The Connect U.S. Fund has launched a new two-year initiative to help shape debate during the upcoming Presidential transition.  As part of this effort, they’ve asked leading thinkers and advocates to talk about what should be the top two or three foreign policy priorities for the next President.  They’ve also kindly allowed us to cross-post the responses here.

Today, we’ll hear from Elisa Massimino.  You can find the previous posts here.  Thanks again to Heather Hamilton and Eric Schwartz for making the cross-postings happen.

Tonight, many Americans will tune in to watch Senator McCain and Senator Obama face off in the final presidential debate before the 2008 election. With just twenty days left in the campaign, the candidates are relentlessly focused on highlighting their differences. But the fury of this final round of sparring should not drown out the sound of a particular silence: there is no debate going on between the candidates about whether the United States should continue to allow the torture of prisoners in U.S. custody. Last month, in the first debate between the two parties’ nominees, Senator Obama and Senator McCain agreed that the United States must end the use of torture, which has stained our national honor and undermined the ability of the United States to lead.

Restoring our nation’s commitment to the rule of law must be a top priority for the next president of the United States. What the next president says will be important in this effort. In the early primary debates, both nominees condemned torture rather than extol the supposed heroism of 24’s fictional Jack Bauer or call for a doubling of the size of Guantánamo, as some of their opponents did. Hearing more from the two candidates tonight about the particulars of how they plan to restore the rule of law would be instructive. But, because of the way the current administration has sought to distort, obscure and evade the clear language of the law, words alone — from the candidates now or from the new president in January — will not be enough. After all, President Bush has repeatedly asserted that “we do not torture,” meanwhile privately authorizing conduct like waterboarding that our own military has long considered to be war crimes. It will be the actions of the next administration that will either confirm Vice President Cheney’s assertion of a “new normal,” or will prove him wrong.

The next president should prioritize a return to the rule of law in two key areas: enforcing the prohibitions on torture and other cruelty; and abandoning the failed experiment at Guantánamo in favor of the proven effectiveness of our federal criminal justice system. Taking these steps will go a long way toward restoring the essential moral authority of the United States as a leader for human rights and will strengthen national security by contributing to a more effective counterterrorism strategy.

The next president will have a window of opportunity to signal to the American people and the rest of the world that the policies of the last seven years were an aberration and that the United States is serious about restoring the rule of law, upholding our Constitution and respecting the international rules our country played such a central role in formulating.

Here’s the 12-step program to get us back on the straight and narrow:

• Renounce torture and official cruelty, ideally in the inaugural address.
• Enforce existing bans on torture and cruel treatment.
• Repudiate and rescind all orders, memoranda and legal opinions authorizing cruel treatment or secret detention.
• Release publicly all documents authorizing cruel treatment, secret detention, or rendition.
• End secret prisons and the practice of holding “ghost prisoners.”
• Put a moratorium on extraordinary renditions and direct the National Security Advisor to undertake a 90-day review to assess the use of diplomatic assurances and issue new regulations to ensure we are not sending people to places where they are likely to be tortured.
• Announce the intention to empty the Guantánamo detention facility within one year.
• Suspend pending military commission proceedings and terminate Combatant Status Review Tribunals and Administrative Review Boards.
• Direct the Attorney General to review Guantánamo cases for federal court prosecution.
• Direct the Secretary of State to perform individualized risk assessments and review remaining cases for transfer to prosecution, repatriation, or resettlement.
• Direct the Attorney General to identify secure U.S. detention facilities capable of housing detainees identified for federal court prosecution.
• Establish a bipartisan commission to investigate U.S. government detention and interrogation operations, assess the strategic impact of these operations, identify lessons learned, and make recommendations to avoid future abuses.

The misguided embrace of indefinite detention, torture and deeply flawed military commissions has greatly damaged the reputation of the United States, fueled terrorist recruitment and undermined international cooperation in counterterrorism operations. Repairing our reputation as a nation committed to the rule of law will require bold action. That must start with finally closing the detention facility in Guantánamo and demonstrating — in deed, not just in word—an unequivocal commitment to treating all prisoners humanely.

Elisa Massimino is the Chief Executive Officer and Executive Director of Human Rights First (formerly the Lawyers Committee for Human Rights). Elisa is the organization’s chief advocacy strategist, an expert on a range of international human rights issues and a national authority on US compliance with human rights law. She testifies frequently before Congress, writes extensively for legal and popular publications, and serves as one of the organization’s primary spokespeople with the media. She is Human Rights First’s point of contact with U.S. government leaders, international diplomats, and human rights opinion leaders and decision makers.

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There’s word today from numerous sources that Colin Powell will go on Meet the Press this Sunday and endorse Barack Obama. The Obama campaign certainly isn’t doing anything to discourage the speculation:

Today Obama spokesperson Linda Douglas said she has no news on the Powell front, but the campaign would obviously love an endorsement.  ”We would welcome the support of somebody with such a distinguished and honorable career as General Powell,” she told me this morning, as Obama’s plane flew to Virginia for a rally.  Obama has previously cited Powell as a potential member of his administration, and the two have been in touch before. “I know they talk from time to time about foreign policy matters,” Douglas said, though she did not know the last time they spoke.  Powell is widely viewed as a thoughtful public servant who carries credibility (and experience) in both parties.

Quite a few folks in the progosphere think Powell endorsing Obama would be a great thing.  I’m not so sure.

Like many others, I had a great deal of respect for Powell before he joined the Bush Administration.  His story was a compelling one and his service was largely distinguished.  In 1996, Powell chose, for a variety of reasons, not to run for President.  Had he done so, he very well might have defeated Clinton.  Instead, he remained on the sidelines until Dubya asked him to serve as Secretary of State.

