Ever-more Presidential Power; Politics in Election '06
Below, this blog discusses the upcoming Election. More important than the Election is its credibility, so I've devoted space to a brief discussion of vote fraud.
My first priority is to pay attention to what the mainstream media doesn't--which is a fundamental purpose of this blog like many others. President Bush has been on a quest to enhance his authority, and the Media simply doesn't care.
I've made it a point to highlights limits imposed on the Bush Administration in its quest for unrestrained Executive authority. Still the situation is dynamic as Bush's quest for Presidential power goes on, sneaking and slithering its way through the Congress and Courts largely unnoticed by the public.
This issue is too important to let slip by. If the Mainstream Media can't serve its most important purpose in keeping the public informed, blogs like mine must strive to maintain the cherished ideal of a free and independent press.
I. Executive Authority Expands
True conservatives have a major reason to feel betrayed by the passage and signing into law of two draconian laws which grant the President new unrestricted powers. The prominent role of military force in the Terror War opened a window of opportunity for the President to expand his authority.
Under the Military Commission Act, the President can use State powers to detain anyone--American or foreign--he sees as a threat. The Act seeks to legitimize the Administration's effort to try detainees, while granting legal protections for past conduct which could be construed as illegal.
As described in "President’s Inaction Equals ‘Pocket Veto’" by Pat Shannan, the MCA does the following:
Civil libertarians have been terrified by the consequences of granting the Executive unlimited powers of arrest and detention, something they believe our Constitution was explicitly created to prevent. If Constitutional limits on Presidential power were shattered by Lincoln, they've been dismantled under Bush. While at this point the targets of the war on terrorism may now be far more discriminating than Lincoln's crushing of the New York City draft riots, the list of enemies could grow, and the temptation to arbitrarily imprison with it.
The mainstream media has completely ignored the new laws. It's as if the President's Lincolnesque seizure of unrestricted authority never happened. The public cannot be afraid of what it doesn't know, so perhaps the MSM feels its serving the public interest by downplaying the significance of these troubling new laws.
Congressional Compliance or Conspiracy?
It's ironic that its the same Warner of Virginia who was one member of the "Revolt of the Three Senators" against Bush's proposed torture rules and tribunal system discussed here. As was discussed on this blog at the time, Warner's "revolt" may have been more about presenting an impression of internal debate rather than challenging the Administration's positions, judging by the bow-down to Presidential authority apparent in the Act's passage.
One article, "President’s Inaction Equals ‘Pocket Veto’", by Pat Shannan gives the following background on the MCA:
Double Whammy
On October 17th, Bush signed into law "John Warner Defense Authorization Act of 2007" which severely challenges existing laws meant to limit the use of federal soldiers in the US. Descriptions of the implications of this odious Act are available here:
-Good summation of the Act in "Bush Moves Toward Martial Law" by Frank Morales
-More on the Executive's newfound powers in "Bush's Absolute Power Grab" by Carla Binion
-Scary and insightful is Kurt Nimmo's "Bush’s Martial Law Act of 2007".
Nimmo quotes a New York activist/minister:
"...The Insurrection Act (10 U.S.C.331 -335) has historically, along with the Posse Comitatus Act (18 U.S.C.1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions."
Nimmo goes on to bring up Katrina, when Louisiana Governor Blanco failed to mobilize the National Guard. More decisive deployment of the Guard had clearly been needed. Yet the whole debate over Bush federalizing the Guard failed to address the fact Bush had been given authority to nationalize troops under a post-9/11 federal emergency plan.
Like the FISA Court, there were existing laws which gave the Administration all the tools they could possibly need. It's been said dodging FISA allowed Bush to keep the targets of surveillance secret. Likewise efforts to clear the way for federalizing the National Guard may have nefarious or alternate purposes.
Naturally, President Bush sees himself as more capable of reacting to a catastrophe--or terror attack--than governors. Yet two conditions must be met for federalization to be effective. First, the National Guard must be available and fully equipped to be of use; the Lousiana Guard had been at a fraction of its strength due to committments in Iraq. Politically, blaming governors for failing to use the Guard effectively might make more sense if troops were available.
Secondly, for the President to nationalize the Guard on his own authority to make sense, the exercise of his discretion must be beneficial. The President--or his proxy--must be capable of managing the entire response, a capability which can hardly exist, judging by the Katrina response. There's a serious command and control challenge associated with regular Army commanders supplanting the leadership of the National Guard units deployed in a crisis.
Perhaps the ineptitude of FEMA demonstrated the dangers of assigning control to federal agencies. Internally, the Armed Services may be better choreographed, but there's no indication they would be able to communicate with and coordinate between disparate State, local, and not-for-profit response elements any better than FEMA.
Legal Limitations
Unfortunately for the Administration--and fortunately for those who believe firmly in the rule of international law--the MCA and its ugly twin, the John Warner defense act, will likely fall to court challenges. One challenge brought out in the Shannan article concerned likely incongruities bound to exist if the Federal laws are changed and possibly no longer comply with binding treaties like Geneva.
Perhaps the bills were passed out of the impression that the Congress would soon turn Democratic and deny Bush any easy way out of the situation his tough-on-terror approach has created. Thousands of Iraqis languish in jails, not to mention Guantanamo and Jose Padilla. Classified as enemy combatants, these detainees' rights have been violated and now stripped, their confessions coerced. Obviously not all are guilty, many clearly have been mistreated according the standards of the Geneva Convention.
In processing detainees the White House and military face serious challenges due in large part to the use of torture in confessions and the gathering of evidence. So the Administration can only try to change the law to get illegally obtained confessions to apply. As it is the Military's Code of Justice simply won't be able to process the detainees, not because of risks to the national security posed by the calling of witness, but due to the legally questionable interrogations of the accused.
It's sad that Bush's War on Terror has manifested itself into such a threat to civil liberties. With the power to deny "enemy combatants" universally recognized legal rights, the Executive has increased its power to the point it can no indefinitely incarcerate an American citizen and deny the right of habeas corpus.
There may be a ray of hope for the stalwart defenders of Constitutional limits on Presidential authority--apparently the MCA was signed by the President more than 10 days after it'd been passed, resulting in a pocket veto.
