The Other Evening News

The Times and John McCain

2008-02-22T13:46:00.001-08:00

Some people involved in McCain’s campaign for President in 2000 spoke to the NY Times on condition of anonymity. They recounted their concern at the time that the senator’s “appearance of a close bond” with lobbyist Vicki Iseman was potentially politically destructive. They outlined the steps they took to distance the candidate from the lobbyist.

According to senator McCain, this one story constitutes a “hit and run smear campaign” by the New York Times. If only he'd been given an opportunity to address this outrageous claim, instead of being shamelessly blind-sided. Oh wait, he was:

“The senator declined repeated interview requests, beginning in December. He also would not comment about the assertions that he had been confronted about Ms. Iseman…”

Well, it’s still simply appalling, Bill Bennett bleated on CNN, that the Times didn’t present any “counter evidence” to the claim (not contained in the article) that McCain always favored interests fronted by Iseman. Except they did:

“[Mark Salter] and Mr. Davis also said Mr. McCain had frequently denied requests from Ms. Iseman and the companies she represented. In 2006, Mr. McCain sought to break up cable subscription packages, which some of her clients opposed. And his proposals for satellite distribution of local television programs fell short of her clients’ hopes.”

Even if the story wasn't deplorable drive-by journalism, everyone in broadcast media zeroed in on the real issue. It's not whether (more) poor judgment by a man who would be president is relevant, it’s about the press and their responsibility to never use unnamed sources, ever, no matter how well their representations can be cross-checked and verified. It is the duty of the press to expose any and all of their sources, and not simply the verifiable facts those sources present, to public scrutiny. After all, its not like these “unnamed individuals” are running for public office and are thereby entitled to a private life!

And the use of unnamed sources is only troubling when it occurs in print. On CNN et.al., the phrases “a source close to the investigation,” “someone familiar with the campaign,” “an official in the pentagon” are in daily use, year in and year out. No blush of shame is ever evident on the face of the reporter who utters one.

Perhaps because CNN has proclaimed itself "the most trusted name in news," no more than the frequent repetition of this catch-phrase is needed to assure us that their unnamed sources are solid and reliable.

Shadow Justice

2008-02-13T11:06:00.000-08:00

Brig. Gen. Thomas Hartmann, Legal Advisor to the Convening Authority in the Department of Defense Office of Military Commissions (to give his full title once), briefed the press on the process to be used to try Khalid Sheikh Mohammed and 5 others by military commission.

Gen. Hartmann took great pains to emphasize how the military commission system closely mirrors civilian and military courts, and that it was thus set up precisely "to ensure that every defendant receives a fair trial, consistent with American standards of justice.”

He enumerated what seemed to be the familiar rights of defendants in criminal proceedings and said that all are afforded to those tried by military commission:

“In the military commission process, every defendant has the following rights. The right to remain silent and to have no adverse inference drawn from it. The right to be represented by detailed military counsel, as well as civilian counsel of his own selection, at no expense to the government. The right to examine all evidence used against him by the prosecution. The right to obtain evidence and to call witnesses on his own behalf, including expert witnesses. The right to cross-examine every witness called by the prosecution. The right to be present during the presentation of evidence. The right to have military commission panel of at least five military members determine his guilt by a two-thirds majority or, in the case of a capital offense, a unanimous decisions of a military commission composed of at least 12 members. The right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court.”

“ We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield and I think we'll all agree are national treasures.”

If military commissions so closely mirror civilian and military judicial proceedings, why not use these proceedings, as was done with the original Twin Towers bombers? Why invent a new system if it essentially duplicates existing ones? When asked this the General was a bit evasive:

“Fundamentally it's because the president of the United States and the Congress of the United States created the Military Commission Act [hereafter ‘MCA’] and determined that that was the appropriate place to proceed with these people.”

In truth, military commissions aren’t so much the mirror of civilian and military courts as their shadow. While utilizing familiar language borrowed from civilian and military justice, the MCA very deliberately walls-off military commissions from civilian and military court proceedings. From initial incarceration to final appeal the military commission process runs in isolation from the rest of American jurisprudence. The detainee in custody is proscribed from seeking a ruling in any American court on the legality of his detention. He is barred from trial in any venue other than a military commission. He is barred from appealing a conviction based on any claim other than that the rules laid down in the MCA for military commissions were not followed.

Unlike defendants’ rights in regular military and civilian courts, the rights of defendants tried by military commission, while meant to echo and evoke familiar constitutional rights, do not find their source in the constitution. Detainees owe such rights as they have to something far more capricious:

“Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial.” (949a (a))

America may be (or have been), as the General reminded us, “a nation of laws and not men” but the world described by the MCA is very much a world of one man. The Secretary of Defense, not the law, not the constitution, has the final say in all matters arising from the conduct of military commissions. That is to say, the nature and extent of every “right” accorded a defendant is the sole discretion of the Secretary. Whether it is proper to describe what may be withdrawn or modified by the Secretary of Defense "as the Secretary considers practicable" a “right” at all is a legitimate question.

But let’s consider the putative rights of detainees in military commissions as listed by General Hartmann:

(1) “The right to remain silent and to have no adverse inference drawn from it.”

In civilian justice, the right to remain silent is a right against self-incrimination. This right, the MCA makes clear, defendants in military commission hearings do not have. 948b(B) of the MCA says those tried by military commission do not have the rights enumerated in the UCMJ, 831, Art. 31: “Compulsory Self-Incrimination Prohibited.” Noteworthy in particular is the inapplicability of article (d): “No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.”

While taking pains to ensure that coerced statements will not be excluded, the MCA prohibits the use of statements obtained by "torture." We know by now that the idiosyncratic definition of “torture” employed means that practices historically considered torture by the US (e.g., waterboarding), and still considered torture by the rest of the world, fail to qualify.

(2) “The right to examine all evidence used against him by the prosecution.”

General Hartmann was most insistent about this right:

“Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal will be reviewed by the accused, subject to confrontation, subject to cross- examination, subject to challenge…”

This is, plain and simple, complete fiction. The MCA makes it perfectly clear that in NO instance are defendants allowed to examine “every stitch…every whiff ” of the classified evidence against them. Under the provisions of section 949j (b) of the MCA the judge may delete classified information from documents given to the defense; or substitute either a non-classified summary of the classified information or a non-classified list of the “relevant facts that the classified information would tend to prove.”

Imagine being a defendant presented with the later. “Classified evidence tends to prove the following facts: (a) That you materially aided terrorists by supplying them with money; (b) That this money was used to purchase explosives; (c) That these same explosives were used in an attack that killed a civilian.” (Which makes this a capital crime). The names, dates and other specifics are withheld because the classified source of the information and vital operational methods might otherwise be identifiable.

Now it’s your turn to “confront,” and “challenge” this evidence against you. Since vital specifics are withheld, specifics which you might well be in a position to challenge, all that remains possible is a general, and so meaningless, denial.

The classified information from which these damning conclusions are drawn may be false. You may, in fact, be in possession of evidence which shows that it is false. But because you will never know the classified information, only some form of non-classified substitute, you can never put the two together in a meaningful “confrontation” of the evidence against you. In this scenario you may be executed based on evidence you could have proven was false, had you truly been able to "confront" it.

The General said he was told classified evidence will play little or no part in these first trials. This may well be so. Why highlight this travesty of justice in the trials that will receive the most public attention?

(3) “The right to obtain evidence and to call witnesses on his own behalf, including expert witnesses.”

The same restrictions which limit access to classified evidence limit access to its sources. So none of these may be on the defense witness list, no matter how vital they may be to a meaningful defense.

The MCA says the defendant will be given “reasonable opportunity to obtain witnesses.” Who determines what is reasonable? The same person who finally determines everything else: the Secretary of Defense. Will the opportunity be ‘reasonable’ by civilian standards? Who knows?

The witnesses the defendant calls can only be compelled to appear (as by subpoena) if in “a place where the United States shall have jurisdiction.” Those exculpatory witnesses elsewhere may decide for themselves whether or not they will put themselves in the hands of Americans and connect themselves with a “high profile terrorist” and his trial.

(4) "The right to cross-examine every witness called by the prosecution."

This sounds good, as it is meant to, but in a military commission proceeding, not all the witnesses against a defendant will be called. This is because hearsay evidence “not otherwise admissible under the rules of evidence applicable in trial by general courts-martial” is allowed in military commission proceedings [949a (E)]. It will only be excluded if the defendant can show that it is false. The ability to cross examine only the witnesses actually called, not those whose hearsay evidence is introduced, makes this right hollow:

Smith: “A classified source told me someone told him that the defendant often spoke of his hatred for freedom and his desire to commit the act with which he is charged.”

Cross examination (???) “Er, my client says he never did those things….?”

Smith: “My source says he did.”

The admissibility of hearsay also bears on right (2) “The right to examine all evidence used against him by the prosecution.” The defendant may be able to know what Smith will testify to, but how can that be described as a meaningful ‘examination' of the hearsay evidence Smith presents?

(5) “The right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court”

General Hartmann: “In this process, they all go through the Court of Military Commission Review first, and then to the D.C. Court of Appeals.”

Q: “So there is an eventual possible appeal to the civilian courts.”

General Hartmann: “Yes, absolutely, absolutely.”

Absolutely not. The Court of Military Commission Review may review only whether or not the procedures set out in the MCA were followed:

‘‘In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.”

Subsequent civilian court review is limited to one and only one court: the US Court of Appeals for the District of Columbia. No other civilian court has jurisdiction. The scope of such review is, again, confined to whether or not MCA procedures were followed:

‘‘The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of— (1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.” (950g(c))

“To the extent applicable” is an important qualifier. The constitution has been very deliberately and systematically excluded from the military commission process. If it applies at all at the end of the process, to the verdict in a trial by military commission, is an open question.

This bears on the meaningfulness of final declaration in (5) of the possibility of appeal to the Supreme Court.