These days, Powell is often viewed as a tragic figure, largely because of his 2003 presentation at the UN Security Council during the Administration’s push for war with Iraq.  According to Powell, he was duped by the CIA, who convinced Powell that the intelligence behind his presentation was unimpeachable.  Powell then went out and made the case for war.

Thirty months later, Powell told Tim Russert that the CIA had misled him, using intelligence based on discredited sources.   Since then, conventional wisdom has given Powell the benefit of the doubt.  Many commentators regard his statement that he had been misled as the same thing as an apology:

Private warnings cannot cancel out Powell’s hawkish presentation to the U.N., but unlike so many war cheerleaders in politics and the media, he owned up to his mistakes. On national television, Powell called the U.N. address a “blot” on his record.

Fair enough — everyone makes mistakes, and to his credit, Powell has acknowledged (or at least gave the appearance of acknowledging) that he was wrong.  Second chances are the American way, and certainly a Powell endorsement of Obama would represent an open repudiation not only of his friend John McCain, but also of the Administration for whom he worked.

There’s just one small problem.  Powell’s testimony before the UNSC was only the second biggest “blot” on his record.

The biggest was, and is, his tacit support for torture.  If, as the Nuremberg tribunals established, knowledge is complicity, then Colin Powell is guilty of war crimes.  And unlike Iraq, he’s never apologized for his role in helping to shred the Constitution, ignore the Convention against Torture, and trash the Geneva Conventions.

Think I’m exaggerating?  Here’s what Jane Mayer has to say in The Dark Side:

Bush also knew about, and approved of, White House meetings in which his top cabinet members were briefed by the CIA on its plan to use specific “enhanced” interrogation techniques on various high-value detainees.  The meetings were chaired by Rice. . . . The participants were members of the Principals Committee, the five Bush cabinet members  who handled national security matters:  Vice President Cheney, Secretary of State Powell, Secretary of Defense Rumsfeld, CIA Director Tenet, and Attorney General Ashcroft.

Knowing how the Agency had been blamed for ostensible “rogue” actions in the past, Tenet was eager to spread the political risk of undertaking “enhanced interrogations.” However, some members of the group became irritated with Tenet’s insistence upon airing the grim details.  “The CIA already had legal clearance to do these things,” a knowledgable source said, “and so it was pointless for them to keep sharing the details.  No one was going to question their decisions. . . . It’s not as if any of the principals were debating the policy — that was already set.  They wanted to go to the limit that the law required. . . .”

There is no indication. . .that any Bush cabinet members objected to the policy. [emphasis added]

As Mayer acknowledges, Powell did object quite strongly to Bush’s decision to suspend the Geneva Conventions.  But he did not make those concerns public or threaten to resign.  He merely accepted the outcome and soldiered on.  It is only at the time of Abu Ghraib (and the first media reports of John Yoo’s infamous August 2002 “torture memo”), Mayer notes that Powell (along with Rice) began to express qualms:

After reading the torture memo  itself for the first time in the newspapers, Rice and Powell confronted Gonzales together and furiously insisted that there be “no more secret opinions on international and national security law.”  Their righteous anger seemed somewhat undercut by reports that Tenet had provided graphic details of specific coercive interrogations during the Principals Committee meetings while both were present.  And while they directed their frustration at Gonzales, neither had the temerity to confront Cheney, who clearly was the true source of these policies. [emphasis added]

Colin Powell passively assented to torture.  Although he occasionally raised concerns, there is no evidence that he threatened to resign — as Ashcroft and others did over the issue of domestic wiretapping.  He sat in meetings and listened as George Tenet offered graphic descriptions of torture committed by U.S. government officials — and never once objected, other than to complain that Tenet’s statements were unnecessary, given the fact that the President already had authorized torture.

As was the case with his presentation at the United Nations, he accepted what he heard and did as he was told.  Only later, after the Yoo memo and the Abu Ghraib scandal became public, did he begin to object — and then only to ask if there were any other memos he should know about.  At no time did he confront Cheney or Bush, threaten to go public, or quit in protest.

Later on, after he was once again a private citizen, Powell did raise concerns about the Administration’s policies, writing in 2006 to John McCain to express his opposition to proposed rules on Military Commissions:

In his letter to McCain, Powell said the effort to “redefine” the article was “inconsistent” with his previous opposition to the use of torture. “The world,” he wrote, “is beginning to doubt the moral basis of our fight against terrorism.” . . .

Powell declined yesterday to address Bush’s comments. “To say that we want to modify, clarify or redefine Common Article 3 [of the Geneva Conventions], which has not been modified for the 57 years of its history, I think adds to the doubt” about U.S. morality, he said. “Plus I believe that the legitimate concerns that the administration has can be dealt with in other ways.”

The problem, of course, is that there is no public record during Powell’s tenure as Secretary of State of his “previous opposition to the use of torture.”  In his letter to McCain, Powell makes it clear that his objection is not with the underlying policy, but rather the tactics around the military commission.  That is not exactly taking a stand in the face of evil or speaking truth to power.

Silence in the face of evil is assent.  In the eyes of the law, it’s called conspiracy.   At best, Powell’s  actions — both in regard to Iraq and to torture — show a lack of critical thinking.  At worst, they demonstrate profound moral cowardice.

So pardon me if I’m not thrilled at the notion of Powell endorsing Barack Obama.

