last November, when Yemeni army colonel Adnan al Qadhi was killed (although he could easily have been arrested by local authorities and may not have been a militant at all). At 8:00 PM a drone passes overhead and four missiles fall out of the sky to hit them, completely destroying their vehicle and burning them all beyond recognition. Did anything happen in the White House? A blip floating across a screen? ("Old Laheb's on the road?" "I thought we killed that sucker six weeks ago!") Or is the White House finished once they've declared him an imminent threat?

Is there a team watching all Sanaa 24 hours a day on video screens somewhere, reporting who gets into a car and where they're driving throughout the entire city? Or is it guys on the ground following particularly those higher up on the list and calling home to say when a target is in a killable situation (i.e., not with wives and children or other non-imminent threats), and the video watchers (and the drone) take over from there?

And how do they know it's him? Especially given that he's supposed to be dead? Have they reopened his file on the receipt of new information? Is he tagged like a Wyoming wolf? (But if he's impossible to arrest, as he's supposed to be to get on the kill list, then he must be impossible to tag.) And how do they get confirmation? (Here in urban Yemen I can see it, but up in North Waziristan where the Pakistani troops themselves dare not move?)

And what about the cost-benefit analysis: How much harm has Laheb been doing, to Americans and American interests, how much since he went on the kill list, how much will have been prevented by his death? How much harm does his death do, how many friends or sons or nephews join the AQAP because of it, how many join some other party to the civil war because the government can't protect them. How many Yemeni doctors and teachers and civil servants will escape to some other country because they can't stand any more grief and terror, thus making Yemen a still more difficult place to live?

The vehicle Rabae Laheb was riding in. Yemen Observer via Bureau of Investigative Journalism.

You have any numbers on that, Father Brennan?

Eureka (2)

Daisy Buchanan, by Nicki Greenberg.

Tom Junod culminates his extraordinary and passionate series of Esquire essays on the Lethal Presidency with a proposed debate question that won't get asked and if it were wouldn't get answered tonight:

"President Obama, just over a year ago an American drone killed a 16-year-old American citizen named Abdulrahman al-Awlaki. Despite your personal involvement in America's targeted killing programs, you have never acknowledged nor addressed the circumstances of his death. How do you justify such secrecy under the United States Constitution and do you, Governor Romney, also believe that such secrecy is justified?"

I have a quibble with it that may be more than a quibble (full disclosure: it's related to my desire to feel happy when I vote for Obama next week, which I don't hide): Why is it that the crime here, or whatever it is, is assumed to be worse, constitutionally, when the bomb lands on a US citizen than otherwise? I mean, I understand why it makes us sick that the kid was only 16 when he was murdered, but why does it matter that he was an American? Aren't the Pakistani and Afghan and Yemeni kids murdered too? Do only Americans have rights under the US Constitution?

Because there's a certain feeling running around that this is the case: that it's OK to deny foreigners, or at least undocumented foreigners, medical care or schooling or driver's licenses, for example. In an Arizona-type law, the Fourth Amendment is suspended for anybody even suspected of being undocumented (being undocumented isn't a crime, so there isn't any probable cause for searching), and I think the Fifth as well: if a cop says, "Show me your papers," you can't very well reply that your lawyer says you don't have to. And US citizens now actually have, by edict of the Supreme Court, habeas corpus rights that noncitizens don't.

Legally, that's the way the cookie crumbles, but morally I think it is objectionable, and it seems like a poor interpretation of the Constitution as well. It trivializes these rights that we're all so proud of to say that they are in fact club privileges, restricted to those humans in possession of a certain piece of paper, whether it's Yaser Hamdi, who the government was forced to release from Guantánamo (saving face, they made him renounce his citizenship and sent him to his parents' homeland of Saudi Arabia) or Abdulrahman al-Aulaqi, who was droned to death in spite of his passport. To me, the passport doesn't mean a fucking thing next to the fact that he was just sixteen and a thing swept out from nowhere, from out of the sky, to kill him.

By the same token, however, it lets Obama to a degree off the hook. Because the Greenwaldish, legalist case against Obama ("He violated the Constitution!") hinges on the passport; if the passport doesn't matter, then killing Abdulrahman is just careless, it's what commanders-in-chief do—

they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made

—and it's the way of the world. Not that that's ever acceptable, but à la guerre comme à la guerre, we can live (and die) with it. Are you going to not vote for Roosevelt in 1944, or Lincoln in 1864? They were responsible for terrible things, things that bring shame on the entire human race. And of course we would vote for them—they're as good as it gets. And Obama the Lethal President is good enough in just that way and maybe a good bit better, anxious to make himself less and less careless, very earnest about reducing "collateral damage", i.e. careless murder, and working on it (though apparently unable to do so in Pakistan, where it's the CIA's drone force and not his).

Careless Maria. Illustration by Justin H. Howard, ca. 1870.

Maria was a careless child,
And grieved her friends by this:
Where’er she went,
Her clothes were rent,
Her hat and bonnet spoiled,
A careless little miss.

Her gloves and mits were often lost,
Her tippet sadly soiled;
You might have seen
Where she had been,
For toys all round were tossed,
O what a careless child.

One day her uncle bought a toy,
That round and round would twirl,
But when he found
The littered ground,
He said, I don’t tee-totums buy
For such a careless girl.