Tuesday, April 28, 2009

About Those Memos

Is OPR Report the Key?

This story from the Future of Freedom Foundation's Andy Worthington (h/t Mike's Blog Roundup) has some interesting facts about the torture memos affair.

Some people have been saying that a full investigation won't and shouldn't get underway until the release of a report by the DoJ's Office of Professional Responsibility into actions taken by the Office of Legal Counsel, another branch of DoJ, the latter having much closer ties with the White House. OPR has been investigating OLC for FOUR YEARS now.
[T]he Justice Department’s Office of Professional Responsibility (OPR), ... was charged with looking at whether the legal advice in the crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.”

According to Newsweek’s Michael Isikoff, who broke the story, a draft of the report, submitted in the final weeks of the Bush administration, caused anxiety among former Bush administration officials, because “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.
That's news to me, and a significant positive for those who wish to see justice done on this issue. We already know that these memos were complete fabrications by any legal standards; created to provide an impression of legality that was utterly without substance. Chances are very good that the internal e-mails and multiple drafts will show that the various players - Bybee, Yoo, Bradbury, Gonzales, etc. - were not just bad lawyers doing sloppy work, but criminals entering into a conspiracy against the constitution and rule of law. Another repercussion if this is found to be the case -- the attorney-client privilege goes out the window. But even more significantly,
The OLC, as the New York Times explained in September 2007, holds a uniquely influential position, as it “interprets all laws that bear on the powers of the executive branch. The opinions of the head of the office are binding, except on the rare occasions when they are reversed by the attorney general or the president.” The legal opinions were, therefore, regarded as a “golden shield” by the administration, although, as lawyer Peter Weiss noted after I last wrote about the Bush administration’s war crimes, “it cannot be binding if it violates the constitution, or a jus cogens prohibition of international law, e.g. torture, or, perhaps, if it was made to order for the executive, as you demonstrate it was.”
So, such a finding would not only put exoneration for the memos' authors well out of reach, it would nullify any protection that those documents extend to any of the torturers themselves. Note that I'm speaking in legal, not political terms. Political mechanisms for protecting the guilty seem to be both numerous and robust. Even so, the anonymous former Bush lawyer quoted above who was "stunned to discover" the details at OPR's disposal must be filling his Fruit of the Looms. A particular sticky point hinges on the actions of Jack Goldsmith.
...Jack Goldsmith ... took over from Bybee as the head of the OLC in October 2003. A supposedly “safe pair of hands,” who, with Yoo, was regarded as “a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts,” Goldsmith in fact turned out to be a nightmare for the administration, as he withdrew four pieces of legal advice — including the “torture memo” and a March 2003 memo approving the more general use of “enhanced interrogation techniques” — because he regarded them as “tendentious, overly broad and legally flawed.”

As Goldsmith explained in September 2007 to Jeffrey Rosen of the New York Times, he concluded that the “torture memo” contained advice that “defined torture far too narrowly,” and also took exception to the memo’s claim that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the commander in chief authority in the president,” explaining that he believed that “this extreme conclusion” would “call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment.” He added that he “found the tone of both opinions ‘tendentious’ rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.”

When it came to withdrawing the “torture memo,” Goldsmith was acutely aware that it would anger the administration, because it “provided the legal foundation for the CIA’s interrogation program,” and, as Rosen described it,
He made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. ”If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. ”The timing was designed to ensure that the decision stuck.
Given the time line there should be no-one whose undies are more stained than those of the OLC’s Principal Deputy Assistant Attorney General, Steven G. Bradbury. Yoo and Bybee might argue, however lamely, that they were just mistaken in their interpretation of the law, but Bradbury's three memos of May 2005 (available as PDFs here, here and here) came after Goldsmith had called bullshit on the earlier arguments. There seem no legal defenses left for Bradbury, unless he can demonstrate himself to have been clinically insane at the time. Then again, the APA might add Republicanism to its list of mental defects in the next DSM IV.

As I noted above, as dire as things get for these potential defendants in pure legal terms, there is still a chance that political forces wishing to just move on will prevail. As Worthington notes,
I maintain, as I last stressed a month ago, that the release of the OPR report is of critical importance (especially in light of recent reports that it has been rewritten, or is being rewritten, to reach a less stark conclusion of wrongdoing), as it seems clear that it is the key to securing concrete proof of the involvement of Dick Cheney, David Addington and Alberto Gonzales in the creation of the torture memos.
If true, that sucks. And what sucks worse is the way that the Lamestream Media has bent over backwards to portray the entire torture program in very Cheney-esque terms, as though it were 'a dunk in the water' being talked about here. Something you can do wearing a suit and tie, like watering the plant next to your desk in the office. (see illustration, top)

Glenn Greenwald has of course been meticulously chronicling the media's wave of propaganda in defense of the indefensible here, here, here, here, here and here. He's also done a post on the complicity of the Democrats here. So don't hold your breath waiting for justice - if you do you may end up feeling like a waterboarding victim yourself.

