I'm going to support our nominee wholeheartedly no matter what happens, but I really hope Barack Obama doesn't pick Evan Bayh as his running mate for one simple reason.

His support for the Authorization to Use Military Force in Iraq is a deal-breaker for me.

Behold, the Almighty Wiki revealeth all:

On October 2, 2002, Bayh joined President George W. Bush and Congressional leaders in a Rose Garden ceremony announcing their agreement on the joint resolution authorizing the Iraq War, and was thanked by Bush and Senator John McCain for co-sponsoring the resolution

This will be a rather short diary, but this "surge" meme, along with the tepid response, is bothering me. Folks are apoplectic because McCain is acting like a Republican and the media are acting like the corporate prostitutes they are.

And yet what goes largely unmentioned is that the Democrats are again buying into the Thug framing. The "surge" has become the issue.  Did the surge work? Were there other factors involved in the reduction of violence? The problem of accepting that framing is that it ignores the real issue, the invasion of Iraq, which was based on lies that were apparent before the illegal military action took place.

Over the past few days I've been working on a longish video focusing on John McCain and the War in Iraq. I don't think I'll be finished with it until tomorrow or Wednesday, but in the meantime I've created a preview trailer focusing on 2002 and McCain's pre-war support for the invasion of Iraq.

You may have seen some of the video in this clip, but most of it will probably be stuff you haven't seen before. The music -- Radiohead's "Meeting in the Aisle" is from its Airbag/How Am I Driving EP. (I'm planning on using different music for the full video, which will extend through 2008.)

Links: YouTube | jedreport.com

Today when Bootlick Atty Gen. Mukasey gave his speech he asked for Congress to issue a new AUMF for the Bush admin. If this doesn't send out warning bells to every citizen, then they are just plain braindead.

As part of the plan, the administration also wants Congress to "reaffirm," nearly seven years after the Sept. 11, 2001, attacks, that the United States "remains engaged in an armed conflict with al Qaeda" and other terrorist groups. The administration used Congress’s original affirmation of an armed conflict, three days after 9/11, not only to invade Afghanistan, but also to incarcerate enemy combatants without trial and to conduct wiretaps on Americans without a court warrant.NYTimes

Over the last couple years many have called on Congress to rescind the current AUMF since Bush uses it as a excuse for many illegal acts including Torture.

This bears repeating.  The al-Marri decision issued by the United States Court of Appeals for the Fourth Circuit -- that is, the federal appeals court for every state on the East Coast from Maryland to South Carolina (except D.C. which is not a state and has its own appeals court) is very, very simple:

The government can imprison citizens forever without trying them.  Period.

Don't be confused by the fact that the judges wrote separately and that there are two different decisions buried among all 216 pages of the opinions.  

There is some debate about that 4th Circuit court ruling yesterday as to whether it means the Executive branch can designate US citizens arrested within US soil as "enemy combatents" or merely "civilians" (legally present non-citizens).

The ruling is 216 pages because almost every judge wrote his or her own opinion, but I'm pretty sure this ruling is not limited in any meaningful way to civilians and would easily encompass citizens too.

I rebutted in a comment to the diary about this on the rec list, but let me do so again here:

Title updated from comments.

It always seemed to me that Clinton and Obama had more in common than not.  They were both skillful politicians running for President from non-conventional backgrounds; they had many of the same policy positions; they had the ability to inspire their followers and to bring new voters into politics and into the Democratic Party; they both stood to make history with their elections and would probably shift America towards being a more tolerant, progressive nation.  

Hillary Clinton's loss can in part be attributed to an assault from both sides of the political spectrum.  Certainly, her rejection by the progressive base of the party played significantly to her loss in the election.

Will history repeat itself with Barack Obama?   Thoughts on this after the fold.

A Fathers Day Revelation--I Must Support Obama Now

I had started the chronologic list below of (mostly) non-sexist reasons that Hillary Clinton lost to Barack Obama, but then thought that it was old news. But folks on both sides seem to still not get it, whether it is the continued media denial b.s. over their behavior including Olberman and to HillaryIs44.

