George W. Bush

And the winner was?

The Miami Herald's tally of Florida undervotes fails to yield a clear victor -- yet another reason the Gore team should have actually tried to "count every vote."

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And the winner was?

The Republicans controlling the Florida Legislature and governor’s mansion have managed to stop the media from examining the autopsy photographs of NASCAR legend Dale Earnhardt, but they haven’t been able to stop reporters from poking around the coroner’s report on Vice President Al Gore. Media recounts of the state’s disputed “undervotes” and “overvotes” have been going on since November, even before the disputed election was effectively declared fini by the U.S. Supreme Court on Dec. 12.

The latest organization to slice up the results is the Miami Herald, which — with parent company Knight Ridder and USA Today — released its tabulation of the state’s 64,248 “undervotes” Tuesday night. The Florida Supreme Court ordered those ballots reexamined, but the U.S. Supreme Court put an end to that process on Dec. 9. But the Herald numbers — crunched by the accounting firm BDO Seidman — do little to answer questions as to who really won Florida.

While the Herald headline reads, “Review shows ballots say Bush,” the story shows that in fact, depending on the ballot assessment method, and how many counties might have been ordered to examine their undervotes, the results according to the Herald could have ranged from a Bush win by 1,655 votes, or a Gore win by 393.

The Herald audit consisted of two separate reviews, in a sense. One did what the Florida Supreme Court ordered: counted the 40,000 or so undervotes statewide left unexamined. The court did not require a recount of undervotes from Broward, Palm Beach and Volusia counties, counties that had already conducted their own manual recounts. Nor did it mandate a recount of the the 139 precincts in Miami-Dade County that, before the U.S. Supreme Court stepped in, had already been inspected. (Those counties’ recounts, recall, had yielded a 383 vote pickup for Gore and shrunk Bush’s 537-vote lead to 154 votes.)

Ironically, according to the Herald, if the 40,000 or so unexamined undervotes had been reviewed by the punch-card standard the Gore attorneys argued for (the most generous standard, in which every dimple, pinprick, hanging chad and the like was construed to be a vote) Bush would have picked up 1,665 votes.

But using the Bush standard — the most restrictive method of analysis, in which only cleanly punched chad from the ballots were counted as votes — Gore would have eked out a victory by three votes. Counting dimples on those ballots where the voter failed to punch through on more than one race, leaving a pattern of dimples, Bush would have won by 884; counting chad with no more than two corners attached, Bush would have won by 363 votes.

More favorable to Gore, however, was the Herald’s reexamination of all the undervotes statewide, including what can only be called a re-re-examination of those from Broward, Palm Beach, Volusia and Miami-Dade. In this review, which went above and beyond what the Florida Supreme Court ordered, a loose standard would have given Gore a victory of 393 votes. Again, counting dimples on those ballots where the voter failed to punch through on more than one race, Gore would have won by 299. Counting chad hanging by two corners or less, Bush would have won by 351 votes. A strict standard would have given Bush a victory by 416 votes.

The Herald did not go into detail as to what standards were used for Opti-scan counties, such as Volusia County. The official recount in Volusia yielded a net gain of 98 votes for Gore.

These numbers, as well as those pending from a media consortium that includes the New York Times, are, of course, legally insignificant. Since Florida law dictates a county-by-county assessment of the ballots — with each disputed ballot assessed by each county’s canvassing board — it is irrelevant how anyone other than members of those canvassing boards judges a ballot.

Predictably, the Herald’s results have done little to change the familiar threads of spin coming from the Gore and Bush camps. “The president believes, just as the American people do, that this election was settled months ago,” White House spokesman Ari Fleischer told the Herald. “The voters spoke, and George W. Bush won.”

Former Gore spokesman Douglas Hattaway told the Herald, “If you count every vote, Gore wins. This study confirms that Florida’s election system failed the voters.”

Many Democrats are hoping to create a hailstorm out of any media analysis that shows that Gore could have won the state of Florida’s 25 electoral votes — and therefore the presidency — had any additional ballots, unread by tabulation machines, been examined. Every few days, press releases arrive from the Democratic National Committee with the latest news from the land of media recounts.

“Al Gore would have picked up more than enough votes to win Florida and the presidency … [had] Republicans not delayed and ultimately ended hand recounts of ballots,” DNC chairman Terry McAuliffe said in one typical example.

McAuliffe could not be reached for comment Tuesday evening, though no doubt some Democrats will make hay out of the Herald’s muddled results — which the paper, oddly, spins as a conclusive Bush recount win.

But Democrats should curb their rhetoric. It is true, and regrettable, that only a few thousand of the state’s 175,000 undervotes and overvotes were examined by hand. But there were always serious questions about how legitimate any recount could be if it only includes the undervotes and not the overvotes as well. The Miami Herald reports today that its “reviewers saw numerous overvotes, and it became clear that many could have been declared valid votes — if they had been examined in time. For instance, in some counties that use optical-scanning equipment, people managed to vote for Gore and then again for his running mate, Joseph Lieberman, or for Bush and then again for his running mate, Dick Cheney.”

