President Obama, his administration, and attoney general Eric Holder, have come under heavy attack from critics who say that trying Guantanamo terrorists in federal court opens the door to all sorts of mischief — in particular, allowing terrorists the right to demand access to classified information and to seek the shelter of rights that are available to criminal defendants, including Miranda warnings and constitutional rules about the admissability of evidence. Conservative blogs like powerlineblog.com have been particularly outspoken in their opposition to Holder’s decision.

Like many Americans, I felt that the Bush administration did great harm to America’s reputation by stretching, if not exceeding, the legal limits of presidential authority in using waterboarding, domestic surveillance of American citizens, and unlimited detentions in secret foreign prisons. But, as a lawyer, I was concerned that dealing with the nation’s enemies in the federal judicial system risked not only turning trials into circuses but also could compromise national security through forced disclosure of sensitive information.

It was with particular interest, then, that I read an op-ed piece in today’s Washington Post co-authored by two former officials in the Bush Justice department, Jim Comey and Jack Goldsmith. Comey was Deputy Attorney General under AG John Ashcroft, and Goldsmith was director of the Office of Legal Counsel and worked to overturn overly broad legal opinions (some of which may have been written by John Yoo, an unapologetic advocate of expansive executive authority in wartime).

Goldsmith was a key player in a famous incident during the Bush years, when he raced to Ashcroft’s hospital room upon hearing that Alberto Gonzales and Andy Card were trying to get the ailing Ashcroft to reauthorize a warrantless wiretap program before it expired. They were successful, and I remember seeing Goldsmith on a Bill Moyers’ PBS broadcast after he left the Justice Department. Goldsmith has written a book called The Terrorist Presidency, which I own and have read, but it was something of a disappointment, as he really didn’t have his heart in outing the excesses of his former colleagues.

The op-ed piece, from which I will quote, enters the debate over whether the Khalid Shiek Mohammed and his fellow defendants should be prosecuted in civilian or military courts. Goldsmith and Comer argue that the hullabaloo over which system is better exaggerates the differences between the two systems, and that there are advantages and disadvantages to each. I might also add that Secretary of Defense Robert Gates’ silence on the subject is an indication that the issue is not as critical as Obama’s critics would like to make it.

* [Khalid Sheik] Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs.

* A trial in Manhattan will bring enormous media attention and require unprecedented security. But it is unlikely to make New York a bigger target than it has been since February 1993, when Mohammed’s nephew Ramzi Yousef attacked the World Trade Center. If al-Qaeda could carry out another attack in New York, it would — a fact true a week ago and for a long time. Its inability to do so is a testament to our military, intelligence and law enforcement responses since the Sept. 11, 2001, attacks.

* In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden’s driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.

* One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions’ validity. This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century.

* By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

* In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor’s justice.

* These decisions have already invited charges of opportunistic forum shopping. The Bush administration, criticized on similar grounds, properly explained that it would use whatever lawful tool worked best, all things considered, to incapacitate a particular terrorist. Holder’s decisions appear to reflect a similarly pragmatic approach.

* Of course, the attorney general made a different call on Mohammed than did the Bush administration. The wisdom of that difficult judgment will be determined by future events. But Holder’s critics do not help their case by understating the criminal justice system’s capacities, overstating the military system’s virtues and bumper-stickering a reasonable decision.

* * * *

I think that this is an important and timely piece, because the opinion of two uncontaminated Bush Justice Department officials ought to be given considerable weight by conservatives who are eager to label Obama and Holder as soft on terrorists. I hope that it has a moderating effect on those who think that Obama and Holder had some sinister liberal purpose in moving the trial into the federal courts.

Hutchison is shown sitting in a living room, or perhaps a hotel suite. She is wearing a white blouse with a dark vest, brown or perhaps purple. A lamp is lit on a desk behind her left shoulder. In the foreground is a built-in segment of a bookcase. A red sofa is in the background off to the left.

