Pruning Shears

No Associated Press content was harmed in the writing of this post

On Tuesday lambert pointed out something I had not noticed: Talking Points Memo had not covered Matt Taibbi’s Rolling Stone article on Goldman Sachs, and its coverage of them has been very light in recent months. Caveats: TPM advertises itself as “Breaking News and Analysis” and it gets to decide what is news and what merits analysis; Taibbi’s article was a lengthy narrative in a magazine and not breaking news, similar to Todd Purdum’s profile of Sarah Palin in Vanity Fair this month; while a web site has nearly unlimited space to devote to news there are only so many hours in the day end workers to publish during it. There are any number of good reasons why a site like TPM would not have covered it.

It still seems a curious omission though. After all, Purdum’s article got a brief mention and link on the front page. Financial scandals are covered there, and a search on Bernie Madoff brings up three pages of results. Like Martha Stewart before him Madoff seems to have become a synecdoche for the entire financial industry. Now, Stewart’s crime was a half million dollar stock scam whereas Madoff’s was a $50 billion Ponzi scheme, so the latter had a much larger impact. Still, it A) only affected private investors and B) is relatively small when compared to bailout, son of bailout and who knows what other giveaways we are only vaguely aware of at the moment. It seems that an article like Taibbi’s would serve an important reminder as to what the stakes and who the biggest players really are.

Maybe some of the president’s supporters prefer to turn a blind eye towards a scathing indictment of a company whose employees have lavishly funded the president and with whom he appears to enjoy a warm relationship. If so it is troubling. I am somewhat sympathetic to the view of politics as team sport. We have a long tradition of a two party system and it is easy to see them as opponents on a playing field. You don’t harshly criticize your captain any more than you would take a shot at your own goal. That is what the opposition is for, and if it is not willing or able to do so then you are under no obligation to help them out. As Bobby Bowden once told Lou Holtz after a lopsided win, “it’s your job to keep the score down, not mine.”

Taking that approach may not be in the left’s ultimate interest though. For one, it moves the dialog closer to the whole “who won the week?” mentality - where policy is trumped by process - that progressives found so objectionable during the Bush years. If they embrace it now that Democrats are in control they will lose the chance to distinguish themselves from conservatives in any substantial way. That not only opens the door for Republicans to come back once the political winds shift but it sets liberals up to be regarded with the same deep distrust that has put the GOP in such a hole at the moment.

Strict obedience to the president did not serve conservatives well in another way: Because they never allowed a vibrant opposition from the right to develop they became hitched to Bush and had no ideas to offer once he left. When you tie your fate so closely to a leader and the leader becomes deeply unpopular you become, well, the Republican party circa 2009. Instead of simple triumphalism liberals should see the current disarray on the right as a cautionary tale. George Bush looked unassailably popular not too long ago and supporting him without reservation seemed to be the surest bet in politics; couldn’t that apply to Barack Obama too?

As a liberal, what bothers me most about what looks like an unseemly deference towards the president from the left is my belief that we are (or should be) more adversarial towards those in power. The idea of nearly automatic reverence for those in authority - what Taibbi called the peasant mentality - is an inheritance from conservatives. Seeing the press corps stand at attention (via) when the president walks in, or military trappings attending him (as Avedon points out - and we can never be told often enough - “The President of the United States is a civilian. You don’t salute him. Ever. Even if you are in the military.”), or what Glenn Greenwald rightly called creepy assertions that we are obligated to fall in line behind the president simply because he is the president: all of that should rouse the authority-hating impulse of the left.

No Associated Press content was harmed in the writing of this post

Christy Hardin Smith had a nice example of how judges write when they are really peeved. It’s good to know that the judicial branch doesn’t seem to be as enthusiastic about rolling back the legal system to pre-Magna Carta days as the executive and legislative branches. Having someone familiar with how their language - and how laymen can interpret it - is helpful.

Ian Pannell reported on torture at Bagram. It isn’t just Guantánamo Bay or Abu Ghraib. It is systemic and the result of a policy created at the top. How much longer will we deny that?

Marcy Wheeler explains what the newspapers will not, adds context where needed, fact checks the claims of recalcitrant bureaucracies, and, oh yeah, keeps filling out her own investigations on the side. She’s dreamy.

Jane Harman is on the warpath against the National Applications Office:

Rep. Jane Harman (D-Venice) had recently introduced legislation that would prevent Homeland Security from using space-based satellite imagery for domestic surveillance. Harman, chairwoman of the House Homeland Security Committee’s intelligence and terrorism risk assessment subcommittee, cited privacy issues.

“Imagine, for a moment, what it would be like if one of these satellites were directed on your neighborhood or home, a school or place of worship — and without an adequate legal framework or operating procedures in place for regulating their use,” she said in a statement when she introduced her bill. “I dare say the reaction might be that Big Brother has finally arrived, and the black helicopters can’t be far behind.”

Speaking of spying, the Electronic Frontier Foundation is suing the Department of Justice “in an attempt to make public new FBI surveillance rules that allow the bureau to spy on Americans even without any suspicion of terrorist activities.” Note the Obama White House is not mentioned in the article.

Also from Raw Story it looks like the Spanish probe of the Bush Six is moving forward. In other words, delay may be an option in America but the rest of the world may not feel obliged to proceed at such a leisurely pace.

Kase Wickman has some suggestions for those (including me) who want to support the protestors in Iran. Point taken.

Avelino Maestas of the Sunlight Foundation provided the latest reason why “lawmakers should be required to post legislation online for 72 hours before voting. That would ensure everybody — from Senators and Representatives to bloggers, reporters and citizens — would have time to read the bill. I sure didn’t.” The lawmaking process doesn’t necessarily have to be public but the results ought to be public for a decent interval before a vote. If you think it might have some unpopular provisions or be objectionable in whole then get out there and make the case. That doesn’t mean slow walking it to death, but it seems there’s a happy medium between that and the way the cap and trade bill was treated.

Harold Koh finally got confirmed by the Senate. Now how about Dawn Johnsen?

Barack Obama continues to shit on the Constitution, giving his own distinctive interpretation of the phrase “news dump.”

I know I’m rising to the bait by even addressing this, but memo to Wall Street: The problem is not bad PR, it’s the massive destruction you created by your amoral, corrupt, callous and greedy behavior. And just so you know, when the public is getting into pitchforks and torches territory you might not want to mention that your grand design to pacify them has an “execution phase.” Speaking of which, this is as good a time as any to quote eventual Senator Al Franken, as recounted by anonymous commenter Quaker in a Basement:

The night before this story came out, Al Franken was talking to 650 Democratic donors at the Mayflower Hotel in Washington. You may have seen it on C-SPAN. He said that when Democrats point out stuff like this – point out that 17.5% is less than the tax rate a factory worker pays – the Republicans cry, “class warfare.”

But that’s not class warfare, Al told the assembled. He had been reading Barbara Tuchman’s classic A Distant Mirror, about the calamitous Fourteenth Century, and he came upon the scene where these serfs, tired of being subservient, scale the walls of their knight’s castle, capture him, kill him, roast him on a spit, and then make his wife eat his flesh.

In front of her children.

Al – who is the author of the forthcoming, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right – took a long, deliberate pause, looked at us incredulously, and said … “Now that’s class warfare.”

UNPACKING JANE: On page 202 Mayer writes about Jim Clemente, a member of the FBI Behavioral Analysis Unit, going to Guantánamo:

Clemenete brought unusual credentials to the task, He had a law degree and had previously been a prosecutor in New York. Interestingly, given his attempt to stop mistreatment, his area of expertise prior to September 11 was child sexual abuse. Victimization of the powerless was something he had thought a lot about. He had other talents, too. He was the role model for Mandy Patinkin’s part on the television series Criminal Minds. And in 2007, after recovering from lymphoma, he collected a human rights award for an episode of the show that he wrote himself. It was about Guantánamo and featured the successful interrogation of a terrorist who was outsmarted by wit, not brawn. Clemente’s real-life star turn in Guantánamo didn’t go quite as smoothly.

No Associated Press content was harmed in the writing of this post

Last week digby posted on a report that the CIA is now looking to recruit Wall Street financial analysts to offer their guidance on economic matters. I’m going to go out on a limb here and guess that the CIA’s retirement program is a government pension and not a 401(k). She followed up this week by pulling a May 2006 Business Week article from Dawn Kopecki back from the memory hole. The BW piece reports on a 1977 amendment to the Securities Exchange Act of 1934 that allows the president to exempt companies from accounting and reporting requirements in the name of national security. (Think presidents Bush or Obama have considered national security at stake during the economic crisis?) One of the comments to the article is fascinating:

…It makes perfect sense. If you want to keep an operation black, you have to prevent any public record of any kind from existing. Look at how enemy-loving activists were able to troll records of landings and takeoffs and from that figure out the pattern of CIA rendition flights. It is easy to see how financial records can open up similar vulnerabilities, especially when ostensibly small companies undertake large black projects that involve a lot of federal expenditure. While a big operation like General Dynamics probably doesn’t need this, an small operation might. So might [companies] that are wholly government owned and pretend to be investor owned as a ruse. Remember, the CIA has the authority to create dummy companies, and some of these [companies] might issue stock as a ruse to hide their real ownership from foreign targets. The CIA might also run financial black ops against our enemies to wipe out enemies financially, and need a way of keeping investigators at bay.

It is the prospect of such an operation that is putting us at a disadvantage in Iran. One of our most pressing international issues at the moment has been actively harmed by a report of CIA involvement: Almost a year ago Seymour Hersh wrote (via) that the agency had received around $400 million to destabilize Iran’s leadership. That story has taken on new life as it gets referenced in the Muslim world and Iranian Interior Minister Sadeq Mahsuli repeats it for popular consumption. Given the heavy level of censorship there it does not matter that Barack Obama says such claims are “patently false,” what matters is whether the Iranian people believe it. In this critical moment where traditional media is blockaded and new media is not widely distributed or reliable we have provided the mullahs a propaganda windfall. The fact that state-run outlets can point to a prior report by a prestigious American journalist of CIA meddling contributes greatly to their cause. No one knows what we did with that money. Maybe nothing ever got off the ground, or there was some modest and fruitless effort, or a Bay of Pigs style bungle, or an attempt to catalyze unrest into actual demonstrations. The bottom line is, they simply toss the claim out there and let their citizens’ imaginations fill in the rest. Given our history we should not expect those details to be flattering.

It seems like the only time we learn about CIA covert activity abroad the details are not good, and spare me the talk of hidden successes. One of the logical devices I am officially out of patience with is the argument that some top secret bit of intelligence or operations has been fabulously productive in advancing the national interest, but unfortunately is too sensitive to share with the unwashed masses. We need to draw a line: if it is not in the public domain it does not exist. We have been far too willing to let officials get by with dark intimations of security breaches in order to skip the inconvenient exercise of carrying a debate via persuasion. If you can’t tell us about it and we cannot ask questions about it or dig into it, then don’t even bring it up.

Moreover, even if such triumphs really do exist we do not ever seem to account for the simple trust- and credibility-destroying quality that the mere existence of CIA those operations cause us. We never discuss the price we pay in terms of lost goodwill or increased suspicion. The fact that it is working so decisively against us in such a crucial moment should prompt a re-examination, though. There is a strong case to be made that the president should not have the power to launch such intrigues abroad, and certainly should not have been granted the authority to secretly bend the law at home. The two are linked, and perhaps both should be taken away from the executive branch.

