Category Archives: torture

>Who Loves You? Clue: It’s Not the Hedge Funds

>** Message to any Nevadan, sitting in a home devalued by the collapse of the housing bubble inflated by the rampant speculation in securitized assets included therein: The Hedge Funds Are Not Your Friend. Just ask the Greeks. We may be seeing a repeat performance of the 1997-98 Hong Kong Double Play. [Sky] The Chicago Mercantile Exchange estimates that speculators have bet some $7.6 billion “in short positions” against the Euro. This needn’t be Greek to anyone. The ploy is almost simplicity itself.

Greece could have continued to fudge the figures concerning its level of indebtedness, but its new government chose not to do so. Therefore, in an already weakened economic situation, with a tax structure distinctly favoring the nation’s richest citizens, the Greeks were looking at an even more dire set of prospects when the “honest numbers” were revealed. Enter the Speculators, betting against the currency. Heads they win, Tails they win.

They (the speculators) said we can’t lose because if they don’t defend the currency, we’ll make money on the currency. “If they do defend it, we’ll make money on the stock market.” [Sky] What’s eminently clear at this point is that the speculators don’t give a large rodent’s rear end if the Greeks, the Spanish, the Portuguese, or any other government, has to make ever more expensive debt payments created by rising interest rates. Nor do they care if these governments have to trim economic stimulation and infrastructure spending to defend their economies — because the Speculators will simply shift the short positions from the currency markets to the stock markets. [GuardianUK]

What responsible governments can, and probably should, do is to support the Greek’s attempts to introduce those measures that can restrain spending without hampering long term economic prospects, and “burn the speculators” by intervening before the Hong Kong Double Play is reincarnated on the Greek peninsula.

Want to get into the weeds on this topic? See Chicago Fed’s copy of “The Double Play: Simultaneous Speculative Attacks on Currency and Equity Markets.” [PDF] Congressional Research Service, “The 1997-98 Asian Financial Crisis” (FAS) “The 1997-98 Korean Financial Crisis: Causes, Policy Responses, and Lessons” IMF (PDF)

** After loudly calling for televising the Senate meetings on the reconciliation of the House and Senate versions of health care reform legislation, Rep. John Boehner (R-OH) is hedging about attending the health care talks scheduled by the White House because…they’ll be televised. The GOP stall campaign started with the call months ago to “start over” (since at least last July) and now incorporates Boehner’s rather old idea that there should be no plan under discussion — just a plain sheet of paper. [TPM]

** If you missed this, a reminder: “The OPR’s Torture Memo will be an assault on the rule of law” [Unbossed] And, yes there’s now a time line of The Brief Bomber’s interrogation [WaPo] which doesn’t beat the Bush Adminstration’s five minute record for the Shoe Bomber.

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Filed under financial regulation, Health Care, torture

>By the Numbers: Wal-Mart Up, Guantanamo Down


Good news? The Shopping Center industry’s annual convention in Las Vegas, NV put the spotlight on “retailers that continue to aggressively expand despite the recession.” Who’s on top of the list? Wal-Mart. “Heading the list was Wal-Mart Stores Inc., which, despite the economic slowdown, plans to spend $12.5 billion to $13.55 billion in the fiscal year that started Feb. 1 on capital expenditures, including opening, relocating or expanding 165 to 185 stores in the United States and 550-600 in other nations.” [full story at Las Vegas Sun] The retail mega-operation can afford up to $13.55 billion for expansion, but is still offering its employees who work “full time” at 34 hours per week an average wage of $10.86 per hour, for a total of $19,200.48 per year? Wal-Mart issues statistics on its average hourly wage, but will not make public its median wage figures. Therefore, what the public sees are skewed figures in which the hourly wages for both managers and “store associates” are averaged in together. [WMW]

Accountability? The U.S. Supreme Court ruled against Javaid Iqbal’s lawsuit contending that former Attorney General John Ashcroft and FBI Director Robert Mueller saying Iqbal cannot demonstrate a link between the abuse (six months in solitary confinement in New York after 9/11) and Mr. Mueller and Mr. Ashcroft. [WaPo] Approximately 1,200 people were rounded up and detained after the attacks of September 11, 2001 and the Justice Department’s IG reported in 2003: “In a widely noted report released earlier this month, the IG found ”significant problems” in the way federal officials dealt with the post-Sep. 11 roundups. Dozens of detainees were subject to verbal and physical abuse by guards at the facility, where they were left to languish in ”unduly harsh” conditions for months, some without access to family members or attorneys, it said.” [CD]

Why are the Republicans going after Pelosi? The 107th Congress was in session from January 3, 2001 until January 2, 2003. The Speaker of the House at the time those controversial “briefings on torture practices” took place (September 2002) DENNIS HASTERT (R-IL) was Speaker of the House. Dennis Hastert (R-IL) was a member, ex officio, of the Intelligence committee. Pelosi was the ranking Democrat on the House Select Committee on Intelligence during the 107th, however there was nothing much she might have done about the use of torture by U.S. interrogators without the cooperation of PORTER GOSS (F-FL) who was chairman at the time. Among the Republicans on the House Select Committee on Intelligence during the 107th Congress – James Gibbons (R-NV) [LOC] So, why didn’t the GOP leadership of the House force the Bush Administration to stop the use of torture? They were in a much better position to do so.