The MCA could be said to have been designed by the Supreme Court. The roadmap to constitutionality supplied by Hamdan and related cases virtually assures that the MCA will not be judged “repugnant to the Constitution, treaties, or laws of the United States.” If it is not, an appeal to the Supreme Court of a verdict in a trial by military commission can only result in the same limited review to determine whether lower courts acted in accordance with MCA provisions.

General Hartmann: “It's our obligation to move the process forward, to give these people their rights. We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield ….”

It would be a magnificent thing, if it were true. That we would afford to our enemies rights generally reserved for citizens would be the clearest possible evidence that we are, first and foremost, a nation of laws. But it's not true. We have opted instead for shadow justice in shadow trials, which says just as loudly and just as plainly that we are, after all, merely a nation of men.

Bad Bill Clinton, Bad!

2008-02-03T07:12:00.000-08:00

Let's sum up: According to Geoffrey R. Stone (“Bill Clinton's folly a party disgrace”), political discourse in the good old days was much harsher, and judged by that standard Bill Clinton’s recent remarks* about Barack Obama were “tepid.” In modern times, leading Democratic candidates have "for the most part...stayed above the slime." So shame on Bill Clinton for not carrying on this (quasi)tradition of the modern democratic party.

Mr. Stone apparently imagines the cringing servility currently exhibited by Democrats to be in a (largely imaginary) glorious democratic tradition of "mutual respect and robust but civil disagreement and debate." Having, at least in his mind, secured and maintained the moral high ground, it doesn't surprise him that Democrats "are particularly sensitive these days to any conduct that might undermine party unity and lessen the party's prospects for success in November." Really?

I would have said that “conduct that might lessen the prospects for success in November” was thoroughly descriptive of democratic leadership's behavior. What else should you call the determined efforts to be seen as the impotent enablers of a catastrophic leader?

Mr. Stone's article is an object lesson in the power of self-deception. Mr. Stone deceives himself that craven boot-licking makes Pelosi and Reid statesmen; and those two persons apparently sustain a similar fantasy, in spite of polling even lower in popularity than the most unpopular president in modern times.

Any elements of half-truth and omission in Clinton’s remarks (whatever they might be) are as unhelpful as they are anywhere else in political discourse. But a “personal attack and distortion,” “divisive and destructive behavior,” ruinous to democratic chances in November? Please.

I can’t make myself cringe over Bill Clinton’s supposed “conduct unbecoming” on the campaign trail. If it’s true that the Clinton’s, in the words of Mark Karlin of BuzzFlash, “have gone after Barack Obama with a ferocity that we have seen from neither of them in the last several years toward the Bush and Cheney Administration,” they rightly deserve our condemnation, but for following in the tradition of the modern democratic doormat, not for poisoning the otherwise oh-so-pure waters of democratic political discourse.

*Different commentators seem to have different remarks in mind when expressing their chagrin, moral outrage, etc.. These seem to be the main contenders:

(a) ‘Obama’s whole campaign is a fairy tale.’ But he didn't say that:
"Time's Gibbs repeated falsehood that Bill Clinton referred to Obama's candidacy as a 'fairy tale'"

(b) Clinton’s comparison of Obama’s North Carolina Campaign to that of Jesse Jackson’s in ‘84 and ‘88. The remarks about which Jesse Jackson said "Bill has done so much for race relations and inclusion, I would tend not to read a negative scenario into his comments."

(c) Clinton’s “hit job” remarks in reaction to Obama’s campaign document calling Hillary “the Senator from Punjab” ? Is the cavil at the use of the phrase "hit job"? because the document’s claims are so clearly meant to be understood in that fine old tradition of 'mutual respect,' blah, blah…?

Sua Culpa

2008-01-22T08:47:00.000-08:00

The Speaker of the House still thinks protecting and defending the Constitution is not a high priority:

“It was my belief that an impeachment of the Vice President or the President … would be very divisive in our country,... It should have come to [sic] no surprise when I became Speaker I said it again, and I continue to hold that view.”

In the Speaker’s special world, the unity and harmony we enjoy now, across the country and in Congress, is simply too valuable to tamper with.

In truth, the only divide impeachment proceedings will create is between those who honor the Constitution and its claims and obligations, and those who do not. Nancy Pelosi has chosen her side.

Failing to act to impeach Bush and Cheney makes her fully complicit in their crimes. By ensuring that unprecedented executive powers are passed on to the next president, she must also bear a full measure of responsibility for the future harm to the country such powers must bring. By turning a blind eye to the criminal conduct of the executive branch she has established a precedent that will make undoing this harm all but impossible.

Bush and Cheney have damaged the republic. Nancy Pelosi will be remembered as the person most responsible for making that damage irreparable.

The Shameful Success of the Surge

2008-01-18T07:38:00.000-08:00

Military: 75% of Baghdad Areas Now Secure

Security did improve in Baghdad after the surge, and its residents used the lull to flee the city in unprecedented numbers. In a new poll of Iraqi refugees in Syria:

“... 78 percent said they'd come from Baghdad, which has been the focus of military operations since the U.S. troop buildup began last February. Thirty-five percent said they'd fled between July and October, when U.S. troop strength peaked.”

Former residents of Baghdad make up nearly 60 percent of the four and a half million Iraqis that have been internally and externally displaced by the war.

1.2 million residents of Baghdad have been internally displaced.

The emptied, ethnically cleansed neighborhoods of the city are no longer hot spots of violence. With this 'success,' it must be time for the displaced to come home? Not quite:

"It's a problem that everybody can grasp,.. You move back to the house that you left and find that somebody else has moved into the house, maybe because they've been displaced from someplace else. And it's even more difficult than that, because in many cases the local militias . . . have seized control and threw out anybody in that neighborhood they didn't like."

The surge has reduced violence. But the means employed to reach that end should be a source of national shame, not pride.

Shibboleth

2008-01-14T07:48:00.001-08:00

The next president will deal with issues arising in such areas as agriculture, energy, medical research, education, the environment that cannot be understood outside of the context provided by science. To formulate policy in these areas without attention to the consensus of expert opinion is to deliberately limit one’s understanding in a way that must inevitably distort both one’s grasp of the essential problems, and their solutions. Deliberately cultivated ignorance is disturbing, but even more disturbing is the disdain this displays for the proposition that, as rational beings, we ought to shape our views about the physical world in conformation with the discernible facts.

The current occupant, and several leading candidates for President of the United States, have expressed doubts about, or outright rejection of, the fact of human evolution. In the case of evolution, the discernible facts support the reality of human evolution to such an extent that to chose an inconsistent view one must abandon the pretense of regard for science and its core tenet that beliefs about the physical world must be shaped by facts, not the facts by beliefs.

Carefully cultivated ignorance is on full display in Mike Huckabee’s views on evolution:

"If you want to believe that you and your family came from apes, I'll accept that....I believe there was a creative process."

Ron Paul simply rejects evolution, and doesn’t see what the big deal is:

". . . I think it's a theory, a theory of evolution, and I don't accept it, you know, as a theory, but I think it probably doesn't bother me. It's not the most important issue for me to make the difference in my life to understand the exact origin. I think the Creator that I know created us, every one of us, and created the universe, and the precise time and manner, I just don't think we're at the point where anybody has absolute proof on either side.”

Mitt Romney has expressed a qualified acceptance of “theistic” evolution: he accepts that human evolution occurred, but with God’s as it’s guide.

"I believe that God designed the Universe and created the Universe. I believe he used the process of evolution to create the human body." (Super-natural selection?)

McCain is murkier, he may or may not embrace a variety of ‘theistic’ evolution:

“When I stand on the rim of the Grand Canyon. I know that it was the hand of God...only God could have created that magnificence. But at the same time, I think that Darwin's theories are valid, and I think that natural selection and survival of the fittest are clearly scientifically based. But I also believe that in time before time, that there was a divine hand in creation.
. . .

I think that evolution should be taught. I think it's absolutely the most valid and scientifically based and proven conclusion that we can draw. But I respect the fact that some people believe in intelligent design and they should have their views vented also. But in my own personal opinion, I don't think they're contradictory.

Q: So do you believe in both?

Well, if you're saying that intelligent design is the earth created in seven days, then no. But I do believe that time before time there was a divine hand that brought this magnificent world and human beings into it.” (Emphasis mine. The theory of evolution is ‘valid,’ but 'a divine hand' brought human beings into the world, so humans did/did not evolve?)

Unlike other issues that divide the candidates, and ordinary Americans, that evolution occurred, and still occurs, is not something about which reasonable people may disagree. It’s not like the social security ‘crisis’ or the threat posed by Iran. On the question of whether or not humans evolved there is one answer overwhelmingly supported by observation and evidence.

Let’s be clear, the answer to the question “Did human beings evolve?” is unequivocally “yes.” Not so the answers to questions about how they did so. Reasonable people can and do disagree about the mechanics of evolution.

When confronted with overwhelming evidence that evolution occurs, these candidates blithely turn their back on the testimony of observation and evidence and instead embrace a belief about physical matters of fact inconsistent with both.

“I'm not sure what in the world that has to do with being president of the United States."
Says Mike Huckabee

What it has to do with being president, of course, is that it provides insight into the intellectual honesty of candidates, their grasp of critical reasoning, their basic understanding of science, and, specifically, how they may reason when required to make decisions informed by a consensus of scientific opinion.

If these men can overlook the overwhelming prevailing scientific consensus about evolution, what does this say about their grasp of and respect for scientific reasoning? If biology, anthropology, paleontology astrophysics, geology, genetics all say “evolution happened,” and you turn a deaf ear, it's not simply a matter of personal taste or individual conviction. To accept as true beliefs about the physical world inconsistent with overwhelming factual evidence is irrationality, not healthy self-expression.

Presidents, and the rest of us non-experts, have to make determinations about scientific matters based on the consensus of experts. We trust that consensus because of our understanding of how science self-regulates. We know that scientists routinely submit their claims to the scrutiny of fellow scientists and must adapt or abandon views this process reveals to be unsupported by the evidence.

