Setting the Record Straight

hilzoy: "My Colleagues Just Stared At That Line"

Michael Crowley catches an important development:

"Obama's new budget plan includes a little-noted sea change in U.S. nuclear policy, and a step towards his vision of a denuclearized world. It provides no funding for the Reliable Replacement Warhead program, created to design a new generation of long-lasting nuclear weapons that don't need to be tested. (The military is worried that a nuclear test moratorium in effect since 1992 might endanger the reliability of an aging US arsenal.) But this spring Obama issued a bold call for a world free of nuclear weapons, and part of that vision entails leading by example. That means halting programs that expand the American nuclear stockpile. For the past two budget years the Democratic Congress has refused to fund the Bush-era program. But Obama's budget kills the National Nuclear Security Administration program once and for all.

"My colleagues just stared at that line," says Joe Cirincione, a longtime nonproliferation expert and president of the Ploughshares Fund. "They had never seen anything like that." Killing the program, he said, was "the first programmatic impact of the new [zero nukes] policy. People have said they want to see more than words, this is the very first action.""

This is serious. And it's very welcome. We need to strengthen international controls on nuclear weapons, not weaken them. That will be very hard to do if we are simultaneously trying to build more. Good for Obama for following through on this point.

Aravosis: OMB says AP got it wrong on climate change memo

The AP breathlessly reported earlier today that a White House memo seemed to undercut the EPA's efforts to regulate greenhouse gasses. OMB has weighed in and said "uh, no." Here is what OMB had to say:

Media reports today are suggesting that OMB has found fault with EPA’s proposed finding that emissions of greenhouse gases from motor vehicles contribute to air pollution that endangers public health and welfare. Any reports suggesting that OMB was opposed to the finding are unfounded.

The quotations circulating in the press are from a document in which OMB simply collated and collected disparate comments from various agencies during the inter-agency review process of the proposed finding. These collected comments were not necessarily internally consistent, since they came from multiple sources, and they do not necessarily represent the views of either OMB or the Administration. In other words, we simply receive comments from various agencies and pass them along to EPA for consideration, regardless of the substantive merit of those comments. In general, passing along these types of comments to an agency proposing a finding often helps to improve the quality of the notice.

Perhaps more importantly, OMB concluded review of the preliminary finding several weeks ago, which then allowed EPA to move forward with the proposed finding. As I wrote on this blog on April 17, the "proposed finding is carefully rooted in both law and science." I also noted: "By itself, the EPA’s proposed finding imposes no regulation. (Indeed, by itself, it requires nothing at all.) If and when the endangerment finding is made final, the EPA will turn to the question whether and how to regulate greenhouse gas emissions from new automobiles."

The bottom line is that OMB would have not concluded review, which allows the finding to move forward, if we had concerns about whether EPA’s finding was consistent with either the law or the underlying science. The press reports to the contrary are simply false.

Yglesias: Richard Posner Throwing In the Towel on the Conservative Movement

I actually don’t know that much about Richard Posner’s political views, being primarily familiar with his (quite good, in my opinion) more abstract and philosophical work. But he’s definitely a political conservative, a Reagan appointee, and an important product of the conservative legal movement. He also seems about done with the whole thing:

My theme is the intellectual decline of conservatism, and it is notable that the policies of the new conservatism are powered largely by emotion and religion and have for the most part weak intellectual groundings. That the policies are weak in conception, have largely failed in execution, and are political flops is therefore unsurprising. The major blows to conservatism, culminating in the election and programs of Obama, have been fourfold: the failure of military force to achieve U.S. foreign policy objectives; the inanity of trying to substitute will for intellect, as in the denial of global warming, the use of religious criteria in the selection of public officials, the neglect of management and expertise in government; a continued preoccupation with abortion; and fiscal incontinence in the form of massive budget deficits, the Medicare drug plan, excessive foreign borrowing, and asset-price inflation.

By the fall of 2008, the face of the Republican Party had become Sarah Palin and Joe the Plumber. Conservative intellectuals had no party.

And then came the financial crash last September and the ensuing depression. These unanticipated and shocking events have exposed significant analytical weaknesses in core beliefs of conservative economists concerning the business cycle and the macroeconomy generally. Friedmanite monetarism and the efficient-market theory of finance have taken some sharp hits, and there is renewed respect for the macroeconomic thought of John Maynard Kenyes, a conservatives’ bête noire.

I don’t agree with this in every detail. I don’t see a lot of evidence, for example, that the GOP’s opposition to abortion rights suddenly became a huge political loser starting in 2006. But Posner is unusual, even among the dissident camp in the conservative movement, in his willingness to acknowledge that (a) conservatism is as conservatism does and you can’t just wash your hands of George W. Bush, and (b) that the failures of conservatism-in-practice were really comprehensive across a whole swathe of different policy domains.

