The Economist Debates, Gambling, and Empirical Evidence

The Economist hosts Oxford-style debates on its website and this week they are discussing whether gambling should be legalized. Radley Balko, a well-known libertarian is on the side arguing in favor of legalization, and Les Bernal, the director of an anti-gambling interest group is arguing against legalization.

In the opening remarks, Balko focuses on the classic decriminalization argument that criminalization leads to underground markets, which in turn fosters crime and wastes police resources. He also states that gambling doesn't create any victims because the participants act voluntarily, and we as a society shouldn't ban the decisions of consenting adults when there is no harm to others. Bernal, on the other hand, focuses on the predatory practices of the casinos and appeals to the parental instinct of wanting the government to protect predisposed gamblers from themselves. Both are framing the debate in general policy terms and the role the government should play in regulating conduct. Neither tend to focus on historical data or empirical evidence of their claims.

I'm frustrated that Les Bernal did not mention any of the findings in Earl Grinols book, Gambling in America: Costs and Benefits. Contrary to what Balko thinks, gambling isn't like any other consensual crime. As a general rule, when formerly illegal activities are removed from underground markets (black market, drug market) the costs to society become alleviated. However, gambling is the complete opposite. When gambling is legalized, the social costs skyrocket. Crime increases, business and employment costs rise (lost productivity, lost time, embezzlement), bankruptcy rates increase, suicide rates increase, mental illnesses increase, social service costs rise, additional regulatory costs, family costs (divorce, separation, spousal abuse) rise. If you think I'm making this up, read chapter seven of Grinols book. And I'm not even mentioning the economic burdens of gambling (hint: they increase when gambling is legalized). In sum, Grinols found:

What are the benefits and costs of moving from a policy of no casinos on one
hand to the alternative policy of free-entry, laissez faire regarding casinos on
the other? Based on available numbers, costs exceed benefits by a factor
of more than 3:1. (Grinols, at 131.)

I'm not arguing against the legalization of gambling from a moral point of view. I also ascribe to the belief that "people should be free to do what they want, as long as it doesn't harm others" and I don't think a moral objection to conduct by itself is enough to create legislation. But here, legalized gambling does harm others. The evidence proves it. How else can you explain the cyclical history of gambling being legalized, then subsequently banned, over and over again? One generation thinks like Balko, and then the next sees the corruption and harm it brings, leading to an eternal circle-jerk where we never learn from history...or empirical evidence for that matter.

It's amazing that a 26 year-old, who is studying 10-12 hours a day for the bar exam, can come up with a better argument than the opponent in this debate. Does empirical data, instead of talking points, matter anymore?

**Edit note: I typed separate paragraphs in the body, yet blogspot doesn't know how to create them. Time for wordpress.

US Constitution Protects Non-Citizens as Well

Since the failed Christmas Day bombing attempt, many in the public have struggled with how we should treat Umar Abdulmutallab. Last week, two prominent writers, one of the Washington Post (Charles Krauthammer) and one of Politico (Rory Cooper) stated that the undie-bomber should not be given a criminal trial because that would amount to "extending constitutional rights to non-citizens." The underlying premise being that the Constitution applies only to U.S. citizens. This is not true and it is not even a topic of reasonable debate among legal scholars and lawyers. The law is clear - the Constitution is not limited to citizens. And yes, the Constitution applies to terrorists captured in the United States.

The Constitution is a document that limits what the government can and cannot do. It is not a document that grants rights to citizens or non-citizens. Those rights, as evidenced in the Declaration, exist independent of whether or not we have a government. Thus, it should be assumed that the Constitution applies to everyone in the United States or under the government's control, unless explicitly stated otherwise. For example, several of the amendments in the Bill of Rights protect "persons" or "the accused" from government overreach and abuse. As used in regular speech, the term "person" is not limited to just a U.S. citizen. A "person" is any human being. But how can we be sure that the Founders intended to protect all "persons" and not just "citizens?" The answer is simple. The Founders also used the word "citizen" in the Constitution. For example, in listing the requirements of who may be elected as president, one must be a "citizen" of the United States. If the Founders wanted habeas corpus, the right to a trial, and equal protection of the laws to apply only to "citizens," they would have used that specific word instead of "persons" - broadly speaking. Accordingly, unless specifically stated otherwise, the Constitution protects the rights of all "persons" under the government's control.

The Supreme Court has ruled that the Constitution applies to persons, even if they are not U.S. Citizens. In the 14th Amendment Equal Protection case of Yick Wo v. Hopkins, the court overturned a criminal conviction of a Chinese citizen for violating laundry shop regulatory laws. The court wrote, "The rights of petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. The fourteenth amendment to the Constitution is not confined to the protection of citizens." (emphasis mine) The court added, "The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court." (emphasis mine)

As recently as 2008, the principle was reaffirmed in the case of Boumediene v. Bush. Even though it was a 5-4 decision on the specific question presented to the court, the nine Supreme Court justices unanimously agreed that the Constitution applies to non-citizens in the United States, including one of the most conservative Justices - Justice Scalia. Scalia wrote, "But in extending consitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." (emphasis mine) Not even the most conservative justice would argue that the Constitution only applies to U.S. citizens.

The law is clear that the protections of the Constitution do not apply exclusively to U.S. citizens. Both Democratic and Republican presidents, beginning with Reagan, have recognized this fact and submitted terrorists to U.S. courts. Why is this issue still being debated? Do not let those who claim the Constitution applies only to U.S. citizens fool you. The simple and boring fact that has remained unchanged for centuries is that the Constitution applies to all persons within the jurisdiction of the United States. To claim otherwise is being ignorant of the law or dishonest.

Civilian Trials for Terrorists

Watching the GOP and Dems cower in fear over bringing terrorists to justice in criminal court is a pathetic scene. They don't act like the leaders they should be and they certainly give the terrorists exactly what they want - terror.

And the hysteria is pervasive on both sides of the aisle. Ronald Reagan believed we should treat terrorists as criminals. George H.W. Bush believed the same. As did President Clinton. Even George W. Bush subjected certain terrorists to criminal trials. Yet, today it is considered the position of "far leftists" or extreme "civil libertarians," if one believes we should subject terrorists to criminal trials. Here is Ronald Reagan's official stance on treating terrorists:

Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element in our strategy has been to delegitimize terrorists, to get society to see them for what they are - criminals - and to use democracy's most potent tool, the rule of law against them. (h/t Greenwald)

Our current political climate is a perfect example of how radical and extreme our government/country has become in regards to how we should treat terrorists that are not captured on the battlefield. It shows how easily fear can be used by the government to take away our most precious liberties and erase guiding principles of western civilization.

The most recent example of how we treated a terrorist who tried to blow up an airliner was the Richard Reid case under George W. Bush. Bush made the right decision by placing Reid in the federal court system.

During this time of mass hysteria and people on both the right and left claiming we should abandon our legal system, it's worth remembering what the presiding Judge told Richard Reid during his sentencing:

We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before.

There is all too much war talk here. And I say that to everyone with the utmost respect. Here in this court where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice.

You are not an enemy combatant. You are a terrorist.

You are not a soldier in any war. You are a terrorist.

