States of Chaos

Following up the last post — Dan Froomkin writes today,

President Bush’s exclusive focus on suicide bombers — “suiciders,” in his parlance — when asked about violence in Iraq yesterday once again suggests that he lacks a realistic sense of the current state of chaos in that country.

“That’s the — but that’s one of the main — that’s the main weapon of the enemy, the capacity to destroy innocent life with a suicider,” Bush said yesterday in a brief public appearance with visiting Israeli Prime Minister Ehud Olmert.

Suicide bombings in Iraq do sometimes result in dramatic death tolls. And their aftereffects tend to show up more often in television footage than, say, the carnage wrought by secretive death squads.

But they’re hardly the main weapon afflicting either U.S. soldiers or civilians in Iraq today.

As anyone who monitors the situation in Iraq knows, a vastly greater threat to the 133,000 U.S. troops currently stationed there is posed by improvised explosive devices left along roadsides and elsewhere — and, to a lesser degree, by gunfire and mortar fire from armed insurgents trying very much to stay alive.

And as far as Iraqi civilians are concerned, the primary security threat these days comes from paramilitary forces committing widespread sectarian murder, unimpeded by anyone in authority.

Don’t miss “Armed Groups Propel Iraq Toward Chaos” by Dexter Filkins in the New York Times, discussed in the last post below.

Reliable statistics are hard to come by, but ask people with first-hand experience in Iraq, and they’ll most likely tell you that Bush’s emphasis on suicide bombings is at best way out of date, and at worst an example of his utter cluelessness.

Was Bush being accidentally or intentionally ignorant? It’s hard to know for sure.

Froomkin provides the transcript of yesterday’s remarks —

The question came from ABC News’s Martha Raddatz.

    “Q The U.S. has the most powerful military in the world, and they have been unable to bring down the violence in any substantial way in several of the provinces. So how can you expect the Iraqis to do that?

    “PRESIDENT BUSH: If one were to measure progress on the number of suiciders, if that’s your definition of success, I think it gives — I think it will — I think it obscures the steady, incremental march toward democracy we’re seeing. In other words, it’s very difficult — you can have the most powerful army of the world — ask the Israelis what it’s like to try to stop suiciders — it is a difficult task to stop suicide bombers. That’s the — but that’s one of the main — that’s the main weapon of the enemy, the capacity to destroy innocent life with a suicider.

    “And so I view progress as, is there a political process going forward that’s convincing disaffected Sunnis, for example, to participate? Is there a unity government that says it’s best for all of us to work together to achieve a common objective which is democracy? Are we able to meet the needs of the 12 million people that defied the car bombers? To me, that’s success. Trying to stop suiciders — which we’re doing a pretty good job of on occasion — is difficult to do. And what the Iraqis are going to have to eventually do is convince those who are conducting suiciders who are not inspired by al Qaeda, for example, to realize there’s a peaceful tomorrow. And those who are being inspired by al Qaeda, we’re just going to have to stay on the hunt and bring al Qaeda to justice. And our Army can do that, and is doing that right now.”


Froomkin also points to “how Bush sets up a false straw-man argument in his response, between either measuring success by suicide bombing or by the ‘march to democracy.'”

Eric Alterman’s column today is a great accompaniment to Froomkin.

Former military man and present-day historian Andrew Bacevich on the Cheney-Rumsfeld-Wolfowitz attitude toward 9/11, here.

    Yes, it was a disaster. Yes, it was terrible. But by God, this was a disaster that could be turned to enormous advantage. Here lay the chance to remove constraints on the exercise of American military power, enabling the Bush administration to shore up, expand, and perpetuate U.S. global hegemony. Toward that end, senior officials concocted this notion of a Global War on Terror, really a cover story for an effort to pacify and transform the broader Middle East, a gargantuan project which is doomed to fail. Committing the United States to that project presumed a radical redistribution of power within Washington. The hawks had to cut off at the knees institutions or people uncomfortable with the unconstrained exercise of American power. And who was that? Well, that was the CIA. That was the State Department, especially the State Department of Secretary Colin Powell. That was the Congress.

Meanwhile, Gregory D. Foster, professor at the Industrial College of the Armed Forces at the National Defense University. wrote a brilliant op-ed in The Baltimore Sun a few weeks back [link broken]. Here are some excerpts:

    Even as Long War rhetoric artfully circumvents such politically discomfiting terminology as “insurgency,” its underlying message should be clear: We dutiful subjects should be quietly patient and not expect too much (if anything) too soon (if at all) from our rulers as they prosecute their unilaterally proclaimed war without end against ubiquitous evil.

    The intent of the message is to dull our senses, to dampen our expectations, to thereby deaden the critical, dissenting forces of democracy that produce political turbulence and impede autocratic license. Being warned here amounts to being disarmed – intellectually and civically.