Shannan's article elaborates:
"...The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays). If he does not, then it becomes law by default. The one exception to this rule is if Congress adjourns before the ten days are up. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. Ignoring legislation, or 'putting a bill in one’s pocket' until Congress adjourns is thus called a pocket veto.
"Congress passed 6166 on September 29th, presented it to the President on October 10th, and adjourned on October 13th. Bush signed it on October 17th, the week after Congress had adjourned, thereby rendering it 'vetoed' by constitutional standards."
If the bill had actually been disqualified under the pocket veto, the MCA and presumably the Warner Act could be considered null and void! At the very least, the pocket veto casts the new legislation in a state of limbo.
Odd it would be if the bills were forced back into a Congress controlled by Democrats! Perhaps there was indeed a revolt which could have been more aptly called a delaying action, pushing the new legislation too late in the session for signing into law. Find more legal analysis in the Shannan article.
II. Politics
It's important to examine the voter's attitude towards politics and voting behavior during the last election. The growing role of electronic voting must also be considered to understand the upcoming Election and what it means.
Many mass psychological phenomena are associated with electoral trends, among them the idea of moderates enraged with the state of affairs in Washington, traumatized by higher gas prices, or generally worried about jobs and the economy. As Bill Clinton said, "it's the economy, stupid." If the economy is seen to be strong, people will be more sympathetic to incumbents. If the polls are to be believed, anti-incumbent sentiments are high; the majority of American could thus be worried about the economy.
Nonetheless, the public tends to hold a far higher opinion in regard to their representative than they do for Congress overall, as if it weren't their representatives fault for contributing to the waywardness of the body.
Non-Election '06
Many people have grown completely cynical with politics and deactivate themselves, assuring minimal accountability for politicians by reducing overall participation in voting. Once the politician is elected, re-election is almost assured, turnover neglible. In return for the ample pork dispensed from Washington, moneyed interests back the incumbent with lots of campaign cash, virtually guaranteeing re-election.
The US' two-party system has created a duopoly in which two relatively similar groups deny any political representation to third parties.
It's hard to know where parties stand on the Iraq war. Despite the roar of discontent, few Democrats have really contributed to an exit plan; no bipartisan effort exists.
Democrats have yet to field a true opposition exhibiting political confrontation seen in healthier democracies; they do however still compete with Republicans for votes. We have a choice yes, but not one where the impact of a political change will be immediately felt or even eventually felt by the vast majority. This isn't to voting makes no difference; only rather to admit that the our selections differ little.
Both parties seek more to appease the voter than to confront each other. Whatever changes are made to candidate's position are made superficially, while the influence-peddling techniques are used by both sides, disguised in the form of campaign contributions and honorariums.
Idealism has no place in the boardroom, thus corporate-sponsored politicos remain malleable behind the scenes, regardless of how vociferous they might sound in public. No one makes the case better than Internet child safety advocate Mark Foley, who used the Internet to pursue an adolescent male page. Whatever Foley's long-hidden depravities, their exposure may reveal more about the permissive atmosphere in Washington than the state of his moral values or those of his party.
Oh how America longs for a leader with the strength of conviction! They presumed to have found one in Bush, but the consequences of his bullheadedness have been costly. The real political message that the voters send could be one of real anger at the state of affairs in Washington, D.C.. Inherently non-partisan, anti-incumbency could be far more threatening, uncontrollable by established political forces, methods or means.
Theoretically, such a threat to the status quo could justify vote-rigging, if corporations have control over the voting and vote-counting process, which appears to have happened to some extent through electronic voting. Still, why bother if both candidates represent first and foremost the highest bidder in a backroom auction to corporate interests? Without a broad range of candidates, and a system of proportional representation, ballots are vacant of real choices, just empty suits, now popularly called "the evil of two lessors".
Iraq's Impact
The public's shrinking appetite for casualties seems to put any politician's position on Iraq under intense pressure.
The antiwar movement has become highly organized. Rather than directly oppose the 61-64% of the population against the war, politicians have paid lip-service to the problems we face in Iraq while they appease Bush and the Pentagon's every call for funding. While some Democrats like Jack Murtha stand up in opposition, a solid majority can always be found to vote for a continuation of the war through its funding.
While the antiwar rhetoric heats up about Iraq, making the tough choice to leave falls to politicians who likely voted for the intervention, and would be hard pressed to vote "against the troops" in any effort to stop the war.
No politician wants to be seen as failing to support the troops, especially this close to election day. Antiwar sentiments could likely froth to the surface soon after the election, but with Congress on a two-year cycle, any cutting of war funding is simply too immediate and too big a political negative.
If the antiwar cause is to fully succeed, it must prove capable of defeating incumbents even in predominantly Republican areas. Former Marine Corps Major Paul Hackett launched a Senate campaign and could win. Candidates have made Iraq the centerpiece of their campaigns; the public has also grown tired of Iraq and the issue will affect the election although perhaps not be the key deciding factor.
In the Red States, Democrats must appeal to the shame voters must secretly bear for their support of the Iraq war and the general desire to fix what's broken or simply find a way out. Standing by the President and by proxy, his Iraq war policy , appears to be a liability, the inverse of the flagrantly militarized and nationalized foreign policy position that worked so well in 2004.
Just as a Congressperson might cringe at the sight of bodybags--had such a viewing been possible in the US media--so might John Q. Public, whose majority vote in 2004 had retroactively legitimatized the Iraq invasion. Duped into the Iraq war, perhaps the public in general privately acknowledges that they'd made a mistake in believing the President. With losses growing in Iraq, this guilt could contribute to the Republican's widely anticipated loss of control in the House and possibly the Senate.
While I'd love to be able to say a change of suits will bring a change of policy, I'm afraid Congress simply can't stop the war. Supporters of the Iraq War might flip their positions--in part to hold on to their jobs--, but they would never admit they'd made a mistake in believing the President. The wiggle factor may reign supreme--candidates sounding just unhappy enough about things to suggest some change in policy is in the offing. Lieberman is an excellent example of a pro-war Democrat who could win by simply changing hats.