No Associated Press content was harmed in the writing of this post

There’s been a curious sort of backlash developing over some Americans’ support of Iran. At Balloon Juice John Cole wrote “what bothers me is the breathless wankery I see from American blogs who really have absolutely nothing on the line” and DougJ followed with “One of the few things I’ve really learned about conservatives is that they often really do believe that clapping louder works (and what could be a more obvious example of clapping louder than wearing green ties?). It’s easy to imagine that the focus on clapping louder is really just a way of stifling dissent when a Republican is in power—and make no mistake, that aspect of it is a feature, not a bug—but I think that a lot of conservatives really believe the world be a much better place if everyone cheered harder for Jesus, for Reagan, for freedom.” Sibel Edmonds - whom I’ve written admiringly about - wrote “We certainly hope you are informed and wise enough to see the ‘oil barrel’ signs in the eyes of those of us who wave their support and solidarity candy before your eyes” and pointed out that the West largely pussyfooted around apparently fraudulent elections in Azerbaijan and Uzbekistan - countries where we have (perhaps inappropriately) close ties to the ruling regimes.

I don’t see how showing intense interest in a major upheaval in a part of the world we are so deeply involved with equates to breathless wankery. Did Cole consider blogger coverage outside the Gulf Coast of Hurricane Katrina and its aftermath in the same light? Does the impact have to be direct and immediate for him to think such coverage not indulgent? I think it takes a certain meanness of spirit to make that the jumping off point. Same with DougJ’s post: Are expressions of support and empathy really nothing more than rigid enforcement of conformity? (And did he consider, say, Obama yard signs last fall to be useless, mindless exhortations to clap louder?) As for Edmonds, the oil barrels argument made sense for Kuwait, a country we were allied with and already being supplied by. We’ve had an antagonistic relationship with Iran for decades; any oil barrels from there would start making there way here only in the medium to long term at best. And the discrepancies she cites with how we treat election fraud among our allies is a reason to call for greater attention to them, not a reason to neglect such violations everywhere!

Lt. Gen. Stanley McChrystal is Barack Obama’s nominee to head the military effort in Afghanistan. By all accounts his résumé matches up with the needs there very nicely, but Russ Feingold asked some tough questions about McChrystal’s potential role in torture in Iraq. Just as a general proposition, how are we prepared to deal with those who are in some way complicit in torture? If someone is perfectly suited for a job and there is literally no one else who can fit the bill as well do we look the other way? Whether we allow ourselves to be put at a practical disadvantage over what we learn about our torture program will tell us a lot about who we are as a country.

Philippe Sands and Alex Bailin: “Very little is known about Britain’s policy on the overseas treatment of detainees by British intelligence personnel after September 11. What is known is deeply troubling.” This is just a hunch, but I suspect any robust inquiry into torture by Britons would sooner or later (probably the former) produce evidence that would deeply implicate some notable Americans as well. We seem to have developed a robust capacity for ignoring inconvenient facts, though, so there’s no guarantee anything would come of that.

There’s a tug of war over the release of the 2004 CIA Inspector General’s report described as “the most definitive official account to date of the CIA’s interrogation system.” This is a huge story but there’s not much to be said about it while the bureaucratic infighting plays out.

Ron Paul teamed up with the ACLU to sue the Transportation Security Administration “for the ‘illegal’ detention of the Campaign for Liberty’s treasurer in April at a St. Louis airport”. Paul continues to represent a kind of Republicanism that could probably get the approval of more than a quarter of the electorate, but the GOP has not yet suffered enough pain to come to grips with that.

The NSA read some of a former president’s emails and now Congress is concerned about it. When I read such protests from Congress - like with Jane Harman a couple months back - I just think to myself: Oh you sweet, innocent children. What exactly is new about this? Weren’t those of us who were trying to fight passage of the FISA Amendment Act last year screaming about this very thing? How - literally - is any of this news? It is not new. We’ve known about it for years. Pieces of a surveillance state are put in place for one reason. How on earth can anyone work to create vast, secret, unaccountable new powers for an organization and then be shocked when details of its operation come to light? Isn’t that the height of naiveté? (Compare also to the fine moral lines drawn on the difference between being briefed on the prospective use of torture versus its actual use.)

Think Progress pointed to a NY Times article suggesting Sonia Sotomayor might be in favor of scaling such activities back. It’s largely tea leaves at this point, though. We won’t know for certain until we start seeing some rulings. Potentially the most interesting aspect of her life as a Supreme Court justice might be how persuasive she is with her fellow jurists. I don’t expect she’d ever change Niño’s mind on anything, but if she, for instance, brings Anthony Kennedy along with her on a lot of cases she could have an outsized impact. Heaven knows the rampant callousness of the current group could use some leavening (via).

George Bush evidently decided to start replenishing the ol’ coffers and couldn’t resist including some of his expert analysis (via) with the price of admission: “I’ll just tell you that there are people at Gitmo that will kill American people at a drop of a hat and I don’t believe that — persuasion isn’t going to work. Therapy isn’t going to cause terrorists to change their mind.” Former administration officials don’t seem to care that their attempts to justify their actions puts pressure on current officials to disclose or investigate in order to back up/disprove their claims. Running their mouths just creates jeopardy for them. They must figure the D.C. establishment will never really call for accountability. Granted they have ample reason to believe that, but it still seems indicative of a pretty weak instinct for self-preservation.

I took a trip to National Review Online on Thursday to measure the crazy level with respect to Iran. There were five articles at that monument to solipsism and four of them - from Rich Lowry, Jim Geraghty, Jonah Goldberg and Rich Lowry again - were incapable of writing about the events in that country without making it all about America. Let the record show that David Pryce-Jones wrote a piece about Iran that was actually about Iran. And actually, an 80% crazy rate is pretty sensible for them. Anonymous Liberal took a nice whack at the right wing lunacy on the subject.

You should always read everything at digby’s place but you should always read this even more.

Dan Froomkin was fired. Glenn, take it away.

UNPACKING JANE: On page 272 Mayer quotes some truly amazing euphemisms for how we treated Khalid Sheikh Mohammed:

By the time Mohammed was captured, according to agency officers involved in the program, the CIA’s interrogation protocol was ostensibly more systematic than it had been for Abu Zubayda. “The CIA’s interrogations were very, very regimented,” said Robert Grenier, the former chief of the Counterterrorist Center, and “very meticulous.”

No Associated Press content was harmed in the writing of this post

Iran’s Security Council, to Mir-Hossein Mousavi:

It is your duty not to incite and invite the public to illegal gatherings; otherwise, you will be responsible for its consequences.

The Combatant Clerics Assembly (a reformist cleric group):

Permission was asked to hold a rally. But since it has not been issued, there will be no rally held

SoapyMischief:

Chants tonight-strengthening of the opposition’s resolve, MUST carry over tomorrow,the most important day in the last 30 years.

Ghalm News reported that the sound of Mousavi supporters chanting “God is Great” echoed throughout “all districts and towns in Iran” for the seventh consecutive night. According to Ghalam news, supporters of Mousavi also chanted “Ya [Hail] Hossein, Mir Hossein” to make sure their participation is not attributed to Ahmadinejad supporters. “During reporting this news, the voices of Mousavi’s friends could still be heard in different locations in Tehran,” the report said.

(Ghalm News appears to be down at the moment.)

Mohsen Makhmalbaf:

I have been given the responsibility of telling the world what is happening in Iran. The office of Mir Hossein Mousavi, who the Iranian people truly want as their leader, has asked me to do so. They have asked me to tell how Mousavi’s headquarters was wrecked by plainclothes police officers. To tell how the commanders of the revolutionary guard ordered him to stay silent. To urge people to take to the streets because Mousavi could not do so directly.

Katrin Verclas:

The official announcement for today’s demonstration is canceled. But people seem to be going anyway

Also from Verclas, proof that even revolutions cannot postpone affairs of the heart::

In lack of text message, lovers have to meet more, because they want to have news of each other. I like this atmosphere

Ali Ghazvini:

The CRUCIAL Demonstration on Saturday 16:00 in Tehran and all around the world, please spread this message

EnghelabeAzadi:

We going to Azadi Square now in Tehran. Pray for us! 2day is our INDEPENDENCE DAY from all tyranny! Thank you World!

TerrelliC:

RALLIES ARE STILL ON! News from reliable sources confirm that rallies are still a go in Iran. Ignore any say otherwise.

No Associated Press content was harmed in the writing of this post

M.E. Dabiri:

A white-haired man emerged from the mosque to tell his wife who was standing in line in front of me, “There are about fifty people ahead of us.”

As we entered the mosque, a guard who was standing at the door, looked down at the girls and said, “You have come to vote, too?”

I was essentially witnessing a nation voting for the first time in 2,500 years.

Iranian Nobel Peace Prize winner Shirin Ebadi (via Andrew Sullivan, whose coverage has been fantastic):

My request would be that in order that things calm down, these elections should be declared null and void and new elections should be organised under the supervision of international institutions.

Grand Ayatollah Hossein Ali Montazeri (via):

These last days, we have witnessed the lively efforts of you, brothers and sisters, old and young alike, from every social category, for the 10th presidential elections.

Our youth, hoping to see their rightful will fulfilled, came on the scene and waited patiently. This was the greatest occasion for the government’s officials to bond with their people.

However, unfortunately, they used it in the worst way possible. Declaring results that no one in their right mind can believe, and despite all the evidence of crafted results, and contrary to the people’s protestations, in front of the eyes of the same nation who carried the weight of a revolution and 8 years of war, in front of the eyes of local and foreign reporters, attacked the children of the people with astonishing violence. And now they are attempting a purge, arresting intellectuals, political opponents and Scientists.

Anonymous Tehranian eyewitness to Tuesday’s Demonstration for Mousavi:

Tehran is fast becoming two. In the late afternoon and lasting until around dinner time it is a place of peaceful civic celebration, a disneyland of political action for the whole family to participate. At night, the mood shifts abruptly, and the capital becomes a battleground, a city in which fear stalks on motorbikes mounted in helmeted pairs…

Photographer Newsha Tavakolian:

I went around on a motorbike, trying to look like any other girl who sits on the back of a motorcycle — the camera between me and the driver. Tehran has 18 million people and is a very busy city, so motorbikes are very convenient; also, when you need to get away quickly. When they ask me, I show my accreditations. As an Iranian, I know when to run and when not to.

Mir Hossein Mousavi (via Nico Pitney, whose HuffPo page has been invaluable - as has The Lede’s coverage.):

Like you know, in the past few days, there have been clashes - legally and illegally - that have been violent between protesters of the election and their critics. A number of you have been injured and several have been martyred. I would first like to convey my condolences to you. At the same time, I would like you all to go to mosques and to places of worship in order to remember them and to pray for them. We will also commemorate them by our peaceful protests. I would like you to know that I will also be taking part in these protests and commemorations.

