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The notion occurred to me and your scientific literacy compelled me to share. The Republican Party according to Chris Cillizza is now 21% of the population. We don't have a lot of precedent for such low party ID numbers, but does a decline in party ID always have a merely proportionate effect on its influence? Or at some point does a small marginal change have a dramatic effect, akin to a phase change in physics? If there is such a point, did we just pass it?

I love this question and this metaphor. But I don't think it is an accurate way to describe the world... in part because there are plenty of conservatives who will vote Republican but who won't tell pollsters they're Republican because of the brand identity.  I think the phase change metaphor applies to one set of numbers:  the percentage of the time the leaders of the Senate can get 60 votes. If there are 60 Democratic senators, everything changes instantly. 59 senators... not so much. The real phrase change in American politics could occur in 2010... That said, the Republican shrinkage phenom is real, and it's one reason why Americans are giving Obama the benefit of the doubt, policy-wise.

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In the spring of 2003, the DCI asked for a reaffirmation of the policies and
practices in the interrogation program. In July 2003, according to CIA records, the
NSC Principals met to discuss the interrogation techniques employed in the CIA
program. According to CIA records, the DCI and the CIA's General Counsel
attended a meeting with the Vice President, the National Security Adviser, the
Attorney General, the Acting Assistant Attorney General for the Office of Legal
Counsel, a Deputy Assistant Attorney General, the Counsel to the President, and
the Legal Adviser to the National Security Council to describe the CIA's
interrogation techniques, including waterboarding. According to CIA records, at
the conclusion of that meeting, the Principals reaffirmed that the CIA program was
lawful and reflected administration policy.

"...., strikingly, unless there is a further story in records not yet shown to us, the Secretary of State and the Secretary of Defense, were not involved in the decision making process despite the high stakes for U.S. foreign policy and for the treatment of the U.S. military."

"Second, the narrative and the May 30, 2005 opinion demonstrate that the Detainee Treatment Act of December 2005 was substantially undermined by the May 30, 2005 OLC opinion.  The Bush Administration had already construed the main provisions of the Act to authorize its full gamut of coercive techniques."

".... the OLC memos that were released reflected, in my view, us losing our moral bearings.  That's why I've discontinued those enhanced interrogation programs. 

For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted.

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.  I think that there are a host of very complicated issues involved there."

Remember, the Justice Department's Office of Professional Responsibility is investigating these memos and their authors. The OPR's investigation could lead to a range of recommendations, from nothing to disbarment to prosecution. And Obama's saying that Attorney General Eric Holder, not the White House, will make that decision.  I initially thought that Obama was contradicting his chief of staff, who seemed to rule out prosecuting the lawyers on Sunday -- i..e, "those who devised the policy" -- but a White House official says that Rahm Emanuel was referring to policy-makers at the CIA.

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The Honorable Eric Holder

Attorney General

Department of Justice

Washington, DC  20530

Dear General Holder:

I am outraged to learn from reports leaked to the media over the last several days that the FBI or NSA secretly wiretapped my conversations in 2005 or 2006 while I was Ranking Member on the House Intelligence Committee. 

This abuse of power is outrageous and I call on your Department to release all transcripts and other investigative material involving me in an unredacted form.  It is my intention to make this material available to the public. 

I also urge you to take appropriate steps to investigate possible wiretapping of other Members of Congress and selective leaks of investigative material which can be used for political purposes.  As you know, it is entirely appropriate to converse with advocacy organizations and constituent groups, and I am concerned about a chilling effect on other elected officials who may find themselves in my situation. 

Let me be absolutely clear:  I never contacted the Department of Justice, the White House or anyone else to seek favorable treatment regarding the national security cases on which I was briefed, or any other cases.  You may be aware that David Szady, the FBI's former top counterintelligence official, is quoted in the media saying of me "...in all my dealings with her, she was always professional and never tried to intervene or get in the way of any investigation."

Sincerely,

JANE HARMAN

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SMITH: On the other hand, groups like the ACLU and others have said this proves there are prosecutable crimes that need to be acted on. What's your response to that?

