A good part of the reason I started blogging was because I went to a history conference at a UT branch up between Dallas and Fort Worth and found that, contrary to belief, many well known academic historians have found community history projects to be invaluable because of their focus and details. Photos rated high. Photos with details rate high. Interviews with participants in events rated high. Interviews with older people rated high if you cover their experience and perspective.
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Weekend Capsule

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


For only the second time (the first being after the Boumediene decision) I’m not going with the usual title of my wrapup for the week.  President Obama ordered the closing of Guantánamo and CIA black sites, former National Security Agency analyst Russell Tice gave a couple of blockbuster interviews detailing some of the abuses the NSA (and as Dick Durata noted in the comments at Avedon’s place, the silence was deafening), and Sheldon Whitehouse looks poised to start looking at some of the abuses of the Bush years.  Here’s hoping it’s the start of a trend.


Heh indeedy.


Republicans’ seeming constitutional requirement to define themselves explicitly in terms of opposing whatever it is Democrats want now has them looking cruel (John Cornyn), callous (John Boehner) or hypocritical (Saxby Chambliss).  Guys: You’ve gotten walloped at the ballot box two cycles in a row.  A couple more results like that and there won’t be enough land left to slide, know what I mean?  Step away from the crazy.


Memo to Dennis Blair:  Waterboarding is torture.  President Obama, does this gentleman represent your views?


Christopher Hitchens:

“I know something for a sure thing,” Hitchens continued. “The demand for torture and other methods I would describe as illegal, the demand to go outside the Geneva conventions — all this came from below. What everyone wants to say is this came from a small clique around the vice-president. It’s not educational. It doesn’t enlighten anyone to behave as if that were true. This is our society wanting and demanding harsh measures.” Therefore, he went on, the demand for prosecution or other measures against Bush administration officials would likewise have to come from below, via the grassroots. “Otherwise it’s just vengeful, I suppose, and partisan.”

digby:

From the perspective of the village that’s quite true: the mechanism for this demand was that villagers like Jonathan Alter and Thomas Friedman —- who believe they are perfectly in tune with salt of the earth Real Americans —- were screaming at the top of their lungs for the leadership to “get crazy” and torture suspects (who turned out to be completely innocent.)

More digby:

[W]hen Hitchens talks about coming from below he really means the media elite who “represent” Real Americans. They don’t listen to the polls, they listen to their guts, which are a far more reliable gauge of what the grassroots really believe than polls or elections.

It is with no small amount of shame that I write when I first heard Dick Cheney’s “We also have to work sort of the dark side” comment I felt a sort of grim satisfaction about it.  I wanted the homicidal maniacs that murdered thousands of my countrymen to pay, and the idea that we had our own people going after them on their grounds and their terms was fine with me.  My blood was up and Cheney’s proposition sounded good.

Two points:  First, that was the immediate aftermath and it was only a vague sense of “make them pay.”  Once the initial shock began to subside I began to think differently, and here I’m talking about a matter of weeks or maybe a month.  Hitchens’ “demand for torture and other methods” was in my case an inchoate desire for vengeance, not a call for specific methods.  (And when exactly did the Bush administration ever respond to pressure from below, you fatuous boob?)  Furthermore, that sense of frenzy largely subsided for much of the general population fairly quickly.  It’s not as if there was a persistent, ongoing demand for torture of detainees.  For Hitchens to claim that is simply not serious.

Second, even if that claim is completely true: Society demanding something doesn’t require leaders to do it. They should be expected to know the law and follow it, even if the public is demanding otherwise. And they get prosecuted if they don’t. That’s the downside to the position. It’s not all limos and banquets.


