Recent stories in the New York Times (see Secret U.S. Endorsement of Severe Interrogations (October 4, 2007) and Debate Erupts on Techniques Used by C.I.A. (October 5, 2007)) make it clear that the Bush administration does not want to allow any meaningful public debate on the proper treatment of detainees.
In August of 2002, the Department of Justice produced what has come to be known as the "torture memo," which concluded that deliberately inflicting pain on a detainee was not "torture" unless the pain was equivalent to "organ failure" or “even death.” According to the NY Times, there was also a separate memorandum that described specific approved techniques.
The "torture memo" was officially withdrawn by the Department of Justice in 2004, after the original author (John Yoo) had left the Department, and after news of the content of the memo had become public. The Department of Justice then put on its website a very sanctimonious opinion titled "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A" that declared torture to be "abhorrent" and explained the meaning of terms such as "severe pain," but only in the most general way and without ever referring to any specific way of inflicting pain.
That much has been public knowledge for some time. What is news is that in 2005, after Alberto Gonzales became Attorney General, the Department issued a new, secret memorandum, again approving the infliction of physical and psychological pain. According to the NY Times, this new memorandum specifically approved not only the use of slapping, cold temperatures, sleep deprivation, loud music, and waterboarding, but allowed these techniques to be used in combinations. So it might be possible to slap around a detainee, put him in a 50 degree cell for a few hours with "music" so loud he couldn't sleep even if he could stop shivering, and then, if he does fall asleep, wake him up for some waterboarding, followed by more slapping.
(Incidentally, the NY Times and other sources continue to refer to waterboarding as "simulated drowning" or "making the subject think he is drowning." Let's be clear. Someone subject to waterboarding really is drowning. They cannot breathe, and will suffocate unless the waterboarding stops. The only difference between waterboarding and the cruel, crude, medieval practice of "dunking" is that, during waterboarding, no water can get into the victim's mouth or nose. Big deal.)
Okay, so combinations of slapping, cold temperatures, and waterboarding might not be "torture." But then Congress upped the ante, enacting the Detainee Treatment Act of 2005 and making it a crime for detainees to be subject to "cruel, inhuman or degrading treatment." Well, guess what? Then the Department of Justice declared (secretly) that the same things that they had decided weren't torture weren't even "cruel, inhuman or degrading." According to the NY Times, another secret memorandum was issued by the Department of Justice in late 2005 that reached that very conclusion.
And now, many members of Congress are upset to learn that the Department of Justice has a practice of issuing memos saying that the laws Congress has enacted don't mean what Congress thought they meant and without telling Congress that. (Which Congress should have expected, given that Bush had attached a "signing statement" to the Detainee Treatment Act of 2005 saying that he would ignore the act if he thought he had the constitutional authority to do so. See "Clarification" in this blog.)
And the response by the White House? White House press secretary Dana Perino refused to identify or discuss any specific techniques but declared that "any procedures that they use" are "tough, safe, necessary and lawful." (The "tough" I believe.)
So there you have it. Congress can pass any law it wants regarding "torture" or "cruel, inhuman or degrading treatment," and those laws don't really mean anything because the lawyers in the Department of Justice (who are appointed by the President, remember) get to define what is meant by "torture" and "cruel, inhuman or degrading treatment" and the President doesn't need to tell us (or Congress) what these definitions are.
Friday, October 05, 2007
Wednesday, October 03, 2007
Damn the Truth, Full Smear Ahead!
A recent series of ads and commentaries involving Rush Limbaugh demonstrate the all-too-common practice of radical conservatives who, when caught in a baseless smear, simply fabricate new baseless smears.
In this case, Limbaugh made his original smear during his 9/26 program. To put the comment in context, Limbaugh was answering calls from listeners. The first caller, "Mike from Chicago" identified himself as a Republican and said that "I do believe that we should pull out of Iraq. I don't think it's winnable." Limbaugh proceeds to ridicule him, then takes a second call, who begins by saying that he as a "a retort to Mike in Chicago," and proceeds to make a lot of pro-war comments, referring to what "these people don't understand." Shortly afterwards, these exchange occurs:
So it's not clear who "they" are, but it seems that soldiers who talk to the media against the Iraq war are "phony soldiers."
This comment was immediately attacked by a number of individuals and organizations, because there are many, many real soldiers who have been critical of the Bush administration's policies in Iraq and have called for the withdrawal of American troops. (See, for example, the coverage given to this remark by Media Matters for America.)
Okay, so Limbaugh has uttered another casual, baseless, smear. Nothing new there, and hardly newsworthy. Except that Limbaugh tries to deny that he said what he said.
In his September 28 broadcast, Limbaugh claims that the "phony soldiers" (plural) comment was not about "the anti-war movement generally," but only "about one soldier ... Jesse MacBeth." Limbaugh then claimed that Media Matters "selectively choose what they want to make their point" and then aired what he said was "the entire transcript, in context."
There are at least two problems with those statements:
1. The first mention of Jesse MacBeth (or any other person impersonating a veteran) came more than three minutes after the "phony soldiers" remark.
2. In broadcasting the "entire transcript, in context," Limbaugh committed the same sin that he charged to Media Matters, because (as Media Matters has documented) he edited out 1 minute and 35 seconds of talk between the "phone soldiers" comment and the first reference to Jess MacBeth, making them appear to be closer together in time than they really were and so distorting the context.
Now, it's entirely possible that Limbaugh was thinking about veteran-imposters when he made his "phony soldiers" remark. (Although are there "phony soldiers"--plural--who are critical of the war in Iraq? There have been recent news reports of several persons falsely claiming to be veterans, but they have acted mainly for personal gain. The case of Jesse MacBeth might be unique.) But if that were the case, why didn't he simply apologize? Taken in context, which is a discussion with a caller about "these people," Limbaugh's comment about "phony soldiers" is ambiguous at best. If he knows that there are real, dedicated, patriotic, sincere soldiers who oppose the war in Iraq, why not simply say so?
The answer can be seen in his later comments, on his October 2 broadcast. After a real soldier, with real combat service in Iraq, real wounds, and a real Purple Heart, speaks in an advertisement against Limbaugh and asks why Limbaugh won't call him a "phony" to his face, Limbaugh tries to smear him as well, saying that the people who made the ad (VoteVets.org) were "lying to him about what I said, then strapping those lies to his belt, sending him out via the media in a TV ad to walk into as many people as he can walk into." That's right, a decorated veteran is an easily manipulated idiot who has been tricked into becoming a mindless suicide bomber. When Limbaugh finally concedes that the decorated veteran might be able to read and write and form opinions of his own, Limbaugh's tone turns patronizing as he says that "it's just so unfortunate and sad when the truth of what I said is right out there to be learned." (A larger transcript is here, and the soldier's response to Limbaugh can be found here.)
These comments are "the answer" because Limbaugh continues to both evade and deny the real issue: Are there real, dedicated, patriotic, sincere soldiers who oppose the war in Iraq. Limbaugh refuses to answer that question, even while smearing a soldier who claims to be one.
And there you see the essence of the radical right. Smear broadly and, when challenged, smear your challengers. After all, you must be right, so everyone who disagrees with you is either evil or an idiot. Right?
In this case, Limbaugh made his original smear during his 9/26 program. To put the comment in context, Limbaugh was answering calls from listeners. The first caller, "Mike from Chicago" identified himself as a Republican and said that "I do believe that we should pull out of Iraq. I don't think it's winnable." Limbaugh proceeds to ridicule him, then takes a second call, who begins by saying that he as a "a retort to Mike in Chicago," and proceeds to make a lot of pro-war comments, referring to what "these people don't understand." Shortly afterwards, these exchange occurs:
LIMBAUGH: I -- it's not possible, intellectually, to follow these people.
CALLER 2: No, it's not, and what's really funny is, they never talk to real soldiers. They like to pull these soldiers that come up out of the blue and talk to the media.
LIMBAUGH: The phony soldiers.
So it's not clear who "they" are, but it seems that soldiers who talk to the media against the Iraq war are "phony soldiers."
This comment was immediately attacked by a number of individuals and organizations, because there are many, many real soldiers who have been critical of the Bush administration's policies in Iraq and have called for the withdrawal of American troops. (See, for example, the coverage given to this remark by Media Matters for America.)
Okay, so Limbaugh has uttered another casual, baseless, smear. Nothing new there, and hardly newsworthy. Except that Limbaugh tries to deny that he said what he said.
In his September 28 broadcast, Limbaugh claims that the "phony soldiers" (plural) comment was not about "the anti-war movement generally," but only "about one soldier ... Jesse MacBeth." Limbaugh then claimed that Media Matters "selectively choose what they want to make their point" and then aired what he said was "the entire transcript, in context."
