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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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That Post story was a great example of bogus even-handedness in action. And Sunstein's statement that Yoo doesn't deserve vilification is an example of the over-clubbiness of the legal profession.

Set aside Yoo's book on presidential powers, which is tendentious and unconvincing but well-written. His "torture memo" is inarguably a horrific piece of legal reasoning, which uses lawyerly cleverness to evade the plain sense of words and endorse the policies his superiors wanted endorsed. It's an utter embarrassment, by any measure.

Atrios has a good catch here about Trent Lott, whether he'll retire next year, whether that will hand the Senate to the Dems and what it all might mean.

The Post has a profile of John Yoo out today. Cass Sunstein, while disagreeing with Yoo, calls him "a very interesting and provocative scholar" who "doesn't deserve the demonization to which he has been subject." And Yoo himself makes the fair point that he himself was hardly in a position, as DOJ lawyer, to make policy.

All that aside, there's something deeply pernicious about this man's work. The Post gives some sense of the cadre of lawyers and ideological incubators he comes out of. Provocative as Yoo's ideas may be, they are deeply authoritarian. And his claim that there is any historical basis for such absolute presidential authority is laughable. I try not to get too deep into legal arguments because I lack the necessary expertise. But on the historical points I'm on my own professional ground.

Democracy can be lost in a lot of ways. This is one of them. These theories of executive power deserve a thorough airing and discussion quite apart from the particular abuses they may have been used to justify.

John Yoo stepped back in the debate over presidential power recently with this opinion column which appeared first in the Los Angeles Times.

But read it and tell if me if I'm not right to think that he has taken the opportunity not to engage this debate he's helped spawn but to duck it.

Yoo, you'll remember, was the author of several key Justice Department memos from Bush's first term that, taken together, claim that the president's war powers give him a virtually untrammeled power to act as he believes in the best interests of the security of the nation, even if in doing so he breaks the laws of the country itself.

Yet in Yoo's column he doesn't even explore the complicated issue of how and where Congress might constrain the president's war-making power, particularly in areas that are not clearly or traditionally in the military realm. Instead, he chooses to attack a claim no one is making -- that the president cannot use the military until the Congress makes a formal declaration of war.

This is an argument that has no significant following in political or legal-constitutional circles. Simply stated, no one believes anything like that. It's just phony. And he builds from this phony argument to a lengthier straw man version of that which the president's critics make against him.

As in this passage ...

Liberal intellectuals believe that Bush's exercise of his commander-in-chief power has exceeded his constitutional authority and led to a quagmire in Iraq. If only Congress had undertaken the solemn process of declaring war, they have argued, faulty intelligence would have been smoked out, the debate would have produced consensus, and the American people would have been firmly committed to the ordeal ahead.


This is no more than a nonsense proceduralism version of the debate we're now having in this country.

Who has said that a declaration of war against Iraq would have made any difference to anything? No one says that. No one says anything like that.

With respect to war powers, the debate we're having is not about where they begin, as Yoo disingenuously suggests, but where they end.

With faulty intelligence and national consensus, the disputes are not procedural but substantive -- whether the president and his chief aides were simply dishonest with the public and the Congress in presenting information about Iraq, its war fighting potential and its ambitions, whether they gamed the country into war to create a fait accompli that would make the debate moot. These aren't issues of proceduralism and box-checking but tough substance -- whether President Bush betrayed his oath and whether he can be held accountable.

Yoo's diversionary OpEd suggests he's not eager to confront either of these questions. You'd think he'd use the moment to show his stuff; but Yoo doesn't.

Late Update: TPM Reader BF says Yoo was likely responding to this article in the Atlantic by Les Gelb and TPMCafe's Anne-Marie Slaughter. Seems likely he was. But I stick with my critique. If Yoo is willing to talk now he should talk about what's at issue. Courage is a good quality for those who talk a lot about war.

Department of article ledes you wish weren't so ironic, Xmas edition (courtesy of the NYT) ...

The commander of American-run prisons in Iraq says the military will not turn over any detainees or detention centers to Iraqi jailers until American officials are satisfied that the Iraqis are meeting United States standards for the care and custody of detainees.


To a new year with our national honor cleansed and restored.

