Thanks For Voting

I have never been the sort to derive pleasure from crossing things off lists, and as far as killing multiple birds with one stone... well, I'm just not that much into hunting. Still I have to think it would be silly not to (belatedly) make good on my promised electoral review, while at the same time spreading some Thanksgiving cheer.

The November election went off as I had said it would (some of you doubted me when I did not hesitate to call a bicameral takeover... you know who you are), though by a narrower margin than I had anticipated. This places me in the camp of Democrats who are critical of DNC Chairman Howard Dean for our failure to capitalize on races that, frankly, we should have won. I disagree with some of those critics, though, that the way to win those close races would have been to spend more money. I am also less optimistic about the takeover than many, because if we look at the policy positions of a lot of the incoming Democrats... well, a lot of them might as well be Republicans. So without further ado, a paragraph on the overall outcome and what it means, some thoughts on my disagreement with some campaign strategies, and finally, a paragraph on right-of-center Democrats and what their ascendancy means.

The votes have been counted:

This election provided a number of notable items to explore. Tom Delay and Mark Foley remained on the ballot, Lieberman finally got his "Joementum", Nancy Pelosi has become the first female Speaker of the House, and Democrat wins at various levels of state government (especially governors) may have altered the field for a number of future national races, but since I write too much as it is (when I get around to writing), I will focus on the overall Congressional picture. In terms of net gains, the Democrats were able to retake both chambers of Congress by unseating 18 Republicans in the House and 6 in the Senate, while also taking open seats in each chamber. The end result: Democrats have re-taken control of Congress for the first time in 12 years. They lack the supermajorities needed to hamstring the Executive, but by Bush standards, they most definitely have a mandate.

Show me the money:

In every political campaign money is a good barometer of support, priorities, and voter mood. A candidate who cannot meet a fundraising threshold will be deemed unviable and fade to irrelevance, national spending shifts from race to race in response to changing polls and strategies, and as candidates lose traction with voters, so will their ability to raise funds. As usual, the Republicans generally started with more money than the Democrats, but going into the final weeks of the campaign, Democrats climbed the ranks in terms of cash on hand. Through October 18th, only 15 Democrats ranked in the top 50 House races in terms of receipts (5 incumbents, 7 challengers and 3 open races), and this number dropped to 13 in terms of disbursements (5 incumbents, 5 challengers, and 3 open races). 22 Democratic incumbents and 1 challenger ranked in the top 50 cash on hand House campaigns. In the Senate, 25 Democrats (14 incumbents, 8 challengers, and 3 open races) were in the top 50 in receipts (Republicans had 24, there was one Independent), and 23 were in the top 50 in disbursements (12 incumbents, 8 challengers, and 3 open races). 15 Democratic incumbents, 8 challengers and 3 open races (26 total) ranked in the top 50 cash on hand Senate campaigns. In the closing weeks of the campaign, Republicans had still raised more money, but Democrats saw a late surge and reversed many existing trends.

So what? Carville's criticism of Dean hinges on the unspent millions in the Democrats' coffers. My disagreement with that critique is related to my assessment of the overall races: it does not take money to get conservative voters to elect conservative Democrats. What I criticize the DCCC and the DNC's strategy and spending for is linking contributions to Democratic headliners (such as Clinton and Obama) nationally but focusing disbursements on local "Blue Dogs". It's great if a letter from Hillary can get a hefty donation from a California liberal, but its value is diminished when the funds go to conservative Southerner who just happens to be backed by the teachers' union. What troubles me is the consistent failure of the party to inspire: the young outnumber the old, the poor outnumber the rich, shareholders are outnumbered by the people whose pensions depend on their shares, and yet we were only able to eke out Congressional gains by fielding candidates who could assure Republicans that it was safe to stay home on November 7th without worrying about gay marriage being legalized on the 8th. It bothers me that it took a page from the Republican playbook (stressing irrelevant issues) to get concerns over Iraq to amount to wins at the county zoning board.

I fault the party leadership, not for not spending enough, but for spending unwisely. I believe that more seats could have been won if we did not continue to stick to old voter turnout formulas. I blame some unsuccessful races on a failure by the party to recognize that when conservative suburban voters are sick of phone calls (because of dirty Republican tricks*), the problem is not name recognition, and the answer is not more door hangers and volunteer visits.

What exactly is a "Blue Dog"?:

Prior to 1994, most of us would have probably associated the term "Blue Dog" with Louisiana artist George Rodrigue (who, incidentally, was commissioned by the Republican party to paint a portrait of President Ronald Reagan in 1986). It makes sense to think of Rodrigue, since it was his art that inspired the name of the coalition formed by conservative Democrats in the 104th Congress. It appears to me that the term has since expanded to include newcomers such as Joe Donnelly (IN-02), Heath Schuler (NC-11), and Sen. Bob Casey (PA), who while contributing to the Democrats' majorities on paper would probably vote to overturn Roe. The problem with having these people around our new majorities, is that unlike the Republicans in 1994, Democrats in 2006 do not have a "Contract With America" spelling out a policy agenda that they pledge to advance. The Democrats of this month have the added disadvantage of having campaigned as independents, in contrast to the Republicans' willingness to act in lockstep as a rubber stamp for the administration. This has placed some of these newcomers in a position to enhance their standing before conservative constituents by refusing to help their party on key votes. In other words, voters' may have shown their dissatisfaction with Republicans on Iraq and corruption, but they only did so to the extent that the alternative would not require them to risk a change in social policy. They may have let Democrats take the cake, but only because they knew we couldn't eat it.

