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.

Not Encouraging

Andrew Sullivan is asking readers to send in their own stories on how the recession is effecting them personally. Here is one I wish I would not have come across:

I’m a third year at a law school in Boston. Basically, everything we’ve dreamed of and been promised by our advisers/professors is no longer available. Job offers already accepted have pushed their starting dates back from September to January. Students are receiving surprise rejections for bar study loans, and I know a few who literally cannot afford the bar exam application fee ($820) because of it, let alone the bar prep courses. For the first time in any professor’s memory, students received offers for clerkships in the Massachusetts Superior Courts contingent upon funding to be established this spring. I hope to work in a government job with an agency or attorney general’s office, but am finding that there are literally no entry-level positions available, even for students from highly-ranked schools such as BC and BU.
I myself worked at the Massachusetts Office of the Attorney General for the past nine months and interviewed for a really exciting fellowship. I received a call from the AGO’s HR Director: I was third in line for the position, but they were cutting
the number they were hosting from three to one. In four other positions I’ve interviewed for, I’ve received word that the position itself was canceled, or would not be filled at all this year. There’s also a state-wide hiring freeze in Massachusetts, and a lot of established attorneys suddenly on the market after record layoffs in Boston law firms. I am extremely flexible in terms of geographic location (no kids, I don’t own property), and I’m being very aggressive in my search. But it’s slow going – I fully expect to have nothing lined up when I finish the bar exam at the end of July. The thought of having nothing, absolutely nothing, to do on August 1st petrifies
me. Without a job, I will not be able to afford malpractice insurance on my own and would not risk practicing law without it. I’ll have over $130K in debt from my law degree. Thankfully, I live in Massachusetts and can utilize MassHealth – anywhere else in the country, I would have to do without health insurance (I have no pre-existing conditions, but the quotes I’ve received are so high as to be ridiculous). If I stay in the city, I do not know what I'd do for rent. I’m 26 years old, and am frightened to death I will have to move back to Ohio and away from my gay community, and live with my parents. With a law degree. I feel like a chump sometimes.

Quote of the Week

Courtesy of former George W. Bush speechwriter David Frum:

A federal bank takeover is a bad thing obviously. I wonder though if we conservatives understand clearly enough why it is a bad thing. It’s not because we are living through an enactment of the early chapters of Atlas Shrugged. It’s because the banks are collapsing. Obama, Pelosi, et al are big-spending, high-taxing liberals. They are not socialists. They are no more eager to own these banks than the first President Bush was to own the savings and loan industry – in both cases, federal ownership was a final recourse after a terrible failure. And it was on our watch, not Obama’s, that this failure began. Our refusal to take notice of this obvious fact may excite the Republican faithful. But it is doing tremendous damage to our ability to respond effectively to the crisis.

Misc. Economics Post

I'm passing along a couple of economic items I found interesting this past week. First, Harvard Econ. Professor Greg Mankiw discusses what issues and economic policies economists almost universally agree on. See here.

Second, here is a vimeo video giving the best visualization I've seen thus far on how we ended up in this economic mess.


The Crisis of Credit Visualized from Jonathan Jarvis on Vimeo.

Flu Research

Last week, National Geographic wrote an article on why the flu is prevalent in the winter and what allows its transmission. In the article, they heralded a study that is going to be published in Proceedings of the National Academy of Sciences. Here is some of the article:

"Absolute humidity conditions explain most of these changes," Shaman said. The researchers do not know exactly what it is about low absolute humidity that the flu virus likes. But they suggest that absolute humidity levels be raised in buildings such as hospitals and medical clinics where the disease most often spreads.
"This gets us a big step closer to one type of mechanism" for how the flu spreads, said epidemiologist Marc Lipsitch of Harvard University. "One really key
question is how much influenza is transmitted in tropical locations"—places with
high absolute humidity year-round—"and how this compares to temperate parts of
the world,"

While this may be news to some, these research findings are not unique, nor are they recent. I'm surprised the journal selected the study for publishing because these findings and additional insights have already been answered - or at least discovered.

Peter Palese, a flu researcher who is professor and chairman of the microbiology department at Mount Sinai School of Medicine in New York published a study a year and a half ago linking flu transmission rates with temperature and humidity. Here is an article talking about his findings, as well answering some of the questions raised in the "newer" study:

Air temperature and humidity in the guinea pigs' quarters were varied, and they discovered that when the air temperature was at 41 degrees the virus was transmitted. As the temperature rose there was a significant decrease in the transmission of the virus and at 86 degrees, the virus was not transmitted at all.
A[sic] low humidity of 20 percent, the virus was transmitted and when the humidity reached 80 percent the virus was not transmitted at all. Dr. Palese said that this
flu virus spreads through the air, unlike the cold virus, which spreads by direct contact when people touch surfaces that had been touched by someone with a cold or a handshake with someone who is infected. Cold air makes a stable
environment for the flu virus. Low humidity also helps the virus particles remain in the air. The viruses float in the air in little respiratory droplets. With the humidity in the air, those droplets pick up water, grow larger and fall to the ground.