    President Bush; Defense Secretary Donald H. Rumsfeld; the chairman of the Joint Chiefs of Staff, Gen. Peter Pace; the head of the U.S. Central Command, Gen. John P. Abizaid; and the recently released Quadrennial Defense Review, among other authoritative purveyors of received wisdom, all warn us that we’re embroiled in – and destined to be further subjected to – what is to be known as a Long War.

    It would be one thing if such semantic legerdemain reflected revelatory strategic insight or a more sophisticated appreciation of the intrinsic nature of postmodern conflicts and enemies. But that is not the case. In fact, it’s hard to avoid the cynical view that America’s senior military leaders are willfully playing public relations handmaiden to their political overlords at the expense of a naive, trusting citizenry.

Meanwhile, Juan Cole explains how the armed groups from the Dexter Filkins article got their guns:

The BBC reports that the US gave a contract to a small private firm to import weapons for the Iraqi security forces. It brought in massive amounts of weapons from Bosnia. But the procurement process was complex and involved– you guessed it– subcontractors, and the weapons are hard to trace. It is very likely that a lot ended up in the hands of the guerrillas. What irony. A mania for the private sector has helped turn Iraq into Bosnian using Bosnian weapons. In this Iraq scandal, everywhere you dig you find bodies.

Professor Cole also says that the Sunni 16th Brigade in Dawra, which per Dexter Filkins became a pro-guerrilla death squad, “was a legacy of the Allawi government appointed by Paul Bremer and the UN, which had some serious neo-Baathist facsists in the security positions.” As explained in the last post, the 16th Brigade — a 1,000-man force set up by Iraq’s Ministry of Defense — became a death squad for the insurgents. They were executing people who cooperated with the same government that set up the brigade.

Remember — as they stand up, we’ll stand down. (We’re bleeped.)

“Just Like Saddam”

Some young Iraqis told CBS’s Harry Smith that they think Iraq was better off under Saddam Hussein.

“When the Americans started this whole war issue,” said one, who will be referred to as person No. 1, “we started to see the light at the end of the tunnel, and we walked toward it. But when the war happened, that light was the American train coming the other way that ran us over.”

He told of a recent day when he “saw a body on the sidewalk, and it was covered with cardboard, and people were still in their shops, saying hello to each other and inviting each other for tea, and I asked about him, and they said, ‘He got killed this morning.’ ‘Oh, OK, yeah, see ya later.’ ”

“They are killing people for what they say, just like Saddam,” said a young man who will be referred to as person No. 2. “They kill people because the people say, ‘I don’t like (this one or that one).’ You get killed for that.

It’s not clear to me who “they” are; person No. 2 may be talking about the militias, or the Sunni insurgents, or the foreign terrorists, or all of the above. I do not think he was talking about American troops, because later in the interview the same guy said of Americans “I don’t think they’re here to hurt us or to use us or to take advantage of us.”

The three Iraqis said that they were happy Americans invaded and deposed Saddam, but now they’d get out of Iraq if they could. Person #2 continues,

“I think we had higher expectations of what the Americans can do. I hear it from many friends, who say, ‘Do you really want me to believe that America cannot fix this?’ ”

So, asked Smith of the young men, “You know people who would like it better the old way?”

“Yes,” responded No. 1. “It breaks my heart knowing that, because it was so bad, but now, they feel it’s worse, and they just wish that Saddam’s regime could come back.”

A young man, who will be called No. 3, added: “A lot of people want, well, ‘We just want Saddam come back. We don’t want to live this life. OK, dictator? We don’t care; doesn’t matter anymore. We just want Saddam get back. We just want our life to get back to before.’ ”

Yesterday Dexter Filkins of the New York Times reported that “armed groups” are pulling Iraq into chaos.

Even in a country beset by murder and death, the 16th Brigade represented a new frontier.

The brigade, a 1,000-man force set up by Iraq’s Ministry of Defense in early 2005, was charged with guarding a stretch of oil pipeline that ran through the southern Baghdad neighborhood of Dawra. Heavily armed and lightly supervised, some members of the largely Sunni brigade transformed themselves into a death squad, cooperating with insurgents and executing government collaborators, Iraqi officials say.

“They were killing innocent people, anyone who was affiliated with the government,” said Hassan Thuwaini, the director of the Iraqi Oil Ministry’s protection force.

The government established a death squad that was executing people cooperating with the government. Good one.

Forty-two members of the brigade were arrested in January, according to officials at the Ministry of the Interior and the police department in Dawra.

Since then, Iraqi officials say, individual gunmen have confessed to carrying out dozens of assassinations, including the killing of their own commander, Col. Mohsin Najdi, when he threatened to turn them in.