Recently the President may have acknowledged some of his Iraq policy's many shortcomings. Like any consummate politician, Bush may simply be trying to sell a veneer of change of policy on Iraq when in actuality no plan exists. If the perception of progress towards an impending change of policy can be instilled in the public, the GOP can appear to be just accomodating enough to mollify firming antiwar consensus and ride the coattails of national security to victory once again.
History shows that politician oiliness is nothing new; the 2004 Election in particular demonstrated how the electorate may inwardly want change in Iraq but be more comfortable with the status quo. Familiar from 2004 is the "support the troops" refrain; the last election found us in "times of trouble", a climate generated by the War on Terror and Iraqi occupation.
In light of all the serious challenges posed to the Constitution, the change of control by parties may not signify change on an immediate level as desired by antiwar supporters. A lame duck, Bush has nothing to lose by pushing his agenda in Iraq; the War President has committed troops to Iraq for the remainder of his time in office.
Background
The position of Democrats on Iraq was clouded by pre-war misinformation--lies--meant to convince the Congress and public that Iraq represented a threat, which had been cherry-picked by the Office of Special Plans and massaged into the MSM by the White House Iraq Group.
All politicians are inclined to want to look tough against any credible threat, which Iraq was forged into through the manipulation of intelligence retroactively proven false. Many Democrats bought into the President's dramatic and convincing portrayal of the threat; a vote against the invasion would have been politically consequential.
While many Democrats fell for the war, so did much of the general population, many of whom believed in striking back at Iraq for the commonly held misperception it was responsible for 9/11. So opposition to the Iraq invasion would have come at risk of popular opinion; in times of war, looking soft against outside threats must have been considered far too dangerous even if candidates had reservations about the war.
Democrats persisted into 2004 in basing their Iraq positions on an artificial middle-of-the-road. They couldn't outwardly seek closure for fear of not appearing to "support the troops" (only later would the cut'n'run accusation be levelled.) Nor could the Democrats become complacent in oppsing the war--the rise of Howard Dean signalled that the antiwar movement did hold broad popular support.
The Democrats' complacency would cost them, and earn Kerry the label "flip-flopper" in 2004. As the campaign degenerated into the art form of swift-boating, alongside Rove's introduction of gay marriage as a wedge issue, Kerry's general awkwardness became his most visible--and disturbing--media image.
Where he may have once stood for the antiwar movement at the end of Vietnam, Kerry seemed to stand for the worst caricature of politicians: timidly dipping his toe in the antiwar political pool while defending his "national security" credentials and militarist posture by standing behind the President's foreign policy in Iraq.
The public probably just compared the medal-tossing, war-protesting Kerry to the "War President" in Bush and found the latter more attractive. Cloaked in the flag in a time of war, Bush would go on to win by the narrowest of margins in an election almost certainly rigged in his favor.[Sources: best single source on the 2004 election I've found is Robert Kennedy's Rolling Stone article.]
Fear Factor
Fear has long been the Republican catalyst for building support for the President War on Terror policies. Fear is a useful tool in stimulating nationalist and militarist impulses, and thus serves an important role in politics. Fear can work both ways, however, and at some point fear of our own government may work against the fear-mongering that's help get re-elected.
In his book The Truth, Al Franken talks about a TMT (Terror Management Theorist) test where participants were asked to vote, one group after thinking about death and the control group another topic. Voters were apparently swayed to Bush in large numbers by the incessant banter about terror and war, just as thoughts about mortality had triggered a pronounced swing in the test group towards Bush.
Consummate poll master Karl Rove undoubtedly built Bush's re-election around a fear response. Terror alerts, talk of WMD, all channelled the targetted demographic--suburban moms and NASCAR dads--toward the fear candidate.
It remains to be seen whether capitalizing on terror will pay similar dividends at the Congressional level. The electorate must have grown tired of the constant crying wolf; just how often can a fear response by concocted. Unfortunately the tired terror banter has weakened the validity of any real terror warning, which presupposes the issue of just how threatened the American people really were. Meanwhile, suppressed is any talk the Tenet and Rice had met before 9-11, where Tenet had virtually guaranteed Rice (10 out of 10) that an attack was coming.{See my previous post}
Fortunately, no real terror attack has materialized in the US, which would bring into question just how effective Bush has been in his efforts to stop terror, and lead the electorate to seriously re-evaluate Bush's artificial fear-based credentials. In light of the emphasis put on the political in the lead-up to Iraq and corresponsping neglect of the geopolitical consequences of launching a preemptive war, there is no doubt now that the fear factor was artificially blown up, to capitalize on the President strength and conviction, ostensibly seen as key qualification in the much hyped War on Terror.
Election Issues
The credibility of election results is contigent upon the smooth functioning of the electoral process. In many ways challenges to the election process, primarily that posed by electronic voting, transcend the election itself. Who wins is secondary to fairness, just as any game depends on fair enforcement of its rules for its outcome to be meaningful.
Vote fraud is as significant a threat to our democracy as the Bush's pursuit of unrestricted legal authority to prosecute accused terrorists. The Mainstream Media plays a huge role in minimizing the significance of both phenomena. With public awareness about the risks of vote denial, theft and fraud minimal, little consensus has been built for the need to make voting systems impervious to tampering.
Black box voting, as electronic voting is now called by its critics, means voters don't know whether their vote registered, or if it was tallied under the appropriate candidate. So rife is the election with e-voting problems that new issues are emerging daily; one portal on the challenges facing the election system can be found at www.votetrustusa.org.
County elections supervisors and administrators like Ion Sanchez of Leon County (Tallahassee) Florida have tested and proven Diebold and ESS machines to be undependable. Rather than admit errors, the predominantly Republican-owned company refused to provide Sanchez with voting machines, holding him in violation of the Help America Vote Act, which facilitated quite prematurely the transition to electronic voting machines. Governor Jeb Bush of Florida claims his is a model state for e-voting--odd considering Bush lives in Sanchez' district. Sanchez had brought in an independent technical consultant, who proved how easy it was to hack Diebold's machines. [For more on Sanchez, see this article in www.votetrustusa.org.]
Critics have found numerous problems uncorrected which translate into lost votes and lost legitimacy. Voter paranoia about election functionality might not be widespread but it does run deep among those in the know.
