As Rachel Maddow pointed out last night, this isn’t the first time that Stanley McChrystal has been insubordinate. He–or his aides–have mouthed off to the press on two earlier occasions without getting fired.

As Rachel mentions, the first of those was a memo leaked to Bob Woodward just in time to demand more troops. That memo provides an interesting benchmark to assess McChrystal’s own plan.

Troops and Rules of Engagement

The key point of the leak to Woodward, of course, was for more troops. But McChrystal tied that demand to treating Afghans better.

McChrystal makes clear that his call for more forces is predicated on the adoption of a strategy in which troops emphasize protecting Afghans rather than killing insurgents or controlling territory.

[snip]

The key weakness of ISAF, he says, is that it is not aggressively defending the Afghan population. “Pre-occupied with protection of our own forces, we have operated in a manner that distances us — physically and psychologically — from the people we seek to protect. . . . The insurgents cannot defeat us militarily; but we can defeat ourselves.”

[snip]

Toward the end of his report, McChrystal revisits his central theme: “Failure to provide adequate resources also risks a longer conflict, greater casualties, higher overall costs, and ultimately, a critical loss of political support. Any of these risks, in turn, are likely to result in mission failure.”

As I pointed out yesterday, McChrystal has changed the rules of the engagement with the infantry, which is losing faith precisely because they can’t respond to violence with violence.

But however strategic they may be, McChrystal’s new marching orders have caused an intense backlash among his own troops. Being told to hold their fire, soldiers complain, puts them in greater danger. “Bottom line?” says a former Special Forces operator who has spent years in Iraq and Afghanistan. “I would love to kick McChrystal in the nuts. His rules of engagement put soldiers’ lives in even greater danger. Every real soldier will tell you the same thing.”

But McChrystal admits in this story that he still demands lots of killing from the special forces, even while he pretends to scold them after they succeed.

Even in his new role as America’s leading evangelist for counterinsurgency, McChrystal retains the deep-seated instincts of a terrorist hunter. To put pressure on the Taliban, he has upped the number of Special Forces units in Afghanistan from four to 19. “You better be out there hitting four or five targets tonight,” McChrystal will tell a Navy Seal he sees in the hallway at headquarters. Then he’ll add, “I’m going to have to scold you in the morning for it, though.” In fact, the general frequently finds himself apologizing for the disastrous consequences of counterinsurgency. In the first four months of this year, NATO forces killed some 90 civilians, up 76 percent from the same period in 2009 – a record that has created tremendous resentment among the very population that COIN theory is intent on winning over.

This quote–unlike some of the more inflammatory ones in the article, direct from McChrystal–was one of the most disturbing to me. Is the call for fewer casualties just a joke? Just something the grunts have to abide by? Or can the special forces guys just live by their own rules, even though their fuck-ups are the ones that really convince Afghans to hate us?

Corruption

McChrystal’s memo does warn of the dangers of corruption.

The assessment offers an unsparing critique of the failings of the Afghan government, contending that official corruption is as much of a threat as the insurgency to the mission of the International Security Assistance Force, or ISAF, as the U.S.-led NATO coalition is widely known.

“The weakness of state institutions, malign actions of power-brokers, widespread corruption and abuse of power by various officials, and ISAF’s own errors, have given Afghans little reason to support their government,” McChrystal says.

[snip]

McChrystal continues: “Afghan social, political, economic, and cultural affairs are complex and poorly understood. ISAF does not sufficiently appreciate the dynamics in local communities, nor how the insurgency, corruption, incompetent officials, power-brokers, and criminality all combine to affect the Afghan population.”

We haven’t solved these. We’ve still got the corrupt Karzai. And money from contracts is still going into the pockets of warlords we oppose.

Detention Facilities

There’s McChrystal’s call to hand off operation of the Afghan detention facilities.

McChrystal outlines a plan to build up the Afghan government’s ability to manage its detention facilities and eventually put all such operations under Afghan control, including the Bagram Theater Internment Facility, which the United States runs.

McChrystal has moved towards handing back the prisons in Afghanistan to the country. Yet, at the same time, DOD is building a big new facility, which curiously would be finished just as the Afghans are supposed to take over the prison.

The U.S. military is getting set to expand its controversial detention camp at Bagram Airfield in Afghanistan — just as new reports of a “black jail” inside the facility are surfacing.

