Pruning Shears

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

Eric Holder’s recent announcement on detainees was covered mainly for his decision to bring Khalid Sheikh Mohammed (KSM) to New York for trial. Less noted was the designation of military tribunals for five others. Civil libertarians objected to it, with Glen Greenwald doing a fine job summarizing their argument (“what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict.”)

In addition to system shopping, where government decides which proceeding to use based on the maximum legitimacy conferred while still largely guaranteeing a conviction, Jonathan Hafetz pointed out (via) that there is also the much larger “indefinite detention” system. Since we have held many of these people for years and years now, with no demonstrated intention to attempt anything like a final disposition of their cases, it seems fairly obvious that the president’s intent to implement indefinite detention is already in place.

These are huge problems and they will not go away on their own. It’s good to see organizations like the ACLU and the Center for Constitutional Rights filing lawsuits to establish human rights for them, force disclosure of sordid details and otherwise pressure the government to own up to its past with the goal of changing its behavior going forward. Their efforts are a great and necessary service.

That said, I think the fears for the implications to our system of law do not take into account the obstacles created by years of relentless neoconservative fearmongering. Right wing ideologues used the shock and uncertainty after 9/11 to yank public opinion to the right. The unspoken bargain seemed to be that they would largely be given free reign to do as they pleased - even if it clearly violated the Constitution - as long as there was not another terrorist attack. Persuading the country to stop paying attention to such brazen and cynical appeals to our most primitive fears will have to at times come in small steps.

Just look at the shrieking and hyperventilating that greeted Holder’s announcement. It is not simply the usual hissy fit that Republicans have perfected as a means to hijack story lines, though that is part of it. It is also an almost palpable fear on their part that the framing they have been so successful with and have come to rely so heavily on is about to be discredited. The country was endlessly told Guantánamo held the worst of the worst. What happens if the individual universally regarded (via) as the worst there is gets brought to the site of his crime for a trial, and we are not made less safe as a result? What if instead the world generally considers it as a legitimate proceeding that even our enemies must grudgingly acknowledge? At that point what terrors would the right have to frighten us with? The stakes for them are as high as they get in politics - the very legitimacy of their worldview. No wonder they are screaming.

(Those last two points - progress in small steps and dispelling GOP shadows - may have a domestic parallel in the health care debate. I think liberals are making a mistake by treating the current moment as a once-in-a-generation opportunity that we either completely succeed or fail at. It should be treated as a cause, and we need to have the determination and persistence to keep at it. Fight like hell for the best deal right now, and once the flaws of the new system are revealed come back for more. And once the reforms start phasing in the public will realize all the dark warnings on the right are nonsense.)

The goal is not to “win” the argument but to convince the larger part of the electorate that they have been deceived. The way to do that is to assemble evidence piece by piece, and the trial of KSM is one of the biggest. As time goes on the picture will become clear, and that will make the public open to proper judicial treatment for more and more detainees. I understand the urgency of those who have languished for years and know that the American public’s evolving view on detention should not be their problem; I also understand the serious reservations of those who warn of the implications for the administration’s shuttling of suspects into different venues based on the prospect of securing a conviction. Still, I can’t help but be encouraged by the direction we seem, slowly, to be moving.

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

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Nidal Malik Hasan’s shooting rampage at Ft. Hood has raised questions about whether the FBI had sufficient warning to prevent it. I have not seen anyone claim Patriot Act provisions were in any way invoked, but clearly they didn’t prevent anything. I commented at Prairie Weather that indiscriminate collection - basket warrants, wholesale sucking up of internet traffic and even “targeted” things like warrantless wiretapping and library record searches create a greater volume of information than can be intelligently processed. It doesn’t keep “lone wolf” types like Hasan from acting because even when it is identified as suspicious behavior it exists within a haystack of other suspicious behavior. Which, again as I commented, means the Patriot Act is being kept around for some other reason.

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As to whether the Patriot Act can disrupt more organized plots, its preemptive philosophy prevents us from ever making such an evaluation. Even its defenders can at best use qualified language like “the Lackawanna Six plot…may well have resulted in another 9/11” and “the Portland Seven investigation, which may well have prevented an attack on synagogues and Jewish schools.” The way to investigate is not to arrest based on the law enforcement equivalent of a Rorschach test. They way to do it under a proper system of law was demonstrated by the UK as detailed by Ron Suskind (p. 46):

They might have made arrests in a week, or in a month. Clearly the hijackers were moving into some next stage of planning, but many inside of the intelligence and law enforcement communities were beginning to suspect it was more experimentation than anything resembling a “dry run.” If so, taking them down too early would leave investigators with insufficient evidence to effectively prosecute. The British model is, after all, to be patient, gather sufficient evidence to try terror suspects in open court, and get long prison terms, treating it all as a criminal matter rather than a historic - and terrorist-glamorizing - clash of power and ideology.

Track their every move, let the plot develop, gather evidence, and swoop in when the trap is about to be sprung. That’s how you do it.

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The UK “might have made” the arrests because it didn’t get to actually make them. It seems Jose Rodriguez, a man with his own interesting history, was sent to Pakistan by the Vice President’s office to leak one Rashid Rauf’s whereabouts. His arrest forced the Brits to move in before they were ready, though it did provide a couple good news cycles for George Bush. Priorities. Fred Kaplan then secured his spot in the hilariously unintentionally accurate bad analysis hall of fame for this: “The plot was foiled because of intelligence information, much of it provided by a nasty source that has itself been linked to terrorist organizations.”

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The Center for American Progress was in the news for the wrong reason. The most significant news item concerning it was its call to delay closing Guantánamo. As David Dayen wrote in the post, “There is perhaps no organization in Washington with a closer relationship to the White House than the Center for American Progress.” So now CAP is taking a position that it has itself identified with neocon lunatics. Access is a heady drug indeed.

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Keeping Guantánamo open will only create more problems for the administration. If human rights violations of others don’t create a sufficient sense of urgency then maybe its own political inconvenience will. Or, as political theorist Mel Brooks put it, “Tragedy is when I cut my finger. Comedy is when you fall into an open sewer and die.”

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Jeremy Scahill:

You know who’s guarding Hillary Clinton in Afghanistan right now? Blackwater. You know who guards members of Congress? Blackwater. They have half a billion dollars in contracts in Afghanistan right now. CIA, State Department, Defense Department. Why is President Obama keeping these guys on the payroll? There has never been a company in recent history that made the case that corporations are corrupt, evil organizations [better] than Blackwater.

That’s what happens when you outsource your defense department. This happens too (via).

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Bybee to rule on Yoo. But prosecuting torture would make us look like a banana republic.

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I understand Glenn Greenwald’s concern about shopping around prosecutions for whichever system will most likely convict, particularly this sentiment (emph. in orig.): “In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals). Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest).” But as he also acknowledges the crazy response on the right from what is after all a fairly modest step has to be addressed. Conservative bedwetting and screeching over the danger of trials has to be discredited before it’s politically possible to have them on a large scale. It’s part of the long, slow climb out of the abyss.

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Perhaps a timetable to leave Afghanistan might actually help the situation there. By the way, want to know why Spencer Ackerman is a superb journalist? Because he wrote (emph. in orig.) “I’m dubious about the al-Qaeda/Taliban divergence precisely because I want to believe it.” Not many reporters will admit to needing such an internal barometer. Also, on the day after he wrote that he fully retracted an inaccurate report and had the courage to offer the truth as an explanation:

From the start, the post should have a) more clearly indicated that my source wasn’t present at the meeting; b) more clearly indicated that the account provided was single-sourced; and c) verified the information provided before publication. My enthusiasm for a hot story outpaced my professional judgment. For that I take full responsibility, retract the story and issue a full apology for its publication.

He didn’t say it was “an inadvertent mistake” or something else that was obviously not true. He simply gave the real (and humbling) reasons for it. That takes honesty and integrity, and I admire him for both.

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

Barney Frank has become something of a darling on the left because of his feistiness, which heaven knows is in short supply among Democratic politicians. That quality seems to work best for someone who will go down with the ship on principle, all other considerations be damned; someone like Dennis Kucinich, who voted against the House health care bill under just that circumstance. (Phoenix Woman brilliantly articulated the hazards of this outlook.*) It does not work so well with someone who appears to be at least half in the pocket of the interests he ostensibly oversees.

His interview with Ed Schultz earlier this week gave a clear illustration of why. Schultz pushed on a couple of key points: Last year’s bailout came with no strings attached, and as a result the major players have gone back to the same reckless behavior. Frank turned prickly, which is what feisty looks like when you don’t like it, and almost immediately said “don’t condescend to me” when Schultz was obviously doing no such thing. He proceeded to condescend to Schultz throughout the interview; “the point I made to you several times” and “What’s the matter with you?” stand out. There was also this:

SCHULTZ: Congressman, why can’t you just admit that this was a serious misstep on the part of the Congress? You forked out billions of dollars to save the economy, I get all that, to get the structure back going again. But you didn’t ask them questions about how this…

FRANK: No, Ed. You’re wrong.

SCHULTZ: Oh, tell me I’m wrong.

FRANK: You’re wrong. And I’d like to be able to explain it.