• Drum: Rove on Torture
  

  On Fox News last night, Karl Rove suggested that President Obama's decision to treat captives decently will become an incentive for terrorists to join al-Qaeda:

  It has served, frankly, I think, as a recruiting tool. They can now take these memoranda and go to prospective, you know, recruits and say, This is the worst that the enemy, the United States, would ever do to you....It’s given them a tool to make it more attractive to recruit people, and you know, this kind of thing is harmful to us over the long haul.

  Even by the normal standards of torture apologetics, this is batshit crazy. "The Americans are so civilized they treat their prisoners decently! We must destroy these infidels!"

  That's quite a sales pitch, isn't it? Once again, Rove is demonstrating the tin ear for human nature that led him to destroy the fortunes of the Republican Party in a mere eight years.

atrios: AA

Adam writes about not getting why affirmative action enrages people so much. There are only tiny pockets of society where affirmative action is implemented in such a way that people might actually notice. I remember Al Franken, in one of his books, talking about how he'd give paid speeches to rooms full of upper level management and he'd joke about what a big impact affirmative action had obviously had on the composition of the group.

As Adam says, if any of those enrgaged by affirmative action would spill half as much ink on legacy admissions, a practice which, whatever its intended purpose, has the clear effect of privileging the progeny of wealthy white people, I'd be more sympathetic.

DougJ: War crimes are a feature, not a bug

From a somewhat interesting piece in the Woodrow Wilson Quarterly:

The simple and amazing answer is that most Americans assumed that their country has a rich and vibrant “marketplace of ideas” in which all ideas are challenged. Certainly, America has the freest media in the world. No subject is taboo. No sacred cow is immune from criticism. But the paradox here is that the belief that American society allows every idea to be challenged has led Americans to assume that every idea is challenged.

I think that is exactly right. There is a widespread belief that we have a truly open debate over ideas in this country. In fact, our media does indeed pride itself on challenging consensus, but its idea of challenging consensus is bringing in nutters like Peggy Noonan, Patty Patty Buke Buke, and an endless array of supply side “economists” to challenge the “liberal” consensus that magic dolphins don’t exist, that Latin Americans are not scrub stock, and that cutting taxes does not magically increase tax revenue. That’s why the Philadelphia Inquirer’s explanation for hiring torture architect John Yoo is hardly surprising:

“There was a conscious effort on our part to counter some of the criticism of The Inquirer as being a knee-jerk liberal publication,” Mr. Jackson said. “We made a conscious effort to add some conservative voices to our mix.”

[....]

“What I liked about John Yoo is he’s a Philadelphian,” Mr. Tierney said. “He went to Episcopal Academy, where I went to school. He’s a very, very bright guy. He’s on the faculty at Berkeley, one of the most liberal universities in the country.”

Greater Philly has a population of 5 million people. That means there are most likely at least 15-20 Philadelphians on the faculty at Berkeley (I’m estimating the faculty size there at a bit over 1000). John Yoo was not chosen because he is the only Philadelphian at “one of the most liberal universities in the country”. He was chosen for his “edgy”, “outside-the-box” view on torture. Why? Because supporting whacked out, barbaric ideas shows that you’re not a typical “media liberal”.

This is where we’re at, in terms of public dialog: hiring torture advocates is a way of promoting intellectual diversity.

Vicki Divoll (NYT Op-Ed contributor): Congress’s Torture Bubble

Vicki Divoll, a former deputy counsel to the C.I.A. Counterterrorist Center, was the general counsel of the Senate Intelligence Committee from 2001 to 2003. She teaches government at the United States Naval Academy.

JUST four members of Congress were notified in 2002 when the Central Intelligence Agency’s “enhanced interrogation techniques” program was first approved and carried out, according to documents released by the agency last week. They were Senators Bob Graham and Richard Shelby and Representatives Porter Goss and Nancy Pelosi, then the chairmen and ranking members of the Senate and House intelligence committees — the so-called “Gang of Four.” Each was briefed orally and it was understood that they were not to speak about the program with anyone, including their colleagues on the committees.

It’s logical to ask, so what if it was only four members? If they objected to the program, why didn’t they take steps to change it or stop it? Maybe they should have tried. But as a practical matter, there was very little, if anything, the Gang of Four could have done to affect the Bush administration’s decision on the enhanced interrogation techniques program. To stop it, they needed the whole Congress.

The framers of the Constitution gave aggregate, not individual, powers to the legislative branch. For the Gang of Four to have waved their arms and yelled at mid-level C.I.A. briefers, or written harsh letters to the president and vice president, would have been useless. Four members do not have the ability, on their own, to bring the great weight of the constitutional authority of Congress to bear.

There are C.I.A. “covert action” activities — like the detention and interrogation program — that because of their significance, and risks, require participation from both the White House and the Congressional intelligence committees in their initiation and oversight. The National Security Act defines covert action programs as those designed “to influence political, economic, or military conditions abroad, where it is intended that the role of the United States government will not be apparent or acknowledged publicly.”