I'm not sure whether or not I'll be posting again today. But in case not, I wanted to wish those who are celebrating a Merry Christmas, both to those for whom it is a central religious celebration and to those for whom it is a secular holiday of giving and togetherness. To each of you, our best.

Knight-Ridder reports that "An Iraqi court has ruled that some of the most prominent Sunni Muslims who were elected to parliament last week won't be allowed to serve because officials suspect that they were high-ranking members of Saddam Hussein's Baath Party."

The article goes on to say that two members of Iyad Allawi's slate (the Iraqi National List) are likely to be rejected as are five members of the Iraqi Accord Front (see this list for brief descriptions of the different electoral slates).

I'll wait to hear what Juan Cole and others say about this. But from the outside it certainly seems like this would intensify the perceived marginalization of Sunnis and dominance of Shi'a religious parties that already seems to be the main result of the election.

Am I in the wrong line of work?

I've been involved in blogging in a pretty direct way for more than five years. And that has given me a front row seat for all sorts of developments in this developing medium. That continues to be the case now as I work to expand this original site into a small network of sites, each with a particular focus building from the first -- tpmcafe.com, tpmmuckraker.com, etc.

Anyway, I guess maybe I've had seats so close to the stage that I've missed a lot of what was going on in the seats just behind me or perhaps a section or two back.

For instance, 'blog consultants'? Who knew there was such a thing?

With so much buzz and activity brewing around blogs these days and so many 'old media' companies launching their own blogs, I guess it only makes sense that a minor trade would have sprung up of people who will provide good counsel and advice on how to blog and how to set up blogs and, I have to assume, various blogging best practices, whatever those might be.

But it just hadn't occurred to me that such a species of consultants existed.

I first heard the phrase a month or so ago when a reader wrote in to ask whether I could recommend a qualified blog consultant to help his law firm set up a blog.

There's actually a sort of funny side note here. The way I learned how to do web design was that when I was in graduate school I had a web design company that specialized in designing web sites for law firms. (By 'company', of course, I mean me with some help from my then-girlfriend.) That was my way of supplementing my meager graduate student stipend and wages.

In any case, some quick googling just found me this outfit that apparently specializes in setting up blogs just for law firms. (Note: No, that's not a recommendation; just found them on Google and linked them as an example.)

In case you're wondering, no, there's no particular reason I'm telling you all of this. It's just a reflection as we continue to work on our own expansion, all done with self-blog-consulting, I assure you.

Once again, for the more than 2500 of you who contributed to our fundraiser, again, a very sincere thank you. Most of you have heard back from us. The rest of you will shortly. Those of you who mailed in checks, it's taking us a bit longer to get 'thank yous' back. But you'll hear from us soon.

We're now building the TPMmuckraker.com site, almost done with our redesign of TPMCafe, half way done with hiring our two reporter-bloggers and now busily (and I mean really busily) looking for New York office space to house our new expanded operation.

We'll keep you posted as our progress continues.

As near as facts can be ascertained on this matter, I'd like to hear from people who can shed some light on the results of the election in Iraq -- results which may bring to a head the simmering tensions threatening to tear the state apart.

According to this article in the Washington Post, a rejectionist coalition of parties who together won an estimated 80 seats in the 275-seat National Assembly are threatening to boycott the new parliament and, implicitly at least, to support armed opposition.

As you know, the unofficial election results show an overwhelming win for Shia' religious parties. And pretty much everyone seems to be claiming that the elections were marred by widespread fraud.

So, my question is: Is there any reason to believe that there was a level of fraud in the election sufficient to make a meaningful difference in the results? Or is this just sour grapes? On first blush at least the results seem like the result of the fact the Shia' make up the majority of Iraqis and are perhaps better organized; and the Sunnis' electoral representation was diminished by their lack of participation in the last two elections. But perhaps there was widespread fraud.

Either way, there's no real way to get a handle on what's happening without some relatively independent analysis of whether these allegations of fraud are legitimate.

And by legitimate, I mean, not just any evidence of fraud, but fraud widespread and systematic enough to have measurably affected the result. (Any fledgling democracy will have some fraud in its early elections.)

Anyone have a good answer?

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