Voter fraud is not limited to e-voting. Deemed "spoilage", millions of votes were literally tossed out in key battleground states. In Ohio, more provisional ballots went uncounted than was the margin of victory in Bush's favor; the Republican responsible for counting the votes didn't bother to count.
For the large part, many of the problems plaguing the election process persist from last elections. Without a broad mandate for improvement, and any mainstream call to action in the media, the state of electoral disrepair has persisted. Many more votes will go unrecorded, or be changed, if elections are run as they were in 2004. Mandated federally under HAVA, electonic voting has spread to put more and more votes at risk of manipulation or loss, with paper trails being the only apparent method to secure e-voting.
Democracy in Neglect
Many Americans disregard the importance of voting. Perhaps the price of democracy has been forgotten. Classic nationalist dogma as seen in the Depression and WWII embraces the connection between sacrifice and unity; mutual toil for mutual benefit. How many Americans today hold dear the concept of mutual sacrifice?
I'm sure each ensuing generation looks at the youth of the next and sees what the previous generation saw of them. Nonetheless, it's true our creature comforts are greater now than they've ever been. It's perhaps also true that the the business cycle not so prone to roaring highs and crashing lows; still, the way we live today is devoid of a traditional sense of community, atomized. Political participation has become an increasingly dysfunctional value in our society.
Iraq may change things as a draft may well have to happen. Soldiers there are on 3rd or 4th tours of duty, and have been prevented from leaving, making our forces' participation increasingly involuntary. Vietnam draftees would serve a year; nowadays multi-tour mandatory service may do to morale what draftees did to morale during Vietnam.
Bush and his war-glorifying fellows love to raise the ghosts of WWII--would American GI's have to serve consecutive terms through the entire war? Possible, but unlikely. That war was a NOT an occupying action, it had specific goals, namely the attainment of victory over fascism. Comparing Iraq to post-war Germany or Japan doesn't do adequate justice to those serving in far more hostile Iraq.
Media
Problems may be even worse, yet go unrecorded in the media; acknowledgment of errors threatens the legitimacy of the election process. The American ideal held high by the trusty Media torch is one where election results matter, but the votes count less. The double standard praises patriotism and America's vaunted model of democracy yet minimizes the value of participation in the political process.
Most in the Mainstream Media avoid the Black Box Voting issue. Rather debate the worthiness of electonic voting systems, the media avoids the issue, as if problems were sporadic and anticipated, rather than pressing and endemic. Discovery of the problem is not however even the solution, Lou Dobbs might conclude.
Digitalization and commercialization of the voting system threaten the most fundamental principle of our democracy--that government is elected and therefore accountable.
The Mainstream Media minimizes the scale of infringement on civil rights. Media scrutiny raises public awareness about the risks of vote denial, theft and fraud minimal, little consensus has been built for the need to make voting systems impervious to tampering. Lou Dobbs of CNN did addresses electronic voting problems Tuesday evening, interviewing internet voting critic Bev Harris and sounding the warning. However the voting challenges aren't easily remedied. In the hands of corporate insiders and federally mandated contracts, the voting machine companies enjoy limited competition.
Like 2004, there could be considerable delay in reporting on election day failures. It wasn't until 2006 that the Kennedy article on the 2004 elections surfaced;. Perhaps the public's tolerance for voting improprieties has shrunk; what is certain is that State legislatures--whose caution concerning electronic voting has been greatly heightened by activists like Bev Harris and the experiences of local officials like Ion Sanchez--will continue to address the problem.
Speculation
Conspiracists might lean towards the conclusion that some level of coordination exists in the "selection" process controlling our "rigged" elections. They will argue that corporations control the voting machines and tally votes. On one level, they are completely correct--Diebold representatives are in a position to control how their machines work, and exploit whatever vulnerabilities they may host. Yet the idea of shaping the outcome of individual Congressional races is hard to fathom. Much more likely is a state of general chaos, an environment where illegitimacy is allowed to persist by virtue of a lack of technical understanding of the machines and their vulnerabilities.
The Conspiracist could argue that this chaos can only benefit the unpopular, in the same fashion that internal discord in Iraq could justify our ongoing presence there--although that ulterior motive may be hard to prove. Rather than electronic vote-rigging, the far simpler tool of discouragement could be confined to majority Democratic districts, like the liberal bastion Kenyon College whose students were forced to wait twelve hours or more, or the machines which weren't delivered to predominantly minority districts in Columbus, forcing long lines there.
In sum, the election results will certainly be inaccurate and reflect numerous "spoiled" votes; the hanging chad replaced with far more insidious violations of the right to vote. Like our civil liberties chipped away in the Global War on Terror, the unambiguous Constitutional guarantee to have one's vote counted appears to have disappeared, if it had ever truly existed. Absent any popular outrage, the sorry state of the election system will continue to disenfranchise, disproportionally affecting minority Democratic voters.
The Election result may matter, but the absence of accountability will persist into the next Congress. Turnover rates are abysmally low. Where change happens, it occurs superficially. Still, there are candidates focused on ending American involvement in Iraq, and eventually more sensible politicians will replace those who've led us into that mess, assuming the vote's results accurately reflect how Americans actually voted.
///
My first priority is to pay attention to what the mainstream media doesn't--which is a fundamental purpose of this blog like many others. President Bush has been on a quest to enhance his authority, and the Media simply doesn't care.
I've made it a point to highlights limits imposed on the Bush Administration in its quest for unrestrained Executive authority. Still the situation is dynamic as Bush's quest for Presidential power goes on, sneaking and slithering its way through the Congress and Courts largely unnoticed by the public.
This issue is too important to let slip by. If the Mainstream Media can't serve its most important purpose in keeping the public informed, blogs like mine must strive to maintain the cherished ideal of a free and independent press.
I. Executive Authority Expands
True conservatives have a major reason to feel betrayed by the passage and signing into law of two draconian laws which grant the President new unrestricted powers. The prominent role of military force in the Terror War opened a window of opportunity for the President to expand his authority.
Under the Military Commission Act, the President can use State powers to detain anyone--American or foreign--he sees as a threat. The Act seeks to legitimize the Administration's effort to try detainees, while granting legal protections for past conduct which could be construed as illegal.