There are at least two problems with those statements:
1. The first mention of Jesse MacBeth (or any other person impersonating a veteran) came more than three minutes after the "phony soldiers" remark.
2. In broadcasting the "entire transcript, in context," Limbaugh committed the same sin that he charged to Media Matters, because (as Media Matters has documented) he edited out 1 minute and 35 seconds of talk between the "phone soldiers" comment and the first reference to Jess MacBeth, making them appear to be closer together in time than they really were and so distorting the context.
Now, it's entirely possible that Limbaugh was thinking about veteran-imposters when he made his "phony soldiers" remark. (Although are there "phony soldiers"--plural--who are critical of the war in Iraq? There have been recent news reports of several persons falsely claiming to be veterans, but they have acted mainly for personal gain. The case of Jesse MacBeth might be unique.) But if that were the case, why didn't he simply apologize? Taken in context, which is a discussion with a caller about "these people," Limbaugh's comment about "phony soldiers" is ambiguous at best. If he knows that there are real, dedicated, patriotic, sincere soldiers who oppose the war in Iraq, why not simply say so?
The answer can be seen in his later comments, on his October 2 broadcast. After a real soldier, with real combat service in Iraq, real wounds, and a real Purple Heart, speaks in an advertisement against Limbaugh and asks why Limbaugh won't call him a "phony" to his face, Limbaugh tries to smear him as well, saying that the people who made the ad (VoteVets.org) were "lying to him about what I said, then strapping those lies to his belt, sending him out via the media in a TV ad to walk into as many people as he can walk into." That's right, a decorated veteran is an easily manipulated idiot who has been tricked into becoming a mindless suicide bomber. When Limbaugh finally concedes that the decorated veteran might be able to read and write and form opinions of his own, Limbaugh's tone turns patronizing as he says that "it's just so unfortunate and sad when the truth of what I said is right out there to be learned." (A larger transcript is here, and the soldier's response to Limbaugh can be found here.)
These comments are "the answer" because Limbaugh continues to both evade and deny the real issue: Are there real, dedicated, patriotic, sincere soldiers who oppose the war in Iraq. Limbaugh refuses to answer that question, even while smearing a soldier who claims to be one.
And there you see the essence of the radical right. Smear broadly and, when challenged, smear your challengers. After all, you must be right, so everyone who disagrees with you is either evil or an idiot. Right?
Thursday, September 20, 2007
Another Moral Idiot for Attorney General
The appointee for the position of Attorney General of the United States, Michael B. Mukasey, might have a better memory than Alberto Gonzales, but there is no reason to believe that he is any better qualified in any other way to be Attorney General.
One of the key failings of Alberto Gonzales as Attorney General was that he was incompetent as a manager. His testimony before Congress demonstrated that he had little idea of what his subordinates were doing, and no idea at all of why they were doing what they were doing. Gonzales had served as a judge, and as a lawyer, but had never been an administrator and had never managed any organization, much less an organization as large as the United States Department of Justice.
Well Mukasey has been a judge, and has been a lawyer, but has never managed anything either, so there is no reason to believe that he is any better qualified to run the Department of Justice than Gonzales was.
The other key failing of Gonzales was his complete lack of any independent judgment. In his memorandum as White House counsel supporting the use of torture (by redefining the word "torture"), in his support for wire-tapping in violation of the Foreign Intelligence Surveillance Act, and in his support for administration policies on Guantanamo Bay and the indefinite detention of those merely suspected of terrorist plots, he showed more desire to carry out the wishes of the President than comply with the law. Mukasey might not be the lap-dog that Gonzales was, but there is no reason to believe that his judgment is any better.
While a federal judge, Mukasey ruled against Jose Padilla and held that "the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful." Jose Padilla v. Rumsfeld et al., No. 1:02-cv-04445-DAB (3/11/2003), rev'd 352 F.3d 695, (2d Cir. 2003), rev'd on other grounds, 542 U.S. 426 (2004). The "circumstances" present here were that Padilla was a United States citizen who was arrested in the United States on a material witness warrant and then transferred to a military brig, where the government intended to hold him indefinitely, without ever charging him with any crime. The government claimed that Padilla was an "enemy combatant" but the Second Circuit Court of Appeals properly concluded that, "absent [Congressional] authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." 352 F.3d at 698.
Mukasey's belief that the President of the United States has the power to seize American citizens and hold them indefinitely, without proof of any crime, shows that he, like Gonzales, is a moral idiot. Gonzales and Mukasey may be able to determine what is legally correct, but they obviously have no clue about what is morally right.
Let's not make the same mistake again. Let's not confirm another Gonzales as Attorney General.
One of the key failings of Alberto Gonzales as Attorney General was that he was incompetent as a manager. His testimony before Congress demonstrated that he had little idea of what his subordinates were doing, and no idea at all of why they were doing what they were doing. Gonzales had served as a judge, and as a lawyer, but had never been an administrator and had never managed any organization, much less an organization as large as the United States Department of Justice.
Well Mukasey has been a judge, and has been a lawyer, but has never managed anything either, so there is no reason to believe that he is any better qualified to run the Department of Justice than Gonzales was.
The other key failing of Gonzales was his complete lack of any independent judgment. In his memorandum as White House counsel supporting the use of torture (by redefining the word "torture"), in his support for wire-tapping in violation of the Foreign Intelligence Surveillance Act, and in his support for administration policies on Guantanamo Bay and the indefinite detention of those merely suspected of terrorist plots, he showed more desire to carry out the wishes of the President than comply with the law. Mukasey might not be the lap-dog that Gonzales was, but there is no reason to believe that his judgment is any better.
While a federal judge, Mukasey ruled against Jose Padilla and held that "the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful." Jose Padilla v. Rumsfeld et al., No. 1:02-cv-04445-DAB (3/11/2003), rev'd 352 F.3d 695, (2d Cir. 2003), rev'd on other grounds, 542 U.S. 426 (2004). The "circumstances" present here were that Padilla was a United States citizen who was arrested in the United States on a material witness warrant and then transferred to a military brig, where the government intended to hold him indefinitely, without ever charging him with any crime. The government claimed that Padilla was an "enemy combatant" but the Second Circuit Court of Appeals properly concluded that, "absent [Congressional] authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." 352 F.3d at 698.
Mukasey's belief that the President of the United States has the power to seize American citizens and hold them indefinitely, without proof of any crime, shows that he, like Gonzales, is a moral idiot. Gonzales and Mukasey may be able to determine what is legally correct, but they obviously have no clue about what is morally right.
Let's not make the same mistake again. Let's not confirm another Gonzales as Attorney General.
Tuesday, September 11, 2007
Quagmire
In his testimony before Congress yesterday (9/10/2007), General David H. Petraeus said that The Surge has been so successful that we might soon be able to withdraw some troops, and that American troops could be back to pre-Surge levels by next summer.
In other words, we're making such wonderful progress in Iraq that, within a year, we'll be back to where we were a year ago.
Any more such "progress," and we will be undone.
In other words, we're making such wonderful progress in Iraq that, within a year, we'll be back to where we were a year ago.
Any more such "progress," and we will be undone.
Saturday, September 01, 2007
Governing Competently
Back in July, Republican Presidential candidate Mitt Romney, talking about Democratic proposals to provide better health care to the uninsured, said that "I don't want the guys who ran the Katrina cleanup running my health care system."
Let's take that idea one step further. Do we really want the guys who ran the Katrina cleanup to continue to run the Katrina cleanup?
In fact, given what we have seen of the Bush administration's non-response to Katrina, mis-administration of Iraq following the invasion, and mis-management of the Justice Department, do we really want Republicans running anything?
The Republican party has historically claimed competence as one of its virtues. Now it can't.
Let's take that idea one step further. Do we really want the guys who ran the Katrina cleanup to continue to run the Katrina cleanup?
In fact, given what we have seen of the Bush administration's non-response to Katrina, mis-administration of Iraq following the invasion, and mis-management of the Justice Department, do we really want Republicans running anything?
The Republican party has historically claimed competence as one of its virtues. Now it can't.
Friday, August 31, 2007
Historical Cost
Here's a tough lesson in reality: Historical cost is irrelevant.