Which he proceeds to explain via the non sequitur that his Say On Pay legislation would have prevented outrageous bonuses. Since it would “give shareholders a non-binding vote on top corporate executives” pay, it is almost incomprehensible that Frank actually believes such a mechanism would be effective. First, it is non-binding. Second, it is a single vote that the rest of the CEO-friendly board would likely overrule. Third, even as a vote of no confidence from the supposed owners of the company it is useless. Such an action only carries weight as a discouragement via shame, something we have yet to see the faintest trace of among the Titans Of Industry.

Frank also made a great show of the new tax brackets. Yes, adding them at the highest levels is a good thing, but to conflate it with financial services reform is ludicrous. It is not a proposal aimed at giving Wall Street firms less incentive to maximize their greed, except to the extent that such compensation as they were not able to shelter or hide would be subject to the higher rate. That obviously is not trivial, but it does not go to the root of the problem the way, for instance, a clawback provision would.

Note too that unlike TARP these wonderful reforms have not been signed into law. $700 billion gets hurried through Congress over a few days, but what can Frank say of his much-ballyhooed reforms? “we have legislation pending,” “We’ve been trying for three years to get that through. We’re going to get it through this year,” “I believe we will get that put into law,” “I’m trying to get legislation so it would stop it,” “we are trying to pass legislation.” Trying indeed.

The only attempt Frank makes to address any of Schultz’ points is infuriatingly disingenuous and obtuse. Now that obscenely rich executives are preparing to lavishly compensate themselves for so effectively looting taxpayers Frank claims Congress is powerless because “the people you just cited are in the non-TARP category right now.” They are in the non-TARP category because they paid back their direct government loans with indirect ones. They also now enjoy the implied guarantee of the United States government, since it has demonstrated it will not allow them to fail. That is an ongoing benefit of absolutely immense value. Tell me Congressman, how (and when) is that to be paid back?

Schultz did a very nice job in pressing him to justify his support of the current rotten state of affairs. Frank attacked, evaded, obfuscated and generally danced around the issues. Meantime, he is pushing - with White House support - a proposal that fellow Democrat Brad Sherman derided as “TARP on steroids.” In short, Barney Frank gives every impression of being a legislator on the side of those who created the mess in the first place. He is loudly advertising cosmetic changes while quietly working to not just preserve the status quo, but to make it even more entrenched. Scrappy doesn’t look so good when it’s used to champion the powerful and corrupt.

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For the record and the Google cache, since comment sections eventually purge:

If by ‘patron saint’ you mean ’someone who is largely ineffectual’, then I guess we are.

Instead of doing the third-party flirt, Kucinich should have raised money to set up the sort of patronage system for progressives that Republicans have for their people: If you run as a Republican, they will provide you with your own campaign staff (and later, congressional office staff), tons of money, professional groomers, etc. All you have to do is show up. (Of course, this means that you’re helpless without their aid, which is part of the plan - it’s easier for them to enforce loyalty that way.)

But of course doing that would take time, effort, organizational skills, and forbearance, as well as cash. Much more fun and far less work just to holler “Impeach Bush!” every so often to keep the shekels rolling in for your own campaign.

Back to post

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

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Work occupied my normal weekend blogging time, so here it is a day late.

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Documents from the Bush administration (curiously “there is no information on when the stress-position document was written or which government agency authored it”) show that the decision to violate the Convention Against Torture came from the top. In a separate document dump it turns out the FBI investigated the CIA’s interrogation methods and warned the agency repeatedly about it.

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Since we are still in the rendition business it’s noteworthy when our kidnapping plane is spotted. It isn’t like it’s taking tourists to Disney World.

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Daphne Eviatar reported that a former Bush administration official is now in favor (the presumed opposite of “not opposed”) to a criminal investigation into torture. Also, former CIA officer Sabrina deSousa admitted we broke the law in our Marquis de Carré adventures abroad. Not that anyone will pay a price here in America, of course

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Cory Doctorow had some details on the Anti-Counterfeiting Trade Agreement. In brief: Every stupid, short sighted, unworkable, stifling, sclerotic, hidebound and confused understanding of the internet is being assembled in one neat package for the entire globe to adopt. It will only encourage piracy and make people contemptuous of the law.

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The government introduced the worst idea since Total Information Awareness.

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Wouldn’t it be nice to see how much we are spending on our military as easily as we do the social safety net?

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Brad Jacobson had the latest in the Pentagon’s investigation of the retired general’s program. Raw Story does some outstanding investigative work and it doesn’t seem to get much credit.

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I’m beginning to think the Federal Reserve needs to be put under direct Congressional control. Oh, and Tim Geithner is still a tool.

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I had an actual Laugh Out Loud moment when I saw John Cole’s quip on the NJ governor’s race: “In other news, a Goldman employee has finally lost a job” (which actually is terribly unjust considering how fabulously Goldman is performing these days).

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Prairie Weather tipped me to this article by Petra Bartosiewicz (sub. req’d.) detailing how America makes its enemies disappear. It’s a long article and the story is convoluted, but the way it outlines how America treats those it suspects of ill intent towards it is illuminating. For instance:

Missing-person reports filed in Pakistan rarely claim that the detained individual was picked up by the CIA or the FBI. Instead, the detainee is almost always arrested by “city police” or “civilian clothed men” or unidentified “secret agency personnel” who arrive in “unmarked vehicles.” The secretary-general of the Pakistani NGO Human Rights Commission, Ibn Abdur Rehman, described the process. “A man is picked up at his house, brought to the police station,” he said. “The family comes with him and are told, ‘He’ll be released in an hour, go home.’ They come back in an hour and are told, ‘Sorry, he’s been handed off to the intelligence people and taken to Islamabad.’ After that, the individual is never heard from again. When the family tries to file a missing-person report, the police won’t take it, and no one admits to having custody of the person.” Some of the disappeared pass directly to U.S. custody and reappear months or years later at Guantánamo or Bagram air base. Others remain captives of Pakistan’s multiple intelligence agencies or are shipped to places like Uzbekistan, whose torture policies are well known. Others simply vanish, their fate revealed only by clerical errors, or when they turn up dead.

If you’re able to read the entire article, ask yourself these questions: What process do we use to determine a sufficiently high level of suspicion in order to justify maltreatment? What kind of universally recognized and legitimate judicial procedure could establish the proof of that suspicion once the maltreatment occurs?

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

A couple of weeks ago Dick Cheney made headlines for accusing the Obama administration of “dithering” on its policy goals for Afghanistan. At this point Cheney does not deserve to be thought of as anything other than a crazy and potentially senile old coot, so the substance of what he said is irrelevant. Its subtext may be revealing, though.

The decision on the war should be viewed in the context of the shadowy activities that are taking place in Afghanistan, far away from any battlefields. The prison at Bagram seems particularly important; in Amy Davidson’s jaded but apparently accurate view “closing Guantánamo increases the need for a new Guantánamo.” Andy Worthington fleshed out her point by making the persuasive case that the Obama administration is keenly interested in having a place to stash inconvenient human beings that is completely outside judicial or congressional jurisdiction. It appears the CIA is handing suspects over to the military, and they exist completely within the military’s chain of command.

During the Bush years the administration favored use of the Gang of Eight briefing process, approved in 1980, in which “the executive branch is permitted by statute to limit notification to the chairmen and ranking minority members of the two congressional intelligence committees, the Speaker and minority leader of the House, and Senate majority and minority leaders, rather than to notify the full intelligence committees.” Unfortunately, there appears to be confusion over what is permitted with the briefing process; Jane Harman complained she was not allowed to take notes during the ones she attended or even discuss it with her colleagues.

Harman’s dissatisfaction shows what makes the Gang of Eight process a charade: The president decides when to use it and can bring enormous pressure to bear on those being briefed. Human nature is to err on the side of caution and to give the benefit of the doubt to those we work with. If the president says, “I’m going to tell you this, but it’s extremely sensitive and a leak could have grave consequences,” how defiant do you think any of those eight will be? Harman could have flatly said, I’m taking notes - try to stop me. She did not, though. Yes it was a failure of courage on her part, but no formula for effective oversight can have courage as a prerequisite. Interestingly, the FAS article points out there is officially no restriction to members of the Gang of Eight sharing details of the briefing with the full membership of the intelligence committees. It still seems designed to strongly discourage sharing and disclosure, though.

Presidents will not willingly give that up that power. Barack Obama has threatened to veto the Intelligence Authorization Act of 2010 over its repeal of the Gang of Eight provision. When it was initially revealed a number of bloggers, including Spencer Ackerman, Matt Yglesias and Marcy Wheeler, noted its significance. It did not make much of a splash in the larger outlets, though, and unfortunately has never become a topic for discussion among political or media elites.

Allowing the House and Senate Permanent Select Committees on Intelligence set their own briefing rules is a greatly needed reform. As long as the president can in effect keep Congress in the dark - and make no mistake that is exactly what the Gang of Eight process does - the CIA also has reason to lightly regard it. Silvestre Reyes can furrow his brow at the CIA all he wants, but he must understand that the Agency feels it can lie to Congress as needed because the oversight process is so anemic. (By the way, the SpacePolicyOnline.com article claims “no intelligence authorization bill has cleared Congress in four years.” If true that strikes me as noteworthy; failure to pass one presumably does not de-fund intelligence agencies. What kind of institutional inertia or perverse incentives are in play that makes failure to properly authorize a budget so attractive?)

