Dick Durbin:

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime — Pol Pot or others — that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.

— Dick Durbin, on the Senate floor (14 June 2005)

Scott McClellan, White House press flack:

Q Thank you. Scott, Senator Durbin compares the treatment of detainees at Guantanamo with the way Nazis abused prisoners during World War II. How is the President reacting to these accusations?

MR. McCLELLAN: I think the Senator’s remarks are reprehensible. It’s a real disservice to our men and women in uniform who adhere to high standards and uphold our values and our laws. To compare the way our military treats detainees with the Soviet gulags, the Nazi concentration camps, and Pol Pot’s regime is simply reprehensible. … And so I just think those remarks are reprehensible and they are a real disservice to our men and women in uniform. Our men and women in uniform go out of their way to treat detainees humanely, and they go out of their way to hold the values and the laws that we hold so dear in this country. And when you talk about the gulags and the concentration camps in Pol Pot’s regime, millions of people, innocent people, were killed by those regimes.

— Scott McClellan, White House press briefing (16 June 2006)

Commenter PPJ, aka Jim:

His comments are beyond the pale of rational political debate. His false, over the top, comments are demeaning to himself, the Senate, our military and his fellow citizens. He should be censored [sic] by the Senate. He should then apologize to the country and resign.

— PPJ, aka Jim, commenting at TalkLeft (16 June 2005)

Paul at Powerline:

What possessed Durbin to do it? How, after harping constantly on the importance of our image to winning the war on terrorism, could he cast the U.S. in such a false light? It’s not likely that he intentionally set out to injure his country. Until I hear a better explanation, I’ll put it down to a kind of sickness or derangement brought on by hatred — of President Bush, the military, etc. — coupled with a very weak immune system (i.e. intellect).

— Paul @ PowerLine (16 June 2005): Senator Durbin’s trifecta

Michelle Malkin, defender of Japanese internment:

What America needs is for President Bush himself to directly challenge Durbin on his treachery. What President Bush should do is to call on Durbin to retract his remarks (not just apologize) and ask forgiveness from our troops and the American people.

— Michelle Malkin (16 June 2005): THE TREACHEROUS DICK DURBIN

John Furgess, Veterans of Foreign Wars commander-in-chief:

The senator was totally out of line for even thinking such thoughts, and we demand he apologize to every man and woman who has ever worn the uniform of our country, and to their families.

— John Furgess, quoted for Veterans of Foreign Wars press release (16 June 2005)

Lee P. Butler, columnist and GOP apparatchik:

Throughout many sectors of the country Senator Durbin’s name is now synonymous with that of Hanoi Jane Fonda or Baghdad Jim McDermott. He decided he would use outlandish and completely absurd language of equating American soldiers in Guantanamo Bay with Nazis, Stalinist Soviets, and Pol Pot as a way of disagreeing with this administration. It seems as though he may have been emboldened to follow this tact, because of the outrageous allegation spewed by Amnesty International who earlier had labeled Gitmo as the gulag of our time … It’s a pretty big exaggeration for Amnesty International to compare Guantanamo Bay or even Abu Ghraib, for that matter, to a gulag and it’s reprehensible for an American Senator to equate our soldiers to torturous despots, even if they are just trying to malign President Bush.

— Lee P. Butler, OpinionEditorials.com, Senator Durbin’s Gulag Is A Liberal Crescendo Of Rhetorical Absurdity (20 June 2005)

Josh Dwyer, expert columnist from Texas A&M:

Sen. Dick Durbin, R-Ill., desperately needs a history lesson.

— Joshua Dwyer, The Batallion (30 June 2005): Durbin erred grossly in calling Gitmo a gulag

Charles J. Hanley, Associated Press (link thanks to DED Space (2006-01-27) and Hammer of Truth (2006-01-27); more at Echidne of the Snakes (2006-01-28)):

The U.S. Army in Iraq has at least twice seized and jailed the wives of suspected insurgents in hopes of leveraging their husbands into surrender, U.S. military documents show.

In one case, a secretive task force locked up the young mother of a nursing baby, a U.S. intelligence officer reported. In the case of a second detainee, one American colonel suggested to another that they catch her husband by tacking a note to the family’s door telling him to come get his wife.

… The U.S. military on Thursday freed five of what it said were 11 women among the 14,000 detainees currently held in the 2 1/2-year-old insurgency. All were accused of aiding terrorists or planting explosives, but an Iraqi government commission found that evidence was lacking.

Iraqi human rights activist Hind al-Salehi contends that U.S. anti-insurgent units, coming up empty-handed in raids on suspects’ houses, have at times detained wives to pressure men into turning themselves in.

