Nothing More Intractable Than Seeking Death

Over at TalkLeft, Jeralyn Merritt (who's blogging on her own dime from D.C. and needs all the help you can send her) links to a defense lawyer's "Motion to Declare U.S. Attorney's Appointment Unconstitutional" in which he argues that the Bush administration's move to replace Assistant United States Attorneys with party hacks (via a Patriot Act provision that allows for recess appointments) violates his client's rights as well as a federal statute.

[In case you missed it, Paul Krugman accurately observed that the "likely answer" to why this move now "is that for the first time the administration is really worried about where corruption investigations might lead..."]

The motion and attached memo, are accessible via the above link, but I was astonished to read the following comment on the TalkLeft post:

"How does this filing in any, way, shape or manner help the person whose life is at stake in this case? If defendant prevails (doubtful) is there ANY reason to believe the next person will change course and choose not to seek the death penalty or be more amenable to a reasonable plea offer if that is what the defendant is seeking? ... If the defendant loses (quite likely) will this maneuver run the risk of making the prosecution more intractable?"

Iresponded with the following comment:

So we shouldn't pull out all the stops, file every motion in a d.p. case 'cause we don't want to make the prosecution more "intractable?"

How do you get more intractable than death?

Are you concerned they'll also try to kick him when he's dead?

This touches on a great point, for defense lawyers and for Democrats: There are a lot of people who "advocate" that a defense lawyer shouldn't get too uppity else the prosecution get mad and up the ante. There are times, indeed, when heeding this advice is appropriate, but they're rare.

Most of the time the defense lawyer's best tactic is to adopt an attacking defense, akin to what is taught at the NCDC in Macon, GA. This is especially true in a d.p. case, when it's difficult to fathom the pros becoming more intractable, assuming cruel and unusual punishment hasn't, to paraphrase Gonzo, become quaint like his feelings about the Geneva Conventions.

I admire the tactic and wish more defense lawyers, and Democrats, wouldn't suffer from so much Stockholm Syndrome as to worry about what Big Daddy might do if we exercise our rights and fight against death instead of worrying about appearing intractable to a person whose asking permission to kill to punish killing.

Fight them with any means, inside the law, when they want to kill your client."

What do you think?

What effect will the execution videotape have on Iraq?

That is the $64 billion question, but here are a few reactions from people with expertise.

First, Robert Baer, who is a former CIA case officer, author of both "Sleeping with the Devil: How Washington Sold Our Soul For Saudi Crude" and of "See No Evil" the book that eventually became the movie Syriana. In fact, George Clooney plays Baer's character in the movie. Baer has a new op-ed in Time which begins...

"The cat is out of the bag. Thanks to images from a cell phone, we now know that the Iraqi National Police unit we turned Saddam over to was in fact a Shi'a lynch mob."

On the subject of what this means to a future Iraq and the question of the effect of our presence there Baer writes:

"Only time will tell us what Sadr intends do with Iraq if he ever does take over. But the Sunnis today will tell you they don't need to wait. On Saturday, they saw all the evidence they needed: the symbolism of executing Saddam on the Muslim High Holiday of Id al-Adha as a gift to the Shi'a, and and the decision of Maliki to get special approval from Iraq's senior Shi'a clerics, the "marja'iya," to carry out the execution on that day. No one is ever going to take a poll, but it's safe to say that most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true."

Second, CBS/AP reports that "After Hussein's burial Monday, rage over the hanging spilled into the streets in many parts of the Sunni Muslim heartland Monday, especially in Samarra where a mob of angry protesters broke the locks off the badly damaged Shiite Golden Dome mosque and marched through carrying a mock coffin and photo of the executed former leader." The article continues:

"Sunni extremists had blown apart the glistening dome on the Shiite holy place 10 months earlier, setting in motion the sectarian slaughter that now grips the troubled land.

The Samarra protest was particularly significant because it signaled a widening expression of defiance among Sunnis, the minority Muslim sect in Iraq that had enjoyed special status and power under Saddam and had oppressed the now-ascendant Shiite majority for centuries."


