Beginning with his nomination for Attorney General I had reservations about Michael Mukasey, and he has consistently lived down to my worst expectations. I did not like the fact that the Senate seemingly had no opportunity to give advice on the selection (beyond what appears to be secret meetings with Charles Schumer and Dianne Feinstein), nor did I like his apparent equanimity about brutality. The best name I heard floated was Mike DeWine, the recently-defeated Republican Senator from Ohio. He is solidly Republican and consistently voted with the President (one of the reasons he lost) so it would have satisfied the “to the victor goes the spoils” nature of these things, but he was also a known quantity to the Senate. He had worked with almost everyone there and as far as I know was well regarded. But beneath the surface something I couldn’t quite pin down was buzzing around like a mosquito, and it all fell into place last week while reading The Dark Side. Jane Mayer quotes an anonymous CIA officer on page 180 as he disparages Jose Rodriguez Jr, then-head of the CIA Counterterrorist Center (CTC): “[in the] administration, loyalty is the new competence.”

It is no secret that loyalty has been the preeminent virtue honored by the White House. In some cases it is the garden variety loyalty, which basically means making an effort to cooperate and being discreet (and flexible) about differences. When one of the parties is the President it is easy to couch it in terms of “do it for the good of the party” and have it functionally mean “do it my way.” But their preferred strain of loyalty is much more insidious. A current or former member of Congress like DeWine most likely has a decent sized network of support outside the administration. Career civil servants are likely to know their way around the bureacracy and be able to fend off all but the most determined and ferocious attacks. Any loyalty people like that have will inevitably be tempered by the influence of others.

The administration wants no such taint. Reading the description of Rodriguez’ surprising elevation to the CTC made me think also of Mukasey, and Monica Goodling, and most famously Alberto Gonzales. All of them have essentially no other connections in the capitol. “His base consists of one individual” said William Schneider of Gonzales, and others made the same observation. He was widely regarded as a hack (both as the President’s counsel and as AG) but in a sense his competence level did not matter. All that mattered was this: He had no one else to turn to. If he wanted to break with the administration, where would he go? What office could he run for? Who would sponsor such an attempt? What think tank would have him? Who would want him lobbying in their name? Mukasey was confirmed as AG with a much more accomplished record, but is in the same position. DeWine would have been more like another ex-Senator turned AG - he could have remained in town after stepping down and transitioned into a lucrative private sector position.

The White House may have realized that as well, and considered it an intolerable risk. Much has been made of the cult of personality surrounding the President (summarized best by Sara Taylor). I think a lot of people - myself included - wrongly concluded that what drove the unyielding devotion of so many was for all intents and purposes brainwashing. Hiring graduates of little regarded universities, finding someone with no history in Washington or abruptly elevating those with no demonstrated qualifications all serve the same purpose: It creates a class of workers who will be with the program regardless of whether or not they agree with it. They will work perched atop a cliff, and if they want to walk away the first step will be a long fall.

In one sense it doesn’t matter. The internal dramas of various flunkies is of concern only to them; all we care about is how it affects us and our government. But it matters in this way: People hired in those circumstances comprise a significant part of the corrosive status quo, and if our representatives and institutions rejected them in principle we could prevent them from getting in place. If the Senate said to the President, you must nominate people with existing support systems at least for the big positions (cabinet, Supreme Court, etc) or we will reject them out of hand, it might help guard against such appalling performance in the future.

If it is true that our earliest experiences are the most influential (child is father to the man and all that) then the sixties are the dominant years for our current leaders. It has since become a cliché that the era never really ended and continues to fundamentally shape our discourse, but I only agree to a point. After all, every generation is shaped by the events of its time and those events exert an ongoing influence. On the other hand, the turbulence then does make it more influential than other periods. Starting with the Kennedy assassination and ending with Watergate there was an unpopular draft, the Vietnam war, additional traumatic political murders and other momentous events that have cast a very long shadow. And of course the generation formed in this cauldron was also part of a huge population spike, which imprinted the swirl of controversy even more firmly on the national psyche. But even without the demographic component it was destined to be much-discussed because it was marked by contentiousness that has not been matched until perhaps recently. (Side note to today’s young people: Hope you like those arguments you’re having! You can look forward to another forty years of them.)