What Huckabee and Paul in particular have shown us is a basic disregard for this process and its result: scientific consensus. When, as non-experts, they are required to make a determination informed by the consensus of scientific opinion they are perfectly willing to simply ignore it.

This suggests a capacity for self-deception, or mendacity or willful ignorance (“if you want to believe your family came from apes…”) or all three, that is disturbing in any individual, not only a president.

We know what it's like to have a President with these qualities. We may never recover from having one, we surely cannot survive two.

Richard Dawkins in a conversation with Bill Moyers:

MOYERS: What do you think happens to a society that tolerates the belief that the universe was created in six days?

DAWKINS: Well, I'm all for tolerance, but I'm worried about a society where a sufficiently large number of the electorate can actually swing the vote, not of course that the age of the earth actually affects current politics directly. But it shows such a divorce from reality. Such an inability to apprehend the real world in which people live.

… I really worry about the judgments that people will make in other fields, … When you think about how young the world is supposed to be, according to this view, it's 6,000... it's less than 10,000 years old. This means the entire universe began sometime after the middle stone age. I mean, what kind of a grasp on reality does that suggest?

Willingness to turn one’s back on scientific evidence and the consensus of scientific experts is a shibboleth, a test or criterion for determining membership in a group. In this case, the group is The Rational. By this test our current president and a disturbingly large chunk of the field of presidential candidates have shown a willingness not just to tolerate, but to actively embrace, irrationality.

Setting the Record Straight on “1-14”

2008-01-11T07:27:00.000-08:00

As the nation prepares to remember “1-14,” the day a pretzel almost ended the Bush Presidency, there is word from Guantanamo that interrogators there have uncovered information which casts the events of that day in a new light. Recall the explanation White House physician Dr. Richard Tubb gave for the President’s cheek-first encounter with the floor: "He fainted due to a temporary decrease in heart-rate brought on by swallowing a pretzel." Despite the undeniable plausibility of this explanation, there were, nevertheless, suspicions that this was not an ordinary near-fatal pretzel accident. Such suspicions were gratifyingly confirmed this week when interrogators at Gitmo learned that the President's embarrassing "accident" was actually the culmination of an 18 month-long terrorist operation. Bored, under-employed ~~Iraqi~~ al Qaeda ~~germ scientists~~ bioislamofacists, killing time in huge yet-to-be-discovered underground labs, developed a honey barbecue glaze that was both irresistibly tasty, and, when combined with human saliva, caused an ordinary pretzel to swell to 10 times its normal size. A bag of these “terror pretzels,” glazed to deadly, hickory-smoked perfection and surreptitiously introduced into the Whitehouse pantry, made it’s way to the President's couch-side that Sunday. When the President tossed a handful of tangy "Saddam of Hanovers" pretzels (perhaps the name should have alerted someone) into his mouth, the savory honey glazing masked the swelling which resulted in his unconscious dive into the First Carpet. Suggestions at the time that President Bush had simply washed down a bag of ordinary, non-terrorist pretzels with a few too many beers were persuasively refuted by the White House by saying they weren't true. Noting that there were others who had been knocked unconscious by a pretzel (probably, somewhere in the world), White House spokesman Ari Fleisher called "irresponsible and freedom-hating" those who pointed out that many thousands more had plowed a nose-furrow in the shag as a result of overindulging. "It shows the depths to which American journalism has sunk" said a visibly disgusted Fleisher "when an admitted alcohol-abusing President can pass-out watching football and it's considered 'news.'" Thanks to the amazingly productive interrogators at Guantanamo (just learning that a pre-teen Khalid Sheik Mohammed was the gunman on the ‘Grassy Knoll’ was worth a Patriot Act all by itself) 1-14 has finally been placed in its proper, heroic, “war-on-terrorism” perspective.

If You Think Our Long National Nightmare Will End in '08, Think Again

2008-01-02T10:43:00.000-08:00

Glad as I will be to see the worst president in American history take up brush clearing full-time, I don't for a second imagine that the nightmare into which he has sunk America will end when he does so.

If every illegal power he assumed for the executive branch persists, if his rank criminal behavior goes unpunished, the course of the country will still track as inexorably toward something ugly and fundamentally un-American.

None of the leading democrats recognize that we are at a tipping point in the history of the country. Past that point is ever more authoritarian government, cloaked in the increasingly substance-less forms of 'democracy.' The natural culmination of this process is a nation of flag-worshippers, focused on the now-empty symbols of democracy, deprived of the rights and freedoms that give them meaning.

If you think that merely electing a democrat will reverse this course, think again:

"If elected president in 2008, Democrat Hillary Rodham Clinton would consider giving up some of the executive powers President Bush and Vice President Dick Cheney have assumed since taking office."

Apparently, she has considered it, and, in the case of signing statements at least, has decided against it:

"Democrat Hillary Clinton says 'in very rare instances,' she might attach a so-called signing statement to a bill reserving a right to bypass ‘provisions that contradict the Constitution.'"

Obama, Clinton and Edwards all embrace the idea that the executive may unilaterally determine constitutionality, and use signing statements to rewrite law already passed by the legislature. They insist, naturally, that their use of signing statements will be judicious, well-founded, etc., in short, that such power will never tempt them to abuse.

And while they now condemn Bush’s use of other powers he has assumed, who would care to wager that, once in office, they will not ‘discover’ that even these powers, when used properly, can be potent tools of freedom and democracy, and that it would be rash, even irresponsible, to abandon them?

A president possessed of tyrannical powers who, for whatever reason, doesn’t use them, or uses them with restraint, is as potent a threat to the Republic as Bush. The preservation and transmission of these powers imbues them with the authority of precedent. When they finally and inevitably come into the hands of one who will use them without restraint, how will they be stopped?

There is one way and one way only to wake up from the nightmare: Impeachment. It doesn't matter, as John Conyers insists, that "the votes aren't there." Impeachment isn't pointless unless successful. To seriously undertake the process is to say "we draw the line here" in a way that establishes a precedent future executives can't ignore.

John Nichols has summed up the situation better than I can:

"On January 20th, 2009, if George Bush and Dick Cheney are not appropriately held to account this administration will hand off a toolbox with more powers than any president has ever had, more powers than the founders could have imagined. And that box may be handed to Hillary Clinton or it may be handed to Mitt Romney or Barack Obama or someone else. But whoever gets it, one of the things we know about power is that people don't give away the tools. They don't give them up. The only way we take tools out of that box is if we sanction George Bush and Dick Cheney now and say the next president cannot govern as these men have."

Limitless executive detention, rendition, torture, warrantless eavesdropping on Americans, destruction of evidence, withholding of evidence and obstruction of justice with sweeping claims of executive privilege, ignoring the law at will. These are some of the behaviors and powers we are set to legitimize and make permanently within the scope of acceptable executive authority, by handing them intact to the next executive. John Nichols again:

". . . we are defining what the presidency will be in the future today because we do know the high crimes and misdemeanors of George Bush and Dick Cheney. They have been well illustrated even by a-- rather lax media. They have been discussed in Congress.

If we know these things and we do not hold them to account, then we are saying, as a people and as a Congress, we are saying that we can find out that you have violated the rule of law. We can find out that you have disregarded the Constitution. . . . we can find out that you've done harm to the republic. But there will still be no penalty for that. If that's the standard that we've set, it will hold. It will not be erased in the future."

Impeachment is not about punishment now, its about course correction.

Bind Them Down From Mischief by the Chains of the Constitution

2007-12-28T10:16:00.000-08:00

"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Thomas Jefferson

After seven years of abusive executive of power, what we need most from a new administration is a promise that such abuse will end. It doesn’t look like we’re going to get it.

Candidates on Executive Power: A Full Spectrum

“… while all the Democrats condemned Bush's use of signing statements, Clinton, Edwards, and Obama each said that they would use them too - just less aggressively. Obama said the problem with Bush's signing statements is not the device itself, but rather that Bush has invoked legal theories that most constitutional scholars consider ‘dubious’ when reserving his alleged right to bypass certain laws.

‘No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush administration has gone much further than that,’ Obama said.”

No one doubts.

“Democrat Hillary Clinton says ‘in very rare instances,’ she might attach a so-called signing statement to a bill reserving a right to bypass ‘provisions that contradict the Constitution.’"

No one should be President of the United States who has the view of presidential power and the Constitution expressed by these democratic candidates. Period. The president is charged with seeing that the laws are faithfully executed, not with unilaterally determining whether or not they “contradict the Constitution,” and rewriting them to conform to a pet theory of executive power.

Those canny practical psychologists, the framers of the constitution, understood that the office holder is just a human being, and thus capable of mischief. The powers of the office must be circumscribed to limit the scope of that predictable mischief. We have allowed an office holder to dictate the powers of the office, with catastrophic results. The major democratic candidates for president say they, too, will not be bound by the chains of the constitution, so they must be bound down involuntarily.

The best way to do this is to begin impeachment hearings now. Whether such hearings lead to impeachment or not is less important than the fact that they will say to the present and future executive, 'we won’t permit lawless, unconstitutional behavior by a president. No office holder can unilaterally decide to ignore laws, to ignore treaties, to commit domestic and international crimes and consider themselves untouchable.'

The other option is to “wait and see.” While the democratic contenders for the next president haven’t said they will give up the power Bush has seized, they have said they will use it less frequently and/or “less aggressively.” Maybe the tools Bush has taken up will, by and large, go back into the toolbox and the behavior of the next president take on a more familiar and acceptable quality.

This is a vindication of the malignant political theory used to justify the assumption of tyrannical power by the executive. If another president inherits the powers Bush has taken up, these powers will received the imprimatur of precedent, and the course of the country will be unalterably set towards a darker future.

To let these powers persist unchecked is also a victory for neoconservatives: If they can’t be in power, let the illegal powers they have seized for the office of the president be waiting for them when they are.