During the 108th Congress, Rep. Goss remained as chairman, and had this to say about the functioning of his committee: “We take these oversight responsibilities very seriously, as does the leadership of Congress. Members of the committee are selected not by their party caucuses, but by those elected to lead their parties. All of the Members of the committee are appointed by the Speaker of the House. We hire a professional staff with experience in intelligence, legal, and legislative matters. We are very proud of the way the committee’s Members work in a bipartisan fashion on some of the most difficult national security problems faced by the United States.” [LOC] (emphasis added) Evidently, not quite seriously enough? At any rate, what we have here is an exercise in media irrelevance. Once more the corporate media gets distracted by the Shiny Object (Newt Gingrich, et. al.) and misses the point. Who authorized, executed, and implemented the use of torture on persons detained in U.S. custody?

More on Senator Ensign’s “worst of the worst” in Guantanamo: Someone actually did a study of the detainees, Professor Mark Denbeaux, of the Seton Hall University School of Law. His conclusions – by November 2006 approximately 45% of all detainees ever held at Guantanamo Bay were released; 55% were never alleged to have committed hostile acts against U.S. or allied forces; 60% were nothing more than associated with Al Qaeda or the Taliban; and, no more than 8% were accused of being ‘fighters.’ There are even more interesting numbers.

The 8% alleged to be ‘fighters’ were released at the same rate as the 60% alleged to be merely associated with terrorist groups. Alleged ‘fighters’ have been released at a rate greater than that for alleged ‘members’ and ‘associates.’ ‘Fighters’ were released an average of 43 days earlier than ‘associated’ with terrorist organizations. ‘Fighters’ were released an average of 57 days earlier than those held because they were ‘members’ of a terrorist organization.

Conclusion? “A review of the Department of Defense’s own data reveals that there is not a consistent practice of releasing detainees based on their alleged association to Al Qaeda and/or the Taliban. In addition, the number of charges against any given detainee does not seem to affect his release date. Instead, the only constant correlation to detainees who are released earlier than others is the nationality of those released. A finding that the only causal relation to release date is nationality shows that either the Department of Defense never believed their own allegations for the basis of detention, or that they knowingly released individuals they believed to be dangerous.” [Denbeaux] (via FactCheck)


Filed under Economy, Ensign, Guantanamo, torture

>Six Illogical Errors: Torture Apologists and Their Arguments


Each day brings another form of tortured logic to the torture debate. The following are the six lines of argument offered so far by the apologists for the application of torture on persons in U.S. custody – and why those arguments are tenuous, irrelevant, or simply downright obnoxious.

Is the application of torture a violation of U.S. statutes? Yes. See Title 18, Part 1, Chapter 113C (2340) in which torture is defined. Paragraph 2340A specifies the offense.

What are the main lines of argument offered in support of the Bush Administration’s use of torture on detainees?

  1. What was done to the detainees really wasn’t torture. Tautological circumlocution, as evidenced in the Bybee/Yoo memos is required to make this argument, contentions which brush perilously close to the edge of “it’s not illegal if the President does it.” The memos sought by the former Administration seek to define torture so narrowly that almost any action might be determined beyond the scope of the statute, even actions determined to be torture in established precedents. Torture apologists then argue that it can’t be torture if it was performed on members of the U.S. military. The concept of intent, so important to the Bybee attempts at justification, has to be ignored if the torture proponents wish to enter this thicket. The intent of the SERE program, in which members of the Armed Forces are subjected to torture techniques, is to introduce the trainees to those interrogation methods used by unscrupulous adversaries – for the express purpose of teaching the trainee how to avoid giving useful or operational information. Torture apologists really can’t have it both ways, and by attempting to argue both (a) it really wasn’t torture in the first place, and (b) it can’t be torture if we did it to our own troops, the apologists have placed themselves securely on the horns of their own dilemma.

  2. What was done was torture, but it was necessary to protect the nation. The ‘necessity defense’ has no traction in this country, but finds some support in rulings of the Israeli Supreme Court. There is a fundamental hypocrisy in evidence when conservative torture apologists, who otherwise deride the acknowledgment of international laws and agreements, seek to advance the ‘necessity defense’ as set forth in foreign courts. However, the hypocrisy isn’t the main problem with this line of argument. The most popular incarnation of this defense is the ubiquitous “Ticking Bomb” scenario. The assumption underlying this fantasy is that, just like in the movies and on scripted television shows, the ‘bad guy’ will endure a few seconds of punishment and promptly ‘give up’ the location of the device. If these scripts were applicable in the real world then why would one detainee be subjected to waterboarding 83 times? The testimony available to date indicates that the waterboarding and other torture methods actually stopped detainees from cooperating with their interrogators. If we really want immediate and useful information about the location of that “Hollywood Bomb” then the slow application of torture would, in reality, produce the opposite result from that which we desire – reliable and truthful information. Perhaps we ought to remember that our adversaries may also be training to avoid giving useful, truthful, and reliable information under torture?