I've seen people trying to make business decisions who can't accept that reality. You tell them that, if they scrap their old equipment and buy a new piece of equipment for $2 million, they will make more money. If their response is "But I paid $1.5 million for that old equipment just two years ago," then they don't get it. The money they spent two years ago is gone. The only question now is how to make more money, and there are only two choices: (a) Continue to use the old equipment, or (b) Spend money to buy new equipment. Choice (a) costs nothing except a loss of productivity. Choice (b) requires you to spend money out of pocket, but increases productivity and future profits. If the benefits of choice (b) exceed the costs of choice (b), then choice (b) is the right decision, regardless of what the old equipment cost. Why? Because historical cost is irrelevant.
I've also seen people trying to make investment decisions who can't accept that reality. You tell them that they can make more by selling investment A (which they bought for $X and now is worth $Y less) and putting money into investment B. If their response is "But I paid $X for Investment A and if I sell it I have a $Y loss," then they don't get it. They already have a loss of $Y. Their only choice is when they are going to realize it. (I'm using the word "realize" in both the tax sense and the cognitive sense.)
It is very therefore very disturbing to see the same mistake applied to our continuing military presence in Iraq. The human lives that have been lost or damaged in Iraq, which is part of the price of "blood and treasure" that we have paid for our military adventure in Iraq, is being promoted as a reason to stay in Iraq.
For example, in one of the pro-war ads that have been running on television from "Freedom's Watch" a soldier who has lost both legs in Iraq says "I know what I lost. And I also know that if we pull out [of Iraq] now, everything that I have given and sacrificed will be mean nothing."
And President Bush has stated that "under his watch" he will "never allow our youngsters to die in vain" in Iraq. (4/13/2004) After the U.S. military death toll reached 3,000 in Iraq, the White House announced that President Bush "will ensure their sacrifice was not made in vain." (CNN 1/3/2007) At Fort Benning, the President declared that "it is important for us to succeed [in Iraq] so that comrades would not have died in vain." (1/11/2007)
A Google search of "Iraq vain site:www.whitehouse.gov" turns up about 93 hits, so these are not isolated slips of the tongue, but part of a deliberate public relations effort that relies on emotion and not reason or results.
The plea to leave more soldiers in harm's way, ensuring that more will be killed or injuried, merely because others have already been killed or injured, is a failure to recognize that historical cost is irrelevant. In deciding whether to send people into battle, the only relevant question is whether risking more lives is justified by the possible future benefit. The number of lives that have been spent in the past is, in the hard calculus of reality, unimportant.
Am I equating human lives with financial costs? Yes. Money spent is money gone. And dead is dead. Someone doesn't become less dead (or less maimed) just by spending more lives.
The President owes a debt to the living to spend their lives wisely, not a debt to the dead to justify their deaths.
I've seen people trying to make business decisions who can't accept that reality. You tell them that, if they scrap their old equipment and buy a new piece of equipment for $2 million, they will make more money. If their response is "But I paid $1.5 million for that old equipment just two years ago," then they don't get it. The money they spent two years ago is gone. The only question now is how to make more money, and there are only two choices: (a) Continue to use the old equipment, or (b) Spend money to buy new equipment. Choice (a) costs nothing except a loss of productivity. Choice (b) requires you to spend money out of pocket, but increases productivity and future profits. If the benefits of choice (b) exceed the costs of choice (b), then choice (b) is the right decision, regardless of what the old equipment cost. Why? Because historical cost is irrelevant.
I've also seen people trying to make investment decisions who can't accept that reality. You tell them that they can make more by selling investment A (which they bought for $X and now is worth $Y less) and putting money into investment B. If their response is "But I paid $X for Investment A and if I sell it I have a $Y loss," then they don't get it. They already have a loss of $Y. Their only choice is when they are going to realize it. (I'm using the word "realize" in both the tax sense and the cognitive sense.)
It is very therefore very disturbing to see the same mistake applied to our continuing military presence in Iraq. The human lives that have been lost or damaged in Iraq, which is part of the price of "blood and treasure" that we have paid for our military adventure in Iraq, is being promoted as a reason to stay in Iraq.
For example, in one of the pro-war ads that have been running on television from "Freedom's Watch" a soldier who has lost both legs in Iraq says "I know what I lost. And I also know that if we pull out [of Iraq] now, everything that I have given and sacrificed will be mean nothing."
And President Bush has stated that "under his watch" he will "never allow our youngsters to die in vain" in Iraq. (4/13/2004) After the U.S. military death toll reached 3,000 in Iraq, the White House announced that President Bush "will ensure their sacrifice was not made in vain." (CNN 1/3/2007) At Fort Benning, the President declared that "it is important for us to succeed [in Iraq] so that comrades would not have died in vain." (1/11/2007)
A Google search of "Iraq vain site:www.whitehouse.gov" turns up about 93 hits, so these are not isolated slips of the tongue, but part of a deliberate public relations effort that relies on emotion and not reason or results.
The plea to leave more soldiers in harm's way, ensuring that more will be killed or injuried, merely because others have already been killed or injured, is a failure to recognize that historical cost is irrelevant. In deciding whether to send people into battle, the only relevant question is whether risking more lives is justified by the possible future benefit. The number of lives that have been spent in the past is, in the hard calculus of reality, unimportant.
Am I equating human lives with financial costs? Yes. Money spent is money gone. And dead is dead. Someone doesn't become less dead (or less maimed) just by spending more lives.
The President owes a debt to the living to spend their lives wisely, not a debt to the dead to justify their deaths.
Novak Keeps a Secret
Robert Novak, who publicly disclosed that Ambassador Joseph Wilson's wife, Valerie Pflame, was a CIA agent, and so helped the Bush Administration's efforts to undermine Wilson's criticism of the rationales for the invasion of Iraq, can keep a secret it seems. In his column in the August 30 Washington Post, Novak wrote:
And he tells us this after more than six years?
So the identity of a CIA agent gets disclosed immediately, but the incompetence of the man serving as White House Counsel to the President, and later Attorney General of the United States, should be kept a secret?
Perhaps this is something that Novak should have mentioned when those "several Republican Senators" were about to confirm Gonzales as Attorney General.
I first met Gonzales in 2001 when, along with other conservative journalists, I went to the White House for a background briefing by presidential counsel Gonzales on the new president's judicial nominations. I was stunned by the incoherence of the briefer. When I checked with several Republican senators, I received the same verdict. Their judgment was that Gonzales was not qualified to hold a senior governmental position.
And he tells us this after more than six years?
So the identity of a CIA agent gets disclosed immediately, but the incompetence of the man serving as White House Counsel to the President, and later Attorney General of the United States, should be kept a secret?
Perhaps this is something that Novak should have mentioned when those "several Republican Senators" were about to confirm Gonzales as Attorney General.
Tuesday, August 28, 2007
All the President's Enablers
With Alberto Gonzales now gone, Karl Rove gone, and most of the others who came to Washington with Bush also gone (e.g., Harriet Myers, Donald Rumsfeld, Daniel Bartlett, and Andrew Card, to name a few), who is going to continue to tell President Bush what he wants to hear?
Both in his public speeches and in published accounts of more private conversations (such as are recounted in Woodward's State of Denial), the President consistently presents himself as locked into his view of reality, indifferent to facts contradicting those views, and unappreciative of those who wish to present those adverse facts and alternate views.
George W. Bush has spent most of his career cultivating a dependable stable of sycophants and replacing them now may be difficult because, believe it or not, a successful career in politics and government service usually requires having some independent judgment. So, finding people who are (a) qualified, (b) willing to mindlessly support the President's tunnel visions, (c) likely to be confirmed by the Senate, is not going to be easy.
So Bush is going to have to begin dealing with bad news and conflicting views from new appointees within his administration. Either that, or he will further isolate himself from real political issues and make himself even more irrelevant than the usual lame duck President.
My guess is that it will be the latter, and I simply hope he doesn't hurt more people (such as American troops in Iraq) than he really needs to while he remains fixated in his righteousness.
Both in his public speeches and in published accounts of more private conversations (such as are recounted in Woodward's State of Denial), the President consistently presents himself as locked into his view of reality, indifferent to facts contradicting those views, and unappreciative of those who wish to present those adverse facts and alternate views.
George W. Bush has spent most of his career cultivating a dependable stable of sycophants and replacing them now may be difficult because, believe it or not, a successful career in politics and government service usually requires having some independent judgment. So, finding people who are (a) qualified, (b) willing to mindlessly support the President's tunnel visions, (c) likely to be confirmed by the Senate, is not going to be easy.
So Bush is going to have to begin dealing with bad news and conflicting views from new appointees within his administration. Either that, or he will further isolate himself from real political issues and make himself even more irrelevant than the usual lame duck President.
My guess is that it will be the latter, and I simply hope he doesn't hurt more people (such as American troops in Iraq) than he really needs to while he remains fixated in his righteousness.