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Thursday, April 23, 2009

Things that make RevPhat Cuss, #266

I've been reading Digby and Emptywheel and Ackerman this morning. So the way I'm understanding it, this is why the Bush regime tortured in my name:

Digby concludes:
If the SASC report is correct, then much of the torture regime was devised to justify the invasion of Iraq. It explains why Cheney is out there behaving like he's on methamphetamines. If that's the case, he and Bush and all those who signed off on it are subject not only to prosecution, they are subject to the kind of historical legacy reserved for the worst of the worst. This is as bad as it gets.
I hope she's right. I hope this is as bad as it gets. Because this is fucking sick. Fucking cowards.

Wednesday, April 22, 2009

I Am A Newly Minted "Uncle"

Baby "ruschka" made her appearance Saturday at 8:18 Mountain time.

Damn russkis were all secretive until last night.

Proud papa was tired, but happy, reporting the events to me last night. Once all the immediate family was notified, which took some time across continents and stuff, mere mortals like myself were allowed to know.

Reports are that she has the same beautiful hazel eyes and dark hair as her mom.

Lettuce spray that she has the same sensibilities; her parents are top drawer humans. They let me in their house! Wild! How crazy is that?

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Friday, April 17, 2009

Nineteen Reasons We Should Encourage Texas to Secede

No, Nosy isn't dead. Here are 19 reason thinking Americans should encourage the Lone Star State to go it alone:

1) 49th in teacher pay
2) 1st in the percentage of people over 25 without a high school diploma
3) 41st in high school graduation rate
4) 46th in SAT scores
5) 1st in percentage of uninsured children
6) 1st in percentage of population uninsured
7) 1st in percentage of non-elderly uninsured
8) 3rd in percentage of people living below the poverty level
9) 49th in average Women Infant and Children benefit payments
10) 1st in teenage birth rate
11) 50th in average credit scores for loan applicants
12) 1st in air pollution emissions
13) 1st in volume of volatile organic compounds released into the air
14) 1st in amount of toxic chemicals released into water
15) 1st in amount of recognized cancer-causing carcinogens released into air
16) 1st in amount of carbon dioxide emissions
17) 50th in homeowners' insurance affordability
18) 50th in percentage of voting age population that votes
19) 1st in annual number of executions

Of course, they are number one in wind energy generation but with Rick Perry for a governor, what could you expect? I'd vote immediately to approve secession provided they take everything south of the Ohio River with them.
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"Mr. President, You're Wrong."
KO did a good job here, and his historical perspective on the costs of 'going forward' without resolving an issue is exactly the way I would have gone but I have one quibble. It's about this quote from PresBo:
"Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future."
Olbermann incorrectly assumes that the divisive forces that Obama refers to are "the ones lingering with pervasive stench from the previous administration." This is an understandable mistake on Mr. Olbermann's part, for one can certainly identify a number of sources of the stench to which he refers.

There are still dozens if not hundreds of partisan Republican civil servants in the DoJ alone, illegally hired by Monica Goodling and now embedded there like a colony of cockroaches under the sink. Ironically it would now be illegal to fire those illegally hirees, due to civil service regulations. Sad, but true.

There are still many partisan Republican US Attorneys appointed by the Bush administration whom Obama has not bothered to replace, and who have refused to resign as is traditionally done; hacks like Mary Beth Buchanan, who incidentally hired Goodling. In that latter instance, Obama has the option of firing any US Attorney he wishes to and hiring replacements, a relatively light duty task that would have the effect, stench-wise, of Hercules' cleaning out of the Augean Stables, without any of the heavy lifting required.

Or perhaps the stench emanates from the right-wing extremists recently designated a threat by the Department of Homeland Security - the redneck racist core of what's left of GOP electoral support. (Ya gotta love Janeane Garofolo's description of this crowd, "You can tell these type of right-wingers anything and they'll believe it - except the truth. You tell them the truth and it's like showing Frankenstein's monster fire.") An even greater reek rises out of the studios of FOX "news," who are usually the one telling them anything but the truth, and egging them on.

With all these candidates to be the divisive forces I have to conclude from the context that Obama is really talking about those who insist on the continuing rule of law, those who demand that criminals be brought to court and prosecuted. Us. We are, in Obama's reckoning, 'the forces that divide us.'