UNPACKING JANE:  On page 129 Mayer describes how Jeppesen International Trip Planning - still proudly offering “personalized and professional trip planning,” by the way - was the preferred provider of torture travel:

While Aero operated the CIA’s fleet of planes, a little-known subsidiary of the huge blue-chip aerospace company Boeing, called Jeppesen International Trip Planning, secretly handled the computerized flight plans for many of the rendition trips.  According to Sean Belcher, a former employee of the company in San Jose, California, while the Bush Administration was insisting that it did not render suspects to be tortured, executives at Jeppesen had no such illusions.  He described a meeting in which one of his bosses, Bob Overby, the managing director of Jeppesen International Trip Planning, said, “We do all of the extraordinary-rendition flights - you know, the torture flights.  Let’s face it, some of these flights end up that way.”  Overby and other Jeppesen executives declined to comment.  Boeing officials also declined to comment on the company’s role as the CIA’s travel agent.  But the company evidently felt that it accrued enough benefits from the business to offset the distasteful aspects.  Belcher, the former Jeppesen employee, recalled his boss, Overby, saying of rendition, “It certainly pays well.  They” - the CIA - “spare no expense.  They have absolutely no worry about costs.  What they have to get done, they get done.”

The subsequent account by a victim of the incongruous-bordering-on-surreal luxurious accommodations offered to a man on his way to be tortured has to be read to be believed.

Failures of Courage, Not Law

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

Garrett Epps’ “The Founders’ Great Mistake” in the latest Atlantic looks at the expansion of the executive branch and proposes some remedies. Articles like his tend to make me feel conflicted because part of me is drawn towards Big Idea discussions - theoretical explorations of how things should be, regardless of practical limitations. And another part of me loathes it as endless, indulgent, droning abstraction; nothing more than an extended exercise in mental masturbation. But since we’ve had two presidents this week it might not be excessive to spend a post on the nature of the office itself.

One of Epps’ points is that Articles I and II of the Constitution are the source of many problems. Article I empowers Congress, Article II the president. He notes, though, that while Congress “was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid.” His remedy:

Article II should include a specific and limited set of presidential powers….It should be made clear, for example, that the president’s powers as commander in chief do not crowd out the power of Congress to start—and stop—armed conflict. Likewise, the duty to “take care that the laws be faithfully executed” needs to be clarified: it is not the power to decide which laws the president wants to follow, or to rewrite new statutes in “signing statements” after Congress has passed them;
I would call this music to George Bush’s ears. Article I, Section 8 takes care of the first part of his recommendation, giving Congress the powers:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

That seems about as cut-and-dried a limitation on the president as you could ask for. Similarly, no clarification is needed on the requirement to faithfully execute the law - signing statements are not provided for and a failure to implement laws as passed by Congress is simply illegal. Both of Epps’ recommendations dignify and legitimize Bush-era stances towards the Constitution. One of them is ambiguity. For all its good-versus-evil, “with us or against us” rhetoric the Bush administration was positively infatuated with muddying fairly simple issues beyond recognition. Congress has the power to declare war, period. What we need is not new language but a new Congress willing to defend its prerogatives. We need legislators determined to not commit our soldiers to battle absent an formal declaration of war, who won’t pass an ambiguous “authorization” as a way of ducking responsibility and giving in to presidential bullying.

The same is true of executing laws. If the president won’t enforce them or tries to use plainly unsupportable interpretations, the remedy is to haul him into court, not to amend the Constitution. It seems that Epps, and perhaps a lot of other well meaning analysts, are trying to find a way to legislate around the abuses of the Bush years. But such efforts are futile, and in fact counterproductive. The failure of the last eight years is not of laws, but of courage.

Some of his theorizing is more appealing. He notes “the executive branch is a behemoth…responsible to one person, and that one person, as we have seen, is only loosely accountable to the electorate” and recommends dividing it “between two elected officials—a president, and an attorney general who would be voted in during midterm elections.” That would require no transfer of power and it almost certainly would have produced a better result for the country than the Ashcroft/Gonzales/Mukasey triumvirate did. Even better, why not move the AG into the legislative branch and formally charge it with the interpretation of laws for the executive branch. If the president is unclear or is considering some novel interpretation of the law shouldn’t the branch that passed it in the first place have the final say? (Note that this also eliminates the need for signing statements.)