Related posts

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Twenty questions I would like to see asked at the debate tonight:

1.  Are we at war with Pakistan?  Senator Obama, given your pledge to go into Pakistan, if necessary, to take out Osama bin Laden, do you support President Bush’s current counter-insurgency efforts along the Afghanistan-Pakistan border?  And Senator McCain, when Senator Obama made those comments, you accused him of being reckless.  Do you now think President Bush is being reckless?

2.  Numerous reports have indicated that the State Department is woefully underfunded and understaffed.  Secretary Gates, among others, has urged Congress and the President to take steps to address these concerns.  Congress has largely been unsympathetic.  What would you do, as President to make the State Department more effective, and to give it the resources it needs to succeed?

3.  Do you support making USAID a cabinet-level agency?  Given the current financial crisis, can the United States afford to continue its foreign assistance programs?  Do you support reestablishing the US Information Agency or a similar construct to coordinate and strengthen our public diplomacy?

4.  Is the United States more or less safe and secure than it was on September 12, 2001?  Why or why not?

5.  Senator McCain, can you please tell me what the difference is between Russian incursions into Georgia and American incursions into Pakistan?  Don’t both involve a large power moving into territory controlled by a democratic ally of the United States?

6.  Some have argued that the American century is over and that China will soon be the world’s dominant economic and political power.  Do you think that is accurate?  Why or why not?  Would it matter if the United States wasn’t the biggest dog in the yard anymore?

7.  Senator McCain, five former Secretaries of State, including two who have endorsed you, have called for dialogue with Iran without preconditions.  You have stated your opposition, and your candidate for Vice President has suggested that such views are naive.  Yet when it came time for you to choose someone to brief Sarah Palin on foreign policy, you asked Henry Kissinger, one of those five, to do it.  Do you still believe that it is not possible for the United States not to talk to Iran?

8.  Senator Obama, are there any situations where you think it would be necessary to set conditions before meeting with a foreign leader?  In other words, is there anything that any leader can do that would make it impossible for you to meet with him or her?

9.  Senator McCain, your running mate has suggested that the United States should not second-guess Israel should it decide to attack Iran.  Is that your view as well?  Senator Obama, do you agree or disagree?

10.  Both of you have called on the Bush Administration to close Guantanamo and to end the practice of torture.  There is growing evidence that Bush Administration officials may have violated U.S. law as well as treaties to which the U.S. is a signatory.  Would you favor the investigation of such allegations and the prosecution of those, up to an including President Bush and Vice President Cheney, found to have broken American laws including statutes against war crimes?

11.  What can the United States do to strenghten the United Nations?

12.  Should the United States ratify the International Criminal Court treaty?

13.  What can the United States do to prevent genocide?  Would you favor military intervention by U.S. forces if it could help prevent a genocide?  Would you have intervened in Rwanda?  What are you going to do in Sudan?

14.  What is the one foreign policy issue that you think is currently under the radar but will have an impact on your administration?

15.  Most of the world has come to regard the United States as part of the problem rather than part of the solution.  What steps would you take to reverse that?

16.  Have we “lost” Latin America?  What steps would you take to reverse growing anti-Americanism in the region?

17. When this campaign started, no issue was bigger than Iraq.  Now it appears to be an almost forgotten issue.  Senator McCain, given Prime Minister Maliki’s outspoken desire to see American troops leave, why do you continue to oppose a phased withdrawal from Iraq?  Senator Obama, is there any situation where you can see American troops remaining in Iraq beyond the timetable you outlined?

18. Is the war in Afghanistan lost?  Would you favor a surge there along the lines of what happened in Iraq?

19.  Senator McCain, how can we afford to stay in Iraq and deal with the financial crisis at home?  Senator Obama, you have suggested moving troops in Iraq to deal with the growing crisis in Afghanistan.  Can we afford to do that as well?

20.  Given the fact that Russo-American relations have cooled considerably since Russia’s invasion of Georgia, what steps would you take to ensure continued Russian-American cooperation on anti-proliferation measures, including not only implementation of Nunn-Lugar, but also the situations in Iran and North Korea?

Add your own questions in the comments below.

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This morning, The Washington Postdated confirms that yesterday’s attack on the U.S. Embassy in Baghdad was the work of a group known as the Soldiers’ Brigade of Yemen, an affiliate of al Qaeda, using techniques that they may have learned while fighting in Iraq:

[T]he first vehicle exploded near a guard post. Cameras then recorded attackers taking positions nearby, until a second vehicle packed with explosives detonated near a sidewalk. . . . The use of two vehicle bombs — one to breach the perimeter of a compound, a second to drive inside and explode — is a tactic used by the Sunni insurgent group al-Qaeda in Iraq.

Matt Duss over at Think Progress demonstrates how this blows away yet another justification for the Iraq war — the “we’re fighting them over there so that we don’t have to fight them over here” idea, also known as the flypaper theory:

Those who have been following the Iraq debate might remember “flypaper theory,” which was one of the earliest exponents of the “incoherent post hoc justifications for the Iraq war” genre. The idea was that there was some limited number of terrorists in the Middle East, and the presence of an occupying U.S. army would lure them to Iraq, whereupon they could all be conveniently killed, presumably as soon as they stepped off the bus.

This plan was prevented from working only by the fact that it was staggeringly dumb. The U.S. occupation radicalized scores of young Muslims, many of whom traveled to Iraq, where they learned terror warfare and were galvanized in the global jihad. And now they’ve begun returning home, to share the tactics and technology developed in a laboratory we provided for them by invading Iraq.

Of course, that doesn’t even take into account the role of torture, Guantanamo, Abu Ghraib and other such obscenities in helping to radicalize Muslims as well.