— Charles J. Hanley, Associated Press (28 January 2006): Documents Show Army Seized Wives as Tactic

Aleksandr Isayevich Solzhenitsyn, prisoner of the Soviet gulag and author of The Gulag Archipelago:

9. Playing on one’s affection for those one loved was a game that worked beautifully on the accused as well. It was the most effective of all methods of intimidation. One could break even a totally fearless person through his concern for those he loved. (Oh, how foresighted was the saying: A man’s family are his enemies.) Remember the Tatar who bore his sufferings–his own and those of his wife-but could not endure his daughter’s! In 1930, Rimalis, a woman interrogator, used to threaten: We’ll arrest your daughter and lock her in a cell with syphilitics! And that was a woman!

— Aleksandr Isayevich Solzhenitsyn, The Gulag Archipelago (1973–1978), Chapter 3: The Interrogation

Two deploying soldiers and a concerned mother reported Friday afternoon that the US Army appears to be singling out soldiers who have purchased Pinnacle’s Dragon Skin Body Armor for special treatment. The soldiers, who are currently staging for combat operations from a secret location, reported that their commander told them if they were wearing Pinnacle Dragon Skin and were killed their beneficiaries might not receive the death benefits from their $400,000 SGLI life insurance policies. The soldiers were ordered to leave their privately purchased body armor at home or face the possibility of both losing their life insurance benefit and facing disciplinary action.

… On Saturday morning a soldier affected by the order reported to DefenseWatch that the directive specified that all commercially available body armor was prohibited. The soldier said the order came down Friday morning from Headquarters, United States Special Operations Command (HQ, USSOCOM), located at MacDill Air Force Base, Florida. It arrived unexpectedly while his unit was preparing to deploy on combat operations. The soldier said the order was deeply disturbing to many of the men who had used their own money to purchase Dragon Skin because it will affect both their mobility and ballistic protection.

We have to be able to move. It (Dragon Skin) is heavy, but it is made so we have mobility and the best ballistic protection out there. This is crazy. And they are threatening us with our benefits if we don’t comply. he said.

… Recently Dragon Skin became an item of contention between proponents of the Interceptor OTV body armor generally issued to all service members deploying in combat theaters and its growing legion of critics. Critics of the Interceptor OTV system say it is ineffective and inferior to Dragon Skin, as well as several other commercially available body armor systems on the market. Last week DefenseWatch released a secret Marine Corps report that determined that 80% of the 401 Marines killed in Iraq between April 2004 and June 2005 might have been saved if the Interceptor OTV body armor they were wearing was more effective. The Army has declined to comment on the report because doing so could aid the enemy, an Army spokesman has repeatedly said.

… One of the soldiers who lost his coveted Dragon Skin is a veteran operator. He reported that his commander expressed deep regret upon issuing his orders directing him to leave his Dragon Skin body armor behind. The commander reportedly told his subordinates that he had no choice because the orders came from very high up and had to be enforced, the soldier said. Another soldier’s story was corroborated by his mother, who helped defray the $6,000 cost of buying the Dragon Skin, she said.

The mother of the soldier, who hails from the Providence, Rhode Island area, said she helped pay for the Dragon Skin as a Christmas present because her son told her it was so much better than the Interceptor OTV they expected to be issued when arriving in country for a combat tour.

He didn’t want to use that other stuff, she said. He told me that if anything happened to him I am supposed to raise hell.

… Currently nine US generals stationed in Afghanistan are reportedly wearing Pinnacle Dragon Skin body armor, according to company spokesman Paul Chopra. Chopra, a retired Army chief warrant officer and 20+-year pilot in the famed 160th Nightstalkers Special Operations Aviation Regiment (Airborne), said his company was merely told the generals wanted to evaluate the body armor in a combat environment. Chopra said he did not know the names of the general officers wearing the Dragon Skin.

Pinnacle claims more than 3,000 soldiers and civilians stationed in Iraq and Afghanistan are wearing Dragon Skin body armor, Chopra said. Several months ago DefenseWatch began receiving anecdotal reports from individual soldiers that they were being forced to remove all non-issue gear while in theater, including Dragon Skin body armor, boots, and various kinds of non-issue ancillary equipment.

— Nathaniel R. Helms, DefenseWatch (2006-01-14): Army Orders Soldiers to Shed Dragon Skin or Lose SGLI Death Benefits (via TruthOut)

Once again, with apologies to Max Weber, H. L. Mencken, and myself, I think our theoretical lexicon needs revision. Thus:

Bureaucratic rationality, n.: The haunting fear that someone, somewhere, may have something good in their life without authorization.

