Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

The Wall Street Journal has an extraordinary article in today's edition. The Journal has taken to making an article a day open to the public for bloggers and others to link to. This wasn't the one they chose today; but I hope they'll make an exception and make this one available too.

The article describes a confidential Pentagon report providing legal rationales and interpretations by which US personnel could use torture and methods of near-torture in contravention of various international treaties and US laws. The bulk of the arguments rest on arguments of 'necessity' and the powers of the president as commander-in-chief. They also go into some depth about how people acting at the president's order could avoid prosecution for demonstrably criminal acts.

The article is well worth reading for this alone.

But that whole discussion is different in kind from one passage in the report. I quote from the piece ...

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

So the right to set aside law is "inherent in the president". That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that.

Now, we know that presidents sometimes break laws and they frequently bend them, if only in cases where the laws don't seem to anticipate a situation the president finds himself confronting. There is even an argument that the president can refuse to enforce laws he deems unconstitutional.

But there is no power inherent in the president simply to set aside the law. Richard Nixon famously argued that "when the president does it that means that it is not illegal." But the constitutional rulings emerging out of Watergate said otherwise. And history has been equally unkind to his claim.

Now, there are some possible exceptions -- ones of an extra-constitutional nature. If memory serves, Thomas Jefferson -- when he was later thinking over the implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory -- so perhaps someone can check for me) -- argued that the president might find himself in a position in which he might have the right or even the duty to disregard the law or some stricture of the constitution in the higher interests of the Republic.

Jefferson's argument, however, wasn't that the president had the prerogative to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvass the people or a situation in which there was no practicable way to bring the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best interests of the Republic.

The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.

But that wasn't the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

As I recall Jefferson's argument there was never any thought that the president had the power to prevent future prosecutions of himself or those acting at his behest. Indeed, such a follow-on claim would explode whatever sense there is in Jefferson's argument.

If you see the logic of Jefferson's argument it is not that the president is above the law or that he can set aside laws, it is that the president may have a moral authority or obligation to break the law in the interests of the Republic itself -- subject to submitting himself for punishment for breaking its laws, even in its own defense. Jefferson's argument was very much one of executive self-sacrifice rather than prerogative.

Somehow I don't think that's what this White House has in mind.

Incredible. This article in the Daily Telegraph has to be one of the most disjointed and confused articles I've read in a long time. But the information it contains, or alleges, makes it worth wading through.

First, it says that Francis Brooke, Ahmed Chalabi's long-time Washington handler, lobbyist and press maven, is the subject of an arrest warrant in Iraq. But he's absconded, if that's the right word, back to Washington.

I don't know quite what to make of this. The charge seems to be that he obstructed the raid on Chalabi's INC headquarters in some fashion. But it's not clear from the article that he did anything more than give the Iraqi police executing the warrant some grief. Nor is it clear, from the context, why that should be a crime.

[For Monday, the Washington Post has some follow-up on Brooke's warrant.]

The real nugget, however, is this passage tucked down at the bottom of the article ...

Last night, it emerged that on the same day as the raid, computer files belonging to the British consultant investigating the oil-for-food scandal were destroyed by hackers and a back-up databank in his Baghdad office wiped out.

Claude Hankes Drielsma, a British businessman and long-time acquaintance of Mr Chalabi, accused America and Britain of mounting a "dirty tricks" campaign to obstruct his inquiry. "I think you have to expect this to happen with events of the magnitude of those we are dealing with," he said.

His report on oil-for-food, written for the international accounting company KPMG, was due to be released in three weeks but its publication has been delayed for at least three months, he said.

"This report would have been even more damning than anticipated. This would not sit comfortably with the political agenda in Washington or London.

"I believe that what Washington wants is to keep the lid on things until after the presidential election. The White House believes that the report will be detrimental to President Bush's re-election campaign."

Now, we've discussed before that <$Ad$>the charges relating to the UN oil-for-food program in Iraq all stem from documents which Ahmed Chalabi says he has and says are valid, but which none but his political associates have been allowed to see.

Hankes Drielsma is a longtime Chalabi crony from the UK who Chalabi brought in to run his own investigation of the documents.

[A side note: no one disputes that there was widespread corruption in the oil-for-food program. Saddam and his cronies siphoned off all sorts of money; and that was known long before the war. The new charges relate to various international politicians, journalists and diplomats who were allegedly bought off with contracts from the program.]