Friday, July 20, 2007
Chimera Cheney
Everyone has already made fun of Vice President Cheney's claim that he is not part of the executive branch of the government, and so not subject to any oversight in how his office deals with classified information, even while claiming "executive privilege" in refusing to provide documents subpoenaed by Congress. (My favorite comment was that Cheney had taken refuge in an undisclosed location of the Constitution.)
One further point: If Cheney is not part of the executive branch, what was he doing with classified documents belonging to the executive branch? Perhaps he should return them. (And as soon as possible.)
One further point: If Cheney is not part of the executive branch, what was he doing with classified documents belonging to the executive branch? Perhaps he should return them. (And as soon as possible.)
Monday, July 16, 2007
Why "Plan" is a Four-Letter Word
To the Bush administration, "plan" is a four-letter word.
Appearing on Sunday morning talk shows yesterday, national security advisor Stephen J. Hadley, said the following about a proposal by two leading Republican Senators to require President Bush to prepare and submit a plan to begin limiting the role of American forces in Iraq.
That's right, we should not even think about what we should do after "the surge" until the surge is more than half over.
The surge will be more than half over in September because, according to recent news reports, the American forces will face another crisis next April when they will either have to (a) start withdrawing troops and reducing troop levels or (b) further extend already-extended tours of duty for the American soldiers in Iraq. The surge began last February and will end next April, so once we are allowed to start thinking in September, we have less than six months to come up with a plan before reality starts making plans for us.
It is no coincidence that it was an incompetent lack of planning that resulted in the mess that is now Iraq, because we invaded Iraq without a clear plan for how to govern the country once we toppled Saddam Hussein. And there has been an appalling lack of planning in the recent "surge" in Iraq. The claim was that, with additional troops, we could "clear and hold" neighborhoods in Bagdhad. But then what? American troops had cleared cities of insurgents before, turned the cities over to Iraqi forces, and then watched insurgents return. What was going to be different this time?
That is the most curious and bothersome part of the current surge. It's not that the President has no plan for what to do if the military surge fails, but that he has no plan for what to do if our military succeeds. According to the administration's own progress report on the 18 Iraqi "benchmarks," Iraq has provided three brigades to "support Baghdad operations" (we're not even going to pretend that the Iraqis can control their own capital city) but that "manning levels for the deployed Iraqi units continue to be of concern," probably because as many as half the Iraqi troops don't show up when they're supposed to. And that's one of the benchmarks in which the administration claims "satisfactory progress." Most of the important political benchmarks show no progress at all. So American troops are working (and dying) to turn over a secure Baghdad to a dysfunctional Iraqi army led by a dysfunctional Iraqi government.
The history of the conflict in Iraq has been a history of vague optimism. This administration not only doesn't need any plans, they don't even want to have plans, because if they had a specific plan and it didn't work, they might be held accountable. But if all they predict is "progress" without specifics, they can continue to claim that progress is being made, or that there is still a pontential for progress, without ever having to make an actual decision about what to do in Iraq.
Gen. Peter Pace (and others) have said that hope is not a plan. If they said that to the Commander-in-Chief, he either didn't hear it or didn't want to hear it.
Meanwhile, let's all stop thinking until at least September.
Appearing on Sunday morning talk shows yesterday, national security advisor Stephen J. Hadley, said the following about a proposal by two leading Republican Senators to require President Bush to prepare and submit a plan to begin limiting the role of American forces in Iraq.
"They’ve done a useful service in indicating the kinds of things that we should be thinking about, but the time to begin that process is September."
That's right, we should not even think about what we should do after "the surge" until the surge is more than half over.
The surge will be more than half over in September because, according to recent news reports, the American forces will face another crisis next April when they will either have to (a) start withdrawing troops and reducing troop levels or (b) further extend already-extended tours of duty for the American soldiers in Iraq. The surge began last February and will end next April, so once we are allowed to start thinking in September, we have less than six months to come up with a plan before reality starts making plans for us.
It is no coincidence that it was an incompetent lack of planning that resulted in the mess that is now Iraq, because we invaded Iraq without a clear plan for how to govern the country once we toppled Saddam Hussein. And there has been an appalling lack of planning in the recent "surge" in Iraq. The claim was that, with additional troops, we could "clear and hold" neighborhoods in Bagdhad. But then what? American troops had cleared cities of insurgents before, turned the cities over to Iraqi forces, and then watched insurgents return. What was going to be different this time?
That is the most curious and bothersome part of the current surge. It's not that the President has no plan for what to do if the military surge fails, but that he has no plan for what to do if our military succeeds. According to the administration's own progress report on the 18 Iraqi "benchmarks," Iraq has provided three brigades to "support Baghdad operations" (we're not even going to pretend that the Iraqis can control their own capital city) but that "manning levels for the deployed Iraqi units continue to be of concern," probably because as many as half the Iraqi troops don't show up when they're supposed to. And that's one of the benchmarks in which the administration claims "satisfactory progress." Most of the important political benchmarks show no progress at all. So American troops are working (and dying) to turn over a secure Baghdad to a dysfunctional Iraqi army led by a dysfunctional Iraqi government.
The history of the conflict in Iraq has been a history of vague optimism. This administration not only doesn't need any plans, they don't even want to have plans, because if they had a specific plan and it didn't work, they might be held accountable. But if all they predict is "progress" without specifics, they can continue to claim that progress is being made, or that there is still a pontential for progress, without ever having to make an actual decision about what to do in Iraq.
Gen. Peter Pace (and others) have said that hope is not a plan. If they said that to the Commander-in-Chief, he either didn't hear it or didn't want to hear it.
Meanwhile, let's all stop thinking until at least September.
Saturday, June 23, 2007
Shinseki Was Right
Even as discussion continues over whether the "surge" of troops in Iraq will succeed, a central truth is overlooked: General Shinseki was right.
In 2003, before the invasion of Iraq, General Eric Shinseki testified before Congress and was asked about the troop levels needed to maintain order in Iraq after an invasion, and he replied that "several hundred thousand" troops would be needed.
This estimate was immediately ridiculed by (among others) Secretary of Defense Donald Rumsfeld and Deputy Secretary Paul Wolfowitz. But Shinseki's estimate was not based on the same kind of wishful thinking (or denial of reality) that dominated Rumsfeld's administration, but was based on military history. And, as it turned out, he was right. The troop levels planned for post-invasion Iraq were not sufficient.
And Shinseki is still right. Adding 20,000 troops in a "surge" does not produce the "several hundred thousand" needed to maintain security in Iraq. Talk about tactics and strategies can't overcome the fact that there simply aren't enough troops there, and there never have been and never will be.
Only when the Bush administration understands that reality will there be any hope for progress in Iraq.
In 2003, before the invasion of Iraq, General Eric Shinseki testified before Congress and was asked about the troop levels needed to maintain order in Iraq after an invasion, and he replied that "several hundred thousand" troops would be needed.
This estimate was immediately ridiculed by (among others) Secretary of Defense Donald Rumsfeld and Deputy Secretary Paul Wolfowitz. But Shinseki's estimate was not based on the same kind of wishful thinking (or denial of reality) that dominated Rumsfeld's administration, but was based on military history. And, as it turned out, he was right. The troop levels planned for post-invasion Iraq were not sufficient.
And Shinseki is still right. Adding 20,000 troops in a "surge" does not produce the "several hundred thousand" needed to maintain security in Iraq. Talk about tactics and strategies can't overcome the fact that there simply aren't enough troops there, and there never have been and never will be.
Only when the Bush administration understands that reality will there be any hope for progress in Iraq.
Tuesday, June 05, 2007
Punishments Imposed
Today, a federal judge imposed a sentence of 30 months in prison for Lewis "Scooter" Libby, former chief of staff for Vice President Dick Cheney, for lying to federal investigators and obstructing the investigation into leaks of the identity of a CIA agent, Valeria Pflame, whose husband published reports critical of the Bush administration's intelligence about Iraq's "weapons of mass destruction."
In related news, the American people were sentenced to 19 more months of the Bush administration.
In related news, the American people were sentenced to 19 more months of the Bush administration.
Saturday, June 02, 2007
Iraqi Exports
The recent fighting between the Lebanese army and armed insurgents who had been trained and fought in Iraq demonstrates that Iraq is indeed exporting terrorists, exactly as predicted by last year's National Intelligence Estimate.
So what to do?
The easiest way for America to stop the violence in Iraq, and so stop the breeding of new terrorists, is for us to stop fighting.
That's right. We should give up and go home.