Which leads back to Dick Cheney and Bagram. So far Afghanistan has been an executive branch playground. It is home for not just military adventure but a lawless netherworld into which all the unpleasant consequences of our aggrandized, arrogant and short sighted foreign policies can be hidden away. The courts don’t get to have a say and Congress doesn’t even have to be told. But if we pull out all our soldiers that situation will have to end. No wonder the former vice president wants lots of extra troops sent there, and the current president is so eager to keep news from there bottled up. America has heavily invested in a very dark project in Afghanistan. Transparency can only bring trouble.

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

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Andrew Sullivan pointed out the perfectly obvious discrepancy between how a couple of citizens were charged with torture for abuses far milder than the ones CIA officers inflicted on detainees. I read the same story Sullivan did before he posted on it, and my reaction was immediate and identical. This is where we are now - any action taken by us or urged on others in response to maltreatment is instantly, and I mean instantly, framed in comparison to the torture US officials have gotten away with. Washington DC (and Eric Holder in particular) does not seem to appreciate what a sickening joke the Department of Justice is becoming by turning such a resolutely blind eye to torture. Oh, and Muriel Kane reported that the CIA didn’t kill as many detainees as the military because they wanted to maximize the opportunities to brutalize them. Considered from the perspective that they didn’t go ahead and off them completely I guess that qualifies as a certain kind of solicitousness. Maybe we should start grading on a curve.

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Along similar lines, it’s hard to miss how destruction of evidence is treated when the CIA does it versus when another body does. I just can’t emphasize this strongly enough: the discrepancy between how Justice is treating the CIA and how everyone else gets treated is turning the JD into an object of contempt and ridicule.

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Sullivan also had a great post about why conservative activists are impossible to take seriously. A lot of us were wondering where the deficit hating, Constitution loving patriots were during the Bush years. Maybe they went Galt.

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You’ve probably already seen this, but it’s really a bombshell. CIA covert ops really aren’t much of a bargain. I wish they’d just stick with analysis.

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Marcy got a hold of the Cheney interview materials and went to work. The best way to keep up - she’s really posting at a good clip - might be to go to the bottom of the page to the “Cheney Refused to Release the Journalists” link, click on it and make your way forward post by post from there. If you don’t have time then at least be sure not to miss this.

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Here’s your Raw Story hat trick:

• The CIA has lied to Congress five times since 2001. The Agency might not be so completely out of control if Congress showed more interest in oversight. And repeat after me, John Boehner: I’m sorry, Nancy Pelosi.
• You might think drone strikes would be a splendid way for America to continue its adventures in quasi-empire building without too many Americans dying (the deaths of non-Americans remain perennially irrelevant). You would be wrong.
• George Bush’s Pentagon propaganda program appears to still be humming along under Barack Obama.

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Obama is a big fan of W’s expansive take on state secrets too. This week John Cole wrote:

I will, on the other hand, mock you repeatedly if you tell the world that Obama is worse than Bush because Gitmo is not closed yet and because he hasn’t completely altered the overall outlook of the national security machinery. I will mock you endlessly if you scream that Obama sucks because Gitmo still has prisoners, when the Senate has repeatedly screwed Obama. Hell- remember the 96 to nothing vote a couple months ago about “freeing terrorists on domestic soil.”

Sorry, but this item, the previous one, and the unwillingness to go after the CIA all put Obama in the “worse than Bush” category. On January 20th all of them were available to be written off as the heedless and reckless policies of the worst president ever. As Obama either implicitly or explicitly embraces them they become not only normalized but are given the respectability of bipartisanship. Obama is legitimizing these things in a way Bush was not capable of, and you better believe I think that’s worse. Maybe that makes me batshit crazy, but that’s my position so far on some important aspects of his policies.

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Michael Mukasey is still a jackass. By the way, Cynthia Kouril is terrific. I hadn’t read her before she started at FDL but I really like what I’ve read from her there.

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TDTR FTW.

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I’m not a Schwarzenegger fan, but as political needling goes this is pure comedy gold. Note to politicians: This kind of thing only works once. If you try it you will come across as a lame and unimaginative imitator.

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

Issues of financial reform and regulation can be intimidating to laymen (this layman anyway) because of its insanely complex nature. It is easy to imagine the system as a big Jenga tower, and moving one piece might cause the whole thing to come crashing down. No one wants to be seen as inadvertently - but earnestly! - advocating for a ruinous policy. Of course, that means the opposite extreme is then in play: Turning into Hamlet and endlessly agonizing over what to do at the expense of actually doing something. Not to mention the fact that, not to put too fine a point on it, wide swaths of our leadership has for years now been deliberately advocating ruinous policies both at home and abroad. That should certainly make those of us in the unwashed masses comfortable with forcefully advocating what seems reasonable based on available data. It’s not as though we could screw it up any worse.

Still, it would be nice to have a rule of thumb, compass point or guiding principle to go by. Having been a reasonably close observer of the meltdown and its aftermath, here is one I have come up with: It is necessary (but not sufficient) that any proposal be strenuously opposed by Goldman Sachs (GS). In a largely protected industry Goldman appears to be the closest thing to untouchable as we have. It is in Matt Taibbi’s already-legendary description “a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money.” It has installed a revolving door between the highest levels of the government and its board room, enjoys privileged lines of communication with the Treasury secretary exceeding even that of our closest allies, was happily positioned as a key competitor died, then days later benefited as a key debtor was drenched in cash (Yves Smith called it a “massive backdoor subsidy to the likes of Goldman”), and as it happens was the second largest contributor to the president in the 2008 election cycle. More so than any other player in financial services, GS always seems to be nearby when bad things happen.

With that in mind, we can use Goldman’s position as a handy template for evaluating any reforms. The much heralded limits on executive compensation? They do not include Goldman. Therefore they are not real reforms. It is just so much transparently phony political grandstanding. The “Too Big Too Fail” bill making its way through the House looks like it will miss GS through a combination of loopholes and inadequacy (and may in fact be an enormous giveaway to the industry). The Consumer Financial Protection Agency seems to be a mixed bag, but note that the “financial autopsy” amendment was defeated. What might GS have thought of that? To get an idea here is the take of George Washington from Washington’s Blog (emphasis in original):

Instead of trying to pass a one-size-fits-all bill prohibiting certain specified conduct, it will force an annual analysis of what financial products are sticking it to the consumer. Remember, credit default swaps didn’t bring down the economy because they are toxic while all other financial vehicles are pure as the driven snow. CDS brought down the economy because they were the choice du jour of the looters. If we outlaw CDS (which I have argued for in the past), then the looters would create some other instrument for looting.

Considering GS’s plunge into the CDS pool I think it is safe to say a financial autopsy would not be great PR, nor would autopsies for whatever havoc Wall Street’s next adventure in casino capitalism produces. In other words, it would have been real reform. The same appears to be the case for Ron Paul’s bill to audit the Federal Reserve. We know that Stephen Friedman, then-chairman of the New York Federal Reserve’s board of directors and GS board member, was engaged in substantial stock trading right around the time Goldman was converting to a bank holding company regulated by the Fed. Since it led to his resignation GS probably has skeletons in that closet as well. Fed chairman Ben Bernanke opposes it too, which may be suggestive. GS does not appear to have come down firmly against it, but as Paul’s bill goes down to the wire it looks like GS will lobby hard against it. Which means, real reform.

Despite the somewhat flippant tone, my main point is completely sincere: As Congress looks at various proposals, the opposition of GS may be as accurate a barometer as the average citizen will have for deciding just how substantive the various proposals, bills and amendments really are. Goldman Sachs is a nearly perfect example of the modern Wall Street ethos, and it has become the inverse of Charles Erwin Wilson’s vision of GM: What’s good for it is bad for America.

Christopher joined us today.



Mom and baby are both doing fine.

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

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Barack Obama really doesn’t want those torture photos released. Keep in mind no one is asserting any kind of national security claim; it’s just about avoiding bad press. It’s censorship, and it’s un-American.

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Britain, on the other hand, showed how to handle unreasonable claims of secrecy.

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I’d say political witch hunts (via) are un-American but unfortunately they have a long if sporadic history here.

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Things are getting interesting for Rick Perry. In fairness, who wants to be known as the first governor to knowingly execute an innocent man? If only the death penalty were not a natural phenomenon but something that could be repealed via legislation.

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Kay Bailey Hutchison could have just kept her damn mouth shut, which is generally good advice for a politician and especially good advice when your opponent is talking himself into his political grave, but she decided to weigh in with her devotion to the low road anyway:

“The only thing Rick Perry’s actions have accomplished is giving liberals an argument to discredit the death penalty,” said Hutchison spokesman Joe Pounder, adding that Hutchison, a staunch death-penalty supporter, “believes we should never do anything to create a cloud of controversy over it with actions that look like a cover-up.”

Republicans won’t elevate the discourse even when it’s the easy and right thing to do. It’s an admirably consistent if bizarre dedication.

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It looks like Harry Reid’s failure to lead might cost him his seat.

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Cognitive Regulatory Capture:

A condition of conflict or anxiety resulting from inconsistency between one’s duty as regulator and one’s actions, such as regulating the banking sector and trying to become well-liked by bankers. If the condition persists, CRC can mutate into an infectious disease, leading to euphoria and irrational exuberance. Can be fatal to the economy if allowed to continue for many years.