And a democratic president with tyrannical powers who isn’t using them at the moment, or is only using them “less aggressively,” is no more compatible with democracy than a president like George Bush who is using them with zeal. No president should have the power of limitless executive detention without recourse to the courts, the power to ignore any law, to rewrite law, to be the sole interpreter of treaties, to torture.

Suppose one of these democrats is elected and executive overreaching, less aggressive and abusive though it may be, finally becomes intolerable to the public. This eventuality is also victory for neoconservatives: If public outrage finally demands rebuke and censure, let it be a democratic administration that is publicly slapped down, not the republican president who rightly earned this punishment. All the better to allow a new administration, pledged to “restore the dignity of the office of the president” to ride into office.

To wait and see, to allow illegal executive powers to persist and to rely upon the goodness of men to protect us from future abuse, is a fool’s errand. Bind them down from mischief, and do it now, or expect mischief.

Leading surveillance societies in the EU and the World 2007

2007-12-27T08:05:00.000-08:00

Looks like it's time to move to Greece.

The Status of Iraqi Security Forces: Not Taking Over Any Time Soon

2007-12-24T14:49:00.001-08:00

"We can stand down when the Iraqis stand up." If this slogan means anything, it means that American troops can finally leave Iraq when Iraqi security forces are capable of independent operation, that is, when they have achieved “Operational Readiness Assessment Level 1,” and are:

“fully capable of planning, executing, and sustaining independent operations”

How many Iraqi army battalions are now at ORA level 1? There is currently no publicly available answer to that question. But in what public information is available, the likely answer that emerges is “none.”

The number of ORA level 1 troops in Iraq used to be public information, updated every 3 months:

In June 2005, 3 out of 100 Iraqi battalions were said to be at level 1 combat readiness, that is, capable of independent operation.

Three months later, in Sept 2005, 1 battalion out of 100 was at level 1 readiness.

In Feb. 2006, not a single Iraqi battalion was judged capable of independent operation.

In August 2006, how many Iraqi battalions were at level 1 readiness? Sorry, citizen, that information is now classified:

“The decision to stop making the information public came after reports showed a steady decline in the number of qualified Iraqi units. That number now is classified, said Air Force Lt. Gen. Victor Renuart, director of strategic plans and policy for the Joint Chiefs of Staff.”

The readiness of US trained Iraqi forces, as measured in ORA's or TRA's (Transitional Readiness Assessments) is still unavailable, apparently even to Congress:

“The Defense Department has resisted auditors' efforts to obtain data on the military readiness of U.S.-trained Iraqi troops, according to a senior government official.

Comptroller General David M. Walker told audience members at a Government Executive breakfast Wednesday that Defense has not complied with repeated Government Accountability Office requests for evaluations of Iraqi troop preparedness, known as transitional readiness assessments. The Pentagon develops those evaluations for Iraqi and U.S. forces, Walker said, and has a statutory obligation to release them to GAO.”

In addition to classifying the ORAs of Iraqi troops, Something else happened in 2006, the definition of ORA Level 1 in reference to Iraqi troop units was altered from:

“A Level 1 unit is fully capable of planning, executing, and sustaining independent operations.”

to

“A Level 1 unit is capable of planning, executing, and sustaining counterinsurgency operations.”

In fact, with "fully" and "independent" now omitted from the definition, the new definition of level 1 is essentially identical to the old definition of level 2. These definitions are from a July 2005 report to Congress:

“A Level 1 unit is fully capable of planning, executing, and sustaining
independent counterinsurgency operations.”

“A Level 2 unit is capable of planning, executing, and sustaining
counterinsurgency operations with coalition support.”

In the 2006 redefinition of level 1, the omission of “fully” and “independent” implies, rather than directly states, the requirement for coalition support.

In the Initial “Benchmark Assessment Report” issued in Sept '07 the Whitehouse employs the language of “independence” in relation to operational readiness, but now, instead of defining ORA Level 1 in terms of full independence, "independence" is defined in terms of the new 2006 Level 1:

“There are 9 Iraqi Army divisions, 31 Brigades, and 95 battalions in the operational lead for their area of responsibility. For an Iraqi unit to be designated capable of independent operations, it must achieve an Operational Readiness Assessment (ORA) Level 1 status. There has been a slight reduction in units assessed as capable of independent operations since January 2007.”

Whereas achieving the old ORA level 1 meant the attainment of “fully independent” capability, now the capacity for “independent operation” means achieving the new 2006 ORA Level 1 (= the 2005 Level 2) status. That is, a unit "capable of independent operations" is now defined as one capable of operation with coalition support (with the need for support implied in the new definition of level 1, and explicitly noted in the new definition of level 2). This version of the report notes a “slight reduction” in troop numbers at the new level 1.

In the Final Benchmark Report issued in Sept. ‘07, this language has been altered to more prominently feature the idea of Iraqi troop unit "independence:"

“Since March 2007, there has been a 14 percent increase in the number of independent Iraqi Army operations, including 20 units operating independently as part of Fardh Al-Qanoon and 10 units assuming the lead role in their areas of responsibility. While only a small percentage of battalions are rated as capable of completely independent counterinsurgency operations (Operational Readiness Assessment Level One), over 75 percent are capable of planning, executing, and sustaining operations with some Coalition support and of making significant contributions to combat operations.”

Is “completely independent” being used here in a conventional or an idiosyncratic sense? Is the “small percentage” of battalions at ORA level 1 at the new or the old level 1?
The Report of the Independent Commission on the Security Forces of Iraq also released in Sept ‘07 makes it clear that the“independent" capability of Iraqi forces is to be understood in its new sense, that is, as meaning “still requiring coalition support.”

If any Iraqi troop units are at ORA level 1 as originally defined (and as it it used in the assessment of US combat units) and are thus truly "completely independent," it would be those new level 1 units capable of operation without coalition support. The Commission Report makes it clear that there are no Iraqi forces with this capability. Even the 1500 man Iraqi Special Operations Forces brigade, “the most capable element of the Iraqi armed forces ” lacks the ability for true independent operation:

“Iraqi Special Operations Forces are and are well-trained in both individual and collective skills. They are currently capable of leading counterterrorism operations, but they continue to require Coalition support. They remain dependent on the Coalition for many combat enablers, especially airlift, close air support, and targeting intelligence.”

Overall:

“The Iraqi armed forces—Army, Special Forces, Navy, and Air Force—are increasingly effective and are capable of assuming greater responsibility for the internal security of Iraq; and the Iraqi police are improving, but not at a rate sufficient to meet their essential security responsibilities. The Iraqi Security Forces [ISF] will continue to rely on the Coalition to provide key enablers such as combat support (aviation support, intelligence, and communications), combat service support (logistics, supply chain management, and maintenance), and training. The Commission assesses that in the next 12 to 18 months there will be continued improvement in their readiness and capability, but not the ability to operate independently.” p.12

Despite the (deliberate) ambiguity in government accounts of Iraqi troop unit capabilities, e.g., the re-definition of ORA “level 1” without the use of the term “independent,” coupled with the continued use of that term (without explicit definition) in describing operational readiness, what emerges from public accounts is a picture of an Iraqi military with some increasingly capable units (special operations) but with a continued overall dependence on coalition (US) forces that is “substantial at times.” p.37

“Although the ISF have made significant progress in many areas, the Commission finds that they are not yet able to execute these missions independently. Without continued combat support, combat service support, and assistance from Coalition Military Transition Teams, it is unlikely that the ISF will achieve, in the near term, the proficiency and readiness needed to provide security for Iraq.” p. 35

The truth of the matter seems to be that Iraqi forces are no where near ready to take over the tasks now performed by US forces. They show no sign of being able to do so in the near and even the not-so-near future. If we can stand down only when Iraqis stand up, we're going to be standing a long , long time.

By Their Fruits, Not Their Packaging, Ye Shall Know Them

2007-12-23T07:34:00.000-08:00

A recent Slate article by Paul Krugman (Progressives, To Arms! Forget about Bush—And The Middle Ground) contains this paragragh:

"A year ago, Michael Tomasky wrote a perceptive piece titled 'Obama the anti-Bush,' in which he described Barack Obama's appeal: After the bitter partisanship of the Bush years, Tomasky argued, voters are attracted to 'someone who speaks of his frustration with our polarized politics and his fervent desire to transcend the red-blue divide.'"

I think its time to recall another candidate who packaged himself exactly that way, as the longed-for antidote to political polarization: George Bush.

Have you forgotten “the uniter not a divider” of the 2000 elections? And the packaging worked. The hapless, aggressively ignorant, illiterate, muti-arrested Bush managed to persuade (some of) the country that that was all surface, concealing a shining core of moral certainty, unwavering rectitude and deep desire to bring us all together. “Fool me once, shame on -- shame on you. Fool me -- you can't get fooled again.” Let us hope so.

Obama is not another Bush. But Obama is now a package, and the packaging is the same one Bush successfully used: The Outsider/Newcomer as yet unspoiled by Washington’s divisive ways. Bush was not the package, and neither is Obama. What he is remains to be seen.

I republish from an old post these quotations; half are Bush and half Obama. Can you tell the difference?

“I want to change the tone of Washington to one of civility and respect.”

“You can disagree without being disagreeable, and you can find consensus without compromising your beliefs.”

“I know America wants reconciliation and unity. I know Americans want progress. And we must seize this moment and deliver.”

“Washington’s become a place where keeping score of who’s up and who’s down is more important than who’s working on behalf of the American people.”

“Washington can be a place where people come together to get the people's business done.”

“… if we do not fundamentally change the way Washington works – then the problems we’ve been talking about for the last generation will be the same ones that haunt us for generations to come.”

“Our nation must rise above a house divided. Americans share hopes and goals and values far more important than any political disagreements.”

“… the American people are hungry for a different kind of politics – the kind of politics based on the ideals this country was founded upon. The idea that we are all connected as one people.”

“The president of the United States is the president of every single American, of every race and every background.”

