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Worse Than Scalia?

Over at TAPPED, Scott Lemieux makes the case that we have more to fear from Alito and Roberts than we do from Thomas and Scalia:

Scalia and Thomas, at least when there's no conflict with strongly held policy preferences, will have their ideological conservatism constrained by legal policy goals which don't always produce conservative results. Alito and Roberts, conversely, are free to be much more slavishly pro-business -- marrying O'Connor-style unprincipled "minimalism" to a much more conservative ideology is the most dangerous combination of all. If you're a left-liberal, you'd much rather have Scalia or Thomas than Alito.

The occasion for this commentary was the Supreme Court's decision to overturn a $79.5 million punitive damage award against Altria (nee Phillip Morris). Dissenting were the unlikely foursome of Ginsburg, Stevens, Thomas and Scalia.

Though the court punted on the biggest constitutional question -- whether a punitive damage award could be large enough to be in and of itself a constituional violation -- the decision does not bode well for the future of this court, or the Bush appointees. While the "hot button" social issues tend to get the most attention, a lot of the Court's work is in refereeing inevitable disputes between business and the state. This gives a pretty good indication of which side is more likely to get a sympathetic hearing.

“If Iraq Don't Kill You, Walter Reed Will”

According to the Washington Post, Walter Reed Army Medical Center in the nation's capital has treated one out of every four soldiers injured in Afghanistan and Iraq. Over 700 outpatients reside on the hospital grounds or nearby as they receive continued treatment or await bureaucratic decisions – which can take 18 months or longer. They outnumber in-hospital patients by 17 to 1.

In a two-part series, reporters Dana Priest and Anne Hull have done a great service in rendering a portrait of the sad and horrifying state of "supporting the troops" when they come home to Walter Reed.

These soldiers suffer from amputations, brain injuries, post traumatic stress, and other life-changing combat wounds. They are housed in rooms with "mouse droppings, belly-up cockroaches, stained carpets, cheap mattresses," as well as rotting floors and black mold. "Suicide attempts and unintentional overdoses from prescription drugs and alcohol, which is sold on post, are [also] part of the narrative here."

Soldiers with "brain injuries sat for weeks with no appointments and no help from the staff to arrange them. Many disappeared even longer. Some simply left for home."

"If Iraq don't kill you, Walter Reed will," said one soldier's wife.

Meanwhile, the army haggles with these servicemen and women over disability ratings in order to avoid paying benefits. ("They were fit enough for war, but now they are facing teams of Army doctors scrutinizing their injuries for signs of preexisting conditions"). One soldier hit in the head by a steel cargo door of an 18-wheeler – knocked unconscious and cracking several vertebrae – is told that his intellectual and emotional difficulties are not a result of the head injury and therefore he isn't entitled to disability. Only when a congressional staffer intervenes is further testing done and the diagnosis corrected. The same thing happens to another soldier with steel rods in his neck who can only turn his head by rotating his whole body.

The Mologne House– a 200-room hotel on the hospital grounds – has a full bar but "not one counselor or psychologist assigned there to assist soldiers and families in crisis – an idea proposed by Walter Reed social workers but rejected by the military command that runs the post."

Records are lost, even patients' identities as soldiers are challenged and they are forced to produce letters or photos to prove their service.

After 5 ½ years of combat, it is clear that real support and protection for our troops means safely bringing them home and fully funding their treatment – including mental health care.

The Bush administration, its GOP allies, and the neocons will play an ugly blame game, pushing the fallacy that those who use the power of the purse to end this war are endangering troops. They appear to be more interested in protecting their reputations, egos and legacies than in protecting troops who are refereeing a bloody civil war that they were never meant to be engaged in.

It is Congress' constitutional right – and moral imperative – to use the power of the purse to end Bush's bloody war and protect the troops from further loss and betrayal by this administration.

Postscript: The Washington Post now reports that as a result of its series Walter Reed and Army officials are taking steps to improve conditions at the hospital – including stationing social workers at Mologne House around the clock.

Clinton Would Rather Be Wrong Than President

"If the most important thing to any of you is choosing someone who did not cast that vote or has said his vote was a mistake, then there are others to choose from."

So says New York Senator Hillary Clinton, who appears to be campaigning for the Democratic presidential nomination on the theme that she would rather be wrong than president.

Perhaps, in this post-modern moment, Clinton is on to something. Henry Clay, a frequently unsuccessful contender for the Oval Office in the first half of the 19th century, suggested that he would rather be right than president and he lost. Maybe Clinton believes that by reversing the scenario, she can achieve the victory that eluded Clay.