Ahem:

The Treasury Department and the Federal Reserve lied to the American public last fall when they said that the first nine banks to receive government bailout funds were healthy, a government watchdog states in a new report released today.

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The FDA is another victim of CRC:

The U.S. Food & Drug Administration has required since May 2007 that makers of contrast agents use a stern “black box” warning cautioning physicians to weigh carefully the benefits and risks for patients with weak kidneys. Screening out people with kidney problems appears to eliminate the danger of NSF. But the FDA has not said GE’s product is any more problematic than those of its competitors. The agency reached that conclusion even after two of its staff doctors—in findings disclosed here for the first time—determined that Omniscan is riskier than its rivals. GE had urged the FDA to treat all of the agents as equally risky.

Digby worried yesterday that the days of the independent political blogger are numbered, but I don’t think so. Sure, the big outlets are muscling in, but they’re muscling in to a larger and more legitimized space. Until recently the blogosphere was derided when it wasn’t ignored. Now everyone wants in and it’s necessary to have a presence. There may have been a very brief window when it was becoming “respectable” that independents were highly visible but mainstream media didn’t have their operations up and running. If so that’s been in the last couple years, though. There wasn’t some kind of long-running Eden when unaffiliated bloggers had an outsized impact. I’ve only been a regular blog reader for about five years, and blogging for less than half that, so I can’t trace my roots back to the Mayflower. But I get a little impatient when I see long running A-listers start waxing nostalgic about Media Whores Online or how much better it was Back In The Day when it was like a secret club only the cool kids knew the password to. As digby notes, there’s a low barrier to entry with blogging and there will always be room for exciting, original voices. That is a permanent change to the landscape, even if it ends up getting pushed to the margins. It’s not like it was center stage when blogs could fundamentally shape the narrative anyway.

All of which is a very long way of saying, individual blogs will continue to be relevant because the GE story is not one you’ll see on First Read. The blogs that are extensions of multimedia empires will suffer from the same corporate mindset and atmosphere of self-censorship that their print and video companions in the org chart do. And they won’t be able to write “fuck” either. As long as digby, Atrios et. al. maintain a reputation for quality analysis and independence they will not be endangered.

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It appears YouTube is turning into America’s service desk.

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Here’s what the poor spellers are searching on:



Perfect.

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

I am not a member of any organized political party. I am a Democrat.
- Will Rogers

Frustration with Democratic leadership seemed to boil over in the last week or so. It began (as far as I can tell) with John Aravosis’ withering criticism of the president over his speech last weekend at a Human Rights Campaign event. He wrote of “concerns about President Obama’s inaction, and backtracking” on the Defense of Marriage Act (DOMA) and the military’s Don’t Ask Don’t Tell (DADT) policy towards gays. The criticism led to backlash (here is a good example) and tensions have been high all around since. In a way Obama is not the right target, and some have acknowledged that even as they urge him to act. Vermont Law School Associate Professor of Law Jackie Gardina advocates his taking action on DADT, but acknowledges all he can change is the implementation. Overturning it can only be done by Congress. The same is true for DOMA. While it may be more appealing to focus all criticism on a single target, the fact is that these changes will only be durable when the legislature acts. The president is obviously not a passive figure in all this - he can urge Congress to act, give moral support to the effort through his rhetoric (something that has curiously been treated as largely irrelevant on this issue) and otherwise encourage action on these issues, but in the end the action is at the other end of Pennsylvania Avenue.

Leadership there has been getting lit up as well, mainly focused on Harry Reid. No bargain in the best of times, he just pulled off his patented Weak Tea Blustery Surrender move on health care reform. Named after the tough talk on defunding Iraq that immediately preceded total capitulation, this week he used it on former Democrat Joe Lieberman. Recall Lieberman was allowed to keep his chairmanship of the Homeland Security committee after the election, which Reid claimed the “vast majority” of the Democratic caucus wanted - even though “his comments and actions have raised serious concerns among many” in it. Reid initially floated the idea of substituting his Homeland Security chair with that of some lesser committee in exchange for caucusing with the Democrats. Lieberman countered with I’ll keep Homeland Security and you can take a hike Harry, and Harry decided that was a fine compromise. Now we are seeing how well Mr. Democrat on Everything but Iraq is working out - David Waldman is tracking Lieberman’s firm stance against health care reform. Harry says he needs to accommodate as many people as possible to overcome a Republican filibuster which, as Markos points out, does not exist. Pushed to impose consequences for those who vote against the Democrats’ most important legislative priority, Reid’s lieutenants lashed out…at the protesters.

Before I make my next point, let me be clear: candidate Obama gave the impression that he would be much more active and visible on DADT and DOMA than he has been to this point as president, and Harry Reid has been relentlessly, aggressively ineffectual as Majority Leader. There are very legitimate complaints against both of them on these issues, and more generally about the establishment Democrats being too close to those who actively oppose the goals of their base. These issues are real and I do not want to be seen as minimizing them.

But it is also fair to point out that Democratic party (and the left generally) is more fractious by nature than the right. Conservatives talk about having a big tent, but liberals really have one. The result is a lot of different voices, each one trying to get things moving in a slightly different direction. It can be frustrating and for newcomers bewildering; John Cole recently wrote “some days I hate Democrats more as a Democrat than I did as a Republican.” For better or worse that’s how we do things. We may envy the party discipline of the Republicans, but look at where it has gotten them - does anyone envy their position in the wilderness? More importantly, we just witnessed the apotheosis of conservative rule, with its ideology ascendant and the GOP in control of all three branches of government. Its highlight was George Bush lionized as Commander In Chief, Leader of the Free World, Ruler of the Party and president of the United States (in that order). That is where the fall in line approach to politics got us. For as frustrating as the cacophony now is, it’s a damn sight better than what preceded it.

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

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Ryan Singel reported on the White House’s claim that telecommunication companies are not subject to the Freedom of Information Act because it is part of the Justice Department.

U.S. District Court Judge Jeffery White disagreed and ruled on September 24 that the feds had to release the names of the telecom employees that contacted the Justice Department and the White House to lobby for a get-out-of-court-free card.

“Here, the telecommunications companies communicated with the government to ensure that Congress would pass legislation to grant them immunity from legal liability for their participation in the surveillance,” White wrote. “Those documents are not protected from disclosure because the companies communicated with the government agencies “with their own … interests in mind,” rather than the agency’s interests.”

Is the theory that if you throw enough crazy against the wall some of it is bound to stick?

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Speaking of crazy, Pete Hoekstra checked in from his home planet to make a really good point about DOJ officials not being sworn in before briefing Congress. Since as John Cole memorably put it “Republicans are just completely lost when the solution to any problem is not ‘cut taxes’ or ‘commence bombing’” I think this is a great example of how the GOP can occasionally be useful. Reflexive hostility to government doesn’t make for a very useful majority and it frequently leads to pointless obstructionism in the minority, but by gum sometimes it brings important issues to the fore. (On a related note see this. In fact, commit it to memory.)

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Spencer Ackerman had a great take on how there isn’t really as much conflict between the president and his commanders as the media would like us to believe. I was a lot more pissed off about the situation before I read it. I was thinking about posting on it but he made me re-think my position. (The GOP handled this in its typically cool, levelheaded and mature manner.) In the “credit where credit is due” file Jeff Poor had a similar effect on my view of whether it’s been appropriate for Republican leaders to be as active as they’ve been abroad. Again, I started the week thinking it was outrageous and ended thinking it was fair game, largely (but not entirely) on the strength of Jeff’s argument.

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The Center for Constitutional Rights keeps fighting the good fight, and “filed the first-ever challenge to the government’s assertion that the treatment of detainees is not reviewable in U.S. courts.” Oh and did you know not all the torture tapes were destroyed? I can’t imagine this latest one will ever see the light of day, but I’m pretty stunned it managed to survive even this long.

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Marcy nails the Obama administration’s big difference from Bush with respect to publicizing terrorism busts. It’s not trying to keep the scare up throughout the country, but still trying to get bad legislation through Congress:

So the PR blitz serves the same purpose as John Ashcroft’s circus-like pressers did: to wow citizens that our national security team has prevented an act of terrorism. But to offer that—rather than an honest discussion of what that means for civil liberties—as the sole discourse on terrorism.

I suppose we could be grateful that we are now being manipulated in a slightly more elegant and sophisticated manner, but that’s fairly cold comfort. Also see this from Marcy.

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Sigh.

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Glenn Greenwald looked the president’s record so far and was unimpressed. Anonymous Liberal had a nuanced rebuttal. AL’s point is well taken, but in the end it’s not about whether there is legal dispute over what Obama is doing (there isn’t, but there was with Bush/Cheney) as much as an issue of what impact the administration’s actions have on real live human beings. That’s the bottom line for me and in that respect I think Glenn is right. (He also linked to Joe Lieberman’s latest assault on his own political turf.)

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Brilliance from BooMan:

Here is something basic. If people like you, they are less likely to plot to kill you. When we got attacked on 9/11, we didn’t need to agree with the attackers, but we needed to understand why they hated us. Instead, we went about making everyone else hate us. That didn’t make us safer, and it didn’t make the world safer.

It’s nice to see that point made so simply and eloquently, and the whole post is an absolutely great piece of analysis.

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Avedon pointed me to Our Threatiest Threat. It takes Fafnir’s heavy sarcasm to fully reveal the insular and bloodthirsty nature of our foreign policy debate, and the mindlessly aggressive nature of our actual foreign policy.