From Exile On Moan Street (via):

In response to Ahmadinejad’s earlier speech calling the supporters of Mousavi “brushwood and thorns,” Iran’s most famous classical musician has ordered that Iranian government television/radio never play his music again. Mohammad Reza Shajarian told BBC Persian in an interview:Don’t broadcast my voice on Seda va Sima [IRIB Music channel] ever again: my voice is like brushwood and thorns, and it will forever remain brushwood and thorns!

Mohammadreza Habibi, prosecutor-general in the central province of Isfahan:

We warn the few elements controlled by foreigners who try to disrupt domestic security by inciting individuals to destroy and to commit arson that the Islamic penal code for such individuals waging war against God is execution.

persiankiwi:

IRIB.ir said that we are all violent thugs - we are showing you everyday that we are peaceful Sea of Green.

Unidentified blogger, 14 June:

Today the orchestrators of the coup d’etat have removed their masks, today the ugly faces of those who have diverted the 30-year revolution have been revealed to the people, today the dark side of the criminal government which is seeking absolute power has been revealed.

Unidentified twitterer:

Will this be the Berlin Wall coming down or just another Tianenmen Sq.? I wonder to myself

Hossein, a 23-year-old member of the security forces

I would never [fire on protesters]. Maybe someone would, but I would never fire on any of these people myself.

Housewife Zahra Dadashi:

How can I ignore what’s happening in the country and what they did last night to the students? I was young when Imam Khomeini came to Iran and ruled the country. I’m now very sure that this government and the supreme leader has nothing to do with Imam Khomeini, I can’t close my eyes.

Before this, I was always hearing how cruelly the riot police are treating students and people, but now I have witnessed it with my eyes. Before, I was assuming it to be rumours, but now I’m 100% sure that this government has nothing to do with Islam. They are dictators.

Finally, never underestimate the power of sports to spur on current events: (via)

The widespread, sustained, peaceful and courageous demonstrations by Iranians this week has been an astonishing and inspiring sight. In a way this feels like the anti-9/11.

No Associated Press content was harmed in the writing of this post

Lakhdar Boumediene was interviewed by Jake Tapper. It was somewhat coincidental since Tapper was in France covering the president and didn’t make the trip specifically for Boumediene, but at least he made good use of the opportunity. What jumped out most at me was Boumediene’s level-headed assessment of how he thought it might have been reasonable for the U.S. to react to the 9/11 attacks. Speaking of the extrajudicial processes and denial of civil rights he said, “I give you 2 years, no problem, but not 7 years.”

Jane Harman is taking on The National Applications Office. Haven’t heard about it? Don’t feel too badly. It’s flown under the radar (its bland-sounding name is by design I’m sure). I wrote about it over a year ago but overall it’s really stayed out of the spotlight. Let’s hope Harman changes that.

Despite the nice sounding rhetoric Barack Obama is basically embracing the Bush administration’s torture policies. Some people have started to call him out on that.

An inmate at Guantánamo apparently killed himself and Glenn Greenwald pointed out the degree to which the right has tried to downplay the horrors inside it. I don’t know what it takes to discredit those who have managed to attain Respectable Standing in the capitol. Karl Rove doesn’t even pretend to make sense at this point but it doesn’t seem to matter. If he ended up in prison Fox would probably air shows from his jail cell.

Potential danger for Dick Cheney. Could be interesting.

Gene Healy of the Cato Institute writes that Sonia Sotomayor’s record on executive power “is thin, but it gives us reasons for cautious optimism.” I don’t know if Cato laid low during the Bush era or if right wing outlets declined to seek them out (probably a little of both) but it’s nice to see the right starting to come around on this issue. I’ve said before that this is likely not a restoration of principles as much as a political calculation. The right is out of power, so time to rail against it. When the Republicans get back in they’ll be all Keep America Safe again, so let’s trim back as much as we can until then. Make hay while the sun shines.

I’ve added a link to the ACLU’s Restore the Rule of Law page to my “action” section on the left. Have a look and throw them any support you can. You’ll be supporting worthy efforts such as this:

You see, we’re eventually going to find out that, in fact, the Administration had—based on Yoo’s 2002 memo—made a policy decision to blow off complying with CAT’s Article 16 altogether. And lied about that policy to Congress repeatedly.

The Department of Homeland Security doesn’t want to let us know about environmental damage now. Remember the good old days when it was all about bin Laden? DHS will continue to expand its reach from identifying mortal threats to suppressing politically embarrassing stories unless something (or someone) steps in the way. Its mandate is way too vague and obscure for it to not be irresistibly tempting to those in charge of it. It will used in unanticipated ways. (This is an example where the Catos of DC could do us all a favor and jump in with both feet.) Similarly, when you reach the point of government using a “back door wiretap” to bust people hawking fake boner pills you’ve gone pretty far afield.

Every now and then I wonder if calling my regular Sunday review “This Week In Tyranny” is a bit over the top: It isn’t really that bad, right? Then I see stories like this and I think, no it’s just right. The proposed Cyber Command is ripe with possibilities for abuse. It feels like a shadow that keeps on creeping.

Bruce Watson on why financial reporting is abysmal, and Joseph Stiglitz on why the financial industry’s shell games aren’t working so well anymore:

The contrast between the handling of the East Asia crisis and the American crisis is stark and has not gone unnoticed. To pull America out of the hole, we are now witnessing massive increases in spending and massive deficits, even as interest rates have been brought down to zero. Banks are being bailed out right and left. Some of the same officials in Washington who dealt with the East Asia crisis are now managing the response to the American crisis. Why, people in the Third World ask, is the United States administering different medicine to itself?
…
Faith in democracy is another victim. In the developing world, people look at Washington and see a system of government that allowed Wall Street to write self-serving rules which put at risk the entire global economy—and then, when the day of reckoning came, turned to Wall Street to manage the recovery. They see continued re-distributions of wealth to the top of the pyramid, transparently at the expense of ordinary citizens. They see, in short, a fundamental problem of political accountability in the American system of democracy. After they have seen all this, it is but a short step to conclude that something is fatally wrong, and inevitably so, with democracy itself.

UNPACKING JANE: On pp. 178-9 Mayer reports on the dubious utility of torture:

Rather than accepting [Abu] Zubayda’s limitations, [retired FBI agent Daniel] Coleman believed, the Agency had tortured him into telling them what they wanted to hear. Zubayda gave up a few useful tidbits, according to the 9/11 commission, including the name of an Al Qaeda recruiter who was soon captured. Foes of coercion often argue that it doesn’t work. Experts suggest this is misleading. Torture works in several ways. It can intimidate enemies, it can elicit false confessions, and it can produce true confessions. Setting aside the moral issues [!], the problem is recognizing what’s true. Zubayda, for instance, reportedly confessed to dozens of half-hatched or entirely imaginary plots to blow up American banks, supermarkets, malls, the Statue of Liberty, the Golden Gate Bridge, the Brooklyn Bridge, and nuclear power plants. Federal law-enforcement officials were dispatched to unlikely locations across the country in an effort to follow these false leads.

To Daniel Coleman, who was back in Washington working on another FBI fusion team helping the CIA to decipher Zubayda’s diaries, the terror suspect’s marginal value came as no surprise. The diaries were a huge disappointment. Instead of operational intelligence, they contained hundreds of pages of nearly incoherent blather. Zubayda, he said, wrote in three different voices, giving himself three different names, “Hani 1, 2 and 3,” each apparently reflecting himself at a different age. There was poetry. There were religious musings. And there was enough sexual content for a CIA briefer to say all she had learned from the diary was, “Men are pigs.”

No Associated Press content was harmed in the writing of this post

Last week Andy McCarthy prompted the latest change in my understanding in how the right thinks about torture. Initially I believed they were unwilling to accept their leaders were engaging in it, and that if it turned out they were they would recoil as sharply as the rest of us. That changed when I read a Los Angeles Times piece by Jonah Goldberg that basically stipulated we tortured but was fine with it anyway. It may have been this one, where he writes:

the meatier part of the argument is in the more nuanced area of “coercive measures,” “stress positions” and what one unnamed official once described to the Wall Street Journal as “a little bit of smacky-face.” [Since elaborated as “wrapp[ing] a collar around [a detainee’s] neck and smash[ing] him over and over against a wall.”]…The way [Andrew] Sullivan and those who agree with him see it, torture is torture is torture — and torture is always wrong, even when defined as intimidation and “smacky-face.” “Not in my name” is their rallying cry, often with the sort of self-righteousness that suggests that those who disagree must admire cruelty.

Reading that, it became clear that Bush’s supporters were willing to uncritically accept the administration’s positions. Techniques were given cute euphemisms (see also) and those who objected to it on principle were dismissed as moral divas. Moreover, their reflexive support meant ignoring torture’s history. Engaging in practices with a gruesome past or lifting terminology from the Gestapo was never examined.

Now that we have some results they won’t even look at it from the most cold, calculating realpolitik perspective: Does it actually work? From a policy and intelligence standpoint is it a sound, sustainable program? Shouldn’t it give them pause that Abu Zubaydah gave up actionable intelligence under humane interrogation and worthless God-make-it-stop nonsense when waterboarded? Shouldn’t the extravagant lie that torturing Khalid Sheikh Mohammed helped prevent an attack factor into their thinking?

From the very beginning there has been a resolute, adamant insistence on ignoring facts. It has felt impossible to advance any kind of argument - to ask about investigations or prosecutions, to figure out how best to handle the cases of those we have tortured, to address our stance towards the rest of the world - when torture apologists appear entirely invested in the wholesale denial of reality. McCarthy’s contribution to the genre came as he referred to David Petraeus’ admission we have violated the Geneva Conventions:

With due respect to Gen. Petraeus, this is just vapid. To begin with, he doesn’t identify any provision of the Geneva Conventions that we have actually violated — he just repeats the standard talking-point of his current commander-in-chief that we took “steps that have violated the Geneva Conventions” during those bad old Bush days. What steps is he talking about? How about naming one?

Gladly: Common Article 3. The administration wanted to use tactics employed by the Soviet KGB - that the US characterized as torture - against detainees at Guantánamo. It engaged in transparently dishonest word games to violate the article’s prohibition against “cruel treatment and torture.” The Supreme Court ruled that the prisoners were entitled to Geneva protections and that the administration had violated their rights under it. In a further show of bad faith Bush tried to get Congress to rewrite the Geneva Conventions to accommodate the violations and later issued (pdf) an executive order attempting to do the same.

I was able to find all those links within minutes. This was not a strenuous exercise. For torture apologists to defiantly demand proof that is so easily available can only mean that they are willfully ignorant of what has been going on. Their refusal to even acknowledge new developments makes it nearly impossible to engage their arguments or to give them the benefit of the doubt. It’s as though their mental state is fixed at September 12th: in the sense of shock and grief, along with a feeling of blind vengeance and a desire to lash out first and think about it later. There was no initial gathering of wits when that first wave passed, no desire to look at the history of torture in order to see whose company it would put us in or if it had been generally helpful, no willingness to look at the results to see if it could be justified on even a practical level, no admission that rulings have unambiguously repudiated it - nothing. They are where they have been from the very beginning: In favor of torture come hell or high water, obstinately defending it in the face of the vast accumulated evidence against it. And that, Mr. Goldberg, is indeed the outlook of one who admires cruelty.

