Jay Reding.com

The New York Times acknowledges that violence in Iraq has dropped precipitously, now reaching the same level as before the attack on the Golden Mosque in Samarrah that kicked off massive internecine conflict in Iraq:

The data released Sunday cover attacks using car bombs, roadside bombs, mines, mortars, rockets, surface-to-air missiles and small arms. According to the statistics, roughly 575 attacks occurred last week.

That is substantially fewer than the more than 700 attacks that were recorded the week that Sunni militants set off a wave of sectarian violence in Iraq by blowing up a Shiite shrine in Samarra in February 2006. And it represents a huge drop since June when attacks soared to nearly 1,600 one week.

American officials said other measures indicated that civilian deaths had dropped. Rear Adm. Gregory Smith, a spokesman for the command, said civilian deaths had dropped by 60 percent since June.

Military analysts said a number of factors explained the drop. They say, for example, that Al Qaeda in Mesopotamia, a predominantly Iraqi insurgent group with foreign leadership, has been greatly weakened by American military attacks.

Thousands of new Sunni volunteers have made common cause with the Americans. About 72,000 such civilians have joined the effort, American officials said, and 45,000 each receive a $300 a month stipend from the Americans to help with the effort.

Moktada al-Sadr, the anti-American cleric, has ordered his militiamen to stand down. American military officials also say that Iran appears to be abiding by a commitment to reduce the flow of roadside bombs and other weapons into Iraq. Beyond that, many Iraqis appear to be exhausted by the sectarian violence and eager for a modicum of stability.

In essence, our nearly year-long process of changing our counterinsurgency strategy is paying off. The “surge” wasn’t just about increasing troop numbers, but about a major change of strategy away from protecting our own forces and towards protecting Iraqi civilians. At the same time al-Qaeda in Iraq’s sheer barbarity was alienating the Iraqis, the US was changing strategy to work better with the Iraqi people. The confluence of those two events is key to understanding why violence is down. Iraq’s Sunni population had finally had enough, and we were there to support them in their grass-roots effort to destroy al-Qaeda.

The majority of the credit does need to go to the Iraqis. In order for Iraq to be secure, the Iraqis need to stand up and fight against terrorism. That is precisely what Iraqi Sunnis have been doing—and as the murder of Sheikh Abu Sattar al-Risha demonstrates, their bravery comes at a cost. Even the Iranians are realizing that the costs of their proxy war against the US are too great. They’ve stopped their shipments of weapons to terrorists in Iraq and they’ve put Moqtada al-Sadr back on his leash.

Of course, anything could change in Iraq, but the signs of progress have become unavoidable. Violence is down, al-Qaeda in Iraq is severely disrupted, and life is returning to normal in many parts of the country.

Those who have protested this war have now painted themselves into a rhetorical corner. By arguing that Iraq is an unwinnable morass and the biggest foreign policy blunder in US history, any sign of progress undercuts their argument. Yet despite all the negative hyperbole, the situation in Iraq is undoubtedly getting better, and all the resources spent by al-Qaeda in training and equipping fighters in Iraq has diminished their resources and left them with nothing. Instead of radicalizing Iraqi Sunnis, the last few months have seen Iraqi Sunnis soundly rejecting al-Qaeda and embracing a course of democratic peace.

There remains much left to be done, but should these trends continue, the drawdown of forces scheduled for the next few months shouldn’t leave the kind of security vacuum that caused problems in the past. The Iraqis have rejected terrorism and embraced a peace, albeit an uneasy one. The transition from dictatorship to democracy will always be a matter of two steps forward followed by one and a half steps back, but Iraq is democratizing, if in baby steps. Far from a disaster, the war in Iraq may end up being the turning point in which radical Islamic terrorist suffered its first major defeat in its own back yard.

The niece of Benazir Bhutto explains why Bhutto’s return is not a positive development for Pakistan:

Perhaps the most bizarre part of this circus has been the hijacking of the democratic cause by my aunt, the twice-disgraced former prime minister, Benazir Bhutto. While she was hashing out a deal to share power with Gen. Pervez Musharraf last month, she repeatedly insisted that without her, democracy in Pakistan would be a lost cause. Now that the situation has changed, she’s saying that she wants Musharraf to step down and that she’d like to make a deal with his opponents — but still, she says, she’s the savior of democracy.