The spot opens with Hutchison saying, “I’m going to do everything I can to stop the government takeover of health care.” The screen fades to black. White letters come up, reading, “KAY BAILEY HUTCHISON on fighting government health care while running for governor.” The lighting comes back, the camera refocuses on her, and she continues, “And that’s why I’m staying in the Senate through the primary at risk to my political future. I cannot walk away while this is pending in Congress. Everything about it is going to raise taxes, raises costs, and lowers the quality of health care. And we don’t need a government takeover of health care, not at the federal level, not at the state level, not ever.

* * * *

What can I say? This is what we have been waiting for? Everything about this spot is dreadful. I can’t even give it a positive grade. It is going to lose votes. She has no energy. Her body language radiates defeat. The fighting words have no defiance in them. The subject matter is wrong. The message is wrong. And where was an editor when somebody wrote a script that raised the red herring of a state takeover of health care? That’s from outer space. Anyone who is backing her and sees this spot is going to be not just disappointed, but dismayed. Even horrified.

Perhaps Hutchison is trying to follow the old rule of “hang a lantern on your problem.” But the problem that she is hanging a lantern on is not that she had a difficult time making a decision about leaving the Senate. The real problem is that she has never given a rationale for her candidacy. If she had spent half the energy she devoted to worrying about her resignation on developing a message, she would be in much better shape today. Are we supposed to vote for her for governor because she’s against Obama’s health care program? We already have a governor who is against it. Who is going to be persuaded to vote for Hutchison because she vows to do the job she was elected to do?

Why in the world would Hutchison choose to make her first spot one that focuses on a process issue? Nobody cares about process. People care about what she is going to do for the state. Why is she still talking about a decision that has been made? She can’t undo the past and all the dilly dallying and undisciplined talk about whether and when she would resign, September, October, November, December, January, never, whenever. It just highlights the lack of self-confidence that comes out in her body language.

I hate to say these things. I have known Kay for a long time. I like her personally, and I think she has been a very good senator for Texas. The attacks of the Perry campaign on her senatorial record, particularly in calling the things she has done for Texas “pork,” are unfair. But that person, that senator, is a creature of Washington — not in the way Perry means it, that her values have been infected by the cooties of the Capitol, but in the sense that she stayed too long. She originally said she would serve two terms, and that is what she should have done: quit in 06 and run for governor, and there is a good chance she would be running for reelection today. She has no feel for Texas politics any more, or what the Texas Republican party has become — otherwise she would never have undertaken the suicide mission of attacking Perry for refusing the unemployment insurance stimulus funds, when 70+% of Republican primary voters agreed with him. But she is determined to prove that she is as much of a conservative as he is, which is futile. She had months to do her homework on Texas issues, and that time is now gone, and she hasn’t done it. If she gets in a TV debate with Perry on Texas issues, she’d better have EMS on hand because she is going to get slaughtered.

Maybe George Strake Jr. is right. If this is the best she can do, she ought to quit the race.

It opens with an angled shot looking upward at the U.S. Capitol dome, through trees. Over it is superimposed a red line, as if to suggest a graph of an economic indicator, and general direction is down. The effect is very busy without being distracting; there’s a lot going on visually. The word DEFICITS flashes out of the background, in white block letters, growing larger and then imploding to normal size. The same treatment is used for the BAILOUTS, for PORK BARREL SPENDING, and for $12 TRILLION DEBT (announced as “a twelve trillion dollar debt”). Each word is read by a voice-over. The last of these word images is WASHINGTON IS BROKEN. Instead of imploding, the words dissolve into fragments, as if to emphasize “broken.”