The resignation of Richard Nixon and the winding down of the war shortly thereafter seemed to end that chapter, and a couple of interpretations hardened into conventional wisdom. My best attempt to summarize goes like this: “The antiwar activists were basically right to protest; the war was waged under a false premise and should never have escalated as it did. They made their points very rudely though, and it would have been nicer if they had been a little more polite and diplomatic. And Nixon stepped way over the line and deserved to leave office in disgrace.” It still flares up periodically, as in Patrick Buchanan’s 1992 Republican convention speech (“[t]here is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.”) but it usually seems to be along the lines of how the sixties coarsened our culture and introduced moral relativism. The basic take on the war itself or the resignation looked settled. However, beneath the surface on the far right was a sense of rage, shame and defiance. Some like young David Addington believed (per a childhood friend) America “should have stayed and won the Vietnam War, despite the fact that we were losing”. Others like Dick Cheney concluded that “Watergate and a lot of things around Watergate and Vietnam, both during the ’70s served, I think, to erode the authority” of the President. In other words, a small but eventually influential group on the right never conceded anything.

From their perspective the only problem with Vietnam was that we left, and when they finally got to direct a war of their own there would be no such mistake. In the face of total discredit and loss of faith from the public they would continue a deeply unpopular war because to do otherwise would be to concede “we don’t have the stomach for the fight”. The domino theory was perfectly valid, and in fact lived on as a “benign domino” of democratic reform in the middle east. And Nixon was right to wiretap without warrants - period. It became impermissible to say so in polite company, but he got a raw deal. Quietly but insistently members of this group managed to get their hands on the levers of power, and they set to righting the wrongs of that prior era. And of course, it also means the next generation of Cheneys, Bushes and Addingtons are currently justifying torture, championing (and studiously avoiding service in) the Iraq war, and arguing that respecting civil liberties turns the Constitution into a suicide pact.

But like an O. Henry short story here is the upside down twist at the end: The hippies won anyway. The administration that so self-consciously distanced itself from the flower child ethos has adopted some of its most remarked upon features. Its leaders are cheerfully vulgar towards those they disagree with, and far from being apologetic they justify it with an “if it feels good do it” attitude. They are resolute authority haters, dismissive of all attempts at oversight and casually contemptuous of the law. They avoided service in a war they supported through exquisitely timed pregnancies or neglected stateside duties. They wear suits instead of tie dies, but otherwise conform perfectly to the caricature of dissolution they have taken great pains to repudiate.

Prairie Weather inspired this week’s post. I have been unsuccessfully trying to write about what may be a vast, unexamined record of wrongdoing from the administration, and a brief exchange started by PW finally got me unstuck. Stuart Taylor Jr. has argued for pardons, Cass Sunstein agrees and Victoria Toensing has added (via) her own dubious logic to the drumbeat. A consensus has developed among political and media elites that no good purpose would be served by enforcing the law(!) and so for the sake of a smooth transfer of power and a calming of the political waters in the capitol we must let it all pass.

On the face of it I am vehemently opposed to ignoring criminality for the sake of comity. There is no position outlined by the pro-pardon group that is the slightest bit compelling to me. Sunstein’s belief that “I don’t think it’s appropriate at this stage to attempt to impeach two presidents consecutively” is completely absurd. At what stage would it be appropriate? If one party impeaches a President in a fit of cheap political grandstanding is his successor inoculated against it? What kind of crime would it take for Sunstein? Has anyone heard specifics? All I’ve heard so far are banalities along the lines of “any crime has to be taken quite seriously” and “are we in favor of immunizing people who worked in the White House in the last eight years from accountability for criminal acts? I don’t think anyone should be in favor of that.” Thanks, professor.