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

It would be understandable if conservatives had become somewhat exasperated about the Fox show 24 and its lead character Jack Bauer. His image has undergone a transformation in the last few years in much the same way his regrettably nonfictional political counterparts have. The latter used to be called neoconservatives, and they portrayed themselves as stalwart warriors unflinchingly defending America’s vital interests, perhaps its very survival, against implacable foes abroad and faltering appeasers at home. Now that their grand designs have not, to put it charitably, borne expected fruit the term has been derisively shortened to “neocon” and conjures up images of chickenhawks cheerleading for war as the first response to everything.

Bauer was once greatly admired on the right as well. In June of 2006 the Secretary of Homeland Security attended a forum on terrorism titled 24 and America’s Image in Fighting Terrorism: Fact, Fiction or Does It Matter? “It reflects real life” he enthused, and lest you think he just got carried away by the moment he followed up over a year later with more praise. A Time article reported the vice president a big fan and declared, “Most damningly to critics on the left, Bauer’s means of gathering intel (grab terrorist’s finger, snap, repeat) make 24 a weekly rationalization of the ‘ticking time bomb’ defense of torture.” Antonin Scalia - a Supreme Court justice! - proved so disconnected from reality that he actually said “Jack Bauer saved Los Angeles.” Unlike Chertoff or Cheney, Scalia has a lifetime appointment. Even if the narrowest view of the show’s influence - are its high profile fans still serving? - is taken, it still is relevant.

The show is most valuable because it is one of the few places that reveals the conservative id. Whether it is Cheney’s infamous “We also have to work sort of the dark side, if you will. We’re going to spend time in the shadows in the intelligence world” or the more flippant “What’s needed is a little bit of smacky-face” of an intelligence officer, torture proponents have routinely couched their approval of brutal treatment with euphemism or dismissal. 24 does not need such decorum, so it can show lurid cruelty with relish. It gives free rein to vengeful fantasies otherwise sacrificed to the altar of political correctness.

The visceral argument it presents has been a linchpin of right wing justifications for years, but evidence continues to pile up against it. First it was all about the ticking time bomb scenario, where a detainee had details about an attack already in motion. That no such cases ever occurred in real life is testament to the power of saving a fictional Los Angeles. When the 2004 CIA Inspector General report was finally released and we learned as much, right wingers added the caveat that torture was fine as long as it produced information that could eventually have saved lives. Whether humane techniques would have done so, or whether the information really did save lives - which outside of the bomb case is fairly hard to nail down - is not discussed.

Then there was Shane O’Mara’s article a few weeks ago on why torture does not work. It focused on the effect of torture on the brain, and he writes:

The use of such techniques appears motivated by a folk psychology that is demonstrably incorrect. Solid scientific evidence of how repeated and extreme stress and pain affect memory and executive functions (such as planning or forming intentions) suggests that these techniques are unlikely to do anything other than the opposite of that intended by coercive or ‘enhanced’ interrogation.

By focusing on how the quality of the information produced under coercion degrades, O’Mara makes the case - with evidence, unlike the intuitive “folk psychology” he rebuts - that traditional techniques are not just moral, but good policy.

Then last week Andy Worthington produced a detailed report on the torture of Fouad al-Rabiah. The government detained a man they knew was innocent, tortured him to make him say what they wanted to hear, conspired to cover it up, then insisted it was all proper when called to account. Worthington’s damning indictment shows it was not the result of a few bad apples, but something more sinister. As Barbara Tuchman wrote of another ruler: “The King’s excited state of mind communicated itself, as royal rage will, to his deputies.”

This is where we end up when fictional narrative drives policy. Jack Bauer remains relevant because the right still ardently embraces his world view. Even when the show is long gone it will be useful to mention him as verbal shorthand for the fruitless and gratuitously violent outlook the right continues to champion.

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

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Judge Emmet Sullivan ordered the FBI to release its interview with Dick Cheney on the FBI leak case. This is especially good news because this week the agency showed a definite willingness - even eagerness - to stifle attempts at transparency.

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The military looked even worse than the FBI, though. Air Force Maj. David Frakt is the attorney for former detainee Mohammed Jawad, and Kathleen Miller interviewed him about the Pentagon’s refusal to investigate the story of Jawad’s treatment in US custody:

“Why has no one—no one has been held remotely accountable for this,” Frakt said in an interview with Raw Story. “This is a mandatory investigation. It’s not optional, you can’t just sweep it under the rug…but they did as far as I can tell.”

Barack Obama’s willingness to keep significant Bush administration holdovers there is either a mostly full endorsement of Bush’s policies or the result of the fetishization of continuity and comity. I can’t think of any other explanations; can you?

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dday has the clause of the week: “Alan Greenspan, lapdog to Ayn Rand, perhaps the only person in America not to recognize the possibility of human greed in the financial markets,”

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Andy Worthington had the most important story of the week, a long and detailed account of how we tortured a man we knew was innocent. The idea of torturing someone to produce a known false confession in order to justify a course of action really does take us back to a more savage time. I know I’ve previously used A Distant Mirror by Barbara Tuchman to compare our treatment of detainees with medieval practices, but this from page 484 really does seem especially relevant:

His most famous conflict came with the Church and ended in the canonizing of his victim. Its cause lay in the usual struggle of temporal versus ecclesiastical authority. Enmity reached a peak in 1393 when the Archbishop of Prague ordered his Vicar-General, John of Pomuk, to confirm the election of an abbot chosen by the monks over the candidate preferred by the King. Wenceslas in a fury threw the Archbishop, the Vicar-General, and two other prelates into prison; then, after releasing the Archbishop, tortured the others to extract a confession of the hierarchy’s hostile designs. Maddened by their silence, the King himself reportedly seized a torch to apply to the victims’ feet. Frightened by what he had done, he then offered to spare their lives in return for their promise on oath not to tell of their torture. When John of Pomuk proved too broken and suffering to sign the oath, Wenceslas, in a compulsion to destroy the evidence, had him bound hand and foot and thrown from a bridge into the Moldau to drown. John of Pomuk was subsequently canonized as a martyr and made the patron saint of all bridges.

Andrew Sullivan has done a great job covering this. See here, here, here and here (so far).

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JANE, UNPACKED: In August of last year I posted a short excerpt from The Dark Side, a feature that I believe has concluded my Sunday posts every week without interruption. This is the last of the passages I made a note of as I read it. I hope regular readers have found it worthwhile and I think Mayer’s book will only gain relevance with the passage of time. It is essential reading for anyone who wants to understand this period in our nation’s life. From page 319:

On July 24, 2005, [John] McCain introduced an amendment to the Defense Department’s budget prohibiting military interrogators from using more force than allowed in the Army Field Manual, even if the commander in chief ordered it. The proposed bill also prohibited other U.S. personnel- including the CIA - from engaging in torture and other forms of cruel, inhuman, and degrading treatment of U.S.-held prisoners anywhere in the world.

Cheney personally went up to Congress to lobby against McCain’s proposed torture ban. He met three times with McCain. What transpired has never been told. But according to a well-informed congressional official, “With Cheney, it was all about how to stop the next terrorist attack. Will this help it or hurt it?” He was “absolutely convinced” that the CIA wouldn’t be able to get the information any other way, he said. When McCain asked for evidence that coercion worked, “They would just say, ‘We can’t tell you - but trust us.’” All that Cheney and the other defenders of the program pointed to were a handful of specific cases. There was no scientific study or larger analysis. Moreover, the CIA experts admitted that much of the information they got was unreliable.

“The administration’s position was relentlessly short-term and narrow,” said the congressional official. McCain liked to travel, and everywhere he went in any country, he had noticed, torture and Abu Ghraib would come up. He believed it was making it harder to get foreign cooperation. It was also radicalizing the Muslim population. Cheney, however, told McCain that the terrorists hated America and would try to attack regardless of U.S. policies. Torture, as he saw it, was just an excuse. Cheney also made clear to McCain that, as the official put it, “he wasn’t worried about winning popularity contests.”

Mission Accomplished.

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

The headline is hyperbole, of course, and is just a cheap ruse to get you reading (look, it worked!) Any party that Strom Thurmond ever called home has the bar for Worst Ever set higher than Steny Hoyer can dream of clearing. Worst Alive, though - he gets my vote. What qualifies someone for that honor? First, the candidate cannot be a relative unknown plugging away at a fairly low level. There has to be the ability to do something really meaningful along with the production of something abysmal. A midlevel bureaucrat or county commissioner could be thoroughly disreputable and an incorrigible crook, but not the worst Democrat alive. Sheer magnitude of criminality is not enough. Stature is required.

Someone like William Jefferson is closer, but still not within shooting distance. He was not that well known nationally before his arrest, and the details of his crime seem almost like a caricature of Big Easy shenanigans. Moreover, the case didn’t have any legs. It did not bring down any other Democrats, nor was it something like the ruinous catalyst Mark Foley’s case was for the Republicans (which broke in the heat of election season, foreshadowed the Larry Craig/David Vitter scandals and contributed to a crippling perception of GOP hypocrisy). A little closer is John Edwards, who had nationwide recognition and attempted to win the Democratic presidential nomination with a secret nearly guaranteed to be exposed before the election. He did not get the chance to do so, though. Massive damage barely averted is still averted. No harm, no foul (but no second chance either).

