Archive for April, 2009

Jay Bybee, tragic victim of circumstance?

April 25, 2009

This WaPo article featuring comments from Jay Bybee’s friends and colleagues is a series of exasperating excuses and contradictions.

Judge Bybee regrets “the contents of the memo” and feels it “got away from him,” but stands behind the legal analysis in it.  I’m not sure what kind of a needle he’s trying to thread, but the legal analysis is what he should regret.  It’s a bad joke.  What principle of logic or statutory construction leads one to construe “pain or suffering” as synonymous with “pain”?

Judge Bybee wishes people would be more considerate of the pressure he was under, but also wishes people would remember he was just the lawyer, and had no control over policy.

Is he serious?  Does he really expect us to believe he didn’t know what policy he was being asked to justify?  Why did he think the administration was putting so much pressure on him?  Can he really have been that naïve, that oblivious?  I don’t think so; he was a Justice Department veteran.

Along these lines, one of Judge Bybee’s friends says, “Jay would be the sort of lawyer who would say, ‘Look, I’ll give you the legal advice, but it’s up to someone else to make the policy decision whether you implement it.'”  That may be what Bybee would say (and clearly is), but it’s not how it works when you’re the head of the Office of Legal Counsel.  Nobody in that position is just a lawyer, or just giving legal advice.  At that level of the government, the extreme power blurs the lines.  The top lawyers — the attorney general, the White House counsel, the head of OLC, the solicitor general (to a lesser degree), and the chief counsels for the major departments and agencies — are, de facto, part of the policymaking apparatus.  They don’t get to disown what they enable.

It’s a fundamentally different position for a lawyer to be in.  A criminal lawyer defending a client at trial or a corporate lawyer negotiating a contract is involved in an adversarial process.  You make the best argument you can to justify and defend your client’s interests, the other lawyer does the same for his or her client.  The outcome doesn’t get implemented until the end of that adversarial process.

An attorney general or head of the OLC giving internal legal advice to the executive branch is not engaged in an adversarial process.  You don’t go to the wall for a one-sided position, because nobody’s there to go to the wall for the other side.  Whatever argument you make, whatever conclusion you reach, that is the outcome, and it gets implemented immediately.  You don’t, therefore, get to disclaim responsibility for policies based on your conclusions.

Returning to the WaPo article, according to one of Judge Bybee’s clerks, he “was disappointed by what was done to prisoners, saying that ‘the spirit of liberty has left the republic.'”  Noble sentiments.  But given the question he was asked and the context and manner in which he was asked it, what in the world did he think would be done to prisoners?

As for the spirit of liberty, it didn’t leave the republic.  Judge Bybee swept it out the door when he signed off on John Yoo’s legal memo; a memo that was the most tendentious kind of special pleading, and clearly had but one purpose: to let the executive branch ignore the law.  That, Judge Bybee, is when the spirit of liberty leaked out of the republic: when you knocked a hole in the rule of law.

According to one of Bybee’s friends: “The whole idea that the Constitution is based on a kind of wariness of mankind’s tendency to grab power, that is an idea I got from Jay.  So the whole idea of uninhibited executive power, from him, does seem passing strange.”

Ya think?

Perhaps the most frightening thing in the entire article is this brief sentence:

Bybee still occasionally teaches a course at UNLV on separation of powers.

Deep Stupid

April 24, 2009

Today’s winner comes to us courtesy of Andrew Sullivan.  It’s James Taranto:

What Obama is offhandedly contemplating, then, amounts to a step toward authoritarian government.

Sullivan points out that Taranto:

fully backed a president who claimed the right to suspend the First and Fourth Amendments, habeas corpus, the Geneva Conventions and domestic law against torture, and who seized an American citizen without charges on American soil and tortured him…

Nice shootin’, Jimmy T.  Boy got skeelz.

Waterboarding Sean

April 24, 2009

So Charles Grodin — Charles Grodin? yes, Charles Grodin — got Sean Hannity to say on the air that he would volunteer to be waterboarded for charity.  He even named the charity.

Keith Olbermann pounced, of course, and said he would donate $1,000 for every second Hannity could stand the treatment.

I’d like suggest some rules for this experiment, if it is to have any value.  First, Hannity doesn’t get to practice.  Second, the person waterboarding him cannot be someone he trusts, or even someone he knows.  It should be somebody he knows can’t stand him and believes will get a great deal of satisfaction from the experience.  I nominate Janeane Garofalo.  Or Mickey Rourke.  I have no idea how Micky Rourke feels about Sean Hannity, but he seems like he’d be good at it.