To put it another way, the Bush Administration have spent  billions upon billions of dollars on the Iraq War, largely based on the bankrupt theory that we are building an island of democracy that will de-radicalize the Middle East.  In reality, we have made things far worse than they would have been had we never invaded, so much so that we have unthinkingly created another generation of terrorists, in the process weakening ourselves to such a degree that we may not be able to fight back the next time the come “over here.”

Imagine how bad things would be if Bush had taken a similar approach to the economy.

Oh.  Wait.

Never mind.

Hat tip:  Obsidian Wings

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. . .because I sure do hear the sound of flip flops.  More from the View:

The man is either delusional, high, suffering from memory loss, or a flat-out liar.  Think Progress has a list of forty-two issues where he has changed course.  Here are three off the list, all concerning the Bush Administration’s pursuit of the War on Terror at home and abroad:

Detention of Detainees

McCain Flips:

In 2003, McCain and Senator Lindsey Graham wrote a letter to then-Secretary of Defense Donald Rumsfeld urging him to resolve the issue of detainees at Guantanamo Bay. The letter6/19/05] said that “a serious process must be established in the very near term either to formally treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action.” In 2005, he told Tim Russert on Meet the Press that “I know that some of these guys are terrible, terrible killers and the worst kind of scum of humanity. But, one, they deserve to have some adjudication of their cases.” [Meet the Press,

McCain Flops:

In 2008 the Supreme Court ruled that detainees at Guantanamo are required to receive habeas corpus rights. McCain called the Court’s ruling “one of the worst decisions in the history of this country.” “Senator Graham, and Senator Lieberman, and I…made it very clear that these are enemy combatants, these are people who are not citizens. They do not and never have been given the rights that citizens of this country have,” he said. [Newark Star-Ledger, 6/14/08]

Torture

McCain Flips:

In 2005, McCain pushed President Bush to sign a bill that would, among other provisions, prohibit “cruel, inhuman or degrading treatment or punishment” of anyone in U.S. government custody. McCain authored the torture ban himself. “We’ve sent a message to the world that the United States is not like the terrorists,” McCain said. McCain was also against waterboarding, saying during presidential primary campaigning “all I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today…It is not a complicated procedure. It is torture.” [MSNBC, 12/15/05 & New York Times, 10/26/07]

McCain Flops:

In 2008, McCain voted against the Intelligence Authorization Bill, which requires the intelligence community to abide by the same standards as articulated in the Army Field Manual and bans waterboarding. [New York Times, 2/17/08]

Illegal Wiretapping

McCain Flips:

In an interview with the Boston Globe in December 2007, McCain was asked if, as President, he would ever authorize illegal wiretapping. “I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is,” he said. “I don’t think the president has the right to disobey any law.” [Boston Globe, 12/20/07]

McCain Flops

The New York Times reported that a letter from top McCain adviser Douglas Holtz-Eakin said that McCain believes that the Constitution gave President Bush the authority to wiretap Americans “without warrants.” The letter says that “neither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001.” [New York Times, 6/6/08]

Kudos to Think Progress for their work on this.

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Take a moment to watch this clip.  It’s from an Obama town hall appearance yesterday in Farmington Hills, Michigan.

At first glance, it seems pretty good.  He says that “there should be no contradiction between keeping America safe and secure and respecting our Constitution.”  He gets in a good shot in about the need to catch the terrorists before you worry about what to do with them.  And he has a great line at the end:  “Don’t mock the constitution.  Don’t make fun of it!  Don’t suggest that it’s un-American to abide by what the founding fathers set up.”

Those are all good points.  The problem is that along the way, he violates two fundamental rules of messaging:

1.  Don’t use your opponent’s talking points to frame your arguments.  Obama did that on three occasions:

“Senator Obama is less interested in protecting people from terrorism than he is in reading them their rights.”

“You may think it’s Barack the bomb thrower, when in fact it might be Barack, the guy running for president.”

“The reason you have this principle is not to be soft on terrorism.”

When you do this, you reinforce people’s preconceptions about you.  If folks are already inclined to worry about whether you’re the right guy, then what they’re going to hear is that Obama is soft on terrorism, has a Muslim name, and is interested in protecting the bad guys.

2.  Don’t try to convince people with facts.  Obama spends over a minute explaining the concept of habeas corpus.  He sounded like a professor.  Most people don’t have any idea what the words “habeus corpus” mean.  But they do understand the underlying principle:  that sometimes, our government makes mistakes, and we need rules to protect innocent people from being thrown in jail indefinitely.  They’ll understand that much more readily than talking about how this right goes back to before we were a country.

So what should have Obama said?  How about something like this:

You know, all of us want to be treated fairly.  You could say that’s the basic idea behind the Constitution and the Bill of Rights:  do unto others as you would have them do onto you.  In this country, we give people the chance to be heard. We promise them that they won’t be tortured.  We say to them that they have the right to prove that they are innocent of the charges against them, and that they don’t have to incriminate themselves.

These are our core values.  These are incredible gifts that the founding fathers gave to us.  And these are the very things that our opponents are now mocking.  How dare John McCain and Sarah Palin suggest that what was good enough for Thomas Jefferson and John Adams and Benjamin Franklin isn’t good enough for us.

Other than our familes, our freedoms are the most precious thing we have .  They are what made this country great.  They are the promise that all men and women are created equal, that we are endowed with certain inalienable rights, and, as you said so beautifully, ma’am, that we are the sweet land of liberty.