At the very least, Clinton's steadfast refusal to admit that she was wrong to vote to give George W. Bush the power to launch a preemptive war against Iraq sets a news standard for stubbornness.

According to the New York Times, top Clinton aides have done everything in their power to get her to acknowledge that she read Bush wrong back in 2002. "Several advisers, friends and donors said in interviews that they had urged her to call her vote a mistake in order to appease anti-war Democrats, who play a critical role in the nominating process," reports the Times. "Yet Mrs. Clinton herself, backed by another faction, never wanted to apologize... [Y]esterday morning Mrs. Clinton rolled out a new response to those demanding contrition: She said she was willing to lose support from voters rather than make an apology she did not believe in."

Hence, the "there are others to choose from" line -- which is a clear reference to her two most serious competitors for the Democratic nod, Illinois Senator Barack Obama and former North Carolina Senator John Edwards.

In 2002, Obama was an outspoken opponent of authorizing Bush to take the country to war. Edwards voted for the authorization but has since admitted his mistake.

Poking at Clinton, Edwards says on the campaign trail: "'I was wrong.' See, I can say it."

That's a snappy response. But, if Edwards and Obama want to move this contest to the next level, they might want to ask the question that Clinton's remark begs: Is it really courageous -- or politically smart -- to suggest that voters who want a president with good judgment should vote for someone else?

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

The YouTube Defense

A teacher, hospital charity worker and father of four, Adel Hamad has been a prisoner at Guantanamo for five years. Like most other detainees at Guantanamo, he's never had a day in court, and never been accused of a crime against the United States. Habeas corpus, for those of you who have forgotten 11th grade civics (admittedly, that's easy to do), is enshrined in our constitution: it means that if the government is holding someone prisoner, it has to say why, and cannot detain that person indefinitely without charge. The detainee has a right to go to court and demand that the state justify his continued incarceration. Last year, with the Military Commission Act, the Congress essentially eliminated habeas corpus for the first time in U.S. history -- and I don't think you have to be imprisoned on Guantanamo to find that scary.

Adel Hamad's lawyers, then, have taken an unusual step: they have given the unclassified documents relating to their client's case to a group of online activists who have formed Project Hamad, a website on the detainee's behalf. They've also made a video about the case and put it on YouTube. The website has a number of actionsyou can take, including signing up to be a "citizen co-sponsor" of Senator (and prez candidate) Christopher Dodd(D-CT)'s proposed Restoring the Constitution Act, which would restore habeas corpus, re-affirm our commitment to the Geneva Conventions, and narrow the definition of enemy combatant, among other civilizing measures. (My colleague Ari Berman mentionedthis bill last week.) Like Hamad's supporters, Dodd, too, is taking the debate to YouTube, encouraging people to make videos of themselves supporting the measure.

It was beyond silly when Time magazine declared "You" the "Person of the Year," but it's inspiring to see people using these technologies to mobilize fellow Americans to demand a little decency from our government. Bush's approval ratings keep slipping, but let's show the world we can do more than simply disapprove.

Three Weak Reeds Meet in Jerusalem

As I write this from Cairo at 11:30 a.m. Monday local time, U.S. Secretary of State Condoleezza Rice is meeting in Jerusalem with Israeli PM Ehud Olmert and Palestinian President Mahmoud Abbas (Abu Mazen). The first thing to note is that all three of these officials represent political trends that are currently extremely weak within their respective countries.

So in this summit of three weak reeds, can any of the three expect to gain any strength from the support that the other two may-- or may not-- be able to offer them?

Of these three political trends, Mahmoud Abbas's is currently (at his domestic level) the least weak. This might seem paradoxical. But his Fateh movement is the only one of these three three trends that has actively engaged with its domestic critics and done the hard work of reaching an agreement for internal entente; he did that through the Mecca Agreement that he concluded with Hamas last week.

By contrast, the administration that Rice represents has done almost nothing to try to reach a workable entente with the domestic critics whose rising power and new willingness to challenge the administration havey been much in evidence in the past two months. And as for Olmert, his complex governing coalition is limping along with little direction, plagued by internal problems and having still failed to recover any of the sense of direction it lost when its main original project-- the pursuit of unilateralist "convergence" in the West Bank-- was rendered irrelevant by the Hizbullah victory of last summer. (For details of which, see here.)