The behemoth could also be cut down in size. There is no reason agencies like the EPA and SEC should be under executive control. Moving them and others to the legislative branch would better shield us from the effects of a president who subscribes to the theories of plebiscitary democracy and the unitary executive (i.e. authoritarianism lite). In the end, though, what we really need are leaders with spines. It has been our great misfortune to not have them the past eight years, and there is no Constitutional amendment or Backbone Reinforcing Act that can drag them into existence.

This Week In Tyranny

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


Some thoughts for the last post of the current president.  For the last year or so I’ve deliberately tried to avoid even using his name, and while I’ve slipped on it a little the last couple weeks (maybe out of joyful anticipation) a scan of my posts will show almost no mentions by name.  I haven’t wanted to dignify him by naming him.  Good riddance.

A few links, though.  Just a scoop of the horror, not the whole bucket.  Prairie Weather tipped me to Frozen Scandal, a good look at how the wrongdoing of our time never gets resolved, but frozen in place.  If you’ve never read this about our secret prisons now might be a good time if you’re feeling nostalgic.  Or this.  It’s a measure of the damage the man has done to our country that legislation passed to help deal with Reconstruction - the aftermath of the goddamn Civil War - is now being put back into play.


Moving on.  I missed this initially, but president-elect Obama “announced that he would at least partially rely on the guidance of the current [Director of National Intelligence], Mike McConnell. McConnell will ‘continue to offer his counsel through my Foreign Intelligence Advisory Board,’ Obama said.”  Will his counsel be along these lines?

I queried McConnell again, later, about his views on waterboarding, since this exchange seemed to suggest that he personally condemned it. He rejected that interpretation. “You can do waterboarding lots of different ways,” he said. “I assume you can get to the point that a person is actually drowning.” That would certainly be torture, he said. The definition didn’t seem very different from John Yoo’s.

I have no idea what our incoming president is thinking, but he is sending an absolutely horrible signal.


Digby:

I’ve written before about the influence of uber-villagers like Stuart Taylor and how his noxious views on torture are likely to affect policy. And now we see the results of his handiwork. Yesterday, the Washington Post vomited up an egregiously one-sided pro-torture article in its news pages (effectively rebutted by Robert Parry, here.)

God I wish I could write like that.  The frustrating aspect of the Newsweek article she mentions is that it isn’t just wrong on many facts, but it’s wrong in its philosophy too.  It attempts to frame the issue of torture as just another Washington tug of war between liberals and conservatives instead of one that distinguishes civilized from uncivilized people.  It’s one thing to bat down plainly incorrect reporting (e.g. “Reportedly, Khalid Sheikh Mohammed, under intense interrogation, corroborated al-Marri’s identity” should read “Khalid Sheikh Mohammed, under torture, told his tormentors what they wanted to hear”) but how do you rebut a wholesale recasting of reality?


More on torture.  If you have the stomach.


I continue to loathe the bailout.


Bonus Jane Mayer Fanboy Item:  She gets a shout out in 24.  Her reaction is intelligent, witty and thorough.  Priceless.  I’m beginning to secretly hope her personal life is a complete train wreck because it seems deeply unfair for someone to have such an obvious advantage in intelligence over the rest of us.  We need something as compensation to make us feel better.


I’ll leave you with a happier note, though.  In a sane political environment Russ Feingold would be considered one of the only legitimate voices left.  As it stands he is still eclipsed by those who have profited enormously by being wrong at every turn.  And plenty of those folks are sticking around after Inauguration Day.