To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treaty with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

So war talk is way out of line in this court. You're a big fellow. But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. - Judge William Young

Jon Stewart's Missing Homework

Last Monday, Jon Stewart interviewed former Deputy Assistant Attorney General John Yoo on the Daily Show. Many (myself included) expected a sharp back and forth over the legal reasoning used in the infamous "torture memos" authored by Yoo, but to my surprise, Yoo came away from the interview unscathed. He also came across as a likeable guy with a good sense of humor.

I'm perfectly aware that Jon Stewart is not a Constitutional lawyer nor someone versed in national security law, yet, I expected him to touch on a few points which could have been unearthed with basic research or a five minute chat with someone like Scott Horton. Instead, as Kevin Drum noted,

Yoo's argument was, plainly, about what counts as torture. Stewart didn't get that - or pretended not to get that, I'm not sure which - and that led him to continually act surprised by perfectly ordinary statements from Yoo. "You're saying we'd never before considered whether torture was OK?" Stewart would ask, and Yoo would respond, "No, we were trying to figure out for the first time which interrogation techniques were torture and which ones weren't." That's really not hard to understand, but Stewart continually misunderstood it and wasted the entire first segment of the interview."

Stewart didn't bring up the preliminary findings by the Office of Legal Counsel's Office of Ethics and Professional Responsibility which found that Yoo's memos used poor legal reasoning. He also didn't bring up the leading Supreme Court case on Presidential powers and national security law - Youngstown Sheet and Tube v. Sawyer. Research on both of these topics is essential if one is to have an interview with Yoo over the memos and torture in general. Why Stewart didn't do his homework will remain a question for quite some time.

Below, I'm going to take some of John Yoo's statements/arguments and use them as Jon Stewart should have.

Yoo: There were no legal precedents for practices; this question never came up before.
Yoo: What is and isn't torture. We have never come against the question in government before.
Yoo: We had not faced the question of what interrogation methods do not constitute torture but go beyond regular law enforcement methods.
Yoo: What lies in that area between torture and humane treatment?
Yoo: Executive power is limited to what is necessary to win the war.

I can break these statements down into two categories:
1) The issue of what interrogation methods constitute torture or cruel, inhumane and degrading treatment are a "gray" area in US law.
2) The President has unlimited power in war time and can do whatever he pleases as long as his actions are necessary to win the war.

Statement 1
The Torture Act, 18 USC Section 2340, incorporates the UN Convention Against Torture into federal statutory law. Like the War Crimes Act, the Torture Act creates federal jurisdiction to prosecute torture. In the definition of "torture," severe mental pain or suffering must be caused by or result from the "intentional or threatened infliction of severe physical pain or suffering," the administration of threatened administration of "mind-altering substances," "the threat of imminent death," or threatened administration of "mind-altering substances," "the threat of imminent death," or the threat that "another person will be subjected to imminent death, or severe physical pain or suffering." However, when ratifying CAT, the US made a reservation on the law. The effect of the reservation stated that the US was bound by the Convention only to the extent that the treatment in question falls within the punishment prohibited by the 5th, 8th, and 14th Amendments of the US Constitution. Therefore, in order to be considered torture or cruel, inhumane, or degrading treatment (violations of international law, war crimes, and felonious conduct under US domestic law) the actions must be of the type prohibited by those three amendments. Again, John Yoo says that conduct that falls within this category is a "gray" area in US law. He is mistaken. The law is absolutely clear in what conduct - specific interrogation methods - are considered torture or cruel, inhumane, and degrading treatment under US law.

As a general principal in interrogations and treatment of detainees, the Supreme Court prohibits the use of "coercive cruelty." The case of Hudson v. McMillan recognized the use of "shocking with the use of electrical currents," exposure to "undue heat or cold," and infliction of psychological pain as "cruel and unusual punishment in violation of the 8th Amendment." Depriving detainees of warmth and food or use of the cold cell - "for example, a low cell temperature at night combined with a failure to issue blankets," is cruel and inhumane treatment according to the case of Wilson v. Seiter. Estelle v. Gamble found disregard for detainee medical needs an "unnecessary and wanton infliction of pain." The Supreme Court case of Brooks v. Florida described the combination of forced nudity and withholding food in a small cell as, "a shocking display of barbarism." The case of Beecher v. Alabama, discussed mock executions which are explicitly banned under the Torture Act. In that case, a police officer held a gun up to a detainee's head and threatened to kill him if he didn't tell the truth. At that time, another officer fired a rifle in another room. The court found the acts of the police officers as "gross coercion." As almost a mirror image of the treatment of US citizen - Jose Padilla, the case of Wright v. McMann, and Scarver v. Litscher, declared that solitary confinement, sensory deprivation, use of the cold cell and forced nudity, "serve to destroy completely the spirit and undermine the sanity of the prisoner" and rise to the level of conduct that violates the 8th Amendment. Stress positions, where limbs and body parts are forced into unnatural positions while the detainee is handcuffed or shackled to an object, is a per se violation of the 8th Amendment. In Littlewind v. Rayl, the court held "that the 8th Amendment was violated where [the] prisoner was restrained naked for seven hours, denied clothing for six days, denied a blanket for two days, restrained seven days in leg irons and handcuffs, and tied to a bed for eight hours." Even forced nudity or withholding detainee access to the bathroom is considered cruel, inhumane and degrading treatment that violates our Constitution and shocks the conscience.

Surely there is no longer any question that forced nudity in conjunction with stress positions, mock executions, hooding, use of dogs, smearing fecal matter and soiled tampons on the face of a detainee, and the cold cell are in violation of our Constitutional standards and a violation of federal laws criminalizing the use of cruel or inhumane treatment of detainees. Also, keep in mind that many of these techniques were used in succession on detainees instead of isolated applications. There is a conspicuous absence of binding legal decisions stating that these interrogation methods are not cruel and inhumane. The legal precedent is clear that the techniques authorized and used on detainees are violations of US law and felonies punishable up to the death penalty. To claim otherwise is being willfully ignorant of US law or intellectually dishonest. Yet, Jon Stewart didn't point out that what is considered cruel and inhumane treatment in interrogation has been developed by domestic US law.

Statement 2
Among others, Yoo claims the power to regulate the capture of enemies during wartime is possessed solely by the President's Constitutional powers. However, this argument ignores the express provisions of the Constitution. Article I, Sec. 8, delegates to Congress alone the power "[to] make rules concerning captures on land and water." Accordingly, Congress - not the Executive - possesses the authority to create rules applicable to prisoners of war and detainees. Yoo failed to address this textually demonstrable Constitutional commitment in his memo or statements. Additionally, the preeminent case in national security law is Youngstown Sheet and Tube Co. v. Sawyer. Surprisingly, it is absent from Yoo's analysis. In Youngstown, President Truman ordered the seizure of steel mills that had been shut down due to strike, so work could resume. President Truman believed the strike and lack of steel production created a threat to national security and therefore, he could force production under his Article II executive powers. However, the Supreme Court overturned Truman's order saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Because Congress did not give the President the power to act, his actions were unconstitutional. The case also marks the influential formulation of Justice Jackson's tripartite theory on executive power where he states the President has "no monopoly on war-powers." In regards to post 9/11 treatment of detainees, Congress never delegated such authority on the President. Some may cite the AUMF as a delegation of such power, but 18 USC Section 4001 requires an order to be "pursuant to an act of Congress" and the congressional enactment must "clearly authorize detention of imprisonment." The AUMF does not contain an express grant of authority to the executive regarding prisoners, nor is the word "detention" even mentioned. Therefore, the President did not possess the authority to unilaterally determine how detainees would be handled because there was never a congressional delegation of such power to the President.