That’s the context of the prisoners we waterboarded, and it’s important.  Ideally, Hannity should be an actual prisoner when it’s done, but that’s probably asking too much.

Knights Who Say…

April 24, 2009

An update on a couple of the Knights.  First, Simon Johnson, who today testified before congress that the government should use modified anti-trust legislation to prevent banks from becoming too big to fail.  Sound familiar?  Go, Simon, go!

And Ezra Klein, in posting about Johnson’s testimony, made the argument even familiarer:

The basic principle, after all, should hold for both spheres. Antitrust law is concerned with the dangers that size poses to markets. It offers regulators a usable mechanism for breaking up corporations that grow too large and thus threaten continued competition — which is to say, threaten the market’s continued capacity to function. This crisis has taught us that size can endanger the very survival of the market through means that have nothing to do with noncompetitive behavior. But we’re still dealing with the problems that result from too much “bigness,” and that’s fundamentally the sort of problem that antitrust laws were designed to address.

I’ll just add, since I seem to be on something of a populist kick today: the bigger the bank, the smaller you and your money look to them.

Gated-Community Liberal Sneers at Fellow Dems

April 24, 2009

I agree with Matt Yglesias on most things.  We seem to have very similar outlooks.  Where I most commonly disagree with him is on issues related to what I’ve called gated-community liberalism.  His “Memphis Democrats Cheer for Local Plutocrat’s Right-Wing Ideology” post, today, is a classic example, and one that happens also to tread on my toes as a Memphian.

Basically, Yglesias doesn’t like the warm reception that FedEx CEO Fred Smith and his conservative, business-oriented, free-market-cheerleading message got from the Memphis City Council, which is composed mostly of Democrats.

Am I fan of Fred Smith’s politics?  I don’t really know them, but probably not.  I’m not a fan of plutocrats, in general.  Would it be nice if Fred Smith and the Dems on the Memphis City Council understood and were mindful of world political history at all times?  Sure.  Would I prefer the City Council not to fawn over Smith quite so much?  Yes.

But here’s the thing, and it’s the thing Yglesias and 90% of the highly educated, urban liberals in this country forget.

Fred Smith is here, and they’re not.

All the educational opportunity, all the networking opportunity, all the creative, political, financial, and entrepreneurial talent represented by Yglesias and his urban, ivy-leagued cohort is right where it has always stayed closeted: coastal urban centers.

The people creating jobs and providing opportunity and incomes in Memphis are the Fred Smiths, not the Matthew Yglesiases.  The companies generating economic development — meager as it may seem from New York or D.C., and meager as it actually is — in the South are the FedExes and Wal-Marts and Nissans and Weyerhausers, not to mention the United States military.

So when Fred Smith speaks to the Memphis City Council, you bet they’re going to be attentive and complimentary.  Or when the Waltons pressure Arkansas senators to oppose EFCA or propose a huge cut in the estate tax, you bet they’re going to respond.  Arkansas can’t afford to piss off Wal-Mart.  Memphis can’t afford to piss off FedEx.  If those home-grown companies go elsewhere, who’s going to take their place?  Probably nobody; not for a very long time, anyway.  And certainly not an influx of talented, urbane ivy-leaguers.  They’re going to stay right where they’ve always stayed.

So while politically I’m on the same team with Yglesias and Josh Marshall and Ezra Klein and Rick Hertzberg and George Packer and Scott Horton, etc., I also think they very often miss the fact that the same liberal critiques they often level at conservatives also apply to them.

From where Yglesias sits, Fred Smith is a plutocrat.  From where most Southerners sit, so is Yglesias.  The “global South” may be a popular cause for gated-community liberals to take up, but the American South is not.

If he would like to see actual change in the South — in other words, if he would like to see this country actually move in a more progressive direction — he would do well to remember that.

Spooks On Strike

April 23, 2009

There’s been a fair bit of discussion in the news and blogosphere, lately, about President Obama’s need to thread the needle on the torture issue.  On the one hand, there are the demands of the rule of law and of an open society.  On the other hand, he can’t afford to make the CIA mad at him.

I don’t get it.

Point the First

If the CIA’s morale depends on being able to do this kind of stuff without consequences, the proper presidential response isn’t to continue letting them do this stuff or shielding them from the consequences.  The proper presidential response is to clean house at Langley, because we’ve apparently got a lot of sociopaths and small children working there.