In a solicitation issued today, the U.S. military put out a request for a contractor to build three new detention housing units next to the existing facility, known formally as the Afghan National Detention Facility at Parwan (Bagram is in the southwest corner of Parwan Province). As of last September, 645 prisoners were held there.

The cost of the project — which will include construction of one special housing unit and two detention housing units — is projected to run between $10 million and $25 million. The contractor will have approximately nine months to complete the entire project.

Presumably, these new buildings are in addition to Bagram’s separate and previously clandestine detention facility, revealed by the International Committee of the Red Cross yesterday. Nine former prisoners say they were abused there, according to the BBC.

Timing here is key: The jail is supposed to be handed over to Afghan control of the place, sometimes called “Obama’s Guantanamo,” sometime next year. (Afghan president Hamid Karzai would like tomake the hand-off even earlier.) Afghan and U.S. officials have signed an agreement to hand control of the Parwan facility to the Afghan ministry of defense, and eventually to its ministry of justice. The transfer may help resolve an issue that has caused a fair amount of controversy for the U.S. military.

And someone–whether McChrystal himself or his superiors–floated retaining a special facility under US control in Afghanistan so we’d have some place to abuse prisoners.

Casualties

But on one point McChrystal covered his ass was right: casualities.

McChrystal warns that in the short run, it “is realistic to expect that Afghan and coalition casualties will increase.”

The number of US casualties has gone up significantly.

Now, I understand we’re only halfway through the big surge period of this plan. I understand some of these things are out of McChrystal’s control. I understand this is a near-impossible task in any case.

I know we won’t get it, but this flap–whether or not McChrystal gets fired–is the ideal time to assess whether McChrystal’s plan was ever realistic. Because it’s not clear it was.

As we wait with bated breath to find out whether Obama or Stanley McChrystal wins this little war of big ego, some of the discussion has been focused on whether Obama can succeed in Afghanistan without McChrystal’s leadership (particularly given the way he has gamed alliances with Karzai and the British).

But let’s look at the other piece of Afghanistan news today which may have as much bearing on whether or not Obama can succeed in Afghanistan: the report that Afghan trucking contractors are paying big money payoffs to warlords–including Taliban leaders we’re supposed to be fighting–for protection for their trucks.

Security for the U.S. Supply Chain Is Principally Provided by Warlords. The principal private security subcontractors on the HNT contract are warlords, strongmen, commanders, and militia leaders who compete with the Afghan central government for power and authority. Providing “protection” services for the U.S. supply chain empowers these warlords with money, legitimacy, and a raison d’etre for their private armies. Although many of these warlords nominally operate under private security companies licensed by the Afghan Ministry of Interior, they thrive in a vacuum of government authority and their interests are in fundamental conflict with U.S. aims to build a strong Afghan government.

The Highway Warlords Run a Protection Racket. The HNT contractors and their trucking subcontractors in Afghanistan pay tens of millions of dollars annually to local warlords across Afghanistan in exchange for “protection” for HNT supply convoys to support U.S. troops. Although the warlords do provide guards and coordinate security, the contractors have little choice but to use them in what amounts to a vast protection racket. The consequences are clear: trucking companies that pay the highway warlords for security are provided protection; trucking companies that do not pay believe they are more likely to find themselves under attack. As a result, almost everyone pays. In interviews and documents, the HNT contractors frequently referred to such payments as “extortion,” “bribes,” “special security,” and/or “protection payments.”

Protection Payments for Safe Passage Are a Significant Potential Source of Funding for the Taliban. Within the HNT contractor community, many believe that the highway warlords who provide security in turn make protection payments to insurgents to coordinate safe passage. This belief is evidenced in numerous documents, incident reports, and e-mails that refer to attempts at Taliban extortion along the road. The Subcommittee staff has not uncovered any direct evidence of such payments and a number of witnesses, including Ahmed Wali Karzai, all adamantly deny that any convoy security commanders pay insurgents. According to experts and public reporting, however, the Taliban regularly extort rents from a variety of licit and illicit industries, and it is plausible that the Taliban would try to extort protection payments from the coalition supply chain that runs through territory in which they freely operate.

Contractors have been faced with using NATO forces for protection. Or paying increasing rates in protection fees to warlords. And those rates are getting downright expensive.