The reality, however, is that there is no one better placed to benefit from emergency rule than she is. Along with the leaders of prominent Islamic parties, she has been spared the violent retributions of emergency law. Yes, she now appears to be facing seven days of house arrest, but what does that really mean? While she was supposedly under house arrest at her Islamabad residence last week, 50 or so of her party members were comfortably allowed to join her. She addressed the media twice from her garden, protected by police given to her by the state, and was not reprimanded for holding a news conference. (By contrast, the very suggestion that they might hold a news conference has placed hundreds of other political activists under real arrest, in real jails.)

Ms. Bhutto’s political posturing is sheer pantomime. Her negotiations with the military and her unseemly willingness until just a few days ago to take part in Musharraf’s regime have signaled once and for all to the growing legions of fundamentalists across South Asia that democracy is just a guise for dictatorship.

Bhutto was ejected for Pakistan for massive corruption. She was growing rich at the expense of the Pakistani people, and there’s little reason to believe that all her noble words about democracy aren’t just a way of getting her hand back in the cookie jar.

As reprehensible as we find the idea of Musharraf’s emergency rule, we have to consider the alternatives. Benazir Bhutto was in power when Pakistan was providing support to the Taliban regime in Afghanistan. She was kicked out of the country for corruption on a massive scale. It is uncertain that she could hold the country together in the face of rising Islamic extremism.

Pervez Musharraf, for all his flaws, has promised that there will be elections in January. He appears to be preparing for a crackdown on the al-Qaeda infested regions of Waziristan and the restive territories along the Afghan/Pakistan border. He has already worked towards reducing tensions with India over Kashmir.

As a general principle, what Musharraf is doing is wrong. Democracy should be a key principle of American foreign policy. However, we cannot ignore the reality that Pakistani democracy could lead to nuclear weapons in the hands of terrorist groups—or even a government willing to provoke India into a nuclear exchange. The level of Islamic radicalism in Pakistan could lead to a government more like Hamas than we can accept.

Musharraf, unfortunately, is the devil we know. We should be pushing him to end his emergency rule as soon as practicable, and to treat his people with respect and only minimize civil liberties as much as absolutely necessary. We should push him to help develop civil society in Pakistan and ensure that the Pakistani government does not succumb to the same endemic corruption that ended Bhutto’s government. However, looking at the situation in Pakistan, we have to consider that right now Musharraf’s interests are closely enough aligned with our own that to lose Musharraf would be to lose a stabilizing force in the region.

If all this reeks of realpolitik, that’s because it is. However, democratic idealism has its place, but not at the potential cost of a nuclear war in Central Asia. There is no one-size-fits-all solution for our foreign policy problems, which is why we must show flexibility in dealing with the Musharraf regime. We want a democratic Pakistan, but that must not mean allowing a Taliban-like regime to possess nuclear weapons. In this case, it is better to go with the devil we know rather than the one we do not.

Independent journalist Michael Yon has some pointed criticisms of the way in which the reality of life in Iraq is unrecognizably twisted by the media, meaning that the American people rarely get the real story of what is going on over there:

I was at home in the United States just one day before the magnitude hit me like vertigo: America seems to be under a glass dome which allows few hard facts from the field to filter in unless they are attached to a string of false assumptions. Considering that my trip home coincided with General Petraeus’ testimony before the US Congress, when media interest in the war was (I’m told) unusually concentrated, it’s a wonder my eardrums didn’t burst on the trip back to Iraq. In places like Singapore, Indonesia, and Britain people hardly seemed to notice that success is being achieved in Iraq, while in the United States, Britney was competing for airtime with O.J. in one of the saddest sideshows on Earth.