No Associated Press content was harmed in the writing of this post

Marcy noted a Newsweek piece that indicates we may be getting closer to filling in some torture details and does her usual fine job of reading between the lines:

Seeing these cables will, at a minimum, allow the Senate Intelligence Committee to pinpoint when the torture started, and whether it came before or after approvals. It’ll allow them to determine whether the CIA really tried non-coercive questioning before using torture, and whether that non-coercive interrogation was even minimally competent. It’ll allow the CIA to see all the false information provided under torture.

Omar Khadr has the distinction of inaugurating the Obama Era of quasi-judicial proceedings at Guantánamo, which seems something like throwing out the first pitch at Opening Day in Hell.

The degree to which Dick Cheney pushed Congress to sign on to the torture program became a little clearer this week. And it would be nice if the networks started treating Liz Phoul as his deeply conflicted daughter instead of allowing her to blanket the airwaves as some kind of dispassionate analyst.

Retired General Ricardo Sanchez would like to know more about torture too. It’s interesting how the military has started to make some noise about this - last week David Petraeus spoke out about it. Is there a sense of trying to spit out the bit Donald Rumsfeld tried to force in? It’s a fascinating dynamic because, like Republicans arguing for declassification of torture documentation, they have to know it will involve a decent amount of damage to themselves. I don’t think any of the upper levels of government will walk away unscathed by a broad investigation. Do the various actors believe otherwise, or do they think their political opponents will be more damaged, or is it a genuine desire to make a clean breast of it? It’s impossible to say from the outside but it’s led to some very unexpected stories.

Sublime framing from the Times:

There are two distinct camps in this argument. One camp, which includes legislative leaders, is pushing for trading on an open exchange — much like stocks — where value and structure are visible and easily determined. Another camp, led by the banks, prefers that some of the products be traded in privately managed clearinghouses, with less disclosure.

What are some of the virtues of “less disclosure”?

First, a group of banks led by JPMorgan made a $12 billion loan. Then they tried to sell it, but couldn’t find many buyers. So they dipped into the unregulated, opaque credit default swaps market to try and buy protection — except that they couldn’t find the CDS they wanted, so they had to buy similar ones.

A reason to think things may be looking up: A brief story about Dan Fried, who is charged with finding homes for Guantánamo detainees. We could use a lot more people like him in our bureaucracy.

Someone in the Obama administration is trying to “permit military prosecutors to avoid airing the details of brutal interrogation techniques” used at Guantánamo Bay. Agence France-Presse reports it “as the work of lower-level players in the debate who want to gain currency for one approach, a strategy that usually has the opposite effect with Obama” according to an administration official. Glenn Greenwald has his own take on framing at the Times on this story.

UNPACKING JANE: On page 252 Mayer describes the (non-)reaction to the death of Manadel al-Jamadi:

By late spring of 2004, the SEALs’ reputations had been tarnished by the exposure of their rough treatment, but they were cleared of the gravest abuse charges. The question of who was responsible for Jamadi’s death remained unanswered. Milt Silverman, one of the defense attorneys, asked, “Who killed Jamadi? I know it wasn’t any of the SEALs….That’s why their cases got dismissed.” Frank Spinner, a civilian lawyer who represented Ledford, said, “There’s a stronger case against the CIA than there is against Ledford. But the military’s being hung out to dry while the CIA skates. I want a public accounting, whether in a trial, a hearing before a congressional committee, or a public report. There’s got to be something more meaningful than sticking the case in a Justice Department drawer.”

No Associated Press content was harmed in the writing of this post

This week Conor Friedersdorf looked at the murder of Dr. George Tiller and asked if defenders of George Bush’s counterterror policies would “be comfortable if President Obama declared two or three extremist pro-lifers as ‘enemy combatants’? Should Pres. Obama have the prerogative to order the waterboarding of these uncharged, untried detainees? Should he be able to listen in on phone conversations originating from evangelical churches where suspected abortion extremists hang out?” Considering that the suspect in Tiller’s murder is already further along towards a conviction than Abu Zubaydah it seems reasonable to look at what tactics are theoretically available against someone that much more advanced in the legal process.

Two of the comments in Friedersdorf’s thread, “unless you have read Justice Jackson’s opinion in Youngstown, you really aren’t equipped to discuss the legal issues here” and “The threat from the Islamic terrorists [is] certainly more significant than folks who want to bomb abortion clinics” seem to best summarize the counterarguments. The first, presented with magnificent haughtiness, is to cite case law that conservatives previously had no use for when defending the War On Terror. The Bush White House and Justice Department (the two were often hard to distinguish) formulated and ruled on policy by resolutely ignoring Youngstown - literally making no mention of it at all. This tactic was also used when attempting to rationalize waterboarding and who knows what else. As it turns out, pretending that what you do not like does not exist can be a remarkably effective political tactic in the right environment.

The refrain from the administration was that “9/11 changed everything.” In practice it meant the president was not bound by precedent, tradition or the law as ordinarily understood. The day of the attacks was Day 1 of Year 0; anything prior “does not reflect contemporary reality.” For conservatives to now discover judicial process after deriding and dismissing it is impossible to take seriously. They have spent years insisting upon the uniqueness of the threat we now face and the measures required to combat them. Rulings from the Truman administration are as remote and foreign as the Code of Hammurabi. No one on the right attempted to argue otherwise. If they want to walk that back now that the political climate is not so favorable they should be honest enough to admit that no principle is involved.

The second argument is unpersuasive as well. The right has never attempted to quantify the nature of the danger posed by terrorism, or argue for powers to be added or amended commensurate with that danger. It simply treated terrorism as an existential threat that required ceding absolute power to the president. When John Kerry attempted to put it in a law enforcement context he was ridiculed and the GOP made it a campaign issue (note then-RNC chair Ed Gillespie’s Year 0 condemnation of Kerry’s “pre-September 11 mindset”). The right was fine with warrantless wiretapping of those “suspected of terrorist connections” and the relaxed evidentiary standards of the Patriot Act. The argument was always for broadly defined powers against a poorly defined target.

So when the question becomes, “what is terrorism?” a lot is at stake. Any activity that can adequately described as such is subject to the president’s vast array of new powers. Remember, Bush’s supporters enthusiastically stretched language to suit their needs; prisoners became “unlawful enemy combatants” in order to deny them rights under the Geneva Conventions, for example. They surely then would not object to having a second look at a term like “terrorism,” right? Tiller’s murder appears to have been an attempt to intimidate people into changing their behavior - that seems to be as clear an example of it as you could ask for, no stretching required. Proponents of the unitary executive did not say the president’s freedom of action was limited strictly to Islamic terrorism, or by any previous law or ruling.

Which means it applies just as well to the current case. Given the gravity of the situation (Tiller is not the first murder victim) and the strength of already available evidence (there are closer operational ties between Scott Roeder and Operation Rescue than Binyam Mohamed and al Qaeda) Barack Obama would be completely justified in doing all the things Friedersdorf outlines. He has shown no inclination to do so, and I would object to it if he did as strenuously as when Bush did it in the name of Keeping America Safe. But the right should be under no illusions: Should he decide to use even some of those powers, he will do so on grounds pioneered and strenuously defended by conservatives.

No Associated Press content was harmed in the writing of this post

The London Daily Telegraph reported that the Abu Ghraib photos the administration doesn’t want released are far more inflammatory than the ones already seen. Deputy assistant secretary of Defense Bryan Whitman attacked the report, and on Friday Scott Horton confirmed the story. He also added some context on Whitman, who led the propaganda campaign to get Newsweek to apologize for reporting that jailers at Guantánamo Bay had flushed a Koran down a toilet - which as it turned out was at least credible and certainly not worthy of a groveling retraction. Horton also reports how Whitman tried to torpedo the presidential candidacy of Barack Obama, but since politicization of the military is now kosher that is merely a footnote.

Horton uses anonymous sourcing in his story. I don’t have a problem with it because the sources are acting in as whistleblowers. They are going against the institution they work for and are risking damage to or even the destruction of their careers. Plus, Scott Horton has credibility. If his stories start blowing up then it’s worth taking a second look at his stories.

Some interesting twists in the torture story. It seems that largely out of the media spotlight doctors and psychologists are working through the implications of how their members participated in it. It’s possible that a disciplinary investigation could be the source of bombshell revelations with profound impact for the political class. Not guaranteed, obviously, but it’s certainly possible for an academic or professional organization to produce news that shakes the ground far beyond its relatively obscure patch of it.

David Petraeus admitted the US has violated the Geneva Conventions and that torture created a recruiting tool for terrorists (more than a tool, by the way). This does not strike me as politicization because unlike Whitman he was speaking on the record about an issue he has extensive experience on and giving his professional opinion based on it, as opposed to facelessly whispering lies to reporters. That said, I don’t know how good an idea it is to have active commanders giving interviews on topics that could so directly relate to policy - even if they are experts. It might be better for active military to decline such interview requests, or at least defer on questions when they start going too close to that area. And I’d like to note with some amusement that Fox News may have gotten more than it bargained for on this one.

I haven’t seen anything about Sonia Sotomayor’s approach to executive power so I don’t have anything to say about her nomination. Charlie Savage noted she “has never worked in the federal executive branch and sits on a court that hears few executive power cases,” so any attempts to get a read in this area is probably more tea-leaf reading than anything else.

There were bad apples at Bagram too. At this point can’t we just stipulate that any bad apples were not sitting in barrel but rather the fruit of a poisonous tree whose branches extended many different places and was rooted in the White House?

There are real people affected by our policies. Boumediene’s first name is Lakhdar, not “Bush v.” It may sound obvious or even trite to say that but I think much of political thought has reduced these people to symbols or names on dockets. It’s not the only human face of our actions that we are averting our gaze from, either.

Post of the Week is from bmaz. The Speech and Debate Clause protected anyone in Congress who wanted to make use of it. United States v. Gravel is the precedent. It wasn’t legal jeopardy but a failure of courage on the part of our leaders. It is unforgivable and history will judge them harshly. Not as harshly as the architects, but that still leaves plenty of room for an execrable reputation.

Obama administration: We’re still going to keep using the State Secrets Privilege, and force it (via) on our allies too. Because it’s been so effective domestically and won us such a deep reservoir of good will abroad.

I certainly hope our former president keeps talking. By all means, keep advancing the story. Even your allies are starting to catch on.

I wrote on Thursday about Obama’s new friends on the right. He made some more on Friday. Conor Friedersdorf and hilzoy have already given proper responses so I’ll just leave it at that. UPDATE: No I won’t. I’ll also add this from Brad at Sadly, No! It turns out center right politicians in the UK aren’t committed to defending depravity and cruelty but actually investigating it. Here in America they are still torture enthusiasts. And Brad, Britain probably wouldn’t do a David Cameron for Newt Gingrich and Dick Cheney trade without several year’s worth of high level draft picks, us agreeing to take on most of the salaries and maybe the cricket equivalent of an iron mike pitching machine.

The CIA has mislead people in the past, manufactured outrage from Gingrich and company notwithstanding. I feel kind of dumb for even bothering to point this out, but the message is out there so it’s better to address it instead of ignoring it.

I’d love to know more about this. And one amusing coda to my post about the DTCC. I mentioned suspicions about Gradient Analytics in passing, and a couple days later an EVP from Gradient contacted me offering to answer any questions I might have. I thanked him, sent some questions along and advised him that all our communications were presumptively on the record. I haven’t heard back since.

