Over the past two weeks, the lies emanating from the McCain/Palin campaign have become so brazen that even the most cynical campaign reporters are clearly taken aback. While lies are commonplace in politics, you rarely see candidates continue to repeat factual claims that have been widely debunked in the media, especially claims about biographical facts (lying about your opponent's policy positions is another matter).

The fact that McCain and Palin continue to tell these tall tales about Palin's record in Alaska is aggravating--there's no question--but it also presents the Obama campaign with a golden opportunity. The key to exploiting that opportunity, however, is not to get angry or to join in the lying game. Neither of those tactics ever work well for Democrats. The key to fighting back is to brand McCain and Palin as liars through the use of mockery. I realize that everyone and their brother is playing the role of armchair political consultant at the moment, but please indulge me for thirty seconds.

Here's how I imagine Obama responding:

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I completely agree with Nate Silver: the Obama campaign needs to make better ads.

It's not that Obama's ads are bad by any normal metric. They're well produced and they usually hit the right themes. The problem is that they're very conventional. Obama is supposed to exude change. But his ads don't. They look like the ads we see every election cycle: images, text, and video footage linked together by the voice of a professional narrator. They may be marginally effective, but they are exceedingly forgettable and often make Obama come across as just another politician playing the same old game (even though his ads are much more honest than McCain's).

The Obama campaign needs to think a little more outside of the box. They should aim to produce ads that are either more creative/funny than a typical campaign ad, or more sincere.

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Over at the The New Republic, Michael Crowley writes:

More handwringing about Obama's optics: I see that tickets for his acceptance speech at Denver's Invesco Field stadium sold out instantly. In light of the apparent traction Republicans got with their 'Celebrity' meme you have to wonder if the Obama team is reconsidering the wisdom of this move. I would recommend any possible stagecraft to minimize the event's scale.

No. No. No. Crowley's instinctive response here demonstrates much of what's been wrong with the Democratic approach to politics over the last decade or so. Obama's ability to draw large enthusiastic crowds is one of his chief political strengths. It is ludicrous not to showcase that strength just because your opponent has--in classic Rovian style--tried to turn it into a liability. That's how you lose elections.

The way to deal with the "celebrity" charge is not to lower your profile; it's to turn that charge back around on McCain. If I were advising Obama, I'd tell him to get up there in front of that sold out stadium and say the following:

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You remember the fable of the Grasshopper and the Ant? The grasshopper spends the warm months--when food is abundant--singing, dancing, and generally enjoying himself while the ant works hard to store up food for the colder months, which he knows are coming. And sure enough, when winter comes, the ant is prepared and the grasshopper starves.

Well in the world of politics--and particularly when it comes to energy policy--there are a lot of grasshoppers and very few ants, and unfortunately, the grasshoppers have been setting policy for a long time now.

Almost three decades ago, on July 15, 1979, President Carter (one of the ants) delivered an important speech. Knowing that our nation's energy policy was unsustainable and that we were becoming increasingly dependent on oil from hostile foreign countries, he proposed a bold plan:

In little more than two decades we've gone from a position of energy independence to one in which almost half the oil we use comes from foreign countries, at prices that are going through the roof. Our excessive dependence on OPEC has already taken a tremendous toll on our economy and our people. . . .

This intolerable dependence on foreign oil threatens our economic independence and the very security of our nation. The energy crisis is real. It is worldwide. It is a clear and present danger to our nation. These are facts and we simply must face them. . . .

To give us energy security, I am asking for the most massive peacetime commitment of funds and resources in our nation's history to develop America's own alternative sources of fuel --from coal, from oil shale, from plant products for gasohol, from unconventional gas, from the sun. . .

He also called for a "bold conservation program to involve every state, county, and city and every average American in our energy battle."

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In his confirmation hearing last week, the following exchange took place between Senator Leahy and Attorney General nominee Michael Mukasey:

LEAHY: . . . where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?

MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

Following the hearing, Leahy wrote to Mukasey asking him to clarify his answer to this clearly important question. Today, Leahy's office released Mukasey's tortured (if you'll pardon the pun) response:

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Yesterday the Petitioners in the Al Odah case submitted their brief to the Supreme Court. At issue in the case is whether detainees at Guantanamo Bay have constitutionally protected rights to habeas corpus and due process. In February, the D.C. Circuit Court of Appeals held that the elimination of habeas corpus rights for Guantanamo detainees under the Military Commissions Act did not violate the Suspension Clause of the Constitution because that clause does not apply to aliens held outside of U.S. sovereign territory.

The Supreme Court originally refused to hear the case, but in a highly unusual move, it later reversed itself and granted cert. The case, which seems likely to produce a historically significant opinion one way or the other, is scheduled for oral argument in December.

I've read through the brief submitted on behalf of the detainees (full text here), and it's quite compelling. I don't think the D.C. Circuit's bright-line holding that the Suspension Clause doesn't apply to foreigners held outside of U.S. sovereign territory is likely to hold up. It flies in the face of the Supreme Court's Rasul decision and it's just too rigid a rule, particularly if you're going to define Guantanamo Bay--a place that has long been under U.S. control and subject to U.S. law--as being outside of U.S. sovereign territory (as the brief notes, even the iguanas at Guantanamo are protected by U.S. law). Plus, if the Supreme Court agreed with the D.C. Circuit on this technical point, I find it hard to understand why they would have reversed themselves and agreed to hear the case.

So if we assume that the Suspension Clause does apply to detainees at Guantanamo, the question then becomes: has Congress either validly suspended habeas or provided an "adequate and effective" substitute for it? Under the terms of the Suspension Clause, Congress is only allowed to suspend habeas corpus in cases of "rebellion and invasion"--which is pretty clearly not the case here. So the ultimate issue is whether the Combatant Status Review Tribunals established by the President and ratified by Congress are an adequate and effective substitute for habeas under the holding of Swain v. Pressley, 430 U.S. 372, 382 (1977) ("[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.").

And this is where the Petitioners' brief is particularly compelling.

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As you know, just prior to adjourning for its August recess, Congress caved in to Bush administration pressure and passed the Republican version of a bill amending the Foreign Intelligence Surveillance Act (FISA). Sixteen Democratic senators and over 40 Democratic representatives voted in favor of the bill, ensuring a comfortable margin of victory in both houses. I'm not convinced that these Democrats fully appreciate what it is they've done.

I say that because the full implications of these amendments are not obvious from the four corners of the bill itself and it seems to have been intentionally structured (and sold to the public) in a way that obscures its true scope.

The bill has two basic components. First, it creates a carve-out that exempts nearly all international communications (even when one party is in the U.S.) from FISA's regular provisions (which require individualized warrants, minimization, judicial review, etc.). The second half of the bill then grants the Attorney General and the Director of National Intelligence the power to authorize warrantless surveillance of the category of communications carved out by the first half of the bill. This authority is conditioned on compliance with a series of not-very-rigorous procedures and oversight requirements. The Attorney General and DNI must certify in writing (and under oath) that certain factual predicates have been met, and they must come up a set of operating protocols designed to ensure that only the carved out category of communications are intercepted. These operating protocols are then submitted to the FISA court for review on an annual basis (the court reviews them under the highly deferential "clearly erroneous" standard).

Most of the debate in Congress and coverage of the bill in the media has focused on whether these procedures and oversight requirements are sufficiently rigorous to protect Americans' civil liberties. They're not. But that's more or less beside the point because--and this is what I think many people do not yet appreciate--given the way FISA is structured, the President is under no obligation to follow even these watered-down oversight requirements. They are merely optional.