  3. There was torture, but those people who knew about it didn’t do anything at the time. The recent assertions that House Speaker Nancy Pelosi, Senator Shelby, former Congressman Porter Goss, and former Senator Graham (FL), knew from briefings about the use of torture and did nothing at the time to stop the practices assumes that there was something they could have done. The Senate Intelligence Committee’s Rule 9.7 deals directly with classified briefings and information: “No member of the Committee or of the Committee staff shall disclose, in whole or in part or by way of summary, the contents of any classified or committee sensitive papers, materials, briefings, testimony, or other information in the possession of the Committee to any other person, except as specified in this rule.” And, the rule precludes sharing information without authorization. The House rules for its Intelligence Committee are equally stringent. Meeting are to be closed if the information received or discussed concerns: National security, Sensitive law enforcement information, Degrading or incriminating anyone; or otherwise violate House rules. When dealing with classified information members and committee staff “shall not at any time, either during that person’s tenure as a member of the committee or as committee staff, or anytime thereafter, discuss or disclose, or cause to be discussed or disclosed the classified substance of the work of the committee, any information received by the committee in executive session, any classified information received from any source, or the substance of any hearing that was closed to the public pursuant to these rules and the rules of the House. Frankly, this is one of the weaker arguments, and presents more distraction and explication. First, this line of argument admits that torture took place, (not a very comfortable admission for the torture apologists), and secondly, it assumes authority not granted to divulge the information received during the briefings, to anyone, much less the general public.

  4. There was torture, but then, there has always been torture so it must be effective. As stated in the previous post, this argument fails the laugh test. Merely because people have indulged in some belief or action over the centuries doesn’t mean the beliefs or actions are either effective or rational. The fact that for most of our existence as homo sapiens we dressed in animal skins and slept on the ground doesn’t imply that we should revert to doing so. Nor does this argument address questions of morality and ethics. Adultery has been a long standing human practice, that it has existed over the centuries doesn’t make it moral or ethical. Murder has been acknowledged since the Cain/Abel incident, but we do not condone it merely because of its historical tenure in the annals of mankind.

  5. There was torture, but to discuss it will embolden our enemies and place members of our government and Armed Services in jeopardy. Obviously, this argument, too, acknowledges the application of torture to detainees in U.S. custody; and it is no more reliable than the previous contentions in its abuse of reality. There has to be an initial determination that members of the CIA and the Armed Forces are already in jeopardy during the course of the work we send them to do on our behalf each and every day. The question, then, becomes does the acknowledgment of torture cause them to be in greater jeopardy? One of the more egregious results of our use of torture, and defiance of international standards, could easily be an opponent’s belief that if we torture their adherents then it must be perfectly acceptable for them to torture our military and intelligence personnel. Extrapolating these mutually destructive assumptions would logically lead to exactly the kind of sub-human behavior the authors and signers of the non-torture agreements sought to remove from the realm of acceptable human behavior in the first place. We would all be reduced to a level below that of the beasts of the forest; “nature is violent – only man is vile.” Surely, this bestial level of behavior is not what the torture apologists have in mind as they attempt to rationalize their conduct. If they do, then perhaps they should reflect on how much this reveals about themselves as opposed to how much it reveals about their adversaries?

  6. If you investigate the behavior of our Party, we’ll investigate yours. This line is closely related to the contention that any investigation of the behavior Bush Administration members is, of necessity and by definition, a political stunt. Partisanship often precludes logic, and certainly does so in this instance. The logical position is that questions of who knew what, or who may have acquiesced, are tangential. Anyone who was in a position of authority to devise, execute, and implement a policy of torture in contravention of U.S. law may be culpable for his or her actions; party affiliation is utterly irrelevant.

Tomorrow is another day, and no doubt more efforts to excuse the inexcusable and to justify the unjustifiable will be introduced to the discussion of this sad chapter in our nation’s history.

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>Torture Hearings Launched by Senate Judiciary Committee


While the distracted punditocracy discusses who was told what and when and did whatever, Senator Sheldon Whitehouse (D-RI) initiated hearings on the Bush Administration’s torture program. [SenJudCom] Among the statements, this from former State Department official Philip D. Zellikow: “The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information,” Zelikow said. “This was a mistake, perhaps a disastrous one. It was a collective failure. . . . Precisely because this was a collective failure, it is all the more important to comprehend it and learn from it.” [WaPo]

The New York Times characterized the hearing as a “bitter start.” The article references two lines of argument from torture apologists like Senator Lindsey Graham (R-SC). First, Graham alluded to the ‘feel safe’ contention – “would we be having this hearing if there were an attack this afternoon.” Secondly, he charged that torture techniques have been used for 500 years because they work.” The first contention requires the assumption that the use of torture yielded valuable information that directly prevented the planning or implementation of terrorist attacks – no such evidence is publicly available. The second contention assumes that the duration of a belief confirms its veracity. If this were true, then we could do without the nation’s meteorological services and simply rely on the predictions made by groundhogs for weather information.

Whitehouse opened the session saying, “Winston Churchill said, “In wartime, truth is so precious that she should always be attended by a bodyguard of lies.” The truth of our country’s descent into torture is not precious, it is noxious. But it has also been attended by a bodyguard of lies. This hearing is designed to begin to expose some of those lies, to prepare us to struggle with that noxious truth, and to examine the battlements of legal authority upon which that truth and its bodyguard of lies was constructed.”

The full statement from Philip D. Zellikow is available here in PDF format. FBI interrogator Ali Soufan added: “In addition the harsh techniques only serves to reinforce what the detainee has been prepared to expect if captured. This gives him a greater sense of control and predictability about his experience, and strengthens his will to resist,” during his opening statement.

