Monday, November 22, 2010

On Waterboarding, Bush Memoir Less Than Complete

      In his final weeks in office, President George W. Bush was beset with what he describes in his memoir Decision Points as a “flood” of pardon requests submitted by people who “pulled me aside” to special plead for some friend, family member or former colleague. At first “frustrated” and then “disgusted,” Bush resolved “that I would not pardon anyone who went outside the formal [Justice Department] channels.”
      It is a good story, but — as the New York Times reporter Charlie Savage notes — “incomplete.” In fact, as Savage wrote on the Times’ blog The Caucus, Bush granted a batch of 20 pardons on Dec. 23, 2008, including at least four who went outside the Justice Department channels.
      As with the self-enhancing version of his pardons policy, so too with Bush’s description of one of the most momentous of his decision points: his personal authorization for CIA and military interrogators to use “waterboarding” on suspected terrorists. The four-page account (pp. 168-171) so oversimplifies the events before and after Bush’s directive as to be at the very least “incomplete” — and, for any lesson-drawing purposes, simply wrong.
      Bush traces the origins of the CIA’s “enhanced interrogation techniques” to the capture in March 2002 of Abu Zubaydah, purportedly a close associate of al Qaeda leader Osama bin Laden, and his initial questioning by FBI agents. As Bush tells it, the FBI interrogation ran dry and the CIA proposed to take over in a secret location with additional techniques. “At my direction,” Bush writes, “Department of Justice and CIA lawyers conducted a careful legal review.” That review found all the techniques constitutional and lawful. Even so, Bush ruled out two that “went too far,” but approved the others, including waterboarding.
      To Michael Scharf, a law professor at Case Western Reserve University in Cleveland who has studied and written extensively on the issue, the account hardly begins to tell the story. In Scharf’s account in a law review article and his forthcoming book, Shaping Foreign Policy in Times of Crisis, it was not Bush, but Vice President Dick Cheney and his lawyer, David Addington, who drove the legal review — determined to find the interrogation techniques lawful.
      Cheney succeeded by the bureaucratic ploy of cutting out potential opponents. As Scharf explains, the interrogation program was classified “need to know” instead of merely “top secret.” The effect was to keep the plan from the top lawyers of each of the military services and, most significantly, the State Department’s legal adviser, the office most expert in interpreting the U.S.-signed treaties banning torture. The “careful” legal review that Bush describes was, in Scharf’s words, “completely one-sided.”
      Unmentioned by Bush, the memos upholding the techniques — and twisting the previous view of waterboarding as torture — have been rescinded. Whatever its legal basis, Bush credits the waterboarding and other of the torture-like techniques used on Zubaydah with breaking his resistance. CIA interrogators supposedly gained pivotal information that led, eventually, to the capture of 9/11 mastermind Khalid Sheikh Mohammed in March 2003. And KSM provided information “vital to saving American lives” that “almost certainly would not have come to light without the CIA’s enhanced interrogation program.”
      Nowhere does Bush mention the later downgrading of Zubaydah’s importance. In court filings, the government now disclaims any allegation that Zubaydah is a member of al Qaeda or played a role in the September 11 or other attacks on the United States. Nor does Bush acknowledge the sharp dispute about the supposedly invaluable intelligence gained from the enhanced interrogation techniques.
      The most telling refutation comes from former FBI agent Ali Soufan, who helped interrogate KSM for three months (March-June 2002) before the CIA took over. In successive op-ed articles in the New York Times in April and September 2009 and comments elsewhere, Soufan labels the puffed-up accounts of the intelligence gained from the enhanced interrogation techniques as “false claims.” He says that KSM was providing “actionable intelligence” under traditional techniques and notes that KSM has boasted of providing false information to later interrogators. As for Zubaydah, Soufan similarly says no intelligence was gained that was not or could not have been gained from regular interrogations.
      As with waterboarding, Bush is incomplete in describing some of the administration’s other post-9/11 legal policies. He describes his early decision to treat the Guantanamo detainees as outside the protections of the Geneva conventions (pp. 166-167) with no mention of the State Department’s position that in fact they were covered by the U.S.-signed international accords. He describes the creation of the “military commissions” to try Guantanamo detainees (p. 167) with no mention of the departures from the procedures for regular military tribunals. And after acknowledging the Supreme Court’s decision in Hamdan v. Rumsfeld (2006) striking down the military commissions, Bush claims that Congress solved the problem with legislation passed later that year (pp. 177-179). But he does not mention of the court’s later ruling, Boumediene v. Bush (2008), that found unconstitutional the critical provision in the law to limit judicial review of the reconstituted military commissions’ decisions.
      Bush’s acknowledgment of having authorized waterboarding has prompted calls from human rights groups, including Amnesty International and the American Civil Liberties Union, to prosecute him for violating U.S. law against torture. An administration that has already given a pass to the lawyers who wrote the torture memos is hardly likely to take on a former chief executive. But the American people still deserve the complete torture story — and they have gotten nothing close to that from Bush’s first-person account.

Sunday, November 14, 2010

Mixed Reviews for First Post-Citizens United Election

      The United States has just completed its first, post-Citizens United national election. Total cost: $4 billion, including nearly $300 million from independent groups that benefited from the Supreme Court’s decision freeing corporations and unions to spend unlimited sums in political campaigns. The reviews are decidedly mixed.
      “We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
      To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
      As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
      The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
      The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
      One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
      Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
      Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
      “All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
      The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
      Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
      Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
      At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
      To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”

Monday, November 8, 2010

The Campaign That Iowa's Justices Might Have Won

      Jeffrey Neary drew the ire of social conservatives in 2003 when, without realizing, the Sioux City, Iowa, judge signed a divorce decree for a lesbian couple who had moved to the state after having formed a civil union in Vermont. Iowa did not recognize same-sex marriages at the time, so Neary revised the court document to show that he had dissolved the couple’s civil union.
      Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
      Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
      With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
      Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
      Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
      The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
      In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
      The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
      Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
      As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
      To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
      That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
      Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.