The need to provide heavy weapons and robust security with ex pat leadership was not a requirement on the contract and now seems to be a requirement in some areas unless these missions are turned over to green security [ISAF security]. I also believe that most involved in this contract knew that cash money is often the most effective security, but I do not think it was anticipated how high the market would drive these prices and that cash security and special security forces would so often be the only option… RC South has been the location of nearly all of the attacks on IDIQ carriers, which needless to say presents significant challenges as it relates to controlling the quality of work and production for the [local national] drivers and security staff. The utilization of “Green Security” will eliminate the extortion in the south; however the attacks on convoys will increase due to this fact. Some carriers are paying as much as $15,000 per truck for missions going to Dwyer and other south FOBs. [my emphasis]

Last week, Spencer wrote that DOD has a plan to fix this and other Afghan contracting issues.

It has an uncertain budget, a team of fewer than two dozen military officers and civilians, and barely a year to make its mark on counterinsurgency in Afghanistan before the U.S. begins its transfer of security responsibilities to Afghans. In that time, a new military task force will attempt to get a handle on one of the thorniest aspects of the way the U.S. military fights its wars: its relationship with the small army of contractors it hires for support.

[snip]

Task Force 2010 is led by Rear Adm. Kathleen Dussault, a longtime Navy logistics officer who served as senior contracting overseer when Petraeus commanded the U.S. war in Iraq. Dussault arrived in Kabul last week after meeting the week before with John Brummet, the head of audits for the Special Inspector General for Afghanistan Reconstruction, for a briefing on “forensic audits,” something Brummet described as a “data-mining effort to look at financial transaction data” for “various anomalies” indicating waste, fraud or abuse.

Which doesn’t sound all that promising.

So here’s how I figure it. The Afghan warlords have improved on our Soviet era ploy. Back then, we were paying warlords (and building up their power) to fight our enemy, the Russians.

But now, we’re paying them–up to $15,000 a truck!–to not fight us, just so we can get necessary goods to our troops.

I can’t imagine what could go wrong with that.

The breaking news this hour is the decision of Judge Martin L. C. Feldman of the Eastern District of Louisiana to grant a preliminary injunction to the moving plaintiff oil and gas interests and against the Obama Administration’s six month moratorium on deepwater drilling for oil in the Gulf of Mexico.

The court’s decision is here. The key ruling is:

On the record now before the Court, the defendants have failed to cogently reflect the decision to issue a blanket, generic, indeed punitive, moratorium with the facts developed during the thirty-day review. The plaintiffs have established a likelihood of successfully showing that the Administration acted arbitrarily and capriciously in issuing the moratorium.
…..
Accordingly, the plaintiffs’ motion for preliminary injunction is GRANTED. An Order consistent with this opinion will be entered.

The 22 page decision is quite thorough in detailing the applicable law and standards of review. The Judge Feldman proceeds to blatantly disregard and violate the very standards and law he has laid out. It is really quite remarkable. Here, from his own decision (p. 11-12), is the scope he is supposed to be operating under:

The APA cautions that an agency action may only be set aside if it is “arbitrary, capricious, an abuse of discretion, or not otherwise not in accordance with law.” 5 U.S.C. §706(2)(A); see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). The reviewing court must decide whether the agency acted within the scope of its authority, “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 415-16; see Motor Vehicle Manf. Ass’n of the U.S. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). While this Court’s review must be “searching and careful, the ultimate standard of review is a narrow one.” Overton Park, 401 U.S. at 416; see Delta Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002). The Court is prohibited from substituting its judgment for that of the agency. Overton Park, 401 U.S. at 416. “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

The key language is that an agency decision such as entered in this case can be set aside ONLY if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. And the general standard in appellate courts on administrative reviews on abuse of discretions claims is that ANY relevant evidence in the record below that could support the decision is sufficient and it must be upheld.