But the more important problem with the carping by McAuliffe and Hattaway about the lack of a rigorous recount is this: Democrats are as much to blame as Republicans for the lack of an official statewide Florida recount.

And if the Herald’s numbers show anything, it’s that the Gore folks screwed up royally by not acting on their “count every vote” rhetoric.

As you may recall, the Gore team — using the state’s “protest” period election laws — requested hand recounts in four counties that Gore won. The plan was to get as many Gore votes up on the board as possible before the certification date. After that time, the thinking went, Bush would then be trailing Gore. It would then be Bush who would be the one who would have to call for an examination of all 175,000 undervotes and overvotes by the media.

There were clear reasons for the four counties that the Democrats picked. Palm Beach County had a problem with its butterfly ballot — and an astoundingly high number of both undervotes and overvotes. Volusia County had experienced several problems on Election Night, with 16,000 Gore votes vanishing on the county election board’s computer.

Broward and Miami-Dade counties were selected because they recorded high numbers of undervotes — and because they were Democratic-leaning counties.

Of these four, only Volusia County was a great story for the Democrats. It was the only one of the four selected counties to complete its hand recount by Nov. 14, the mandated certification date. Volusia County’s canvassing board was run by a retiring, no-nonsense Republican judge, Michael McDermott, who thought that the Republican lawyers sent to the scene were clearly there to stand in the way of the unread votes being counted.

Gore lawyer Jack Young, a recount expert, ran the show there, and after the county had completed its reexamination of the Opti-scan ballots (think SAT-style oval fill-ins), Gore had picked up 98 net votes. That was from both the undervotes and the overvotes. So after the Volusia County canvassing board completed its task, Young called Gore headquarters in Tallahassee, with some suggestions for more recounts.

He wanted to go to Lake County, where there were thousands of undervotes and overvotes. He wanted to go to Duval County, which had 29,000 undervotes and overvotes combined. No need to sue anyone or file a formal “protest” or anything like that, Young said: He would just tell the Volusia story, and hopefully the county canvassing boards would see his logic. Young is a recount expert; he does this for a living.

Young was immediately met with skepticism by the Gore lieutenants, the ones he called “the politicos.” Aren’t those Republican-leaning districts? They asked.

Yes, Young said.

Can you guarantee that Al Gore will pick up votes there?

No, of course not, he said. But we’re behind. We need to increase the number of possible votes in the pool.

Go to Broward County, he was told. Supervise the rest of that (strongly Democratic) county’s recount.

Significantly, the Gore lieutenants — former DNC political director Jill Alper and Boston politico Charlie Baker — who told Young to head to the Democratic stronghold instead of trying to enfranchise other voters, did so with the understanding that the Gore plan was to run up as many votes as possible. The thinking went: If Gore were ahead after Volusia, Broward, Palm Beach and Dade counties had finished their counts, then Bush would contest the election. If not, Gore would do so.

Whichever it was, sooner or later, Alper and Baker thought, someone would make the move in the “contest” phase to bring all the 175,000 unread ballots into a courtroom, like the climax of “Miracle on 34th Street.”

Throughout the campaign, Gore lieutenants referred to the circle of higher-ups as “The Matrix,” a reference to the 1999 sci-fi thriller about an evil artificial intelligence computer power that runs the world autocratically. This was not a compliment.

And when it came time to contest the election, the decision by the Matrix — in this case, Gore, Sen. Joe Lieberman, Bill Daley, Warren Christopher, Ron Klain, Michael Whouley, Carter Eskew and Bob Shrum — to not even remotely attempt to attempt a statewide hand recount severely disappointed the Gore lieutenants. It made many of them feel like frauds.

Instead, after the election was certified and the “contest” period began, the Gore team went after 51 votes here, 192 votes there. It was a desperate scramble. And as they entered the final phase of the post-election melee, they succeeded in this: They never, not once, made a serious attempt to have all 175,000 undervotes and overvotes examined.

Indeed, the Gore strategy mystified Bush staffers. One of the Bush attorneys, Michael Carvin, wondered how the Gore legal team thought it could secure the presidency based on just some of the 175,000 unread ballots being looked at, from four Democratic counties. It was a strategy so brazen, he was convinced that there had to be more there.

There wasn’t. Gore, at that point, was mired in a pool of self-righteous indignation and hopelessness, and so were his staff members. And it caused some bizarre, not to mention disingenuous, behavior. They pushed the idea that, had Palm Beach County’s late hand-recounted numbers been counted by the biased secretary of state, Katherine Harris, Gore would have picked up 215 votes. The actual official number, according to Palm Beach County’s elections supervisor, Theresa LePore, was 174 net Gore votes.

According to LePore, a Democrat, the official number had always been 174, and she still has no idea where that 215 figure ever came from.

Either way, why would Gore choose such selective recounting? Because his team thought the law allowed it, thought that their friends on the Florida Supreme Court would permit it, and they weren’t sure a statewide hand recount would lead to the inauguration of President Al Gore. Thus, the Gore effort truly never was about counting every vote.