AXELROD: Well, the president has said, if there were agents of the United States government acting on legal advice that what they were doing was legal and appropriate, that they should not be prosecuted.

If people acted outside the law, that's a different issue. But the main point is the president has banned these enhanced interrogation techniques. We have turned the page on this episode in our history. We have so many challenges in front of us, in terms of our national security, our relations in the world.

And remember, these techniques, far from enhancing our safety, really become a recruiting and propaganda tool for Al Qaida and the extremists around the world. We're moving past all of that. And to revisit it again and again and again isn't, in the president's view, in the country's interest.

I know and like Steve Schmidt, and have had many conversations with him about gay marriage and his party. He and I disagree on a fundamental point. I don't think the modern Republican Party, which relies heavily on the foundational force of Christian conservatism, can shift its position on gay rights without severe penalties. I know that there are many Republicans who support gay rights, and that most members of the Republican elite are pro-gay, and that the business wing of the party could care less about the issue. I know that suburbanites are turned off by conservative intolerance of homosexuality and gay rights. I know that younger Republicans tend to be pro-gay and are alienated from the rest of the party. But I also know that the possibility that the Republican coalition will find some way to organize itself without social conservatives is a ways of a way off. Schmidt's concerns may be valid, but urging the GOP top adopt a tolerance platform WITHOUT figuring out how to declamp itself from the social conservative hook -- that's not terribly realistic. That's why so many Republican strategists, even as they're sympathetic to gay rights (and virtually ALL of them are), don't advise their clients to so much as acknowledge the dignity of gay people.

And if that's a boring headline, well, you and my editor agree. But this is going to be a boring process. It'll take, probably, years, plural, before the EPA issues regulations. Having formally announced an "endangerment" finding, the agency begins a period of public comment for the stakeholders. An EPA release makes the administration's preference very clear: "Notwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy."

One question for stakeholders:  which part of the Clean Air Act the EPA chooses to use to regulate carbon how that will impact/be impacted/replaced by any legislation Congress passes.  For instance, by finding that emissions from cars and trucks are part of that endangerment, the EPA could theoretically choose to make each and every car owner get a permit from the EPA. That won't happen, but the wording of today's finding theoretically gives the government that power.

So -- today's finding will be marginally useful for members of Congress like Rep. Ed Markey to convince other members of Congress to take carbon regulation seriously. The administration remains skeptical that it will be sent a cap-and-trade bill this year, but there will be many catalysts, internally and externally, that might persuade Congress (the Senate, in particular) to act expeditiously.

A reader walks me through an argument that I considered, dismissed, and am now forced to consider again:

Here's what Attorney General Holder said today in his statement: "Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct."

Note the emphasis,

So -- doesn't that mean that if there were IC officials who did NOT act reasonably, did NOT act in good faith, and IGNORED the OLC's advice -- that if evidence were to come out that some folks did this -- that they could be subject to prosecution?

My reader notes, quite correctly, that the memorandums are themselves careful to stress that their grant of legality is not universal; if and only if the interrogators and officials followed the appropriate guidelines would the conduct be legal. And there is plenty of evidence in the public record about interrogations that did not follow these guidelines.

My reader:

In theory, at least, prosecutions could proceed against any operative who deviated from these memos. It could also proceed against any operative who was holding the memos up as a sham defense. If the operative were not convinced of the applicability of the memo to his actions, but proceeded anyway, that would be a bad faith reliance on the memos. And prosecutions could proceed against anyone who, despite the memos, acted unreasonably - perhaps the letter of the memo would allow continuing an abusive interrogation, but any reasonable person could see that continuing to torture would kill the detainee - that might still be prosecuted. 

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They no-commented me last week, and they're stonewalling Greg Sargent this week: the White House refuses to say whether the President supports the State Secrets Protection Act in Congress.  As a candidate, Obama supported the principles espoused in a similar piece of legislation, but he did not sign on to the bill as a cosponsor.  My reporting leads me to believe that senior administration officials, including the White House counsel, Gregory Craig, oppose the current version of the legislation because they believe it would overturn an important, established precedent and weaken the ability of the president to protect national security. 