“Divided, we are bound to fail.”

The quotes alternate, starting with Bush.

It may “feel like something new” to Oprah, but it looks like an old familiar song to me. That doesn’t mean Obama is the next national nightmare waiting to happen, it means we don’t know who we are electing when we focus on the package. “By their fruits ye shall know them” seems like a solid guiding principle for accessing candidates. And by this measure none of them, and certainly not Barack Obama, look like anything new.

A Nation of Huckabees

2007-12-18T12:16:00.001-08:00

Acceptance of evolution by country:

“These descriptive statistics provide evidence of the isolation of the United States from the mainstream of western industrial societies. Only Turkey -- a country still debating the issue of secular verses theocratic government -- was less accepting of evolution than the United States.”

From: Public Acceptance of Evolution Jon D. Miller, Eugenie C. Scott, Shinji Okamoto

"Human beings were created by God as whole persons and did not evolve from earlier forms of life:" Percentage of Americans responding "True;" (62%)

And, in a perhaps related story: Monkeys Can Perform Mental Addition

“Researchers at Duke University have demonstrated that monkeys have the ability to perform mental addition. In fact, monkeys performed about as well as college students given the same test.”

Somebody is Lying About Those Torture Tapes

2007-12-13T07:25:00.000-08:00

From: Director's Statement on the Taping of Early Detainee Interrogations

“The tapes were meant chiefly as an additional, internal check on the program in its early stages. At one point, it was thought the tapes could serve as a backstop to guarantee that other methods of documenting the interrogations—and the crucial information they produced—were accurate and complete. The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes. Indeed, videotaping stopped in 2002.”

“Beyond their lack of intelligence value—as the interrogation sessions had already been exhaustively detailed in written channels—and the absence of any legal or internal reason to keep them, the tapes posed a serious security risk. Were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al-Qa’ida and its sympathizers.”

And Now: Sources: Destroyed CIA Videotapes Were Hundreds of Hours; No Transcripts Made

“The destroyed CIA videotapes at the center of a growing investigation recorded roughly a ‘couple hundred hours’ with two terror suspects, a small portion of which showed interrogators using "enhanced" interrogation methods that might have included waterboarding.”

“But, U.S. officials tell FOX News, no transcripts of the standard, VHS-style videotapes ever were made. That would mean the only record of what happened during the interrogations captured on the tapes appears to lie in interrogators' summaries that were sent electronically from the sites of the interrogation back to CIA headquarters in Langley, Va.”

“Much of the tape, the officials said, was the equivalent of surveillance of Zubaydah in his cell. The tapes were taken in 2002, and the CIA destroyed them in 2005.”

So, were the tapes:

(A) an “accurate and complete” backup of “crucial information.” A backup rendered superfluous because it had been duplicated in “exhaustively detailed,” “full and exacting” “documentary reporting.”

or

(B) never documented at all, so that “the only record of what happened during the interrogations captured on the tapes appears to lie in interrogators' summaries;” and/or so unimportant as to merit no documentation at all, just hours of dreary surveillance tapes (maybe Abu Zubaydah sleeping and brushing his teeth, presumably with CIA interrogators, explaining why even these tapes had to be destroyed to protect their identities.)

It can't be both.

William Kristol: How To Make the Iraq War Much, Much Worse

2007-12-11T11:13:00.000-08:00

William Kristol suggests Iran’s abandonment of its nuclear weapons program in 2003 is the result of our invasion of Iraq that same year. So rather than arguing for an altered stance toward Iran, he sees the new NIE as an encouragement to get even tougher, both in Iran and Iraq:

“But if one chooses not to be fatalistic [about the inevitability of Iran acquiring nuclear weapons], and to think about what might induce an Iranian ‘political decision’ to abandon its nuclear program, part of the answer, surely, is a more robust effort to pressure the Iranian regime. Another part is the credible use of force--as in 2003.

The final part is victory in Iraq. President Bush's successful shift in strategy in Iraq a year ago, as part of his commitment to finishing that job, remains his greatest contribution to peace in the Middle East. The complete and unequivocal defeat of al Qaeda and of Iranian-backed proxies in Iraq is the best way to show Iran that the United States is a serious power to be reckoned with in the region.”

Kristol’s argument for his claim consists entirely of noting that Iran’s weapons program ended after the Iraq war began. It shouldn’t need mentioning, but this reasoning is so famously bad that it has its own name: post hoc, ergo propter hoc. Just 4 days after US seized control of Baghdad airport, Syracuse won the NCAA Championship, coincidence? The final score was 81-78. The US suffered exactly 81 casualties in Feb. of this year and exactly 78 in July, "surely," you can see the connection?

Another "credible use of force," this time against 89% Shia Iran, is the single most efficient way to dramatically worsen the situation in Iraq. Now, Iraq's 60% Shia population is more favorably disposed towards the occupation and (naturally) more supportive of the objective of a Shia-led national government than the Sunni minority. This is reflected in the findings of the latest (12/3/07) Iraq Index:

Q: How would you say things are going in Iraq overall these days?

“Very bad” Sunni: 60% Shia: 20%

Q: Do you support the presence of coalition troops in Iraq?

“Strongly/somewhat support” Sunni: 2% Shia: 20%

Q: Do you think your children will have a better life than you, worse, or about the same?

“Better” Sunni: 7% Shia 55%

Q: Do you approve or disapprove of the way Prime Minister Nouri Al-Maliki is handling his job?

“Approve” Sunni: 3% Shia 67%

Q: What is your expectation for how things will be for Iraq a year from now?

“Much or somewhat better” Sunni: 5% Shia 61%

Q: Do you approve or disapprove (strongly or somewhat) of attacks on US-led forces in Iraq?

“Approve” Sunni:88% Shia: 41%

While now more tolerant of occupation and more favorably disposed toward the goals of the current government, tolerance and cooperation will end if Iran is attacked. The Iranian and Iraqi Shia communities have strong connections. Grand Ayatollah Ali al-Sistani, leader of Iraqi Shia, is an Iranian national. A US attack on Iran will be viewed by Shia Iraq as an attack on Shias. The consequence aren't hard to foresee.

In addition to alienating Iraqi Shia, Iranian Shia who now judge a Shia-led Iraq to be in Iran's best interests are likely to dramatically alter their view:

“. . .in the event of an attack on Iran, this calculus would likely yield to a desire for revenge. In such a scenario, Iranian Revolutionary Guards could cross the border in great numbers to promote a full-blown guerrilla war against the large U.S. presence in Iraq. Iranian intelligence agents, who are currently in Iraq in significant numbers, could provoke clashes between the U.S. forces and Shi'a majority, precipitating a general uprising against Coalition forces in Iraq. It is important to note that, unlike the foreign Salafi Jihadi fighters (a la Abu Musab al Zarqawi and his Tawhid network) who infiltrated Iraq to fight the Americans and are despised by the Iraqi Shi'a, Iranian infiltrators in Iraq are likely to be seen by Iraqi Shi'a in a very different light.”

. . .

“In the event of an American or Israeli attack on Iran's nuclear facilities, it is likely that Iran would attempt to take advantage of its extensive list of allies in Iraq to further sour the U.S. occupation and provoke clashes between U.S. troops and Iraqi Shi'a, which may well result in a popular Iraqi Shi'a uprising against the American presence in Iraq. In such an event, American casualties and costs would multiply exponentially as Iraq further disintegrates into Lebanon-style violence. Such developments would prove disastrous for U.S. interests in the Middle East and negate any perceived or actual benefits that may be gained from destroying Iran's nuclear facilities. The fact is that the strategic usefulness of a successful preemptive attack on Iran's nuclear facilities is likely to be short-lived if the United States gets further bogged down in Iraq.”

[From: A Preemptive Attack on Iran's Nuclear Facilities: Possible Consequences
by Sammy Salama and Karen Ruster, August 12, 2004]

So far from stabilizing the Middle East, another "robust" Iraq-style “credible use of force--as in 2003” would alienate now favorably disposed Iraqi Shias and unite them with their Sunni counterparts in the common goal of violence toward US forces. Aided by an influx of Iranian Shias bent on revenge for an attack on their country, Iraq would descend even further into bloody chaos.

Highlights From The Dec, 3, 2007 Brookings Institution Iraq Index

2007-12-10T06:42:00.000-08:00

“If you lived in Iraq and had lived under a tyranny, you'd be saying, god, I love freedom -- because that's what's happened. And there are killers and radicals and murderers who kill the innocent to stop the advance of freedom. But freedom is happening in Iraq.”

Iraqis seem to think its something else that’s happening:

Q: “How would you rate security conditions in Iraq today?”

Excellent: 2%
Good: 5%
Fair; 16%
Poor: 75%

Q: “Do you support the presence of coalition forces in Iraq?”

Strongly/somewhat Support: 21%
Strongly/somewhat Oppose: 79%

Q: "Do you approve the government endorsing a timeline for US withdrawal?"

Yes: 87%

Q: "Do you think the US government plans to have permanent military bases in Iraq or to remove all its military once Iraq is stabilized?

Plans Permanent Bases: 80%

John Conyers is Dead Wrong About Impeachment

2007-12-07T07:48:00.000-08:00

Conyers' Hard Choice: An Expert on Impeachment Says Not This Time

"There aren't the votes there, period," said Conyers, who was in Dearborn for the American Civil Liberties Union's annual dinner. "You need 218 in the House to impeach and 67 in the Senate to convict, and 218 and 67 just aren't there," he said, peering over his glasses.

"But beyond that — do you know what a boost that would give Bush if we tried and failed to convict him? He would have an outpouring of sympathy for him, we'd be discredited, and it might help elect one of his clones.

"Nothing is more important than stopping that from happening."

I think Conyers is dead wrong about the effects of impeachment, both regarding Bush personally ("an out pouring of sympathy") and politically (“it might help elect his clones.”) The course democrats have charted is one that guarantees that a Bush clone will be elected. By allowing unconstitutional power to pass from one president to another, by ignoring lawless behavior, by passing legislation to retroactively legalize such behavior, Conyers and the democrats have assured that the same abusive power will carry over into the next presidency, no matter who is elected.