Actual damage, prominence, implications for the party as a whole: These seem to be the essential ingredients. Consistent badness matters, too. For instance, Jay Rockefeller is no friend civil liberties. He was a tool of the telecommunication industry when it came to retroactive immunity for illegal surveillance. He wants to give the president outrageously excessive powers to control the internet. And he is not just on the wrong side of these issues, he actively promotes them. But on health care he has redeemed himself so completely that Marcy Wheeler took the extraordinary step of revoking her previously bestowed nickname for him (“Jello Jay”) given in honor of his unwillingness to show some spine when dealing with the Bush administration. Similarly, Michael Moore is pushing for a primary challenge to Chris Dodd because of his compromising ties to the financial industry, but Dodd was a lone and inspiring Senate voice in trying to prevent the Constitutional assault known as the FISA Amendments Act. (I agree he looks very bad on his loans, but he has an awful lot of good will to burn through in my book before I call for his ouster. Insert “LEAVE CHRIS DODD ALONE!” rant here.)

All of that narrows it down to Hoyer and Harry Reid (aka Senator Uriah Heep). Reid is in a position to do more damage to liberal priorities since he is at the top in the Senate and Hoyer is only second in the House. Usually they are neck and neck for the title, and while I do not question the judgment of anyone who gives Reid the nod, I think Hoyer has pulled ahead lately. First, Harry actually did something useful this week by canceling the Senate’s October 12th Columbus Day recess, giving the Senate just a little more time to get health care done via reconciliation before its deadline on the 15th. Hoyer has not skipped a beat, though.

He is in bed with the financial services industry like Dodd appears to be. He tried to sell out the public option, then when he got smacked down by Nancy Pelosi would only say it is “in flux.” He proudly shepherded the loathsome FISA “reforms” through the House. Now that some Senators are trying (maybe foolishly and in vain) to undo some of the damage he announces his opposition. Is there any upside to having this guy in the party? Every time he is in the news it is because he is busy kneecapping progressives. I hope he performs absolutely legendary constituent services because all of his positions seem to come straight from the George W. Bush playbook.

By the way, Rodricks’ column points out Hoyer’s “only opponent in the 2006 election was a Green Party candidate with under $10,000 in contributions.” He clearly has no incentive to act like a Democrat. If party leaders think that does not matter outside Maryland’s 5th Congressional District they should have a look at Germany, where “the big loser of [last] Sunday’s election is still undoubtedly the center-left Social Democrats…The party is only 10 percentage points ahead of its upstart far-left rival, the Left Party.” A base is neglected at a party’s peril.

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

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Sharon Begley reported on a new study that thankfully got quite a bit of attention:

Shane O’Mara of the Trinity College Institute of Neuroscience in Dublin explains in a paper in the journal Trends in Cognitive Science called “Torturing the Brain,” “the use of such techniques appears motivated by a folk psychology that is demonstrably incorrect. Solid scientific evidence on how repeated and extreme stress and pain affect memory and executive functions (such as planning or forming intentions) suggests these techniques are unlikely to do anything other than the opposite of that intended by coercive or ‘enhanced’ interrogation.”

The BBC had a fine report on it as well, and Ria Misra’s post at Politics Daily really brought out the lunatic fringe. See the comments there for wisdom like “Bush on the other hand was the president of a country grievously attacked, without the luxury of sipping a Guinness while pondering self-righteously what happens to the memory of a demon under intense interrogation.” A certain nontrivial portion of the electorate is deeply sadistic. Keep that in mind when discussing torture.

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I originally started This Week In Tyranny as a link dump for items I didn’t have room for in my Thursday posts. Returning to those roots, here are some extras on the state secrets developments:

• LarryE had a great examination of it, with lots of background and context. I updated my original post with a link but wanted to point it out here too. I particularly like this (emphasis in original):

  Savor that for a moment, as it is indicative of the bizarre netherworld of the national security state: Even though the lawyers have seen the documents, the court has seen the documents, and the government has seen the documents, they all must now act as if those documents don’t exist. And the government can and did argue that the plaintiffs have no standing to sue because they can’t prove they were surveilled - even though everyone involved knows for an absolute fact that they were because they have seen the documents that prove it.

• bmaz looked at how it might be playing into the government’s strategy in the al-Haramain case.
• From the Library of Congress’ Law Library of Congress I found this from Louis Fisher on the murky world of secret legal memos.
• Finally, the government still officially claims there was no fraud involved in the Reynolds case. This in particular clears the awesome bar: “‘The mere fact that the information … may strike the plaintiffs today as innocuous, trivial, or unimportant, is simply not probative’ of whether they were sensitive 50 years ago, the government stated.”

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I need to get in touch with my local ACORN rep and get multiple voter registrations in Minnesota so I can vote for Al Franken over and over again. (By the way, if the effort to defund ACORN ends up de-funding war profiteers it may be the wisest $53 million the government ever spent.)

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Less than one half of one percent of the “sneak and peek” warrants were used for terrorism investigations. They were legalized by the USA Patriot Act, as Daniel Tencer notes, “ostensibly as a counter-terrorism measure.” Or in other words, they were abused over 99.6% of the time.

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Radley Balko is upset because liberals are dismissive of the newly formed Tenth Amendment Fan Club. There are two very sensible reasons to be dismissive. The first, lesser reason is that the Tenthers are using it to oppose health care reform, which is a prime liberal priority. This means there won’t be a strange bedfellows coalition like we saw with, say, feminists and fundamentalists opposing pornography or liberals and libertarians opposing the FISA Amendments Act. That’s just how it goes in politics, and if Balko is shocked and outraged by it he hasn’t been paying attention very long.

But here’s the big reason the Tenthers are just a bunch of goofballs: They make no attempt whatsoever to articulate a coherent philosophy. This is a one shot deal aimed at derailing health care reform and that’s it. If they want to be taken seriously they need to take a page from Ron Paul and extend the Constitutional principle they assert far and wide. Throw in with Ron Paul and you get an audit of the Fed. But you also get a return to the gold standard. If these folks really were Tenth Amendment crusaders who happened upon the health care debate in progress, wouldn’t we also be hearing them loudly calling for an end to the minimum wage, the repeal of all federal environmental regulation, and so on? Not to mention the abolition of Social Security and Medicare, which ought to be very low hanging fruit for anyone going Tenther on the pending reform proposals.

In short, it’s obviously not about the Tenth Amendment at all. Balko might be justified in feeling irritated that liberals aren’t more gullible, but that’s about the only thing conservatives can be reasonably upset about here.

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I hope it’s obvious I’m a big Glenn Greenwald fan. That said, I sometimes think his sarcasm gets the better of him. He did use it to hilarious effect this week, though:

In today’s New York Times, the grizzled warrior David Brooks performs a chest-beating war dance over Afghanistan of the type he and his tough guy comrades perfected in the run-up to the Iraq War. It’s filled with self-glorifying “war-is-hell” neocon platitudes that make the speaker feel tough and strong. No more hiding like cowards in our bases. It’s time to send “small groups of American men and women [] outside the wire in dangerous places.” Those opposing escalation are succumbing to the “illusion of the easy path.” Chomping on a cigar in his war room, he roars: “all out or all in.” The central question: will we “surrender the place to the Taliban?,” etc. etc.

Glenn better be careful. Brooks (or “Uncle Bobo” as his troops affectionately call him) has pieces of punks like him in his teeth.

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Dianne Feinstein’s Senate Select Committee on Intelligence has undertaken a fairly quiet investigation of the Bush administration’s interrogation policies. There have been some indications it might be something like a real investigation and not a whitewash, which was given another boost this week when SSCI Republicans led by Kit Bond pulled out of it entirely. Fellow Missourian Blue Girl has my preferred take on his action, which I would call “Show Me…the door.”

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I didn’t know this until Josh Marshall published it, but “federal law has an incredibly expansive definition ‘WMD’” (via).

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FBI spokesman Bill Carter explained the destruction of its documents by saying, “We would need warehouses to keep everything we’ve collected.” Then do so, put the old documents there and open the buildings to the public as monuments to our secrecy and paranoia. (Fortunately the agency is now able to take advantage of electronic storage.)

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Bad news and good news on the gulag of our time.

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Jim Geraghty:

The average Democrat doesn’t like fighting wars. They don’t like using military force. They don’t just dislike collateral damage and civilian casualties and flag-draped coffins; they cringe at the concept of combat with citizens of another country

Yes, that’s correct. As opposed to conservatives.

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It’s amazing the degree to which mere transparency - not regulation, not punishment, just simple openness - is objectionable in Washington.

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UNPACKING JANE: On page 65 Mayer writes this about legal memos from the Office of Legal Counsel: “If the OLC says a previously outlawed practice, such as waterboarding, is legal, it is nearly impossible to prosecute U.S. officials who followed that advice on good faith. As Jack Goldsmith, who headed the OLC in 2003 put it, OLC memos were virtual ‘golden shields.’ The office wields ‘one of the most momentous, and dangerous powers in the government: the power to dispense ‘get-out-of-jail-free cards.’” On page 308 she writes why they were so highly prized:

The OLC, with its tremendous authority to issue “golden shields” to the executive branch against prosecution, was designed to exercise independent judgment. But according to another former administration official, a conservative lawyer who was troubled by the leverage over the office that was exerted by the White House, “They didn’t care if the opinions would stand legal scrutiny. They just wanted to check a box saying, ‘OLC says it’s legal.’ They wanted lawyers who would tell them that whatever they wanted to do was okay.