David Luban took the underpinnings from beneath the legalistic ‘justifications’ for the Bybee/Yoo memos: “No lawyer’s advice should do that. The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct; they require competence; and they demand that lawyers explain enough that the client can make an informed decision, which surely means explaining the law as it is. These are standards that the entire legal profession recognizes. Unfortunately, the interrogation memos fall far short of professional standards of candid advice and independent judgment. They involve a selective and in places deeply eccentric reading of the law. The memos cherry-pick sources of law that back their conclusions, and leave out sources of law that do not. They read as if they were reverse engineered to reach a pre-determined outcome: approval of waterboarding and the other CIA techniques.” Jeffrey F. Addicott, of the St. Mary’s University School of Law provided an extended discussion of various interpretations and legal theories.

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>Thumbs Up, Down, and Sideways: Nevada’s Members of Congress and the Torture Apologist


Federal appellate judge, and torture apologist, Jay Bybee is now one for five in getting support for his “Enhanced Image” campaign from Nevada’s representatives on Capitol Hill. Only Senator John Ensign (R-NV) has given the author of the Tortures R’Us memos an unqualified thumbs up. Senator Harry Reid has not met with Bybee, and wants ‘more information’ [LV Sun] Representative Shelley Berkley (D-NV) has made her position clear, and according to the Sun article, isn’t likely to reverse course. Representative Dina Titus’s comments lead a person to believe that she would listen to him – and then he would listen to her. “I’d like to hear from him if he thinks he made the right decision interpreting the law and doing the job as he saw it defined,” Titus said Wednesday. “But I also will not hesitate to make it clear to him that I absolutely disagree with his interpretation. The United States is not a country of torture.” Representative Dean Heller (R-NV2), who periodically inserts himself into southern Nevada political issues, appears to be staying out of this one.

Thumbs up to the unequivocal stance taken by Representative Berkley! For all intents and purposes there is no such thing as ‘enhanced interrogation;’ the concept is simply a legal fiction of convenience allowing the unscrupulous to do the unthinkable.

Thumbs up at a slight angle for the stance taken by Representative Titus. Granted she and Bybee have been professional colleagues, and there is something to getting both sides of the story. However, Bybee’s memos are the story. The tautological circumlocution required to sustain the argument that torture isn’t torture if one defines torture tortuously is proof in itself that Bybee has no ‘side’ to offer, merely excuses and rationalizations.

Thumbs sideways for Senator Harry Reid (D-NV). What more information could one possibly need about the memos that isn’t included in the memos themselves? Bybee wrote what his masters wanted to hear – not what the administration he served needed to know. There is no indication in the memos that Bybee looked seriously into the historical context of the torture issue. Had he done so it would have been evident at the outset that the Water Cure, Water Boarding, or any other manifestation of the technique, has been adjudicated and declared good old fashioned torture in well established precedents. Judge Bybee’s memos merely demonstrate the lengths to which sycophancy can beget illegal activity.

Thumbs down at a slight angle to Representative Dean Heller, usually so anxious to insert himself in those southern Nevada issues which might enhance his chances in a statewide election. A person could predict that Representative Heller will have something to say when the dust settles? Heller might benefit from a reminder that bad things happen when good people do nothing.

Thumbs down to torture apologist Senator John Ensign. Ensign has something of a track record in the Wet Pants Dance ensemble of the Republican Party. Evidently, now ‘having a brilliant mind’ somehow excuses egregious behavior: “In fact, Republican Sen. John Ensign has become one of Bybee’s most outspoken supporters in Congress.“He is a brilliant legal mind, and he simply offered his interpretation of the law,” Ensign spokesman Tory Mazzola said Tuesday.” [LV Sun] Let me get this straight: If my employer wanted me to draft a memo advising that there were circumstances under which it would be technically legal to cheat and defraud customers, and I defined “cheating” and “defrauding” and “intent” such that his proposed actions would be acceptable – then “I would have a brilliant legal mind?” And, worse yet, I was “simply offering an interpretation of the law?” Bybee’s memos are much closer to collusion and conspiracy than to merely offering interpretational comment. Senator Ensign, having convinced himself of Dick Cheney’s wisdom, is ready to rationalize any unconstitutional behavior in the service of protecting the physical safety of the timid and the placid lifestyle of the cowardly, at the expense of the core values upon which our country is founded.

Update: More at Think Progress this morning.

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Filed under Berkley, Ensign, Heller, Reid, Titus, torture

>Overnight Express: News Roundup


** Secretary of the Interior, Ken Salazer, has pledged to open four renewable energy permitting offices, and to create renewable energy teams. Four states have been selected: Nevada, Wyoming, California, and Arizona. [DoI]

** Bid’ness News – The Hedge Fund Boyz lose again: This round a federal bankruptcy judge has ruled against their attempt to stop the sale of Chrysler assets saying there is evidence of an “urgent need for the deal to be consummated.” [Reuters] “GM may report loss tomorrow ahead of June 1 bankruptcy filing” [Bloomberg] The Bank of America has been told it needs $33.9 billion in capital to withstand any additional decline in the U.S. economy. [NYT] Almost 25% of U.S. homeowners are ‘underwater’ on their mortgages. [Bloomberg] “Gender gap ‘off the charts’ in current recession” [ColIndy]

The vulture funds are looking at small hometown banks [NYT] “Some Aspects of our Industry Seem Greedy” an interview with a Goldman Sachs exec in Der Spiegel. “Pension Privateers: How the boss absconded with your benefits” [Mother Jones] “AIG bonus pool gets bigger” [TDB]