At the same time, Gore loyalists and many journalists — including the Washington Post — maintained that the Gore team just couldn’t try to count every vote, that it was simply too unrealistic.

But even Gore lieutenants recognize this to be a sham argument. The Gore team argued in court that there were unread ballots in Palm Beach and Miami-Dade counties — while ignoring the same phenomenon in Republican-leaning counties all over the state. Why couldn’t they have asked a judge to examine all of them? There is no answer to this. Practicality is not an argument; all of this was unprecedented, and the Gore team could have certainly asked for a statewide recount during the contest period. What they were asking for — the inclusion of just enough selected votes from selected counties for Gore to win — is certainly no more reasonable.

Moreover, there were a handful of high-profile Republicans who had broken from the GOP mantra that the election had already ended on Nov. 7, and were counting for a statewide hand recount. Gore could have stood with Bush-backers like Sen. Chuck Hagel, R-Neb., or Weekly Standard editor and publisher William Kristol, both of whom acknowledged that the only way to get out of this mess with true closure was to count all 175,000. Gore staffers could have sought out Hagel and Kristol. Gore could have tried to build a bipartisan agreement. He didn’t. Because he didn’t want that.

By the end of the Florida fracas, those arguing loudest for a statewide peek at the 175,000 questionable ballots were Bush representatives. At the end of the contest trial, Bush attorney George Terwilliger told the judge that if he were going to count undervotes and overvotes, it had to be on a statewide basis. And Secretary of State Harris’ attorney, Joe Klock, was making that same case throughout the trial.

But not only was the Gore strategy morally bereft (not to mention a dishonor to all those truly associated with the cause of enfranchisement), it was dumb.

A December Orlando Sun-Sentinel review of 3,114 overvotes in Bush-backing Lake County showed that had Young been permitted to make his pitch to that canvassing board, and had they listened, Gore could have picked up a net of 131 votes.

Yes, Gore did, in those early days, twice lamely mention that he would agree to a statewide recount. But it was always as an aside, something he’d be willing to do if it was what Bush wanted. He never wanted it, and he never truly tried to get it done — actually legally pursuing the completely opposite approach. In two separate courtrooms, Gore attorney David Boies argued against a statewide recount. Just count these selected votes from these selected counties, he argued.

After all, that’s what the law allows.

In neither courtroom was he heeded. Judge N. Sanders Sauls ruled against him and the entire Gore team in their official contest. Then, during their successful appeal, the Florida Supreme Court ruled for a statewide recount of all the undervotes, which is what the Miami Herald analysis attempted to play out.

But the Florida Supreme Court’s proposal for solving the mystery of who won Florida, halted by the U.S. Supreme Court, actually made little sense. Inspecting just the 60,000 or so statewide undervotes, as the Florida court mandated, left out the 115,000 or so overvotes. Those were just as relevant as the undervotes if one is concerned by enfranchisement and “intent of the voter,” they had already been counted in at least one recount, Volusia’s, and they ultimately — not that it should have mattered to the court — would have been more valuable to Gore.

President Bush has nothing to be proud of either, doing everything he could to block the recounting and let the troubled, tangled final tallies be the final word. But in the coming weeks, you’re likely to hear a lot of talk about the recounts coming from McAuliffe and other unhappy Democrats. They will have a hard time persuading a public who sat through the recount arguments the first time.

Besides, if the majority of Americans who voted were denied the opportunity to have their candidate serve as president precisely because Gore himself never really stood behind his own rhetoric, how can anyone feel cheated?

Jake Tapper is national correspondent for Salon.

Using Bush’s playbook

"Karl Rove politics" aren't quite dead: Obama's strategy in 2012 will mirror W's in 2004

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Using Bush's playbookGeorge W. Bush and Barack Obama (Credit: Reuters/Larry Downing)

Barack Obama’s presidency was born from nothing so much as his repudiation of George W. Bush’s administration — its policies and politics, its style and tone. One of Obama’s most effective 2008 stump speech refrains was his promise to end the era of “Scooter Libby justice, ‘Brownie’ incompetence and Karl Rove politics.”

But the political dynamics for winning a second presidential term often differ markedly from winning the first. So don’t be surprised by many eerie parallels between Obama’s 2012 reelection bid and Bush’s 2004 campaign. The president may not rely upon “Karl Rove politics” in the strictest sense, and nobody would confuse David Axelrod with Rove. But Obama’s reelection route and rhetoric may bear more than a few Rovian hallmarks.

Now that Mitt Romney has won the Republican nomination, two key features prevail over the 2012 campaign — and both were also plainly evident in 2004. First, the incumbent president’s reelection fortunes are far from certain; and, second, the incumbent faces a decent but nevertheless weak challenger who is further hampered by internal problems within his party’s coalition.