Point the Second

If, as it seems, some in the CIA are actually issuing grumbled threats to the White House that if agents who tortured prisoners are investigated, they (the grumbly CIA) will resent it and therefore stop doing their jobs well (or, you know, not start doing their jobs well), the proper presidential response is to clean house at Langley.  Your chief intelligence agency is not the place you want a bunch of people who put personal pique above duty and country.

I keep hearing CIA agents described as heroes.  Been hearing it ever since 9/11.  They sure don’t sound like heroes.  Heroes don’t sit by and let their country be damaged because they don’t like a policy.  A hero does one of two things: sucks it up and keeps doing his job, or turns in his resignation.  To do neither — to just resign in place — is not heroic.  It’s cowardice.

Point the Third, Being Partially Repetitive of Point the Second

If, as it seems, some in the CIA are actually issuing grumbled threats to the White House that if agents who tortured prisoners are investigated, they (the grumbly CIA) will resent it and therefore stop doing their jobs well (or, you know, not start doing their jobs well), the proper presidential response is to clean house at Langley.  The CIA does not issue threats to the president.  The CIA has long had far too much independence, setting and executing its own policy.  It’s gone to their heads.

Point the Fourth, Being Partially Repetitive of Points the Second and Third

If, as it seems, some in the CIA are actually issuing grumbled threats to the White House that if agents who tortured prisoners are investigated, they (the grumbly CIA) will resent it and therefore stop doing their jobs well (or, you know, not start doing their jobs well), the proper presidential response is to clean house at Langley.

As that last parenthetical indicates, and Yglesias pointed out in the linked post, above, these people aren’t exactly in a strong bargaining position.  They’re not very good at what they do.  I know, I know, we never hear about the successes because they’re classified.  Here’s the problem with that argument: they’ve never been very good at what they do.  Tim Weiner’s book did a pretty convincing job of demonstrating, based on the declassified records and internal reviews of the CIA’s Cold War operations, that the CIA has never been a competent intelligence agency when it comes to field operations.  Basically, only two of their major Cold War operations succeeded — overthrowing the democratically elected and highly popular Mossadeqh government in Iran and replacing it with the Shah (how’d that work out?), and overthrowing the government of Guatemala (see Weiner’s book or Yglesias’s post for details on how well that one worked out).

In short, if these people are disgruntled, let them quit.  It’s no great loss.

Flint Follow-Up

April 23, 2009

Mary Kane responded to my post, yesterday, about Flint, Michigan.  I have a couple of responses to her response.

First, in the immortal words of Col. Henry Blake: ho. lee. cow.  The Washington Independent just linked to our wee blog.  Okay, it was to disagree with me, but still.  As a regular reader of TWI, I couldn’t be more verklempt.

Second, I agree with everything in Ms. Kane’s response.  As I said in my initial response:

What we do have an interest in is: helping Flint shrink in a responsible, rational way, if help is needed; and helping the people displaced by macroeconomic shifts find suitable work elsewhere as quickly as possible, and helping tide them over while that happens.  It seems to me we’re already doing the latter (though perhaps more could be done), and Kane’s own reporting indicates Flint is doing a good job at managing its contraction.

If Flint (or Detroit or Dearborn or Gary, Indiana, or Cleveland, Ohio, etc.) needs to be fronted some cash to make their plans for a managed contraction work, that’s an investment we should make.  And if there’s a role for, say, the Bureau of Land Management in getting the necessary land banks up and running, it should play it.

Pop Culture Round-Up

April 23, 2009

Best Movie I’ve Seen: Sunshine Cleaning, primarily because of Amy Adams’ skill at playing the pretty girl with absolutely no sense of self worth. The preview sells the movie as a kind of dark comedy, but it’s far more depressing than funny. When she needs money to send her son to private school, Adams’ character decides to start a business cleaning up crime scenes (wiping up blood, discarding pieces of flesh, etc.). She enlists her sister to help, and the experience leads them both in new directions. Emily Blunt is great as the unfocused sister, but my favorite casting choice is Clifton Collins as the one-armed man working at the cleaning supplies plant.

I also enjoyed: Monsters vs. Aliens in 3D. Saw it twice, in fact.

Looking forward to: The Soloist, the true story of a mentally ill cello genius discovered living on the streets by a journalist. It stars Jamie Foxx and Robert Downey, Jr., so I have high hopes.

Best TV I’ve watched: Prison Break, Season 1. I’ve seen the thing 3 times now, but my roomie was a PB virgin. We’ve decided it’s an unintentional chick show what with all the hot men in tattoos.