John Yoo might have responded as he did in his book, by stating that the Youngstown case is distinguishable because it deals with labor disputes. However, this assertion is undermined by the fact the opinion itself addresses executive power - not labor disputes. Clearly, the president's powers are not only limited to what is neccessary to win the war. The Supreme Court has ruled that his powers are far more limited than John Yoo believes.

In short, Yoo's predominant claims that what defines torture or cruel and inhumane treatment is a gray area in US law and the President can do whatever he pleases during wartime is demonstrably untrue. Yet, Jon Stewart let him get away with it. That is a shame. Stewart said he may invite Yoo back on the Daily Show in the future. Let's hope so and let's hope he does his homework this time.


*Disclosure
Many of the excerpts of this post are taken from my GWR or law school term paper. Because I'm unable to place footnotes in a blog post, it needs to be mentioned that many diverse sources were used to compose my paper and I cannot take full credit for all the thoughts/arguments expressed in portions of the above. Among others, thanks to Prof. Wilson Huhn (Univ of Akron Law School), Prof. Jordan Paust (Univ of Houston Law School), and Judge/Prof. Wallach (NYU)

Update

As you can see, blogging has taken a back-seat this semester. Between working on the house, my GWR, classes and work, I haven't had much time to write about substantive issues. However, you can follow my twitter feed for articles or arguments I find convincing...or repulsive.

Hopefully, I'll be able to write during winter break.

Afghanistan Cont...

Today, the Washington Post is running the resignation letter of Matthew P. Hoh in an attempt to further the debate on how the US should approach Afghanistan. Mr. Hoh is/was the Senior Civilian Representative of the United States government in the Zabul Province of Afghanistan. Prior to this position, he served as a Marine in Iraq.

The letter is worth reading in full (see here), but the reason for his resignation is because he believes the United States is creating more problems than our presence in Afghanistan can solve. Indeed, he writes, "The United States military presence in Afghanistan greatly contributes to the legitimacy and strategic message of the Pashtun insurgency." Furthermore, he states:

The US and NATO presence and operations in Pashtun valleys and villages is as well as Afghan army and police units that are led and composed of non-Pashtun soldiers and police, provide an occupation force against which the insurgency is justified. In both RC East and South, I have observed that the bulk of the insurgency fights not for the white banner of the Taliban, but rather against the presence of foreign soldiers and taxes imposed by an unrepresentative government in Kabul.

In short, the United States presence in Afghanistan is responsible for the creation of the insurgency groups. Can anyone tell me how an escalation in troops or commitment will cure this defect?

He also points out that our involvement in Afghanistan is almost equal to the time the Soviet Union spent in Afghanistan and we are just interfering with an ongoing civil war; but his closing is worth repeating. In closing he writes:

Thousands of our men and women have returned home with physical and mental wounds, some that will heal or will only worsen with time. The dead only return in bodily form to be received by families who must be reassured their dead have sacrificed for a purpose worthy of futures lost, love vanished and promised dreams unkept. I have lost confidence such assurances can anymore be made. As such, I submit my resignation.

I'm trying to listen to the other side, but I can't find any convincing arguments. Can we really justify staying in Afghanistan for an indefinite period of time without any realistic prospect of victory? Can you justify it after reading this letter?

Obama's Version of "Compassionate Conservatism"

George W. Bush made the phrase "compassionate conservatism" nationally recognized during his 2000 campaign and now Pres. Obama has added his own version to Washington. I'm referring to his decision to ban the federal prosecution of medical marijuana users and suppliers. Here is a news report on the memo:

The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.

I describe the decision as "compassionate conservatism" for two reasons. First, it is compassionate because patients with cancer, Aids, chronic pain etc...who receive actual medical benefits from smoking marijuana will no longer be arrested for treating their illness with a non-lethal, effective and safe drug. Forcing people to give up their treatments for various conditions because of paranoid and uninformed perceptions of marijuana is simply cruel. Second, Obama's decision to leave the matter of marijuana legalization to the states is very conservative because it supports the principle of federalism. This is in stark contrast to the marijuana policies of "conservative" President Bush and his decision to prosecute medical marijuana users under federal law even though it was legal under state law. It will be hard to argue that this decision is "socialist" or "fascist."


Here is Glenn Greenwald on the decision:

Criminalizing cancer and AIDS patients for using a substance that is (a) prescribed by their doctors and (b) legal under the laws of their state has always been abominable. The Obama administration deserves major credit not only for ceasing this practice, but for memorializing it formally in writing. Just as is true for Jim Webb's brave
crusade to radically revise the nation's criminal justice and drug laws, there is little political gain -- and some political risk -- in adopting a policy that can be depicted as "soft on drugs" or even "pro-marijuana." It's a change that has concrete benefits for many people who are sick and for those who provide them with treatments that benefit them. So credit where it's due to the Obama DOJ, for fulfilling a long-standing commitment on this issue.

Nick Gillespie writes, "it represents the most compassionate and sensible policy to come out of Washington in a very long time."

Let's keep the debate moving forward.

Is it Torture?

To those who who claim that the "interrogation methods" the Bush Administration used on suspected terrorist does not constitute torture - Do you consider cutting a suspected terrorist's penis with a scalpel torture?

Just wondering.

If you don't think the US government would allow such treatment, stay tuned to the British High Court's upcoming opinion in regards to Binyam Mohammed.

The Case Against Counterinsurgency in Afghanistan

In Joe Klein's Newsweek article entitled "Afghanistan Controversy: Less than meets the eye."

A few weeks ago, a well-known U.S. military expert gave a wise speech about the near impossibility of making a counterinsurgency (COIN) strategy work in Afghanistan. He gave two examples. The first was digging a well: "How could you do anything wrong by digging a well to give people clean water?" Well, you could create new enemies by where you dug the well and who controlled it. You could lose a village by trying to help it. And then there was the matter of what he called COIN mathematics. If there are 10 Taliban and you kill two, how many do you have left? Eight, perhaps. Or there might be two, because six of the remaining eight decide it's just not worth fighting anymore. Or you might have 20 because the brothers and cousins of the two dead fighters decide to take vengeance. "When I am asked what approach we should take in Afghanistan," General Stanley McChrystal concluded, "I say humility."

Obama/Beltway Definition of "Transparency"

President Obama - January 21, 2009:
"Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency."

Fast Forward 9 months:
Now it appears that with Obama's support and urging, Congress will add an amendment to a bill that will exempt pictures of the United States (under the Bush Administration) torturing prisoners and suspected terrorists from being released under the Freedom of Information Act.

The Freedom of Information Act (FOIA) has been one of the hallmarks of healthy democratic government because it forced governmental transparency and kept the government accountable for their actions. Now, a Democratic Congress, who under George W. Bush praised the FOIA, are set to render the Act null and void simply because their leader asked for it. Forget principles and any independence if you are a Democrat, they just subserviently bow down to the commands of the President.

Here is Glenn Greenwald on the subject:

yesterday, Sen. Joe Lieberman successfully inserted into the Homeland Security appropriations bill an amendment -- supported by the Obama White House -- to provide an exemption from the Freedom of Information Act's mandates by authorizing the Defense Secretary to suppress long-concealed photographs of detainee abuse. Two courts had ruled -- unanimously -- that the American people have the right to see these photographs under FOIA, a 40-year-old law championed by the Democrats in the LBJ era and long considered a crowning jewel in their legislative achievements. But this Lieberman amendment, which is now likely to pass, undermines all of that and -- as EBay founder Pierre Omidyar put it today -- its central purpose is to "legalize suppression" of evidence of American war crimes.