** Polly Ticks – Michelle Bachmann (R-Planet X) is channeling Ron Paul (?-TX) [MNIndy] Two Minnesota DFL Party members will compete to run against Bachmann next round. [MNIndy] And, that Senate Race? “Bush lawyer is Fox’s lone expert pushing Coleman-Franken to federal courts” (None other than Hans “Vote Suppression Meister” von Spakovsky). [MNIndy] “Republicans are against it – whatever it is” [Salon] “Profiling the GOP: Contami-i-nation” [Nation]

** Afpak-istan – “Karzai seeks ‘civilian surge’ likely beyond U.S. capacity” [WashIndy] “Holbrooke backs embattled Pakistan government” [WashIndy] “A new approach to Karzai” [WaPo] Swat residents are fleeing their homes [BBC] “Doubts remain as Sharia bill signed” [BBC] Pakistan fears an exodus from Swat valley [AJN] Up to 100 civilians feared dead in US air raids in Afghanistan [GuardianUK] “How Dangerous are the Taliban?” [Foreign Affairs]

** Muddle East – UN Report says Israeli military intentionally fired at UN facilities in Gaza [AJN] [BBC] Four arrested in West Bank unrest [BBC]

** Remembering Haiti every once in awhile – “Obama administration reconsiders Haitian policy” [SunSent] Perhaps this is as good a time as any to review Secretary Clinton’s remarks during her April visit.

** Tortured Logic – “Limiting food aided ‘enhanced interrogations: Justice Department memo describes liquid diets for detainees” [WashIndy] “Torture memos: inquiry suggests no prosecutions” [NYT] “Judgment Day May be Approaching for CIA agents (el-Masri Case) [Der Spiegel] “The reluctant enablers of torture…mental health professionals raised questions about harsh interrogations” [Salon] “Interrogating Torture” [New Yorker]

** Ecology – “EPA proposes changes to biofuel regulations” [WaPo] West coast ports make for ‘greener’ shipping [LAT] Motorcycle smog tests proposed in California [LAT] Thousands flee Brazilian floods [BBC] “Waxman hits back on climate change” [The Hill]

** Psych Turf – right wing commentator Michael “savage” Weiner announced he wants to sue the UK after finding himself on their “Do Not Come” list. [BBC]

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Filed under ecology, Economy, Middle East, Politics, torture

>Bits and Pieces: Budget Passes House


Various Things and Stuff captures the essential problem with Judge Jay Bybee, and his infamous memos. The former UNLV law prof “…has too much respect for authority, and will avoid a confrontation no matter what.” This would serve to explain why someone in the legal profession would stoop to the pedantic exercise necessary to parse each and every torture technique such that it could fit into the Bush Administration’s preferred interpretation. David Rose calls it “Tortured Reasoning,” (Vanity Fair). Katherine Eban discusses “Torture memos link lawyers and psychologists” in Vanity Fair. Congressman Jerry Nadler (D-NY) and Congressman John Conyers (D-MI) have written to Attorney General Eric Holder requesting the appointment of a Special Counsel to investigate and potentially prosecute those involved in the torture of detainees held by U.S. authorities. [CD] David Corn writes on “The Problem With A Special Prosecutor,” for Mother Jones.

Dan Froomkin compiles various points of view on “The Advocates of Ignorance,” and the Future of Freedom Foundation provides more information in its four part series, “Ten Terrible Truths About the CIA Torture Memos.” Does Judge Bybee really intend for any rational person to believe that 10.999 days without sleep is somehow substantially different from 11 days of sleep deprivation?

Newsweek takes a serious look at the efforts of White Supremacist groups and their efforts to rebrand themselves. Note: That warning about lone wolves being ever more dangerous should be heeded. See “Rebranding Hate in the Age of Obama: With an African American president and the economy in bad shape, extremist groups are trying to enter the mainstream – and they’re having some success.”

One response to the Prison-Industrial Complex is provided in “Jim Webb’s Reading List” at the Nation. The Colorado Criminal Justice Reform Coalition published “Private Prisons and Public Money” in September 2002, and its still provides good background information on the subject. For further information see “Who Profits from Private Prisons” at Firedoglake which takes an interesting perspective on the relationship between the Census and the construction sites for private prison facilities.

The House has passed the President’s budget, $3.4 trillion of it. [TDB] Comparing this to the Bush FY 2009 $3.1 trillion budget makes it hard for the Right to keep asserting that Now!(?) we’re spending ourselves into oblivion? The Budget Resolution passed on a 233-193 vote, [roll call 216] Representatives Titus (D-NV3) and Berkley (D-NV1) voted in favor of the resolution, Congressman Heller (R-NV2) voted against it. *The FY 2010 budget includes the costs of operations in Iraq and Afghanistan.

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>Ensign’s Tortured Logic On Torture


Perhaps this shouldn’t come as a surprise: The Carson Times reports that Senator John Ensign (R-NV) is defending U.S. Court of Appeals Judge Jay Bybee, and calling suggestions Bybee should be impeached “outrageous.” Indeed, the Senator went further, “Ensign says he agrees with Bybee’s reasoning.” The Las Vegas Review Journal’s version of Ensign’s remarks added, “To call for him to be impeached when he was trying to give the proper legal advice is just ridiculous,” Ensign said. “You impeach people for ethical violations, for criminal violations. It would be like impeaching a member of Congress because they voted the wrong way.” And, Ensign fell back on the original GOP argument: “This was not torture,” Ensign said. “This is the thing we have to get away from, that this is somehow accepted that it was torture. The United States does not engage in torture. This was ‘advanced interrogation techniques.” [LVRJ] It’s surprising Senator Ensign would resort to the latter argument, because that one seems to be just about worn out in the more recent efforts of GOP leadership to alter the arguments.