Third, Professor Juan Cole describes this Sunni protest of the Saddam execution as:

"Folks, this is very bad news. The Askariyah Shrine (it isn't just a mosque) is associated with the Hidden Twelfth Imam, who is expected by Shiites to appear at the end of time to restore the world to justice. (For them, the Imam Mahdi is sort of like the second coming of Christ for Christians). The Muqtada al-Sadr movement is millenarian and believes he will reveal himself at any moment.

The centrality of the cult of the Twelfth Imam, a direct descendant of the Prophet Muhammad who is said to have vanished in 873 AD, helps explain why the bombing of the Golden Dome on February 21 of 2006 set off a frenzy of Shiite, Sadrist attacks on Sunni Arabs. Last February, stuck in a Phoenix hotel because of a missed flight and without an internet connection for my laptop, I blogged from my Treo that it was an apocalyptic day. Sadly, it was, kicking off a frenzy of sectarian violence that has grown each subsequent month.

For Sunni Arabs to parade a symbolic coffin of Saddam through the ruins of the Askariya shrine won't be exactly good for social peace in Iraq. Can't that site be properly guarded or something?

Al-Hayat reports in Arabic that hundreds of demonstrators marched in Dur, near Tikrit on Monday, protesting the execution of Saddam Hussein. Young men carried machine guns and fired them in the air, chanting "Muqtada, you coward," and "Hakim! Yellow-belly! Agent of the Americans!" They unveiled an enormous mosaic of Saddam Hussein inscribed, "The Martry-Hero."

There was also a demonstration in the northern Baghdad district of Adhamiya, at which protesters shouted condemnations of Muqtada al-Sadr, according to al-Zaman. Some of those present at Saddam's execution shouted "Muqtada, Muqtada, Muqtada!" Saddam mocked them, asking if this was their sign of manliness. (Personally, I believe this is Saddam's reference to rumors in Iraq that Muqtada's wife left him, saying that he is actually gay. He is saying that chanting Muqtada's name is a sign that they are also not real men.)"

(To get to Cole's comment, scroll down to the "Tuesday, Jan. 2" entry)

Bottom Line: If Baer is correct that "most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true" and Cole is correct that the Sunni break-in/ coffin protest at the "badly damaged Shiite Golden Dome mosque" is "very bad news" and not "exactly good for social peace in Iraq," where do we really stand in Iraq? And what will the future look like?

Is there any hope of "victory" for an occupying power in the midst of this current and potentially worse future bloodshed? Of course, to the right, the answer is simple. The killing is not a sign of failure but a reason for hope. As Dean Barnett puts it, on Hugh Hewitt's blog, in a post entitled "A Moment of Savagery - Now a New Hope?:"

"The only answer, as it always has been, is to stamp out that savagery ferociously and totally. At the end of this war, Iraq must necessarily be composed of people who always wanted to live in peace and the one-time enemies of peace who have come to realize they have no other choice but to live in peace. How much killing will this take? That will depend on how many enemies of peace there are and how determined they are to live in a state of war."

In other words, we are assisting in killing off the "bad" Iraqis, even though 1 in 20, at least, has now been killed. Just a little more progress, Barnett believes, and the good Iraqis, the ones who want to live in peace, will be left and the mission will be accomplished.

Amazingly, Barnett concludes his paragraph above with this prediction:

"One thing's for certain - the more resolute we are, the less killing there will be."

We have a President who just recently dropped the theme of "stay the course" and now, when 1 in 20 Iraqis is dead in the post Saddam era, after the "liberation" if we just stay "resolute" Barnett somehow has the gall to predict that the killing will stop.

Barnett then concludes his piece with these words about the "best news" coming out of Iraq:

"The best news of the past few days actually wasn’t Saddam’s execution, even though Saddam facing justice (in spite of the primitive savagery of the execution itself) is something that every American can feel proud of. The even better news than Saddam’s death is that (according to the reliable Strategy Page), American and Iraqi forces have begun to make war on the Sadr militia."

The worse the news is, the more it is spun as "progress" by the increasingly isolated Bush cabal. One in 20 is already dead after the "liberation" and U.S. forces now attacking the Shiite leader's militia is considered "good news."