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"We're going to have to see whether or not there's a consensus that can be reached that makes [EFCA] something that can be passed because right now there isn't something that can be passed," Bennet told the group at New Belgium. He said he's concerned by the hard feelings that are developing on the issue, among organized labor on one side and small-business owners on the other. He said those groups can be allies on many issues, particularly health-care reform, and can't let the EFCA debate splinter relationships. "Temperatures are running high on both sides of this. We need to make sure that no matter how this turns out ... that we've got all hands on deck working on health-care reform because this is the year to get that done," he said.

The Obama Administration still wants to keep its secrets. 

Yesterday, the Justice Department embraced the argument that the state secrets privilege - a fancy phrase denoting the executive branch's common law prerogative to protect classified information - should shut down any litigation against the National Security Agency for its arguably illegal warrantless surveillance program.  

The case, Jewel v. NSA, is one part of a complex web of cases brought by civil libertarians against the government.  They're challenging the program itself, Congress's grant to telecommunication companies of retroactive immunity, and even the rights of state governments to issue subpoenas relating to NSA activities.  

Jewel is perhaps the simplest to litigate;  its five plaintiffs are regular folks who contend that their telecom carrier, AT&T, illegally transmitted information about their phone habits to the NSA.  Defendants include the NSA and various government official who sanctioned the program.                                                                                    

Pull one strand and the whole weave of surveillance activities will unwind. That's essentially what the government is arguing. Although, thanks to journalists, much is already known about the NSA's domestic surveillance program before it was reauthorized and rewritten, very little is known about the program today. It still exists, albeit in some neutered form. 

Reports indicate that domestic communications are monitored holistically, with computers searching for patterns among the metadata - think of subject lines in e-mails.  The NSA continues to work with telephone companies; it has enlisted the cooperation of companies that operate major internet hubs, as a good chunk of foreign internet traffic flows through routers controlled by American companies.  NSA whistleblowers and anonymous officials have spoken of "thousands" of American citizens whose calls were monitored, although the NSA and CIA will not cop to those numbers.  The program expires at the end of 2009, at which point the Obama administration is expected to mount a vigorous fight to reauthorize it in full.

The government, in a filing yesterday, argues that the Jewel will disclose state secrets if it proceeds, and that if such secrets are needed for the case to be litigated - i.e, to be argued on its merits -- it cannot be litigated. There is ample precedent for this argument. As I've written before, the state secrets privilege is one of the most powerful instruments of executive power. There are no uniform standards for judges to use in order to determine whether the government is simply asserting the privilege because they're embarrassed, or whether the privilege's assertion really protects vital secrets. Obama has criticized this lack of accountability, but his Justice Department has not figured out how to retract the privilege in a bevy of Bush-era cases without damaging the privilege itself - something they don't want to do.

The government also makes a complex argument about sovereign immunity; it argues that the case against particular persons performing their government jobs can't proceed unless Congress waives immunity.  Such immunity is being challenged elsewhere, but only, in this understanding, can a basic case asking for injunctive relief from the government proceed. (Glenn Greenwald makes a persuasive case about why this assertion is fairly radical.)

Fine. But that's where the state secrets privilege is invoked.

 Plaintiffs' Complaint quite clearly seeks disclosure of whether or to what extent the Government may have utilized certain intelligence sources and methods after the 9/11 attacks in order to detect and prevent further attacks. It also seeks disclosure of whether any of the alleged activities (if they exist) are ongoing."  

"...the DNI has explained that the disclosure of information concerning whether or not plaintiffs have been subject to alleged NSA intelligence activity would inherently reveal NSA intelligence sources and methods."

The government claims that the program under which the illegal "dragnet" is alleged to have occurred - the TSP - or the first Bush Terrorist Surveillance Program - is "no longer operative."  But - the government claims - in order to prove that in court, it would have to disclose information about what the NSA is doing right now - and darn it, wouldn't you know, that'd be a secret the government cannot do without.