I guess the lesson to be learned is get a humidifier or live in a more tropic climate if you want to avoid the flu.

Enemies Foreign and Domestic

This past week, former Vice-President Dick Cheney gave an extensive interview with John Harris, Mike Allen and Jim Vandhei of Politico. I'll be quoting excerpts of the interview, but in general, Cheney warned of future terror attacks because the Obama administration is departing from many of the Bush Administration policies and is therefore putting the country at risk in the eyes of the former vice-president.


First, it seems very likely, perhaps inevitable that the U.S. is going to receive another serious terrorist attack. As former President Bush stated regularly, "we only have to fail once for the terrorists to succeed." However, it appears (at least to me) that Cheney is simply using political posturing to claim that if there is a terrorist attack in the future, the blame should lie squarely at the feet of Obama because he departed from many of the aggressive/illegal policies of the Bush Administration designed to thwart terrorist threats. Just because an attack did or did not occur during an administration's term doesn't mean it was a direct result of the policy. It is part of the analysis, but not conclusive in itself.

At the heart of Cheney's argument is the notion and belief that because a terrorist attack did not occur once they implemented their policy, it was their policy that was responsible for preventing attacks. He believes that unilateral war, torture, no due process, surveillance programs and lack of diplomacy are fundamental to the security of the United States. This claim doesn't hold up to scrutiny. The last major terrorist attack on US soil (committed by an Islamic fundamentalist) was the first world trade center bombing in 1993. In dealing with this act, President Clinton didn't impose the draconian measures similar to Bush/Cheney to ensure our security. The terrorists themselves were tried in criminal court, convicted and are rotting away in a domestic U.S. prison. Therefore, using the same logic, we can say that Clinton's approach in dealing with terrorism kept the U.S. safe. However, to stay consistent, I would argue that that logic is also flawed. To poke some more holes in Cheney's assertion - that extra-ordinary measures are needed to prevent terrorism - let's take Spain for example. After the terrorist attacks on Madrid in 2004, Spain convicted the terrorists in criminal court and decided to withdraw from Iraq. Here is Glenn Greenwald discussing their reaction to terrorist attacks and their subsequent national security (yes, the last part of his remarks are tongue-in-cheek):

Number of terrorist attacks by Islamic radicals on Spain since March, 2004 --
i.e., the last 5 years: none. Using the prevailing media-logic applied to Bush's counter-terrorism policies such as torture and Guantanamo (i.e., if a country is attacked by Terrorists, its Government then does X, and there are no Terrorist attacks for some period of time thereafter, then that is "proof" that "X stops Terrorism"), I believe these events in Spain constitute proof that the way to stop Terrorism and to keep the citizenry safe is to stop invading and occupying Muslim countries and take accused Terrorists and put them on trial with full due process rights before putting them in cages for life. After all, that's what Spain did, and there's not been another Terrorist attack for five years. Therefore, those policies have kept the Spanish people safe.

Cheney comment:

When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry.

Let me alleviate your worries Mr. Cheney. President Obama, his administration and people like myself aren't concerned with reading them their rights. I haven't seen anyone suggest we read Miranda rights to any of the detainees. However, we are concerned with an unchecked executive declaring people "enemy combatants," holding them indefinitely and not giving them judicial review. Federalist 84 states, "the practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." We simply want a proceeding to make sure we are actually detaining terrorists instead of innocent people. The recent Boumediene ruling reinforced one of the most basic and fundamental rights of habeas. We aren't concerned with hurting the feelings of terrorists, we stand for restoring constitutional principles that have their origins in the 13th Century.

Cheney comment:

At least 61 of the inmates who were released from Guantanamo during the
Bush administration — that’s about 11 or 12 percent — have gone back into the
business of being terrorists.

No, you are wrong. Secretary Gates himself has debunked this figure along with a prominent study by Stanford School of Law Professor Mark Denbeaux, where Gates says the rate is closer to 4-5%.

Cheney comment:

The 200 or so inmates still there, he claimed, are “the hard core” whose “recidivism rate would be much higher."