1. Fact: There was lots of sexism in the media targeted against Hillary Clinton, as well as some degree of the special "Clinton rules."

2. Fact: It is the media operation that engages in, then denies, pre-Iraq war Bushie boosterism; McCain love-fest; and all the other MSM/SCLM as tracked by such folks as Glenn Greenwald and Eric Alterman etc.

3. Fact: This is NOT why Hillary Clinton lost among the registered Democratic party activists who make up the primary voter. She lost because of the Irag War authorization (AUMF) vote. Period. Everything else that happened follows from that.

4. Fact: The Clinton campaign engaged in more racism against Obama, then the Obama campaign engaged in sexism.  This is distinct from what the more sexism against Clinton then racism against Obama that the Media spewed.

All these things are true at the same time. They are often conflated, but in fact are separate things.

As we've learned recently, it seems the US-Iraq Status of Forces Agreement has encountered some trouble.

From today's Washington Post:

Prime Minister Nouri al-Maliki on Friday denounced demands made by the United States to extend the presence of American troops in Iraq, saying that the two sides are deadlocked and far from reaching an agreement.

"We found out that the demands of the American side are strongly violating the sovereignty of Iraq, something we could never accept," Maliki said.

Could this impasse possibly be planned to give W. an out?

Am I crazy?  I ask not because my own notion wasn't reflected in yesterday's "Why Clinton Lost" stories, but because I could've sworn that lots of, if not most kossacks, shared my ideas of why Clinton lost.  For God's sake, it was the Iraq War vote, wasn't it?

As Harry Shearer likes to say on LeShow - "from the Buried Lede department..."  

I know the front page diarists here are prolific writers, and everyone likes a good essay, and it's fun to try to find some point or theory that nobody else has mentioned...but sometimes the truth is pretty darn simple.

HRC lost because she made a political calculation to vote for Iraqi war, instead of doing her constitutional duty as a US Senator.  It backfired.  I can't think of a more important lesson for other politicians to learn, but here at Kos it seems to be getting buried under an avalanche of campaign minutia.

The many examples of the Bush Administration's Infringment of Civil Rights (known to real Conservatives as "the Government's Latest Assault on the Constitution) are now many and varied enough to forge a new political concensus in opposition, which can span the ideological spectrum.

There is reason to fear that unless we begin to think in broad, strategic terms about a new bulwark against the unconstrained excesses of the State, future leaders, possessed of [even] less patriotism, integrity, or restraint than the current Administration may employ the 9/11 powers assumed by the executive in more self-serving, politically predjudicial ways than has the Bush/Cheney regime.

After 218 years, the constraints on government imposed by the Bill of Rights are every bit as relevant, valid, and important today as when they were adopted. The problem is that our 21st Century legal machinery is more complex, and those who exercise the levers of power often become confused.  Its time to buttress that original wall with a stronger and more specific layer of protection, suited to modern jurisprudence. It is time that we consider criminal and civl penalties for violating the Bill of Rights...

You do too. Trust me, you do. Just nod. You don't want to know what happens if you don't nod.

Al-Marri's capture six years ago might be the Bush administration's biggest domestic counterterrorism success story. Authorities say he was an al-Qaida sleeper agent living in middle America, researching poisonous gasses and plotting a cyberattack.

To justify holding him, the government claimed a broad interpretation of the president's wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.

Yes, that's what your government's lawyers tell federal judges when push comes to shove, and they have to own up to the ultimate ramifications of what they're arguing. They really are willing to stand there and tell judges that the president can send the military to disappear anyone he wants, so long as he's willing to say that person is an enemy combatant.

The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.

"What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.

"Yes, your honor," Justice Department lawyer Gregory Garre replied.

And who are you to say different, citizen?

Nobody. Exactly. I thought not. Go on about your business.

(Psst! Over here! Keep it down, though. Were you wondering where they say they derive this power from? Well, it's the AUMF.)