What really divides 'us' (those who wish for transparency and accountability) at least today, is the question of whether Obama should be praised for the transparency inherent in the release of these documents or condemned for putting yet another item of accountability off the table. Glenn Greenwald argues that we should both praise him on the one hand and condemn him on the other. This would be a very rare instance of my disagreeing with GG on even a small point and even now it's only a matter of degree. Because he's right - Obama does deserve some praise for releasing these memos, just not very much.

For me the balance lies in the duplicity in the first part of the quote above. To talk about, "America's ability to right its course in concert with our core values" while promising to resist all calls to exercise that ability only leaves America on the wrong course, and bereft of core values. The rest of the world will take Obama's pledge with the same seriousness as someone who tells you, "I could benchpress 1,000 lbs., I just don't want to." Yeah, right buddy. Uh huh.

The president and his Attorney General seem to be on the same page on the issue of protecting the guilty. As Glenn Greenwald quoted them,
Barack Obama, yesterday:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.
Eric Holder, yesterday:
It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.
That's pretty unambiguous. Jonathan Turley responded just as unambiguously on the Rachel Maddow Show.
What is really disturbing is that President Obama is obviously referring to criminal investigation and prosecution ... somehow he's equating the enforcement of federal laws -- that he took an oath to enforce to uphold the constitution and our laws -- and he's equating that with an act of retribution, and some sort of hissy fit or blame game. It's not retribution to enforce criminal laws. What it is is obstruction to prevent that enforcement, and that is exactly what he's done thus far.
That sounds like a clarion call to me, "PROSECUTE!!" And it also sounds like a counter-argument to what Greenwald calls "an unhealthy tendency to want to make categorical, absolute judgments about the persona of politicians generally and Obama especially." Well Glenn, he's a politician and until some mechanism comes along where the electorate can vote in a different guy for each issue (or in this case for each action taken on the same issue) you're going to see a lot of that. Someone being selected to make decisions on a wide variety of matters over a period of at least four years must eventually be judged on his overall character.

And bottom line, the release of these memos was required by law. Obama himself acknowledges that. And so are investigations required by law, a law that is so far being broken. So we have a case similar to someone who comes to a full stop at a red light, then makes an illegal left turn and runs over a pedestrian. I don't think the first cop on the scene is expected to heap any praise on that driver.


Wednesday, April 15, 2009

Canadian Study a Lesson for Teabaggers

"Three in Four Suffer From Cuts to Public Spending"

From CBC.ca:
Tax cuts could diminish the standard of living for the vast majority of Canadians who enjoy the public services that they fund, according to a study (pdf HERE) by the Canadian Centre for Policy Alternatives released on Wednesday.

The majority of Canadian households enjoy a higher quality of life because of the public services their taxes fund, the study argues.
"What passes for a tax cut debate in Canada is really only half the debate," said study co-author Hugh Mackenzie, an economist. ..."The suggestion we often hear, that taxes are a burden, hides the reality that our taxes fund public services that make Canada's standard of living among the very best," he said.

The study uses Statistics Canada data on government revenues and expenditures to compare public spending in categories including health care, education, social services, old-age security benefits and employment insurance. ...Using the statistics, the report finds that the average per capita benefit from public services in Canada in 2006 was about $16,952.
"The overall impact of tax cuts — and the cuts in public services that accompany them — has not been addressed in any substantive way," the study states. "Tax cuts are always made to sound like they're free money to middle income Canadians. They are anything but," Mackenzie said. "We're far better off with the public services our taxes fund than we are with tax cuts." Any reduction in income tax results in an equivalent constraint on public spending, the study says, and about three in four Canadians suffer from cuts to public spending.

Overall, the tax cuts implemented in Canada in the last 15 years have had the net effect of reducing the living standards of most Canadians, the reports says.

The study also finds that the number of public services used by Canadians appears to increase as household income and size increase. This is particularly true for households that have children who are accessing publicly funded elementary and secondary schools and seniors who are more likely to use the public health-care system. "Families with young children will tend to benefit relatively more from the health-care system, whereas families with older children will tend to benefit from the public education system to a greater extent than other types of families," the study states.
It's not hard to predict the kind of reaction that this report is going to get from the conservative movement in the US. Reports based on provable facts and confirm-able statistics are not to their liking anyway. They much prefer to rely on ideologically-based theory drawn out of thin air (or worse) - thin air that evidently gets compressed and heated, then spewed out of bloviators' blowholes at FOX "news" in support of this tea-bagging movement. Which, by the way, is an excellent example of astroturfing as defined by Wikipedia, "formal political, advertising, or public relations campaigns seeking to create the impression of being spontaneous "grassroots" behavior, hence the reference to the artificial grass, AstroTurf."