Most of this I heard on the radio yesterday evening. I add only (1) that there are no good reasons to care about constitutionality, but lots of good reasons to care about likely case law on the right of privacy, and (2) that it’s impossible to adequately convey such an oily, palavering voice in print.

DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.

And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated. …

Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they’re not my views now.

When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that’s not my view now.

And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you’ve been unwilling to distance yourself and to say that you disagree with that.

I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you’re for Griswold, you accept the constitutional basis for Griswold, but you can’t bring yourself to say there’s a constitutional basis for the right of a woman’s privacy when she is deciding — making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I’m troubled by that.

Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman’s right to choose?

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They’re not treated the same way — an African-American is not treated the same way as a black (sic) person when they’re treated that way, so they’re denied equality.

And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was — the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process — shall be denied liberty without due process of law.

And that’s my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.

It’s not likely to come before the 3rd Circuit; it’s not likely to come before the Supreme Court. So, I feel an ability to comment — a greater ability to comment on that than I do on an issue that is involved in litigation.

What I have said about Roe is that if it were — if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.

The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General’s office. But that was 20 years ago and a great deal has happened in the case law since then.

Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.

If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

— CQ Transcriptions (2006-01-11): U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito’s Nomination to the Supreme Court

Later the same day, from the other side of the aisle:

BROWNBACK: … Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.

That would be correct. And the answer, when the court gets things wrong, is to overturn the case.

Is that — that’s the way it works, isn’t that correct?

ALITO: Well, when the court gets something wrong, and there’s a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it…

BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you have gone through this.

Brown v. Board of Education, which is in my hometown of Topeka, Kansas — I was there last year at the dedication of the school house, 50 years ago — that overturned Plessy.

Plessy had stood on the books since 1896. I don’t know if you knew the number. And I’ve got a chart up here. It was depended upon by a number of people for a long period of time.

You’ve got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You’ve got these number of cases that considered Plessy and upheld Plessy to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that’s just not right.

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly — would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously…

ALITO: Doctrine that would consider.

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.

BROWNBACK: Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.

BROWNBACK: They don’t.

ALITO: I think they should have recognized that.

But one of the things that was illustrated in those cases — and Sweatt v. Painter, the last one on the list, brought that out — was that, in fact, the facilities, the supposedly equal facilities, were never equal.

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated — if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.

BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court’s willing to review various cases.

BROWNBACK: I want to give you an example of a couple, though, that the court hasn’t reviewed yet that I think are spectacularly wrong.

The 1927 case of Buck v. Bell; I don’t know if you’re familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.

Buck’s guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state’s interest to have her sterilized.

Majority opinion written by Justice Oliver Wendell Holmes said, We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents.

Clearly, some precedents are undeserving of respect because they’re repugnant to the Constitution. Isn’t Plessy repugnant to the Constitution?

ALITO: It certainly was repugnant to the equal protection clause.

BROWNBACK: And the vision of human dignity.

Isn’t Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?

ALITO: I think they are repugnant to the traditions of our country. I don’t think there’s any question about that.

— CQ Transcriptions (2006-01-11): U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito’s Nomination to the Supreme Court

Here’s a typical, arbitrarily selected attempt by mainstream liberals to explain what’s wrong with the Bush administration’s enthusiastic support undisclosed, unchecked, and unaccountable domestic spying. This comes from Hilzoy at Political Animal (2005-12-18):

What George Bush has done, by signing his Presidential Order, is to produce exactly that accumulation of powers that Madison and the other framers of the Constitution were determined to prevent. He has decided to circumvent the courts’ power to decide whether the government has enough evidence to place someone under surveillance, thereby removing a crucial check on executive power, and arrogating one of the powers of the judiciary to himself.

Moreover, the power he seeks to strip the judiciary of is not a peripheral one; it is essential to the Fourth Amendment prohibition against unreasonable searches and seizures. …

In addition, in deciding that he has the right to disregard clear statutes, President Bush is arrogating to himself the power of the legislature as well. The Legislature has the power to make laws; the Executive carries out the laws the Legislature has written. Had George W. Bush wanted to, he could have gone to Congress and asked it to change the laws. Instead, he decided to simply ignore them: to act as though he had the powers that the Constitution reserves to the legislative branch.

He is, essentially, claiming that he has the right not just to execute the laws, but to write them himself, and then to judge their application. …

But if it’s hard to reconcile the administration’s position with the Constitution and the views of the framers, it’s even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants — anything at all — during wartime. …

In this country we do not have an absolute monarch. We have a President who is bound by the rule of law, just like the rest of us. When he asserts the right to set the laws and the Constitution aside, and to arrogate all the powers of government in his hands in secret so that he can use it unchecked, we have an obligation to make it clear that he is wrong.