Shockingly, Judge Feldman then goes on, in pages 18-20 to delineate, in fine detail, just such a “rational connection” that more than constitutes a sufficient basis for the agency decision in this matter:

Of course, the present state of the Administrative Record includes more than the Report, the Notice to Lessees, and the Memorandum of Moratorium. It includes a great deal of information consulted by the agency in making its decision. The defendants have submitted affidavits and some documents that purport to explain the agency’s decision-making process. The Shallow Water Energy Security Coalition Presentation attempts at some clarification of the decision to define “deepwater” as depths greater than 500 feet. It is undisputed that at depths of over 500 feet, floating rigs must be used, and the Executive Summary to the Report refers to a moratorium on drilling using “floating rigs.” Other documents submitted summarize some of the tests and studies performed. For example, one study showed that at 3000psi, the shear rams on three of the six tested rigs failed to shear their samples; in the follow up study, various ram models were tested on 214 pipe samples and 7.5% were unsuccessful at shearing the pipe below 3000psi. How these studies support a finding that shear equipment does not work consistently at 500 feet is incomprehensible. If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed, and rather overbearing.

The Court recognizes that the compliance of the thirty-three affected rigs with current government regulations may be irrelevant if the regulations are insufficient or if MMS, the government’s own agent, itself is suspected of being corrupt or incompetent. Nonetheless, the Secretary’s determination that a six-month moratorium on issuance of new permits and on drilling by the thirty-three rigs is necessary does not seem to be fact-specific and refuses to take into measure the safety records of those others in the Gulf. There is no evidence presented indicating that the Secretary balanced the concern for environmental safety with the policy of making leases available for development. There is no suggestion that the Secretary considered any alternatives: for example, an individualized suspension of activities on target rigs until they reached compliance with the new federal regulations said to be recommended for immediate implementation. Indeed, the regulations themselves seem to contemplate an individualized determination by authorizing the suspension of “all or any part of a lease or unit area.” 30 C.F.R. §250.168. Similarly, OCSLA permits suspension of “any operation or activity . . . pursuant to any lease or permit.” 28 U.S.C. §1334(a)(1). The Court cannot substitute its judgment for that of the agency, but the agency must “cogently explain why it has exercised its discretion in a given manner.” State Farm, 463 U.S. at 48. It has not done so.

So, in short, Feldman correctly sets the standards he must follow in his review, and then blows by and around every one of them. Feldman in one breath, and out of one side of his mouth says “the Court cannot substitute its judgment for that of the agency” and then in the next breath, and talking out the other side of his mouth does just that. Feldman may not agree with the basis for the administrative action here, he may not like it, but it is simply unfathomable that he can say there is no supporting evidence whatsoever such that there is no “rational connection” of the agency decision to the facts. It is simply absurd.

So, and I really do not like asking or suggesting these kind of questions, ever, but here it has to be done. What else could have been behind this bunk decision? Well, for one, Judge Feldman’s disclosures indicate he is invested in and tied to Transocean and Ocean Energy concerns, among others, which certainly ought to raise a red flag. The other question I have is whether or not the government’s attorneys or staff gave some informal clue to the court that they would not be upset in the least if the court were to rule against them. There are lots of ways to accomplish this and, yes, it does occasionally occur. I have no idea or evidence that is the case here; but this is simply an inexplicable decision to the best of my experience. Something funny happened on the way to the forum, that is for sure.

Politico reports that Stanley McChrystal saw today’s big Rolling Stone article before it was published but didn’t object to anything in it (and the Hill reports there was even more devastating trash talk that was off the record).

Rolling Stone’s executive editor on Tuesday said that Gen. Stanley McChrystal did not raise any objections to a new article that repeatedly quotes him criticizing the administration.

Eric Bates, the magazine’s editor, said during an interview on MSNBC’s “Morning Joe” that McChrystal saw the piece prior to its publication as part of Rolling Stone’s standard fact-checking process – and that the general did not object to or dispute any of the reporting.

Asked if McChrystal pushed back on the story, Bates responded: “No, absolutely not.

Now, given the use of the pronoun “they” in the follow-on quotes, I’m assuming by “McChrystal” Bates means “McChrystal’s office,” which may well mean only that press aide that McChrystal already fired reviewed the article.

Nevertheless, this article was not–should not have been–a surprise. McChrystal’s team was at least okay with all this trash talk being published, if not intended for it to be published.

So take a step back and think about what that means for McChrystal (and should mean for the question of whether or not he gets fired for this). Stanley McChrystal, the guy in charge of winning hearts and minds in Afghanistan, okayed this article, presumably intending it to win hearts and minds in the US.