To imagine that a democratic president will turn his or her back on the tools Conyers and the congress will hand to them does not even deserve to be called “naïve.” The structure of our government is based on the assumption that anyone with power will tend to abuse it, and therefore requires a check on that power. ("In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Thomas Jefferson.)

To fail to provide that check on executive power is an unforgivable breach of members of Congress’ solemn oath to protect and defend the constitution of the United States. If Conyers focused on his oath, the way forward towards impeachment would be crystal clear: 'nothing is more important' than protecting and defending the constitution, and impeachment is the tool provided for by that constitution for reigning in the power of a lawless executive.

When they appeared with Bill Moyers, Bruce Fein and John Nichols addressed the larger issues that necessitate impeachment proceedings. I have emphasized those portions of their responses that seem to address reasoning like Conyer’s and that point out the crucial facts that both he and Nancy Pelosi seem content to ignore.

JOHN NICHOLS: On January 20th, 2009, if George Bush and Dick Cheney are not appropriately held to account this administration will hand off a toolbox with more powers than any president has ever had, more powers than the founders could have imagined. And that box may be handed to Hillary Clinton or it may be handed to Mitt Romney or Barack Obama or someone else. But whoever gets it, one of the things we know about power is that people don't give away the tools. They don't give them up. The only way we take tools out of that box is if we sanction George Bush and Dick Cheney now and say the next president cannot govern as these men have.

. . .

BILL MOYERS: You're saying you want the judiciary committee to call formal hearings on the impeachment of George Bush and Dick Cheney?

BRUCE FEIN: Yes. Because there are political crimes that have been perpetrated in combination. It hasn't been one, the other being in isolation. And the hearings have to be not into this is a Republican or Democrat. This is something that needs to set a precedent, whoever occupies the White House in 2009. You do not want to have that occupant, whether it's John McCain or Hillary Clinton or Rudy Giuliani or John Edwards to have this authority to go outside the law and say, "I am the law. I do what I want. No one else's view matters."

JOHN NICHOLS: The hearings are important. There's no question at that. And we should be at that stage. Remember, Thomas Jefferson and others, the founders, suggested that impeachment was an organic process. That information would come out. The people would be horrified. They would tell their representatives in Congress, "You must act upon this." Well, the interesting thing is we are well down the track in the organic process. The people are saying it's time. We need some accountability.

BILL MOYERS: But Nancy Pelosi doesn't agree.

JOHN NICHOLS: Nancy Pelosi is wrong. Nancy Pelosi is disregarding her oath of office. She should change course now. And more importantly, members of her caucus and responsible Republicans should step up.

. . .

BILL MOYERS: You're-- does this process have to go all the way to the end? Do Bush and Cheney have to be impeached before it serves the public?

JOHN NICHOLS: I think that what Bush and Cheney have done makes a very good case that the public and the future would be well served if it did go all the way to the end. But there is absolutely a good that comes of this if the process begins, if we take it seriously. And the founders would have told you that, -- that impeachment is a dialogue. It is a discourse. And it is an educational process. If Congress were to get serious about the impeachment discussions, to hold the hearings, to begin that dialogue, they would begin to educate the American people and perhaps themselves about the system of checks and balances, about the powers of the presidency, about, you know, what we can expect and what we should expect of our government.

And so I think that when Jefferson spoke about this wonderful notion of his that said the tree of liberty must be watered every 20 years with the blood of patriots, I don't know that he was necessarily talked about warfare. I think he was saying that at a pretty regular basis we ought to seek to hold our-- highest officials to account and that process, the seeking to hold them to account, wherever it holds up, is-- a necessary function of the republic. If we don't do it, we move further and further toward an imperial presidency.

. . .

BILL MOYERS: You just said in one sentence there "impeach Bush and Cheney." You're talking about taking that ax against the head of government, both of them.

JOHN NICHOLS: No. No, no, no.

BRUCE FEIN: It's not an ax, Bill.

JOHN NICHOLS: We're talking--

BRUCE FEIN: It's not an ax-- it's not--Impeachment is not a criminal proceeding.

JOHN NICHOLS: You are being--

BRUCE FEIN: --we cannot entrust the reins of power, unchecked power, with these people. They're untrustworthy. They're asserting theories of governments that are monarchical. We don't want them to exercise it. We don't want Hillary Clinton or Rudy Giuliani or anyone in the future to exercise that.

JOHN NICHOLS: Bill Moyers, you are making a mistake. You are making a mistake that too many people make.

BILL MOYERS: Yes.

JOHN NICHOLS: You are seeing impeachment as a constitutional crisis. Impeachment is the cure for a constitutional crisis. Don't mistake the medicine for the disease. When you have a constitutional crisis, the founders are very clear. They said there is a way to deal with this. We don't have to have a war. We don't have to raise an army and go to Washington. We have procedures in place where we can sanction a president appropriately, do what needs to be done up to the point of removing him from office and continue the republic. So we're not talking here about taking an ax to government. Quite the opposite. We are talking about applying some necessary strong medicine that may cure not merely the crisis of the moment but, done right-

. . .

BRUCE FEIN: It's not an attack on Bush and Cheney in the sense of their personal-- attacks. Listen, if you impeach them, they can live happily ever after into their-

JOHN NICHOLS: And go to San Clemente.

BRUCE FEIN: Yes, go to San Clemente or go back to the ranch or whatever. But it's saying no, it's the Constitution that's more important than your aggrandizing of power. And not just for you because the precedent that would be set would bind every successor in the presidency as well, no matter Republican, Democrat, Independent, or otherwise.

JOHN NICHOLS: The fact of the matter is that, again, the genius of impeachment is it tells the president that, wow, there is a Congress. And that Congress is on your case. And it causes, I think at its best, it causes a president to want to prove he can cooperate, to want to prove he can live within the law.

BRUCE FEIN: Can I interrupt just a second here?

BILL MOYERS: Yeah, sure, sure.

BRUCE FEIN: 'Cause it seems to me very important. I think that if impeachment proceedings began and the president and the vice-president sat back and said, "We understand now. We both understand. We renounce this claim. No military commissions. We're going to comply with the law," the impeachment proceedings ought to stop and they should. It's not trying to be punitive and recriminate against the officials but you've got to get it right. And it's that what I hope would happen.

I've said if the president now renouncing the power and said, "It was wrong and I now respect and honor the separation and the genius of the founding fathers," that's great. And all of the purpose of impeachment would have been accomplished. They could stay in office and we'd have the greatest precedent with regards to executive authority and the separation of powers and checks and balances. This is not an effort to try to blacken the names of the president and vice-president. And nothing would gratify me more than having them stand up and say, "Yeah, I've thought about this now. My mind is concentrated wonderfully," as Sam Johnson would say. The prospect of impeachment, I've been convinced.

JOHN NICHOLS: But also we would have hit that educational moment, that rare moment where a president of the United States has been forced to-- go before the American people and say, "Oh, yeah, I just remembered, you're the boss. You are the bosses. Not me. And that I am not a king." Again, this is why raising impeachment at this point, it's a very late point, is so important. Because we are defining what the presidency will be in the future today because we do know the high crimes and misdemeanors of George Bush and Dick Cheney. They have been well illustrated even by a-- rather lax media. They have been discussed in Congress

If we know these things and we do not hold them to account, then we are saying, as a people and as a Congress, we are saying that we can find out that you have violated the rule of law. We can find out that you have disregarded the Constitution. You-- we can find out that you've done harm to the republic. But there will still be no penalty for that. If that's the standard that we've set, it will hold. It will not be erased in the future.

BRUCE FEIN: One of the lessons we should have learned from the Nixon impeachment is that it didn't quite fulfill its purpose because Nixon was never compelled to renounce what he'd done.

JOHN NICHOLS: Yes.

. . .

Conyers has things exactly backwards. The best way to assure that the lawless, unconstitutional behavior of George Bush and Dick Cheney do not spread further is to hold impeachment hearings, not avoid them at all costs. We are creating Bush clones, not keeping them from office, by guaranteeing that whoever is president has powers reserved for Kings and dictators.

A successful outcome of impeachment proceedings is not obtaining 218 votes in the house and 67 in the senate, it’s reminding the President that he is not the law, that he works for us, and that we are fellow citizens, not subjects.

Sadly, The Surge is Working: II

2007-12-06T06:43:00.000-08:00

Is the reduction in violence in Iraq the result of military success against the insurgency due to increased troop levels, or prolonged ethnic cleansing? Confirmation from the US military that it is the latter:

Iraq says it can't handle refugee influx

“…the U.S. military has warned that a massive return of refugees could rekindle sectarian violence between Sunnis and Shiites and that some returnees have found their Baghdad homes occupied by members of the other Muslim sect.”

The surge accelerated ongoing ethnic cleansing. According to Fareed Zakaria: “It’s sad to say, but the American Army has presided over the largest ethnic cleansing in the world since the Balkans.”

Acknowledging that violence could “rekindle” if the divided parties are once again allowed contact confirms that it is the ’success’ of balkanization, of systematic ethnic cleansing, not accelerated military progress, that has reduced violence in Iraq.

Forever In His Debt

2007-12-05T13:51:00.000-08:00

George W. Bush, his father and Ronald Reagan are collectively responsible for three-quarters of the national debt.

George W. Bush inherited a 5.6 trillion dollar debt, has enlarged it to 9.1 trillion, and is on track to double it by his current term’s end. As a percentage of the GDP, the most accurate measure of a President’s contribution to the debt, Bush is set to pass the 70% mark, something not seen since just after WWII. That is, the amount of money we owe will soon be equal to 70% of the nation’s annual income.