Though Abu Mazen is currently domestically stronger than the other two summiteers, his ability to give support to the other two weak reeds there is, of course, severely constrained by the terms of that same Mecca Agreement which represented, essentially, his conceding to the reality that Hamas is noticeably stronger and better organized in Palestinian society than is Fateh.

The Mecca Agreement represented a significant set-back to the US-Israeli plan to weaken or break Hamas's power by using Fateh against it. (Just as, in Iraq at the end of December, the US plan to weaken or break Moqtada Sadr's power by using SCIRI and other Iraqi Shiite forces against it was also blocked by the indigenous political forces there.)

These days, regarding Palestine, Rice is evidently fnding it hard to come to terms with the Palestinians' new attainment of national entente. Al-Jazeera English tells us today that she told the Palestinian daily paper Al-Ayyam that: "This is a complicated time, and it has been made more complicated by the (Palestinian) unity government, but I'm not deterred..."

She has been going out of her way to "lower expectations" regarding the outcome of the summit. (Note to Rice: You think anyone even had any expectations of it in the first place?) She has made clear that she intends to coordinate closely with the Israelis throughout all the new bout of Palestinian-Israeli diplomacy of which today's summit is supposed to be a key first step-- and that she thinks the parties are nowhere near to reaching any lasting diplomatic agreement. (See her interview with Aluf Benn in today's HaAretz.)

Here in Egypt I found the well-informed journalist and commentator Fahmi Howeidy quite scathing regarding his expectations from the summit. He told me:

    When Rice visited the region before and said she wanted to reach a final agreement on the Palestinian issue I said that she was not here primarily for the sake of the Palestinians but to try to shore up the Americans' position in Iraq. It's the same thing today!

They just want to try to convince the Arabs that they're doing something about Palestine, in order to help them build an Arab coalition that could support their policies in Iraq-- or towards Iran. It's all a show!

Did he think the Arabs would be taken in?

    Look, for the Arab regimes, it's not a problem. They don't need to be persuaded, because they have already stated their support for Bush. Even President Mubarak has said he supports Bush's 'surge' policy. But what the administration needs to do is to convince the Arab people. This, they can't do, because the Arab people aren't stupid!"

So, back to my main question: can any of these three weak reeds receive meaningful support from the other two at today's summit?

However much support Abu Mazen might want to give to Rice or Olmert (and I suspect that isn't very much, anyway), he is constrained by the terms of the Mecca Agreement-- and by the very strong support it has received from within Palestinian society-- from making any further concessions to Rice and Olmert at this time.

As for whether they will do anything to support him? That doesn't seem to be on the horizon, either. In her interview with Benn Rice still seemed quite inflexible regarding the Bushites' demand that the Palestinian government meet all three of the Quartet's extremely tough conditions, and she expressed her complete unwillingness to respond to Abu Mazen's strongly stated request to move rapidly into negotiations of the final-status settlement of the Palestinian-Israeli conflict.

So I guess that means the answer there would be a "No."

(I'll try to update this later in light of any public statements issued after the summit and the lunch that will follow it.)

House Denounces Bush's Surge Strategy

By a comfortable margin of 246 to 182, the US House on Friday adopted a resolution denouncing President Bush's "surge" of more American troops to the Iraq quagmire.

All but two Democrats--southern conservatives Jim Marshall of Georgia and Gene Taylor of Mississippi--voted in favor of the non-binding resolution, as did 17 Republicans.

That allowed House Speaker Nancy Pelosi, D-California, to describe the vote as a historic "bipartisan" break with the president.

In the cases of both the Democratic and Republican caucuses, it was the largest dissent since before the start of the war from the Bush administration's agenda.

The sentiments of those dissenters, now a House majority, were well summed up by California Democrat Henry Waxman, who after intense lobbying by the administration voted in 2002 to authorize the president to use force against Iraq.

During this week's debate, Waxman said, "We cannot achieve the illusions of the Bush administration." Indeed, warned Waxman, continued adherence to the White House line "threatens (the engulf of the entire Middle East) by the forces we have unleashed."

New York Congressman Maurice Hinchey, who has opposed the administration's approach from the start, put the non-binding but potentially significant vote in perspective.

"For the first time since the invasion of Iraq in March 2003, the House finally had an open and honest debate about Iraq," observed Hinchey. "Democrats and Republicans had an equal opportunity to debate the ongoing occupation of Iraq and offer their perspective on President Bush's proposal to send more than 20,000 additional troops to that country. This is how democracy is supposed to work."