John McCain and Sarah Palin, just like George Bush and Dick Cheney, want you to believe that our security is more important than our freedoms.  What you know and what I know — and what McCain and Palin and Bush and Cheney certainly should know is that we cannot have security without freedom.  We cannot have justice without freedom.  We cannot be America without our freedoms.

Those who suggest otherwise should be ashamed of themselves.

They should be ashamed for resorting to torture, for doing the very same things that John McCain himself suffered in Vietnam.  They should be ashamed for letting places like Guantanamo and Abu Ghraib, instead of places like Farmington Hills and Peoria define who we are.  They should be ashamed for allowing waterboarding, beatings, sleep deprivation, and other techniques that we used to think only happened in places like Zimbabwe and Burma and Cuba.  They should be ashamed of themselves for believing that it’s all okay because the President can do anything he wants anytime he wants.

That’s not my America.  That’s not your America.  That’s not George Washington’s or Abraham Lincoln’s or Teddy Roosevelt’s or FDR’s or JFK’s or Ronald Reagan’s America.  Nowhere in our Constitution does it say the President can do anything he or she wants.  Nowhere.  That’s not Martin Luther King’s or Susan B. Anthony’s or Bobby Kennedy’s America.  That’s George Bush’s America.

It’s time we reclaim our heritage of freedom, our role as that shining city on the hill.  It’s time we say “not on our watch,” not here, not in Guantanamo, not anywhere.

It’s time that we say to Bush and Cheney and McCain and Palin and anyone else who supports them, we’re taking America back.  We’re taking America back to what it stands for.  We’re going to make America great again.  We’re going to be the America that respects people’s rights, that honors our core values, that draws so many people around the world to our shores.

Let’s start showing the world why we’re better than our enemies.  Let’s honor our founding fathers by returning to the values that make America America.

That would knock McCain and Palin on their butts.  It would force them to explain why they support the very torture techniques that  John McCain himself endured.  It would make them explain why they aren’t un-American.  It would require them to argue that they don’t want to destroy the Constitution or shred the Bill of Rights.  Tar them with every sin of the Bush Administration, and do it in a way that will leave them no space to reply except by repeating your arguments.

That, after all, is exactly what they’re doing to the Democrats.

So for crying out loud, Senator Obama, stop defending yourself and start attacking them.  It’s the only way you win.

P.S.  To my colleagues in the blogosphere and the mainstream media, this goes double for you.  Stop caring about how many times Sarah Palin lied about the bridge to nowhere and start talking about why Obama and Biden are the right choice. Stop parsing every lie that McCain and Palin tell and start talking about what their Administration would do to the country.  And if you can’t, then shut the hell up.

It’s the Dean Wormer Theory of Politics.  In Animal House, Dean Vernon Wormer tells Flounder, “Fat, drunk and stupid is no way to go through life, son.”

In politics, defensive, bitter, and angry is no way to win an election. 

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There’s a line from Sarah Palin’s acceptance speech that has rankled quite a few progressives and libertarians:

Al Qaeda terrorists still plot to inflict catastrophic harm on America … [Obama]’s worried that someone won’t read them their rights?

The partisan crowd responded, as you would expect, with an extended standing ovation — in fact, it was one of her most popular zingers in a speech filled with them.

Some have argued that Palin’s comment is merely an extension of McCain’s criticism of Boumediene v. Bush.  In that case, the Supreme Court ruled 5-4 that those being held at Guantanamo have a right to habeas corpus under the Constitution and that the section of the Military Commissions Act that took away that right was unconstitutional.  When Boumediene was announced, McCain called it “one of the worst decisions in the history of this country.”

Here, for example, is what Daniel Larison has to say:

[Palin's speech] is a fundamentally misleading framing of the issue of providing detainees with the ability to challenge the charges against them through a judicial process. . . .The question is whether the government has the right to seize someone, whether a foreigner or a U.S. citizen, accuse him of conspiring with terrorists, strip him of all legal protections and keep him detained indefinitely without access to due process.  The McCain/Palin position is apparently that the government can and should do this.

Andrew Sullivan describess Palin’s one-liner as her position on Boumediene, quoting Larison’s comments in even greater detail.  Daphne Eviatar calls Palin “Dick Cheney in a skirt,” arguing that

Palin’s speech last night suggests that in a McCain-Palin administration, the indefinite detention and abuse of foreigners without charges will remain an issue for at least another four years. And it could well be that if McCain has his way with the Supreme Court, we could easily end up with another decision as infamous as Korematsu.

Larison, Sullivan, and Eviatar have a point — it’s clear that the McCain campaign not only dislikes the Boumediene case but also sees it as an opportunity to hit Democrats for being soft on terrorism.

But the real target of Conservative attacks is not Boumediene.  It’s Miranda v. Arizona, the 1966 Supreme Court ruling that a suspect in police custody has the right to consult with an attorney, as well as the right not to incriminate themselves.  The Court also ruled that suspects must be made to understand their rights, and that police cannot interrogate a suspect without an attorney present unless the suspect has waived these rights.

Conservatives despise Miranda v. Arizona.  They hate it more than any other Supreme Court ruling, with the possible exception of Roe v. Wade.  They regard it as a leading example of judicial activism — which they define as the effort of certain judges (including Supreme Court justices) to create (”legislate”) law, rather than merely interpret it.

Since Nixon, conservatives have argued that judicial activists should be replaced by “strict constructionists,”  who, as Wikipedia wryly notes, believe in “a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.”

Scalia, Thomas, Roberts, and Alito all are strict constructionists. Were a case challenging Miranda ever to come before the Court, they would favor overturning the original ruling. For example, in Dickerson v. United States (2000), Scalia, joined by Thomas, said

Miranda was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. . . .Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous.