Happy turkey to you all. Gobble gobble (go Chiefs).

* It is my understanding that Republican claims of similar practices by Democrats involve calls in violation of specific laws, and not misleading calls that comply with the law. Frankly, I think the former is worse, as it cannot be explained by mistakes, just by bad intentions.

Mexico vs. "Dog The Bounty Hunter", Part II

As promised last month (what exactly does "in the next few days" really mean?), what follows is an overview of extradition law generally, and in particular as applied to U.S.-Mexico relations and the Chapman case.

First, some terminology: extradition is the process by which one country obtains a suspected or convicted criminal who is located in another country. In the field of extradition, the “requested state” is the country of which a request for extradition is made, the “sending state” is the country of which the person requested is a national, and the “requesting state” is a country seeking to have a person sent to it from a requested state. These labels may overlap, or they may apply to the relationship between more than two countries; for instance if Countries A and B request the extradition of a national of Country C, who is arrested in Country D.

The terms "extradition" and "surrender" are sometimes used interchangeably, but their definitions vary from country to country and treaty to treaty. Typically, surrender should be thought of as the process that takes place after a request for extradition has been granted; this distinction will be further explained below.

Extradition has been a part of treaties for centuries; they are one of the oldest examples of international cooperation. Since all countries have territorial sovereignty over matters within their borders, extradition is a voluntary and treaty based process. The terms of each extradition treaty control the rules between the requested, requesting and sending states in question, but the terms of these treaties are themselves generally subject to the domestic and international obligations of each country involved. For example, countries that have abolished capital punishment will not extradite a person to a country that intends to seek the death penalty, and a national requirement of due process will prevent an extradition to a country that will not adequately provide it. Most countries require assurances of some sort prior to honoring an extradition request. These assurances may include a showing that the request is supported by sufficient evidence of the individual’s guilt, or that the crime involved is one for which extradition would be appropriate under the law.

Many countries, particularly those with civil law systems, have provisions prohibiting the extradition of their own nationals. This is done in order to protect the due process of nationals; if an offense is extraditable it will also likely be criminal under the requested country's laws, making domestic prosecution an alternative to extradition. Some of these countries make a distinction between extradition and surrender, and this distinction can result in exceptions to the general practice of not extraditing nationals. As stated earlier, extradition and surrender are not always synonymous, and a good example of this is found in Part IX of the Rome Statute for the International Criminal Court.

The treaty establishing the ICC reserves the term surrender for the sending up of an individual to the Court, while transfers between countries are called extradition. When states ratify the Rome Statute they assume an obligation to ensure that their laws are conducive to cooperation with the Court. Countries have resolved this conflict in different ways: Costa Rica determined that nonextradition of its nationals depends on efforts to prevent it but is not a guarantee, Ecuador that extradition and surrender are legally different enough that the latter is allowed, and Ukraine, Honduras, and Guatemala determined that nonextradition to another State does not prevent surrender to an international tribunal. The distinction for the latter countries seems to lie along the lines of jurisdiction: if a State forms a special court with jurisdiction over nationals in its custody, then surrendering a national to an international court to whose jurisdiction the State has consented seems no different than surrendering him to such a special national court.

On a concluding note about extradition generally, and as a transition to some of the public criticisms of the Chapman case, some mention should be made of nonreciprocal treaties between countries that do not extradite their own nationals and countries that do. Nonreciprocity goes directly to what some of Chapman's most outspoken supporters wonder: how the US could consider extraditing "Dog" when Mexico failed to extradite Luster.

Treaties between countries in this situation generally contain neutral language on the obligation to surrender nationals (something to the effect of "Neither of the Contracting Parties shall be bound to extradite its own nationals"). This allows countries with provisions against surrendering their citizens to cooperate more fully than they could if there were no treaty in place at all. The US has traditionally complied with foreign extradition requests for American citizens, even if the requesting country would not reciprocate in kind. Because of criticism of this practice, the US Code provisions on extradition were amended to give the US discretion on whether or not to comply with requests for the extradition of American citizens. The main effect of this change in the law is to calm fears that a treaty could impose a nonreciprocal obligation on the US; we comply by choice.

The next part in this series of posts will examine the particulars of the US-Mexico extradition relationship, including the politics involved as a result of nonreciprocity. This part will delve further into the particulars of the Chapman case, as will the final installment dealing with trials in absentia.

"The Food Was Delicious"

As expected, the president of a right wing think-tank like The Heritage Foundation has a... unique view of our detention facility in Guantanamo. He is entitled to that view, but his slanted perspective deserves a response.