"The president is not a king and cannot lock people up forever in the United States based on his say-so," said Jonathan Hafetz, a lawyer who represents al-Marri and other detainees. "Today it's Mr. al-Marri. Tomorrow it could be you, a member of your family, someone you know. Once you allow the president to lock people up for years or even life without trial, there's no going back."

Glenn Sulmasy, a national security fellow at Harvard, said the issue comes down to whether the nation is at war. Soldiers would not need warrants to launch a strike against invading troops. So would they need a warrant to raid an al-Qaida safe house in a U.S. suburb?

Sulmasy says no. That's how Congress wrote the bill and "if they feel concerned about civil liberties, they can tighten up the language," he said.

So, how are we doing on "tightening up" that language?

Mmmm, not so hot. But mabye we can cave in on FISA first, and then talk about the AUMF.

What? FISA again? Yes, FISA again. Why FISA again? Because the Bush "administration" says the AUMF authorized both its illegal domestic spying program and its powers to invade your neighborhood and disappear your sorry ass on the president's say-so.

And just for fun, here's an interesting observation from a comment by entlord1 in an earlier diary: Bush claims the power to make a warrantless arrest of anyone, anywhere at any time, and argues in court that the power is derived from Congress (though John Yoo always argued the power was inherent in the presidency, which, while even crazier, is at least an internally consistent if powerfully stupid argument). Meanwhile, Congress pretends it has no independent power to enforce its own lawful subpoenas.

Gosh, that must have been some powerful piece of legislation! Better be careful with what you say it authorizes, Congress! Since you're actually contemplating giving the retroactive thumbs-up to the spying part, you might want to give a minute to what this crazy-ass "administration" is going to say that means about the warrantless military seizure and secret, indefinite detention of pretty much anyone the president says he doesn't like a whole lot.

Maybe. Sorta. If it's not too much trouble, and you don't think it will maybe make Republicans attack you in ads.

Otherwise, forget it. We'll just shop and wear our flag pins.

After several weeks' full immersion in what Obama calls the "silly season" of our politics, it's clarifying to look afresh at the core of Obama's case for himself rather than Clinton. Here's how he put it on April 22 in Evansville, Indiana, after congratulating Clinton on her win in the PA primary:

We can be a party that says there's no problem with taking money from Washington lobbyists - from oil lobbyists and drug lobbyists and insurance lobbyists. We can pretend that they represent real Americans and look the other way when they use their money and influence to stop us from reforming health care or investing in renewable energy for yet another four years.

John McCain has a problem.

Here is what he said in a February, 2003 speech that was quoted in a 2/19/03 Arizona Republic editorial sympathetic to the proposed Iraq invasion:

"Is there any doubt in anybody's mind that if Saddam Hussein thought he could harm the United States that he wouldn't give any terrorist organization some weapon of mass destruction?" McCain asked in a speech last week sponsored by the Center for Strategic and International Studies.

"I don't think he would discriminate."

This was directly contradicted by the available intelligence at the time.

There are only three reasons any of the candidates could have voted for the Authorization to Use Military Force in Iraq and I can't see how any of these are acceptable.

EFF notes (h/t to diarist skisb) a troubling footnote in the newly released John Yoo memo:

... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (emphasis added)

That's some memo title, isn't it? "Authority for Use of Military Force to Combat Terrorist Activities Within the United States"? Sounds important!

And you say this memo concluded that the Fourth Amendment had no application to such operations? The Fourth Amendment that bears on issues of domestic surveillance? The, uh, whaddya call it? The FISA stuff?

Well, that would explain the Bush signing statements nullifying the multiple amendments inserted into Defense Department appropriations bills by Rep. John Murtha:

None of the funds provided in this Act shall be available for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented through Executive Order No. 12333.

Bush nullified it because his DOJ was telling him the Fourth Amendment (and EO 12333 -- about which you might want to see Marty Lederman at Balkinization) doesn't apply.

We should get that memo, don't you think?

Well, the chairmen of the Senate and House Judiciary Committees -- Sen. Pat Leahy and Rep. John Conyers do. Leahy's been after it since January 2005, and Conyers was still asking for it as recently as February. But to no avail, it would seem. Yay, oversight!