I also enjoyed: Lost (Faraday’s baaaack!). I’ve also loved this season of Idol soley because of Adam Lambert. And Quentin Tarantino’s bizarre turn as a guest judge last week.

Best Thing I’ve Read: I finally bought the boxed set of Harry Potter, so I’ve been rereading those. I’ve been doing quite of bit of revisiting past favorites lately.

Best Thing I Heard: Danny Boy at the Celtic Woman concert. The whole experience is a little over the top for me, but Danny Boy was impossibly beautiful. I believe I cried.

I also enjoyed: I’m listening to Matt Kearney right now, and I’m liking it.

Safety uber alles.

April 22, 2009

So lately we’ve had various people — Dick Cheney, Marc Thiessen, and countless others in the conservative blogosphere — insisting that torture works.  (To be fair, in their terms, insisting that “enhanced interrogation techniques” work.)  That is, it benefits our efforts to gather information on terrorists — what their command structure is, where they are, what their plans are, etc.  This information, they say, has led directly to the prevention of attacks that would’ve killed large numbers of  Americans, and sometimes to the capture of those involved in planning those attacks.

To this point they’ve adduced zero evidence that that’s true; and given Mr. Cheney’s penchant for connecting unconnected dots and insisting that his creation is real, despite a total lack of supporting evidence and large amounts of evidence to the contrary (no, seriously, Saddam really was working with al-Qaeda), I can’t think of any reason he should be considered a credible source when he claims there is evidence that torture prevented attacks, if only we all had sufficient security clearance to see it.

Nonetheless, let’s stipulate that, like a stopped clock, he’s finally gotten one right.  Let’s say the Obama administration releases documents tomorrow that demonstrate a direct link from torture-gained intelligence to prevented attacks on Americans.

So what?

Lots of things would prevent attacks on Americans.  That doesn’t mean we should do them.

Irradiating the entire Middle East and requiring every US citizen to carry a Geiger counter at all times would prevent some attacks on Americans.  Repeatedly nuking the entire Middle East until every man, woman, and child was dead would prevent some attacks on Americans.  Tattooing a citizenship barcode on every man, woman, and child in North America and stationing armed guards with barcode scanners and full-body airport-style scanners at every corner, doorway, and transit point, with orders to scan every person who walks by and immediately chloroform any untattooed or suspicious person would prevent some attacks on Americans.

We don’t do any of that crap.  Why?  Because it costs too much.

It costs too much money and too much liberty and, in some cases (like nuclear multiple-genocide) too much moral principle.  And when I say it costs “too much,” I don’t, of course, mean it costs more than we could afford.  We have the means.  If we chose to devote a sufficient percentage of GDP to it, we could financially afford any of the above.  And we could, if we chose, give up enough personal liberty and moral principle to make it happen.

These things don’t cost more than we have; only more than we’re willing to pay.

Would they save American lives?  Absolutely.  The last technique would even prevent a huge amount of murder and all other forms of street crime.  If the criterion by which we’re judging is just saving American lives, let’s stop this penny-ante torture stuff and do something real.

So far as I know, not even the nuttiest nutbar on the rightiest blog is advocating we do those things, or anything like them.  But a frightening number of conservatives are advocating we torture people.

For the rest of us, that’s a price we’re not willing to pay.

There’s a useful illustration from the field of sociology of knowledge.  Johnny is misbehaving.  His mother snaps him to attention and says, “Johnny, we don’t do that.”  Our natural expectation is that Johnny’s response, if any, would be, “Why not?”  The more illuminating question, however, if Johnny thought to ask it, would be, “Who are ‘we’?”

That’s where we are right now on the torture issue.  Many on the right are asking, “Why not?”  Many on the left and a few on the right are asking, “Who are we?”  And the answer we’re coming up with is that we’re not the kind of people who torture.  The cost is too high.

Deep Stupid

April 22, 2009

The first in what will sadly be a long series of posts.

Today’s winner — and that’s saying something, because there was a lot of deep stupid today — is Marc Thiessen, attempting to defend the intelligence value of torture:

Specifically, interrogation with enhanced techniques “led to the discovery of a KSM plot, the ‘Second Wave,’ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles.” KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. The memo explains that “information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the ‘Second Wave.’ ” In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.

That paragraph is a mess, but the upshot seems to be: waterboarding Khalid Sheik Mohammed in 2003 prevented a terrorist attack on Los Angeles in 2002.

(Not strictly related to the deep stupid: I like the way he throws in that last line about a hole in the ground in L.A.  Reminds me of the good old days, when Condi was warning us of a mushroom cloud.)