He may have been trying to open with a joke when he ridiculed prisoners on a hunger strike, writing that it "is a pity for them -- the food was delicious", but I see it as an indication of a mind closed off from reality by the blinders of "the war on terror." Even if we think that detainee complaints are without merit, it is irresponsible and infantile to make light of them.

Dr. Feulner complains that "the most outspoken critics of American policy haven't bothered to visit Guantanamo", which is ironic, since much of the criticism surrounding Guantanamo centers on the consistent denial of full access to lawyers and delegates from the United Nations or the Red Cross. His assertion that "[n]o government is required under the laws of war to charge enemy combatants with any crime; anyone picked up on a battlefield may be held until hostilities end" is the result of a selective reading of the law and of reality. Dr. Feulner's background is not in law, but I suspect his use of "enemy combatants" and "prisoners of war" as synonyms is deliberate, and necessary to justify his position; which is to say nothing of the fact that in designating detainees as "enemy combatants" beyond the protections of the Geneva Conventions, the Bush administration failed to sever their right to be free from unlawful imprisonment under international humanitarian law and the U.S. Constitution.

The permissible indefinite detention Feulner writes of is one in which uniformed troops captured in battle can be held (think "Hogan's Heroes") not the repository for suspects swept up in raids before a determination of status or guilt has been made. The detainees in Guantanamo are not merely waiting out the war, they are actively interrogated and prosecuted for alleged ties to criminal activities abroad.

Feulner continues that "the Geneva Convention does not require that detainees be allowed to speak to lawyers and does not give them the right to challenge their detention in civilian courts." While it is true that Geneva does not create rights of access to the domestic courts of its signatories, it is untrue that Geneva is the end-all in the case of Guantanamo detainees. The Bush administration has attempted to use the geographic location and legal status of detainees to create jurisdictional and procedural bars to the exercise of rights available to them under Geneva, the U.S. Constitution, or both.

Both documents guarantee access to legal assistance under certain circumstances, and any exception to that applicable to Guantanamo detainees is the result of the administration's status juggling in a deliberate attempt to restrict judicial oversight over its actions. It is the same sort of legal spin used to exempt civilian contractors carrying out military duties on behalf of the U.S. in Iraq from liability under U.S. or Iraqi law. I hardly see our ability to abide by rules we have twisted to fit our situation as something to be proud of.

Feulner goes on to boast that "[w]e're not only protecting the lives of detainees, we're respecting their religious traditions as well", failing to mention that this is required under Geneva. Would he have us believe that we do this solely out of compassion and not in order to avoid a backlash from an angry Islamic world? We all saw the reaction to reports of mistreatment of the Quran by guards, certainly a man with Dr. Feulner's expertise is not naive enough to believe that our motives are purely altruistic.

Dr. Feulner's presumption of guilt for all detainees makes it easy for him to rationalize the instances in which former detainees have committed violent acts upon their release. Those who do not share his ideologically driven blindness might wonder if it seems reasonable that a wrongly detained civilian might be released once his innocence is established, but that he would decide to join the insurgency as a result of years of imprisonment and interrogation. Or that perhaps a farmer who had been conscripted by the Taliban would voluntarily take up arms upon release after being confined among and indoctrinated by "true believers" (it is, after all, quite common for inmates in our prisons to "graduate" to more serious crimes after imprisonment among hardened criminals).

Feulner's assertion that "the U.S. military will not, as a matter of policy, send a detainee to a country where he is likely to be tortured" is anything but reassuring. The U.S. has been under intense criticism for the extraordinary rendition of terror suspects to countries that the State Department has accused of using torture. His admonition that we "[r]emember that the next time [we]'re told the United States condones torture" is as comical as Cpt. Renault's shock that there is gambling going on at Rick's.

Dr. Feulner ends with the reassuring mantra, that we are "[w]inning the war on terror, while still treating our enemies humanely." I realize that most of the links in this post are from previous years, and I do not wish to leave you with the impression that there has not been tremendous improvement. However, I think it is irresponsible, if not deliberate, of Dr. Feulner to leave his readers with the impression that they should gloss over our past mistakes, abuses, and errors, not to mention the countless hours and ordeals it has taken to correct them, just because he enjoyed his lunch.

We will continue to repeat our mistakes for as long as we fail to acknowledge their error. It will not be you, or me, or the people at conservative think-tanks who have to deal with the repercussions of our failed policies, it is the troops that Dr. Feulner praises in his closing.

All Is Well

Ok, now that the election is over and joblessness is again upon us (me), I have set a goal of writing at least 3 posts over the next week. First will be a response to an editorial on Guantanamo that ran in yesterday's Chicago Sun-Times, next will be Part II of the Duane Chapman saga, and finally some thoughts and observations about the recent electoral "thumpin" (how sad that searching for "thumpin" on the White House page produces results).

Why in that order? I'm thinking of submitting my response to the editorial, so I should do that soon, the Chapman sequel is long overdue, and the election isn't going to go anywhere... not to mention that I'd like some more confirmation of the Virginia Senate results before getting anybody's hopes up.

Thank you for your patience.