"Faster than you can say Hugo Chavez"

I don't think there has been such a power shift, even in time of war. This is truly unprecedented. I don't think any other administration would have the chutzpah to do this--even Nixon. Roosevelt would find it amusing but he wouldn't have dreamed of going this far. Bush/Paulson obviously want Congress way, way out of the loop for some reason.

Yale Law deputy dean Jon Macey on the sought-for $700 billion, no-strings, blank check for the Executive to spend in any way and on any corporation it chooses, with a guarantee of immunity from future investigative review and/or prosecution by Congress or in the Courts. On NPR's great new pod series, Planet Money

Book Bush in '09?

The International Court in the Hague may be more romantic, and a formal action by Congress more desirable, but maybe the most practical way to make an example of George W. Bush would be through your district attorney's office. Was a Guardsman in your county one of more than 4000 soldiers to die in Iraq over WMD, as a result of fraudulent findings, which Bush submitted knowingly and with malice aforethought, in order to receive consent from Congress to wage a war there? Then your local DA may have an excellent case for murder. Veteran prosecutor Vincent Bugliosi has been making this case before growing numbers of people, and despite a shut out by the networks, in connection with his most recent bestselling book.

Such a case is bound to shoot like a rocket up to the Supremes, I suppose, but given a set of facts so different from those of Bush v. Gore, it's got to be worth a try. Anyway, three branches means we get three swings at good governance under the Constitution, and to quit at two just wouldn't be patriotic. Let's Book Bush in '09

All About Oil

No other reason for the Iraq War has ever stood up to a little dash of reasoned reflection. It's all the orthodox geopolitics of military bases and oil, apparently worth hundreds of thousands of human lives and trillions of dollars. We've already seen one horn of the end game. Now the other...

Four Western oil companies are in the final stages of negotiations this month on contracts that will return them to Iraq, 36 years after losing their oil concession to nationalization as Saddam Hussein rose to power.

Exxon Mobil, Shell, Total and BP — the original partners in the Iraq Petroleum Company — along with Chevron and a number of smaller oil companies, are in talks with Iraq’s Oil Ministry for no-bid contracts to service Iraq’s largest fields, according to ministry officials, oil company officials and an American diplomat.

The deals, expected to be announced on June 30, will lay the foundation for the first commercial work for the major companies in Iraq since the American invasion, and open a new and potentially lucrative country for their operations.

The no-bid contracts are unusual for the industry, and the offers prevailed over others by more than 40 companies, including companies in Russia, China and India. The contracts, which would run for one to two years and are relatively small by industry standards, would nonetheless give the companies an advantage in bidding on future contracts in a country that many experts consider to be the best hope for a large-scale increase in oil production.

By the way, Tom Engelhardt has been on the ball on the permanent bases since early on in the war. See, for example, here, here, and here.

(Photo above from here. September 1932. "Iraq oil fields. Man with fires in desert." American Colony Photo Department, Matson Photo Collection).

Telecom Capitulation

Cowards. Laura Rozen:

Reports of the newest FISA compromise indicate that, on telecom immunity, a federal court would be compelled to grant the telecoms immunity if there was substantial evidence that the Bush administration assured them that the warrantless surveillance program was legal. Doesn't that actually endorse and extend to private actors the Nixonian view that if the president says it's legal, it's legal, regardless of what the law says and the Constitution says? Wouldn't that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?

More on the Torture Memos

Stephen Gillers at The Nation:

How could two really smart guys authorize torture using "one-sided legal arguments" that have "no foundation" in law? How could they be guilty of a "stunning failure of lawyerly craft"? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President's authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better, and that raises another issue, the most troubling. Who was the client? The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President's political agenda nor the authors' views of what the law should say can be allowed to slant the OLC's work. So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not "consistent with the professional standards that apply to Department of Justice attorneys." Jarrett must hold the lawyers accountable if he means to restore OLC's reputation and vindicate the rule of law.

By the way, Michael Hatfield, a law professor and longtime friend, deals with this issue better than anyone else I've seen to date (in my forthcoming volume, On Torture).

The US-Iraq Deal

Leaked to The Guardian.

The draft strategic framework agreement between the US and Iraqi governments, dated March 7 and marked "secret" and "sensitive", is intended to replace the existing UN mandate and authorises the US to "conduct military operations in Iraq and to detain individuals when necessary for imperative reasons of security" without time limit.

The authorisation is described as "temporary" and the agreement says the US "does not desire permanent bases or a permanent military presence in Iraq". But the absence of a time limit or restrictions on the US and other coalition forces - including the British - in the country means it is likely to be strongly opposed in Iraq and the US.

Iraqi critics point out that the agreement contains no limits on numbers of US forces, the weapons they are able to deploy, their legal status or powers over Iraqi citizens, going far beyond long-term US security agreements with other countries. The agreement is intended to govern the status of the US military and other members of the multinational force.

Jonathan Schwartz comments,

...despite the fact that the Iraqi constitution gives the parliament authority to approve all treaties (and the US constitution gives the congress authority to approve all treaties) Bush and Maliki are planning to sign an "agreement" approving a permanent US occupation...without the involvement of either country's legislative branch. Moreover, since Maliki is our puppet, this essentially is the administration agreeing with itself....

And here,

Both the US constitution and the Iraqi constitution require that treaties be approved by their respective legislative branches. Yet Crocker states that Congress will merely be "fully informed" about the US-Iraq agreement. And he doesn't even mention the Iraqi parliament. (It is highly unlikely that either the US Congress or the Iraqi parliament would approve this, let alone both.)

Crocker and the Bush administration justify this by claiming the agreement will not rise to the level of a treaty—that it will be a mere Status of Forces Agreement (SOFA), which can be concluded just between the respective countries' executive branches. However, all previous SOFAs have merely governed mundane issues, such as "wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims." R. Chuck Mason, the Congressional Research Service's expert on SOFAs, recently stated that a review of over 70 of them found that "none contained the authority to fight." It has always been treaties which do that. The United States does have a SOFA with Germany, but it is the NATO treaty which makes it legal for US troops there to kill people.

Thus the Bush administration position breaks completely with decades of precedent. Moreover, its extremism can be understood by the fact that it logically goes both ways: if Bush and Maliki can together agree without Iraqi parliamentary approval that Americans can be based in Iraq and kill Iraqis, then Maliki and Bush could together agree without US congressional approval that Iraqis can be based in the US and kill Americans.