The C.I.A. is prohibited by law from conducting covert action activities without express presidential approval — and this is not a requirement that the agency takes lightly. The National Security Act also requires that when the president approves a covert action program the two Congressional intelligence committees shall be “notified.” The committees do not have disapproval power, nor can they force changes at that time. But the law does require the executive branch to provide timely, written notice to the full committees — which together consist of fewer than 40 members — of the plans.

It is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four. There is no such entity recognized in the National Security Act. Federal law does provide, however, for notification of fewer lawmakers than the full intelligence committees, but only when “extraordinary circumstances affecting vital interests of the United States” are at stake. Under those very limited situations, the notification may be to the “Gang of Eight,” which includes the majority and minority leadership of the House and Senate, in addition to the intelligence committee leaders.

It should be noted that there is a legal argument that the interrogation program was merely foreign intelligence “collection,” and not “covert action” at all, because it was used to elicit information that already existed in the minds of the detainees. In that case, there is no exception in the law for Gangs of Four or Eight, and every member of the two committees should have been notified.

What it boils down to is this: many of the laws mandating Congressional notification of covert action programs were enacted after the Senate’s Church Committee hearings in the late 1970s had revealed widespread abuses by the intelligence agencies domestically and overseas. The House and Senate intelligence committees — created at that time — were designed to be the “eyes and ears” of the full Congress on significant intelligence activities. These committees were entrusted with the faith of the American people to oversee aggressive intelligence operations done in all of our names, and to ensure that they are necessary, effective and consistent with American laws and values.

But the narrow Gang of Eight exception, or worse, the Gang of Four, has swallowed up the notification rule. This is a trend that began before the Bush administration, and the types of programs about which the Church Committee was most concerned now receive the least oversight — in many cases, no oversight — by Congress. It is reasonable for us to wonder how many other covert action programs the Bush administration kept from the committees.

One might ask whether it was just too risky to share information about the interrogation program with so many members of Congress. Isn’t four better than 40, if we must keep this secret? It is true that the Gang of Eight exception was included in the law to give some flexibility, in a subset of cases, to the executive branch to limit the number of legislators who receive a notification, at least initially. Sometimes, for example, if an operation is imminent — like the capture of an al Qaeda leader — short-term security may require it to be held very closely.

But there is nothing in the legislative history of the Gang of Eight exception that supports the use made of it by the Bush administration — to shield, indefinitely, a politically controversial program from Congressional scrutiny. The exception has been abused to the point where it no longer has meaning, and Congress should examine whether it should be clarified or even eliminated.

If we do keep it, Congress should spell out in detail the very limited circumstances in which a Gang of Eight briefing may be given, and permit such secrecy for only a limited time. Only short-term operational security — not a controversial policy choice — should justify a temporary close hold.

Of course, the real reason that notifying four members of Congress was better than 40 to the Bush White House is crystal-clear — to eliminate political pushback. Check the box that Congress was informed just in case, someday, the program becomes public and things get rough. But do so in a way that the legislative branch is not in a position to cause any trouble.

In Article I of the Constitution, the framers gave Congress two extraordinary powers over the executive branch — the power of the purse and the power to make laws. It is unconstitutional for the executive branch to spend one dime on a program for which Congress has not appropriated funds. And if Congress passes a law forbidding the executive branch from engaging in an activity, it must stop, or people go to jail.

But four members cannot stop financing and ban activities on their own — that takes the whole Congress. So what might the four have done? They could have demanded that the full committees receive the briefings and that more information be provided. If the White House objected, they could have told their colleagues anyway. The committees then could have put a classified budget provision in the intelligence authorization bill for fiscal year 2003 cutting off money for the program, or delineating how the C.I.A. must treat detainees.

The speech and debate clause of the Constitution shields senators and representatives from civil and criminal liability in the performance of their legislative duties. It would have protected those members if they had decided to march down to the House or Senate floor and denounce the Bush administration for engaging in torture, though that approach not only could have harmed C.I.A. operations, but also surely would have been political suicide.

But would the full committees — or even the full Congress — have taken action to stop the enhanced interrogation program if they had been informed of it in 2002? Admittedly, the memory of 9/11 was very raw then and we cannot know if things would have turned out differently.

We do know, however, that the full committees weren’t briefed on the C.I.A. detention and interrogation program until 2006, on the same day that the program was made public by President George W. Bush. Since then, the committees have tried, so far without success, to amend federal law to hold the C.I.A. to the same strict interrogation standards for military intelligence collection spelled out in the Army Field Manual.

Even if the results had been the same, we would now at least have the cold comfort of knowing that our constitutional system of checks and balances had been put into play before a program that risked our fundamental values was carried out on our behalf. The framers of the Constitution never intended for small numbers of legislators to be culled from Congress and expected to act as a check on the excesses of the executive.