Did America know that all of this surveillance, all of this recording of their phone calls and reading of their e-mails was considered a "military operation?" Sure, millions of our head-in-the-sand neighbors have insisted all along that they "have nothing to hide," but did they know that in the minds of their "government," they were the targets of a military operation?

What kind of military operation is this, exactly?

Well, the DOJ has since January 2006 asserted:

that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.

It's the DOJ position, then, that the AUMF recognized electronic surveillance as a traditional and accepted incident of the use of military force, and that that military force ought to be and is being used against... you.

Good thing it's just some kind of nebulous "use of military force" then, eh? Not this other thing:

Section 3. Treason against the United States, shall consist only in levying war against them...

Funny word, "levying."

LEVYING WAR, crim. law. The assembling of a body of men for the purpose of effecting by force a treasonable object; and all who perform any part however minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are considered as engaged in levying war, within the meaning of the constitution. 4 Cranch R. 473-4.

Only this object can't be treasonable. Because Bush and Cheney were both wearing flag lapel pins when they ordered it. And, of course, because the DOJ says Congress authorized it, which makes it a consensus political decision.

But yet...

The notion that Congress authorized warrantless surveillance in the AUMF is utterly inconsistent with the Attorney General's admission that Congress was not asked for such authorization because it was assumed that Congress would say no.

Former Senate Majority Leader Tom Daschle, who helped negotiate the use of force resolution with the White House, has confirmed that the subject of warrantless wiretaps of American citizens never came up, that he did not and never would have supported giving authority to the President for such wiretaps, and that he is ``confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.''

Senator Daschle also noted that the Bush administration sought to add language to the resolution that would have explicitly authorized the use of force "in the United States," but Congress refused to grant the President such sweeping power. Maybe that was this administration's covert way to seek the authority to spy on Americans, but Congress did not grant any such authority.

And you know what's interesting about that DOJ argument on that AUMF? Yoo always carefully avoided it, insisting that the AUMF didn't independently authorize any powers the president didn't already have, but rather merely affirmed their existence. In fact, Yoo refused even to call the AUMF the AUMF -- after all, the A stands for "authorization" -- instead stubbornly insisting on referring to it only as the "Joint Resolution."

But like others of Yoo's memos that the DOJ has since had to disavow (on grounds of craziness), the DOJ has since fallen back to an only slightly less-crazy insistence that the AUMF authorized warrantless domestic surveillance, even as the Members of Congress who passed it insist it did not.

This is the gang that Jay Rockefeller (and according to their votes on final passage of Rockefeller's bill, Senators Baucus, Bayh, Carper, Casey, Conrad, Inouye, Johnson, Kohl, Landrieu, Lincoln, McCaskill, Mikulski, Ben Nelson, Bill Nelson, Pryor, Salazar, Webb and Whitehouse, and Reps. Boren, Carney, Cooper, Holden, Lampson, and Shuler) wants to work with "in good faith."

The gang that two years ago declared the NSA's domestic spying programs to have been legally authorized, and yet has convinced Rockefeller that Congress needs to add a belt to those suspenders, and retroactively immunize the telecom companies who are facilitating the spying. The House now says that perhaps a court should be asked whether the DOJ is right.

But Senator Rockefeller says he's got it covered. No need to involve those silly courts. After all, his bill would "restore civil liberty protections through proper FISA court oversight." Which would be great (minus the fact that it means Congress is abdicating its role here), if anyone believed we were going to get proper oversight from a secret court that's the DOJ is telling the Fourth Amendment doesn't apply and that federal judges are unqualified to decide on matters of national security, anyway.

Every day that passes without Jay Rockefeller being able to cajole the weak-kneed Congressional Democrats who still fear Republican attack ads more than the prospect of gutting the Constitution brings us more evidence of just how crazy the Bush-Cheney gang really is, and how agreeing to cooperate with them "in good faith" is crazier still.

Not seeing it at this point is just willful blindness.