Arguing by analogy is always difficult, especially if the two subjects under discussion don’t equate to one another. The situation in which Bybee found himself was not that of a member of any legislative branch called upon to vote on an issue, but that of a legal adviser called upon to provide a sitting president with the best possible advice available. Bybee chose not to offer the best advice (that what the Administration was considering was in violation of American law) but the worst advice, in two memos he essentially advised that the President could avoid the law by unilaterally redefining its terms.

To fight an analogy with an analogy: If the President had wanted to steal the Eiffel Tower, Bybee might have advised that the generally accepted definition of theft (to take, steal, or carry away, the personal property of another with the intent to permanently deprive the owner thereof..) really meant that the taking, stealing, or carrying away had to be accomplished under the terms of a plan known to all participants who fully acknowledged their comprehension of its terms, at a specific hour of the day during which the taking would have been clearly visible to a reasonable bystander, and all participants, principals and accessories had to intend to take the Tower and put it in the Grand Canyon as a tourist attraction for the benefit of western tourism – tourism being in such decline that drastic measures would be warranted to prevent catastrophic economic displacement. If this analogy seems tortured, it’s no more so than the specious contentions in Bybee’s originals.

Circular thinking is even more perilous. Ensign is arguing that because Bybee redefined torture as “advanced interrogation” therefore torture is acceptable because it is “advanced interrogation” and therefore not torture. Following Ensign’s logic yields the obvious conclusion that any presidential adviser may, by the simple act of redefining terms, change any law on the books. We are precipitously close at this point to a Nixonian statement, “It’s not a crime if the President does it.”

There have been some other Republican trial balloons launched as they attempt to justify the unjustifiable.

It wasn’t all that long ago that President George W. Bush was fervently pushing the point that “the United States doesn’t torture.” [MSNBC, Oct. 2007] This balloon has been well and thoroughly popped.

Maybe we did it because President Bush got bad advice? Senator John McCain (R-AZ) told the audience of Face the Nation that Bybee’s memos did violate the intent of both U.S. and International law, but “it was just bad advice.” [TP] Evidently, in McCain’s mind both beauty and law are in the eye of the beholder.

A more hawkish line is employed by members of the right who revert to the “torture is justified because it gets results” allegation. [Bnedit] This is a classic “ends justify the means” argument. And in the understanding of the Buffalo News editorialist it was perfectly acceptable for Barnaby Keeney to set up the MK-ULTRA program with tests on unwitting federal inmates (a majority of whom were African American) to chart the effects of hallucinogenic drugs. “All of this is reprehensible, horrible stuff. But it was generated by well meaning American officers from what has been called The Greatest Generation” to keep America safe.” [Bnedit] This line of argument can be reduced to: If your heart’s in the right place it doesn’t matter if you attach electrodes to someone else’s genitals. Whether or not torture “gets results” remains to be seen – most of the evidence points to torture resulting in having the tortured individual telling interrogators that which will make the torture stop. The old computer term for this is GIGO – garbage in, garbage out.

The Republicans give every appearance of wanting to talk about anything to avoid the subject of whether or not members of the Bush Administration authorized and conducted torture sessions. They’ve already had to concede that torture happened. Now, they seem to be grasping for justifications. The efficaciousness of the sessions has been called into question, and the ‘bad advice’ argument merely circles back on itself. However, they don’t seem willing to relinquish the national security slant. Telling the world that we tortured will make people think the worst of us, [DB] or telling the world reveals the ‘playbook’ and our opponents will be ready for us. Both of these contentions are specious.

First, the “world” already knows what happened, and has properly concluded it wasn’t the result of a few ‘rogue’ non-commissioned soldiers or ‘a few bad apples.’ The task at hand is now to convince our fellow human beings that we do not tolerate the use of torture and the consequent violations of U.S. law and the Geneva Conventions, and maybe we need to reassure ourselves that we are, indeed, a nation of laws (not men). As to ‘opening the playbook,’ this is nonsense because the techniques have all been described in various forms since the Korean War.

Perhaps the most absurd argument is that what was done wasn’t torture because the techniques were used in training our own troops, and if we did it to ourselves then it can’t be torture. [TP] First, because waterboarding was introduced in SERE training, this wipes out the ‘playbook argument.’ We trained soldiers to avoid already well known techniques. Secondly, the application of the old Water Cure in training and the use of the Cure during sessions at Abu Ghraib and Guantanamo were hardly the same. We know this from the Bybee memos themselves.

It doesn’t matter if “it kept us safe,” torture is illegal. It doesn’t matter if “the enemy knows the playbook,” torture in any book is illegal. It doesn’t matter if it was done because the President got bad advice – torture is illegal. It doesn’t matter if every single member of the Select Committee on Intelligence knew about it – torture is still illegal.

No matter how many trial balloons are launched by Senator Ensign and his cohorts in the Republican Party to clutter the air, our focus should remain on a single essential question – Did the United States during the Bush Administration approve and implement a policy of illegal torture, and who was responsible?