Because incumbents can’t run for reelection promising “change,” and because “hope” during a lingering recession was also off the menu, the Obama campaign’s 2012 theme of  “forward” — a word that often follows “plow,” mind you — was the best available alternative. That said, and substituting the economy for terrorism, Obama is implicitly if not explicitly advancing the same theme Bush did in 2004: America suffered a tough blow, but the situation could have been worse and, more to the point, under my stewardship the nation is steadily regaining its footing.

This counterfactual campaign theme — vote for me not because of what happened, but what might have but didn’t — is a common thread for Bush and Obama. It’s not an uplifting message, but it sufficed in 2004 and Obama is counting on it working again in 2012.

Politics 101 further dictates that when an incumbent’s reelection is in doubt, he must go negative against the challenger. Obama political operatives in the White House and at the Democratic National Committee long ago made it abundantly clear they were willing to do just that. Team Obama may not go negative against Romney to the degree the Bush camp did against John Kerry in 2004. (By mid-summer 2004, 75 percent of Bush’s TV ads were negative attacks on Kerry.) But don’t be surprised if attacks on Romney’s record and even character are plentiful, harsh and relentless. In 2008, America saw candidate Obama’s toothy grin; four years later, expect to see President Obama’s fangs.

Expect the Obama camp to emphasize two major critiques of Romney: that he is a flip-flopper willing to say anything or reverse any position to win; and that he is an economic royalist whose personal and public life suggest a person incapable of understanding the lives and struggles of average Americans. Again — note the unusual parallels with 2004.

Although Romney is a Republican former governor and Kerry was at the time his state’s Democratic junior U.S. senator, the two Massachusetts pols make for similar targets. Each man is an extraordinarily rich preppie and Ivy Leaguer. Each represents the liberal wing of his respective party. Each has shown a propensity for ruining an otherwise valid point with sloppy, backfiring language. And each has a reputation for lacking political spine.

The flip-flop frame is candidate character assassination of the first order. Like the lone negative number in a string of multiplied positives, the critique that nobody can trust any statement or claim made by a politician has the potential to negate every accomplishment or promise. If it sticks, it can be fatal, as Kerry learned in 2004.

Obama and the Democratic National Committee know their electoral history and, sure enough, last November — a year before the election and two full months before a single Iowan had caucused — the DNC released a four-minute “Mitt vs. Mitt” ad and its accompanying website with the damning tag line, “the story of two men trapped in one body.” The site is a brilliant homage to the Bush campaign’s 2004 windsurfer attack ad and the devastating, 11-minute ad the Republican National Committee produced chronicling Kerry’s “evolution” on Iraq.

And then there is what might be called “the Willard factor”: Romney as Richy Rich, the Monopoly Guy with the Bain Capital background and the Swiss bank account. His bio would be political gold to Romney’s opponent any election cycle, but it’s gold-plated platinum in the first full presidential campaign following the biggest economic crisis since the Great Depression, the rise of the Occupy Wall Street movement, and the long overdue national debate over income inequality.

Again, the wealth-personified line of attack mirrors the out-of-touch, Martha’s Vineyard yoke the Bush team put around Kerry’s neck in 2004. Right on cue, in the first public event of his reelection campaign, last week Obama attacked Romney by name and invoked the economic disconnect card with relish. “He sincerely believes that if CEOs and wealthy investors like him make money the rest of us will automatically prosper as well,” said Obama of Romney, adding that “corporations aren’t people – -people are people.” (For the record, Kerry is actually wealthier than Romney, who would become one of the richest men ever to occupy the White House, should he win.)

Obama will also try to shift the national debate toward areas of strength, as Bush did. Historically, this meant the same strategy, but with inverse implications for each party: The so-called mommy party Democrats would encourage voters to focus on more favorable kitchen-table economy issues — healthcare, jobs, education — and away from less favorable “daddy party” Republican issues surrounding foreign wars abroad and culture wars. Because Obama is net-positive in foreign policy approval and net-negative on the economy, rather than mirroring by inversion, Obama will try to duplicate Bush’s shift-in-emphasis in 2004. GOP complaints that Obama is politicizing the killing of Osama bin Laden reveal Republican fears that Obama is going to play the terrorism card in 2012 just like Bush did eight years ago.

The 2004 parallels extend beyond message. Obama will be amply resourced and enjoy a field technology by virtue of his campaign’s state-of-the-art Web, donor, volunteer and social media innovations. Remember the Bush reelection campaign’s vaunted “72-hour” voter turnout model? That seems like an Edsel compared to the Ferrari the Obama team will be sporting this summer and fall. Among the perquisites modern presidential incumbents enjoy is the option to test-drive the best mobilization machines before anyone else.

Finally, what most connects Obama 2012 to Bush 2004 is the stability of the electoral map itself. Only three states — two net to Bush — flipped from one party to the other between 2000 and 2004; only nine states flipped between 2004 and 2008. Split the difference and a good, back-of-the-napkin over-under for number of states likely to flip between 2008 and 2012 is six. And thus, like the lead sailboat during a windless race, Obama doesn’t need or want conditions to change much from 2008: He merely has to replicate the map that swept him into office, with the burden of figuring out how to shake up the Electoral College falling to Romney, just as it did for Kerry against Bush. Even Karl Rove’s mapping of the 2012 election concedes this reality.