Toensing’s warning that “[i]f we don’t protect these people who are proceeding in good faith, no one will ever take chances” is outrageous as well. “We” do not need to protect people - the law does that. One of the signal achievements of this administration has been successfully advancing the notion of a patriotic duty to break the law. If the President “asks” individuals or businesses to do something plainly illegal out of loyalty to America then they may do so (even if they have access to an entire department of lawyers who could tell them they are breaking the law). A simple appeal by the President trumps the law, plain and simple. This is the concept of good faith that Toensing advances, and is euphemistically reduced to “taking chances”. What she describes is the absolute authority of the dictator. As for Taylor, see Andrew.

The crux of the problem is that the Republican party has come to view the law as entirely political. When Congress passes a law, or a President follows it (or doesn’t), or the Justice Department enforces it (or doesn’t), or the Supreme Court rules on it - these are all political footballs to be kicked around, not fundamental building blocks of a functional society. In other words, lawless, ignorant, contemptible hacks are fine as long as they are OUR lawless, ignorant, contemptible hacks. The collapse of integrity and wholesale politicization at Justice is not a problem in and of itself; it only is a problem if a Democrat does it. (The fact that they vote along party lines on these issues when they don’t walk out entirely should be all the proof you need.)

In an environment like that we will never get a full and satisfactory investigation. Every step of the way some GOP loyalist will cry foul and insist the REAL politicization is the belated enforcement. If we want to bypass all that maybe we should take up PW’s suggestion of “giving the country clotheslines laden with dirty linen and encouraging the voters to smell the stench and make up their own minds.” Or as John Mecklin put it, “[u]ntil we know the entire story of the conduct of the war on terror, a new story — with America reassuming a believable role as a guarantor of human rights — can’t really begin.” We could get a much better idea of the full truth by granting immunity and compelling testimony with a threat of perjury hanging over it.

I have to admit that such a scenario is in a way extremely unpalatable to me. Crimes have already been committed and a good part of me would be outraged if I knew that we were forever giving away the opportunity to see justice for them. But the question may come down to, would you rather have some justice with some truth, or no justice with full truth? And would you rather have maybe a handful of convictions that are forever criticized or a full toxic dump of truth that even the most rabid partisan will not approach? And wouldn’t the existence of such a thing, one way or another, create a justice of its own?

Tomorrow is the anniversary of Richard Nixon’s resignation, and the Accountability Now PAC is sponsoring a “Money Bomb” to mark the occasion. Please consider donating and making your voice heard, even if it only seems like a nominal amount. There is a greater difference between zero and one than between one and one million.

[A]ny legislation should acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans-soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

This is a classic administration attempt to take a narrow need and expand it to contain whole new worlds of authority. (Remember, the only fix needed for FISA was a law allowing warrantless surveillance for foreign-to-foreign communication that passed through American infrastructure.) What is needed is for the military in Afghanistan and Iraq to operate prisoner of war camps. Even this is a little bit slippery because there will not be a Missouri or Appomattox moment in these wars, but eventually our soldiers will stop serving in combat roles. At that point we will have reached the closest we will get to a definitive conclusion. With that as a rough guide we could target a final disposition for all enemy combatants.

That isn’t what Mukasey wants, though. He wants anyone “dedicated to the slaughter of Americans-soldiers and civilians alike” to be the target, not those who are actively fighting us (the possession of such dedication would presumably be determined by enlightened souls such as…Michael Mukasey). He wants to set up a system where an unknowable quantity like bad intent is the standard for detaining people. The fact that the administration has been doing so and has suffered four consecutive reversals by the Supreme Court does not seem to trouble him. What he really wants is for Congress to give legal cover for the executive branch’s illegal detention system.

Equally disturbing is the duration of this alternate justice system. The effective suspension of habeas corpus will be “for the duration of the conflict”, which the administration prefers to mean “as long as anyone in the world wants to do America harm.” In other words, permanently. The actual scope of what we are (or should be) doing from a military perspective is very limited: Having soldiers capture or kill the remnants of al Qaeda and their Taliban sponsors somewhere in the remote regions of Afghanistan (and maybe the Pakistan border too). We could probably limit it even more - the Taliban have been routed from power and al Qaeda no longer has training camps from which to plan new attacks. We could just keep watching the area, keep them on the run and disrupt any attempts to settle down and organize. The formal military campaign against the people who attacked us has been over since December 2001.