What made those detainee photographs so important from the start is that they depict brutal abuse well outside of the Abu Ghraib facility and thus reveal to Americans -- and the world -- that America's torture was not, as they've been constantly told, limited to rogue sadists at Abu Ghraib and the waterboarding of three bad guys. Instead, our torture regime was systematic, pervasive, brutal, fatal, and -- because it was the by-product of conscious policies set at the highest levels of government -- common across America's "War on Terror" detention regime. These photographs would have documented those vital facts; combated the false denials from torture apologists; fueled the momentum for accountability; and revealed, in graphic and unavoidable terms, what was truly done by America's government. But a Democrat-led Congress, at the urging of a Democratic President, is now taking
extraordinary steps -- including a new law which has no purpose other than to suppress evidence of America's war crimes -- to ensure that this evidence never
sees the light of day.

As a side-comment, isn't it sad that the ACLU is the one leading the charge on getting the photos released instead of the media? And they wonder why old-school media/journalism is on the brink of extinction. Maybe if they possessed courage, patriotism and journalistic integrity it would be a different story.

Finally, here is Adam Sewer writing about the hypocrisy of Sen. Joe Liberman and his "notion" of executive accountability and transparency:

The administration, perhaps sensing that they're not really on solid legal ground when it comes to arguing that the government should be able to hide evidence of its own wrongdoing under the rubric of national security, is getting a little cover from Congress. Yesterday, the conference summary of the current homeland security appropriations bill indicates that an amendment from Sen. Joe Lieberman that would exempt the photos from the FOIA Act has been adopted, which means that the government could legally withhold the pictures if the bill is passed. The same Sen. Lieberman, deeply concerned about the constitutionality of executive branch "czars," has inserted language into a bill allowing the government to conceal evidence of its own abuses.

March to War Against Iran

The media and many in both political parties will try to convince you that Iran is a serious threat to our national security and the security of our allies. Unsurprisingly, the media hasn't learned it's lesson from the Iraq war and are uncritically passing on incorrect and biased information that moves our country ever so closer toward military intervention with Iran. If the Iraq and Afghanistan war hasn't shown you the limits of waging war abroad, I don't know what can convince you otherwise.

As of right now, I'm completely opposed to any military action against Iran or even economic sanctions. Iran is close to an internal revolution and opposition leaders to Ahmadinejad state that sanctions will only create more hardships for those who are trying to change the regime in Tehran. Also, military action against another Middle East country will cement American hatred for a generation with the otherwise western-friendly population of Iran.

With that being said, journalist Juan Cole of Salon wrote an article on the "Top ten things you didn't know about Iran." The article separates the truth and misconceptions about Iran and the threat they pose.
Preview:

Belief: Iran is aggressive and has threatened to attack Israel, its neighbors or the U.S.

Reality: Iran has not launched an aggressive war [in] modern history (unlike the U.S. or Israel), and its leaders have a doctrine of "no first strike." This is true of Supreme Leader Ali Khamenei, as well as of Revolutionary Guards commanders.

War with Iran would be another unjust war and create far more problems than refraining from action.

It's useful to keep in mind the warnings of the Founding Fathers as the media and politicians beat the drums of war against Iran.

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give away to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free. - Federalist No. 8

Stay tuned.

Breath of Fresh Air in the GOP

I'm a registered Republican, yet I currently cannot stand the party. It seems like all the honest conservative intellectuals have been booted out of the tent in favor of those like Beck, Hannity and Limbaugh who only care about identity politics and scoring cheap political points instead of actually governing. So long as that is their modus operandi, I'm not having any part.

However, Sen. Lindsey Graham (R-SC) -also at this weeks First Draft of History conference hosted by The Atlantic - said the GOP needs to start calling out the fringe movements of their party as "crazy." Ah, It's about time.

First, he took aim at demagogue Glenn Beck.

Only in America can you make that much money crying. Glenn Beck is not aligned with any party. He is aligned with cynicism and there has always been a market for cynics. But we became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers.

Next, he took aim at the "birther" movement (those that don't believe Pres. Obama was born in the USA and those who believe he is a Muslim.

I'm here to tell you that those who think the president was not born in Hawaii are crazy...He’s not a Muslim. He’s a good man. Now let’s knock this crap off and talk about the real differences we have.

Indeed. I know that kind of talk fires up the base, but it surely isn't going to garner the attention of independents. Keep it up Sen. Graham.

The Sarah Palin Fanclub Grows

Steve Schmidt, former McCain '08 campaign manager, gave a ringing endorsement of Sarah Palin at The Atlantic’s First Draft of History Conference, Schmidt said, “My honest view is that she would not be a winning candidate for president and if she was the results would be ... catastrophic.”

Atleast he admitted his error. When will Bill Kristol follow up?

Withdraw from Afghanistan

If history is to teach us anything, it is that involvement in Afghanistan brings empires to its knees and wars within it's boundaries are impossible to win. Yet, the United States is ignoring these warning signs of decades past at our own peril.

One of the main reasons for launching the war in Afghanistan was to eliminate the camps of Al Qaeda. That objective has been completed. However, we remain deeply involved with no end in sight.

Thankfully, the calls for our withdrawal are becoming louder. Last week George Will wrote a post entitled Time to get out of Afghanistan. Here is a preview:

Mullen speaks of combating Afghanistan's "culture of poverty." But that took decades in just a few square miles of the South Bronx. Gen. Stanley McChrystal, the U.S. commander in Afghanistan, thinks jobs programs and local government services might entice many "accidental guerrillas" to leave the Taliban. But before launching New Deal 2.0 in Afghanistan, the Obama administration should ask itself: If U.S. forces are there to prevent reestablishment of al-Qaeda bases -- evidently there are none now -- must there be nation-building invasions of Somalia, Yemen and other sovereignty vacuums?. . .
So, instead, forces should be substantially reduced to serve a comprehensively revised policy: America should do only what can be done from offshore, using intelligence, drones, cruise missiles, airstrikes and small, potent Special Forces units, concentrating on the porous 1,500-mile border with Pakistan, a nation that actually matters. Genius, said de Gaulle, recalling Bismarck's decision to halt German forces short of Paris in 1870, sometimes consists of knowing when to stop. Genius is not required to recognize that in Afghanistan, when means now, before more American valor, such as Allen's, is squandered.

Today Andrew Sullivan builds on this theme and writes:

You may recall a time when conservatives believed in a strong defense, but also opposed using the military for open-ended nation-building efforts against amorphous enemies in failed states. The argument was that you cannot impose order and civilization on alien societies with foreign forces, that the occupying troops will become part of the problem after a while, that culture matters and not every country is ready for democracy or even a functioning central government. Intervention should be brief, and only undertaken under duress... As a general principle, it is solid. But in this case, the argument is almost comically persuasive. I mean: if you were to come up with a country least likely to be amenable to imperial improvement and edification, it would be hard to come up (outside much of Africa) with any place less propitious than Afghanistan, a tribal alien place with almost no record of central governance whatsoever. We also have historical precedent for imperial and neo-imperial failure: the British failed in Afghanistan over many decades; the Russian empire was defeated in Afghanistan in one. Does anyone believe that Russia would be stronger today by remaining in Afghanistan? Yes, the Taliban hosted al Qaeda, and we were right to evict them. But al Qaeda can move to many failed states, and we cannot occupy or civilize all of them. Moreover, the war is showing signs of becoming a self-licking ice-cream: the insurgency is now only united by opposition to foreign troops, we have pushed it into Pakistan thereby actually increasing the odds of an Islamist state that already has nukes getting even more unstable. And yet the calls for repeating what cannot work - because the war is too big to fail - remain.