The 2008 election was memorable; to borrow the title of one best-selling chronicle, it was a “game changer.” But 2012 will not be. In many respects, it will be a game repeater, with Obama playing Bush to Romney’s Kerry of 2004. The president may be asking Americans to look “forward” in 2012, but the best preview of his reelection campaign can be found by looking backward eight years.

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The Bushies are back

Missed the neocons? Don't worry: Mitt Romney's getting the band together again

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The Bushies are back (Credit: Reuters/Win McNamee)

There was good reason for Republicans to cry foul over the Obama campaign’s advertisement highlighting the president’s killing of Osama bin Laden; the GOP has lost its decades-long edge on national security. According to a Washington Post poll, “By a margin of more than 2 to 1, Americans say the president’s handling of terrorism is a major reason to support rather than oppose his bid for reelection.”

Republicans lost their popularity on security issues for one reason: George W. Bush’s foreign policy was a disaster. And yet, the party’s nominee, Mitt Romney, has assembled a foreign-policy team composed almost exclusively of individuals with the same war-always mentality and ideology that served Bush — and the United States — so poorly. In some cases, the exact same men responsible for Bush’s catastrophic national security policies are advising Romney. The former Massachusetts governor could have included some of the pragmatists and realists from the George H.W. Bush administration. Instead, a Romney presidency seems like it would be Bush 43 all over again.

Richard Grenell, who served as United Nations spokesman under Bush, may be gone from the Romney campaign after an uproar over his sexuality, but there are plenty more former Bushies. First off, there are Romney’s “special advisors.” There’s Michael Chertoff, W.’s Homeland Security director. Chertoff oversaw DHS’s failures during Hurricane Katrina, and amassed unprecedented powers of secrecy. Next up is Eliot Cohen, counselor to the State Department for Bush’s last two years and on the Defense Policy Advisory Board for the president’s entire term. Cohen was an adamant supporter of the Iraq War and advised Bush directly on the issue. Or take Cofer Black, the man who infamously said to Bush in September 2011 about al-Qaida that “When we’re through with them they will have flies walking across their eyeballs.” Black went on to become chairman of Blackwater, where he resigned after the company illegally bribed Iraqi officials.

Then there are the 13 “working groups” composed of equally worrisome individuals. The Middle East and North Africa Working Group is co-chaired by Bush’s Assistant Secretary of Defense Mary Beth Long, and Meghan O’Sullivan, Bush’s special assistant and deputy national security advisor for Iraq and Afghanistan. The remaining co-chair is Walid Phares, who never worked for Bush but advised Lebanese warlords in the 1980s. Romney has reportedly promised Phares a top job in his administration, despite his virulently anti-Islamic views.

All told, Romney lists 37 holdovers from the George W. Bush administration — the very same administration he and all other Republican candidates barely referenced during their many debates because it was so discredited and toxic, even to the Republican base.

It didn’t have to be this way. There are, in fact, people in Republican circles who are sensible on international affairs. The Cato Institute, in particular, has experts that could dramatically change the direction of American foreign policy. Men like Justin Logan and Christopher Preble were prescient on Iraq and a host of other issues. Similarly, the Center for the National Interest (formerly the Nixon Center) has a host of solid scholars, including ones like Dimitri Simes and Geoffrey Kemp, who have valuable government experience in the Nixon and Reagan administrations, respectively, and a history of perceptive analysis. Richard Haass, president of the Council on Foreign Relations, would have been another good pick.

So why aren’t guys like this being tapped? Why is the GOP sticking with a discredited foreign-policy approach rather that looking to its own past for wiser counsel? “Most of the realists and pragmatists have simply been driven out of the Republican Party,” says Stephen Walt, who writes a blog at Foreign Policy and teaches at Harvard. “The neoconservatives have been driving the agenda since Bush was elected and they remain well-entrenched.”

Another factor is that the Republican Party’s base remains strongly militaristic and reluctant to recognize limits on American power. Jon Huntsman’s failed presidential campaign illustrated that problem. The good news is that nobody seems to be calling for nation-building and occupying foreign countries in the mold of Iraq and Afghanistan. But that’s the only lesson that seems to have been learned from the last decade of foreign-policy debacles.

Finally, it may just be that the United States has too much power to change course. While the Unites States has undoubtedly made disastrous decisions in the last decades, it is so powerful that it is largely insulated from the consequences of them. If Romney’s foreign-policy advisor list is anything to go by, a Romney administration would have to teach the U.S. all over again about the problems with trying to police the world. Prepare for Bush redux.

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Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.

