Eats, Local

Eric snagged us a couple Dungeness crabs today and then went on to create both an excellent tartar (I believe K. Casey had some influence) as well as some superb crabcakes, incorporating baked fennel root and shallot.

Side dishes were from the garden: red and golden beets and associated greens and cauliflower.

Yowzah!

Flushing Democracy Down the Drain

Glenn Greenwald has definitely earned my admiration for his heroic time in the trenches on a multitude of subjects. Most recently, he has been focused on the pathetic spinelessness of your elected democratic senators and representatives when it came to balancing our fundamental civil rights against the bush administration's claims that they can spy on all of us without a need for a warrant. That latter is in clear violation of the Bill of Rights. In the process of demonstrating their cowardliness, these elected officials agreed that the corporate co-conspirators to the current administration in prior almost-certainly illegal spying of this sort (benefitting said co's to the tune of multi-million-dollar government contracts - sound familiar?) should be granted legal immunity.

GG's latest post, riffing off of new book by New Yorker writer Jane Mayer ("The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals") is more big-picture, reminding us that the destruction of the former seemingly model country we lived in has been many-facetted:

The New Yorker's Jane Mayer, one of the country's handful of truly excellent investigative journalists over the last seven years, has written a new book -- "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals" -- which reveals several extraordinary (though unsurprising) facts regarding America's torture regime. According to the New York Times and Washington Post, both of which received an advanced copy, Mayer's book reports the following:

"Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners connstituted torture and could make the Bush administration officials who approved them guilty of war crimes."

"A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantanamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were 'enemy combatants' subject to indefinite incarceration."

"[A] top aide to Vice President Cheney shrugged off the report and squashed proposals for a quick review of the detainees' cases . . .

'There will be no review,' the book quotes Cheney staff director David Addington as saying. 'The president has determined that they are ALL enemy combatants. We are not going to revisit it.'"

"[T]he [CIA] analyst estimated that a full third of the camp's detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions -- up to half -- were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda."

[T]he International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were 'categorically' torture, which is illegal under
both American and international law".

"[T]he Red Cross document 'warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.'"

This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice.

That's why this ongoing, well-intentioned debate that Andrew Sullivan is having with himself and his readers over whether "torture is worse than illegal, warrantless eavesdropping" is so misplaced, and it's also why those who are dismissing as "an overblown distraction" the anger generated by last week's Congressional protection of surveillance lawbreakers are so deeply misguided. Things like "torture" and "illegal eavesdropping" can't be compared as though they're separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.

In fact, none of the scandals of radicalism and criminality which we've learned about over the last seven years -- including the creation of this illegal torture regime -- can be viewed in isolation. They're all by-products of the country that we've become in the post-9/11 era, primarily as a result of our collective decision to exempt our Government leaders from the rule of law; to acquiesce to the manipulative claim that we can only be Safe if we allow our Leaders to be free from consequences when they commit crimes; and to demonize advocates of the rule of law as -- to use Larry Lessig's mindless, reactionary clichés -- shrill, Leftist "hysterics" who need to "get off [their] high horse(s)".

That is the mentality that has allowed the Bush administration to engage in this profound assault on our national character, to violate our laws at will. Our political and media elite have acquiesced to all of this when they weren't cheering it all on. Those who object to it, who argue that these abuses of political power are dangerous in the extreme and that we cannot tolerate deliberate government lawbreaking, are dismissed as shrill Leftist hysterics.

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The National Surveillance State

Hoping that at least the "apo" in "apoplectic" with regard to the Senate approval of the FISA-reinstatement and telecomm-immunity bill might get ground off with a little time, I have as you probably did not notice been in hiatus here. [That said, what's "plectic" connote for you?]

In any case, hoped-for erosion has not happened. I will modulate my apoplecticism as best I can here. What a bunch of wusses those Senator-DINOs ("democrats-in-name-only") continue to be! I believe my two at least got up the gumption to vote against the final bill. There's a lot of them that need to be thrown out on their ass this fall in favor of folks who will actually represent their electorate instead of continuing to suck the teats of the lobbyists, in this case the telecomm giants but also the pharmaceutical industry, the energy industry, and that military-industrial complex Ike warned us about way back when.

It's a very sad day when a sad-sack war-criminal like George the Least can bully a supposedly equal branch of the gummint into timidly bowing and scraping. Some congress-cowards will almost certainly be both defrocked and ejected from office over their pitiful performance in this.

