Thursday, June 24, 2004

Hey, I'm Just Bragging Because We're Doing It

While many Democrats are complaining about Ralph Nader--if you want chapter and verse, this Eric Altermann post is a good place to start--my partners and I are actually doing something about it. My law firm is suing Nader to knock him off the ballot in Arizona. There are a number of interesting legal questions in the case, and one really interesting political question--who are the Republicans going to pay to represent Nader to try to keep him on the ballot here? I'm not kidding. Nader may be under the total delusion that he'll take votes from Bush, but the Republicans sure don't think so.

Here's my partner Andy Gordon in today's ABC News The Note:

Yesterday two Arizona voters -- with the support of the Arizona Democratic Party -- filed a legal challenge to independent Ralph Nader's bid to get on a state's Nov. 2 presidential ballot. The suit states more than 70 percent of the 21,512 signatures Nader's campaign filed June 9 were defective. Nader needed 14,694 valid signatures to qualify him for the ballot. According to the suit only 6,045 are valid. Further, it alleges all the petitions should be thrown out because Nader named a "placeholder" as his vice presidential candidate and required paperwork was not filed with the nominating petitions. LINK and LINK

The Washington Post's Dan Balz and Hamil Harris point out that after largely ignoring Nader in 2000, Democrats have adopted a different strategy: taking him on. LINK

Andy Gordon, the attorney who headed up the pro-bono legal effort to file the Arizona suit, tells ABC News, when word of his project began to spread "calls came pouring in" to help. LINK

But Nader spokesguy Zeese says he and the campaign are not worried.
Watch this space for more news about Schultz v. Nader.
(Revised with additional links after initial posting.)

Monday, June 14, 2004

A Government of Laws, Not Men: Another Outdated Concept

It's time for "outrage about the outrage" on the right. You can hear them already, complaining that there's certainly been way too much attention paid to the fact that the Bush administration developed policies to minimize the definition of torture, and to expand its use, and that the administration believes that the president can do what he likes, regardless of statutes or treaties, because he says so. It's crowding out what's really important, you know. Why, the coverage is so over-the-top, and so taking attention away from what really matters, you might not have realized that Ronald Reagan died.

Newspaper version available here for a month or so.

East Valley Tribune, June 13, 2004

Thanks to the Bush administration and its lawyers, the North Vietnamese no longer have anything for which to apologize to Sen. John McCain. Sure, he suffered severe pain and outrageous abuse while a prisoner of war. But the Bush administration now says none of it constituted “torture.”

The Bush lawyers say that interrogators can inflict severe pain on a detainee, so long as there’s no clear intent to harm the prisoner on a long-term basis. But the Bush administration’s theory that “it isn’t torture if you really meant something else” (thereby creating a new category, “accidental” torture) apparently wasn’t disgusting enough. Their lawyers went further, claiming that interrogators can inflict severe pain with impunity unless they know for certain they’ve caused “prolonged” physical or mental effects. Maybe those broken bones heal soon enough that to Bush’s lawyers, it’s not actually torture.

But if those loopholes were still considered too restrictive, the Bush administration also claims that the Constitution doesn’t apply to the commander in chief in wartime. Never mind that there’s no declaration of war, or that this “war on terror” probably never ends; the Bush administration believes that a “war president” has an “inherent” power to ignore federal law and treaties. If George W. Bush says so, the United States can use torture.

Without any apparent irony, the Bush administration says that the president could instruct interrogators to torture suspects, and that in any prosecution, the torturers could beat the rap by claiming that they had to follow orders -- the “Nuremberg defense.” Who needs Michael Moore when the Bush administration cites the Nazis as justification?

Isn’t it nice we’re no longer ruled by moral relativists? Unfortunately, the key word there is “ruled.” The Bush administration believes that because we’re at war, Bush may be called president, but he’s really an emperor. I’m glad all you libertarians and “small government conservatives” (ha!) are comfortable with the Bush administration’s view of treaties, statutes, and the Constitution. Loss of our nation’s moral standing is but a small price to pay for getting rid of that terribly inconvenient “government of laws, and not men” folderol.

The legal memos make it clear that what we’ve seen in the Abu Ghraib prison photos wasn’t the work of a few “bad apples.” Instead, the top legal guns in the administration strained to create justifications for acts that, in the words of the Houston Chronicle, “are clearly beyond the bounds of a civilized nation.” The use of nudity and sexual humiliation; the use of personal medical records; psychological threats; the attack dogs -- all of it was approved and authorized by the Bush administration to “soften up” prisoners for interrogations.

The administration’s novel “intent” requirement also means that if we use amateur torturers, who conveniently don’t know what they’re doing, their ignorance gives them legal immunity unavailable to an “expert.” Maybe there’s a command-and-control reason the pictures we’ve seen involved an ill-trained Reserve unit. Under the Bush doctrine, amateurs have more leeway to torture than do pros. Their lawyers told them so.