Bush aide blasts torture

Philip Zelikow tried to warn Bush on interrogations. Now he's penned an authoritative article on how he was ignored

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Bush aide blasts torture (Credit: Reuters/Jim Young)

The Bush administration hasn’t heard the last from Philip Zelikow. After the rediscovery last week of his long lost 2006 anti-torture memo, Zelikow, a former State Department official, has written arguably the most damning article yet about U.S. government’s interrogation policies from 2001 to 2009. The article, called “Codes of Conduct for a Twilight War,” will be released in a forthcoming issue of the Houston Law Journal, and was obtained exclusively by Salon. Says Zelikow in an email: “I’m not aware of other accounts that combine historical, policy and legal approaches to” the subject of the Bush administration’s interrogation methods.

Based on published histories and his firsthand observations, and adapted from a lecture delivered in November, the article calls the administration’s rationale for its use of torture — which he nonetheless insists only on calling “extreme interrogation” and “coercive methods” — “radical,” “an amazing contention,” “untenable and extreme,” “unsustainable,” “an unprecedented program of coolly calculated dehumanizing abuse and physical torment,” and, finally, simply a “mistake.” He concludes: “This was a collective failure of American public leadership, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion without any precedent in U.S. history.”  In fact, “The only defense against criminal prosecution would be that officials acted in good faith reliance on the advice of their government lawyers.”

Part of what makes Zelikow’s analysis so damning and definitive is its judiciousness. The article is deeply empathetic of the uniquely fearful situation under which the Bush administration was initially operating. Zelikow calls the Sept. 11 attacks a “collective trauma” and a “shoc[k] to mass beliefs.” He notes that Bush and others spent time in burn units, morgues and with survivors of the attacks. One traumatic experienced often overlooked — overlooked because it appeared in Stephen Hayes’ stenographic biography of Dick Cheney — was that the vice-president’s daughter was (falsely, it turns out) told that her house with her children in it had tested positive for anthrax. Similarly, Cheney and National Security Advisor Condoleezza Rice were told that they and others had been exposed to an extremely lethal toxin in a particular area of the White House — and might soon die as a result. “The alarms did not stop and they too were not abstract … The pressure on Bush and his senior advisers was so direct because so much of the response had to be invented and improvised,” the article reads.

An additional factor in the power of the article is Zelikow’s credibility and history. Before entering government, he was a civil rights lawyer in Texas battling the Ku Klux Klan and then a highly esteemed Harvard historian specializing in U.S. foreign policy — he co-authored one book with Rice. He then served on the National Security Council under President George H.W. Bush and directed the 9/11 Commission before becoming counselor to Rice at the State Department from 2005 to 2007. He currently volunteers part-time on the President’s Intelligence Advisory Board under President Obama.

Such bipartisan, establishment credentials render the breakdown and conclusion of this article all the more damning. He believes that what should have been a political and moral question — should the United States torture captives? — became strictly a legal matter left up to government lawyers, few of whom had any experience with these issues, and who had to take the necessity of extreme measures as a given. “These lawyers then became secular priests, granting absolution to the supplicant policymakers,” Zelikow writes.

The problems began when the Office of the Vice President and the CIA took central roles in policymaking. Cheney felt himself above the rest of the National Security Council, bypassing Rice and other traditional channels of national security policymaking. Ad-hoc decision-making and improvisation became “a habit of thought,” which seemed initially to pay off in the security of the nation, as well as in Bush’s political standing and self-confidence.

With Cheney and CIA head George Tenet “the key entrepreneurs in setting codes of conduct for the War on Terror,” it was essentially left to their obsequious lawyers to decide, in secret, on the interrogation methods America should employ. Bush even told the Senate’s Intelligence Committee chairman that “the vice president should be your point of contact … [He] has the portfolio for intelligence activities.” Decisions were made to jettison international treaties. By December 2001, the CIA was already interested in reverse-engineering methods “heretofore used only to treat Americans to resist enemy torture.” When a senior al-Qaida member was captured in March 2002, the prototype for the administration’s torture policies was already developed. “So, for the first time in American history, leaders of the U.S. government carefully devised ways and means to torment enemy captives.”

Zelikow notes that “None of the policy or moral issues connected with these choices appear to have been analyzed in any noticeable way.” Perhaps worst of all, no serious consideration was given to weighing the costs of benefits of the torture program, with reference to relevant historical precedents and/or examinations of the respective French, British and Israeli experiences in dealing with captured terrorists. “Bush and Rice should have insisted on this,” Zelikow writes.

The 52-page article observes the successes of Obama’s counterterrorism policies after repudiating the use of torture. On the basis of the empirical evidence then, “[t]here is no evident correlations between intelligence success and the available of extreme interrogation methods,” no matter what Bush and Cheney claim. Finally, “The program’s costs — which include the high-level effort expended in order to establish, maintain, and defense the program — appear on the evidence so far to have well outweighed any unique value the program might have had as a method of counterterrorism intelligence collection.” This is apart from the damage to America’s international standing and corrosion of its traditional values.