Without an enemy to fight, the insurgents will have no reason to make more bombs and no reason to train new fighters. And how will they recruit new fighters if there is no enemy to fight? No new terrorists means that there will be no terrorists to export. Problem solved.
But could Iraq then become another pre-9/11 Afghanistan, controlled by anti-American terrorists who use the country as a base of operations? Possible, but not likely.
Exactly who we're fighting in Iraq is not always clear, but the insurgents attacking U.S. troops seem to belong to a number of different groups that want the United States out of Iraq in particular and the middle east in general. One of those groups is Al Qaeda, but that doesn't mean that all insurgents are Al Qaeda. There are other groups just as opposed to the U.S. presence in Iraq who are also just as opposed to Al Qaeda, and would probably be working to oust Al Qaeda from Iraq if they didn't hate the U.S. even more.
So take the U.S. forces out of the picture, and what happens? Conventional "wisdom" (brought to us by the same people who have been wrong about everything in Iraq) is that, in the absence of the American military, the insurgents will begin using Iraq and a base for terrorism (which they are already doing). But it is also just as likely that, without a common enemy to fight, the differing goals of foreign (Al Qaeda/international) insurgents and native (nationalist) insurgents would rise to the surface, and the native insurgents would begin trying to drive the foreigners from their country.
Fanaticism is redoubling your efforts when you've forgotten your goal and, by that measure, the Bush administration is fanatical. If the goal is to defend the United States against global terrorism, then continuing military efforts in Iraq is exactly the wrong thing to do. By invading a middle eastern country, we gave Al Qaeda the kind of war it wanted. We created a jihad for them, because they are now defending a Muslim country against infidels. And we gave them a war they can win, because they can use guerrilla tactics against a conventional army. By continuing to fight in Iraq, we are strengthening Al Qaeda, not weakening it.
When continuing to fight simply makes things worse, you finally have to ask if the solution is not more troops but fewer troops. The real question is not "how can we win in Iraq" but "how can we win the war on global terror," and to the second question the answer is to begin withdrawing American forces from Iraq.
So what to do?
The easiest way for America to stop the violence in Iraq, and so stop the breeding of new terrorists, is for us to stop fighting.
That's right. We should give up and go home.
Without an enemy to fight, the insurgents will have no reason to make more bombs and no reason to train new fighters. And how will they recruit new fighters if there is no enemy to fight? No new terrorists means that there will be no terrorists to export. Problem solved.
But could Iraq then become another pre-9/11 Afghanistan, controlled by anti-American terrorists who use the country as a base of operations? Possible, but not likely.
Exactly who we're fighting in Iraq is not always clear, but the insurgents attacking U.S. troops seem to belong to a number of different groups that want the United States out of Iraq in particular and the middle east in general. One of those groups is Al Qaeda, but that doesn't mean that all insurgents are Al Qaeda. There are other groups just as opposed to the U.S. presence in Iraq who are also just as opposed to Al Qaeda, and would probably be working to oust Al Qaeda from Iraq if they didn't hate the U.S. even more.
So take the U.S. forces out of the picture, and what happens? Conventional "wisdom" (brought to us by the same people who have been wrong about everything in Iraq) is that, in the absence of the American military, the insurgents will begin using Iraq and a base for terrorism (which they are already doing). But it is also just as likely that, without a common enemy to fight, the differing goals of foreign (Al Qaeda/international) insurgents and native (nationalist) insurgents would rise to the surface, and the native insurgents would begin trying to drive the foreigners from their country.
Fanaticism is redoubling your efforts when you've forgotten your goal and, by that measure, the Bush administration is fanatical. If the goal is to defend the United States against global terrorism, then continuing military efforts in Iraq is exactly the wrong thing to do. By invading a middle eastern country, we gave Al Qaeda the kind of war it wanted. We created a jihad for them, because they are now defending a Muslim country against infidels. And we gave them a war they can win, because they can use guerrilla tactics against a conventional army. By continuing to fight in Iraq, we are strengthening Al Qaeda, not weakening it.
When continuing to fight simply makes things worse, you finally have to ask if the solution is not more troops but fewer troops. The real question is not "how can we win in Iraq" but "how can we win the war on global terror," and to the second question the answer is to begin withdrawing American forces from Iraq.
Sunday, May 20, 2007
Moral Relativism
This past week saw a strange juxtaposition of events.
Religious leader Jerry Falwell died on Tuesday. One of the early leaders of the so-called "Moral Majority," Falwell was mourned by (among others) Pat Robertson, who said that his "courage and strength of convictions will be sadly missed in this time of increasing moral relativism." In addressing the graduating class of Liberty University, which was founded by Falwell, former House Speaker (and possible Republican candidate) Newt Gingrich asked them to honor Falwell by confronting the "growing culture of radical secularism."
Meanwhile, the second Republican Presidential "debate" was held on Wednesday, and the 10 candidates were asked about a very theatrical (and highly unlikely) "24"-like scenario in which our nation is attacked by terrorists, more attacks are believed to be imminent, and some terrorists are captured. How "aggresively" should the captured terrorists be interrogated.
The first to answer was John McCain, himself a former prisoner of war who was interrogated "aggressively" during his years in captivity. He rejected the use of torture and gave the moral answer: "It's not about the terrorists, it's about us. It's about what kind of country we are." His answer was greeted by the audience with stony silence.
Taking their cue from the Republican base in the audience, the other nine candidates quickly advocated whatever was needed to get answers, and were rewarded with applause. Rudy Giuliani said that "I would tell the people who had to do the interrogation to use every method they could think of. Shouldn't be torture, but every method they can think of," specifically including waterboarding, which is universally regarded to be a form of torture. (In other words, Giuliani doesn't want to use torture, but gets to define the meaning of the word "torture.")
Mitt Romney expressed gratitude for the legal black hole that is Guantanamo. "I'm glad they're at Guantanamo. ... I want them in Guantanamo where they don't get the access to lawyers they get when they're on our soil. ... Some people have said we ought to close Guantanamo. My view is, we ought to double Guantanamo."
California Rep. Duncan Hunter: "Let me just say, this would take a one-minute conversation with the secretary of defense. I would call him up or call him in, I would say to SecDef, in terms of getting information that would save American lives even if it involves very high-pressure techniques, one sentence: 'Get the information.'"
In other words, forget the teachings of Jesus, the "Golden Rule," and "turning the other cheek." Apply physical and mental pain if you need to in order to get what you think you need. If that isn't "moral relativism" and "radical secularism," what is?
The first task of the graduates of Liberty University should be to confront the hypocrisy of the Republican Party.
Religious leader Jerry Falwell died on Tuesday. One of the early leaders of the so-called "Moral Majority," Falwell was mourned by (among others) Pat Robertson, who said that his "courage and strength of convictions will be sadly missed in this time of increasing moral relativism." In addressing the graduating class of Liberty University, which was founded by Falwell, former House Speaker (and possible Republican candidate) Newt Gingrich asked them to honor Falwell by confronting the "growing culture of radical secularism."
Meanwhile, the second Republican Presidential "debate" was held on Wednesday, and the 10 candidates were asked about a very theatrical (and highly unlikely) "24"-like scenario in which our nation is attacked by terrorists, more attacks are believed to be imminent, and some terrorists are captured. How "aggresively" should the captured terrorists be interrogated.
The first to answer was John McCain, himself a former prisoner of war who was interrogated "aggressively" during his years in captivity. He rejected the use of torture and gave the moral answer: "It's not about the terrorists, it's about us. It's about what kind of country we are." His answer was greeted by the audience with stony silence.
Taking their cue from the Republican base in the audience, the other nine candidates quickly advocated whatever was needed to get answers, and were rewarded with applause. Rudy Giuliani said that "I would tell the people who had to do the interrogation to use every method they could think of. Shouldn't be torture, but every method they can think of," specifically including waterboarding, which is universally regarded to be a form of torture. (In other words, Giuliani doesn't want to use torture, but gets to define the meaning of the word "torture.")
Mitt Romney expressed gratitude for the legal black hole that is Guantanamo. "I'm glad they're at Guantanamo. ... I want them in Guantanamo where they don't get the access to lawyers they get when they're on our soil. ... Some people have said we ought to close Guantanamo. My view is, we ought to double Guantanamo."
California Rep. Duncan Hunter: "Let me just say, this would take a one-minute conversation with the secretary of defense. I would call him up or call him in, I would say to SecDef, in terms of getting information that would save American lives even if it involves very high-pressure techniques, one sentence: 'Get the information.'"
In other words, forget the teachings of Jesus, the "Golden Rule," and "turning the other cheek." Apply physical and mental pain if you need to in order to get what you think you need. If that isn't "moral relativism" and "radical secularism," what is?