The Government's privilege assertion also precludes plaintiffs from establishing standing as to any statutory claim that may survive the Government's motion to dismiss. For each cause of action, plaintiffs must establish, as a threshold matter, that they have been "aggrieved"--that is, subject to the alleged action being challenged. Because plaintiffs cannot adduce proof that the content of their communications has been collected by the Government, or that their communications records likewise have been obtained by the Government, the most basic element of every claim--their standing as "aggrieved persons"--cannot be established. It bears emphasis that plaintiffs' allegation of a "dragnet" of surveillance by the NSA--the alleged interception of communication content and records of millions of domestic and international communications made by ordinary Americans, see, e.g. Compl. ¶ 7--does not establish their standing. Even if that allegation were sufficient to avoid dismissal on the
pleadings, plaintiffs would be required to demonstrate that they personally have been subject to the alleged communications dragnet, and the information relevant to doing so is properly protected by the state secrets privilege."

I asked a national security lawyer who generally supports the administration's policies to weigh on this latest assertion of privilege.

"I appreciate that the new administration has a lot on its plate in this and related areas, that it is hampered by some difficulty getting its legal team confirmed by the Senate, and that it has said repeatedly that it is reviewing government policy on asserting the state secrets privilege," this lawyer said. "But all we have to go on now is what they have done so far and this latest position is disappointing."

A scary headline out of the Middle East this morning: "Al-Qaeda Increases Yemen Attacks as Government Control Weakens."  The Bush and Obama administrations have been working with Yemen to facilitate the release of dozens of Yemeni citizens held at Gitmo; Yemen's president has bragged about building new repatriation facilities where the newly released detainees would be re-educated and re-integrated into Yemen society. All that was predicated on their being a stable Yemen society where joining Al Qaeda was not an attractive option for these young Muslim men. Bloomberg reports that the President's chief counterterrorism adviser, John Brennan, held secret talks to warn Yemen President Ali Saleh about U.S. concerns. Chief among them: the flood of radical young Saudi men who have turned Yemen into their safe haven. Additionally, an adviser to Saleh warned Yemen's parliament that Al Qaeda had infiltrated Yemen's intelligence and security services. 

We begin with the County's argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents--such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons--that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or "overbroad generalizations about the different talents, capacities, or preferences" of gay and lesbian people, rather than having a substantial relationship to some important objective. See Virginia, 518 U.S. at 533, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751 (rejecting use of overbroad generalizations to classify). If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.

Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.

On Oct. 8, 2008, defendant Blagojevich advised Lobbyist A that he intended to take official action that would provide additional state money to Children's Memorial Hospital in Chicago, and that Blagojevich wanted to get $50,000 in campaign contributions from the hospital's chief executive officer.

On Oct. 17, 2008, Blagojevich called the hospital's CEO to tell him of his intent to increase the Illinois Medicaid reimbursement rate for speciality-care pediatric physicians. Shortly before this, Blagojevich had directed Deputy Governor A to initiate such an increase, which Illinois providers of pediatric healthcare, including Children's Memorial Hospital, had actively supported for years.

On Oct. 22, 2008, Blagojevich spoke with the Children's CEO and asked him to arrange to raise $25,000 for Blagojevich prior to Jan. 1, 2009. On Nov. 12, 2008, after the Children's CEO had not returned additional phone calls from Robert Blagojevich and no political contributions from the Children's CEO or other persons associated with the hospital had been received, Blagojevich spoke to Deputy Governor A about the increase in the Medicaid reimbursement rates for specialty-care pediatric physicians, asking whether "we could pull it back if we needed to. . . ." As a result of this conversation, Deputy Governor A instructed the Department of Healthcare Services to stop its work on increasing the reimbursement for specialtycare pediatric physicians.

When Terry McAuliffe was the chairman of the DNC, his staff used to joke at his expense that any number he uttered -- usually a brag about some fundraising goal or field accomplishment -- had to be reduced by about a third in order to comport with reality. Dana Milbank, writing in the Washington Post, suggests that the current DNC regime is overboasting, too, about the number of Obama budget pledges it received.  

 In fact, the canvassing of Obama's vaunted e-mail list of 13 million people resulted in just 114,000 pledges -- a response rate of less than 1 percent. Workers gathered 100,000 more from street canvassing. The DNC got to 642,000 by making three photocopies of each pledge so that each signer's senators and representative could get one.