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In his weekly radio address on Saturday, President Bush implored Congress to amend the Foreign Intelligence Surveillance Act (FISA):

One of the most important ways we can gather that information is by monitoring terrorist communications. The Foreign Intelligence Surveillance Act -- also known as FISA -- provides a critical legal foundation that allows our intelligence community to collect this information while protecting the civil liberties of Americans. But this important law was written in 1978, and it addressed the technologies of that era. This law is badly out of date -- and Congress must act to modernize it.

Today we face sophisticated terrorists who use disposable cell phones and the Internet to communicate with each other, recruit operatives, and plan attacks on our country. Technologies like these were not available when FISA was passed nearly 30 years ago, and FISA has not kept up with new technological developments. As a result, our Nation is hampered in its ability to gain the vital intelligence we need to keep the American people safe.

I know you’ll be shocked to hear it, but your President is intentionally misleading you.

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If you haven't yet read the first two installments (1, 2) of the Washington Post's four part series on Dick Cheney's role in the Bush administration, go read them now. They're incredible. Barton Gellman and Jo Becker do an excellent job telling the behind-the-scenes story of how the Bush administration's various terrorism-related policies came into being. The articles confirm much of what has been suspected about Cheney's role and fill in many of the gaps. It's riveting stuff, and deeply disturbing.

There's enough stuff in the first two installments alone to fill 100 blog posts, easily. But since I don't have that kind of time, I want to focus on a few meta-observations.

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  Earlier this week, a panel of the Fourth Circuit Court of Appeals held that the government did not have the authority to detain Ali Saleh Kahlah Al-Marri--a Qatari national who had come to the United States on a student visa--indefinitely without process. Al-Marri, who the government claims is a terrorist, has spent the last four years in a military brig in South Carolina. He has not been charged with a crime or even an immigration violation.

In its court filings, the Bush administration argued that Congress had implicitly provided statutory authority for this sort of detention when it passed the Authorization for Use of Military Force (AUMF) shortly after 9/11. The Fourth Circuit rejected this argument, noting that "if Congress intended to grant this authority it could and would have said so explicitly."

The Court then pointed out an obvious historical flaw in this argument:

In fact, shortly after Congress enacted the AUMF, it enacted another statute that did explicitly authorize the President to arrest and detain "terrorist aliens" living within the United States believed to have come here to perpetrate acts of terrorism. . . .

[T]he Patriot Act establishes a specific method for the Government to detain aliens affiliated with terrorist organizations, who the Government believes have come to the United States to endanger our national security, conduct espionage and sabotage, use force and violence to overthrow the government, engage in terrorist activity, or even who are believed likely to engage in any terrorist activity. Congress could not have better described the Government's allegations against al-Marri -- and Congress decreed that individuals so described are not to be detained indefinitely but only for a limited time, and by civilian authorities, prior to deportation or criminal prosecution.

In sum, Congress has carefully prescribed the process by which it wishes to permit detention of "terrorist aliens" within the United States, and has expressly prohibited the indefinite detention the President seeks here. The Government's argument that the President may indefinitely detain al-Marri is thus contrary to Congress's expressed will.

Though the Court stopped there, the evidence that Congress did not wish to authorize this sort of detention is even more clear cut.

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On the off chance there is anyone out there who continues to harbor doubts as to whether Alberto Gonzales is a liar, I present you with a rather blantant example of the man's dishonesty that, for reasons I can't quite understand, doesn't seem to have been reported anywhere.

On December 14, 2005, Alberto Gonzales participated in an online question and answer session for the Washington Post. One of the questioners made the following comment:

I have a vague memory of reports of thousands of wire taps, many without the required authorization.

To which Gonzales responded:

You mention wiretaps. All wiretaps must be authorized by a federal judge. In addition, investigators must show probable cause and comply with other requirements before the court may authorize the wiretap. This has always been the case, and the PATRIOT Act did nothing to diminish these safeguards.

Two days later, on December 16, 2005, James Risen and Eric Lichtblau of the New York Times published their blockbuster story revealing that the Bush Administration had been wiretapping U.S. citizens without warrants for years.

