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:

Continue reading »

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.

Continue reading »

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:

Continue reading »

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."

Continue reading »

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:

Continue reading »

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.

Continue reading »

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.

Continue reading »

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.

Continue reading »

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.

Continue reading »

  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.

Continue reading »