UNPACKING JANE:  From pp. 129-31:

Maher Arar, a Canadian telecommunications engineer, had occasion to experience the CIA’s largesse firsthand.  On September 26, 2002, American officials, suspecting Arar of being a terrorist, apprehended him on his return to Canada from a family vacation in Tunisia during a layover at John F. Kennedy Airport in New York…Arar, who at the time was a thirty-four-year-old graduate of McGill University whose family had emigrated to Canada when he was a teenager, was detained because his name had been placed on the terrorist watch list.  He was held for the next thirteen days, as American officials questioned him about possible links to two other suspected terrorists.  Arar said that he barely knew them, although he had worked with the brother of one suspect.  Arar did not know it at the time, but he had been falsely implicated when these subjects were tortured in Syria.

<snip>

[Arar is rendered to Syria], where interrogators, after a day of threats, “just began beating on me.”  They whipped his hands repeatedly with two-inch-thick electrical cables and kept him in a body-sized slot of a windowless underground cell - his cell was no. 2 - which he likened to being buried alive in a casket.  “Not even animals could withstand it,” he said.  Although he initially tried to assert his innocence, he eventually confessed to anything his tormentors wanted to say.  “You just give up,” he said.  “You become like an animal.”

 

The Real Cost of Guantanamo

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

The president had his final press conference this week and it caused quite a stir. An unusually adversarial White House press corps (glad you could make it!) and an uncharacteristically reflective subject produced more noteworthy comments than a year’s worth of them normally create. The president came off poorly, and many observers - including right leaning and solidly right wing ones - could not help but note unflattering similarities to Richard Nixon. But despite the unusually candid tone and body language - by turns unrepentant, defensive, petulant and arrogant - and the mostly unyielding insistence on his rightness, perhaps the most revealing moment did not seem to get much scrutiny.

When asked whether his administration’s military and detention policies “have damaged America’s moral standing in the world,” he fired back that America is plenty popular just about everywhere but the salons of Europe. That part of the answer got plenty of play. But then he said, “And I understand that Gitmo has created controversies. But when it came time for those countries that were criticizing America to take some of those - some of those detainees, they weren’t willing to help out.” The first and most superficially interesting part of the answer is his stammering on “some of those.” The White House has been exceedingly careful to refer to those held in Guantánamo as detainees and not prisoners. Calling them prisoners brings those quaint Geneva Conventions into the picture and would require them to be treated according to an organized, recognized and legitimate legal system. Calling them detainees allows the administration to keep them in the improvised and illegitimate activities they continue to insist is a valid new legal system. Was the president about to say “some of those prisoners”? And what does it say about his policy that the language regarding it must be so frequently parsed, checked and otherwise tailored?

The truly remarkable part of his statement is his assumption that other countries that have been critical of this world of shadows have some obligation to take the prisoners off our hands. Other countries have been critical because these policies go against centuries of Western legal, judicial, civil and human rights traditions! The president acts as though it is done in a fit of pique, or contrariness, or distaste for him personally, or reflexive anti-Americanism or moral obtuseness. It does not seem to occur to him, and he may be incapable of imagining, that they have taken these positions out of a deep ethical repugnance for the policies themselves. As such, what obligation do they have to become entangled in our moral quagmire? Perhaps they objected in the first place precisely because they could envision just the dead end we now find ourselves in, and did not want to take that dilemma on for themselves.

And a dead end it is. I have read and heard numerous purveyors of conventional wisdom in the last few weeks ponder sagely on the Gordian Knot we are confronted with. It goes along these lines: Well, we have had these people warehoused for years. We have to close it down. But where would they go? You can’t just send them to Leavenworth; politicians won’t allow it. It would be easier to get nuclear waste to Yucca Mountain. You can’t bring them into the legal system because once cruelty-induced evidence is thrown out there may not be enough left to sustain an indictment much less a conviction. You could try to create some alternate procedure for trying them, but that would ultimately come down to trying to find a way to admit the fruits of torture into evidence. Yet at least some of them (probably more than when the place opened) harbor extremely ill feelings towards us, and a few among them have actively conspired to do us harm.