No thinking person would look at last year’s weather reports to judge whether it will rain today, yet we do something similar with Iraq news. The situation in Iraq has drastically changed, but the inertia of bad news leaves many convinced that the mission has failed beyond recovery, that all Iraqis are engaged in sectarian violence, or are waiting for us to leave so they can crush their neighbors. This view allows our soldiers two possible roles: either “victim caught in the crossfire” or “referee between warring parties.” Neither, rightly, is tolerable to the American or British public.

Today I am in Iraq, back in a war of such strategic consequence that it will affect generations yet unborn—whether or not they want it to. Hiding under the covers will not work, because whether it is good news or bad, whether it is true or untrue, once information is widely circulated, it has such formidable inertia that public opinion seems impervious to the corrective balm of simple and clear facts.

There are a couple of factors which seem to be at play here. The first is that the media is simply lazy. Iraqi politics, Middle Eastern culture, the interplay between Sunni and Shi’ite, the tortured history of the region, all of these factors are important to a full understanding of the war, and all of them are incredibly complex. How does one distill all of that down to a 3 minute news piece? The simple answer is that it’s impossible. So the media “dumbs it down”—the media portrays the situation in Iraq as being about Shi’ites and Sunnis who hate each other and can’t get along, and the US is stuck in the middle. Of course, that’s an incredibly simplistic picture. For example, it clashes with the fact that many Iraqi tribes and families are mixed Sunni and Shi’ia. But reporting on that would confuse people, and the media constantly panders to the lowest common denominator. So the story is simplified beyond recognition to fit with our soundbite culture.

However, that’s not the only problem. The biggest problem is that the media is largely unified in their political views. More than 90 percent of American reporters are liberal Democrats. The media narrative on the war is that it was unnecessary, a waste, a failure, and everything about it is wrong. That media narrative colors nearly every view of the war. Had a President Gore done the exact same thing with the exact same results, the media would be clamoring for him to win a Nobel Peace Prize. (And by corollary Fox News would undoubtedly be trying to argue that Iraq was a distraction from the real war in Afghanistan.) They’d then have political reason to explore the humanitarian mission in Iraq, one of the most audacious exercises in national benevolence since the Marshall Plan.

Yon is right: America lives in a self-absorbed glass bubble. The media has little interest in breaking that bubble, and it’s up to independent journalists and others to try to get the real story out.

The problem is that societies who are that self-absorbed tend not to live very long. America seems firmly lodged in our >panem et circenses stage. We care more about Britney Spears’ custody battles than the bravery of men like 1st Sgt. Paul Ray Smith. Ultimately, our culture continues to slide because we seem unable to pay more than lip service to the values upon which our culture was founded. Those of us who read Edward Gibbon in school know what happens when a society abandon its values to a kind of social hedonism.

What happens in Iraq, like it or not, will have profound effects on the lives of not only the children of Iraq, but our children as well. By trying to sweep Iraq under the rug, by subordinating the real issues for crude and childish political battles, and by living in deep ignorance of what is really going on, we threaten to let other define our future. Our ignorance and our self-obsession is the greatest weapon groups like al-Qaeda has. In 1993, bin Laden looked at the carnage in Mogadishu and saw a paper tiger, a superpower so risk-averse and so unwilling to fight that a few body bags and a public show of depravity could change its course. Al-Qaeda flourished on that weakness. We dare not prove them right again.

Glenn Reynolds shows why the bill to give retroactive immunity to telecom companies involved who turned over data to the government as part of anti-terrorism investigations is not an ex post facto law. He also has another interesting follow-up post on how the idea of strong Executive powers under the Constitution is nothing new—using an example from the Ninth Circuit, probably the nation’s most liberal that allow President Ford to essentially extend a lapsed statute by Executive Order.

The idea that the “unitary executive” theory is some novel and dangerous departure from Constitutional principles doesn’t have much to it. The principle of separation of powers as always given the Executive Branch wide discretion in managing national affairs under its constitutional scheme of powers—especially in the President’s law enforcement and national security powers.