As described in "President’s Inaction Equals ‘Pocket Veto’" by Pat Shannan, the MCA does the following:
*Grant unprecedented and unchecked authority to the Executive Branch to label as “unlawful enemy combatants”, and possibly to detain indefinitely, an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States[Source]
* Deny independent judicial review, through habeas, of detentions of U.S. legal permanent residents and non-citizens
* Limit the sources of law to which the courts may look and the scope of review on appeal
* Narrow the scope of the War Crimes Act and seek to eliminate accountability for past violations of the law by the president and his administration.
* Permit evidence obtained through coercion to be used in the military commission proceedings, with certain limitations.
* Permit the introduction of classified evidence against the accused even if the accused has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence.
* Restrict full disclosure to the accused of exculpatory evidence
* Give the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials
Civil libertarians have been terrified by the consequences of granting the Executive unlimited powers of arrest and detention, something they believe our Constitution was explicitly created to prevent. If Constitutional limits on Presidential power were shattered by Lincoln, they've been dismantled under Bush. While at this point the targets of the war on terrorism may now be far more discriminating than Lincoln's crushing of the New York City draft riots, the list of enemies could grow, and the temptation to arbitrarily imprison with it.
The mainstream media has completely ignored the new laws. It's as if the President's Lincolnesque seizure of unrestricted authority never happened. The public cannot be afraid of what it doesn't know, so perhaps the MSM feels its serving the public interest by downplaying the significance of these troubling new laws.
Congressional Compliance or Conspiracy?
It's ironic that its the same Warner of Virginia who was one member of the "Revolt of the Three Senators" against Bush's proposed torture rules and tribunal system discussed here. As was discussed on this blog at the time, Warner's "revolt" may have been more about presenting an impression of internal debate rather than challenging the Administration's positions, judging by the bow-down to Presidential authority apparent in the Act's passage.
One article, "President’s Inaction Equals ‘Pocket Veto’", by Pat Shannan gives the following background on the MCA:
"On September 6, 2006, President Bush asked Congress to pass the Military Commission Act of 2006. This Act - among other things - sought to re-define U.S. obligations under Common Article 3 of the Geneva Conventions, international treaties signed by every country in the world. Common Article 3 places an absolute prohibition on inhumane treatment of detainees during an armed conflict.[Source]
"Specifically, the President wanted Congress to replace the absolute prohibition on inhumane treatment of Common Article 3 with a “flexible” standard, which would assess on a case-by-case basis whether particular conduct would amount to cruel, inhuman or degrading treatment. Human Rights First criticized the Administration’s proposal for adding ambiguity to an otherwise clear standard of Common Article 3, and would open the door to more Abu Ghraib-style abuses.
"In response to the administration’s proposal, more than 45 retired senior military leaders wrote to members of the U.S. Senate expressing their opposition to redefining Common Article 3 on the grounds that it would compromise the safety of U.S. Service men and women. They were joined by Former Secretary of State Colin Powell and former U.S. Chairmen of the Joint Chiefs of Staff John Vessey, Hugh Shelton, and William Crowe, who also sent letters expressing their opposition to redefining Common Article 3.
"Spearheaded by Republican Senators John McCain, John Warner, and Lindsey Graham, the Senate Armed Services Committee passed an alternative bill, sponsored by McCain, Warner, and Graham, that preserves Common Article 3. The Administration then agreed to negotiate with the key Senators, and a compromise was reached on September 21, which preserved the meaning and requirements of Common Article 3."
Double Whammy
On October 17th, Bush signed into law "John Warner Defense Authorization Act of 2007" which severely challenges existing laws meant to limit the use of federal soldiers in the US. Descriptions of the implications of this odious Act are available here:
-Good summation of the Act in "Bush Moves Toward Martial Law" by Frank Morales
-More on the Executive's newfound powers in "Bush's Absolute Power Grab" by Carla Binion
-Scary and insightful is Kurt Nimmo's "Bush’s Martial Law Act of 2007".
Nimmo quotes a New York activist/minister:
"...The Insurrection Act (10 U.S.C.331 -335) has historically, along with the Posse Comitatus Act (18 U.S.C.1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions."
Nimmo goes on to bring up Katrina, when Louisiana Governor Blanco failed to mobilize the National Guard. More decisive deployment of the Guard had clearly been needed. Yet the whole debate over Bush federalizing the Guard failed to address the fact Bush had been given authority to nationalize troops under a post-9/11 federal emergency plan.
Like the FISA Court, there were existing laws which gave the Administration all the tools they could possibly need. It's been said dodging FISA allowed Bush to keep the targets of surveillance secret. Likewise efforts to clear the way for federalizing the National Guard may have nefarious or alternate purposes.
Naturally, President Bush sees himself as more capable of reacting to a catastrophe--or terror attack--than governors. Yet two conditions must be met for federalization to be effective. First, the National Guard must be available and fully equipped to be of use; the Lousiana Guard had been at a fraction of its strength due to committments in Iraq. Politically, blaming governors for failing to use the Guard effectively might make more sense if troops were available.
Secondly, for the President to nationalize the Guard on his own authority to make sense, the exercise of his discretion must be beneficial. The President--or his proxy--must be capable of managing the entire response, a capability which can hardly exist, judging by the Katrina response. There's a serious command and control challenge associated with regular Army commanders supplanting the leadership of the National Guard units deployed in a crisis.
Perhaps the ineptitude of FEMA demonstrated the dangers of assigning control to federal agencies. Internally, the Armed Services may be better choreographed, but there's no indication they would be able to communicate with and coordinate between disparate State, local, and not-for-profit response elements any better than FEMA.
Legal Limitations
Unfortunately for the Administration--and fortunately for those who believe firmly in the rule of international law--the MCA and its ugly twin, the John Warner defense act, will likely fall to court challenges. One challenge brought out in the Shannan article concerned likely incongruities bound to exist if the Federal laws are changed and possibly no longer comply with binding treaties like Geneva.