Jack Balkin provides some disturbing context for this whole business of the folks who supposedly work for us, at our command, instead turn around and spy on us and otherwise violate the rights granted to us by the Constitution that formerly was a vital bulwark of our form of government:

We have been covering the features of the new FISA act (here, here, here, and here), and I won't repeat that analysis here. I continue to think that the new procedures in Title I are far more worrisome than Title II, the immunity for telecom companies. But in this post I want to say a few words about the larger meaning of what has happened.

First, its worth watching to see if President Bush issues a signing statement to the legislation that reserves the right to disregard any provisions requiring accountability and reporting to Congress and the courts. He has done so before with other legislation, for example, regarding national security letters. If President Bush does issue such a signing statement, even after having repeatedly pressed for this bill, Democrats will look particularly foolish; for it is these provisions (and the FISA exclusivity provision) they have pointed to as the major reason why it is acceptable to vote for the bill. Of course, Bush will only be in office for about 200 more days, so he will have comparatively few opportunities to act on his threat to disregard the accountability and reporting provisions. Thus the real issue is whether the next Administration will continue to hold the same views as Bush/Cheney/Addington on the President's Article II powers to disregard legislation. If the next Administration does hold such views, even the FISA exclusivity provision won't mean much, because the next President will simply disregard it, much as Bush disregarded FISA's already existing exclusivity provision.

Second, the passage of this bill looks very much like a repeat of 2002, when the Democrats, eager not to be cast as weak on national security, caved on supporting an authorization for the war in Iraq, or 2006, when they caved on the Military Commissions Act. You might think that they had learned their lessons by now. When you give George Bush what he wants, people don't think you are strong on national security. They think you are weak because you are a pushover. If you can't stand up to a lame duck President with 30 percent approval ratings, who are you ever going to stand up to?

I note that one of the great architects of the give-Bush-whatever-he-wants-so-he-won't-call-us-weak strategy in 2002 was Tom Daschle, then the Democrats' leader in the Senate. As you may recall, Daschle's wisdom was rewarded by the loss of is own own Senate seat. These days, he is one of Barack Obama's closest advisors. Perhaps it is only a coincidence that Obama has taken the positions he has taken. Indeed, as the presumptive head of his party Obama effectively signaled by his support that the Democrats should not try to block this bill.

Third, you may still be wondering how George Bush triumphed, given that he has almost no credibility or clout remaining. My answer to this question is that quite apart from the natural cowardice of substantial segments of the Democratic party in the House and Senate, there is a far larger development going on. Let me say a few words about what that is.

Sandy Levinson and I have noted previously that we are in the midst of the creation of a National Surveillance State, which is the logical successor to the National Security State. And we have noted that, like the National Security State before it, the construction of this new form of governance will be a joint effort by the two major parties. It so happens that in 1947, when the National Security Act was passed, the Democrats controlled the Presidency while the Republicans controlled Congress. In this case it is the reverse. But the larger point is that both major political parties are committed to the build up of surveillance programs and technologies for purposes of security and the delivery of government services. We are going to get some form of National Surveillance State. The only question is what kind of state we will get. As of right now, it looks like we will get one that is far less protective of civil liberties than we could have gotten. Some of the new features of the surveillance bill have sunset provisions, and others may be altered through amendment if and when the Democrats take the White House. Still the fact that Barack Obama ended up supporting this bill is not particularly good news.

Indeed, the fact that Congress is now giving the President the authority to do much of what he was probably doing (illegally) before suggests that Bush's illegal program has to a large degree been ratified by Congress. If you want a historical example, although not a perfect one, it is Lincoln's decision to (illegally) suspend habeas corpus, which was later followed by Congress's ratification of Lincoln's suspension. It is true as a formal matter that Congress has not officially approved of what Bush has done, and it has granted immunity only to the telecom companies, and not to those Administration officials who, in effect, conspired to violate FISA. But at this point I am doubtful that the next Administration will try to prosecute former officials for violating FISA, especially now that Congress has effectively blessed the formerly illegal programs. If this is not a ratification in form, it is surely one in substance.

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I encourage you to follow link to last couple paragraphs - it's really not a lot more reading! I do think phrasing in last sentence above is catty-wampus. If not in substance, certainly in form.