"By passing this resolution, those of us in Congress made it clear that we continue to support our troops and will do everything to protect them, but we believe President Bush's proposal for an escalation of forces is a bad idea and wrong for our country," Hinchey continued. "By voting against sending additional troops to Iraq, we spoke up for the majority of Americans who recognize that it's time to begin the strategic redeployment of our troops so we can get them out of Iraq, bring many of them home, and confront the real threats facing our nation such as al Qaeda, which is once again being given a safe haven by a resurgent Taliban in Afghanistan.

"The resolution we passed in the House today is the first step in what will be a continued attempt to bring an end to the occupation of Iraq. In the weeks and months ahead, I will help lead an effort in Congress to force the president to wind down the occupation and get our troops out of Iraq by the end of the year. The security of the United States depends on having our troops ready to confront the real threats facing our nation. Iraq was a mistake from the start. It's time for that mistake to end.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

Free Speech in New York City? Fuhgeddaboutit!

In summer 2004, citizens who peacefully protested during the Republican National Convention in New York City were subject to mass arrest, lengthy detention under horrible conditions and a wide range of other civil liberties violations. Civil liberties exist, much of the time, to protect minority rights, and that's important. But most of these protesters, in opposing the war and other Bush policies, were expressing the views of New York City's majority. If such mainstream dissent is punished severely, many wondered, what lies in store for those expressing unpopular opinions?

The New York Civil Liberties Union (NYCLU) brought a number of lawsuits challenging the city's conduct during the 2004 convention. One of the best things about lawsuits -- from a public interest viewpoint -- is the fascinating documents obtained during discovery (the period before the trial in which the parties can compel each other to give up relevant information). In this case, the NYCLU had sworn testimony from high-level New York Police Department (NYPD) officials, thousands of pages of city memos, minutes and other documents, and many hours of videotape. When the City tried to prevent the NYCLU from making this information public, the organization yet again took the City to Court. A couple weeks ago, a judge ruled in the NYCLU's favor. The city is still trying to stop the civil liberties group from releasing the documents, but it's lost the legal battle. Beginning around noon next Wednesday, the documents will be open to the public, at www.nyclu.org. The videos will be available soon as well.

I'll be writing about these documents in more detail soon in the magazine (and next week, please check them out for yourselves). But briefly, here are some details that stand out:

NYPD officers had to seek medical attention after exposure to asbestos, carbon monoxide, and other toxic substances (including, ominously, an unknown "black liquid") at Pier 57, which was used as a mass arrest holding facility during the convention. Many demonstrators detained at Pier 57 have made similar complaints; it's significant that the police and the demonstrators experienced similar problems with this toxic facility.

A "no summons" memo shows that the long detentions of protesters during the RNC was a deliberate, premeditated policy decision, not inefficiency on the part of the NYPD. The police could have simply issued a summons to each protester, but instead, they (illegally) decided in advance to fingerprint everyone who was arrested.

Police department data shows that the RNC protesters were arraigned slowly, compared to people arrested for other offenses during that week. It's pretty appalling that people arrested for serious crimes received better treatment that those who were simply exercising their right to express dissent.

Finally, the documents present a big fat pile of evidence that the police department was preparing for mass arrests. With zero evidence that the protests were going to be violent, the NYPD was planning, not simply to keep order, but to incarcerate thousands of demonstrators. Obviously, it's annoying when protesters over-dramatize their victimization by police, deliberately provoke cops, or claim that we live in a "police state." (We don't.) But the city handled this situation disgracefully, and should be held accountable.

A Rebuke from Congress

In a matter of hours, the House of Representatives will vote to oppose President Bush's plan to send 21,500 additional troops to Iraq. Though the resolution does not carry the weight of law, the debate is still significant: This marks the first time that the US Congress has voted decisively against the Bush Administration's Iraq policy.

For once, Republicans find themselves in an uncomfortable place, on the defensive. Though a small band of GOP dissidents chose to vote with the Democrats, most Republicans stuck with the President. This week has not been the party's finest PR moment. You had members like Virgil Goode, now infamous for insulting Muslim Congressman Keith Ellison, likening critics of the war to "jihadists who want the Crescent and Star to wave over the Capitol," and replace the words "In God We Trust" on American money to "'In Muhammad We Trust."

Surely this is not the image the Republican Party, no matter how unpopular, wants to project. Democrats for their part, found some confidence in fighting off the GOP's argument that such a resolution would undermine the troops in the food. Rep. Tim Ryan of Ohio was particularly eloquent on this point. But both sides, as Chris Hayes wrote, needlessly fetishized the American solider, using the image as an excuse to hide behind our nation's lack of shared sacrifice.