Perhaps the bills were passed out of the impression that the Congress would soon turn Democratic and deny Bush any easy way out of the situation his tough-on-terror approach has created. Thousands of Iraqis languish in jails, not to mention Guantanamo and Jose Padilla. Classified as enemy combatants, these detainees' rights have been violated and now stripped, their confessions coerced. Obviously not all are guilty, many clearly have been mistreated according the standards of the Geneva Convention.
In processing detainees the White House and military face serious challenges due in large part to the use of torture in confessions and the gathering of evidence. So the Administration can only try to change the law to get illegally obtained confessions to apply. As it is the Military's Code of Justice simply won't be able to process the detainees, not because of risks to the national security posed by the calling of witness, but due to the legally questionable interrogations of the accused.
It's sad that Bush's War on Terror has manifested itself into such a threat to civil liberties. With the power to deny "enemy combatants" universally recognized legal rights, the Executive has increased its power to the point it can no indefinitely incarcerate an American citizen and deny the right of habeas corpus.
There may be a ray of hope for the stalwart defenders of Constitutional limits on Presidential authority--apparently the MCA was signed by the President more than 10 days after it'd been passed, resulting in a pocket veto.
Shannan's article elaborates:
"...The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays). If he does not, then it becomes law by default. The one exception to this rule is if Congress adjourns before the ten days are up. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. Ignoring legislation, or 'putting a bill in one’s pocket' until Congress adjourns is thus called a pocket veto.
"Congress passed 6166 on September 29th, presented it to the President on October 10th, and adjourned on October 13th. Bush signed it on October 17th, the week after Congress had adjourned, thereby rendering it 'vetoed' by constitutional standards."
If the bill had actually been disqualified under the pocket veto, the MCA and presumably the Warner Act could be considered null and void! At the very least, the pocket veto casts the new legislation in a state of limbo.
Odd it would be if the bills were forced back into a Congress controlled by Democrats! Perhaps there was indeed a revolt which could have been more aptly called a delaying action, pushing the new legislation too late in the session for signing into law. Find more legal analysis in the Shannan article.
II. Politics
It's important to examine the voter's attitude towards politics and voting behavior during the last election. The growing role of electronic voting must also be considered to understand the upcoming Election and what it means.
Many mass psychological phenomena are associated with electoral trends, among them the idea of moderates enraged with the state of affairs in Washington, traumatized by higher gas prices, or generally worried about jobs and the economy. As Bill Clinton said, "it's the economy, stupid." If the economy is seen to be strong, people will be more sympathetic to incumbents. If the polls are to be believed, anti-incumbent sentiments are high; the majority of American could thus be worried about the economy.
Nonetheless, the public tends to hold a far higher opinion in regard to their representative than they do for Congress overall, as if it weren't their representatives fault for contributing to the waywardness of the body.
Non-Election '06
Many people have grown completely cynical with politics and deactivate themselves, assuring minimal accountability for politicians by reducing overall participation in voting. Once the politician is elected, re-election is almost assured, turnover neglible. In return for the ample pork dispensed from Washington, moneyed interests back the incumbent with lots of campaign cash, virtually guaranteeing re-election.
The US' two-party system has created a duopoly in which two relatively similar groups deny any political representation to third parties.
It's hard to know where parties stand on the Iraq war. Despite the roar of discontent, few Democrats have really contributed to an exit plan; no bipartisan effort exists.
Democrats have yet to field a true opposition exhibiting political confrontation seen in healthier democracies; they do however still compete with Republicans for votes. We have a choice yes, but not one where the impact of a political change will be immediately felt or even eventually felt by the vast majority. This isn't to voting makes no difference; only rather to admit that the our selections differ little.
Both parties seek more to appease the voter than to confront each other. Whatever changes are made to candidate's position are made superficially, while the influence-peddling techniques are used by both sides, disguised in the form of campaign contributions and honorariums.
Idealism has no place in the boardroom, thus corporate-sponsored politicos remain malleable behind the scenes, regardless of how vociferous they might sound in public. No one makes the case better than Internet child safety advocate Mark Foley, who used the Internet to pursue an adolescent male page. Whatever Foley's long-hidden depravities, their exposure may reveal more about the permissive atmosphere in Washington than the state of his moral values or those of his party.
Oh how America longs for a leader with the strength of conviction! They presumed to have found one in Bush, but the consequences of his bullheadedness have been costly. The real political message that the voters send could be one of real anger at the state of affairs in Washington, D.C.. Inherently non-partisan, anti-incumbency could be far more threatening, uncontrollable by established political forces, methods or means.
Theoretically, such a threat to the status quo could justify vote-rigging, if corporations have control over the voting and vote-counting process, which appears to have happened to some extent through electronic voting. Still, why bother if both candidates represent first and foremost the highest bidder in a backroom auction to corporate interests? Without a broad range of candidates, and a system of proportional representation, ballots are vacant of real choices, just empty suits, now popularly called "the evil of two lessors".
Iraq's Impact
The public's shrinking appetite for casualties seems to put any politician's position on Iraq under intense pressure.
The antiwar movement has become highly organized. Rather than directly oppose the 61-64% of the population against the war, politicians have paid lip-service to the problems we face in Iraq while they appease Bush and the Pentagon's every call for funding. While some Democrats like Jack Murtha stand up in opposition, a solid majority can always be found to vote for a continuation of the war through its funding.
While the antiwar rhetoric heats up about Iraq, making the tough choice to leave falls to politicians who likely voted for the intervention, and would be hard pressed to vote "against the troops" in any effort to stop the war.
No politician wants to be seen as failing to support the troops, especially this close to election day. Antiwar sentiments could likely froth to the surface soon after the election, but with Congress on a two-year cycle, any cutting of war funding is simply too immediate and too big a political negative.
If the antiwar cause is to fully succeed, it must prove capable of defeating incumbents even in predominantly Republican areas. Former Marine Corps Major Paul Hackett launched a Senate campaign and could win. Candidates have made Iraq the centerpiece of their campaigns; the public has also grown tired of Iraq and the issue will affect the election although perhaps not be the key deciding factor.
In the Red States, Democrats must appeal to the shame voters must secretly bear for their support of the Iraq war and the general desire to fix what's broken or simply find a way out. Standing by the President and by proxy, his Iraq war policy , appears to be a liability, the inverse of the flagrantly militarized and nationalized foreign policy position that worked so well in 2004.