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>Bybee, Boyd, and the Tortured Memo


No matter how carefully the proponents of torture wish to parse the matter, and no matter how much Senator Harry Reid (D-NV) may want to avoid a ‘rush to judgment,’ there’s ample evidence Jay Bybee’s “Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A” (Findlaw.OLC; August 1, 2002) is nothing more, nor less, than a series of excuses for the use of torture. Bybee will return to this original memo in his second attempt to justify Bush Administration torture in his “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, August 1, 2002. [luxmedia.pdf]

In order to accomplish his task Bybee had to do two things in his initial memo. First, he had to re-define torture so as to carefully exclude interrogation methods under consideration at the time; and secondly he had to provide a justification for torture if the re-definition argument didn’t hold up under scrutiny. The memo documents his attempts to do both.

U.S. law is perfectly clear, “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; – “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from— the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.” [USC 18 2340]

The statute refers to “severe physical or mental pain or suffering,” therefore in order to make his justification for waterboarding and other acknowledged torture methods legitimate, Bybee must change the meaning from ‘severe’ to ‘extreme,’ as in “We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.” Bybee’s efforts are predicated on the supposition that since Congress didn’t specify the exact meaning of the term “severe,” then he is free to do so himself on page 5. His new definition is founded on a medical definition of an “acute,” that is, “severe” condition. Thus he can conclude from this pastiche of verbiage that something is not torture if it doesn’t put an individual immediately into the trauma surgery or the ICU. Therefore, we can conclude that in order to make his argument Bybee had to conflate the medical definition of ‘acute’ with the definition of ‘severe’ in statute to emerge with “extreme.”

Bybee also had to ignore precedents in which torture had been adjudicated in previous events, most notably the court martial of General Jacob H. Smith in May, 1902. On September 28, 1901 members of Company C, 9th U.S. Infantry stationed on the southern coast of Samar in the Philippines were attacked by guerrillas. Smith’s campaign in response, including an order to kill anyone over the age of ten as “capable of bearing arms,” led first to the court martial of a subordinate, Major Littleton Walker, and then to the court martial of the General. [Wik] What is important to note about the court martial of General Jacob H. “Howling Wilderness” Smith, is that he was not prosecuted for personal involvement war crimes, but for not stopping the war crimes committed by his subordinate Major Walker, including the use of the “water cure,” now waterboarding, during his operations in Samar. Twenty years later, waterboarding was the subject of at least two domestic cases.

Gerrard White had his murder conviction overturned on appeal in 1922 when the appellate court learned that his confession had been obtained via the water cure [SCM 22114], and Clarksdale, MS resident John Fisher also saw his Mississippi conviction overturned on the same grounds (use of the water cure) in 1926. [Fisher v. State] In the aftermath of World War II, the United States charged Japanese officer Yukio Asano, in 1947, of carrying out waterboarding on a U.S. civilian. Asano received a “15 years at hard labor sentence.” [WaPo] Bybee also had to ignore the 1968 court martial of an American soldier charged with waterboarding a Vietnamese prisoner, and the 1983 conviction of San Jacinto County sheriff James Parker for using waterboarding on his prisoners in 1983. [USIraq] [U.S. v. Lee, 1984] The definition of torture remained constant from the Philippines to Texas from 1901 to 1983, until Jay Bybee attempted to re-define the term in medical parlance and thus limit the scope of what might be considered torturous interrogation.

Bybee’s second memorandum to John Rizzo is effectively debunked by Daniel DeGroot in OpenLeft, wherein DeGroot decimates the flawed assertions and legal sophistry incorporated in Bybee’s response to the CIA. There’s no reason to expend pixels here when just a click away is a perfectly sound explication of how fundamentally flawed Bybee’s memo is both legally and rationally. Suffice it to say that Bybee’s continuous reference to and reliance upon “specific intent” ought to be a red flag to anyone reading that second memo.

Those calling for Bybee’s impeachment generally hew towards the editorialist who wrote: “These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.” [NYT] Granted, Judge Bybee’s legal acumen certainly isn’t shown in a fine light in his two memos, and the sophistry is self evident; still there may be some doubt as to whether these (even taken together) yield “high crimes and misdemeanors.” And while impeachment may seem a harsh way to dampen the furor, there are some actions that should be done in the name of American jurisprudence.

The University of Nevada – Las Vegas Boyd School of Law may very well want to reconsider having Bybee practice his “expertise” in civil procedure, federal courts, and especially Constitutional law, on students enrolled at that institution. As this flap unfolds into public view I can’t personally imagine being a Boyd Law graduate in my first interview seeing those examining my competence to join the firm peruse a transcript that indicates I have studied at the foot of a person better recognized for tortured logic and the logic of torture, than for the assertion of strong Constitutional principles and cogent argument. Secondly, there are Bar Associations well qualified to determine how Judge Bybee’s performance during his service in the Bush Administration comports with the standards of the profession. The appropriate Bar Associations would be well served by investigating this for themselves now, rather than be declared reticent to criticize one of their own at some later date. Or, Judge Bybee could save face, or perhaps a portion of his already tarnished reputation, and resign.