The first task of the graduates of Liberty University should be to confront the hypocrisy of the Republican Party.
Thursday, April 26, 2007
The Power of Darkness
In an earlier posting ("Guantanamo and Legal Ethics"), I commented on the efforts of a Pentagon official, Charles D. Stimson, to limit the legal representation of the prisoners at Guantamo Bay by attempting to intimidate their lawyers. (I only recently learned that, as a result of the uproar over Stimnson's remarks, he resigned on February 2. And, according to an Associated Press story on the same day, the Bar Association of San Francisco asked the California State Bar to investigate whether Stimson violated legal ethics in his remarks.)
Now, the Bush administration is making a more direct assault on the lawyers, but seeking a court order limiting their access to their clients, both in their meetings with their clients and in their written communications with their clients (which will be read and censored).
This action appears to be the result of the wave of appeals now being filed in the DC Circuit by detainees. So far this year, there have been 14 appeals filed from "Combatant Status Review Tribunals," all of which have been filed since mid-March. There have also been 8 habeas corpus petitions filed, all since the beginning of February.
According to a story in today's New York Times, the filings by the administration include an affidavit from a Navy lawyer at Guantanamo, Cmdr. Patrick M. McCarthy, who alleged that lawyers for the detainees have been providing the detainees with information about events outside of the Guantánamo Bay military base, such as a speech at an Amnesty International conference and information about more recent terrorist attacks. The affidavit states that "Such information threatens the security of the camp, as it could incite violence among the detainees."
Exactly why or how such information could "incite violence" is not explained, but the obvious explanation is that the information gives the detainees hope.
Hope is what leads people to rebel. If you can hope to be free, then you can continue to struggle against your captors. But if you have no hope of ever being free, or ever being allowed to communicate with your family again, and there is no possible life other than eating and sleeping in isolation in a concrete cell, then there is no hope, and perhaps no reason to live.
And that is the goal of the Bush administration. They don't want merely to imprison the bodies of the detainees; they want to crush their spirits, and the way to crush their spirits is to keep them in darkness.
Now, the Bush administration is making a more direct assault on the lawyers, but seeking a court order limiting their access to their clients, both in their meetings with their clients and in their written communications with their clients (which will be read and censored).
This action appears to be the result of the wave of appeals now being filed in the DC Circuit by detainees. So far this year, there have been 14 appeals filed from "Combatant Status Review Tribunals," all of which have been filed since mid-March. There have also been 8 habeas corpus petitions filed, all since the beginning of February.
According to a story in today's New York Times, the filings by the administration include an affidavit from a Navy lawyer at Guantanamo, Cmdr. Patrick M. McCarthy, who alleged that lawyers for the detainees have been providing the detainees with information about events outside of the Guantánamo Bay military base, such as a speech at an Amnesty International conference and information about more recent terrorist attacks. The affidavit states that "Such information threatens the security of the camp, as it could incite violence among the detainees."
Exactly why or how such information could "incite violence" is not explained, but the obvious explanation is that the information gives the detainees hope.
Hope is what leads people to rebel. If you can hope to be free, then you can continue to struggle against your captors. But if you have no hope of ever being free, or ever being allowed to communicate with your family again, and there is no possible life other than eating and sleeping in isolation in a concrete cell, then there is no hope, and perhaps no reason to live.
And that is the goal of the Bush administration. They don't want merely to imprison the bodies of the detainees; they want to crush their spirits, and the way to crush their spirits is to keep them in darkness.
Wednesday, March 14, 2007
The "Passive Exonerative"
An article in today's New York Times repeats Attorney General Alberto Gonzales's statement that "mistakes were made" in the recent firings of several U.S. Attorneys, and refers to the statement as a "mea culpa."
A "mea culpa" in the passive voice?
Sorry, but "mea culpa" means "my fault" and you can't have admitted it was your fault when you haven't yet admitted that it was you that made those mistakes. Until someone moves from the passive voice and into the active voice, those mistakes are going to hang in the air without any fault attaching to any person.
Gonzales's biggest "mistake" might be that he forgot to tell his subordinates that they would be reporting to him and taking their orders from him, and not Karl Rove. Or perhaps Gonzales himself didn't know that? In any case, the man who is supposed to be in charge of the Department of Justice cannot provide any consistent, coherent explanation for major personnel changes, and my suspicion is that his ignorance and confusion are not an act.
A "mea culpa" in the passive voice?
Sorry, but "mea culpa" means "my fault" and you can't have admitted it was your fault when you haven't yet admitted that it was you that made those mistakes. Until someone moves from the passive voice and into the active voice, those mistakes are going to hang in the air without any fault attaching to any person.
Gonzales's biggest "mistake" might be that he forgot to tell his subordinates that they would be reporting to him and taking their orders from him, and not Karl Rove. Or perhaps Gonzales himself didn't know that? In any case, the man who is supposed to be in charge of the Department of Justice cannot provide any consistent, coherent explanation for major personnel changes, and my suspicion is that his ignorance and confusion are not an act.
Saturday, March 03, 2007
Criminal Conduct as a "State Secret"
The recent decision of the 4th Circuit Court of Appeals in El-Masri v. Tenet, ___ F.3rd ___, No. 06-1667 (4th Cir. 3/2/2007) is definitely disturbing in its implications, if not its explications.
Briefly, Khaled El-Masri is a German citizen who was allegedly seized in Macedonia, delivered into the custody of the U.S. Central Intelligence Agency, imprisoned by the CIA in Afghanistan, beaten and abused, and finally released in Albania. He was apparently a victim of the U.S. program of secret prisons and "extraordinary rendition" that has been widely reported by the press and finally acknowledged publicly by several top government officials. The essential elements of El-Masri's own account of his abduction and imprisonment have been confirmed by the Council of Europe, and arrest warrants for persons suspected of involvement (who have not been publicly identified) have been issued by a German court.
El-Masri also filed a civil suit in the United States against then-Director of the CIA George Tenet, other named CIA officials, and other unnamed persons responsible for his abduction and mistreatment. El-Masri v. Tenet et al., No. 1:05-cv-01417 (U.S.D.C. E.D. Va.). (Selected court documents can be found through the ACLU.) The United States government immediately intervened and asserted the "state secrets" privilege, which prevents a court from considering a case if state secrets would necessarily be involved. The District Court dismissed the case on those grounds, and now the 4th Circuit Court of Appeals has affirmed.
In his assertion of the state secrets privilege, then-Director of the CIA Porter Goss stated that the civil complaint alleges that the CIA conducted a "clandestine foreign intelligence activity," and that the United States can neither confirm nor deny those allegations without disclosing classified intelligence source and methods. Goss further stated that, because of the allegations of CIA involvement, "parties in this case have a special incentive to probe the CIA's foreign intelligence interests, authorities, and methods generally, and seek information and evidence to establish or refute claims and defenses." The nature of the interests, authorities, methods, or defenses that might be exposed by the litigation is not disclosed in the record, but were described in a "classified declaration" reviewed only by the judge in the District Court, and by the three judges who heard the appeal in the 4th Circuit.
What is disturbing about the claim of Director Goss, and the opinion of the 4th Circuit, is that the legality or criminality of the activities of the CIA have nothing to do with whether the state secrets privilege should apply. The 4th Circuit acknowledged that El-Masri challenged whether the state secrets doctrine should apply in cases of "egregious executive misconduct," and it's response is very unsatisfying. The court rejected the concept that the judiciary "possess a roving writ to ferret out and strike down executive excess," and explained that the courts have a "more modest role," which is to "simply decide cases and controversies." According to the 4th Circuit, the courts can impose liability against an executive officer "in a properly conducted judicial proceeding," but "we would be guilty of excess in our own right if we were to disregard settled legal principles in order to reach the merits on an executive act that would not otherwise be before us." This is circular, internally inconsistent, and evasive.
It is circular because the El-Masri was not asking the court to do anything but decide the case in front of it, and the court's response says little more than that the court has to dismiss the case because the court has to dismiss the case.
It is internally inconsistent, because the court claims to "simply decide cases" and implicitly rejects the idea that it should take into account broader public policy considerations even while dismissing the case under a doctrine that is based on broader public policy considerations.
Finally, the court is being evasive because it fails to address the actual issue raised by El-Masri, which is whether the application of the state secrets privilege to activities which appear to be unlawful on their face is a "settled legal principle." All of the precedents cited by the court seem to involve cases in which the alleged actions of the government might or might not have been legal, but are there any possible defenses to what is alleged to have occurred?