And McChrystal presumably knows US culture better than he knows Afghanistan culture.

This article is McChrystal’s idea of winning hearts and minds.

Argue what you will about whether McChrystal’s insubordination requires his firing. Argue what you will about his unique qualifications for the job.

But if this is McChrystal’s idea of how to win hearts and minds then we will never achieve success in Afghanistan so long as he’s in charge.

(Official White House Photo by Pete Souza)

Update: Rolling Stone tempers that somewhat. Though note the Hill piece and CNN pieces linked include similar, though weaker, claims.

The Toobz are a-tizzy this morning with a Rolling Stone article revealing that Stanley McChrystal said mean things about Joe Biden–both publicly and behind his back.

Last fall, during the question-and-answer session following a speech he gave in London, McChrystal dismissed the counterterrorism strategy being advocated by Vice President Joe Biden as “shortsighted,” saying it would lead to a state of “Chaos-istan.” The remarks earned him a smackdown from the president himself, who summoned the general to a terse private meeting aboard Air Force One. The message to McChrystal seemed clear: Shut the fuck up, and keep a lower profile.

Now, flipping through printout cards of his speech in Paris, McChrystal wonders aloud what Biden question he might get today, and how he should respond. “I never know what’s going to pop out until I’m up there, that’s the problem,” he says. Then, unable to help themselves, he and his staff imagine the general dismissing the vice president with a good one-liner.

“Are you asking about Vice President Biden?” McChrystal says with a laugh. “Who’s that?”

“Biden?” suggests a top adviser. “Did you say: Bite Me?”

But the article is far more subtle than the tizzy lets on. And the tizzy ignores the real moral of the story, revealed after five pages of eye-popping revelations. McChrystal’s counter-insurgency plan is failing. It’s failing not because some of his aides said mean things about Biden, and not because he’s got a long-running spat with Karl Eikenberry, our Ambassador to Afghanistan. It’s failing because the Special Ops guys, whom McChrystal led killing bunches of people in Iraq, are not hard-wired to win hearts and minds. It’s failing because both the tools at McChrystal’s disposal (a bunch of JSOC guys) and the conditions on the ground mean counterterrorism, not counterinsurgency, is the best approach: precisely what Biden argued during the Afghan policy review.

When Vice President Biden was briefed on the new plan in the Oval Office, insiders say he was shocked to see how much it mirrored the more gradual plan of counterterrorism that he advocated last fall. “This looks like CT-plus!” he said, according to U.S. officials familiar with the meeting.

One of the real revelations of this story–one which actually takes up about 1/5 of the article and which is based not on aides revealing embarrassing stories but on watching grunts interact with the General they are often depicted as idolizing–is that they no longer buy that McChrystal can bridge the seemingly (and in fact) irreconcilable forces of the Afghan war; his bravado and mystique is not enough to persuade the grunts implementing his plan to buy into using less lethal force with the hearts and minds they’re supposed to be winning.

“I ask you what’s going on in your world, and I think it’s important for you all to understand the big picture as well,” McChrystal begins. “How’s the company doing? You guys feeling sorry for yourselves? Anybody? Anybody feel like you’re losing?” McChrystal says.

“Sir, some of the guys here, sir, think we’re losing, sir,” says Hicks.

McChrystal nods. “Strength is leading when you just don’t want to lead,” he tells the men. “You’re leading by example. That’s what we do. Particularly when it’s really, really hard, and it hurts inside.” Then he spends 20 minutes talking about counterinsurgency, diagramming his concepts and principles on a whiteboard.

[snip]

“This is the philosophical part that works with think tanks,” McChrystal tries to joke. “But it doesn’t get the same reception from infantry companies.”

During the question-and-answer period, the frustration boils over. The soldiers complain about not being allowed to use lethal force, about watching insurgents they detain be freed for lack of evidence. They want to be able to fight – like they did in Iraq, like they had in Afghanistan before McChrystal.

I think the aides who gave Michael Hastings the access they did suffer from believing McChrystal’s very carefully crafted mystique. As the story shows, McChrystal has always been a barely-contained insubordinate man, whether as a cadet or a general. His brilliance, and his cultivated mystique, has always succeeded in excusing gross errors like the Pat Tillman coverup and the Camp Nama torture. He has always succeeded in–as he himself points out in the article–ordering Special Ops guys to kill many targets but then publicly scolding them the next day so as to maintain the fiction that he’s really supporting a less lethal strategy.