Wouldn’t it be nice if the SSCI investigation shed a little light on this area?

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

UPDATED AT END

On Wednesday Attorney General (AG) Eric Holder announced a new standard for invoking the State Secrets Privilege (SSP). “This policy is an important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security,” he wrote. It requires agencies “including the intelligence community and the military, to convince the [AG] and a team of Justice Department lawyers” that a newer, more stringent standard for harm would be caused if the alleged secret is disclosed. (Previously the claim could be invoked by a single official.) Unfortunately, in practice it will just preserve a broad, vague and unregulated power for the president.

First, note that Congress is missing from the new oversight regime. The intelligence community, military, and AG are all in the president’s chain of command. The Justice Department has both political and career appointees. While the latter might be more likely to take a stand against an unreasonable claim, the amount of political pressure available to apply to them is basically only limited by a president’s forbearance. As we saw during the last administration, that is not something to invest too many hopes in.

Second, it may be an attempt to halt the progress of the State Secrets Protection Act in Congress (SSPA). The SSPA would, among other provisions, require that all SSP claims be privately reviewed and ruled on by a judge. It also raises the standard for invoking the SSP to a level that, according to the Post, “closely tracks language in Holder’s memo.” Further, “the Justice Department officials said Tuesday that their agency would give regular reports on their use of the state secrets privilege to oversight committees on Capitol Hill and that the AG would pass along ‘credible’ allegations of wrongdoing by government agencies or officials to watchdogs at the appropriate agencies.” Why would Holder adopt the SSPA standard and offer briefings other than to send the message, we’ll satisfy your concerns without you having to bother with that pesky legislation. It is a particularly bad moment to try that considering Justice (among others) was sued by the ACLU on Monday for not being sufficiently open.

The “enhanced ‘trust me’” proposal might work, though, because Congress has been notoriously lax about defending its prerogatives. The shine comes off Pat Leahy’s triumphant announcement of the SSPA in light of his empty threats regarding DOJ corruption or the destruction of CIA torture tapes, to take just two examples. Current leadership has been downright timid when it comes to unpleasantness with the White House. It would make perfect sense if Holder thought he could short-circuit the SSPA with this plan. Word of Congress’ toothless bluster appears to have made it to the private sector as well (via).

Skepticism is especially warranted towards the SSP because, as all articles discussing it ought to point out, it was established in defense of a lie. The SSP originated with the 1953 Supreme Court decision United States v. Reynolds:

In Reynolds, the widows of three civilians who died in the crash of a military plane in Georgia filed a wrongful death action against the government. In response to their request for the accident report, the government insisted that the report could not be disclosed because it contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight. When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment. The government’s true motivation in asserting the state secrets privilege was to cover up its own negligence.

There do not appear to be any other declassified SSP claims. Meaning, the current rate of abuse - according to available evidence - is 100%. Have all SSP claims been born of such low motives? Who knows, but in the absence of new facts - and this is crucial - there is no reason to take the government’s word for it! It is not for us to trust, but for government to prove.

 

Which brings up the final, crucial step of processing of state secrets that even the SSPA fails to address: automatic declassification. Secrets do not remain sensitive forever. It seems after a sufficient interval, say fifty years, they should be released to the public. Congressional oversight and judicial review are necessary but not sufficient. The public has a right, finally, to see. We have a right to know what is being done in our name, even at a lag of decades. As data gathers we will slowly see if the SSP is being used the way politicians earnestly assure us it is. That in turn will help shape policy in a way that reflects the popular will instead of the ease of leaders. Which, remember, is the point of democracy.

UPDATE: LarryE covers this with a lot more detail and background over here.

Off topic, but if all pornography is homosexual and same sex marriage is socialistic, does that mean all pornography is socialistic?

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

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Eight individuals on the right side of history (via):

1. Russ Feingold
2. Dick Durbin
3. Jon Tester
4. Tom Udall
5. Jeff Bingaman
6. Bernie Sanders
7. Daniel Akaka
8. Ron Wyden

Seven individuals on the wrong side:

1. Michael Hayden
2. Porter Goss
3. George Tenet
4. John Deutch
5. R. James Woolsey
6. William Webster
7. James R. Schlesinger

From the proposed Senate legislation:

The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans’ constitutional rights, while preserving the powers of our government to fight terrorism…reforms include more effective checks on government searches of Americans’ personal records, the “sneak and peek” search provision of the PATRIOT Act, “John Doe” roving wiretaps and other overbroad authorities. The bill will also reform the FISA Amendments Act, passed last year, by repealing the retroactive immunity provision, preventing “bulk collection” of the contents of Americans’ international communications, and prohibiting “reverse targeting” of innocent Americans.

I could see repealing retroactive immunity being a huge fight. Who knows if there’s some kind of double jeopardy-type effect attaching to a grant of retroactive immunity that prevents (or largely limits) its rollback. It’s part of the reason opponents objected to it so fiercely in the first place, and now kind of smacks of an attempt to unring the bell. I am neither a lawyer nor political strategist, but at this point maybe the most realistic option would be forcing the discovery process the now-nullified lawsuits would have produced. Since the telecoms are now immunized they would have precious little legal ground to object. In any event, I always thought they may have been most afraid of the PR apocalypse that full discovery would have produced. A legal judgment against them may be relatively small in comparison. And by the way gentlemen, it would have been lovely to see this fighting spirit back when Harry Reid was disregarding Chris Dodd’s hold on the FISA bill.

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Spencer Ackerman wonders why all those Constitution lovers in Washington last weekend have nothing to say about the Patriot Act being extended:

You’d think the prospect of Obama making the sorts of claims of far-reaching executive authority that Bush made would trouble the teabaggers, especially when Glenn Beck and the rest talk about restoring the constitution and shit, but they’re more concerned about restoring the parts of the constitution that would make Obama three-fifths of every other president.

I have to admit I was wrong about conservatives. When Bush kept pushing the bounds of executive power further and further I thought the right would howl with fury the first time a Democrat exercised those same powers. Nope. They’re fine with it. As it turns out there may be actual principle involved here and not simple expediency. Go figure. Live and learn. That the principle is the belief in ever more grants of unaccountable power to an increasingly authoritarian Commander In Chief is another matter.

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Prairie Weather pointed me to a mysterious near-doubling of the intelligence budget. The least Dennis Blair could have done is given it an upbeat name like Cash For Dunkers.

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I’ve posted multiple times about fusion centers so just consider this the latest in a series: “the Department of Homeland Security announced Monday that it would give so-called local and state ‘fusion centers’ access to classified military intelligence in Pentagon databases.” This is obviously bad, right? Is anyone out there applauding the militarization of law enforcement?

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David Hume Kennerly is evidently from the Dogma 95 school of photography:

Newsweek’s objective in running the cropped version was to illustrate its editorial point of view, which could only have been done by shifting the content of the image so that readers just saw what the editors wanted them to see. This radical alteration is photo fakery. Newsweek’s choice to run my picture as a political cartoon not only embarrassed and humiliated me and ridiculed the subject of the picture, but it ultimately denigrated my profession.

This from the comments section is good too: “Historically, cropping has been considered a cardinal sin by the vast majority of professional photographers.” Oh get over your precious selves already. You decided how you wanted to frame it when you took it. The editor decided to frame it differently when it ran. I can understand airbrushing people out, Photoshopping people in, distorting images to make them look bigger or smaller, I understand how that is deceptive. Cropping? Give me a break.

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Some economics links. First, this post struck me as few others have in summing up the deep and global nature of the financial crisis. Maybe it’s the picture, maybe it’s the remote location, I don’t know. Something about it seems essential. Then let’s go from the sublime to the ridiculous (via). And the ridiculous to the outrageous. That last link is a long article, so be warned. I’m so disgusted at this point that I could only skim it. (I know, I know - I’m shirking my civic duty by not getting the fullest understanding possible of our malefactors of great wealth.)

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If you can possibly manage it please spare no effort to be born into wealth:

The association of wealth with virtue necessarily requires the free marketer to play down the role of class. Arthur Brooks, in his book Gross National Happiness, concedes that “the gap between the richest and poorest members of society is far wider than in many other developed countries. But there is also far more opportunity … there is in fact an amazing amount of economic mobility in America.” In reality, as a study earlier this year by the Brookings Institution and Pew Charitable Trusts reported, the United States ranks near the bottom of advanced countries in its economic mobility. The study found that family background exerts a stronger influence on a person’s income than even his education level. And its most striking finding revealed that you are more likely to make your way into the highest-earning one-fifth of the population if you were born into the top fifth and did not attain a college degree than if you were born into the bottom fifth and did. In other words, if you regard a college degree as a rough proxy for intelligence or hard work, then you are economically better off to be born rich, dumb, and lazy than poor, smart, and industrious.