I'm skeptical that Dick Cheney really knows much about the remaining GTMO detainees. Last week the press reported that the files on the detainees were a) non-existent or b) missing. If the previous administration didn't even take the time to create files on these detainees, then how can one be sure that they are the hard-core terrorists? Especially when he previously asserted that all detainees were dangerous terrorists; yet hundreds have been released without charge and others have been proven to be innocent. All I ask for is that we simply determine if they should be detained in the first place.

Cheney comment:

If you release the hard-core Al Qaeda terrorists that are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks, he said. If you turn ’em loose and they go kill more Americans, who’s responsible for that?

This is a straw-man. No one is advocating that we simply release hardened terrorists. We just ask that we make sure they are terrorists in the first place. If they are terrorists, then we should absolutely imprison/execute them. However, Cheney ignores the fact that the war in Iraq, Abu Gharib and torture in general has been the #1 recruiting tool for terrorist organizations. There is more Al Qaeda in Iraq now than before we invaded, Iran has become the regional power and there is the little problem of breaking the law. Gee, who is responsible for that Mr. Cheney?

Cheney comment:

Is that really a good idea to take hardened Al Qaeda terrorists who’ve already killed
thousands of Americans and put ’em in San Quentin or some other prison facility where they can spread their venom even more widely than it already is?

I can't call it a bad idea because we have been doing just that for years without any escapes, terrorist attacks on the jails or venom spreading problems. Finally, and I'm not downplaying how dangerous terrorists are, but the terrorists that have already killed thousands of Americans are already dead - they died on 9/11. But yes, I do concede that terrorists are capable of killing thousands of Americans, yet I don't see why that should prohibit us from placing them in domestic jails. Finally, the primary reason Gitmo was established wasn't because we were scared of terrorists escaping. It was established because the Bush Administration believed the geographic location of of the prison in Cuba was beyond the reach of U.S. courts. We all know how well that plan worked out.

I still believe that terrorism is one of the most serious threats we face - and will face for some time. However, I strongly disagree with Mr. Cheney on how we should deal with that threat. I do not believe it is worth throwing away our Constitutional principles to try and secure our safety. A police state would guarantee our safety, but at what cost to our liberty? I'll end with an excerpt from the Boumediene opinion.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.

Addicting Website

Today in class (yes, on a Saturday - snow days aren't free in law school), we had a speaker come in to talk about the various forms of technology available to attorney's to access discoverable information or evidence. While discussing methods to retrieve files from computers, the speaker pointed us to the website - www.enronexplorer.com. Here is the description of what the website provides:

In October 2003 the US Federal Energy Regulatory Commission placed 200,000
of Enron's internal emails from 1999-2002 into the public domain as part of its ongoing investigations. The archive offers an extraordinary window into the lives and preoccupations of Enron's top executives during a turbulent period. Read more about Enron's demise on Wikipedia. Trampoline engineers used this data as testbed during development of the company's SONAR technology. The result was so fascinating we decided to open it up and allow anyone to dig in. The Enron Explorer lets you investigate the actions and reactions of Enron's senior management team as the noose began to tighten.

As you can guess, I spent the rest of class prying into the lives of various former Enron employees. However, it made me realize how many emails I've written that I probably wouldn't want published in the future...

Enjoy!

President Joe Biden

No, I'm not declaring that Joe Biden is the current President, but I do believe he was the President for a few minutes on January 20th. I'm going to completely avoid commenting on the oath flubbing, but on a related note, I sure hope Chief Justice Roberts isn't a textualist.

The 20th Amendment provides that "the terms of the President and Vice-President shall end at noon on the 20th day of January...and the terms of their successors shall then begin." (Italics mine).

This leads to the simple conclusion that George W. Bush and Dick Cheney no longer held their offices at that point. However, Art. II, Sec. 1, Cl. 8 provides that "before he enter on the execution of his office, [the President] shall take the following oath..."

This creates a minor problem because Obama did not take the oath prior to noon. According to many different sources and my own recollection, it was about 12:03pm when he took the oath. Therefore, Obama was not eligible to assume the office of the Presidency at noon because he did not meet the express condition of taking the oath before his term began.

This takes us to Art. II, Sec. 1, Cl. 5 which grants succession power to the Vice-President. It states in part, "In case of inability to ... discharge the Powers and Duties of the said office, the same shall devolve on the Vice-President..."

Accordingly, with (now) President Obama unable to assume those powers by failing to take the oath prior to noon, Vice-President Joe Biden assumed the powers of the Presidency for about a period of three minutes.

Disclaimer: I'm merely a second year law student in the second semester of constitutional law. Perhaps - maybe even probably - my analysis is entirely off-base. But for the record, I think it looks pretty good. And yes, this is without a doubt the most dorky post I have ever written on this blog.