It's a good start. Don't stop until our armed forces return home.

But it Kept the Country Safe!

Is Using A Minotaur To Gore Detainees A Form Of Torture?

Pimps of Christianity

Here is an excellent article by Clint Rainey of Slate discussing the the so called Christian message of the "Prosperity Gospel." Here is a brief definition of the prosperity gospel from Wiki if you aren't familiar:

A religious teaching that God desires material prosperity for those he favors.[1] Material prosperity in this theology not only includes financial prosperity but success in relationships and good health as well.[2] This material favour may be preordained, or granted by God in return for correct "faith" significantly evidenced in the beliefs,
attitude and obedience of the adherent.

If you think this is actually a Christian message, I'd argue that you know little about the teachings of Jesus, but we aren't going to go there in this post. Instead, I'm going to highlight the articles written about the subject.

Preview from Rainey:

This movement is, if anything, durable. Neither incredulity of its methods nor bad publicity, like the cadre of TBN televangelists under Senate investigation for their Robin Leach-voice-over-worthy lifestyles, affects its salability. After all, Osteen's sunny view is that his message has "increased relevancy in a time of economic uncertainty." His church Lakewood generated $76 million last year, the most in
the United States. He says attendance is up since the economy tanked. Hard-on-their-luck audiences are more likely to buy in to the message's fire-insurance appeal—the very "too big to fail" clout that attracted traders to AIG or Lehman Bros. until they failed them, too. For evangelicals, the culture wars trump self-policing; attempts to intellectually defrock Prosperity preachers come episodically from jailbird Jim Bakker, too-nice Rick Warren, or little-known leaders like Frederick Price of the National Baptist Convention, who compared Prosperity boosters to pimps. The signs do not point to a denouement.

And a priceless comment by Rod Dreher (who I usually disagree with) discussing the Slate article:

These preachers are pimps of false hope and salvation by materialism. It is a cruel irony -- and a testimony to human gullibility -- that they continue to prosper amid hard times.

Evangelicals and Torture

Doesn't anyone else think that the last time we should have seen the headline "Church-Goers Like Torture More," should have been several centuries ago? Just another piece of evidence showing how distorted some of those in the evangelical church are from the true teachings of Jesus.

Here is Chris Good from the Atlantic discussing the Pew study:

Evangelicals, according to the survey, are more prone to saying torture is justifiable than members of the nation's other two main Christian groups: so-called "mainline" Protestants and white, non-Hispanic Catholics. Unaffiliateds--a conglomerated group of atheists, agnostics, and those who say their religion is "nothing in particular--support torture the least: 40 percent say it's justifiable often or sometimes.

Notice how atheists and agnostics have a clearer sense of morality. Evangelical Xianity is really making progress these days...

Ineffectiveness of Waterboarding and Illegality of Torture

This past Sunday, the New York Times reported that two high value terrorist detainees – Khalid Sheik Muhammad and Abu Zubayda were waterboarded a combined 266 times in US custody. KSM was waterboarded 183 times and Zubayda 83 times. These revelations came from the newly released OLC memos written by Steven Bradbury and Jay Bybee, describing the torture methods to be used on terrorist detainees. If you want to read them yourself, they are here, here, here and here.

Defenders of waterboarding and torture in general state that these torture methods are necessary 1) to gather crucial and important intelligence and 2) to make the US safer. However, what they fail to mention or even grasp, is that torture is not designed to gather intelligence at all. Torture is designed to get false or coerced confessions to give the impression that its utilization is necessary and the fears of the torturing institution are valid. Furthermore, the idea that one gets credible information from a tortured detainee/prisoner is laughable. A secretive military training called Survival, Evasion, Resistance, Escape (SERE) was created for pilots and other potential captives in the US armed forces where they are taught how to resist torture and other forms of abuse if they were to be captured. It is a purely defensive tactic to protect American servicemen from torture. However, the architects of the Bush terror regime used this exact program as a template on how to conduct interrogations with suspected terrorists. Jane Mayer in The Dark Side states,

The SERE program was a strange choice for the government to pick if it was seeking the learn how to get the truth from detainees. It was founded in the Cold War in an effort to re-create, and therefore understand the mistreatment that had led to thirty-six captured US airmen to give stunningly false confessions during the Korean War.

Among the torture tactics used by the North Koreans were forced nakedness, humiliation, isolation and stress positions. Sound familiar? So here we have the Bush Administration looking at how to get credible intelligence from terrorist suspects by using a program that was based on getting egregious and fantastic lies. Just think about it for a minute. If someone was torturing you, wouldn’t you do or say anything to make it end? I know I would, but if that is the case, then how can we verify the veracity of the “information” coming from the torture sessions? You can’t.

As stated above, supporters also claim that torture and “enhanced interrogation” makes the United States safer. This argument is unpersuasive. Many sources have claimed that the previous US policy of torturing detainees has been the #1 recruiting tool for terrorist organizations. Can anyone tell me how creating more terrorists and inflaming their passions makes the US safer? If you doubt this argument, here is Sen. McCain discussing that waterboarding is torture, it doesn’t make America safer and it has been an excellent recruitment tool for Al Qaeda. As Jim Manzi at the National Review has pointed out, torture isn’t necessary to defeat our enemies because we have a stellar record of defeating those who are barbaric without resorting to their own uncivilized methods.

Since the release of the memos, there has been serious backlash (or should I say panic) from the CIA and supporters of the torture regime under Bush. Among those is Dick Cheney, former Bush speechwriter Mark Thiessen and several unnamed CIA officials. They claim that the torture inflicted upon high value detainees, especially KSM was essential in foiling terrorist plots, specifically a “West-Coast” 9/11 style attack on LA. Unfortunately, in their haste to establish a defense to illegal behavior, they overlooked the chronology of events. Here is Tim Noah of Slate discussing how that claim doesn’t hold up to scrutiny.

What clinches the falsity of Thiessen's claim, however (and that of the memo he cites, and that of an unnamed Central Intelligence Agency spokesman who today seconded Thessen's argument), is chronology. In a White House press briefing, Bush's counterterrorism chief, Frances Fragos Townsend, told reporters that the cell leader was arrested in February 2002, and "at that point, the other members of the cell" (later arrested) "believed that the West Coast plot has been canceled, was not going forward" [italics his]. A subsequent fact sheet released by the Bush White House states, "In 2002, we broke up [italics his] a plot by KSM to hijack an airplane and fly it into the tallest building on the West Coast." These two statements make clear that however far the plot to attack the Library Tower ever got—an unnamed senior FBI official would later tell the Los Angeles Times that Bush's characterization of it as a "disrupted plot" was "ludicrous"—that plot was foiled in 2002. But Sheikh Mohammed wasn't captured until March 2003. How could Sheikh Mohammed's water-boarded confession have prevented the Library Tower attack if the Bush administration "broke up" that attack during the previous year? It couldn't, of course.