Here’s what John McCain had to say about strict constructionism in his acceptance speech at the convention:

We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don’t legislate from the bench.

Much as was the case with Palin’s anti-habeas corpus line, McCain’s statement was greeted with thunderous applause.

I read McCain’s statement as an endorsement of the long-standing conservative practice of appointing strict constructionists to the Court (and to lower courts as well).  Larison therefore is right in suggesting that, under a McCain Administration, we could end up with a strict constructionist-dominated Supreme Court capable of overturning Boumediene.

But that’s not really the point.

The real danger is that such a Court would gut Miranda and other key ruling on defendants’ rights, thus opening the door to arbitrary detentions in the United States.

John McCain has stated repeatedly that he would end the practice of torture and close Guantanamo.  But such promises are meaningless if he also were to appoint Supreme Court justices who don’t believe that the Bill of Rights guarantees the right to silence, the right to legal representation, and the right not to incriminate oneself.

Were a strict constructionist-dominated Court to gut Miranda and other key rulings, Americans would live in a country were executive fiat had replaced the rule of law.  Even if McCain were not to use such powers himself, it would only be a matter of time that a future President — say a President Palin, for example — would suspend fundamental rights in the name of national security.

And that, my friends, is the kind of change that we should never believe in.

Related posts

• Twenty Questions for the Debate Tonight
• Obama, Messaging, and Dean Wormer
• More on McCain, Torture, and the Bush Administration
• Beyond November: Elisa Massimino
• You Have Got to Be Kidding Me, Hillaryland Edition

So a speaker finally and passionately raised the issue of torture, the question of Guantanamo, the need for us to honor our values.  That’s great.  I’m glad.

But why oh why oh why did it have to be John Kerry?

Using the flip flop line was brilliant though.

Too bad Kerry was never this good four years ago.

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• What’s Missing at DNC: Torture, Guantanamo. . .and Cheney
• Twenty Questions for the Debate Tonight
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So far we’ve seen dozens of speakers at the Democratic National Convention.  They’ve attacked Bush and McCain.  They’ve touted solutions to energy and climate change.  They’ve talked about Supreme Court justices and choice.  They’ve talked getting out of Iraq, and winning the war against the resurgent Taliban in Afghanistan.  A few have even mentioned, in passing, that the United States needs to rebuild its relationship with allies, once agan leading rather than dictating to the rest of the world.

But there is one set of issues that we haven’t heard about yet — not once in two days of banal blathering.

Call it the destruction of American values.  It includes a number of things.

Like torture.

Guantanamo.

Abu Ghraib.

Indefinite detention of American citizens.

Denial of habeas corpus.

Waterboarding.

Rendition.

Black sites.

It’s as if the books by Jane Meyer, Jack Goldsmith, Philippe Sands, and so many others have gone right down the memory hole.

Where’s the anger at this desecration of everything America supposedly stands for?  Where’s the condemnation of the Bush Administration’s trashing of the Constitution?  Where are the demands that these things stop, and stop immediately?

And where are the attacks on the man who most needs to answer for his role in not just allowing, but promoting these abominations?  Where is the condemnation and vilification of Dick Cheney?

There isn’t a politician more unpopular in America today.  More importantly, there isn’t anyone more responsible for the trashing of America’s reputation in the world.

Yet after two days, we’ve heard nothing about him or his comprehensive attack on human rights and civil liberties.  Nothing about his single-minded shredding of the Bill of Rights, Geneva Conventions, and Convention against Torture.  Nothing about waterboarding, sleep deprivation, the use of dogs, or forced confinement.  Nothing about the fact that our allies now believe that this Administration has committed war crimes.

We’ve heard plenty about windmills and wages, but nothing about Cheney’s conscious destruction of American values.

In less than a week, Dick Cheney will take the Darth Vader world tour to the Republican National Convention in St. Paul.  In his primetime speech, he will call Democrats weak, inept, and unwilling to face down “evil.”

If the Democrats fail to call him out on his own evil this week, he’ll be right.

Are Democrats afraid?  Are they unwilling to confront Bush, Cheney, and McCain on foreign policy?   Are they afraid of John McCain because he keeps reminding people on every possible occasion that he was a POW?

There’s a simple way to handle this.  All the Democrats have to say is that the Bush Administration believes that it doesn’t torture.  Then talk about all the things that they now do that the North Vietnamese did to John McCain.  And then point out that according to George Bush and Dick Cheney, John McCain wasn’t tortured. And then say how dare they implement polices once used against our brave servicemen and women.  And also make sure that people know that John McCain actually sanctions torture, as long as it’s committed by the CIA.

It’s the truth.  It reminds Americans of what we stand for without dragging them through the muck and horror of the past seven years.  It also has the advantage of putting both McCain and the Bushies on the defensive.

We’ve heard that Obama-Biden will be different, that they will no longer concede the high ground on foreign policy issues to the Republicans.  But if they never mention torture, Guantanamo, or any of the other terrors that Cheney, Addington, Yoo and company have inflicted on America and the world, then they are just as fearful and timorous as past candidates.

And next week, the Republicans will have free reign to make them look like apologists and traitors.

And in November, Barack Obama will lose.

Related posts

• Obama, Messaging, and Dean Wormer
• Powell, Obama, and Torture
• Ambassador for All War Crimes except Our Own
• Prosecuting Those Responsible for War Crimes
• Was McCain Tortured? Ask Dick Cheney

A provocative comment today from Undip reader jelperman in response to this post:

If McCain is heroic for being tortured, then so are the people who were tortured at Abu Ghraib and Guantanamo.