What is left is tracking those who survived the campaign in those areas and law enforcement efforts elsewhere. John Kerry was derided for making that suggestion in 2004 but he was right. Even formerly reliable allies of the President have begun to concede this obvious point. The bulk of our efforts should focus on intelligence gathering (a substantial part of which can be accomplished by activities as prosaic as reading local newspapers), identifying cells of activity in both friendly and hostile countries, and finding ways to disrupt them. (One more obvious point: Identifying and detaining potential terrorists is easier when the country they operate in has a favorable impression of us.) It is a serious threat but not an existential one, and anyone looking to characterize it as such - as an endless war with no well defined enemy or articulation of victory - may fairly be suspected of ulterior motives. The effort did not require the erosion of civil liberties that have already happened, and our ongoing efforts against those who would do us harm do not require further concessions to extremists like Mukasey.

So was born, lived a little space, and died the Progressive party. At its birth it caused the nomination, by the Democrats, and the election, by the people, of Woodrow Wilson. At its death it brought about the nomination of Charles E. Hughes by the Republicans. It forced the writing into the platforms of the more conservative parties of principles and programmes of popular rights and social regeneration. The Progressive party never attained to power, but it wielded a potent power.

- Harold Howland

The two party system in America is remarkably durable. Just the phrase “third party” conjures up images of John Anderson, Ralph Nader, Ross Perot and George Wallace. These are all people who exited or were never inside the system. It implies actors at the margins engaged in Quixotic (though see here and here) attempts to fundamentally alter conventional politics. It also postulates two parties as though they are fixed poles on the political map. Nearly everything about the way we talk and think about American politics assumes the context of two major parties fighting for majority control.

In general it has served us well and seems reasonable enough. Short version: We have one party for each side of the political spectrum. If you favor a more active government in domestic affairs and a predisposition for collaboration internationally vote Democrat. If you favor less spending on social programs and a more assertive “peace through strength” attitude abroad vote Republican. Anyone anywhere on the political spectrum has to choose one of these, and in doing so the most radical elements on both sides will be usefully channelled into moderate positions, resulting in generally prudent policymaking that changes on a gradual and sustainable slope. You won’t have governments falling every nine months and the kind of turbulence associated with whipsaw changes in direction.

This model only becomes problematic if the tension and adversarial nature assumed in it turn into cooperation and collusion, as in the quadrennial orgy of bribery and corruption at the party conventions. A look at the FISA reform circus tells you all you need to know about how united the Democrats and Republicans are on eroding our civil liberties. Yes, some of the former opposed it (Dodd and Feingold in particular were passionate and articulate) while the latter were nearly unanimous in their support. That difference noted, the Democratic leadership and enough of its members were fully on board, and let’s face it - the end result is all that matters. Glenn Greenwald summed it up beautifully: “While there are substantial, important differences between Republicans and Democrats, critical political debates are at least as often driven not by the GOP/Democrat dichotomy, but by the split between the Beltway political establishment and the rest of the country.”

In a situation like this supporting a third party candidate like Bob Barr or a true major-party maverick like Ron Paul can serve a great purpose. Looked at from a horse race perspective these candidacies are almost uniformly failures. The most successful in the last generation - Ross Perot - did not win a single electoral vote. But he won 19% of the popular vote on a candidacy centered on, if not almost entirely based on, balancing the federal budget. The deficit reached a then-high of 316 billion dollars in July of 1992 - and was balanced by January of 1998! There are plenty of reasons for the turnaround, and the US economy is unfathomably complex; on such a scale it is basically impossible to draw a 1-to-1 correspondence with any kind of cause and effect. But Perot’s candidacy put the issue on the table and made fiscal responsibility in Washington a priority.