Just as a Congressperson might cringe at the sight of bodybags--had such a viewing been possible in the US media--so might John Q. Public, whose majority vote in 2004 had retroactively legitimatized the Iraq invasion. Duped into the Iraq war, perhaps the public in general privately acknowledges that they'd made a mistake in believing the President. With losses growing in Iraq, this guilt could contribute to the Republican's widely anticipated loss of control in the House and possibly the Senate.
While I'd love to be able to say a change of suits will bring a change of policy, I'm afraid Congress simply can't stop the war. Supporters of the Iraq War might flip their positions--in part to hold on to their jobs--, but they would never admit they'd made a mistake in believing the President. The wiggle factor may reign supreme--candidates sounding just unhappy enough about things to suggest some change in policy is in the offing. Lieberman is an excellent example of a pro-war Democrat who could win by simply changing hats.
Recently the President may have acknowledged some of his Iraq policy's many shortcomings. Like any consummate politician, Bush may simply be trying to sell a veneer of change of policy on Iraq when in actuality no plan exists. If the perception of progress towards an impending change of policy can be instilled in the public, the GOP can appear to be just accomodating enough to mollify firming antiwar consensus and ride the coattails of national security to victory once again.
History shows that politician oiliness is nothing new; the 2004 Election in particular demonstrated how the electorate may inwardly want change in Iraq but be more comfortable with the status quo. Familiar from 2004 is the "support the troops" refrain; the last election found us in "times of trouble", a climate generated by the War on Terror and Iraqi occupation.
In light of all the serious challenges posed to the Constitution, the change of control by parties may not signify change on an immediate level as desired by antiwar supporters. A lame duck, Bush has nothing to lose by pushing his agenda in Iraq; the War President has committed troops to Iraq for the remainder of his time in office.
Background
The position of Democrats on Iraq was clouded by pre-war misinformation--lies--meant to convince the Congress and public that Iraq represented a threat, which had been cherry-picked by the Office of Special Plans and massaged into the MSM by the White House Iraq Group.
All politicians are inclined to want to look tough against any credible threat, which Iraq was forged into through the manipulation of intelligence retroactively proven false. Many Democrats bought into the President's dramatic and convincing portrayal of the threat; a vote against the invasion would have been politically consequential.
While many Democrats fell for the war, so did much of the general population, many of whom believed in striking back at Iraq for the commonly held misperception it was responsible for 9/11. So opposition to the Iraq invasion would have come at risk of popular opinion; in times of war, looking soft against outside threats must have been considered far too dangerous even if candidates had reservations about the war.
Democrats persisted into 2004 in basing their Iraq positions on an artificial middle-of-the-road. They couldn't outwardly seek closure for fear of not appearing to "support the troops" (only later would the cut'n'run accusation be levelled.) Nor could the Democrats become complacent in oppsing the war--the rise of Howard Dean signalled that the antiwar movement did hold broad popular support.
The Democrats' complacency would cost them, and earn Kerry the label "flip-flopper" in 2004. As the campaign degenerated into the art form of swift-boating, alongside Rove's introduction of gay marriage as a wedge issue, Kerry's general awkwardness became his most visible--and disturbing--media image.
Where he may have once stood for the antiwar movement at the end of Vietnam, Kerry seemed to stand for the worst caricature of politicians: timidly dipping his toe in the antiwar political pool while defending his "national security" credentials and militarist posture by standing behind the President's foreign policy in Iraq.
The public probably just compared the medal-tossing, war-protesting Kerry to the "War President" in Bush and found the latter more attractive. Cloaked in the flag in a time of war, Bush would go on to win by the narrowest of margins in an election almost certainly rigged in his favor.[Sources: best single source on the 2004 election I've found is Robert Kennedy's Rolling Stone article.]
Fear Factor
Fear has long been the Republican catalyst for building support for the President War on Terror policies. Fear is a useful tool in stimulating nationalist and militarist impulses, and thus serves an important role in politics. Fear can work both ways, however, and at some point fear of our own government may work against the fear-mongering that's help get re-elected.
In his book The Truth, Al Franken talks about a TMT (Terror Management Theorist) test where participants were asked to vote, one group after thinking about death and the control group another topic. Voters were apparently swayed to Bush in large numbers by the incessant banter about terror and war, just as thoughts about mortality had triggered a pronounced swing in the test group towards Bush.
Consummate poll master Karl Rove undoubtedly built Bush's re-election around a fear response. Terror alerts, talk of WMD, all channelled the targetted demographic--suburban moms and NASCAR dads--toward the fear candidate.
It remains to be seen whether capitalizing on terror will pay similar dividends at the Congressional level. The electorate must have grown tired of the constant crying wolf; just how often can a fear response by concocted. Unfortunately the tired terror banter has weakened the validity of any real terror warning, which presupposes the issue of just how threatened the American people really were. Meanwhile, suppressed is any talk the Tenet and Rice had met before 9-11, where Tenet had virtually guaranteed Rice (10 out of 10) that an attack was coming.{See my previous post}
Fortunately, no real terror attack has materialized in the US, which would bring into question just how effective Bush has been in his efforts to stop terror, and lead the electorate to seriously re-evaluate Bush's artificial fear-based credentials. In light of the emphasis put on the political in the lead-up to Iraq and corresponsping neglect of the geopolitical consequences of launching a preemptive war, there is no doubt now that the fear factor was artificially blown up, to capitalize on the President strength and conviction, ostensibly seen as key qualification in the much hyped War on Terror.
Election Issues
The credibility of election results is contigent upon the smooth functioning of the electoral process. In many ways challenges to the election process, primarily that posed by electronic voting, transcend the election itself. Who wins is secondary to fairness, just as any game depends on fair enforcement of its rules for its outcome to be meaningful.
Vote fraud is as significant a threat to our democracy as the Bush's pursuit of unrestricted legal authority to prosecute accused terrorists. The Mainstream Media plays a huge role in minimizing the significance of both phenomena. With public awareness about the risks of vote denial, theft and fraud minimal, little consensus has been built for the need to make voting systems impervious to tampering.