No, no, no jelperman!  Don’t you know?  It wasn’t torture at Guantanamo or at Abu Ghraib or even Bagram, for that matter.  Just listen to what Dubya said:

Among the euphemisms that the President would employ in the years to follow were “enhanced” interrogations, “robust” interrogations, and “special” interrogations.

You know what we need?  A commission to investigate all this.  Seriously.  Like the 9/11 Commission. Except we need a better name.

I was thinking “grand jury” would do nicely.

But before that happens, we need to ask John McCain to move beyond his history to answer some serious questions about his position on torture.  I respect and honor his service and his courage while in captivity.  I applaud the fact he wants to close Guantanamo.  But his record on this issue is far from spotless: he voted for Military Commissions Act, against using the Army Field Manual standard for all USG interrogations, and even did a cameo on that torturegasm known as 24.

So given those inconsistencies, he needs to explain his position in much greater detail.  So here’s a question for him:

Given that the North Vietnamese tortured you during your time as a prisoner of war, and given your strong assertions, most recently during your August 15 talk at the Aspen Institute, that the United States has no moral imperative to torture, would you support a criminal investigation into allegations that the Bush Administration sanctioned and perhaps even mandated the torture of terror suspects?  And if not, why?

Here’s another one:

As President, would you support the closing not only of Guantanamo, but also of the CIA’s “black sites” in Afghanistan and at least seven other countries?  And would you allow the Red Cross to interview the prisoners currently held in these facilities?

So here you go, mainstream media, your chance to show you have a backbone.

Come on, mainstream media!  You can do it!

Anyone?

Anyone?

Bueller?

Sigh.

Related posts

• Obama, Messaging, and Dean Wormer
• Twenty Questions for the Debate Tonight
• McCain, Palin, Boumediene, and Miranda
• What’s Missing at DNC: Torture, Guantanamo. . .and Cheney
• Prosecuting Those Responsible for War Crimes

From Bob Costas’s interview with President Bush during NBC’s Olympics coverage tonight:

COSTAS: This past week, you restated America’s fundamental differences with China. But given China’s growing strength, and America’s own problems, realistically, how much leverage does the U.S. have here?

DUBYA: First of all, I don’t see America having problems. I see America as a nation that is a world leader that has got great values.

I’m speechless (wordless?  what is the blogging version of speechless?).  I thought he stopped drinking.  Maybe he’s high on vollyball babes.  I mean, Dude, WHERE HAVE YOU BEEN FOR THE LAST SEVEN FREAKING YEARS?????  Just off the top of my head:

1. We’ve lost our lead in manufacturing to China.
2. We’ve mortgaged our economy to the Chinese and others.
3. We now torture, contrary to everything we supposedly stand for.
4. We now detain people indefinitely.
5. We haven’t captured Osama bin Laden or other al Qaeda leaders.
6. We’re mired in two wars, one of which is going badly and while the other is going better, we are spending billions of dollars a month to try to find a way out.
7. Our two largest mortgage lenders are in deep trouble, and the USG probably is going to have to bail them out.  And thousands upon thousands of Americans are losing their homes.
8. As many as a dozen of our elected and appointed officials (Bush, Cheney, Rumsfeld, Ashcroft, Gonzales, Addington, Yoo, Cambone, Wolfowitz, Feith, Rice, Tenet just off the top of my head) may be indicted for war crimes after the Administration ends.
9. The Katrina crisis demonstrated just how incompetent our government can be in the face of a massive human disaster.
10. Guantanamo; Abu Ghraib; Bagram; secret sites in Eastern Europe.

Nope. No problems there.  I apologize Mr. President, you’re absolutely, completely, and irrevocably right insane.

Related posts

• Twenty Questions for the Debate Tonight
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This can’t be good news for the Bush Administration:

Osama bin Laden’s ex-driver, Salim hamdan, has been sentenced to five-and-a-half years imprisonment for supporting terrorism at the first US military trial in Guantanamo Bay.  Hamdan’s acquittal of conspiracy to murder means that on time served he could be eligible for release in just six months, despite prosecutors’ pleas to give him no less than 30 years imprisonment.

I have argued that the next President should commute Hamdan’s sentence to time served.  To their credit, that is for all intents and purposes what the jury did.  Given the fact that they also refused to convict him on the conspiracy charge, this decision represents a pretty serious blow against the Bush Administration’s subvert justice.

Of course, that doesn’t mean that the Bushies don’t have arrows left in their dark quivver.  Before the trial started, Administration officials intimated that even if he were found not guilty, Hamdan would not be released.  If that proves to be the case, then the entire tribunal process truly is a farce.

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I was struck by similarities in the following two descriptions of individuals subjected to information overload.

First, a description from Jane Meyer’s The Dark Side of the Bush Administration trying to cope with a deluge of raw intelligence after 9/11:

[Bush] and Cheney demanded to see all available raw intelligence reports concerning additional possible threats to America on a daily basis. . . . Others who saw the same intelligence reports found the experience mind-altering.  .  .  .Readers suffered “sensory overload” and became “paranoid.” . . .[T]he cumulative effect turned national security concerns into “an obsession.”

Now take a look at this report from Carol Rosenberg of The Miami Herald about the trial of Salim Hamdin, Osama bin Laden’s driver and, subsequent to this report, convicted war criminal:

In the al Qaeda world of driver Salim Hamdan, exhortations to martyrdom and railing at the infidels [became] mind-numbing.  Or so claimed several FBI agents who testified last week at the trial of Osama bin Laden’s driver, the Yemeni with a fourth-grade education. ”Mr. Hamdan pretty much got tired of hearing the same thing over and over again,” said FBI Agent George Crouch Jr. And so, he “tuned out.”