A Dallas Morning News headline appears at the bottom of the screen: Positive signs noted in Texas economy. Now it’s the Texas Capitol that flashes on the screen, with a voice-over: “In Texas, Governor Rick Perry proves that conservative leadership works.” The next scene is of Perry attending a ribbon-cutting at what appears to be the new Caterpillar plant in Seguin. He is wearing a blue dress shirt and a red tie and standing before a group of men in company work clothing. All the faces are white. Voice over: “The only governor since World War II to cut general revenue spending–twice.” “Cut general revenue spending twice” appears at the bottom of the screen in smaller white letters. The scene shifts to a bike shop. It’s hard to tell from the video whether the person in the picture is Perry, informally dressed, or a customer. The voice-over says, “Governor Perry kept his promise to reduce taxes for forty thousand small businesses, creating more jobs,” and at the bottom of the screen, “Texas adds 37,900 jobs,” appears in smaller type, along with a reference to a supporting Morning News story. We see Perry in a brown patterned suit and a gold tie, meeting and greeting two workers in hard hats, who could be Hispanic.

A quick shot shows a Perry rally, with supporters holding signs (”Keep Perry,” “Say No to Higher Taxes”). The final scene returns to the original theme. “While Washington gives us politics,” the voice-over says, “Texas delivers results.” The video has WASHINGTON POLITICS superimposed over a view of the Capitol taken over the reflecting pond, with “Washington” in slightly smaller letters. The camera pulls away from the Capitol shot and quickly focuses in an outdoor press conference while “Washington politics” lingers on the screen. The person giving the press conference is Kay Baily Hutchison.

(According to the Hutchison campaign, the press conference followed the Supreme Court’s ruling upholding Second Amendment Rights, and she was speaking in support of the Court’s decision.)

* * * *

This is a very effective spot. I give it 9 out of 10. It may be a little too busy in places. It is both positive and negative, positive in setting up Perry’s record, negative in its unspoken but obvious attempt to link Hutchison to Washington. It’s obvious where this is headed. Step one is “Washington is broken.” Step one, the seeds of which have already been planted, is that Kay Bailey Hutchison is the candidate of Washington values. We saw them in the beginning of the commercial: DEFICITS, BAILOUTS, PORK BARREL SPENDING. Step two is probably going to be very unfair — I think a lot of that so-called pork was very important to Texas –but this is a war that is going to be fought in 30-second skirmishes, and so far the Perry campaign has a clear grasp of what its message needs to be and the Hutchison campaign has neither grasp nor message.

The spot “Texas Values” can be viewed at rickperry.org.

Tagged: kay bailey hutchison, rick perry, tv spot.

In addition to the letter that I posted and wrote about on Wednesday, in which Strake urged Republicans to ask Kay Bailey Hutchison not to run for governor, Strake, as several published reports have noted, is the new campaign treasurer for Tom Mechler’s campaign for Republican Party chairman, a position that is currently filled by Cathie Adams. Guess what? Strake wants Adams to step aside. The State Republican Executive Committee elected Adams in October to finish out the term of Tina Benkiser, who resigned to join the Perry campaign. It will elect a new chair in June. If Strake is worried about a bloodbath, it seems obvious that the best way to avoid one is for Mechler not to challenge Adams. Why should the duly elected chair be the one to give way?

It’s clear what is going on here. Perry is not comfortable with Adams as chair, even though she has endorsed him for governor. But Adams is no one’s toady. Loose cannon is more like it. She criticized Perry in the past over his executive order for HPV vaccinations and for the Trans-Texas Corridor. What most worries Perry, I suspect, is Adams’ propensity for making extremist statements, as when she wrote of President George W. Bush in 2003, as chair of the Texas Eagle Forum, “While our President enjoys high polling numbers because of his leadership in the war against terror, we cannot look the other way when he elevates homosexuals and homosexual sympathizers to key positions within the White House and within the GOP.” Or, more recently, when she compared Obama to Hitler before the president’s speech to school children: “If parents want their children to view the president, then they have ample opportunities at home without taking time away from their studies. This is eerily like Hitler’s youth movement. . . .” Perry doesn’t need his party chair out there going rogue in the middle of an election.

Mechler fits the profile of a solid Perry guy — an Aggie, an oilman, an appointee to the Texas Department of Criminal Justice board (now its vice-chairman). He and fellow SREC member Mark McCaig separately announced their intentions to challenge Benkiser for reelection as party chair earlier this year, speeding her departure. Perry’s governorship is all about being pro-business, but Adams holds views on issues like illegal immigration that are incompatible with the labor needs of the state’s business community.