If we can’t hold them, can’t convict them in our legal system and could only potentially convict them in a kangaroo court designed to let us rationalize inhumane treatment, what is left? The answer is obvious, of course (if politically treacherous). They have to be released back to their home countries. We have to allow them, even ones with untold secrets, unhatched plots and unstinting hatred towards us, the worst of the worst if you will, to go back where they came from. It would let the rest of the world, even those who “weren’t willing to help out,” know that we will not attempt to profit from lawlessness. We would send the message that we will put ourselves at a practical disadvantage when we run afoul of our own - and the rest of the civilized world’s - standards for decency. And then we better double and triple check our intelligence gathering capabilities.

This Week In Tyranny

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


Dawn Johnsen is taking over the Office of Legal Counsel and she is on record that OLC must be willing to “say no” to the president.  That is good, and her record in this respect is encouraging as well.  On the other hand, Alberto Gonzales said in his confirmation hearings that “I am deeply committed to the rule of law. I have a deep and abiding commitment to the fundamental American principle that we are a nation of laws and not of men.”  How did that turn out?  Similarly, there was a spasm of excitement this week about president-elect Obama’s statement this week: “Under my administration, the United States does not torture.”  Does no one remember that our current president claimed “We do not torture” (more than once) as well?  It is a bit unsettling to see some on the left accept the same kind of advance proclamation of fidelity to the rule of law and firm assurance from those at the top, which they were (properly) deeply skeptical of in the current administration, at face value for the upcoming one.


As detainees are released they are beginning to tell their stories.  I cannot improve upon John Cole: “We have lost our damned minds.”  That is the best available summary of our approach to terrorism.


Guantánamo was born out of contempt for due process.  It is the product of a White House culture that is contemptuous of the Constitution, not of wartime necessity.  So it should not be surprising that the lawless nature of its very existence has been repeated on a larger scale in Afghanistan and orders of magnitude bigger in Iraq.  It’s hard to believe you are a law unto yourself on a small patch of an island but bound by it everywhere else.  God complexes are hard to compartmentalize.


The geniuses behind the unitary executive theory don’t appear to know or care that its principles don’t seem to survive contact with the courts.  Dick Cheney is probably not bothered by this; he just needed it to justify him doing whatever he wanted.  It served that purpose, he’s done with it now, and he may well be indifferent to its fate going forward.  But for the people who really believe this garbage in principle, does it give them pause is slowly, piece by piece, being dismantled?  Does it bother them that their signature cause of the last eight years - and presumably their reputations as well - are being entirely discredited?


UNPACKING JANE: Mayer writes of Alberto J. Mora, General Counsel of the Navy, on page 219.  He learns that abusive treatment is not an aberration originating well down the chain of command, but directed from the top:

“I was under the impression that the interrogation activities described would be unlawful and unworthy of the military services,” Mora said.  “I was appalled by the whole thing.  It was clearly abusive and assaultive.  It was also clear it would get worse.  It could lead to creep, where if the violence didn’t work well, they would double it,” as psychological studies like the Zimbardo experiment at Stanford, in which students guarding mock prisoners became abusive, had shown.  In Mora’s view, the state-sanctioned cruelty was also “clearly contrary to everything we were ever taught about American values…If cruelty is no longer declared unlawful, but instead applied as a matter of policy, it alters the fundamental relationship of man to government.  It destroys the whole notion of individual rights.  The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty.  It applies to all human beings, not just in America - even those designated as ‘unlawful enemy combatants.’  If you make this exception, the whole Constitution crumbles.  It’s a transformative issue.”

Please keep this in mind when someone tries to use the argument that the Phoenix Program in Vietnam is just one example of other times when America has engaged in cruelty and torture of prisoners.  Prior to this it was still unlawful, and if word of it leaked there was an expectation that prosecutions if not convictions would follow.  What has transformed us in the current case is the assertion that all of it is legal.  This is what is different now.