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Another Friday, another document dump from the DOJ. As I was scanning through this set, I came across this one from Monica "I plead the Fifth" Goodling. Notice the instruction in boldface (see below the fold for full size image):

Yes, that's an instruction to delete documents. And notice the date: February 12, 2007. That's well after Congress began investigating this matter. I don't believe any subpoenas or document requests had yet been issued (someone please correct me if I'm wrong about that), but it was pretty clear by then that document requests were likely.

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Alberto Gonzales's long-awaited appearance before the Senate Judiciary Committee has been postponed until Thursday in light of the tragedy at Virginia Tech. Rather than trying to comment on that tragedy (I wouldn't even know what to say), I thought I'd take the opportunity presented by the delay in Gonzales' testimony to suggest a few lines of questioning that the Senators on the Judiciary Committee might wish to pursue.

With all due respect to those Senators, I haven't been terribly impressed by their cross-examination skills in past hearings. Good lines of questioning, particularly in the context of a Congressional hearing, are ones that are capable of boxing the witness into a corner and forcing him to make an important concession, no matter which way he chooses to answer the question. To do that, you have to anticipate the witness's possible answers and be prepared to proceed in different directions depending on how the witness responds. Too often Senators get flustered and lose their train of thought when the witness doesn't answer their initial, deeply penetrating question in quite the way they had expected, and they end up just moving on to the next question.

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The White House has acknowledged that many years' worth of official email--which is required by law to be preserved--has been "lost."  The reason it was lost is because many White House staffers, most notably Karl Rove, have conducted much of their official business over the years on private RNC-sponsored email accounts that routinely purged old email.  The White House has attempted to mitigate its culpability for this blatant violation of the Presidential Records Act by arguing that it was the byproduct of a good faith effort to comply with another law, the Hatch Act, which prohibits conducting certain partisan political activity on government time.  As White House spokesperson Dana Perino put it:

What I know -- I checked into this -- is that certain White House officials and staff members who have responsibilities that straddle both worlds, that have responsibilities in communication, regular interface with political organizations, do have a separate email account for those political communications. That is entirely appropriate, especially when you think of it in this case, that the practice is in place and followed precisely to avoid any inadvertent violations of what is called the Hatch Act. And so there are some members of the administration that do straddle both worlds. And so under an abundance of caution so that they don't violate the Hatch Act, they have these separate emails.

The goal here is to portray these White House staffers as honest civil servants trying their best to comply with two contradictory sets of legal mandates.  And the White House has actually been pretty successful at selling this line, as evidenced by this paragraph from a recent New York Times story:

At issue is how the White House complies with two seemingly competing laws. One is the 1978 Presidential Records Act, which requires the administration to ensure that its decisions and deliberations are “adequately documented” and that records flowing out of those decisions are preserved. The other is the Hatch Act, which prohibits federal officials from engaging in political business on government time.

But here's the thing.  It's just not true.  The Hatch Act and the Presidential Records Act are not "competing" laws. It's remarkably easy to comply with both. All you have to do is preserve your official communications.

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In today's New York Post, conservative columnist John Podhoretz offered some free advice to Democrats:

In pursuit of a short-term political benefit, Democrats are in danger of establishing a ruinous new standard in American politics - one they'll come to regret and rue when they take the White House again. . . .

By inflating the dismissal of eight U.S. attorneys into a major political scandal with the suggestion that the act of dismissing them is a scandal demanding congressional oversight, they're creating a new political reality. . . .

The longer this goes on, the easier it will be for pseudoscandals to be ginned up in the future whenever a certain type of official working in the executive branch is removed from his job.

Ah yes, Democrats will surely rue the day they created this "new political reality" where "pseudoscandals" can be "ginned up" by their political opponents. Was Podhoretz in a coma during the entire Clinton administration? The "political reality" during the 1990s was that just about anything the Clinton administration did, no matter how routine or unremarkable, was considered scandalous by Republicans in Congress, who would immediately convene hearings, issue subpoenas, and demand the appointment of an independent counsel.

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