In any case, basing an international scandal on documents which Ahmed Chalabi assures you he has but for some reason won't show you would seem a rather dubious proposition in the first place. But, if I read that passage from the Telegraph article correctly, Hankes Drielsma seems to be saying, in essence, that both his hard-drives exploded, that for some inexplicable reason it's America's fault, that the report was going to be incredibly damning, but now all the data is gone so it's going to be months, if not longer, till he can pull the evidence back together.

Am I missing something, or is this the dog ate my homework?

A final note: what gives me some pause about this story is that unlike the Brooke case, no other paper seems to have reported anything on this at all. And given it would be a pretty consequential matter, I find that rather odd.

Current affairs are off the radar for the moment, pushed to the side -- understandably -- by remembrance of Reagan and D-Day. But let me avert your gaze for a moment to update one of our running stories: that of Ahmed Chalabi and his ties to the Islamic Republic of Iran.

You've probably noticed that Richard Perle and a few others are still making regular appearances on chat shows and in quotes in newspaper articles about the Chalabi story. He, Gingrich and a few others even marched over to the White House a couple weeks ago and demanded an end to the investigations into Chalabi. And this has raised an intriguing question: with so many friends on the inside, if Chalabi were really as guilty as people say, wouldn't some of those folks go to Perle and the others and tell them to back off, if only in the interests of his own credibility?

It's a good question. And to some, it suggests that on the inside there's much more debate than we might imagine over whether the charges against Chalabi are true.

To try to figure out what might be going on I talked to several folks over the last few days who have a very good view into not only what folks in the intel community make of this stuff but what the prime neo-cons and/or Iraq hawks at DOD think too.

So what did I hear?

From what I can tell, they all think Chalabi is guilty as sin. They may have questions about how Chalabi got the information -- here there is some interagency skirmishing. But none seem to seriously question that he passed it on.

Yes, Chalabi still has a few diehards. I guess we might call them 'dead-enders'. Whether they're just in denial or, shall we say, more heavily invested in Chalabi than we understood, I just don't know. But as nearly as I can tell, with the exception of these few Chalabi dead-enders -- most, but not all, of whom aren't in government -- even those inclined toward sympathy to Chalabi think the charges are true.

You have to hand it to Tony Blankley, editorial page editor of the Washington Times and former press secretary to Newt Gingrich, for pasting together a rant which manages to weave together both accusations of anti-Semitism and most of the key anti-Semitic slurs and motifs. A low point for public morality, I grant you. But credit where credit is due on rhetorical handywork!

Courtesy of Media Matters, some passages from Blankley's recent comments about George Soros on Hannity & Colmes.

BLANKLEY: This is a man who has blamed the Jews for anti-Semitism ... This is a man who, when he was plundering the world's currencies, in England in '92, he caused the Southeast Asian financial crisis in '97 ... He said that he has no moral responsibility for the consequences of his financial actions. He is a self-admitted atheist, he was a Jew who figured out a way to survive the Holocaust.


When a man is worth this kind of money, and he's spending it on trying to influence the American public in an election, trying to buy the election, he's not going to, we have a right to know what kind of an unscrupulous man he is ... He's buying influence all over the world. He's a robber baron, he's a pirate capitalist, and he's a reckless man ... He supported abortion in Eastern Europe, in a country that's losing population, he's a self-admitted atheist, I think he's a very bad influence in the world. He's entitled to spend his money, and the public is entitled to know what kind of a man he is.

A "a self-admitted atheist" and "a Jew who <$Ad$>figured out a way to survive the Holocaust", has the man no shame?

And what's the point of that last line, exactly? A Jew who figured out a way to survive the Holocaust? Tell me the subtext of that remark. It is rather telling how quickly those who used the charge of anti-Semitism as a political tool during the debate over the war now slide their hand back into the glove.

Given Blankley's professional background I guess we shouldn't be overly surprised that this sort of rhetorical dexterity is the handmaiden of verbal butchery or that the anti-Semitic playbook is so tempting, so ... well, so difficult to resist and so natural as it glides off the tongue.

In any case, Soros does deserve scrutiny, as anyone who puts such large sums of money into the political process does, just as Richard Scaife deserves the scrutiny which he has gotten. But it is no less important to call right-wing publications like these on their lies about Soros, and even more when outlets like CNN pick those lies up and run with them. And, of course, it's so important to make sure everyone takes note when someone like Blankley gets sloppy and lets his sanguinary hoofs and fangs show.

So, so important.

The Clintons on Reagan<$NoAd$> ...

Statement of Former President Bill Clinton and Senator Hillary Rodham Clinton

Hillary and I will always remember President Ronald Reagan for the way he personified the indomitable optimism of the American people, and for keeping America at the forefront of the fight for freedom for people everywhere. It is fitting that a piece of the Berlin Wall adorns the Ronald Reagan Building in Washington.