Remember “as they stand up, we’ll stand down”? And the accelerated effort to prepare Iraq to provide its own security? Well, um, there seems to be a glitch:

The headlong, American-backed effort to arm tens of thousands of Iraqi soldiers and officers, coupled with a failure to curb a nearly equal number of militia gunmen, has created a galaxy of armed groups, each with its own loyalty and agenda, which are accelerating the country’s slide into chaos.

Indeed, the 16th Brigade stands as a model for how freelance government violence has spread far beyond the ranks of the Shiite-backed police force and Interior Ministry to encompass other government ministries, private militias and people in the upper levels of the Shiite government.

Sometimes, the lines between one government force and another — and between the police and the militias — are so blurry that it is impossible to determine who the killers are.

“No one knows who is who right now,” said Adil Abdul Mahdi, one of Iraq’s vice presidents.

The armed groups operating across Iraq include not just the 145,000 officially sanctioned police officers and commandos who have come under scrutiny for widespread human rights violations. They also include thousands of armed guards and militia gunmen: some Shiite, some Sunni; some, like the 145,000-member Facilities Protection Service, operating with official backing; and some, like the Shiite-led Badr Brigade militia, conducting operations with the government’s tacit approval, sometimes even wearing government uniforms.

Some of these armed groups, like the Iraqi Army and the Iraqi police, often carry out legitimate missions to combat crime and the insurgency. Others, like members of another Shiite militia, the Mahdi Army, specialize in torture, murder, kidnapping and the settling of scores for political parties

Oh, and yesterday President Bush said that Iraq has reach a turning point. No, really. However, it’s not clear to me if this turning point involves turning a corner, or if this turning point is in roughly the same place as previous turning points, in which case Iraq must be performing a series of pirouettes. I bet it couldn’t do that when Saddam was in charge.

(Cross posted to The American Street.)

War in Washington

When I first heard about the FBI raid on Rep. William J. Jefferson’s office it didn’t occur to me there might be a constitutional issue involved. But now — surprise! — House Speaker Dennis Hastert told President Bush yesterday that he thought the raid was unconstitutional, according to Patrick O’Connor at The Hill. And House Majority Leader Boehner wasn’t happy, either.

Calling the Saturday-night raid an “invasion of the legislative branch,” House Majority Leader John Boehner (R-Ohio) predicted the case would eventually be resolved in the Supreme Court and hinted that Congress would take further action. The majority leader said Hastert would take the lead on the issue because he is the chief constitutional officer in the House.

“I am sure there will be a lot more said about this,” Boehner said.

The problem is that the FBI raid on Jefferson’s office amounted to a raid by the executive branch on the legislative branch. An editorial in today’s New York Times explains the constitutional issue:

The court-authorized search of the Congressional office of Representative William Jefferson by federal agents was as unprecedented in the 217-year history of Congress as it was alarming to lawmakers of both parties. Critics instantly suggested that Congressman Jefferson, the Louisiana Democrat suspected of accepting hundreds of thousands of dollars in bribes, should have been spared the raid under some broad interpretation of the Constitution’s separation of executive and legislative powers.

Fuming lawmakers claim that the Constitution’s Speech and Debate Clause — which protects a lawmaker from politically motivated criminal harassment in the course of official business — should extend to making Mr. Jefferson’s office inviolable. …

…It’s hard to remember when the issue of separations of powers has arisen under such an explosive combination of political circumstances: an all-night search on a quiet weekend during an election-year session that has already been roiled by separate corruption investigations.

The “speech and debate” clause is in Article I, section 6, first paragraph:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

(I believe this is the same clause cited on behalf of Rep. Patrick Kennedy when he crashed his car into a traffic barrier a few days ago. It was argued that Kennedy couldn’t be arrested, and he wasn’t. However, the accident occurred at 3 a.m., and Congress was not in session at the time.)

The Findlaw annotations for this clause are here. And that takes us to the SCOTUS decision in United States v. Johnson, 383 U.S. 169 (1966), in which Justice Harlan wrote,

The language of that Article, of which the present clause is only a slight modification, is in turn almost identical to the English Bill of Rights of 1689: [383 U.S. 169, 178] “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 W. & M., Sess. 2, c. 2.

This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. 8 Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature. See, e. g., Story, Commentaries on the Constitution 866; II The Works of James Wilson 37-38 (Andrews ed. 1896). In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders. As Madison noted in Federalist No. 48:

    “It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, [383 U.S. 169, 179] executive, or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others. What this security ought to be, is the great problem to be solved.” (Cooke ed.)

The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the “practical security” for ensuring the independence of the legislature.