The heart of the complaint against George Tenet is that, as Director of the CIA, he approved a program of extra-legal seizures, transportations, and detentions of persons in violation of the laws of the United States and international law. The 4th Circuit claimed that, in order to succeed in that claim, El-Masri "would be obliged to show in detail how the head of the CIA participates in such [sensitive intelligence] operations, and how information concerning their progress is relayed to him." But is that true? That would be true if the question were whether Tenet was negligent in some way, or whether he was aware of El-Masri's circumstances in particular, but in this case the question is whether Tenet approved a particular program, the existence of which is already public knowledge, and it should be relatively simple to either or confirm deny that fact. And if Tenet approved an unlawful program, then he would be legally responsible for the results of that program whether or not he knew anything about El-Masri individually.
The only imaginable way that an investigation into Tenet's liability might be invasive, and so risk state secrets, is if the program he approved were legal or the harm to El-Masri were not foreseeable, in which case it would be necessary to disclose the details of the program in order to judge whether or not Tenet should be responsible for what happened to El-Masri. Is such a defense really possible? Is it really possible that our government can officially, regularly, and secretly seize people without any arrest or other judicial approval, imprison them, and abuse them without violating any law?
Unfortunately, we don't know what issues were raised in the classified declaration, and the 4th Circuit admits that is "no doubt frustrating" that the exact reasons for the court's opinion are classified. It is even more frustrating to learn that the CIA has been imprisoning and abusing people and there has been, and will be, no judicial restraint, no oversight, and no legal consequences.
Two final notes:
Whether or not the government has the raw extra-legal power to do what it did and get away with it, there is still the moral issue of whether or not the government should compensate El-Masri for his sufferings at our hands. There is no reason to believe that the Bush administration has ever considered, or will ever consider, this issue, despite its claims of Christianity and morality.
There are a number of differences defenses that the Bush administration could have asserted to the El-Masri complaint, including whether or not the complaint even states a cause of action against the government even if what the complaint alleges is true. (It is not clear to me whether a court would assert civil liability against a government official for actions taken outside of the United States in the absence of clear legal authority, which I'm not sure exists.) The Bush administration chose to assert the defense that resulted in the most governmental secrecy and the most Presidential power, and this is consistent with most decisions of the Bush administration.
Briefly, Khaled El-Masri is a German citizen who was allegedly seized in Macedonia, delivered into the custody of the U.S. Central Intelligence Agency, imprisoned by the CIA in Afghanistan, beaten and abused, and finally released in Albania. He was apparently a victim of the U.S. program of secret prisons and "extraordinary rendition" that has been widely reported by the press and finally acknowledged publicly by several top government officials. The essential elements of El-Masri's own account of his abduction and imprisonment have been confirmed by the Council of Europe, and arrest warrants for persons suspected of involvement (who have not been publicly identified) have been issued by a German court.
El-Masri also filed a civil suit in the United States against then-Director of the CIA George Tenet, other named CIA officials, and other unnamed persons responsible for his abduction and mistreatment. El-Masri v. Tenet et al., No. 1:05-cv-01417 (U.S.D.C. E.D. Va.). (Selected court documents can be found through the ACLU.) The United States government immediately intervened and asserted the "state secrets" privilege, which prevents a court from considering a case if state secrets would necessarily be involved. The District Court dismissed the case on those grounds, and now the 4th Circuit Court of Appeals has affirmed.
In his assertion of the state secrets privilege, then-Director of the CIA Porter Goss stated that the civil complaint alleges that the CIA conducted a "clandestine foreign intelligence activity," and that the United States can neither confirm nor deny those allegations without disclosing classified intelligence source and methods. Goss further stated that, because of the allegations of CIA involvement, "parties in this case have a special incentive to probe the CIA's foreign intelligence interests, authorities, and methods generally, and seek information and evidence to establish or refute claims and defenses." The nature of the interests, authorities, methods, or defenses that might be exposed by the litigation is not disclosed in the record, but were described in a "classified declaration" reviewed only by the judge in the District Court, and by the three judges who heard the appeal in the 4th Circuit.
What is disturbing about the claim of Director Goss, and the opinion of the 4th Circuit, is that the legality or criminality of the activities of the CIA have nothing to do with whether the state secrets privilege should apply. The 4th Circuit acknowledged that El-Masri challenged whether the state secrets doctrine should apply in cases of "egregious executive misconduct," and it's response is very unsatisfying. The court rejected the concept that the judiciary "possess a roving writ to ferret out and strike down executive excess," and explained that the courts have a "more modest role," which is to "simply decide cases and controversies." According to the 4th Circuit, the courts can impose liability against an executive officer "in a properly conducted judicial proceeding," but "we would be guilty of excess in our own right if we were to disregard settled legal principles in order to reach the merits on an executive act that would not otherwise be before us." This is circular, internally inconsistent, and evasive.
It is circular because the El-Masri was not asking the court to do anything but decide the case in front of it, and the court's response says little more than that the court has to dismiss the case because the court has to dismiss the case.
It is internally inconsistent, because the court claims to "simply decide cases" and implicitly rejects the idea that it should take into account broader public policy considerations even while dismissing the case under a doctrine that is based on broader public policy considerations.
Finally, the court is being evasive because it fails to address the actual issue raised by El-Masri, which is whether the application of the state secrets privilege to activities which appear to be unlawful on their face is a "settled legal principle." All of the precedents cited by the court seem to involve cases in which the alleged actions of the government might or might not have been legal, but are there any possible defenses to what is alleged to have occurred?
The heart of the complaint against George Tenet is that, as Director of the CIA, he approved a program of extra-legal seizures, transportations, and detentions of persons in violation of the laws of the United States and international law. The 4th Circuit claimed that, in order to succeed in that claim, El-Masri "would be obliged to show in detail how the head of the CIA participates in such [sensitive intelligence] operations, and how information concerning their progress is relayed to him." But is that true? That would be true if the question were whether Tenet was negligent in some way, or whether he was aware of El-Masri's circumstances in particular, but in this case the question is whether Tenet approved a particular program, the existence of which is already public knowledge, and it should be relatively simple to either or confirm deny that fact. And if Tenet approved an unlawful program, then he would be legally responsible for the results of that program whether or not he knew anything about El-Masri individually.
The only imaginable way that an investigation into Tenet's liability might be invasive, and so risk state secrets, is if the program he approved were legal or the harm to El-Masri were not foreseeable, in which case it would be necessary to disclose the details of the program in order to judge whether or not Tenet should be responsible for what happened to El-Masri. Is such a defense really possible? Is it really possible that our government can officially, regularly, and secretly seize people without any arrest or other judicial approval, imprison them, and abuse them without violating any law?
Unfortunately, we don't know what issues were raised in the classified declaration, and the 4th Circuit admits that is "no doubt frustrating" that the exact reasons for the court's opinion are classified. It is even more frustrating to learn that the CIA has been imprisoning and abusing people and there has been, and will be, no judicial restraint, no oversight, and no legal consequences.
Two final notes:
Whether or not the government has the raw extra-legal power to do what it did and get away with it, there is still the moral issue of whether or not the government should compensate El-Masri for his sufferings at our hands. There is no reason to believe that the Bush administration has ever considered, or will ever consider, this issue, despite its claims of Christianity and morality.
There are a number of differences defenses that the Bush administration could have asserted to the El-Masri complaint, including whether or not the complaint even states a cause of action against the government even if what the complaint alleges is true. (It is not clear to me whether a court would assert civil liability against a government official for actions taken outside of the United States in the absence of clear legal authority, which I'm not sure exists.) The Bush administration chose to assert the defense that resulted in the most governmental secrecy and the most Presidential power, and this is consistent with most decisions of the Bush administration.
Friday, February 02, 2007
Trolling II
According to an article in today's NY Times (2/2/2007), President Bush will be asking Congress to cut Medicare and Medicaid spending by $60 billion over the next five years. The article notes that Bush had sought $40 billion in cuts two years ago and Congress failed to enact most of his requests even though Republicans had a majority in both houses of Congress. So Bush thinks he can get larger cuts in two popular social welfare programs now that the Democrats have majorities?
Congressman Charles Rangel (D-NY), who is now the chair of the tax-writing House Ways and Means Committee, put it very succinctly: “There is a large area for potential compromise and agreement, but with these latest Medicare proposals, the president is just asking for controversy.”
"Just asking for controversy" defines a troll very well.
Congressman Charles Rangel (D-NY), who is now the chair of the tax-writing House Ways and Means Committee, put it very succinctly: “There is a large area for potential compromise and agreement, but with these latest Medicare proposals, the president is just asking for controversy.”
"Just asking for controversy" defines a troll very well.