Zelikow concludes his analysis by arguing that, although the Obama administration has the right to wage war and use extralegal methods to defeat al-Qaida, its claim of that authority to defeat “associated forces” is unwarranted. “The U.S. government should publish and explain any overarching policy and legal documents that guide and confine the conduct of deadly operation against its foreign enemies … the executive branch of the U.S. government has a duty to articulate the scope of its warfare to the Congress and the public.” The Bush administration’s unprecedented elevation of torture to national policy may be history, but the job to get U.S. foreign policy in line with its constitutional and moral obligations is far from over.

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Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.

Thomas Kinkade, the George W. Bush of art

The rise and fall of Thomas Kinkade, the Painter of Light™ in a decade of bad faith

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Thomas Kinkade, the George W. Bush of art

News of Thomas Kinkade’s death arrived on the same day I received in the mail a vintage teacup on which I had spent a ridiculous amount of money. It has a cottage painted on it. Kinkade, whose work has long exerted a morbid fascination for me (to the concern of all my friends), specialized in cottages. So some part of me understands the appeal, I guess, but, damn: Those paintings make my corneas hurt. And yet, I could barely stop looking at them.

Kinkade was only 54, and his family told the media that he died of “natural causes.” This comes after years of reports of drunken public misbehavior: cursing at people who tried to save him from falling off bar stools, heckling Siegfried & Roy, grabbing a woman’s breasts at a publicity event and, most memorably, urinating on a Winnie the Pooh statue at the Disneyland Hotel while proclaiming, “This one’s for you, Walt!” There were DUI arrests. Also, his manufacturing company declared bankruptcy two years ago, and former franchisees of the once-ubiquitous Thomas Kinkade Signature Galleries won settlements against him for fraud.

That’s quite a fall for a man who frequently spoke of his Christian faith and family values when asked to comment on the mammoth success of his brand in the early 2000s. “When I got saved, God became my art agent,” Kinkade explained in a 2004 video. He went from a childhood in Placerville, Calif. (invariably characterized as “hard-scrabble”) to an apprenticeship selling his work in supermarket parking lots to his apotheosis as the nation’s “most profitable” artist, the Painter of Light™, and multimillionaire. He was profiled in the New Yorker by Susan Orlean.

I first learned about the dark side of the Painter of Light™ — sorry, couldn’t resist that one — when I reviewed “his” novel, “Cape Light,” in 2002. The novel, first in a series, was produced much as his paintings are: by a semi-industrial process in which low-level apprentices embellish a prefab base provided by Kinkade. He wasn’t the only artist to work in this way; he wasn’t even the only novelist. To the best of my knowledge, his novels — heartwarming, fuzzily pious tales of small-town life — have been coming out ever since, one more facet of a lifestyle brand that, at its most ambitious, included an entire Thomas Kinkade-themed housing development.

My review was just a goof intended to amuse Salon’s readers, but after it appeared, I began to receive emails from people who had sunk their life savings in Thomas Kinkade Signature Galleries (essentially, mall and shopping-district outlets for his prints) and been fleeced. I didn’t really understand how the financial architecture of Kinkade’s gallery empire worked, and I sure didn’t share their taste in wall art, but these people struck me as decent and sincere. They’d believed in Thomas Kinkade — not just in the man or the company, but in the ethos supposedly represented by his work, one in which (to quote Kinkade’s introduction to “Cape Light”) “people have the time to savor life’s simple pleasures” and lead “deep, satisfying lives.”

My conversations with these victims made me uneasy. Was there some relationship between the franchisees’ naivete, perhaps even their willful self-delusion, and their terrible taste? Was it hopelessly snobby to wonder that? What about Kinkade himself? He seemed to be at best a hypocrite and at worst a crook. Was there a meaningful connection between his bad conscience and his bad art? German thinkers of the 1930s would have said so, and they had plenty of opportunity to observe bad fascist art up close. Hermann Broch maintained that someone who chooses to make kitsch is “ethically depraved, a criminal willing radical evil.” The novelist Milan Kundera believes kitsch to be the natural expression of totalitarianism. That’s a lot of moral weight to place on a bunch of garish cottage paintings, but Kinkade was always the first to present his work as a form of ideology.

I felt compassion for the ripped-off gallery operators, and at the same time I was aware that quite a few of them had probably also fallen for the similarly sanctimonious, bogus folksiness of George W. Bush, thereby subjecting our nation to one of the worst presidents in its history. Kinkade and Bush struck me as of a piece, probably because they had both borrowed from Ronald Reagan in promising that we could get back to a better way of life that never existed in the first place. In nearly every encounter with the press, Kinkade delivered a diatribe against the art-world “establishment” that had shut him out. They were “elites” touting unfathomable, downer junk to hardworking people who needed uplift instead. Art snobs were the aesthetic counterparts of the so-called liberal elites, a group that surely included me.

At the same time, I must admit that I, too, like a cottage. Granted, I like the stylized, art-deco kind painted on bone china, rather than the insanely detailed and phosphorescently lit specimens in Kinkade’s pictures. And I’m in little danger of equating my new teacup with a Brancusi just because it’s cheerier. Nevertheless, I suspect that my idea of what’s pleasing about a cottage isn’t too different from that of Kinkade’s fans: an aura of harmless coziness, of modest domestic beauty and comfort not too cut off from the past. It’s as if we’re speaking the same word, but in different languages.