Democrats are working on a tough plan to condition how the money for the escalation can be spent. But many of them--and virtually all Republicans--remain unwilling to state an uncomfortable truth obvious to the majority of Americans: The war is lost and America should leave.

A Last Battler Against Joe McCarthy and His "Ism"

The arc of history is long, and those who bend it over particularly wide stretches to time sometimes outlive memories of the most dramatic turns.

Such is the case with Thomas Fairchild, the last man to mount a serious electoral challenge to Joe McCarthy and the "ism" he spawned, who has died this week at age 94.

Fairchild's rendevous with destiny played out a very long time ago? In deed, on the day of the vote in which Fairchild sought to prevent the reelection of the red-baiting Republican senator from Wisconsin in 1952, afternoon newspapers carried accounts of aged Civil War veterans casting ballots.

We have come so far from the distant days of McCarthy's "redscare" that it is easy to forget the courage that it took to challenge the senator at the height of his political power -- and his dominance of the national discourse.

No less a figure than Dwight Eisenhower, the man who would be electedpresident in the same 1952 election that saw the Fairchild-McCarthy contest play out, avoided taking McCarthy to task, for fearon the general's part that he too might face the wrath of the senator whose wild charges of communist conspiracies had targeted and terrorized the Department of Defense, the Department of State, the Congress and the media.

Fairchild did not have to enter the firestorm.

As the election approached, he was the most successful Democratic political figure in the still very Republican state of Wisconsin. Fairchild was, in fact, the only member of his party to win statewide office since the Franklin Roosevelt landslide of 1932.

Having served a term as a civil-liberties defending and corporation-challenging attorney general in the late 194Os, he was by 1952 comfortably in position as the appointed U.S. Attorney for the western district of Wisconsin. Handsome and articulate, a member of one of Wisconsin's oldest families, the son of a state Supreme Court justice, he was a political "golden boy" who was tagged by just about everyone for a bright future in elective office or the judiciary.

Then, University of Wisconsin-Madison students, fearful that McCarthywould be reelected over weak opposition, formed a "Fairchild vs. McCarthy" club and delivered a petition to the U.S. Attorney that read: "We, the undersigned students of the Univerity of Wisconsin -- Republicans, Democrats and Independents -- oppose the re-election of Sen. Joseph R. McCarthy and urge you, Thomas E. Fairchild, to announce your candidacy for United States senator."

The students knew Fairchild as one of the few prominent figures with the courage to take on McCarthy. An able lawyer, who would go on toserve as chief judge of the U.S.Court Appeals for the Seventh Circuit, Fairchild hit McCarthy where it hurt when, in 195O, he challenged the senator to relinquish his official immunity and publicly repeat libelous charges he had made against employees ofthe U.S. State Department. The challenge exposed McCarthy'srecklessness and hypocrisy, at least to those Americans who were paying attention. But they also led to attacks on Fairchild's patriotism by McCarthy's allies.

Well aware of McCarthy's viciousness, and of the ugliness of the political moment, Fairchild did not leap at the "opportunity" to oppose the senator in 1952. But he finally decided that he had to make the race. And he did so without apology or caution. Condemning McCarthy and McCarthyism for causing a "deadening of the human spirit through ruthless insistence on total conformity," the Democratic candidate declared that, "The outcome of the election will go far toward determining whether we give the green light to ahome-grown gestapo as the advance guard of a new totalitarianism, or whether we will stop this ugly threat to American freedom dead in its tracks."

Fairchild did not stop McCarthyism in its tracks. But heslowed the red-scare down by standing up to McCarthy when too few others would. On election day, McCarthy prevailed. Yet, he ran far behind other Republicans, and that vulberability was noticed by his fellow senators, by Eisenhower and by a growing number of journalists, who slowly began to find the courage to confront the senator and his "ism." Though McCarthy continued to hold his high-profile "red-hunting" hearings for several more years, the evidence of homestate opposition to the senator -- which would come into stark relief when a mass campaign by recall the senator from office -- made national news and was frequently cited by critics of the senator.

There is no question that Fairchild was right when he said that McCarthy and McCarthyism "brought shame on Wisconsin." But, if anyone restored the state's honor and offered a lesson in political courage that ought not be forgotten in this time of the Patriot Act and new assaults on civil liberties and dissent, it is Thomas Fairchild.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"