This mystique relies on precisely the kind of bravado that would lead an aide to share really damning comments about Joe Biden. It’s the verbal ass-kicking that makes Stanley McChrystal who he is.

But, at least according to this story, it doesn’t necessarily work with the guys on the front lines, and it doesn’t do a damn bit of good with an old Washington guy like Biden with decades of expertise on the region.

This article appears to be a McChrystal-led effort to shore up his tough guy cred. But the actual content of the story shows that tough guy cred won’t win you a war in Afghanistan.

The Supreme Court today ruled largely with the government in a case broadly interpreting the material support statute.

At issue was whether human rights groups could work with organizations on the Foreign Terrorist Organization list in pursuit of humanitarian or non-violent goals. More broadly, SCOTUS reviewed whether things like providing expert advice to designated terrorist organizations could be prosecuted under the statute.

The answer of six Justices – everyone but Breyer, Ginsburg, and Sotomayor – was “yes.”

To understand the absurd implications of this, remember that Neal Katyal provided his expert advice to a person alleged to be a member of designated terrorist group when he represented Salim Hamdan.

Here’s what the Center for Constitutional Rights – which argued the case – described the decision.

Today, the U.S. Supreme Court ruled 6-3 to criminalize speech in Holder v. Humanitarian Law Project, the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims. Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon. President Carter submitted an amicus brief in the case.

Chief Justice Roberts wrote for the majority, affirming in part, reversing in part, and remanding the case back to the lower court for review; Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. The Court held that the statute’s prohibitions on “expert advice,” “training,” “service,” and “personnel” were not vague, and did not violate speech or associational rights as applied to plaintiffs’ intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers’ Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.

David Cole had this to say about the decision.

We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong

And Jimmy Carter, who submitted an amicus brief as the Founder of the Carter Center, had to say.

We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.

I’ll have more to say about the First Amendment aspects of the decision once I get done reading it.

I just got back from driving across the rust belt – Syracuse, Buffalo, Cleveland, Toledo, MI – and am catching up on all the interesting conversations you’ve been having this week while I was celebrating my mom’s birthday (thanks, once again, to bmaz for watching the liquor cabinet while I was gone). So for the moment I want to make one quick comment.

The WSJ has a story describing how BP heroically pushed back against two of the Administration’s most onerous demands: that it pay for the costs of the moratorium on new drilling, and it pay to restore the Gulf to its natural state, rather than the state it was in when the Deepwater Horizon disaster struck.

BP PLC, despite being put under pressure by the U.S. government to pay for the oil-spill aftermath, has succeeded in pushing back on two White House proposals it considered unreasonable, even as it made big concessions, said officials familiar with the matter. BP last week agreed to hand over $20 billion – to cover spill victims such as fishermen and hotel workers who lost wages, and to pay for the cleanup costs – a move some politicians dubbed a “shake down” by the White House. Others have portrayed it as a capitulation by an oil giant responsible for one of the worst environmental disasters in history. A more accurate picture falls somewhere between.

The fund is a big financial hit to BP. But behind the scenes, according to people on both sides of the negotiations, the company achieved victories that appear to have softened the blow.

BP successfully argued it shouldn’t be liable for most of the broader economic distress caused by the president’s six-month moratorium on deep-water drilling in the Gulf of Mexico. And it fended off demands to pay for restoration of the Gulf coast beyond its prespill conditions.

Now, I know WSJ’s job is to make corporations look good, so I’m unsurprised by this spin. And I’m skeptical the $20 billion will get in the hands of those who need it in a timely fashion.

But it seems to me that the real story is that – for the first time I can think of – the Obama Administration has actually taken a tough approach to negotiation. Normally, of course, Obama starts by ceding on key issues (such as drug reimportation, oil drilling, and real financial reform) and from that incredibly weakened position, further damaging his policy position. Perhaps this time is different because the Administration is under a much greater public opinion threat. Perhaps this time is different because BP is a corporation (though so are the drug companies) not the opposing political party.

But this time is different.

I actually agree with the WSJ that Obama was unlikely to get BP to pay for the moratorium on drilling. But that may have not been the point. It established the window of possibility far beyond what it had been, and made the $20 billion escrow account look reasonable by comparison. And voila! BP at least said they agreed to cough up $20 billion.

