Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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From the Associated Press ...<$NoAd$>

Reversing itself, the Army said Tuesday that a G.I. was discharged partly because of a head injury he suffered while posing as an uncooperative detainee during a training exercise at Guantánamo Bay, Cuba.

The Army had previously said Specialist Sean Baker's medical discharge in April was unrelated to the injury he received last year at the detention center, where the United States holds suspected terrorists.

Mr. Baker, 37, a former member of the 438th Military Police Company, said he played the role of an uncooperative prisoner and was beaten so badly by four American soldiers that he suffered a traumatic brain injury and seizures. He said the soldiers only stopped beating him when they realized he might be American.

Bruce Simpson, Mr. Baker's lawyer, said his client is considering a lawsuit.

What can you say about this stuff?

From today's Saint Petersburg Times ... <$NoAd$>

Two days after the Sept. 11 attacks, with most of the nation's air traffic still grounded, a small jet landed at Tampa International Airport, picked up three young Saudi men and left.

The men, one of them thought to be a member of the Saudi royal family, were accompanied by a former FBI agent and a former Tampa police officer on the flight to Lexington, Ky.

The Saudis then took another flight out of the country. The two ex-officers returned to TIA a few hours later on the same plane.

For nearly three years, White House, aviation and law enforcement officials have insisted the flight never took place and have denied published reports and widespread Internet speculation about its purpose.

But now, at the request of the National Commission on Terrorist Attacks, TIA officials have confirmed that the flight did take place and have supplied details.

See the rest here.

From today's Washington Post ... <$NoAd$>

House Republican leaders have tacked on to a major jobs bill a provision that would give religious leaders more freedom to engage in partisan politics without endangering the tax-exempt status of their churches.

Conservative Christian groups have been pushing for such legislation for years, while civil liberties organizations and religious minorities have opposed it. But unlike past proposals, which were stand-alone bills, the current provision is attached to a huge tax bill that House leaders have placed on a fast track for consideration.


Under current tax rules, clergy members are allowed to speak out on political issues and to lead nonpartisan voter registration drives. But the IRS can revoke a congregation's 501(c)3 tax-exempt status if it endorses candidates or engages in partisan politics.

The American Jobs Creation Act, introduced Friday by House Ways and Means Committee Chairman Bill Thomas (R-Calif.), is scheduled for markup Thursday and a vote on the House floor next week. The bill's main purpose is to cut the top corporate tax rate from 35 percent to 32 percent and provide other tax relief to businesses, in return for repealing subsidies that have triggered European sanctions on U.S. farmers and manufacturers.

But on page 378 of the bill is a provision entitled "Safe Harbor for Churches." It would allow clergy members to engage in political activity, including endorsing candidates, as long as they make clear that they are acting as private citizens and not on behalf of their religious organizations. They could not make partisan political statements in church publications, at church functions or using church funds.

The provision also would allow clergy members to commit three "unintentional violations" of the tax rules on political activity each year without risking the loss of tax-exempt status. After the first violation, the church, synagogue or mosque would have to pay corporate taxes on one week's worth of its annual revenue. For the second violation, the penalty would be taxation of 50 percent of the organization's annual revenue. The penalty for the third violation would be taxation of a year's revenue, but not permanent loss of its tax exemption.

See the rest here.

Separate of church and state, sic transit ...

From the Boston Globe: "After three days of suspended political activity, the Bush campaign began openly incorporating Ronald Reagan's death into its reelection message yesterday, revamping its website to give Reagan a dominant role and distributing official campaign letters that invoke the former president ... Visitors to the official campaign site were automatically redirected to the Reagan tribute, paid for by the Bush/Cheney committee. It replaced the spot usually occupied by the campaign home page."

Click here to visit the front page of the Bush campaign website to see what they mean.

Several days ago I wrote this post about the odd habit which many people have of talking about Democratic 'dependence' on the votes of various racial minorities. As I argued in that post, this frequent framing of the issue often contains within it an unspoken (or perhaps even unconsidered) assumption that the votes of racial minorities aren't quite real votes somehow -- second class votes, you might say.

In any case, that was my argument. And one can dispute it or not.