Those who have taken a course in Constitutional Law know of the famous case of Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952), a case coming out of the Korean War in which President Truman tried to seize a Pennsylvania steel mill that was about to be shut down because of striking workers. Justice Hugo Black gave a wonderfully formalist majority decision holding that the seizure was unconstitutional, but the opinion that ended up being the most crucial to understanding Presidential powers is Justice Jackson’s concurrence. (Here is an edited version of the decision which highlights the essential parts of each opinion.)

Justice Jackson came up with three “categories” of Presidential power, each of which should receive different levels of deference from the courts:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter….

Justice Jackson agreed that the seizure of the steel mills was in that third category—President Truman had asked for such powers before but Congress had specifically denied him the right to make such seizures.

Why does Youngstown Steel matter today? Because it gives us a very clear way of determining when a Presidential action is unconstitutional and when it is not. As Justice Jackson notes, if Congress authorizes the President to do something and the President does it, virtually the only way that could be unconstitutional is if the federal government itself doesn’t have power to take that action under the Constitution. (For instance, if Congress passed a law allowing for the quartering of troops and the President ordered the military to carry that law out, it would still violate the Constitution.).

In the case that Prof. Reynolds mentions above, the Court seems to take the argument that the Executive Order extending the export law is a Youngstown Category I circumstance:

Former section 5(b) of the TWEA delegated to the President broad and extensive powers; “it could not have been otherwise if the President were to have, within constitutional boundaries, the flexibility required to meet problems surrounding a national emergency with the success desired by Congress.” United States v. Yoshida International, Inc., 526 F.2d 560, 573 (Cust. & Pat.App.1975) (footnote omitted). Wary of impairing the flexibility necessary to such a broad delegation, courts have not normally reviewed “the essentially political questions surrounding the declaration or continuance of a national emergency” under former s 5(b). Id. at 579. The statute contained no standards by which to determine whether a national emergency existed or continued; in fact, Congress had delegated to the President the authority to define all of the terms in that subsection of the TWEA including “national emergency,” as long as the definitions were consistent with the purposes of the TWEA. 50 U.S.C. app. s 5(b)(3). In the absence of a compelling reason to address the difficult questions concerning the declaration and duration of a national emergency under former s 5(b), we decline to do so.

Moreover, the EAA apparently was allowed to lapse only because Congress could not resolve questions relating to the antiboycott provisions. See Arab Boycott Hearings on S. 69 and S. 92, Before the Subcommittee on International Finance of the Senate Committee on Banking, Housing and Urban Affairs, 95th Congress, 1st Sess. 1 (Senator Stevenson) (1977). The Spawrs have offered no evidence that Congress intended to dismantle the export controls.

In conclusion, even under the demanding scrutiny the Spawrs argue is appropriate because of the criminal nature of this case, it is unmistakable that Congress intended to permit the President to use the TWEA to employ the same regulatory tools during a national emergency as it had employed under the EAA. We, therefore, conclude that the President had the authority during the nine-month lapse in the EAA to maintain the export regulations.

U.S. v. Spawr Optical Research, 685 F.2d 1076, 1981 (9th Cir. 1982). Because Congress had intended for the President to have these powers, and the lapse of the statute didn’t necessarily change that intent, the President still had the power to enforce a similar policy. Now, the Ninth Circuit didn’t cite Youngstown here, but the basic principle still applies.

All this talk about “new” and “sweeping” executive powers ignores the long-standing legal and historical traditions of executive power under the Constitution. The Presidency is the only part of the US Government that is controlled by a single individual, and the Founders rightly believed that there were some tasks which required a single individual. While the Presidency is a strong office, that office does have constraints that distinguish it from that of the King of England. See The Federalist #69.

I suspect that most of the clamor about how terrible the Bush Presidency is and how much of the Constitution is being “swept under the rug” or “shredded” or whatever is just more political bluster. If in January 20, 2009 Hillary Clinton takes the oath of office and becomes President (perish the thought!), she isn’t going to suddenly change the balance of executive power in this country. (In fact, I’d argue she’d go much farther than Bush has.) All those people who argue that Bush is somehow violating the Constitution never seem to be able to explain what specific part of the Constitution is being violated, and even when they point to one, the supposed violation is rarely real.