UNPACKING JANE: From page 251, more on how abuse at Abu Ghraib was the result of the official directive to ‘Gitmoize’ its treatment of detainees and not the product of a few low level freelancers:

By the time that Jamadi arrived at Abu Ghraib, it was clear that the CIA was playing outside everybody else’s rules. The August 2004 report by Major General George Fay concluded that “CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib.”

[snip]

Walter Diaz, a military policeman, was on guard duty at Abu Ghraib the morning that Jamadi was delivered to the prison. He said, “The OGA” - “other government agencies,” initials commonly used to protect the identity of the CIA - would bring in people all the time to interview them. We had one wing, Tier One Alpha, reserved for the OGA. They’d have maybe twenty people there at a time.” He went on, “They were their prisoners. They’d get into a room and lock it up. We, as soldiers, didn’t get involved. We’d lock the door for them and leave. We didn’t know what they were doing.” But, he recalled, “We heard a lot of screaming.”

No Associated Press content was harmed in the writing of this post

When the aggrandizement of the executive branch began during the Bush administration I expected conservatives to be supportive because it was consistent with their history. On spending, for example, Ronald Reagan had no problem with profligate boondoggles as long as they were in his preferred area - even famously dismissed the entire concept of fiscal probity by quipping that the deficit was “big enough to take care of itself.” This, remember, is the president the GOP most fondly remembers and reveres of at least the last fifty years, maybe since Lincoln. If its standard bearer couldn’t be bothered what does that say about the rest of the party?

So I expected the same expedient attitude towards principle once George Bush began to claim that he had nearly limitless (in practice) authority to do what he wanted as long as it was to protect the country. When a Republican is in the White House the president is the principle, and all prior rhetoric must be retrofitted to the new executive’s actions. It was no less outrageous for being anticipated but it still lived down to my expectations.

I did make one huge error in judgment, though: I assumed those claims would be mothballed as soon as a Democrat won the presidency. When Barack Obama won I couldn’t wait to see the right try to walk back all that “Commander In Chief is a law unto himself” nonsense it has been so enthusiastic about. That is not what has happened, though. As Obama has embraced key parts of the Bush national security policies the right has largely applauded him. I expected kicking and screaming. I feel a little better about failing to see it because I’m not alone; as Glenn Greenwald pointed out, “During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush’s executive power expansions by asking them: ‘Do you really want these powers to be exercised by Hillary Clinton or some liberal President?’” As it turns out, the answer is an emphatic “yes!”

Why are conservatives fine with this? Publius suggested it was simple political posturing and Steve Benen added that it was a tactic “predicated on Republican hopes that public fear will outweigh public reason.” It isn’t that they have they been painted into a corner by their previous support; rather, they see it as one of the few issues where they could have an advantage that pays substantial dividends. The more worrisome possibility they mention is that advocates of authoritarian measures were so traumatized by 9/11 that they are still driven by a primal fear. Perhaps many on the right believe these measures are necessary for a president - even a Democratic one - to have because the threat we face is so dire. It seems much of the country has in the succeeding years tried to come to rational grips with the magnitude and nature of the threat we face from terrorism, but a significant part of it feels the violence of that day almost as immediately as it did in the initial aftermath.

Obama’s embrace of these policies, the people who champion them and the philosophy that underlies them is in direct conflict with what he has repeatedly said he believed. Greenwald has been dogged in tracking these changes, both from what Obama claimed when running for president as well as from his brief tenure. There is no obvious way to reconcile the two. Andrew Sullivan has tried to by claiming Obama is playing a long game, meaning that the issues he is giving ground on will inevitably be taken back by a combination of court rulings, changing public opinion and a reinvigorated Congress (and that he is saving his political capital to spend on the highest profile issues like health care).

That may be true, but as a strategy it is also too clever by half. Courts have generally struck down Bush’s most expansive claims but there is no guarantee they will continue to do so. Public opinion can be diverted with a determined enough effort or a fabulous enough sideshow. And I for one would not count too heavily on aggressive action from any body that counts Harry Reid among its leadership. The risk, that part or all of the Bush vision of counterterrorism will be enshrined across party lines and presidential administrations, is extraordinarily severe. If that really is what he is thinking he must be very confident of his ability to foresee how it all will unfold - and also must believe he has a very long spoon.

Writer William K. Wolfrum had the following to say in response to my Thursday post:

I had some fun with the Mitchell’s meandering, horrifyingly written, logical fallacy-laden opus here: The Story of Sleep Rapture

To say that the only responses to “Deep Capture” have been ad-homs from those accused is patently unfair. Mitchell’s work is sponsored by Patrick Byrne of Overstock.com, who has lashed out irrationally at any that have questioned his “leadership” of the company. His attacks on Bethany McLean - who unearthed the Enron scandal - have been particularly vitriolic, sexist and hateful.

There is plenty of room for honest discussion on U.S. financial journalists, as well as the practice of naked short-selling. But when those debates are being driven by someone with an obvious agenda, then the discussion has flown into the world of conspiracy.

For examples of ad hominem attacks by Mitchell’s targets, Sam Antar called Mitchell a “a washed up former journalist who is now a paid shill for Overstock.com.” Gary Weiss said he was a “eccentric ex-journalist…who fruitlessly pursued for Columbia Journalism Review a hatchet job on Herb Greenberg and other journalists critical of Overstock.com CEO Patrick Byrne.” Neither are substantive critiques of Mitchell’s reporting. I haven’t seen anything along the lines of “Mitchell reports X but that is incorrect because…”

Byrne’s comments to McLean are indeed vitriolic and sexist. Mitchell reported them on page 43 of Deep Capture so clearly he wasn’t trying to present a sanitized portrait of Byrne. His comments, and the absence of any reported apology for them, speak poorly of his character and are worth keeping in mind when weighing his claims. But boorish or vile personal behavior is not necessarily indicative of poor public behavior any more than the reverse is true (by all accounts George Bush was a pillar of virtue in his private life, but the bulk of his major public policies ranged from disastrously incompetent to outright evil).

I agree about the room for honest discussion about naked short selling. I hope we can get beyond the personalities and charges/coutercharges and instead try to focus on at least nailing down some basic facts that everyone can agree on. I’d love to know if the one passage I quoted is in dispute: Does the DTCC really process that much money? If not, what is the amount? Is it really as lightly regulated as Mitchell claims? Has there ever been an audit of it? If so has the SEC made even a summary of its findings available? If the public record is indeed blank and the SEC really has trod so lightly about it, isn’t it somewhat scandalous that we know so little about such an enormously important part of the economy? And to venture a little out of my depth, hasn’t one of the selling points of the U.S. economy been its stability and transparency? If fundamental cogs of its financial infrastructure are opaque and subject to insider manipulation how does that make us different from some freewheeling emerging market marked by insane cycles of boom and bust that no rational investor (or country) would ever want to count on? It seems to me we are risking the most valuable coin in the realm - our credibility - by not having an unswerving commitment to openness.

I sent that to Wolfrum; his response:

First off, Antar is not a journalist but more a whistleblower now. I spoke to him about a month ago.

If you were looking for his perspective on the issue, I could help you get a hold of him if you like. He has some definite opinions on the SEC.

Also, here are a couple stories that focus on naked short selling.

As for Mitchell’s opus, I know a lot more about conspiracy tactics than I do finance, and to me, it is pure conspiracy, roaming from the Russian mafia and secret anonymous phone calls and a vast array of ad-homs ( I like the part where he’s referring to Jim Cramer and writes “Cramer - who is a psychotic - ..” Basically, I really struggle with the idea that someone could spend so much time on such an important story and just leave everyone confused. It’s bad writing, has hundreds of sourceless claims, etc. Plus, he’s employed by Byrne and Overstock.

In the end, my focus was more on Byrne and Judd Bagley (who have attacked and threatened all who oppose them), more than Mitchell. I found that their attacks on financial journalists were so far above the pale that the far crossed the line of libel. However, journalists are almost always ill-served to fight such cases in court.

In the end, to me, it comes down that on one side is a group of financial journalists and on the other side is Patrick Byrne. Everything out of Deepcapture, including Mitchell’s opus, has to be placed at his feet.

I would love to see you really tackle all the angles of this story, including the DTCC, and would be willing to assist you in any way I can. Part of how I approached my in-depth story on Byrne was to work with several different journalists, and I think you could be well-served taking the same approach, using journalist types that don’t have a dog in the race.

The articles Wolfrum links to concern a Bloomberg piece on the possible role of illegal naked short selling in the collapse of Lehman Brothers last year. Funny enough, Mitchell provides a different interpretation of the same article (and Wolfrum’s links as well) over here. The central contention - “as many as 32.8 million shares in the company were sold and not delivered to buyers on time as of Sept. 11” - is not disputed, but the CJR article says Lehman “was a dead man walking anyway.” There is also a certain amount of chicken-and-egg reasoning: Did the shorts cause Lehman to fail or did Lehman’s failing cause the shorts? That’s the kind of thing a public investigation might uncover. It would be splendid to have one.

One other note on the CJR piece: it attempts to discredit the sources but does not provide evidence:

And the Bloomberg piece leans on sources whose credibility is questionable. Harvey Pitt, the former SEC chairman for one. Not many people think he was good in that position—to say the least—but he now runs a company that relies on the threat of short-selling rules and prosecutions to get business. Bloomberg calls it “a Web-based service that locates stock to help sellers comply with short-selling rules.”

Happily, Mitchell also links to SEC Inspector General David Kotz’s report on naked shorting. I skimmed through it and would like to point out the following. (Alphabet soup: ECC=Enforcement Complaint Center and OMS=Office of Market Surveillance.) The SEC actually took action on naked shorting after the collapse of Bear Stearns:

Initially, on July 15, 2008, the Commission issued a temporary emergency order providing that no short sales could be effected in the securities of certain financial firms unless the seller or its agent has borrowed or arranged to borrow the security or otherwise has the security available to borrow in its inventory prior to effecting the short sale and delivers the security on settlement date.

Our review of the ECC’s written complaint processing procedures indicated that they do not provide specific triage steps for the in-depth analysis of naked short selling complaints. In contrast, however, the ECC’s triage guidelines provide steps for in-depth analysis of other specific types of complaints, such as spam-driven manipulations, unregistered online offering, insider trading, whistleblowers/ accounting or other fraud, and advance free frauds and offshore boiler rooms.

During our audit, ECC staff informed us that the typical naked short selling investor complaint is based on data obtained from a Level II trading terminal. The ECC staff further explained that they were troubled by these complaints and consulted with OMS to make sure they were handling them properly. According to ECC staff, OMS advised the ECC that while complaints alleging naked short selling, as well as all manners of short-selling conspiracies, should be taken seriously, such activity generally cannot be observed from a Level II computer screen, which does not provide information about delivery of shares or the covering of short positions. As a consequence, OMS advised the ECC that naked short selling complaints based upon data from Level II terminals typically lacked a specific, substantial factual foundation and were unlikely to lead to a successful investigation.