Clinton reduced the percentage of America’s debt from the 68.1% inherited from Bush I, to 57.7% by the end of his presidency. In December of 2001 he was able to announce that “The United States is on course to eliminate its public debt within the next decade.” By 2002 George W. Bush had changed directions, running a $158 billion deficit that year and deficits every year since.

In fiscal year 2007 the US paid $429,977,998,108.20 in interest on the national debt. That’s 19 billion more than the defense budget in 2006, 14 times the amount spent on Homeland Security and 7 and a half times the money spent on education. Interest on the national debt is now the largest federal expenditure after defense and mandatory spending. By 2009 it could eclipse defense spending as the largest single non-entitlement government expense.

Last September, Bush called $22 billion in funding for health benefits for veterans, medical research, education and infrastructure improvements that democrats wanted to add to his 2008 budget a "big increase in federal spending."

"Some in Congress will tell you that $22 billion is not a lot of money. As business leaders, you know better. As a matter of fact, $22 billion is larger than the annual revenues of most Fortune 500 companies."

Our interest payment on the national debt for this past October alone was $22,310,362,733.54

Bush: 'Our Long National Nightmare Of Peace And Prosperity Is Finally Over'

2007-12-05T08:48:00.000-08:00

This satire from the Onion in 2001, about the new direction for America under a Bush presidency, showed uncanny accuracy in predicting what was to come. I don’t know of a more prescient forecast published anywhere. Some excepts:

"My fellow Americans," Bush said, "at long last, we have reached the end of the dark period in American history that will come to be known as the Clinton Era, eight long years characterized by unprecedented economic expansion, a sharp decrease in crime, and sustained peace overseas. The time has come to put all of that behind us."

“Bush also promised to bring an end to the severe war drought that plagued the nation under Clinton, assuring citizens that the U.S. will engage in at least one Gulf War-level armed conflict in the next four years.”

"You better believe we're going to mix it up with somebody at some point during my administration," said Bush, who plans a 250 percent boost in military spending. "Unlike my predecessor, I am fully committed to putting soldiers in battle situations. Otherwise, what is the point of even having a military?"

Sadly, The Surge is Working

2007-12-04T10:56:00.000-08:00

Violence against Iraqis is down. "I think the 'surge' is working," say John Murtha. But how is it working? Any analysis of the surge’s success or failure must account for the fact that the decline in violence has been accompanied by a dramatic rise in the number of Iraqis forced to leave their homes. “UNHCR estimates that more than 4.4 million Iraqis have left their homes. Of these, some 2.2 million Iraqis are displaced internally, while more than 2.2 million have fled to neighbouring states, particularly Syria and Jordan.”

The reduction in violence attributed to the surge over the months of August-November coincides with a sharp spike in the number of displaced Iraqis according to the Geneva-based International Organisation for Migration: “Overall August 2007 showed a sharp rise - of over 70 percent compared to July - in the numbers of Iraqis forced to abandon their homes.”

While keeping rival militias at arms length, the surge has done nothing to curtail block by block, neighborhood by neighborhood ethic cleansing. 60,000 Iraqis a month are forced from their homes. The consequence of this massive ethnic cleansing is the “success” of the surge: If over 4 million potential victims of violence move or are forced from where they are threatened, violence must go down.

In Baghdad, a city of 4 million, 1.4 million residents have moved or been driven from their old neighborhoods to more homogeneous ones. More than a quarter of the population relocated: "If you look at Baghdad, it is essentially a very cleansed city. It is, the Shia and Sunni communities have been separated by the river. You look increasingly around the areas that were once intermixed. They're no longer mixed."

By facilitating what Fareed Zakaria called "the largest ethnic cleansing in the world since the Balkans," the surge has reduced violence overall. But because it has done so via the death or displacement of millions of Iraqis it's right to say the the 'success' is unconscionable.

Lindsey Graham is a Dangerous Little Man

2007-11-28T08:13:00.000-08:00

Lindsey Graham has long been at the top of my list. In a town where you can’t swing a dead lobbyist without hitting a hypocritical gasbag, Graham take hypocrisy to a new level. I think it’s the combination of hypocrisy and sanctimony with breathtaking duplicity that give him the nod. Graham’s dissembles very pleasingly and convincingly about his love of liberty and the rule of law, while quietly and tirelessly working to subvert both. His well established MO is to look tough and ‘independent’ in public and quietly vote the party line (90.6% of the time during his years in the Senate, according to the American Conservative Union).

Take, for example his work to deprive detainees of habeas corpus rights.

“It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.”
Chief Justice Hughes (Bowen v. Johnston, 306 U.S. 19 (1939))

To deny that this "precious safeguard" applied to enemy combatants, Graham pretended that the right to petition for habeas corpus is conferred upon persons by virtue of their American citizenship:

“If you want to give a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen, not only have you changed the law of armed conflict like no one else in the history of the world, I think you are undermining our national security ….”

“Of all the people in the world who should enjoy the rights of an American citizen in federal court the people at Guantanamo Bay are the last that we should confer that status on.”

“To me, it is absurd that an enemy combatant, non-citizen terrorist has habeas corpus rights, and the reason they do is because we are giving no guidance to the courts about how we want these people treated.”

"Did we ever intend for enemy combatants captured on the battlefield to be given the same rights as U.S. citizens in our federal courts?"

The right to file a habeas corpus petition is not a right of citizenship, but a right conferred on anyone, citizen or not, by virtue of the fact that they are a prisoner of the United States. The constitution assumes that those detained by the United States have habeas corpus rights, and famously mentions the right only to make clear the 2 very limited conditions under which it may be suspended: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

Senator Graham also actively promoted the fiction that habeas corpus is the source of frivolous, court-clogging lawsuits:

“There are 400 and something lawsuits filed against our guys complaining about the food, the TV access, all kinds of crap. Prisoners of war don’t sue their captors.... Habeas rights came about because the Bush administration took such a hard line.”

“It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint.”

A petition for habeas corpus has only one purpose: to compel those who hold the petitioner to prove to an impartial judge that they do so lawfully. If they cannot, the petitioner is entitled to be set free.

"Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release."
Justice William J. Brennan

Graham’s work in the Graham Amendment to the 2006 Defense Appropriations Bill, and the language of the amendment subsequently incorporated into The Military Commission Act of 2006 stripped the right to petition for habeas corpus from those we hold in prisons around the world, and to any “enemy combatant” in our custody. The America of Lindsey Graham denies the root principle of civilized society set forth by Brennen. We would now teach fledgling democracies about ‘liberty’ in ‘civilized society’ by denying those we hold captive a right “inextricably intertwined with the growth of fundamental rights of personal liberty.”

In his first inaugural address Jefferson lists among "the essential principles of our government" along with "equal and exact justice to all men," freedom of religion and freedom of the press, "freedom of person under the protection of the habeas corpus."

"These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety."

Give me this road to liberty and safety. Let Graham and his cohort travel alone along the path of error and alarm.

Tick, Tick, Tick...

2007-11-18T09:56:00.000-08:00

A bomb is set to explode in a public place in a matter of hours or days. We have captured someone who knows how to stop the bomb. He won’t volunteer what he knows, is it OK to torture him to get the life-saving information? Those who invoke the “ticking bomb” (TB) scenario seem to think that it defines a narrow range of circumstances where torture is acceptable. I don’t think it does. So before Jack shoots anyone in the knee-cap, we should tease out the conditions that the TB scenario is supposed to define where torture is permissible.

The ticking bomb scenario suggests torture is permissible when three conditions are met:

(1) There is a clearly defined imminent threat to (many) innocent lives (like a ticking bomb).
(2) We have in custody someone we know has information that will let us end that imminent threat.
(3) Torture is the only way to get that information.

Or expressed as a single guiding principle:

(4) Torture is justified if it is the only way to get information necessary to prevent the imminent loss of (many) innocent lives.

In the real world, satisfying condition (3) is always a problem. Is torture ever the only way to extract accurate, actionable information in a timely way? Granted, it's probably the fastest way to get someone to say something, but that’s not what we need when the bomb is ticking down. But set this larger problem aside for the moment.

Another problem that arises is how, in practice, we are to know when (2) is satisfied. How do we know the guy we want to torture has the details we need? Perhaps we have a letter from the terrorist’s colleague thanking him for recently recounting all the details of the plot? How do we know that letter to be genuine?

To apply in the real world, condition (2) will have to be something weaker:

(2a) We have in custody someone we have good reason to believe has information that will let us end the imminent threat.

If we are justified in believing that damning letter is real, (2a) is satisfied.

But in light of the changes to (2), condition (3) must be altered too. We may have good reasons for believing x knows what we want, but clearly, despite due diligence on our part, our belief can be wrong. Built into (2a) is the possibility that torture will reveal that x does not, in fact, have the details we thought he might. In which case the situation no longer satisfies (4). The torture of x is not justified if x doesn’t know the necessary live-saving information because it obviously cannot reveal that information. Thus (3) must be adjusted if we are to derive a general guiding principle from the TB scenario:

(3a) Torture is the only way to get the information needed to end an imminent threat to innocent lives, or the only way to determine if someone has such information.

Adjusting (4) in light of the changes to (2) and (3) gives us:

(4a) Torture is justified if it is the only way to get information needed to prevent the imminent loss of innocent lives, or it is the only way to determine if someone has such information.

So from ticking bomb cases two general principles regarding torture emerge:

(A) Torture is justified if it is the only way to get information needed to prevent the imminent loss of innocent lives

(B) Torture is justified if it is the only way to determine if someone has information needed to prevent the imminent loss of innocent lives.

(A) is what people who find justification for torture in TB scenarios want to take away them, but if we think such scenarios justify torture to save innocent lives, we must accept that they also justify torturing those who, as it turns out, cannot help us save any innocent lives at all.