It’s called negotiation!

Whoever came up with this novel idea really ought to get a bigger policy portfolio.

Now that I have effectively turned this blog into Gawker, I might as well take one more crack at the well heeled aristocracy. Today’s jet setting celebrity is none other than BP Big Man Dr. Anthony Bryan Hayward, CCMI. Better known to us “small people” here in the States as Tony Hayward, CEO of the corporate criminal BP, one of big oil’s supermajors.

And what has Anthony Bryan Hayward, CCMI been up to lately you ask? Well like all the finest jet set playahs in summertime, he has been yachting:

Embattled BP Chief Executive Tony Hayward took a break from manning the massive Gulf Coast oil spill Saturday to attend a posh yacht race in England.

“It’s a well-known event in the British calendar. He’s entitled to private time with his family,” said BP spokesman Robert Wine.

Hayward — who infamously quipped that he’d like the devastating spill stopped so he could “get (his) life back” — was watching his boat “Bob” in the J.P. Morgan Asset Management Round the Island Race Saturday off the Isle of Wight.

Guess Big Man Tony got his life back. Unfortunately, Aaron Dale Burkeen and the other men on Deepwater Horizon will never get their lives back. Eleven of them no longer even have a life to get back, having perished in the burning and exploding hell of Hayward’s Macondo inferno.

Meanwhile, back at the Gulf shore of the United States, things are going swimmingly. Well, swimming in oil anyway. The Gulf oil spill is a hole in the world; as Naomi Klein says in a brooding but fantastic article in today’s Guardian:

The Deepwater Horizon disaster is not just an industrial accident – it is a violent wound inflicted on the Earth itself.

Indeed. Oh, and the gross quantities of methane and crude oil gushing forth at ever increasing flow volume from the mouth of hell Macondo well could create “dead zones” where oxygen is so depleted that nothing lives. And there is enough oil in the vast Macondo reservoir to keep spewing oil at the current rate for two to four years, maybe longer. So we Yanks have that going for us as Big Shot Tony goes yacht clubbing with his sleek racing sloop, the “Bob”, in the posh and prestigious J.P. Morgan Asset Management Round the Isle of Wight Race.

As you may recall, Jim Risen of the New York Times recently caught a little flack for producing a rather un-Risen like article in the Times on the “suddenly discovered” Afghanistan mineral mother lode. When a few astute souls, led by several in the main media, mused that it seemed an odd story coming from Risen’s pen, Risen went a tad apoplectic.

I respect Risen; seems to be a decent chap so, like Marcy, I kind of internally cut him some slack and blew it off even though the story was curious and the mineral deposits were long known. Cest la vie. Until Risen decided to lash out with an unnecessary, undeserved and mean spirited frontal assault on bloggers:

In an interview with Yahoo! News, Risen dismissed suspicions that the story was part of an orchestrated campaign to rescue the troubled American effort there and derided critical bloggers as pajama-clad layabouts with no reporting chops.

Aw Jim, why did ya go and do that? Because now I have to point out what kind of sophisticated high fashion threads the high and mighty stars of the New York Times, Risen’s home, wear when covering the biggest and most important stories of our age. In the august and serious halls of United States District Court.

You see, Marcy and I had the privilege of covering closing arguments in United States Federal Court in San Francisco on the groundbreaking Perry v. Schwarzenegger case. As luck would have it, so too one of the tenured star of stars from the New York Times was present with us covering the critical closing arguments. None other than the high doyenne herself, Maureen Dowd! Exciting!

But while I, a lowly blogger, was clad in a Brooks Brothers suit, Canali tie and well polished Cole Haans, the star representative from the venerable Gray Lady New York Times, home of uptight sartorial snobs like Jim Risen, came dressed quite in a different and interesting fashion. Take a look and judge for yourself whether the haughty boys and girls at the New York Times ought to be blowing dung out their posteriors at other reporters over fashion sense and choice. Go ahead clotheshorses of the Gray Lady, make my day.

The traditional prize awarded for outstanding commentary, the cherished Emptywheel hubcap, will be bestowed to the most creative caption for this precious photo. Let the contest begin!