Just to be clear, I’m not suggesting some sort of moral equivalence here.  But the fact that both Bush Administration staffers and al Qaeda camp followers had similar sensory overload experiences is quite striking.  There’s a reason that interrogators, torturers, and cults all use sensory overload — it softens up targets and makes them much more willing to cooperate.

The jury in Hamdan’s case apparently concluded that sensory overload was an inadequate defense (I say apparently because the court’s decision to keep the jurors’ identities secret means we’ll never really know what was behind their deliberations).

Yet the almost exact same conditions existed inside the Bush Administration in the days after 9/11.  And it was the fear and panic of those early days, as Meyer notes, that led Bush, Cheney, Rumsfeld, Ashcroft, and others to conclude that they needed to use any and all means necessary to protect the United States.

Perhaps the time has come to stop thinking of the Bush Administration as evil and start thinking of them as untreated survivors of post-traumatic stress disorder.  PTSD certainly can significantly alter an individual’s behavior, and historians have documented numerous instances where a national trauma has generated what some have called collective psychosis.

That said, I don’t think we can excuse what someone has done just because they were traumatized.  Permit that argument, and almost anything — say, for example, torturing suspects or flying planes into buildings — can be justified.  And that way lies true madness.

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• Kangaroos in Guantanamo, Pope Benedict on Trial
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• Twenty Questions for the Debate Tonight

The Connect U.S. Fund has launched a new two-year initiative to help shape debate during the upcoming Presidential transition.  As part of this effort, they’ve asked leading thinkers and advocates to talk about what should be the top two or three foreign policy priorities for the next President.  They’ve also kindly allowed us to cross-post the responses here.

Yesterday we heard from Connect U.S. Fund executive director Eric Schwartz.  Today, it’s Brian Atwood’s turn.

Transitions are a time of great expectations in Washington. I had the great honor of leading the State Department transition team prior to the Clinton-Gore administration. I worked with an excellent team that included Connect U.S. Fund executive director Eric Schwartz.

The ‘92 transition was a move from a reasonably pragmatic administration of the center-right to a pragmatic administration of the center-left. This year’s transition will see the country moving away from an administration that broke a mold that had roughly accommodated the previous foreign policy spectrum, the “realists” and the “progressive internationalists.”  While there has been some effort in the second Bush term to move away from radical, neo-conservative policies, the residuum continues to influence the attitudes and behavior of much of the world towards the United States.

The first test of a new administration must be to demonstrate by action that our nation can listen and cooperate. Rhetoric to this effect will be well received, but active diplomacy on several fronts will be essential. These include: the Israeli-Palestinian issue; climate change; nuclear proliferation with an emphasis on Iran and North Korea, ratifying the NPT and negotiating with Russia to reduce and eliminate stockpiles; completing the DOHA round; engaging NATO and neighboring countries on our withdrawal from Iraq and our efforts to bolster the Afghan government; working with Pakistan on our common effort to contain Al Qaeda.; creating mature political and economic relations with India and China; and reestablishing American leadership in the effort to mitigate the poverty challenge in Africa, Asia and Latin America.

These objectives are on the top of most people’s list. I would add two more general goals that are often difficult for administrations pre-occupied with crises: (1) we need to spend some political capital on reforming the United Nations; and (2) we need to create a “culture of prevention” within the U.S. government.

The United Nations has been a whipping boy of the right because of its institutional weakness and because, periodically, the Security Council doesn’t support the U.S. position. Often even pro-UN Democratic administrations prefer to avoid the need to reform while regretting the lack of capacity to intervene for peace. The UN can be a useful tool as we pursue a new climate change treaty, the control of nuclear weapons, international cooperation against the terrorist threat and peaceful post-conflict transitions. It is past time that we invest the resources and influence in helping the Secretary General create a stronger organization.

I served on the Brahimi UN Peace Operations Panel. I was impressed by the potential of the UN and quite depressed that our own country, in lieu of supporting the needed reforms, expended its political capital by seeking to reduce our UN contributions. We helped pass many Security Council Resolutions that could not be implemented fully because of a lack of resources. U.S. leadership is capable of changing this vital organization for the better. Now is the time to exercise it.

Creating a culture of prevention within the U.S. government means an intelligence community that can anticipate future crises by better understanding the fault lines of impending disaster. It means having a diplomatic presence in more places. It means creating a new Department for International Development Cooperation capable of coordinating development assistance within the USG and possessing a strong voice on trade and finance decisions that effect development. It means working with the U.N. voluntary agencies, the international financial institutions and regional banks, and the bilateral donor community to help nations develop and avoid crises. It means using our understanding of development conditions, inter-ethnic or religious tensions, international criminal activity and the impact of all of the above on weak governance systems. If we mobilize U.S. government and international partners, we can prevent many of the crises that cause such pain and exhaust our resources today.

The next administration has much to overcome if it is to recover the reputation of a nation that once stood on a “shining hill.” Our foreign policy in the past seven years has been influenced more by fear than by the grandest aspirations of our past. We need to restore our image by stopping torture, closing Guantanamo and standing tall for the principles of human rights and democracy. Those who argue that we cannot be both tough in the battle with terrorists and be true to our most important principles have been proven wrong. It may not have been their intention, but they strengthened our avowed enemies and turned allies into skeptics and opponents. It is time to get back on the right tr