Unfortunately, their lies and contradictions don’t end there. In the initial stages of defending KSM’s waterboarding, an anonymous CIA senior official stated that KSM did not cooperate with interrogators at all until he was subjected to waterboarding. He stated that after the first waterboarding treatment, “He sang right away. He cracked real quick.” Another CIA official told ABC News: “KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again.” Really? If he divulged all the helpful information he knew, then why proceed and waterboard him 182 more times within 30 days? Was there more info? If that is true, that means waterboarding didn’t get the initial results. If they did get all the info in the first session but continued to waterboard, they were doing it merely for sadistic purposes. Neither outcome seems flattering or defensible.

This trend of lying and creating “intelligence breakthroughs” to justify the use of torture isn’t reserved solely for the use of torture against KSM. We can also find them with the torture of Al Zubayda. In maintaining the argument that waterboarding gathered significant and useful intelligence from Al Zubayda, George W. Bush gave three “intelligence breakthroughs” that justified its use during his term as President. First, he claimed that Zubayda disclosed KSM as the mastermind behind that attacks and KSM went by the alias of “Muktar.” Second, he claimed that Zubayda gave info that stopped a terrorist attack where one of the terrorists was travelling to the US. Finally, he stated that Zubayda's info led to the capture of Ramsi bin al Shibh. Surprise, surprise – Bush was not telling the truth and exaggerating the usefulness of torture to gather intel. Let’s look at more reporting in The Dark Side.

The first claim appears undermined by the 9/11 Commission report. As mentioned earlier, it established authoritatively that in the summer before Al Qaeda attacked, the CIA had already received several reports that KSM was involved in terrorist planning against the US, and specifically on Aug. 28, 2001, the agency received a cable reporting that KSM’s nickname was “Muhktar.” The second claim is generally understood to be a reference to Jose Padilla. Yet it has been widely reported, and undisputed, that Zubayda told interrogators about this, too, prior to being harshly
treated. The third claim, concerning the capture of Ramsi Bin al Shibh also seems dubious…There were numerous public reports of Bin al Shibh – Atta’s former roommate in Hamburg – before Zubayda’s capture. The Associated Press, The Washington Post and the Daily News, among others, all carried stories on the prior to Zubayda’s capture…If President Bush meant only that Zubayda provided the info that led to Bin al Shibh’s capture, the picture is less clear, but there is still a major contradiction. Bin al Shibh was not captured until almost half a year after Zubayda on Sept. 11, 2002. The time lag makes it seem far more likely that, as Ron Suskind reported, the key info about Bin al Shibh’s location came not from Zubayda, but from an Al Jazeera reporter, who indirectly passed it on to the Emir of Qatar in the summer of 2002.

First, the Bush administration and other torture defenders told the world “we do not torture” at any chance they could get, but now that it has been exposed that we did in fact engage in torture, they are tying to pivot the debate to “torture worked!” Well, if you read the above accounts and almost all historical accounts on torture, you will understand that torture does not work at getting credible information. However, I don’t care if it worked. It is illegal. It goes against what the US stands for and you cannot do it under any circumstances. Let’s take a look at why torture is completely off limits for the US to engage in – even if it “works.”

As historical precedent, the US never held torture as an official policy until 2002. When Yoo, Bradbury and Bybee were given the task of writing legal memos on the subject, it was extremely difficult for them to find any information favoring torture as US policy because none existed until that point. As I have mentioned in other posts, the last time a descendant of our current government has used torture was over 500 years ago in the British Star Chamber. Yes, we have become more uncivilized, but I digress. One of our greatest military leaders and our first Commander-in-Chief immediately designated torture as barbaric and off-limits to our republic. Here is Jane Mayer discussing Washington’s decision to prohibit torture:

In the Revolutionary War, George Washington and the Continental Army were regarded by the British as treasonous, ‘illegal combatants’ undeserving of the protections of legitimate soldiers, the same category into which the Bush administration was casting terror suspects. As a result, the British freely brutalized and killed American prisoners of war, in conditions considered scandalous even in that day. In contrast, Washington ordered American troops to take a higher road, in keeping with the ideals of the new republic. He insisted that enemy captives must be given food and medical attention and be housed in conditions that were no worse than those of the American soldiers. In directives still eloquent today, he ordered his troops to treat British war prisoners ‘with humanity and let them have no reason to complain of us copying the brutal manner of the British Army…While we are contending for our own liberty we should be very cautious of violating the rights of conscience of others, even considering that God alone is the judge of the hearts of men, and to Him only in this case they are answerable.’ Washington’s orders, which became the backbone of American military doctrine until 2001, were not simply gestures of kindness or even morality. They sprang also from a shrewed [sic] calculation that brutality undermines military discipline and strengthens the enemy’s resolve, while displays of humanity could be used to a tactical advantage.

This position has been consistent throughout our history and it’s surprising a “conservative” president would disregard the wisdom of history. Other great statesmen such as Winston Churchill who faced attacks proportionate to 9/11 each week during the Nazi blitz on Great Britain abhorred the practice and never seriously considered its implementation. To be more precise, there is no historical precedent for torture in the United States.

There are multiple statutes and bodies of law that unequivocally ban the use of torture and make it illegal: The Convention Against Torture, The War Crimes Act of 1996, The Torture Act, Alien Tort Claims Act, The Geneva Conventions and the Torture Victim Protection Act among others. I am going to focus specifically on Geneva and The Convention Against Torture (CAT). Before you argue that these are international laws that do not bind the actions of the US, let me remind you that the United States Congress ratified CAT in 1994, thus making it domestic statutory law. Essentially, all of these statutes prohibit a nation or an agent of a nation from “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." 18 U.S.C. § 2340. Additionally, CAT states the US has an obligation to prevent “cruel, inhuman or degrading treatment or punishment.” These laws leave no doubt that the United States is bound by law from engaging in torture.

By the way, does anyone know what President signed the Convention Against Torture? The year was 1988 – President Reagan. Here is his signing statement:

The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today. The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called 'universal jurisdiction.' Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

During the 2008 Republican primary and even the general election, Republican candidates for the presidency were tripping over each other to appear more Reaganesque. I don’t see that unfolding within the GOP at this moment. It’s too bad they can’t share in the moments of great leadership like Reagan. How far the GOP has fallen…

Now that we have established that torture is illegal, let’s take a look at the pathetic, unethical and incompetent attempts by the OLC lawyers to make it appear that the interrogation methods were legal. First, in discussing how waterboarding is legal because it does not impose any physical pain or damage, the memo conflates the concepts of pain and suffering. The language of the law prohibits “pain OR suffering.” However, the memo argues that torture results only in physical pain, thus if there is no physical pain, but mental suffering, no torture was committed. Obviously, this is simply ignoring the express language of the law. If an action inflicts severe pain OR suffering, it is considered torture. Do we really believe that waterboarding, forced nakedness and rubbing soiled tampons and human feces on other people doesn’t result in severe suffering in violation of the law? Please. Second, the word gymnastics and conflation doesn’t end there. My current Constitutional Law professor recently wrote a blog entry on the memos. In pointing out the deficiencies of the legal reasoning used, Prof. Wilson Huhn wrote:

Bradbury argues that interrogation methods such as being locked in a small, dark box, being shackled in stress positions, being held naked in a cold cell and sprayed with cold water, and waterboarding (slow drowning) are not "cruel, inhuman, or degrading." To reach this conclusion Bradbury engages in a series of definitions that essentially amount to wordplay. Bradbury reasons that conduct is "cruel, inhuman, or degrading" under the treaty only if it violates the Fifth Amendment; that conduct violates the Fifth Amendment only if it "shocks the conscience"; that it shocks the conscience only if it is "arbitrary"; that it is arbitrary only if it is undertaken without
"reasonable justification"; and that since prisoners were subjected to this treatment in order to protect America from attack, there is "reasonable justification" for the conduct, therefore it is not "arbitrary," therefore it does not "shock the conscience," therefore it does not violate the Fifth Amendment, and therefore it does not violate the treaty. To reach this result Bradbury has to overlook certain key provisions of the treaty against torture and other cruel, inhuman, or degrading punishment. First the treaty's prohibition on mistreatment of prisoners is not conditional upon there being a sufficient justification for such mistreatment - it is instead an absolute prohibition on mistreatment. Article 2, Clause 2 of the treaty specifically states:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”

This points out another flaw in the legal reasoning of Yoo, Bybee, Bradbury and those who assert the actions are permissible under the claim of self-defense. The treaty understands that these excuses and affirmative defenses are in existence, but explicitly rejects their use in the language of the law. The mantra that “torture is never justified under any circumstances” is in accordance with the laws of the United States.

Third, the memo makes the argument that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” This is from the case of South Atlantic v. Riese, 356 F.3d 576 (4th Cir. 2004). If you assumed this case dealt with national security matters you would be forgiven. However, the reality is that this case deals with a dispute over the construction of an apartment building. No, I’m not kidding. Apparently dicta and holdings in contract, property and corporations cases are applicable to constitutional and national security law. They have no shame citing case law with dicta discussing construction law, but fourthly, they do not cite any adverse precedent in their memo and conveniently fail to mention the US itself has prosecuted and sentenced to death other individuals who have waterboarded. Rule 3.3(a)(2) of the Model Rules of Professional Conduct mandates an attorney to disclose “legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” In the Nuremburg Trials we sentenced Nazi war criminals to death for torture methods similar to our own. The United States has prosecuted and executed Japanese soldiers who used waterboarding. Even in the past few years the US has prosecuted torturers (see Charles Taylor Jr.) Incredibly, none of these references or the explicit provisions of the treaties themselves are to be found in the memos. Furthermore, here is a Newsweek article discussing a not-yet-released internal DOJ memo investigating the professional and ethical violations of the OLC lawyers that wrote these memos. Finally, if you are still convinced that no acts of torture were committed and these acts fell short of “torture,” Prof. Huhn points out, “it must be admitted that [a] jury might reasonably find that it does constitute torture. No competent lawyer - let alone an Assistant Attorney General - advises his client to engage in behavior that a jury could reasonably conclude constitutes a felony.” There are two words to describe the legal memos giving the green-light to torture – pathetic and criminal. These legal opinions were not generated in good-faith, nor was the issue of torture and treatment of detainees a developing or vague area of US law.

The evidence and law clearly establishes that the US engaged in systematic acts of torture and torture is illegal. You would think the next step is prosecuting those who ordered the torture, but the beltway and establishment journalists think otherwise. You have journalists like Peggy Noonan saying that we shouldn’t ask too many questions about this dark period in our history and certain things should be mysterious in life. Hopefully your jaw dropped because I can’t imagine any self-respecting journalist admitting that people shouldn’t be asking questions or gathering more information. Other journalists like Chuck Todd and Wolf Blitzer still refer to the torture techniques by the Orwellian name of “enhanced interrogation.” Others, especially politicians, claim that our country shouldn’t prosecute for policy differences or Democrats shouldn’t investigate Republican presidents. I’m so sick of hearing that “investigations would be improper to punish differences in policy.” Policy decisions are legitimate decisions made within the framework of the law. The decision to torture was illegitimate and illegal. We punish those who commit illegal acts. That is what the rule of law means. Should we let Bernie Madoff go unpunished and justify his actions by stating “we need to move forward and not dwell on the past?” Some may argue that prosecutors have discretion whether or not to investigate crimes. This is true, however it is inapplicable to the issue of torture. The Convention Against Torture and Geneva mandates that credible allegations of torture MUST be investigated and prosecuted. Thus, if Attorney General Eric Holder does not investigate and prosecute, we will further violate our laws. There is no avoiding the issue. Either we follow US law and our treaties or we should withdraw - It’s one or the other. Finally, the issue of committing torture is not a left/right issue or a Republican v. Democrat issue. Torture is an issue of right and wrong. Moral v. Immoral behavior. Don’t be misled by those who are trying to deflect the issue by making it a partisan battle.

Yes, I’m aware that I am being long-winded so I’ll wrap it up. The United States clearly engaged in torture and torture is unquestionably illegal. Our laws require we investigate and prosecute those who implemented its policies (OLC lawyers, Congressmen, Senior Administration officials). What I think makes America exceptional in the world is that we abide by the principal that no one is beyond the reach of law and we are a nation of laws, not men. This issue will decide if this great country continues to follow that principle. Do we want to remain as a shining city on a hill?

I’ll leave you with statements from Justice Robert Jackson acting as lead prosecutor at Nuremburg:

The common sense of mankind demands that law shall not stop with the punishment
of petty crimes by little people. It must also reach men who possess themselves of great power…We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

Hope for Real Christianity

Here is an excellent article by Kathleen Parker in the Washington Post titled "Is a New Generation of Christians Finished with Politics?" It discusses how the Christian Coalition and other cultural crusaders have not been successful in politics and have stained the message and reputation of Xianity in the process. Because of this, signs are emerging that either Xians are finished as a political group or Xians are beginning to become fed-up with politics.

James Dobson, Pat Robertson, etc... don't let the door hit you on the way out.

Preview:

'If people who call themselves Christians want to see any influence in the culture, then they ought to start following the commands of Jesus and people will be so amazed that they will be attracted to Him.' Thomas told me. 'The problem isn't political. The problem is moral and spiritual. You have the choice between a way that works and brings no credit or money or national attention or, a way that doesn't work that gets you lots of attention and has little influence on the culture.'

Marriage Equality in the Midwest

Yesterday, Iowa's Supreme Court unanimously ruled in favor of same-sex marriage. The court held that denying same-sex couples the right to marry deprives them of equal protection of the laws. Here is a nice summary of the ruling by the Des Moines Register. Also, it's worth noting the court treated sexual orientation as a "suspect class" in their analysis.

Global Warming and Christianity

Comparing these two perspectives, who is more persuasive? Who offers a more realistic assessment? Who offers a more responsible and moral viewpoint? Legalistic Christianity vs. nonlegalistic Christianity at its finest.



OR

Is this – as some would claim – a failure to trust God, who has promised faithfulness to what he has made? I think that to suggest that God might intervene to protect us from the corporate folly of our practices is as unchristian and unbiblical as to suggest that he protects us from the results of our individual folly or sin. This is not a creation in which there are no real risks; our faith has always held that the inexhaustible love of God cannot compel justice or virtue; we are capable of doing immeasurable damage to ourselves as individuals, and it seems clear that we have the same terrible freedom as a human race. - Archbishop Rowan Williams, discussing global warming and environmentalism.