Being away to San Francisco to cover the Prop 8 Closing Arguments this week, I am just catching up on a few things. One I would like to point out is the contemptible and disingenuous op-ed Lanny Davis deposited at The Hill:

Two events last week involving elements of the Democratic Party who call themselves the “true progressives” show a danger they represent to the progressive change they say they want to effect. Together they offer President Barack Obama an opportunity for a “Sister Souljah moment” — perhaps to save the Democratic Party majority in both houses of Congress, as well as his progressive agenda in the last two years of his administration.

First was the success of Sen. Blanche Lincoln in June 8’s Arkansas Democratic primary, despite a campaign organized by these self-described progressives, along with certain labor unions.
……
The second event was a conference on that June 8 primary day, held in Washington and organized by the Campaign for America’s Future, a self-described “progressive” organization, which cheered denunciations of Obama for “retreat on Guantánamo [and] no movement on worker rights or comprehensive immigration reform,” according to The Washington Post’s Dana Milbank, and shouted down and nearly prevented liberal House Speaker Nancy Pelosi (D-Calif.) from speaking.
……
President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

The holier than thou arrogance and self entitled belligerence of Davis is simply stunning. As if Obama has not scorned the progressives and netroots enough already. Davis apparently feels he is the one who gets to decide who is, and who is not, a “true Progressive” and those he deems unfit are due the “Sister Souljah” execution hit. Nice. In the process of whining about progressive activism destroying Democratic party unity, he wants to divide, marginalize and destroy a significant sector of the Democratic party. Clearly Davis’ clarity of thought has been so addled by the toxic brine of the inbred Washington Beltway elitism he cannot see he is committing the very sins he complains of. Either that or he is so cravenly duplicitous he does not care. Davis has a history of such duplicity.

Davis similarly accuses the netroots of being “long on innuendo and personal attacks and short on substance”, which is hilarious for a man lobbing unlinked, uncited and unsupported screed in such a deceptive manner. For instance Davis directly intimates that if/when Blanche Lincoln loses in the general election it will because of the netroot and labor supported primary challenge of Bill Halter in Arkansas. This bit of self serving dishonesty of course neglects the fact that if Davis and his fellow centrist corporate shills really cared about retaining the seat in the general election, they should have supported Halter who arguably was a stronger candidate in the general than Lincoln. Not to mention that, in the general, Lincoln will be the only, and unified, Democratic candidate and thus will be judged on her record by the voters of Arkansas. Apparently Mr. Davis does not approve of the democratic concept of voters being able to express their choice in a primary and thinks only the wise sages of the Washington Beltway get to say who the party choice is.

As to his specific arguments in relation to Lincoln, Davis neglects to mention that the majority of Arkansas voters supported the public option, it is just that he and his corporatist doppelganger Blanche Lincoln who did not. Mr. Davis also failed to admit the only version of “health reform” Lincoln would grudgingly vote for was one that gave her constituents expensive health insurance but little in the way of more or usable health care. Par for Davis’ disingenuous course.

The other manufactured poutrage Davis throws down from his grandiose high horse related to the CAF presser where Nancy Pelosi was heckled by a noisy group of protesters on June 8th. Davis dishonestly intimates in his op-ed that the subject hecklers were the progressive netroots and CAF members he so despises protesting over the public option.

But if Davis had possessed any intellectual integrity or journalistic professionalism, he would have researched and realized the hecklers were not the netroots/CAF crowd, but instead were a separate and limited single issue group of nursing home professionals from an unrelated association known as ADAPT who were concerned about the Community Choice Act relating to long term care provisions for the elderly. Instead, Davis relied on an emailed report from a friend who was not at the event, but sent Davis a missive after reading about the conference from an unknown source. Oh, and a terminally shallow Washington Post column by the supposed humorist Dana Milbank. What a paragon of reportage Lanny Davis is.

Davis closes out his fine whine with this sage wisdom:

President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

Well, yeah, I guess. Or Mr. Obama could, alternatively, pull out of his hazy downward spiral and demonstrate he is the leader of the whole party, and entire country, and not just the centrist corporatist hacks like Lanny Davis.

Go “Sister Souljah” yourself Lanny Davis, you plutocratic Beltway corporatist huckster.

[The attached video is from a December 17, 2009 encounter Jane Hamsher had with Lanny Davis on MSNBC]