Now, to be clear, I think that the Right’s legal brief on behalf of the Bush administration is both specious and frankly dishonest; they’re wrong, and Hilzoy is right, about the question of positive law. But here’s the open question. There are actually two separate, or separable, objections that Hilzoy is lodging against the use of undisclosed, unchecked, and unaccountable domestic spying on in these passages. Specifically, Hilzoy is objecting both that

1. Bush has to claim the authority to disregard existing laws and the Constitution in order to justify undisclosed, unchecked, and unaccountable domestic spying (i.e., he’s operating outside of the standing law); and also

2. engaging in undisclosed, unchecked, and unaccountable domestic spying, in and of itself, involves arrogating all the powers of government into his hands (i.e., he’s diminishing the separation of powers, and thus claiming the right to more power than one person should have).

It should be clear that these two objections are separable. The Constitution didn’t have to be written with provisions for the separation of powers, and the Constitution and the laws can always be changed. If, for example, Bush had gotten Congress to repeal FISA, and, while he was at it, had gotten Congress and the several states to amend the Constitution to repeal or limit the Fourth Amendment, then he wouldn’t be vulnerable to objection 1, but objection 2 would not be affected.

Now, here’s the open question. If Bush had gotten the law and the Constitution changed so as to authorize undisclosed, unchecked, and unaccountable domestic spying, would that have made it O.K.? Would it have even made it substantially less bad?

If it would have, then why would it have? If it wouldn’t have, then why spend so much time and energy stressing the fact that he did tread on the statutory law and the Constitution, if you don’t think that that makes a substantial difference?

Sometimes I hate being right.

Los Angeles Times 2005-11-30: U.S. Military Covertly Pays to Run Stories in Iraqi Press:

WASHINGTON — As part of an information offensive in Iraq, the U.S. military is secretly paying Iraqi newspapers to publish stories written by American troops in an effort to burnish the image of the U.S. mission in Iraq.

The articles, written by U.S. military information operations troops, are translated into Arabic and placed in Baghdad newspapers with the help of a defense contractor, according to U.S. military officials and documents obtained by the Los Angeles Times.

Many of the articles are presented in the Iraqi press as unbiased news accounts written and reported by independent journalists. The stories trumpet the work of U.S. and Iraqi troops, denounce insurgents and tout U.S.-led efforts to rebuild the country. …

And, just in case you were wondering:

The operation is designed to mask any connection with the U.S. military. The Pentagon has a contract with a small Washington-based firm called Lincoln Group, which helps translate and place the stories. The Lincoln Group’s Iraqi staff, or its subcontractors, sometimes pose as freelance reporters or advertising executives when they deliver the stories to Baghdad media outlets. …

Some of the newspapers, such as Al Mutamar, a Baghdad-based daily run by associates of Deputy Prime Minister Ahmad Chalabi, ran the articles as news stories, indistinguishable from other news reports. Before the war, Chalabi was the Iraqi exile favored by senior Pentagon officials to lead post-Hussein Iraq.

Others labeled the stories as advertising, shaded them in gray boxes or used a special typeface to distinguish them from standard editorial content. But none mentioned any connection to the U.S. military.

The going rate seems to be as much as US $1,000 – $1,500 per story, although a few papers ran the articles for as little as US $50.

Military officials familiar with the effort in Iraq said much of it was being directed by the Information Operations Task Force in Baghdad, part of the multinational corps headquarters commanded by Army Lt. Gen. John R. Vines. The officials spoke on condition of anonymity because they were critical of the effort and were not authorized to speak publicly about it.

A spokesman for Vines declined to comment for this article. A Lincoln Group spokesman also declined to comment.

One of the military officials said that, as part of a psychological operations campaign that has intensified over the last year, the task force also had purchased an Iraqi newspaper and taken control of a radio station, and was using them to channel pro-American messages to the Iraqi public. Neither is identified as a military mouthpiece.

Anthony Gregory, 2005-12-01:

These days, so many news accounts hardly need commentary. …

That’s almost certainly true. In any case, if commentary is needed, it can always be recycled:

Welcome to the mainstream news media for the new millennium, in which Noam Chomsky has become obsolete: they aren’t even trying to hide it anymore. Interlocking interests and subtle mechanisms of control aren’t even the point anymore; the Bush machine and its clients now pass out government-manufactured news segments and lucrative tax-funded bribes for useful political commentators. The Bush League may not be making government smaller, but they are making radical critique simpler–may God help us all.