(B) opens the door to a broader application of torture than is usually allowed to be acceptable by those invoking TB scenarios: Are terrorist hatching plots right now that threaten innocent lives? Are some of these plots close to fruition? It’s Bush administration gospel that they are. Isn’t it desirable to find out about these plots, and find out how to stop them, as soon as possible? Well, if we torture, say, a Guantanamo detainee just to see if he happens to have details that can end a threat we don’t yet know about, and we find out he does, isn‘t that better than not finding out and suffering mass casualties? It’s this kind of “speculative” torture that (B) seems to legitimize. X claims not to know about any plots, but he's a godless, freedom-hating terrorist, let’s torture him to see if, in fact, he does know how to stop a plot already underway to take innocent lives. We just might find out he was lying and save a lot of people.

The ticking bomb scenario does not define a narrow range of circumstances where torture is clearly permissible. Rather, a justification of torture based on TB scenarios opens the door to a broad, unacceptably broad I would argue, application of torture in the name of protecting innocent lives.

Alan Dershowitz on Ticking Bomb Torture

2007-11-17T15:51:00.000-08:00

Alan Dershowitz seems to think that “ticking bomb” (TB) cases end the discussion about whether torture is justified. All that's left to discuss is whether we are to torture covertly or openly:

“Although I am personally opposed to the use of torture, I have no doubt that any president--indeed any leader of a democratic nation--would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability.”

Obviously, if a leader believes that torture is “the only way of securing information necessary to prevent an imminent mass casualty attack” they might authorize torture. The question, of course, is should they believe it? Is it, in fact, true? An authorization of torture based on a false belief in its efficacy would warrant not only the moral commendation Dershowitz’s personal opposition to torture would presumably bring, but legal condemnation as well.

Declarations to the contrary aside, there is a dispute about whether torture is ever the only way, or even the most expeditious way, to secure accurate, actionable information in a ticking bomb scenario. Dershowitz does not address these larger questions. In the only example of a real world TB case that he offers the vital information that averts imminent danger is not obtained by torture. After recounting it, Dershowitz asks: ‘what if lawful interrogation hadn’t worked in this case?’ Well, what if it hadn’t? It is hardly self-evident that we should default to torture just because it’s all that’s left. Dershowitz gives us no reason to think authorizing torture would be justified if this were so, he only offers this tilt at a straw man:

“There are some who claim that torture is a non-issue because it never works--it only produces false information. [Who?] This is simply not true, as evidenced by the many decent members of the French Resistance who, under Nazi torture, disclosed the locations of their closest friends and relatives.”

Clearly, torture can produce accurate information. That alone will hardly serve as a justification for authorizing it, any more than the fact that the Nazis produced useful medical information via experimentation on unwilling human subjects would justify authorizing that practice.

While torture can work, the overarching practical problem for torture, a problem heightened in TB cases where time is of the essence, is always how to winnow what’s true from what’s said in an attempt to end the torture. Dershowitz apparently has this problem in mind when he offers this distinction:

[Torture applied in a TB situation] “ …is not designed to secure confessions of past crimes, but rather to obtain real time, actionable intelligence deemed necessary to prevent an act of mass casualty terrorism. The question put to the captured terrorist is not "Did you do it?" Instead, the suspect is asked to disclose self-proving information, such as the location of the bomber.”

By invoking the idea of "self-proving information" in his distinction between torture for confession and torture in TB cases, Dershowitz seems to be suggesting that the general unreliability of information obtained by torture (e.g., the unreliability of confessions obtained by torture) can be offset by the use of questions that elicit this kind of information.

But what is “self-proving information"? Dershowitz seems to have in mind statements like: “the bomber is at 123 Main St.,” which suggests that “self-proving” is nothing more than “verifiable.” Statements such as “the code to defuse the bomb is 3451” obtained under torture are clearly verifiable. If you enter it, and its really the detonation code, the resulting explosion will neatly verify that the statement is false.

There’s no reason whatsoever to think that because the questions asked in a TB case are different from those asked when torture seeks a confession, the information obtained is somehow more reliable.

Under what circumstances, if any, would a leader be justified in authorizing torture to save innocent lives? Merely being confronted with a TB scenario isn‘t enough, as Dershowitz’s own real world TB case shows: no torture was necessary to resolve it. The fact that torture can work isn’t enough either. If that alone were sufficient justification all torture would be permissible and a leader would be justified it authorizing it carte blanche. If anything justifies authorizing torture in a TB case it is a well-founded conviction that torture is, in fact, the only interrogation technique capable of producing the accurate, actionable information necessary in the time available.

But upon what would a leader base this conviction? The almost universal consensuses among interrogators seems to be that statements obtained by torture are less reliable than those obtained by conventional techniques. Misleading talk about “self-proving” statements aside, there is no easy way to quickly separate truthful statements obtained by torture from lies told to end torture. Quickly obtaining the least reliable information is not what ticking bomb cases require.

But even if torture is generally unreliable, when all else fails, and the bomb is still ticking, wouldn’t a leader be justified in authorizing torture as the only remaining way to prevent mass casualties?

First, lets be clear in a way Dershowitz is not that such authorization could never be based on the fact that casualties will be prevented by torture. At best, torture offers a slim hope that they might be prevented. But if torture in general isn’t justified simply because it might work, then torture in TB cases in particular is not justified simply because it might work. Appeals to the number of victims that might be saved verses one terrorist who will be tortured won’t work either. If torture in general isn’t justifiable simply because it is cost-effective in terms of lives and/or suffering, then torture in TB cases isn’t justified for that reason alone either.

Authorizing torture as a “Hail Mary,” just because it might work, is morally indefensible. If allowed to justify, say, waterboarding this way, the same argument (“it might work, and if it does, many will be saved“) could be used to justify the most barbarous extremes. (“Captured terrorist Al Badgai swears he’ll reveal the location of the ticking nuke if I behead Dick Cheney in front of him. I have every reason to believe he’s sincere, so it just might work….”)

Authorizing torture in a TB case based on the mistaken conviction that torture is more, not less, likely to produce reliable, actionable information, or because torture is all we have left, is wrong.

Ignoring 1,000,000 Dead

2007-11-16T07:41:00.000-08:00

More than 1,000,000 Iraqis have died since the war began. So the British based research firm OBR reported this September in a study that corroborates the work of Gilbert Burnham et.al. of the Johns Hopkins Bloomberg School of Public Health, who reported in “Mortality after the 2003 invasion of Iraq: a cross-sectional cluster sample survey” (1) that as of July 2006, approximately 600,000 Iraqis had met violent deaths.

The American civil war killed 1.4% of the American population. According to these two studies, twice that percentage of the Iraqi population has been killed in the Iraq war. So why aren’t these figures more widely reported and accepted?

In a testament to the power of disinformation when coupled with an incurious press, the 2006 peer-reviewed mortality study publish in The Lancet is still labeled “disputed” in popular reporting. This label seems to derive almost exclusively from a remark made by George Bush after the study originally appeared: "the methodology is pretty well discredited."

The survey method used by the study, far from being discredited, is one used now in american political surveys. It has previously been used to give accepted mortality estimates in Kosovo, the Congo and Darfur, among other places.

"While the Lancet numbers are shocking" says Rebecca Goldin in The Science of Counting the Dead "the study’s methodology is not. The scientific community is in agreement over the statistical methods used to collect the data and the validity of the conclusions drawn by the researchers conducting the study."

Dan Murphy of the CSM quotes Richard Garfield, public health professor at Columbia University on the president‘s remark:

“I loved when President Bush said 'their methodology has been pretty well discredited,' That's exactly wrong. There is no discrediting of this methodology. I don't think there's anyone who's been involved in mortality research who thinks there's a better way to do it in unsecured areas. I have never heard of any argument in this field that says there's a better way to do it."

The majority of the criticism not based on Bush’s unsupported, and in fact false, claim about methodology seems based on the observation that this study's numbers don’t jibe with the numbers compiled by Iraq Body Count (IBC).

The authors address this “problem” in their “The Human Cost of the War in Iraq: A Mortality Study, 2002-2006”:

“The IBC uses passive surveillance techniques, which depend upon available reports from the news media, in contrast to an active search for dead bodies. This brings about the possibility of gross underestimations. A significant number of deaths are not reported by the media, especially ones that occur in less populated or well known areas. In addition, the IBC methodology is conservative and excludes data that do not meet their set standards. Marc Herold, an economist on the IBC team, believed that the count is
likely too low because thousands of deaths may go unreported due to lack of media coverage.”

The same article includes this graphic which plots the deaths recorded by IBC the DOD and the authors' household survey:

The authors note: “Although the numbers we estimate through population-based methods are substantially greater than the numbers of deaths counted by the other two, the figure shows that over time the trends are almost identical. This is clear evidence that the three studies have measured the same events, and further reinforces the results of the population based data. This difference in numbers but similarity in trends is typical of the differences between active and passive public health surveillance seen in many conditions.”

It is important to keep in mind that IBC does not measure civilian deaths in Iraq. IBC tracks media reports of civilian deaths in Iraq. Period. If civilian deaths are under-reported in the media, IBC's numbers will not accurately reflect the true number of civilian casualties.

Is there reason to think under-reporting happens? Absolutely, and not only in environments actively hostile to journalists. One of the study's authors, Les Roberts, noted in an interview: “When in 2005, a UN survey reported that 90 per cent of violent attacks in Scotland were not recorded by the police, no one, not even the police, disputed this finding.”

According to Human Rights Watch, Saddam Hussein may have killed as many as 290,000 people over 24 years. Add to this another million or so killed in the war with Iran to arrive at a figure of 1,290,000 deaths attributable to Saddam Hussein.

The OBR estimates 1,220,580 Iraqis have been killed since the beginning of the war. Extrapolation from the Lancet Study figure of 600,000 in 2006 results in a similar figure. The best evidence, including the only peer-reviewed evidence, suggests that in the space of 5 years the Iraq war has killed as many Iraqis as Saddam did in 24 years.

(1) “Mortality after the 2003 invasion of Iraq: a cross-sectional cluster sample survey” was written by Gilbert Burnham, Riyadh Lafta, Shannon Doocy and Les Roberts.