However, the delivery and settlement information that Enforcement claims is missing from many investor naked short selling complaints is frequently proprietary information that is not available to an individual complainant or the general public. Oftentimes, a member of the public can only point to the fact that shares are on a threshold list, which in itself is not probative of naked short selling.

Thanks again to Bill for the feedback.

No Associated Press content was harmed in the writing of this post

The Bush administration cannot account for millions of emails and a federal judge upheld a ruling (via) “that the White House’s Office of Administration is not subject to the Freedom of Information Act.” It had complied with FOIA requests in the past, but that policy was changed when Citizens for Responsibility and Ethics in Washington (CREW) filed this case. Note: Policy change. The president could simply change the policy back, but has not and has given no indication that he will. All those nice words he mouthed upon taking office certainly seem to have soured. The fine oratory isn’t fooling civil liberties groups, though.

Lanny Davis has concluded that Dick Cheney should be indicted. When a member in good standing of the Beltway political class adopts that position it’s noteworthy; the Inner Sanctum is the last and biggest obstacle to an investigation of Bush-era war crimes. Maybe disaffected Hillary Clinton supporters will provide some needed pressure against the message coming from the look forward, keep walking keepers of conventional wisdom.

Harry Reid opposes closing (via) Guantánamo with the almost unbelievably dishonest claim that “We will never allow terrorists to be released in the United States.” And he doesn’t know how to shepherd legislation through the Senate either. He is a craven, ineffectual joke of a politician and a disgrace to the Senate Democrats he leads. (Which is meant to be an indictment of them as well - they chose him to be their leader.) Perhaps the best portrait of the man was painted by The Editors:

When The Editors asked me to abandon my responsibilities and play second fiddle to an unpopular, corrupt ex-President for this nonsense awards post, I said “No! No! A thousand times no!” For if one does not have principles and the courage of one’s convictions, then one has nothing at all. And that’s the story of how I came to vice-host this awards post.

The FCC doesn’t want to be left out of the fun in expanding the surveillance state so it has staked its claim to warrantless wiretapping power by invoking the Communications Act of 1934, which has to be the awesomest stretch of logic since the set of regulations adopted by the Office of the Comptroller of the Currency in 2004 that shut down state attempts to regulate banks.

Conor Friedersdorf wondered how anyone could think Obama is attempting a socialist dictator takeover of the U.S. AND be in favor of expansive, unaccountable executive power. Olympic caliber mental gymnastics follow as various commenters attempt to establish that they want the president to be an authoritarian abroad but constrained at home. Others attempt to point out that if, say, you allow the president to declare citizens inside the country to be enemy combatants and to imprison them indefinitely without charge - much less a trial - in the name of Keeping America Safe then you are basically depending on the good will of the leader and not Constitutional safeguards to guarantee your rights. (Which is the definition of a nation of men and not laws.) They shot back that when they approved of ceding those powers they had no idea that a president Obama would one day have them at his disposal, to which I can only make the following hilariously obvious point: When you give power away you leave decisions about its use to those you give it to! The whole foreign power/domestic power construct doesn’t really survive contact with reality. No matter how strictly you try to circumscribe it, power is power and grey areas will spring up almost immediately. And as others point out, if Obama was really as scary as they say then he poses a much more grave and immediate threat to the country than all the terrorists in the world; surely getting rid of those expansive powers would be the single most urgent task right now - even more important than dealing with the threat posed by The Terrorists, right?

UNPACKING JANE On page 316 Mayer reports on how a group of lawyers led by Philip Zelikow attempted what they called “The Big Bang” - a secret proposal to end the worst of the detention and interrogation abuses. They begin to move the proposal up the chain of command at the State and Defense departments, with some success. Then on pp.218-9 she describes the culmination of their efforts:

The Big Bang proposal reached Bush, two sources said, proving that as of the summer of 2005, he knew there were senior officials inside his administration, including a deputy defense secretary, who thought the war on terror was being undermined by his detention policies, and that Guantánamo needed to be closed. If he read that report, he also knew that there were credible allegations of CIA abuse and calls for accountability. Nonetheless, said one of its sponsors, “The Big Bang just died on the vine.”

No Associated Press content was harmed in the writing of this post

On Wednesday lambert pointed me to a Bloomberg article by Robert Schmidt and Jesse Westbrook claiming the Obama administration will call for moving some of the powers of the Securities and Exchange Commission (SEC) to the Federal Reserve. While the SEC has come under fire for its reluctance to aggressively monitor Wall Street, the solution (as lambert points out) is to give the agency the resources, incentive and mission to do so, not to transfer authority elsewhere. Schmidt and Westbrook note that it “still has powerful supporters, including a number of Democrats on the Senate Banking Committee who aren’t likely to support having an agency they oversee cut back,” so maybe this is just a trial balloon. Either way it doesn’t deserve to make it past the rumor phase.

Whenever the news turns to the world of financial services, though, it seems like the path grows dark very quickly. (If so, that probably is by design.) I read stories like this and think, Congress oversees the SEC which is as it should be - and the SEC should be regulating…what? One of the most interesting reports I have read this year is The Story of Deep Capture by Mark Mitchell (pdf). First published last year, it is a 69 page report alleging corruption and collusion among hedge funds, regulators and financial reporters. It is tempting to dismiss it as tin foil hat conspiracy paranoia, but Mitchell is a former editor of the Columbia School of Journalism. Maybe he went off the rails after working there or maybe he was a bad hire in the first place, but that is something that should be backed up with evidence. All I have seen so far are ad hominem attacks from targets of his investigation.

The problem with establishing anything with confidence is wrapped up in one of Mitchell’s main contentions: That the world of financial journalism is relatively small; limited - at the time of his reporting, anyway - to one network (CNBC), a couple of newspapers (New York Times, Wall Street Journal) and a handful of magazines (Forbes, Barron’s, Fortune). If the economic news cycle is almost entirely determined by such a tiny group then it is possible to court and capture the prime movers. Even more importantly, the scope of respectable topics and people can be so strictly defined and narrowed that those marked for ostracism can be almost entirely silenced.

This puts the ordinary reader who encounters Deep Capture in a bit of a bind. Anyone coming to it from the world of politics will probably not need to be persuaded that an insular and self-reinforcing elite can decide what is and is not within the bounds of acceptable discourse. It is entirely possible to see a subject like the naked short selling of phantom stock marked as verboten and simply ignored by the most influential outlets. Anyone looking for independent confirmation of Mitchell’s allegations will necessarily be pushed to the fringes of financial journalism, and going there with no prior experience makes it impossible to weigh the credibility of what one finds. You have to go based almost entirely on your intuition and what seems reasonable.

Which is a real shame, because there are some fascinating elements to the story. Sometimes the web he weaves seems a little too sprawling, but other parts ring true. The idea of having a company like Gradient Analytics appear on the scene and almost instantly be hailed as an unimpeachable source of sound research looks a little fishy. So too is the role of an institution I had not heard of before (emphasis in original):

It is also important to recognize the role of The Depository Trust and Clearing Corporation (DTCC), an organization headquartered in New York City. DTCC is where stock trades are processed - more than $1.5 quadrillion worth of them every year. That’s 30 times larger than the entire gross product of the entire planet.

Which brings us back to the SEC. It ostensibly regulates the DTCC, but according to Mitchell that amounts to little more than walking in a couple times per year, kicking the tires and asking, “so how’s everything going?” When I read about moving SEC oversight to the Fed I immediately thought, would they do a better job? Would we know more about how the DTCC operates, and what role it might have played in the meltdown of the financial services industry? What would it take to get some light shining in there? With all due respect to the president, spending time and energy trying to yank pieces of authority out of Congress’ orbit and closer to his helps prevent discussions like that from even starting.

No Associated Press content was harmed in the writing of this post

What has come to seem like the normal exposure of gruesome new torture details may now be metastasizing into truly horrifying. And even that might not be the worst of it. Human rights researcher John Sifton pointed out that roughly 100 people have died from torture, and memos establishing the chain of command for torture are much more important from a legal standpoint than the photos president Obama doesn’t want released:

“These are operational cables showing the interrogations’ methodologies, what was approved, who knew about them, showing the notes of meetings in the White House between the principals group, people like Condoleezza Rice, John Ashcroft, Donald Rumsfeld,” he told Goodman. “These are important documents. I mean, the photographs are important, because they show viscerally what happened, but the memos show who ordered what happened to happen.”

Amazingly, Sifton actually went on to name a CIA interrogator believed responsible for the death of Manadel al-Jamadi, a prisoner who was suffocated to death by hanging.

“And that’s an interesting death, because that was a case where the CIA inspector general referred the case to the Department of Justice for prosecution, possible prosecution, and yet the Department of Justice never took any action,” said Sifton. “The name of the CIA interrogator in that case is actually publicly known: Mark Swanner. […] And he’s, for all I know, still walking around in the United States, even though he is implicated in this homicide.”

I thought the 9/11 commission was an anemic investigation (real ones don’t need to bargain to secure testimony, they just issue subpoenas and enforce them),and ultimately a whitewash. As it turns out, the information it does contain is tainted by torture as well.

Here is this week’s best reason why I always stop by Avedon’s place to see what she has to say:

I think Eric Martin’s point - that torture is morally indefensible whether it works or not - is a good one, but I think he is too easy in giving in to the “sometimes torture works” argument. I am certain that if torture were in any way a reliable means of getting good information, the anti-torture argument would have been lost a great deal earlier in human history. (Just look at this shameless comment by Harold Ford, for example.) Morality, as we have seen in every other area, disappears pretty quickly when there’s a buck to be made or an enemy to be spited, but this has always been the trump card in the argument: Torture doesn’t work to get good information. Trouble is, it has always been a good way to terrorize people or to get false confessions. It “worked” for Cheney in the same way it worked in the Soviet Union - to get people to say things that weren’t true but were what he wanted to hear.

The changed position on the abuse photos wasn’t the only egregious mistake by the president this week. Military commissions once again entered the picture as well. I believe he takes these positions because he believes them. It’s the simplest and most sensible explanation. Andrew Sullivan says Obama is playing a long game and that it helps him to “have symbolic spats with those of us who believe we have no choice but to confront the war crimes of the last administration.” Even if Obama is playing some kind of super smart inside game there is a big problem with it: Doing so validates conventional wisdom in Washington. By not releasing the photos and reviving the commissions he validates the talking points about this being a dispute between his hard left civil libertarian base and thoughtful, serious centrists who see both sides of torture and extrajudicial hellholes. It reinforces the lazy thinking of amoral monsters like David Ignatius and allows the David Gregory types to, well, continue being David Gregory types. That is decidedly not helpful.

I made my thoughts on Nancy Pelosi clear last week, but the developing focus on her in the torture debate is insane. It’s about the principals of the Bush administration. Any thorough investigation will probably bring down some pretty high profile Democrats but the primary architects were in the GOP. It would be lovely for the media pack to not so reliably chase after every single rubber ball tossed by Republican strategists.