The Wall Street Journal's 'Best of the Web' chose to dispute it. And you can read their whole run-down here. But in the course of that response, the author, James Taranto, said the following ...

Marshall has a small point, inasmuch as the idea of black voters being "suddenly struck from the rolls" sounds like a racist fantasy. So imagine instead if black voters suddenly started dividing their votes between the parties in the same proportion as nonblack voters do. This would yield an identical electoral outcome without disfranchising anyone. As it is, though, blacks are extreme outliers in their voting behavior: They vote overwhelmingly Democratic, while nonblacks tend to vote Republican, though less overwhelmingly.

The obvious point is that if Republicans ever find a way of attracting significant numbers of black voters, the Democrats will be in big trouble. Forty years' experience has shown this is easier said than done, but surely it's possible. To say otherwise would be to claim the Democrats can take black voters for granted in perpetuity.

Taranto's point echoes another assumption in the Bill <$Ad$>Schneider report we linked last week. Narrowly speaking, this point is of course true. If blacks started splitting their votes in the way non-hispanic whites do and nothing else changed, yes, the Democrats would be in something of a bind. But that would only be so if you imagine that voting blocs exist in a vacuum, with no dynamic relationship to the rest of the electorate.

Let me be more concrete: Why do blacks vote so disproportionately for Democrats? And if the GOP changed the policies and attitudes which demonstrably alienate or fail to attract black voters now, would that in turn alienate other voters who are now reliably Republican? It probably won't surprise you terribly to hear that I think the answer is, yes!

Pick apart what Taranto is saying and it's rather like some Democratic strategist saying, "Hey guys, here's the plan: We now have the secular humanists and the gays. If we can just get the Christian fundamentalists too, then ... then, my friends, then we'll be cookin' with gas."

Or perhaps, "We've got the abortion-rights crowd locked up. Now, if we can just cleave away half the pro-life constituency, then we'll never lose another election again!"

Again, true. But rather easier said than done. And for pretty fundamental reasons.

In most parts of the country I don't pretend that the cleavage is quite so stark as it would be in these examples I've provided above. But the logic of Taranto's suggestion does stem from the assumption that the GOP's difficulties with blacks are just some misunderstanding, a failure to communicate or 'reach out,' as the endlessly annoying phrase has it. But surely something so enduring isn't so incidental.

I touched on this point in an article I wrote at my old magazine The American Prospect, using the lamentable case of Jack Kemp ...

Consider the example of Jack Kemp, who has spent much of his career since leaving Congress arguing for a more inclusive Republican Party that could build beyond its base of economic and social conservatives and reach out to traditionally Democratic constituencies. Kemp is, of course, an extreme supply-side conservative on economic issues. But his repeated political failures and his increasing estrangement from powerful segments of the party have been rooted in his seeming inability to appreciate the deep gusts of racial animosity that fill the sails of so many Republican public policy crusades. Most Republicans know that enterprise zones and other nostrums presented as alternatives to "failed" liberal social policy are window dressing. Kemp's problem is that he takes the window dressing seriously, but none of his GOP colleagues have the heart to tell him.

The Republican Party has not, as Kemp would have it, ignored blacks and other minorities. In the last 30 years the Republican Party has increasingly relied on the support of constituencies that feel embittered and resentful toward minorities and the poor. The party's mounting strength in the 1970s and 1980s was based on making inroads among conservative southern whites and appealing to the resentments that Democratic northern, working-class ethnic voters felt against school busing and affirmative action. Thus, the GOP's problem with minorities isn't incidental; it's fundamental. Any genuine effort to aid minorities or the poor would instantly alienate a substantial portion of the Republican base. It's an electoral bind, inexorable and fixed. The Republicans can't be the party of both black opportunity and anti-black resentment, no matter how big the tent. The Democrats tried it; it didn't work.

I think the same continues to apply, though the racial edge in American politics -- always in flux -- is somewhat less overt today than it was in the 1990s.

I just got back online for the first time since early in the day. And I haven't had a chance to read it yet myself. But the Wall Street Journal now has a lengthy portion of the "torture memo" online and available to non-subscribers.

Tuesday's Paul Krugman column is very, very good: a telling contrast between Reagan and Bush on the question of taxes.

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.