I suspect this is why Kinkade’s paintings have exerted their weird, hypnotic effect on me. They are so preposterous (especially the stream-side ones; he really needed to sit down with an architect and go over the basics of drainage), so awful. And yet I can still detect — beneath that cacophony of hollyhocks and cobblestones and snapdragons — the whisper of something intelligible. I’m pretty sure I know why the hordes of Kinkade collectors love his work, even if I don’t like it myself. Kinkade’s paintings are irredeemably false, like all kitsch, but through them you can just barely glimpse the honest desires they seek to exploit, sinking under the dreck.

Kundera defined kitsch as “the absolute denial of shit,” meaning it offers an airbrushed, sterilized, sentimentalized view of the world. From that, it doesn’t necessarily follow that art wallows in shit, but art doesn’t exist for the primary purpose of denying it, either. Kitsch is, first and foremost, a lie; its very existence is founded on bad faith.

Kinkade, like Bush, peddled a falsely simplified image of the world — one without mildew or flooded basements, for one thing — which, no surprise, turned out to be plastered over a whole lot of stinky stuff. The true believers, the ones who bought into these men the most during the 2000s, ended up paying some of the highest prices, from the Kinkade acolytes who invested in his gallery Ponzi scheme to the working-class red-staters who sent off their kids to die in a pointless war. Bad taste, harmless as it may seem, can end up costing you a lot.

Further reading

Los Angeles Times obituary for Thomas Kinkade

Susan Orlean’s 2001 profile of Thomas Kinkade for the New Yorker

A 2006 Los Angeles Times story documenting Kinkade’s business problems

Salon’s Janelle Brown visits Hiddenbrooke, a Kinkade-theme housing development in Northern California

Laura Miller reviews “Cape Light,” a novel by Thomas Kinkade and Katherine Spencer

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Laura Miller

Laura Miller is a senior writer for Salon. She is the author of "The Magician's Book: A Skeptic's Adventures in Narnia" and has a Web site, magiciansbook.com.

The memo Bush tried to destroy

A document advising the Bush administration against torture has resurfaced, despite his best efforts to hide it

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The memo Bush tried to destroyGeorge W. Bush in 2006 (Credit: AP/Ron Edmonds)

In February of 2006, Philip Zelikow, counselor to Secretary of State Condoleezza Rice, authored a memo opposing the Bush administration’s torture practices (though he employed the infamous obfuscation of “enhanced interrogation techniques”). The White House tried to collect and destroy all copies of the memo, but one survived in the State Department’s bowels and was declassified yesterday in response to a Freedom of Information Act request by the National Security Archive.

The memo argues that the Convention Against Torture, and the Constitution’s prohibitions against cruel and unusual punishment, do indeed apply to the CIA’s use of “waterboard[ing], walling, dousing, stress positions, and cramped confinement.” Zelikow further wrote in the memo that “we are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here, even when the prisoners were presumed to be unlawful combatants.” According to the memo, the techniques are legally prohibited, even if there is a compelling state interest to justify them, since they should be considered cruel and unusual punishment and “shock the conscience.”

Chillingly, the memo notes that “corrective techniques, such as slaps,” may be legally sustained, as might be “[C]ontrol conditions, such as nudity, sleep deprivation, and liquid diets…depending on the circumstances and details of how these techniques are used.” However much distress Zelikow’s memo caused the White House, it was not an ACLU briefing paper.

“I’m pleased the memo is now part of the historical record and available for study,” Zelikow wrote Salon in an email. The White House had determined that the memo — which was not binding since Zelikow’s was a bureaucratic position without legal authority — was too dangerous to exist. “I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed,” he said in a May 2009 congressional hearing.

At that hearing, before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, Zelikow said he had “no view on whether former officials should be prosecuted,” a decision he thinks should be left to “institutions.” However, he did call for a thorough inquiry and a public report examining how the U.S. came to employ torture.

Of course, no such inquiry was ever launched. The Obama administration declined to revisit the U.S. employment of torture, with the president saying he didn’t want to “look back.” Zelikow believes this was a mistake. “I still believe an inquiry would be useful, though less so as time passes and more information becomes available, especially after the 9/11 trials conclude, hopefully this year,” he says in an email.

During his congressional testimony, Zelikow declined to say whether Department of Justice lawyers acted improperly or immorally, conceding only that their opinions were “unsound, even unreasonable.” But in a 2007 lecture in Houston, he had no problem saying “the cool, carefully considered, methodical, prolonged, and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral.”

The importance of the memo lies in its revelation that there was real, serious debate inside the Bush administration about how to interrogate captured terrorist suspects. The members of the White House declined to enter that debate — indeed, they did their best to squash it. The destruction of Zelikow’s carefully reasoned memo suggests the White House did not want any record of alternative views even existing, lest they be considered reasonable or people get the idea that the torture policies were thought controversial even by members of the administration.

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Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.

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