Nor should the motive behind this campaign escape anyone but the morans (sic, see photo) it is directed towards. (or should that be against?) The conservative movement has been pretty successful in the past at getting the poorly educated to vote against their own interests based on simplistic slogans. "Read my lips, just say no, drill baby drill" etcetera. My guess is that they're trying to bring back the glory days of monosyllabic right-tard propaganda -- in spite of being utterly discredited by the spectacular economic disaster wrought from their trickle-down 'free market' policies. My hope is that they're wrong, and that even the worst of the low-information voters will wake up once they've lost their jobs and their homes, and are living in cardboard boxes and depending on food stamps. But then, past experience has been that really poor people don't vote at all, and the GOP has made it nearly impossible for the homeless to even register to vote, so that hope might be a bit optimistic.

The Economist just hosted a debate on whether it's time that the rich be required to pay more in taxes. Just reading some of the closing remarks by Chris Edwards of the Cato institute, arguing against the motion, reveals the paucity of the conservative argument. Unable to attack the logic of his opponent, he mounts a personal, ad hominem attack. "[Parisian economist Thomas] Piketty's understanding of the nature of income is very European, " he whinges. Name calling is rightly regarded as the lowest rung on the scale of debating technique, (see triangular diagram near the bottom) and is characteristic of someone who can't base their argument on facts or logic. So I would say the pro-tax side won the argument.

(Parenthetically, it could, should and must be said that this debate is just one battle being fought in an ongoing and increasingly bitter war between the classes. Because this whole unfortunately named teabagging movement is nothing more than a propaganda effort to perpetuate the Reagan tax cuts. The rich would prefer that you pay for the jackboot that presses against your own neck. If you don't mind, there's a good boy.)

One of the comments at The Economist succinctly expresses why certain functions should not and can not be left to the marketplace.
Of course, the free market doesn't provide universal quality education: thus we must rely on governments to provide this service, and others like it that also serve the greater good but generate no profit. Isn't that the point of taxes in the first place?
You'll often hear Thom Hartmann make the same point in a slightly different way on his radio show. "Don't we already have socialist fire services, socialist police forces, socialist roadways, and a socialist armed forces?"

I would add an observation of my own to that argument. When governments contract out to private enterprise to provide necessary services, they almost invariably do so under a system that is more crony capitalism than healthy competitive free enterprise. Can you say 'cost-plus, no-bid?' It is far better for the public that the money be spent within a government department where it can be more carefully controlled, and where there is recourse for diversion, mis-spending and waste. The whole 'privatization is more efficient' argument falls apart under any close examination.

Certainly the argument against paying taxes for government corruption is a valid one, but just as certainly the remedy is to attack the corruption, not the taxation. Ironically the same type of people who want to spare their buddies the burden of paying their fair share tend to be the type who want to pay off those same buddies through graft. A kind of self-fulfilling prophecy which if you think of it is hardly surprising considering that they want the government to fail. Or at least they claim to; really what they want is a government under their control - maximizing and guaranteeing their profits, socializing their losses, and calling out the guard should the hoi-polloi ever get fed up with the arrangement. In a word, fascism.

Going back to the comment made in The Economist, I think the author chose the perfect example. There is no better investment that a government can make than providing the public with free quality education. A better-educated citizen will earn much more during his lifetime, eventually paying back all the taxes gone into his schooling with interest. Which a wise government will then re-invest on educating his kids.

Maybe it's high time that the wise taxpayer learned that simple lesson. It would certainly be preferred to being conned into participating in some phony protest against your own interests.

ADDENDUM: Just as one example of the COST of LOWER taxes, here's a study of what it cost Americans to NOT have universal health care. (From the National Coalition on Health Care.) Just one fact from this piece forms a conclusive argument. The US spends 17% of GDP on health care and 40% of people are either not covered or not sufficiently covered. Canada covers EVERYBODY for 9.7% of GDP.


Wednesday, April 01, 2009

London Calling

Pissed off people, doing something about it:

And the reporter in the middle of it. Good for him!

From Digby:

Update: Zbigniew Brzeznski just said, when asked about whether the G20 leaders care about these protests:
It is a signal to all of us, including them, that if the economic financial crisis is not brought under some constructive control we could have a repetion of this in many other parts of the world, including in the United States.

You know there is a potential rage, public rage, in the United States, at the unfairness and inequality that's involved in the financial crisis and the financial scandal.
Seriously, these MOUs really need to stop their public whining and get behind some things like Grayson's measure. They are fanning the flames of their own funeral pyre. It's just dumb.

Yep - it's just dumb.

Now, just for fun, and reminds me of my punk/eurotrash days:

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