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UNPACKING JANE: Each of the last two weeks I’ve excerpted from Mayers’ coverage of John Walker Lindh’s case. The first covers Lindh’s mistreatment, the second the eagerness of the government to prevent details from surfacing. On page 98 she reports on the price of such treatment:

Clearly, Lindh’s attorneys also thought there were risks, since they accepted a guilty plea and a twenty-year sentence. One major factor was that, after the indictment, prosecutors added a subsequent count, charging Lindh with committing a felony while carrying grenades. This charge alone carried a thirty-year minimum sentence. His lawyers thought the twenty-year plea was the best they could do. But one of Lindh’s attorneys, Tony West, later criticized the deal as unjust. “It’s part of the change in approach to law in this country, to prevention,” he said. “You can detain people without evidence, make allegations, then develop the evidence later. If you have no evidence, you drop the charges. The only problem is, you’ve destroyed someone’s life in the process.”

As long as that theory is ascendant I don’t want to hear any guff about how liberals are running the country.

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

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I normally cover the general vicinity of executive power, but I feel strongly enough about recent developments in the health care debate to change focus this week. As a Catholic I feel I have a personal stake in this issue, and I hope regular readers understand the departure.

On Monday I sent the following email to Archbishop Charles J. Chaput of Colorado:

The recent letter from the U.S. Conference of Catholic Bishops [USCCB] opposing a House health care plan on the grounds that its prohibition of abortion funding was a “legal fiction” raised a question to me. I first learned of you because of your statement that voting for John Kerry in 2004 was cooperating in evil due to his position on abortion, so I know how seriously you take the issue. My question is, has the American church, the Conference or any other official Catholic body or agency taken a position on Catholics’ purchasing insurance from companies that provide abortion services? All of the major ones - Aetna, Blue Cross, Cigna, United Healthcare and so on - provide abortion services in their policies. Doesn’t anyone who pays premiums to these insurers help to fund abortion, and wouldn’t that also amount to cooperating in evil?

It seems the Catholic Church has focused all of its energy and activism on government’s role but left the private sector off scot-free. I am not aware of any visibility on this from the church, and that appears to be a glaring omission. Has it been addressed, and if so has it been addressed as forcefully? On the face of it, it seems to me that anything contributing to abortions, public or private, would be equally objectionable.

Thanks in advance for any time and attention you are able to provide.

Archbishop Chaput declined to provide an on the record response. He is obviously not obligated to, but the opposition to the House bill raises what I believe is a legitimate question: Why has the church not targeted private insurers for the last thirty years? They are indispensable players in providing abortion services, yet as far as I know they have not been highlighted the way pro-choice politicians have. The Democratic nominee for president is singled out for his position. Why not the CEO of Aetna?

How is it that the USCCB can object to increased health care coverage that will “subsidize the operating budget and provider networks that expand access to abortions” while having never said a word about the provider networks themselves? Why oppose raising the quality of life of millions of people through insurance reform if the objection is to the health care infrastructure? Or conversely, if you object to adding new people to the system then why not also work to get current enrollees out of it? Don’t employers who provide health care plans subsidize provider networks? Why aren’t they being targeted for doing so? Why is the system as it exists now and has existed for decades so studiously ignored if putting new people into it is so problematic?

The disparity between the easy treatment of private insurers and the objection to a public one could create a philosophical tipping point. Since Roe v. Wade the church has been visible and energetic in its opposition to abortion while giving comparatively short shrift to other life issues such as capital punishment and war. The fact that such emphasis lined up nicely with conservative ideology is presumably coincidence. The church’s recommended political course for addressing abortion is to support pro-life candidates on the theory that they will appoint pro-life judges who will eventually overturn Roe. That too benefits the GOP, coincidentally I am sure. In a few years this strategy will conclude its second full generation as an exercise in futility. Meaning, in practice it boils down to perpetual straight ticket voting for the party in pursuit of a goal forever just out of reach. As year after fruitless year passes, claims of nonpartisanship begin to strain credulity.

Any religion worth its salt will periodically cause great discomfort at points across the political spectrum, and opposing Democratic health care reform because it expands coverage may be a coincidence too far. It makes the leadership’s position look more political than moral - abortions paid for by the private sector are acceptable, abortions paid for by the public sector are not. The long running alignment between the church’s antiabortion activism and the right wing has been plausible as just circumstance, but we may now be entering an area where the American Catholic Church risks looking like nothing so much as a wholly owned subsidiary of the Republican party.

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

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I meant to post this last week but Jeff Kaye had a great look at an article in Intelligencer, Journal of U.S. Intelligence Studies, which Kaye describes as a “house organ for the American Federation of Intelligence Officers (AFIO).” The article, titled “Terrorism - The Underlying Causes,” is a disturbingly bellicose and racist interpretation of the causes of extremism. That it occurs in a publication intimately tied to our intelligence services and not one of the crazier wingnut web sites shows just how deeply Bush-era paranoia and ignorance burrowed into the federal bureaucracy. The damage from those years will persist, and righting it will be a very long term process.

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Andy Worthington has an extensive interview with Lawrence Wilkerson, Chief of Staff to Secretary of State Colin Powell. It’s a lot to digest but this part jumped out at me:

I spent 31 years in the DoD, and I have to say that the entity we probably disliked the most during the majority of my years was the Central Intelligence Agency. I mean, we would sit out in the Pacific, when I was working out there, and our station chiefs then, we would mock them, you know: big fat dudes, making 120, 130 thousand a year, and all they did was sit there and read the newspapers in their capital cities and report it back to Langley as finished intelligence. I mean, we didn’t have much use for the CIA and that’s generally the way the rank and file in the Pentagon feels — and in the military in general. I remember in the first Gulf War, when Norman Schwarzkopf and Colin Powell were on the phone at Colin Powell’s house — a secure phone; late in the evening for Powell, and early in the morning for Schwarzkopf — and Norm was threatening to come to Washington and shoot the DCI.

So I mean, there’s always been that institutional jealousy, hatred even between the Pentagon and the CIA, so I didn’t have much difficulty understanding that that was a part of what had happened, and you add Rumsfeld’s arrogance and his power play to it, and you’ve got a real, powerfully dysfunctional system there, in terms of — as Powell put it in his debrief to President Bush, January 13, 2005, if I recall, “Mr. President, you have no idea.” Bush had just said, “Well, you’ve lived through Weinberger and Shultz, you know that there’s always infighting,” and Powell’s response was, “Mr. President, you have no idea. This is an order of magnitude worse.” Frankly, I think that was the first time anybody had ever alerted the President to the fact that his wasn’t a normal administration.

Wilkerson worked for Powell at State, so on both counts he’s not exactly a disinterested observer floating over the proceedings. Even taking that into account there’s some pretty remarkable stuff, though.

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Marcy pointed out that the same guy who destroyed the CIA torture tapes was a key figure in blowing up the British intelligence services’ monitoring of a developing terrorist plot. Also, please keep in mind that the investigation used traditional surveillance methods, was wrecked when Junior came stomping in and still obtained convictions. Just in case you thought FISA was not capable of meeting the demands of the 21st century.

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Some talking point that can’t die soon enough is the claim that if our hearts are pure it excuses breaking the law:

“Intentionality is essentially irrelevant,” the group said in its response to Washington, “in the sense that any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law, regardless of the pursued purposes.” U.S. negotiators had argued to the contrary in 2006 — that proving intent is “an essential ingredient of the crime.”

The US has literally been trying to argue that the ends justify the means, a proposition rejected for centuries the world over as cynical and amoral.

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Stay tuned to Vaughn Walker’s courtroom. I suspect when he rules there will be fireworks.

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The Barnstorming Umpires found a case they’re really fired up about.

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Ryan Grim has a fabulous article detailing just how outrageous the revolving door between the Fed and private industry really is.

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Josh Marshall wins. It does my heart good to see everything explained so well.

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Similarly, up to 10 million people live in my house.

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UNPACKING JANE: Last week I excerpted a section detailing the abuse of John Walker Lindh while in custody. On page 97 Lindh’s lawyer George Harris enters the picture:

In July 2002, a year and a half after the indictment and two days before Lindh’s lawyers planned to challenge the legitimacy of his FBI confession in court, claiming that it had been coerced under shocking conditions, the prosecutors offered them a surprise deal. The case was hastily settled in a weekend-long flurry of negotiations that ended at 2 A.M. on the day that the key evidence against Lindh was to be challenged in open court. By the time it was over, the Justice Department had dropped nine out of the ten counts against Lindh. As part of a plea agreement, Lindh accepted guilt on only two charges, and they were not directly related to terrorism: violation of a statute forbidding American citizens from contributing “services to the Taliban.” Ashcroft continued to cite Lindh’s conviction as a major success, but there was no doubt that the first high-profile prosecution effort had mysteriously imploded.

“The Defense Department was really worried about the claims of mistreatment,” said George Harris. They said the deal had to be struck before the suppression hearing so the details wouldn’t get out. They really wanted to drop any claims of intentional mistreatment. That was key to Rumsfeld.” The surfacing of the directive from his general counsel, Haynes, encouraging interrogators to “take the gloves off” was not ideal publicity, even before the photographs of Abu Ghraib surfaced.

All the legal issues regarding Lindh are settled, but the episode has been largely and unfortunately forgotten. The gratuitous abuse, contempt for even ostensibly trying to follow the law, inability to use anything produced by his treatment in legal proceedings and ultimate futility of cruel treatment that has characterized our detainee policy are foretold in the Lindh case. And one would think the consistencies between the Lindh and later cases would be thought of as key evidence of coordination at the highest levels.