The Bottom Nowhere in Sight?

Former Republican Presidential Candidate Ron Paul gives a bleak outlook on our economy in the Financial Times.

“The US government just won’t allow the correction the economy needs.” He cites the mini-depression of 1921, which lasted just a year largely because insolvent companies were allowed to fail. “No one remembers that one. They’ll remember this one, because it will last 15 years.” At some stage – Mr Paul estimates it will be between one and four years – the dollar will implode. “The dollar as a reserve standard is done,” he says. He sees little hope for other currencies where central banks have also created too much liquidity dating right back to the early 1970s."

Before you dismiss him as a crank, just remember that he saw this current economic crisis years before it arrived and almost all of his economic predictions are usually accurate. Let's hope this is one of those times he is wrong.

The Day of Reckoning...

Is coming closer for those in the Bush Administration and the CIA who authorized the use of torture. Michael Isikoff of Newsweek is reporting that "Over objections from the U.S. intelligence community, the White House is moving to declassify—and publicly release—three internal memos that will lay out, for the first time, details of the 'enhanced' interrogation techniques approved by the Bush administration for use against 'high value' Qaeda detainees."

Will this lead to a "Truth Commission" or criminal investigations against government officials? I sure hope so (hopefully I'll have the time to explain why in a future post). Perhaps these memos could be so inflammatory that a Truth Commission will become undeniable. Isikoff reports, "One senior Obama official, who like others interviewed for this story requested anonymity because of the issue's sensitivity, said the memos were 'ugly' and could embarrass the CIA. Other officials predicted they would fuel demands for a 'truth commission' on torture."

However, I still don't think criminal investigations are likely. Why? Simply because Congress' hands are not clean on this matter and Obama's campaign promises on government transparency have fallen miles short of the mark. Certain members of Congress, especially those on committees dealing with detainee detention and national security, were aware of the torture techniques being used against detainees. Additionally, Obama has embraced many of the tools Bush used to protect government secrecy. Perhaps the most alarming is the continuing use of the expanded state-secrets doctrine. Those are just a few reasons why I don't think prosecutions are likely, but that may change with the release of more memos from the OLC.

Either way, this should be an interesting story to follow. Will we reward lawlessness and immoral behavior? Or will justice and the rule of law prevail?
I'll leave you with James Madison in Federalist 51:

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

GOP at the Crossroads

Here is an excellent article in Newsweek written by David Frum discussing the internal battles for the future of the GOP and American Conservatism. Are Republicans going to become the party of O'Reily, Hannity, Palin and Limbaugh? Or will they become the party of Frum, Larison, Reihan and Duthat? I sincerely hope it is the latter, or else the GOP is destined to become an ever-shrinking southern theological party.
Preview:

In the days since I stumbled into this controversy, I've received a great deal of e-mail. (Most of it on days when Levin or Hannity or Hugh Hewitt or Limbaugh himself has had something especially disobliging to say about me.) Most of these e-mails say some version of the same thing: if you don't agree with Rush, quit calling yourself a conservative and get out of the Republican Party. There's the perfect culmination of the outlook Rush Limbaugh has taught his fans and followers: we want to transform the party of Lincoln, Eisenhower and Reagan into a party of unanimous dittoheads—and we don't care how much the party has to shrink to do it. That's not the language of politics. It's the language of a cult.

The Prop. 8 Fight Continues

Yesterday the Supreme Court of California revisited the contentious issue of same-sex marriage and heard arguments on the validity of Proposition 8 which passed last November. (Background on Prop 8 see here). On Monday, the California legislature passed two resolutions declaring that, "[Prop 8] was an improper revision of the state constitution. Sweeping revisions can only be adopted if they originate in the Legislature, gain two-thirds approval in that body and then win approval by voters." Thus, they argue Prop 8 is invalid because it did not obtain the two-thirds approval in the legislature.

Not only did Prop 8 fail to get two-thirds approval of the legislature, but earlier in 2008 the legislature voted to extend full marriage rights to same-sex couples. Obtaining two-thirds support in the legislature was never going to happen. But the problem/issue is obvious. The judiciary has ruled in favor of same-sex couples, the legislature (multiple times) has ruled in favor of same-sex couples, the executive branch has deferred to the judiciary, but the people (citizens of CA) have voted "no" on extending those benefits to same-sex couples. Who is going to budge? Who should have the final say in the matter?

This whole problem stems from California being a referendum/initiative/proposition happy state, thus leaving legislation up to the citizens instead of the legislature. Some people like this form of uber-democracy stating that the power is with the people and the government should be bound by their wishes and demands. I completely disagree. I'm going to avoid the argument that there are so many stupid people out there they should not have legislative powers. Instead, I will argue it completely goes against the structure of our government and the intent of our framers. Our government is based off the idea of a constitutional democracy/republic. (Yes I know they are two very separate classifications, but we have moved closer to a democracy since our founding) The legislature was created to conceive a deliberative body of elected citizens who would address issues, debate them among themselves and come to a political and constitutional agreement on how to deal with the problem/issue. By allowing the legislative body to deliberate, all sides of the argument can be exercised and (theoretically) the free exchange of ideas will give us the most practical solution to the problem. By presenting legislative powers or issues to the public at-large, we completely ignore the benefits of a slow, principled body of lawmakers. Instead, we see majority tyranny where powerful groups suppress the rights of politically unpopular groups, hyperbolic rhetoric, demagoguery (The call stated the vote was for the "soul of the nation," and Pastor Rick Warren constantly uttered the lie that recognizing same-sex marriage rights would prohibit religious organizations from preaching against homosexuality) and no accountability. Who will vote out the voters of propositions if they lead to dreadful/damaging policy? I think we need to heed the advice of Alexander Hamilton in Federalist 71:

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.

In my personal opinion, I don't think a specific branch of government or the people have the ability to preclude same-sex couples from marriage rights. The Supreme Court has established marriage as a fundamental right, stating in Loving v. Virginia, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." However, opponents will argue that the court in Loving was referring specifically to marriage as an institution between a man and a woman, not same-sex couples. This is a valid argument and has not yet been visited by the court. Many will argue that a state should be free to establish their own legislation dealing with the health, safety, and welfare of its citizens (which I agree with) but I don't believe the state possesses the power to infringe on a fundamental constitutional right, "When a state exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." Gomillion v. Lightfoot. Yes, I know we aren't dealing with a Fed/State battle, but the argument is analogous. I also believe same-sex marriage is protected by the fundamental right to liberty. Furthermore, preventing same-sex couples from marrying is a violation of their 14th amendment equal protection rights. See Romer v. Evans, Lawrence v. Texas and this law review article.

Time and time again I've pointed out that our country was founded on the principles of life, liberty and the pursuit of happiness. An extremely important part of securing liberty is allowing others to do whatever they please as long as it does not harm anyone else. Mere disapproval is not enough to invalidate laws or protections from others. I'm not sure which way the court will rule on this issue. I hope it is in favor of same-sex couples, but who knows. If the court rules the other way, perhaps in time it will be viewed as a success and a more solid claim of legitimacy for same-sex couples as Andrew Sullivan explains:

Who wants the critical moment in the securing of marriage rights to be imposed by a court against a clear majority vote of the citizens? Give it time, and conviction, and we'll win where it matters most: at the ballot box.