Valerie Plame was celebrated by the left when she and her husband were going after George Bush. The CIA was seen as thrown under the bus - providing responsible intelligence estimates that were ignored or cherry picked, and hounded by unscrupulous politicians who wanted agency validation of their demented imaginings. Now liberals feel a little differently since the CIA is going after Democrats. First, some thoughts from Spencer Ackerman, whom I don’t read or quote as much as I should:

It’s been my experience that any attempt to generalize about the CIA is wrong. It’s not an organization of liars and it’s not an organization of torturers and it’s not an organization of liberals and it’s not an organization of barbarians and it’s not an organization of brave truth-tellers and it’s not an organization of risk-averse bureaucrats and it’s not an organization of lawbreakers and it’s not an organization of whiz kids and it’s not an organization of mediocrities. But come on. The greatest intelligence officer the CIA ever produced was convicted of lying to Congress. I regret that I don’t have my copy of Tim Weiner’s definitive Legacy of Ashes handy to document quickly how routinely the CIA lied to Congress throughout its history.

Watch for this. Not news yet, but will be.

Sometimes it is the clowns who get most directly at the truth:

What conservatives must try to hide all the time, causing spectacular screw-ups and flame-outs, and ensuring the doom of any sincere effort to ‘reinvent the party,’ is that their core motivator, once you cut through the bread-and-circuses issues like gay marriage, immigration, and abortion, is the removal of governmental and societal checks on the power of private interests, in order to funnel off the wealth collected and held since World War II by a large and prosperous middle class.

UNPACKING JANE: Mayer names Mark Swanner for the first time on page 250, and writes this on 258:

Jeffrey Smith, a former general counsel of the CIA who handled numerous national security cases in his private practice, said it was possible the Office of Legal Counsel’s memos had succeeded in indemnifying CIA interrogators such as Swanner even in cases of homicide. The lawyers may have opened too many loopholes, Smith said, “making prosecution somehow too hard to do.” Smith added, “But even under the expanded definition of torture, I don’t see how someone beaten with his hands bound, who then died while hanging - how that could be legal. I’d be embarrassed if anyone argued that it was.

No Associated Press content was harmed in the writing of this post

Journalistic solipsism requires that outside phenomena be treated with clinical detachment but those within the industry be screamed with lights and sirens. For instance, enormous nationwide job losses are dispassionately reported but high double digit layoffs in a newsroom are greeted with bold, caps, updates and overheated rhetoric. It also explains the myopia over what troubles the industry. We are in a recession, so it seems obvious that newspapers would be in the doldrums too. Yet the internet is the focus of their ire. Why? Nothing is on the scene now that wasn’t around five years ago. If the economy tanks then looking at your online operations should be part of weathering the storm, but why make it the primary focus?

In typically self-centered fashion news organizations only focused on the web’s “information wants to be free” ethos and expanded competition now that they are feeling its effects. It is nothing that travel agents, computer programmers and real estate agents have not already experienced. But newspapers observed changes in those industries without understanding their eventual impact on them. In fact, for all the distaste they have for bloggers, the latter have spent more time pondering it. Some, like Allison Hantschel (aka Athenae of First Draft) have a foot in both worlds. She has been posting over and over again for months about how newspapers’ wounds are largely self inflicted; that, for example, they consider a 16.7 percent profit margin cause for layoffs. (Ask someone in the airline or retail industries if they could make do with that.) As she points out:

If there was no Internet, if Craigslist disappeared tomorrow, if nobody ever blogged again, the greed, shortsightedness and selfishness that looks at a 40 percent profit margin and cries poverty - as was the case at some Gannett newspaper properties this year - would still smother newspaper journalism eventually.

Business concerns aside, the deeper problem is with content. Papers have gotten smaller and smaller. Last year I finally decided my local paper was too small to justify a subscription, and others may feel similarly. If you remove stock and mutual fund prices and point people online for them, can you be surprised if they begin to migrate? Also, sometimes the remaining content is shoddy. Bill Kristol offered consistently faulty takes on foreign policy and was rewarded with one of the most prestigious jobs in journalism - where he promptly phoned in more lazy and incorrect commentary. There is no room for a Daniel Larison who might offer a view of conservatism even slightly at odds with received wisdom. Similarly, Richard Cohen can identify himself as at least a tentative liberal but then claim Dick Cheney “poses a hard, hard question: Is it more immoral to torture than it is to fail to prevent the deaths of thousands?” Couldn’t the Post employ a fully self-identifying liberal like digby who both writes brilliantly AND understands that torture is a war crime?

The biggest problem is with the hard news though. Frank Rich issued this caution on Sunday: “without their enterprise, to take a few representative recent examples, we would not have known about the wretched conditions for our veterans at Walter Reed, the government’s warrantless wiretapping, the scams at Enron or steroids in baseball. Whatever shape journalism ultimately takes in America, make no mistake that in the end we will get what we pay for.” But as Walter Pincus points out many investigative pieces are done with an eye on winning journalism awards, not serving the public interest. Even worse than indulgent reporting is that which is flatly wrong. The Iraq war utterly destroyed the credibility of not just the newspaper industry but news outlets in general. Every organization not named Knight-Ridder was more interested in working sources for access than independent reporting. The Bush administration was able to create links in the public’s mind between Iraq and 9/11 only - ONLY - because outlets refused to challenge the self-interested spin of government officials.

The elephant in the room for the industry is that on the most important issue of the last generation it routinely and wildly misinformed its audience. It is a systemic deficiency, not an isolated accident. It wasn’t just Judy Miller then, and it didn’t stop with the Iraq war. The Paper of Record still cannot bring itself to describe torture as torture when Americans do it. On this important issue papers continue (via) to mislead. (For hundreds of years and across all cultures nobody ever suggested waterboarding was not torture until George Bush became president; its defenders are the flat earth lunatic fringe of humanity and need no accommodation.) Subscribers are paying for that too, Mr. Rich. The biggest problem facing newspapers is a well earned skepticism that they will accurately inform their readers.

No Associated Press content was harmed in the writing of this post

Andy Worthington posted a list of all Guantánamo prisoners a couple of months back and I didn’t notice. Good on him for what must have been a fairly large undertaking. Getting a list like that together is just the first step, of course, but just having a first pass is a big deal.

Say what you will about torture, actual death is even worse.

I’m not sure if there are Jerk Wheaties but if so Lindsey Graham had himself a big ol’ bowl every day for breakfast this week. First he and Joe Lieberman asked the president to ignore a FOIA lawsuit by the ACLU (W. ain’t president anymore, boys. Why do I think there is already great nostalgia for him in Washington?), then (via) he and John McCain teamed up to sing the praises of extra-constitutional detention and call for the continued trashing of habeas corpus.

A couple of reports implicated Nancy Pelosi in CIA torture briefings. Marcy and bmaz promptly went bananas dissecting the lies and half-truths. I like to think of the two of them living in something like the Bat Cave, and whenever a particularly terrible report gets released they see some kind of blogger version of the Bat Signal (maybe a blinking Cheeto) and they swing into action, grabbing their keyboards and methodically dismantling the story. I leave the costume designs for each to your imagination.

A big part of the debate seems to be whether or not Pelosi had been told torture had been used or was just approved to be used.  Chris Matthews of all people hit the nail on the head Friday on MSNBC: That’s akin to someone who voted for the AUMF being shocked that it quickly led to war.  When you approve the prospective use of something, you approve its use.  If it doesn’t get used the way you want then you are either naive or disingenuous.  I’m more receptive to the argument that she was constrained by classification requirements and an anemic briefing/oversight process.  I definitely would like to see more attention to that.  It still doesn’t get her entirely off the hook, mind you.  For an issue as urgent as this maybe you go public even if it means breaking the law.  But the idea that she is blameless because she was told it was on the table but not actually in use yet is deeply, deeply unpersuasive to me.

Some Republican senators were trying to discredit Democrats as well. Larisa Alexandrovna jumped into the fray:

Where are you willing to draw the line Mr. Alexander/Mr. Shelby? Can we go all the way to Iran Contra as well or further? Or how about BCCI or even to Operation 40? Because I sure as hell don’t mind. Let’s rip it all open then, shall we? In fact, how about we keep going after the Jack Abramoff scandal which should have nabbed Mr. Shelby already, but for some reason did not (perhaps a Canary had something to do with it?).

My first impulse is, sure - let’s hear all of it. I don’t think Eric Holder should be above criticism for his role in renditions during the Clinton era. I’ve written before that I’m opposed to the Clinton-era rendition program, so if we’re going to revisit it that’s just fine with me. And I’ve never been satisfied with the Iran Contra investigation either, so I’m good with revisiting that as well. Let’s line them all up in reverse chronological order and go through them one at a time. Let’s throw open all the doors and windows.

I just love that Dick Cheney cannot shut up. Mr. Evil Genius is too dumb to realize that his mouth is a shovel these days, and every word is another little pile of dirt thrown out of the hole he’s dug for himself. He just keeps advancing the story, and the story gets ever more interesting.

Donald Rumsfeld isn’t really digging his hole any deeper, he’s just providing outstanding entertainment value by having his proxies say things like “Between the New York Times and the Pentagon’s inspector general office, it’s pretty clear which is a more credible and non-partisan source” exactly one day before the Pentagon withdraws its report because it “did not meet accepted quality standards for an Inspector General work product.” On a serious note, is that really where the story should end?

A cautionary tale for bloggers. A TV station reported that the FBI raided a North Carolina family’s house, arrested the sixteen year old son living there, whisked him away to South Bend, Indiana, and detained him on a terrorism charge - all with a lack of due process rights because of the USA Patriot Act. Then Kevin Poulsen reported that the Patriot act had nothing to do with it, and followed up with a post detailing allegations of the boy’s history of prank phone bomb threats. In other words, it very quickly went from Police State Horrors to a drama queen mother (Happy Mother’s Day!) overstating the reasons for her son - who has a suspicious history - being arrested. Now, it looks like the main problem is a reporter uncritically passing along the overwrought claims of a worked up source, but a number of sites I respect picked this up and ran with it as well. I can’t claim any special powers of discernment either; if I posted more often I probably would have jumped on it as well. It’s human nature to gravitate towards those stories that conform to our worldview. Sometimes that means they don’t get the skeptical treatment they deserve.

Since I’m issuing warnings I should also point out (to me as much as anyone) that Jay Bybee and John Yoo are presumed innocent unless a conviction is returned against them. Paul at Power Line points out that the leaking of the Office of Professional Responsibility (OPR) report on wrongdoing at OPR. He claims “the draft was leaked before Bybee, Yoo, or their lawyers had an opportunity to comment and before the Department of Justice determined that the preliminary report should become final,” which may or may not be true - both may have already happened, just not publicly - but it’s definitely a legitimate issue. There may well be enough smoke to warrant an investigation of whether the Privacy Act was violated.

The GOP established that it is still fully committed to scaring the hell out of the country this week, but the ground has (stop me if you’ve head this before) shifted beneath them. From the halls of Congress to Hardin, Montana folks are deciding to confront the fear being thrown at them by neoconservatives and their supporters instead of shrinking away from it. It won’t take too many examples of people standing up, squaring their shoulders and saying “let’s deal with this already” for the Republicans’ bedwetting hysterics to become universally scorned, ridiculed and despised.

Linda Sanchez, please stop the demagoguery.