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>The Slow Drip Strategy: An Argument For Continued Congressional Investigations On Bush Administration Torture Policy


Senate Majority Leader Harry Reid (D-NV) is taking some heat in the comments section at Think Progress over his suggestion that any Truth Commission on torture approved by the Bush Administration be delayed until after the Intelligence Committee finishes its investigation. While there some excellent reasons to be skeptical about how assertively Senator Diane Feinstein (D-CA) might conduct an investigation, given her previous support for Bush Adminstration “War On Terror” legislation, the fact remains – she does have jurisdiction, her committee does have subpoena power, and it can hold closed hearings during which ‘classified’ information can be discussed. I’ll argue, for the moment, that this investigation should be allowed to proceed. The following is a liberal’s argument for a slow drip strategy.

First, there is a need to develop a critical mass of public information. Blog readers, who generally seem to get more and better information from Internet sources, are ahead of the general public when it comes to information about the Bush Administration’s use (and abuse) of international agreements and the Geneva Convention. We’ve been following the former Administration’s machinations since the release of the Downing Street Memo. We’ve been carefully following the warrantless wiretapping stories. We’re frankly in a better position to put the pieces of the torture authorization story together than consumers of corporate media news who’ve been treated to interminable missing white women and children stories, floods, fires, airplane crashes. Given the propensity of the corporate media to allocate resources sparingly, and to use Congressional sources for the ‘quick story,’ the more Congressional Reports the better. Why? Because at the point where ‘informed’ readers believe they really ‘know’ what was going on – more is nearly always eventually revealed.

The 232 page report from the Senate Armed Services Committee on the Bush Administration use of torture was the product of an 18 month investigation. [NYT] The New York Times now informs us that the report was approved by the Committee on November 20, 2008, and then was the subject of a Pentagon declassification review. Some information was released on December 11, 2008 but was promptly disparaged by former Defense Secretary Rumsfeld as “unfounded allegations against those who have served our nation.” [NYT] If nothing else, the release of the Armed Services Committee report, and the story of its release, should give even the most avid collectors of information about the Bush Torture authorization pause because they illustrate a pattern: The initial features of a story are released; former administration officials dismiss the information as somehow insulting to real ‘patriots,’ and then the allegations are substantiated in subsequent more complete and thorough versions. This scheme was evident as reports leaked out from Guantanamo Bay and Abu Ghraib from human rights, humanitarian, and anti-torture organizations – their reports were castigated as ‘unfounded,’ merely allegations, and deleterious to our national defense. Until they were later substantiated by official sources.

There is ample reason to believe that the report from the Intelligence Committee will follow this pattern as well. Some elements of the report will appear in the press, and apologists for the former Administration will reject the preliminary findings as spurious and unpatriotic. Upon further review, as they say from the broadcast booth, those elements will be substantiated, adding to the body of work demonstrating the depths to which we’ve fallen in terms of our preservation of Constitutional core values. In the mean time, the weight of the conclusions accretes and it becomes increasingly difficult for the apologists to continue their response pattern.

Secondly, the more information is released the more clearly we see the integration of elements in the Bush Administration’s overall disdain for Constitutional principles. Those who have been following the torture stories with care were already familiar with the Taguba Report, the trials of the non-commissioned soldiers prosecuted for crimes at Abu Ghraib, the Bybee memos, and Red Cross observations. Frankly, the more information released and corroborated, the less Bush-Cheney supporters can manipulate the argument that these instances of prisoner abuse were the result of a ‘few bad apples.’ Even with a number of names redacted in the Armed Services Committee report, it is evident that there was a systemic review, through out the administration of the interrogation question. Perhaps we can rationally conclude now that because of the continual release of information the public/pundit argument has moved from the denial stage (“We do not torture.”) to the efficacy stage (“We tortured people, but we had to, and it worked”). It’s important to remember, and to get the general public informed, that torture isn’t the only thing that was going on – unfortunately, we have to include ghost detainees, black sites, and extraordinary renditions into the overall picture. Getting beyond this plateau will require some patience and an appreciation for the structure of our judicial and legislative processes.

Third, efforts to push the process may cause us to miss crucial elements of the cases, and impede efforts to ultimately determine liability and prosecute those whose actions violated U.S. statutes. Just as more is known now beyond the information released in the initial reports, so more may be discovered as the investigations continue. Congressional committees have two rationales readily at hand for continuing these investigations. First, there is a need for the committees to re-assert their authority to exercise oversight of executive policy decisions. If the Bush Administration and the compliant Republican controlled Congresses taught us nothing else, they did demonstrate that an executive unfettered by substantial and active oversight is a train wreck waiting to happen. Secondly, Congressional committees can exercise subpoena powers which may not be granted to special commissions and investigators. It’s a given that the broader the scope of the subpoena powers the more information can be gathered. The more information the better. This compilation of information serves not only the public’s right to know what its government is doing, but the interests of those who responsibility it is to determine if, how, and when, statutes have been violated. Elizabeth De La Vega made this point in regard to the use of a special prosecutor on Countdown last evening. Once the grand jury is empaneled, the doors close and the prosecutor is limited to the information already available, further public scrutiny of the information is impossible.

The “Slow Drip” rather than ‘Opening the Floodgates’ strategy allows for additions to the public record, provides for a more complete picture of what was going on during the Bush era, and should facilitate the ultimate prosecution of those who were truly responsible for implementing one of the most egregious policies imaginable undermining our national image, giving recruiting talking points to our adversaries, and placing our own troops in peril.

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