Tuesday, January 23, 2007
Is George Bush a Troll?
In the Internet community, a "troll" is a person (or a message) that does nothing but annoy, disrupt, or provoke an online discussion. Trolls are not interested in sharing points of view, convincing others of their point of view, or even providing factual information, but simply want to send out messages that are deliberately annoying or insulting in order to provoke flame wars, disrupt conversations, or simply for the pleasure of seeing what kind of disruptions they can cause. Although the origin of the usage might lie in a way of catching fish, trolls are also like the hairy, ugly creatures of fairy tales because they are mischievous at best and malicious at worst.
In President Bush's most recent radio address (1/20/2007), and in the State of the Union Address he is expected to give tonight (1/23/2007), he has proposed (or is about to propose) to address the problem of health care in the United States through (a) income tax deductions for health insurance premiums and (b) imposing income taxes on "excessive" health insurance benefits. The first proposal is largely meaningless except as a tax break for the rich, but the second proposal is simply ridiculous and, taken together, the two proposals look like a troll.
The first proposal is largely meaningless because most of the people who now have no health insurance also pay no income tax because their incomes are within the standard deduction and personal exemptions. Giving them a tax incentive is buy health insurance shows a total disconnect from reality. So the only people helped by the proposal are the upper middle class who are already paying for health insurance and will benefit from the tax deduction.
The second proposal is ridiculous, because it is based on the idea that it is possible to have too much health insurance. One of the bizarre delusions of a handful of conservatives is that health care costs are rising in part because health insurance encourages people to use more of the health care system resources than they really need, and that there really are people who go to the hospital, or go to the doctor, just for fun and not because of any real illness or medical condition.
The worst thing about the second proposal is that it would probably not affect the wealthy, who don't really need health insurance because they can pay for health care needs out of their own funds, but union workers who have been able to negotiate generous health care benefits through collective bargaining. It is, therefore, not a tax increase for the wealthy, but a tax increase for the working class.
Given the present control of both houses of Congress by the Democratic Party, the odds of these proposals being enacted as law are only slightly more than zero. So why propose them? Because Bush is a troll.
The war in a Iraq is a continuing disaster for the United States, and Bush's approval ratings continue downward toward record lows. What better way to distract Congress and the American People than by trying to change the subject.
And an even better distraction is one that might help to inflame idealogical and party differences. If Bush can get Republicans and Democrats (or moderate and conservative Republicans, or moderate and liberal Democrats) fighting over a domestic issue, all the better.
If this were an isolated instance of what looks like a troll, I would agree that I might have become somewhat paranoid. But the Bush administration has often changed the subject, or made what seemed like antagonistic proposals, that seemed to serve no purpose other than creating disruptions. Why talk about a surge in troops in Iraq when the American people have voted to end the war? Why talk about sending a Democratic Congress re-nominations of federal judges who have already been blocked by a Democratic minority? Why talk about more tax cuts when Congress and the voters are expressing concern about enormous deficits?
There may be complicated political reasons for these actions, but it sure looks like plain and simple trolling.
In President Bush's most recent radio address (1/20/2007), and in the State of the Union Address he is expected to give tonight (1/23/2007), he has proposed (or is about to propose) to address the problem of health care in the United States through (a) income tax deductions for health insurance premiums and (b) imposing income taxes on "excessive" health insurance benefits. The first proposal is largely meaningless except as a tax break for the rich, but the second proposal is simply ridiculous and, taken together, the two proposals look like a troll.
The first proposal is largely meaningless because most of the people who now have no health insurance also pay no income tax because their incomes are within the standard deduction and personal exemptions. Giving them a tax incentive is buy health insurance shows a total disconnect from reality. So the only people helped by the proposal are the upper middle class who are already paying for health insurance and will benefit from the tax deduction.
The second proposal is ridiculous, because it is based on the idea that it is possible to have too much health insurance. One of the bizarre delusions of a handful of conservatives is that health care costs are rising in part because health insurance encourages people to use more of the health care system resources than they really need, and that there really are people who go to the hospital, or go to the doctor, just for fun and not because of any real illness or medical condition.
The worst thing about the second proposal is that it would probably not affect the wealthy, who don't really need health insurance because they can pay for health care needs out of their own funds, but union workers who have been able to negotiate generous health care benefits through collective bargaining. It is, therefore, not a tax increase for the wealthy, but a tax increase for the working class.
Given the present control of both houses of Congress by the Democratic Party, the odds of these proposals being enacted as law are only slightly more than zero. So why propose them? Because Bush is a troll.
The war in a Iraq is a continuing disaster for the United States, and Bush's approval ratings continue downward toward record lows. What better way to distract Congress and the American People than by trying to change the subject.
And an even better distraction is one that might help to inflame idealogical and party differences. If Bush can get Republicans and Democrats (or moderate and conservative Republicans, or moderate and liberal Democrats) fighting over a domestic issue, all the better.
If this were an isolated instance of what looks like a troll, I would agree that I might have become somewhat paranoid. But the Bush administration has often changed the subject, or made what seemed like antagonistic proposals, that seemed to serve no purpose other than creating disruptions. Why talk about a surge in troops in Iraq when the American people have voted to end the war? Why talk about sending a Democratic Congress re-nominations of federal judges who have already been blocked by a Democratic minority? Why talk about more tax cuts when Congress and the voters are expressing concern about enormous deficits?
There may be complicated political reasons for these actions, but it sure looks like plain and simple trolling.
Saturday, January 13, 2007
Guantanamo and Legal Ethics
Has the top Pentagon official in charge of the treatment of detainees at Guantanamo committed a breach of legal ethics in his comments on the lawyers representing the detainees?
Mr. Stimson then rattled off the names of some of the top law firms in the United States, concluding with:
"We want to watch that play out"? He wants to watch lawyers being pressured to withdraw from representing detainees? He wants to watch lawyers suffer financially for opposing his detention policies?
The insinuation is that many of these lawyers are being funded by terrorists (or terrorist sympathizers) and are either hiding the source of their funding or lying about whether or not they are being paid.
Stimson has therefore not only embarrassed himself and the Bush administration, but he has probably violated the rules of his profession as well. (There is a technical issue as to whether Stimson is "representing a client" in his employment by the federal government, and it would be ironic for him to avoid the application of an ethical rule by what amounts to a technicality.)
On Jan. 11, Charles D. "Cully" Stimson, Deputy Assistant Secretary of Defense, Office of Detainee Affairs, was interviewed on "Federal News Radio," during which he made some remarkable statements:
I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.
Mr. Stimson then rattled off the names of some of the top law firms in the United States, concluding with:
I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.
"We want to watch that play out"? He wants to watch lawyers being pressured to withdraw from representing detainees? He wants to watch lawyers suffer financially for opposing his detention policies?
And it gets worse. He was then asked who might be paying these lawyers, and he replied:
It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.
The insinuation is that many of these lawyers are being funded by terrorists (or terrorist sympathizers) and are either hiding the source of their funding or lying about whether or not they are being paid.
But there is no reason whatsoever to believe that any of these high-priced lawyers have any motive to represent detainees other than their belief in the value of constitutional civil liberties and their professional obligations to the public.
Stimson is a member of the Maryland bar, and the Maryland Rules of Professional Conduct for lawyers say that every lawyer has a "professional responsibility to render pro bono publico legal service." (Md. RPC Rule 6.1(a).) And "pro bono publico legal service" is defined to include the representation of "individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights." (Md. RPC Rule 6.1(b)(1)(C).) Similar provisions appear in the Model Rules of Professional Conduct of the American Bar Association and in the rules adopted by most states. In casting aspersions on the lawyers representing the detainees, Stimson was not only displaying any appalling lack of professional courtesy; he was also disparaging lawyers who were actually complying with the rules of professional ethics and adhering to some of the highest aspirations of the profession, which is to guarantee equal access to justice for all.
Was Stimson trying to embarrass or intimidate the lawyers who are opposing the government in court? If he was, then he may have committed a violation of professional ethics. Rule 4.4(a) of the Maryland Rules of Professional Conduct (which are, once again, similar to the ABA Model Rules) reads in relevant part as follows:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, ...
Stimson has therefore not only embarrassed himself and the Bush administration, but he has probably violated the rules of his profession as well. (There is a technical issue as to whether Stimson is "representing a client" in his employment by the federal government, and it would be ironic for him to avoid the application of an ethical rule by what amounts to a technicality.)
I hope that one of the lawyers for the detainees files an appropriate complaint with the Maryland Office of Lawyer Discipline. I would want to watch that play out.
(For more information on this story, see The New York Times.)
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