The Times editorial says that invoking the Speech and Debate clause in the Jefferson raid is a stretch, and maybe it is. Yesterday Jeralyn Merritt wrote,

In Rep. Jefferson’s case, however, “separation of powers” just won’t cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that. Ask former Rep. Duke Cunningham.

I don’t think anyone is saying that Rep. Jefferson should be immune from the criminal justice system altogether, though. And I do not doubt the FBI had plenty of probable cause. The issue, seems to me, is whether the “speech and debate” clause creates a higher burden than standard probable cause for obtaining a search warrant for a congressman’s office. And if so, did the FBI’s warrant meet that burden? I hope one of our other fine blogosphere legal experts, like Scott Lemieux or Glenn Greenwald, will help us out.

It does seem that the raid on Jefferson’s office after months of leaving, for example, Tom DeLay and Randy Cunningham alone, smacks of political exploitation. First, as the Times editorial says, the Abramoff and Cunningham cases “suggest a pervasive, systemic form of corruption that does not seem to be at play in the Jefferson inquiry.” The FBI says it has a videotape of Jefferson accepting a $100,000 bribe, and that they found $90,000 of that bribe in his freezer. Seems to me they already had plenty of evidence for a prosecution. Could it be that the White House ordered the raid because the Bushies wanted Jefferson’s alleged corruption to get big headlines? Dumb question, huh?

According to CNN,

FBI agents searched Jefferson’s office in the Rayburn House Office Building from Saturday evening to early Sunday afternoon, bureau spokeswoman Debra Weierman said. One government official told CNN the search marked the first time FBI agents have searched a lawmaker’s Capitol Hill office.

Weierman would not comment on what agents removed from Jefferson’s office. But in the papers released Sunday, investigators stated they were searching for faxes, notes, telephone records and other forms of communication, as well as ledgers and computer files related to meetings and travel.

In an earlier statement, [Jefferson’s lawyer Robert] Trout called the search of Jefferson’s office “outrageous” and said it was not necessary.

“There were no exigent circumstances necessitating this action. The government knew that the documents were being appropriately preserved while proper procedures were being followed. We are dismayed by this action — the documents weren’t going anywhere and the prosecutors knew it,” he said.

However, a redacted copy of the search warrant and affidavit stated that federal investigators were unable to obtain the records relevant to the investigation inside Jefferson’s office and, “left with no other method,” proceeded with the search.

I’m no lawyer, but it seems to me that if this goes to the SCOTUS the FBI will have to argue that there was something Jefferson was hiding in his office that they really, really needed for an indictment and prosecution, and that they had exhausted other methods of obtaining this something. Had Rep. Jefferson refused to honor a subpoena, for example? [Update: Jefferson had refused to comply with a subpoena, according to the Associated Press.] I don’t know if the “speech and debate” clause renders a congressman’s office inviolable, but I would think the clause places a burden on the executive branch to show that the raid was not frivolous or politically motivated.

Carl Hulse wrote in yesterday’s New York Times that the raid seems to be part of a pattern:

Lawmakers and outside analysts said that while the execution of a warrant on a Congressional office might be surprising — this appears to be the first time it has happened — it fit the Bush administration’s pattern of asserting broad executive authority, sometimes at the expense of the legislative and judicial branches.

Pursuing a course advocated by Vice President Dick Cheney, the administration has sought to establish primacy on domestic and foreign policy, not infrequently keeping much of Congress out of the loop unless forced to consult.

“It is consistent with a unilateral approach to the use of authority in Washington, D.C.,” Philip J. Cooper, a professor at Portland State University who has studied the administration’s approach to executive power, said of the search.

“This administration,” Dr. Cooper said, “has very systematically and from the beginning acted in a way to interpret its executive powers as broadly as possible and to interpret the power of Congress as narrowly as possible as compared to the executive.”

But Republicans in Congress have been pretty much OK with being stomped on by the executive branch. Why are they fighting back now? Laura Rozen writes:

In a city that has become so hyper, Beria-like politicized, House GOP leaders have overwhelmingly sided with a House Democrat looking at face value pretty vulnerable to corruption charges in protesting the unprecedented FBI weekend raid on Rep. Jefferson’s office as a sign of what lawmakers claim is executive overreach. But the strange thing is, lawmakers would ostensibly have total oversight responsibility for the FBI, through the power of the purse, the power of writing legislation, subpoena power, confirming nominees, etc. If they’re concerned about alleged FBI overreach, they can haul in to testify not just FBI director Mueller, but his boss Alberto Gonzales. So what is really going on here? Perhaps a shot across the bow? Or is it panic?

But I can’t believe Bush’s boy Alberto would allow the FBI to raid Republican offices looking for incriminating evidence. Not when they are so desperate to win elections this November and keep Congress in Republican hands.