Black box voting, as electronic voting is now called by its critics, means voters don't know whether their vote registered, or if it was tallied under the appropriate candidate. So rife is the election with e-voting problems that new issues are emerging daily; one portal on the challenges facing the election system can be found at www.votetrustusa.org.
County elections supervisors and administrators like Ion Sanchez of Leon County (Tallahassee) Florida have tested and proven Diebold and ESS machines to be undependable. Rather than admit errors, the predominantly Republican-owned company refused to provide Sanchez with voting machines, holding him in violation of the Help America Vote Act, which facilitated quite prematurely the transition to electronic voting machines. Governor Jeb Bush of Florida claims his is a model state for e-voting--odd considering Bush lives in Sanchez' district. Sanchez had brought in an independent technical consultant, who proved how easy it was to hack Diebold's machines. [For more on Sanchez, see this article in www.votetrustusa.org.]
Critics have found numerous problems uncorrected which translate into lost votes and lost legitimacy. Voter paranoia about election functionality might not be widespread but it does run deep among those in the know.
Voter fraud is not limited to e-voting. Deemed "spoilage", millions of votes were literally tossed out in key battleground states. In Ohio, more provisional ballots went uncounted than was the margin of victory in Bush's favor; the Republican responsible for counting the votes didn't bother to count.
For the large part, many of the problems plaguing the election process persist from last elections. Without a broad mandate for improvement, and any mainstream call to action in the media, the state of electoral disrepair has persisted. Many more votes will go unrecorded, or be changed, if elections are run as they were in 2004. Mandated federally under HAVA, electonic voting has spread to put more and more votes at risk of manipulation or loss, with paper trails being the only apparent method to secure e-voting.
Democracy in Neglect
Many Americans disregard the importance of voting. Perhaps the price of democracy has been forgotten. Classic nationalist dogma as seen in the Depression and WWII embraces the connection between sacrifice and unity; mutual toil for mutual benefit. How many Americans today hold dear the concept of mutual sacrifice?
I'm sure each ensuing generation looks at the youth of the next and sees what the previous generation saw of them. Nonetheless, it's true our creature comforts are greater now than they've ever been. It's perhaps also true that the the business cycle not so prone to roaring highs and crashing lows; still, the way we live today is devoid of a traditional sense of community, atomized. Political participation has become an increasingly dysfunctional value in our society.
Iraq may change things as a draft may well have to happen. Soldiers there are on 3rd or 4th tours of duty, and have been prevented from leaving, making our forces' participation increasingly involuntary. Vietnam draftees would serve a year; nowadays multi-tour mandatory service may do to morale what draftees did to morale during Vietnam.
Bush and his war-glorifying fellows love to raise the ghosts of WWII--would American GI's have to serve consecutive terms through the entire war? Possible, but unlikely. That war was a NOT an occupying action, it had specific goals, namely the attainment of victory over fascism. Comparing Iraq to post-war Germany or Japan doesn't do adequate justice to those serving in far more hostile Iraq.
Media
Problems may be even worse, yet go unrecorded in the media; acknowledgment of errors threatens the legitimacy of the election process. The American ideal held high by the trusty Media torch is one where election results matter, but the votes count less. The double standard praises patriotism and America's vaunted model of democracy yet minimizes the value of participation in the political process.
Most in the Mainstream Media avoid the Black Box Voting issue. Rather debate the worthiness of electonic voting systems, the media avoids the issue, as if problems were sporadic and anticipated, rather than pressing and endemic. Discovery of the problem is not however even the solution, Lou Dobbs might conclude.
Digitalization and commercialization of the voting system threaten the most fundamental principle of our democracy--that government is elected and therefore accountable.
The Mainstream Media minimizes the scale of infringement on civil rights. Media scrutiny raises public awareness about the risks of vote denial, theft and fraud minimal, little consensus has been built for the need to make voting systems impervious to tampering. Lou Dobbs of CNN did addresses electronic voting problems Tuesday evening, interviewing internet voting critic Bev Harris and sounding the warning. However the voting challenges aren't easily remedied. In the hands of corporate insiders and federally mandated contracts, the voting machine companies enjoy limited competition.
Like 2004, there could be considerable delay in reporting on election day failures. It wasn't until 2006 that the Kennedy article on the 2004 elections surfaced;. Perhaps the public's tolerance for voting improprieties has shrunk; what is certain is that State legislatures--whose caution concerning electronic voting has been greatly heightened by activists like Bev Harris and the experiences of local officials like Ion Sanchez--will continue to address the problem.
Speculation
Conspiracists might lean towards the conclusion that some level of coordination exists in the "selection" process controlling our "rigged" elections. They will argue that corporations control the voting machines and tally votes. On one level, they are completely correct--Diebold representatives are in a position to control how their machines work, and exploit whatever vulnerabilities they may host. Yet the idea of shaping the outcome of individual Congressional races is hard to fathom. Much more likely is a state of general chaos, an environment where illegitimacy is allowed to persist by virtue of a lack of technical understanding of the machines and their vulnerabilities.
The Conspiracist could argue that this chaos can only benefit the unpopular, in the same fashion that internal discord in Iraq could justify our ongoing presence there--although that ulterior motive may be hard to prove. Rather than electronic vote-rigging, the far simpler tool of discouragement could be confined to majority Democratic districts, like the liberal bastion Kenyon College whose students were forced to wait twelve hours or more, or the machines which weren't delivered to predominantly minority districts in Columbus, forcing long lines there.
In sum, the election results will certainly be inaccurate and reflect numerous "spoiled" votes; the hanging chad replaced with far more insidious violations of the right to vote. Like our civil liberties chipped away in the Global War on Terror, the unambiguous Constitutional guarantee to have one's vote counted appears to have disappeared, if it had ever truly existed. Absent any popular outrage, the sorry state of the election system will continue to disenfranchise, disproportionally affecting minority Democratic voters.
The Election result may matter, but the absence of accountability will persist into the next Congress. Turnover rates are abysmally low. Where change happens, it occurs superficially. Still, there are candidates focused on ending American involvement in Iraq, and eventually more sensible politicians will replace those who've led us into that mess, assuming the vote's results accurately reflect how Americans actually voted.
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posted by jbpeebles @ 2:23 AM
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