If Strake’s letter is any indication, Adams is not destined for a long run as GOP chair. Perry can’t take the risk.

It is my gut feeling that Mechler and the Perry camp are, at the very least, in cahoots. While Perry was quick to tout Cathie’s endorsement for Governor, she has been quick to criticize him in the past on issues like the Trans Texas Corridor and the HPV vaccine. Cathie also holds views on issues such as illegal immigration that are the opposite of TAB and other politically influential business interests. Mechler, on the other hand, is in the oil business himself, is a Perry appointee to the TDCJ, and has a much closer relationship to the business interests that Perry is close to (and I would argue carries water for). Mechler’s previous campaign treasurer, Gaylord Hughey, is a registered lobbyist with a client list that includes Pilgrim’s Pride.

Tagged: cathie adams, george strake, tom mechler.

It is posted, undated, on the governor’s web site. It contains this statement at the bottom:

“Political Ad Paid for and Reprinted by Texans for Rick Perry”

While the letter might seem to be a closed subject, Mark Miner of the Perry campaign told me yesterday, “It’s more relevant than ever.”

Note to readers:

The letter in the post that follows this one was sent to me by a Perry supporter. It was undated. The Hutchison campaign has contacted me to say that the letter was dated in late October 26 and carried the information that it was paid for by the Perry campaign. I am awaiting a verifying e-mail from the Hutchison campaign and a phone call from the Perry campaign. The Hutchison campaign also said that the letter had been previously reported, and I found a link to a Wayne Slater appearance on WFAA-TV. However, the article was no longer available.

In any event, Hutchison is clearly running, having resolved the issue of whether she would resign her office, and will be going up on radio in the immediate future, according to a campaign spokesman, so I’m taking the bet of whether she makes the race off the board.

This is from the Brookings Institution’s Metro Monitor:

Texas has six of the top twenty performing metro economies in the country. One of these is the only metro area in the country to record growth in both employment and output. Here are the six metro areas. Which one is it? The metro areas are listed in alphabetical order:

Austin-Round Rock
Dallas-Fort Worth-Arlington
El Paso
Houston-Baytown-Sugarland
McAllen-Edinburg-Pharr
San Antonio

The answer is … McAllen! Amazing. None of these areas, however, has regained pre-recession levels of employment or output.

The Metro Monitor divides the list into five quintiles representing the strongest 20 metros, the second-strongest 20, the middle 20, the second weakest 20, and the weakest. Fourteen of the weakest 20 are in California and Florida, and the second-weakest quintile includes seven from those two states.

The rest of the 20 strongest:
Albuquerque
Baton Rouge
Des Moines
Harrisburg-Carlisle, PA
Little Rock
New Haven
Oklahoma CIty
Omaha-Council Bluffs IA
Pittsburgh
Rochester, NY
Tulsa
Virginia Beach-Borfolk, Newport News
Washington-Arlington-Alexandria VA
Wichita

The carnage at the bottom includes:
Bradenton-Sarasota-Venice FL
Cape Coral-Fort Myers FL
Fresno
Jacksonville FL
Lakeland-Winterhaven FL
Las Vegas NV
Los Angeles-Long Beach
Miami-Fort Lauderdale-Miami Beach
Modesto CA
Oxnard-Thousand Oaks-Ventura CA
Palm Bay-Melbourne-Titusville FL
Riverside-San Bernadino-Ontario CA
Sacramento-Arden-Arcade-Roseville CA
Stockton CA
Tampa-St. Petersburg-Clearwater FL

Other interesting items
* Housing prices in Houston increased by 4.7% from 01/08 to 01/09
* The hardest hit manufacturing areas are those that depend heavily on the aut industry and its supply chain (Dayton, Detroit, Youngstown)
* Job losses and housing prices are better in non-automobile areas (Hartford, Rochester, Scranton)