Kurt Vonnegut described the Decider playing with U.S. forces like a rich kid playing with toy soldiers. While the analogy is fitting, the killings are real and the future for Iraq, and our forces, is bleak and bloody.

Who will be the last to die for Bush's mistake?

Top Ten Lists

The end of the year always brings about top ten lists about the past year, but here are a couple you might have missed...

First, on the question of "Is the U.S. becoming a police state?" comes this top ten list (from Alternet). Here are the topics, some of which surprised me. See the article for more details/explanations.

1. The Internet Clampdown
2. "The Long War"
3. The USA PATRIOT Act
4. Prison Camps
5. Touchscreen Voting Machines
6. Signing Statements
7. Warrantless Wiretapping
8. Free Speech Zones
9. High-ranking Whistleblowers
10. The CIA Shakeup

And here is Juan Cole's "Top Ten Myths about Iraq 2006" The first line is pretty ominous: "Myth number one is that the United States "can still win" in Iraq." Here are the top ten myths, according to Professor Cole:

1. Myth number one is that the United States "can still win" in Iraq.
2. US military sweeps of neighborhoods can drive the guerrillas out.
3. The United States is best off throwing all its support behind the Iraqi Shiites.
4. Iraq is not in a civil war," as Jurassic conservative Fox commentator Bill O'Reilly insists.
5. The second Lancet study showing 600,000 excess deaths from political and criminal violence since the US invasion is somehow flawed.
6. Most deaths in Iraq are from bombings." (The Lancet study found the majority of violent deaths are from being shot.)
7. Baghdad and environs are especially violent but the death rate is lower in the rest of the country.
8. Iraq is the central front in the war on terror." (From the beginning of history until 2003 there had never been a suicide bombing in Iraq. There was no al-Qaeda in Baath-ruled Iraq)
9. The Sunni Arab guerrillas in places like Ramadi will follow the US home to the American mainland and commit terrorism if we leave Iraq." This assertion is just a variation on the invalid domino theory. (People in Ramadi only have one beef with the United States. Its troops are going through their wives' underwear
10. Setting a timetable for withdrawal from Iraq is a bad idea.

Justice Dept. Refuses Senator's Requests for Docs on Detainee Treatment

From yesterday's L.A. Times:

"Setting up what could become the first showdown between the Bush administration and the new Democratic Congress, the Justice Department has refused to turn over two secret documents, describing the CIA's detention and interrogation policies for suspected terrorists, to the incoming chairman of the Senate Judiciary Committee."

Senator Leahy "waited until the week that Democrats take control of Congress to release — and denounce — the response" after sending the letter to DOJ during the congressional recess. Predictably, the DOJ responded that:

"Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them," wrote James H. Clinger, acting assistant attorney general for legislative affairs. "We must avoid assisting their effort... Clinger said the department had already briefed members of the Senate and House intelligence panels about aspects of the anti-terrorism programs, fulfilling its obligations under the law."

Also, the FBI released documents regarding detainee treatment yesterday in response to an ACLU Freedom of Information Act Request. You can read the ACLU's response here and view the documents themselves here.

The ACLU describes the documents as including "some new accounts of abuse related to the detainees' religious beliefs:"

- Investigators wrapped a detainee's head in duct tape "because he would not stop quoting the Koran."
- Another agent said an interrogator bragged about making a detainee listen to "satanic black metal music for hours and hours."
- According to the same report, the interrogator later "dressed as a Catholic Priest and baptized the detainee in order to save him."
- In another incident observed by an FBI agent, a Marine captain squatted over the Koran during an interrogation of a Muslim prisoner, which the prisoner found extremely offensive."

Making enemies faster than we can kill them.

UPDATE: Marty Lederman, at Balkinization, writes an excellent analysis of possible DOJ justifications for refusing Leahy's request. He writes:

"The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are."

Bush Claims Authority to Open Mail without Warrant

From today's New York Daily News comes this statement:

"President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant, the Daily News has learned.
The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a "signing statement" that declared his right to open people's mail under emergency conditions.

That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it."

The actual signing statement found on the White House website is here.

Hopefully we'll see more analysis and scrutiny of this latest, but unsurprising, assault on the Fourth Amendment.