President Reagan demonstrated his strength and resolve after leaving office when he shared his struggle with Alzheimer's Disease with the world. We will always remember his tremendous capacity to inspire and comfort us in times of tragedy, as he did after the loss of the space shuttle Challenger. Now he, too, has "slipped the surly bonds of Earth to touch the face of God," and we can rest assured that, as joyous a place as Heaven is, his wit and sunny disposition are making it an even brighter place to be.

Hillary and I send our prayers to Nancy, their children and their many friends and family, as well as our gratitude for the life of a true American original.

And there he goes, like a candle, long only barely burning, finally being snuffed out. A revered, popular president hasn't died in America for more than thirty years -- Harry Truman's death in 1972 is probably the last such similar event. In this case Alzheimers created a liminal decade in which he was often spoken of as though he were part of the past, even though he still lived. A month ago, Nancy Reagan, describing his condition, said "Ronnie's long journey has finally taken him to a distant place where I can no longer reach him." Here's biographer Lou Cannon's extensive obituary of Ronald Reagan, just out from the Washington Post.

Here at TPM we've repeatedly noted the tendency for Republicans (and also non-Republicans) to argue that non-white voters somehow aren't quite real voters. The point is often framed as noting how up-the-creek Democrats would be without black voters.

Thus we have a comment like Bill Schneider posed to Judy Woodruff a couple years ago on CNN ...

Judy, how dependent are Democrats on the African-American vote?

Without black voters, the 1992 and 1996 presidential elections would have been virtually tied, just like the 2000 election. Oh no, more Florida recounts!

What would have happened if no blacks had voted in 2000? Six states would have shifted from Al Gore to George W. Bush: Maryland, Pennsylvania, Michigan, Illinois, Wisconsin and Oregon. Bush would have won by 187 electoral votes, instead of five. A Florida recount? Not necessary.

Right now, there are 50 Democrats in the Senate. How many would be there without African-American voters? We checked the state exit polls for the 1996, 1998, and 2000 elections. If no blacks had voted, many Southern Democrats would not have made it to the Senate. Both Max Cleland and Zell Miller needed black votes to win in Georgia. So did Mary Landrieu in Louisiana, Bill Nelson in Florida, John Edwards in North Carolina, and Ernest Hollings in South Carolina.

Black votes were also crucial for Jon Corzine in New Jersey, Debbie Stabenow in Michigan, and Jean Carnahan in Missouri. Washington state and Nevada don't have many black voters, but they were still crucial to the victories of Harry Reid in Nevada and Maria Cantwell in Washington.

Nebraska and Wisconsin don't have many black voters either, but Ben Nelson would have lost Nebraska without them and Russ Feingold would have lost Wisconsin, too, in both cases by less than half-a- percent. Bottom line? Without the African-American vote, the number of Democrats in the Senate would be reduced from 50 to 37.

A hopeless minority. And Jim Jeffords' defection from the GOP would not have meant a thing -- Judy.

There are other examples. But you get the <$Ad$>idea.

True, of course. But what's the point exactly? Presumably any political party would put at something of a disadvantage if one of their major constituencies was suddenly struck from the rolls.

We heard a lot of this during Tim Johnson's successful reelection campaign back in 2002 in South Dakota. And now it's being proffered as an excuse to explain Stephanie Herseth's narrow victory in the state earlier this week.

As Rep. Tom Davis (R-VA), former head of the Republican House campaign committee (NRCC), told The Hill, "If you take out the Indian reservation, we would have won."

As I said when we last discussed this, I don't like making too much of this. I think the people who say such things haven't quite thought the point out. But their underlying assumption pretty clearly seems to be that blacks or Indians or whoever aren't quite real voters, and that Democrats who can't quite get the job done with ordinary white voters have to resort to them as a sort of electoral padding.

Delicious ....

From the Times ...

Chalabi also accused Tenet of providing ``erroneous information about weapons of mass destruction to President Bush, which caused the government much embarrassment at the United Nations and his own country.''


Mike Allen has some good follow-up on the president and his decision to bring on a personal lawyer in the Plame matter. Allen quotes the president as saying, "This is a criminal matter. It's a serious matter. I met with an attorney to determine whether or not I need his advice, and if I deem I need his advice I'll probably hire him."

This follows the White House line from last night. The president 'consulted' Jim Sharp to advise him on whether or not he needs Sharp's advice. And based on that advice, if the president decides he does need Sharp's advice, he'll probably retain him so he can get the advice.