Putting POW’s in cages, breaking bones, depriving them of food and medical care -- our government says what happened in Vietnam then is O.K. in Iraq and Guantanamo today, and our government’s lawyers will tell you how to get away with it. And if you’re caught, the Bush administration says the president can suspend the laws if he, and he alone, says the ends justify the means.

If the North Vietnamese had lawyers as “accommodating” as the Bush administration’s, who knows if John McCain would have had a future in politics? And in our next war, now our enemies know where to get their legal advice.

Friday, June 11, 2004

Selective Disclosure

My weekly column ran Thursday instead of Sunday, due to getting bumped for a debate on state trust lands on Sunday and then needing a couple days to tweak about 6 words to satisfy my editor. He's now calling for disclosure and a Congressional investigation of the Bush administration's "torture memos" (the subject of this Sunday's forthcoming column from me) so at least the Tribune is being consistent about disclosure. In a remarkable show of bitter partisan unity, Bob Robb at the Republic wrote today that the state grand jury report should not be released, so there's at least one principled small government conservative out there. But that's been about it.

The third paragraph in the column is my editor's; he rejected the contention that the paper was being inconsistent because it called for release of the state grand jury report but hasn't said anything about the federal investigations of the Bush administration. He said that I was attacking a straw man--until I noted that earlier this year, they'd run an editorial attacking all Democrats for not denouncing some remarks on the website. So I got the criticism back in, although not exactly how I would have phrased it.

Anyway, the newspaper version is available here, for about 30 days. Columns older than that are always available at (note: it works better without the "www").

East Valley Tribune, Jun. 10, 2004

If Republicans want grand jury testimony released in Arizona, what reason could Republicans have for not wanting to release grand jury testimony in Washington, DC?

With the hubbub over Rick Romley’s appointee turning a criminal grand jury into his own private investigation of the Lewis Prison hostage crisis, you could forget that a federal grand jury is investigating the Bush administration’s leak of a deep-cover CIA agent’s identity. If the public’s right to know means that grand jury testimony isn’t secret in hopes that it embarrasses a Democratic governor, why can’t we Democrats get to pore over secret grand jury testimony in hopes that it might embarrass a Republican president?

(And while the Tribune has editorialized for release of the state grand jury findings on the prison standoff, why has it been silent on the federal grand jury issue?)

Of course, Republicans will labor mightily to find a way to distinguish between “grand jury testimony” and “grand jury testimony.” You can hear the arguments: Grand jury testimony is secret, and contains only one side of the story; targets and witnesses can’t question other witnesses, but only can answer the prosecution’s questions. Therefore, it would be wrong to release grand jury testimony investigating actual crimes committed by members of the Bush administration. But where the grand jury has concluded that no crimes should be prosecuted here in Arizona, the secrecy and one-sidedness of the testimony doesn’t matter if release might be useful -- for Republicans, anyway.

Yes, the Arizona grand jury voted unanimously to release their report. Let’s give the federal grand jurors the same opportunity to vote that their state compatriots got. Do you think the grand jurors just spontaneously and magically came up with the idea of voting to release their report, without any suggestion from a Romley appointee? If you do, then you really shouldn’t watch “reality TV” without professional supervision.

It’ll be interesting to hear the hair-splitting necessary to release the “useful” parts but not anything that will show exactly how Romley’s office turned a criminal grand jury into a substitute for a GOP legislative committee investigation. It’ll also be interesting to see how people who argue that Bush wasn’t in office long enough to do anything to prevent 9/11 and how it’s all Clinton’s fault will argue that conditions in state prisons were totally Napolitano’s responsibility and the previous director of Arizona Department of Corrections, Terry Stewart -- a consultant to the grand jury -- had absolutely no responsibility for anything.

If the 9/11 Commission had hired Clinton’s anti-terrorism coordinator (you remember Richard Clarke, don't you?) as its sole consultant, we might have some partisan parity here. And maybe that analogy gives you an idea of how badly, and baldly, these GOP grand jury shenanigans stink.

The way these things inevitably work, the grand jury report will become public, one way or another. All I ask in return is that when DC grand jury testimony looking into these Bush administration scandals -- the “outing” of the CIA agent, the blabbing of the secret information about breaking the Iranian codes to Ahmad Chalabi, and the Boeing tanker deal, for starters -- begins leaking, we are spared the pious lectures about the absolutely vital need for keeping all grand jury testimony secret.

But using the grand jury raises an interesting point about Arizona legislative oversight. The GOP legislative leadership apparently didn’t consider their members up to the job of investigating the prisons. Instead, leadership preferred an investigation by people picked randomly from the driver’s license rolls.

Wags sometimes jest that we could improve the Arizona Legislature by picking names blindly from the phone book. When it came to investigating the prison crisis, that’s exactly what Speaker Jake Flake and Senate President Ken Bennett did. Some jokes aren’t quite as funny when they turn out to be true.