Those of us deeply disappointed with the Democrats and who are partially redirecting our energy, time and money elsewhere can aspire to much the same result. No one seems to think the Libertarian Party is poised to replace one of the current major parties (though such seismic shifts have happened occasionally), and there is no reason to expect additional ones as long as the Lani Guinier Heresy is alive and well. But we are not fighting to change the anatomy of the body politic, rather to inject some unpopular ideas into it. Political, media and cultural leaders at the highest levels are very much at ease with a system where criminality is mere mischief and the natural result of policymaking. Such things are to be grappled with in academic settings and think tanks, not prosecuted in court. Changing that environment would result in a great deal of discomfort and there is an enormous predisposition to just look discreetly away. (Please see Andrew Sullivan’s demolition of this monstrous proposition). If we can help to end the polite ignoring of lawlessness, the treating of felonies as shuttlecocks to be batted around as part of a delightful but inconsequential game - if we can get at least some of them to start living by the rules the rest of us must live by - then our efforts will be a success regardless of whether or not they ultimately result in an ongoing movement.

The results of such an audacious concept have been especially clear this week. First up is Seymour Hersh’s blockbuster article in the New Yorker describing how the administration has bypassed Congress in its efforts to begin a war with Iran. Basically, Congress authorized money for covert operations to destabilize the Iranian government. Covert ops go through the CIA, but the CIA is required to report to Congress and is also the intelligence agency with the least enthusiasm for helping the White House invent convenient stories. Probably either of these is unacceptable and together are intolerable. So the activities were funnelled through the military, and suddenly no one on Capitol Hill needed to be told anything. Hersh’s sources sound almost comically naïve: “Senior Democrats in Congress told me that they had concerns about the possibility that their understanding of what the new operations entail differs from the White House’s.” The administration has continuously demonstrated its “different understanding” of its need to submit to oversight since it took office. Your concerns are only beginning to dawn now?

Next, consider the news that the House Oversight Committee issued subpoenas for the President and Vice President’s interview records from Special Counsel Patrick Fitzgerald. It was issued because we still don’t know all the relevant details over the compromising of a CIA operative. Since such an action has real (as opposed to fictional) national security implications it is important to know exactly what happened. Of course, finding out exactly what happened would put the administration somewhere on the political spectrum between Approval Rating Below The Mendoza Line and Would You Rather Resign Or Be Impeached? Perhaps unsurprisingly the DOJ flat out said it would not comply.

Here is where we get to the crux of the matter. I hate to put it in such stark and extreme terms, but the question Congress must now answer is, are you with the Constitution or with the President? The two have become irreconcilably opposed. I have basically accepted that Congress has by its actions declared itself in favor of all of the President’s major policies. It approves of continuing in Iraq to the indefinite future, of torture, of warrantless wiretaps and “basket” warrants that make a mockery of the 4th Amendment, and so on. But right now its very relevance as a body is being challenged. I am all but certain that even a rump GOP would be able to effectively sound the alarms and shriek at the imperial (get used to that word) actions of a President Obama who makes obvious and logical use of powers currently being established. That would not mean our system of checks and balances was being upheld, however. It would just mean that Republicans are still able to shape the Washington narrative even as a nearly crippled minority.

Upholding the system requires action now, and it needs to be more than issuing paper to a contemptuous executive. If Congress really wants to defend its role and re-establish its relevance then the only options left are direct confrontation: Slap handcuffs on Harriet Miers and Joshua Bolten and let them sit in the House jail. Have the Senate Judiciary Committee vote on a contempt citation for Karl Rove, give him a deadline and tell him he will join his erstwhile companions if he does not show up. And yes, begin suggesting that the Attorney General may end up there as well if he continues to defy them. Let the right turn any of them into a cause célèbre if they want; let GOP leaders in Congress rush to their defense if so moved. Let the White House be the ones appealing to judges for relief for a change. There is too much at stake for Congress to continue its weak protestations. If nothing changes it will be responsible for a terrible precedent: That a President can, with enough arrogance, bullying and defiance, ignore Congress with impunity.