Not to echo Milbank's dismissiveness, but if the DNC brags about 642,000 pledges, one has to assume they're talking about 642,000 individual pledges from 642,000 individual people -- quite an impressive number.  But Milbank is correct. Fewer than 215,000 individuals signed on to the pledge drive.

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It's about time to write about Sy Hersh's allegation of an "executive assassination ring" inside the U.S. government:

Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command -- JSOC it's called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him. ...

"Congress has no oversight of it. It's an executive assassination ring essentially, and it's been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths.

"Under President Bush's authority, they've been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That's been going on, in the name of all of us.

The Joint Special Operations Command is a nominally secret branch of the U.S. Special Operations Command responsible for so-called "special mission units." In case you hadn't noticed, they're very, very special. Some of the special mission units are familiar; there's the first Special Forces Operational Detachment commonly known as the Delta Force; the Navy's top counterterrorism squad, the Naval Special Warfare Development Group (DevGru) or Seal Team Six. Others are less so; an elite group of signal intelligence collectors goes by various cover names; it existed in the Iraq War as "Grey Fox"; it has also been organized under "Capacity Gear" and "Titrant Ranger." The JSOC also includes various mission support units that provide technology for missions and cover stories for JSOC operators.

These are open secrets. CBS's "The Unit," about Delta Force, even fictionalizes real missions.  Most JSOC missions remain highly classified, successful ones, anyway -- failures tend to be spectacularly public and tragic. Even the presidential decision directives that govern their conduct are redacted, leading to fairly informed speculation that the SMUs are given wide latitude to operative covertly and even the authority, at times, to conduct their missions on U.S. soil. (They had a presence at the 2004 inauguration.) 

Hersh is alleging that secret presidential orders gave JSOC teams the broad authority to hunt down and kill terrorists without due process, turning them into a sort of "an executive assassination ring essentially."  The rhetoric aside, we kind of knew that already; Under U.S. law, the State Department, through the agency of the ambassador, has to OK all such missions in the countries JSOC plans to work. In practice -- and possibly in law, too, this stricture is ignored when the President issues a classified finding.  Most of the time, ambassadors tend to be notified, occasionally after the fact. Congress is briefed on many major operations, but it has no authority to ask for a list of current JSOC targets, and it probably has no way to intervene. 

JSOC units are very active in Iraq and Afghanistan; in those countries, since the U.S. is formally at war, their conduct can't really be analogized to an extra-legal hit squad.  Hersh is probably referring to their operations in other countries -- Yemen, for example, or Syria, or Iran, or perhaps in friendlier countries.  What's objectionable, in theory, is that the President can designate anyone as a terrorist and task JSOC with finding and executing them -- even if the person is not living in the war theatre and has never been charged with a crime. In practice, that's what presidents from Richard Nixon to Ronald Reagan to Bill Clinton have believed.  

I am not aware of a recent Supreme Court decision or federal case that limits the president's authority in this area as most recently exposited by the Bush Administration's John Yoo in one of his famous memos.

The executive branch makes no real distinction between assasinations and military action; the CIA tends to work with JSOC, although CIA case officers are generally more reluctant to pull the triggers themselves. 

Obama has yet to weigh in on whether he believes that presidents inherently have this authority -- or whether they ought to.

"Attorney General Eric Holder has simply taken the job of politicizing DOJ to reflect the Democrats' partisan agenda into his own hands," writes National Review's Andy McCarthy, an ex-prosecutor. He's referring to a muckracking Washington Post story about the Justice Department's Office of Legal Counsel and its draft opinion that the D.C. voting rights bill in Congress doesn't pass constitutional muster. The Post reports that Holder, upon taking receipt of the OLC opinion, asked for other opinions and found that his solicitor general would be able to fix an argument for an eventual three-stage court fight that would end up in the Supreme Court. The Post suggests that Holder's decision "may expose President Obama's Justice Department to some of the same concerns raised by Democrats during George W. Bush's presidency."   

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