Avedon pointed me to this by Rude Pundit: “Here’s where we stand as a nation: Right now, it is more likely that someone or some entity will be punished for the split-second exposure of Janet Jackson’s naked titty during the 2004 Super Bowl than for authorizing the torture of detainees at our prison in Guantanamo Bay.” Mark Kernes then followed up with “it’s more likely that Ninth Circuit Chief Judge Alex Kozinski will be punished for having a website with (mostly softcore) porn on it than will Ninth Circuit Appeals Court Judge Jay Bybee be punished for writing legal opinions detailing how to torture prisoners without (supposedly) violating the Geneva Conventions.” We have curious standards for obscenity, don’t you think? I know which I’d rather have my kids exposed to.

This really pissed me off:

But executives at the Big Four broadcast networks are seething behind the scenes that President Obama has cost them about $30 million in cumulative ad revenue this year with his three primetime news conference pre-emptions. Now top network execs quietly are hoping that Fox’s well-publicized rejection of the president’s April 29 presser will serve as precedent for denying future White House requests for prime airtime.

Those are public airwaves. Show the press conferences. The shows getting pre-empted suck anyway. While there’s no formal requirement for the president to hold prime time press conferences it seems to be a useful way to get him answering questions before the public. Folks can decide whether they think he’s full of crap for themselves, but just showing the damned thing helps to create a more informed and engaged electorate. Get over your precious selves already, and by the way you’ve lost orders of magnitude more money from illegal and unethical behavior on Wall Street. If you really want to protect your stock price start a continuous drumbeat for the reinstatement of the Glass-Steagall Act

UNPACKING JANE: On page 223 (and also here) Mayer describes this scene between general counsel of the Department of Defense William J. Haynes II and his subordinate, Navy general counsel Alberto Mora. On December 2nd, 2002 Donald Rumsfeld issued a memo approving tactics forbidden by the Army Field Manual.

Mora drew Haynes’s attention to a comment that Rumsfeld had added to the bottom of his December 2nd memo, in which he asked why detainees could be forced to stand for only four hours a day, when he himself often stood “for 8-10 hours a day.” Mora said that he understood that the comment was meant to be jocular. But he feared that it could become an argument for the defense in any prosecution of terror suspects. It also could be read as encouragement to disregard the limits established in the memo. (Colonel Lawrence Wilkerson, a retired military officer who was a chief of staff to former Secretary of State Colin Powell, had a similar reaction when he saw Rumsfeld’s scrawled aside. “It said, ‘Carte blanche, guys,’ ” Wilkerson told me. “That’s what started them down the slope. You’ll have My Lais then. Once you pull this thread, the whole fabric unravels.”)

Rumsfeld is a terribly clever man, isn’t he?

No Associated Press content was harmed in the writing of this post

This week may have foreshadowed the kind of twists and turns we can look forward to as more information about the US torture program becomes public. Jeff Kaye took note of a Washington Times story about how Jonathan Fredman, the top CIA lawyer for the agency’s interrogation program, disputes the record of an October 2002 interrogation meeting. According to the minutes this is where Fredman uttered the immortal words about interrogation, “If the detainee dies you’re doing it wrong.” It seems he or an ally does not wish for that to be the lasting impression of him because the Times article rather remarkably disputes the notes themselves.

Meeting notes seem to me to be fairly uncontroversial things. It certainly is rare for contemporaneous notes of one to spark debate. The usual procedure is basically: Have someone scribble down the main points people are making during the meeting, then afterwards type them up and send them out. Maybe something needs to be sharpened or modified in some way, but according to the Times “Mr. Fredman says the writer of the 2002 memo misconstrued enough of his points that the memo is unreliable.” That gets my antenna up. While I suppose it is possible for someone to get huge swaths of a meeting fundamentally wrong it does not seem very likely. It sounds more like a somewhat desperate and implausible attempt to rewrite history.

Fredman’s efforts to reshape an already-settling record is not what really interested me in Kaye’s post, though. It was his description of how the Army Field Manual (AFM) was lurking below the surface of the torture debate and will sooner or later emerge as yet another large knot to untangle. I had been under the impression that the military had a much stricter standard for interrogations, and once president Obama put the CIA under the AFM we had at least ensured torture would not be an issue going forward. It will not be quite so simple. Kaye pointed out in another post that in September 2006 Donald Rumsfeld ordered the overhaul of the AFM. The revised edition contained a section, Appendix M, which may have been initially intended to be classified. (Given what it contains this is yet another reason to be extremely skeptical of classification claims, for national security or other reasons.) It authorizes a set of interrogation procedures that go by the euphemism Separation. Kaye analyzes them, then arrives at the following commonsense formulation: “The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment.”

It turns out the whole “get it under the AFM=problem solved” calculus doesn’t work. The AFM is not what it used to be, and we now have to look forward to the prospect of people who performed interrogations under what had previously regarded as an unassailably legal set of guidelines now finding themselves on the wrong side of the Geneva Conventions. We can look forward to defenses such as this from Decline and Fall:

If you’re concerned about Appendix M, I suggest working toward an update of the Geneva Convention on Torture to reflect the changed face of combat in the 21st Century. The Army Field Manual is not the problem, the outdated definitions (and only the outdated definitions, in my opinion) of the GC are.

This is the kind of framing I expect to see once the issue becomes more prominent (which I think it will). It puts adherence to the AFM above our treaty obligations, and implies that violating the Geneva Convention is acceptable if policymakers conclude its definitions are outdated. The use of the term “detainee” to specifically avoid Geneva terminology - and the humane treatment such a designation carries - is not a willful effort to violate the law but a legal black hole that those quaint Geneva Conventions are inadequate to address. Expecting for us to formally withdraw from such archaic agreements prior to violating them, or inquiring as to legal jeopardy for those who do so, is a vengeful exercise in criminalizing political differences.

We will probably continue to see issues like this; be prepared for more unpleasant surprises. For as nice as it would be to believe the systematized torture program begun during the Bush years is a thing of the past, key pieces of its infrastructure are still in place. Sometimes they are not in plain view. But if they are not dismantled when brought to light they will make it that much easier for a similar program to be reconstituted at the flip of a switch. We have to deal with them - and the arguments that support them - before the political winds shift again.

No Associated Press content was harmed in the writing of this post

I’ve overlooked this for a couple weeks now but Manfred Nowak, the UN’s Special Rapporteur on torture has explicitly said that the US is violating its obligations under the Convention Against Torture (CAT).  As I wrote on Thursday, the question really should be whether to prosecute or withdraw from the CAT.  Happily, on Tuesday Congressmen John Conyers and Jerrold Nadler demonstrated that they understood that.

Daniel Larison is one of my favorite conservatives because he writes things like this:

Or more precisely, why is the belief that the torture of captured combatants is wrong compatible with anything other than some form of pacifism? I mean this an actual question, not as a passive-aggressive assertion. ~Jim Manzi

One of the things that has kept me from saying much over the last week or so is my sheer amazement that there are people who seriously pose such questions and expect to be answered with something other than expressions of bafflement and moral horror. Something else that has kept me from writing much on this recently is the profoundly dispiriting realization (really, it is just a reminder) that it is torture and aggressive war that today’s mainstream right will go to the wall to defend, while any and every other view can be negotiated, debated, compromised or abandoned. I have started doubting whether people who are openly pro-torture or engaged in the sophistry of Manzi’s post are part of the same moral universe as I am, and I have wondered whether there is even a point in contesting such torture apologia as if they were reasonable arguments deserving of real consideration. Such fundamental assumptions at the core of our civilization should not have to be re-stated or justified anew, and the fact that they have to be is evidence of how deeply corrupted our political life has become, but if such basic norms are not reinforced it seems clear that they will be leeched away over time.

 

Larison seems to usually argue from the principles he claims to champion.  This might not be a novelty in other times - may in fact be the kind of thing one might expect in opinion wholesalers if not politicians - but in the modern conservative movement it is a fabulous curiosity.  However, I suspect it is folks like him who will be the intellectual foundation of the new conservative movement once the current one completes its self-immolation.

Spencer Ackerman (emphasis in original):

if SERE instructors and officials reverse-engineered their program to keep someone awake for extended periods, either they didn’t understand that sleep deprivation is bad for acquiring information or they were interested in extracting false confessions

I hate to argue about torture from a practical standpoint - that we shouldn’t do it since it produces desperate pleadings and false confessions along with/instead of any scraps of actual useful information, and you’ll burn up disproportionately huge resources trying to find the needle in the haystack, or whether a needle is even there.  Once you go there the torture apologists then get to engage in lots of sober reflection and chin stroking over just how much cruelty one may inflict in the pursuit of just how much public good, and down that rabbit hole I refuse to chase.  Having said that, the deeply ignorant or dishonest nature of the torture program architects is a remarkable sight to behold.

So Prairie Weather tipped me off to this, which struck me as really great news, then Avedon brought me back down to earth.  Will he actually do anything about executive power grabs or will he live up to his nickname?  (Quick history lesson:  He was nicknamed Scottish Law because of his “not proven” vote during the Clinton impeachment, which Marcy then downgraded to Scottish Haggis out of her “frustration with his increasing cowardice” during the Bush administration.)  If the past is any guide he either is reluctant to confront the president at all or won’t do so when his party controls the White House.  In other words, it’s probably wise to not hold your breath.

Mark Danner:

torture is at its heart a political scandal and why its resolution lies in destroying the thing done, not the people who did it. It is this idea of torture that must be destroyed: torture as a badge worn proudly to prove oneself willing to “do anything” to protect the country. That leads to the second paradox of torture: Even after all we know, the political task at hand — the first task, without which none of the others, including prosecutions, can follow — remains one of full and patient and relentless revelation of what was done and what it cost the country, authoritative revelation undertaken by respected people of both parties whose words will be heard and believed.

May he publish frequently and prominently in the coming months and years.

I’ve started to think of all financial industry and Wall Street malfeasance under the umbrella term of “bailout.”  It’s a short, useful term, so I’ll use it in the context above and not just for the $700 billion approved by Congress last year.  That said - two bailout items:  How to stack the deck in your favor and how to play a stacked deck.

I feel obliged to note politically motivated murders, so: noted.

UNPACKING JANE:  In light of recent events this from page 156 is as current as the front page of today’s paper.  Abu Zubayda is being interrogated by the FBI using standard interrogation techniques (side note - the scumbag behavior attributed to George Tenet in these pages is nauseating as well):

“AZ,” an informed source said of Zubayda, “was talking a lot.” The FBI agents believed they were getting “phenomenal” information. In a matter of days, a CIA team arrived and took over, freezing out the FBI. The apparent leader of the CIA team was a former military psychologist named James Mitchell, whom the intelligence agency had hired on a contract. Oddly, given the agency’s own dearth of experience in the area of interrogating Islamic extremists, he had no background in the Middle East or in Islamic terrorism. He spoke no Arabic and knew next to nothing about the Muslim religion. He was himself a devout Mormon. But others present said he seemed to think he had all the answers about how to deal with Zubayda. Mitchell announced that the suspect had to be treated “like a dog in a cage,” informed sources said. “He said it was like an experiment, when you apply electric shocks to a caged dog, after a while, he’s so diminished, he can’t resist.”

Sincere question: Aside from the price tag of around $1000 a day what did ABC add to the story?  This stuff had been out there for years.  Why is the media deciding it’s worth reporting on now?  Why wasn’t it then?  Pack mentality, laziness and corruption in the form of catering to elites in exchange for access are my best guesses.