Update from the Heartland
No.389
25.5.09 – 29.5.09
Blog version: http://heartlandupdate.blogspot.com/
No.389
25.5.09 – 29.5.09
Blog version: http://heartlandupdate.blogspot.com/
To all,
This update was published over a week late due to our celebratory cruise [see Update 390].
The follow-up news items:
-- On Monday, a 4.7 magnitude seismic event located in the northeast mountains of the Democratic Peoples Republic of Korea (DPRK) suggested more than a tectonic strain relief episode. Some unofficial analysis suggests the event may have been a 1.4KT nuclear detonation; the official government analysis has not been made public, as yet. This latest provocative action by Grand Dear Leader Umpa-Lumpa comes 31 months after their last attempt [252] and with multiple rocket/missile launches. The speculation in the Press covers the spectrum from general governmental paranoia, to a looming power struggle given Dear Leader’s diminished capacity, as well as other unseen forces at play.
On Tuesday, President Obama nominated Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit to replace Associate Justice David Souter [385]. As the Press has reported, Sotomayor possesses an impressive curriculum vitae. I did a search of my Update text files and other research folders to see if I had reviewed any of her legal writing. No joy! So, I shall remain neutral, observant and critical, until I form an opinion on her nomination. Nonetheless, the oh-so-familiar, contemporary, political practice of personal exaggeration has begun with ideological opponents illuminating the negatives and proponents emphasizing her attributes. Reality is somewhere in the middle. Yet, one statement she made at a Duke University Law School conference in 2005 is particularly troubling to me. She said, “. . . the court of appeals is where policy is made,”. The context was not as the conservative talking-heads have stated or implied, but regardless of the context, her association of “court” and “policy” in the same sentence will be very difficult to rationalize amid the common epithets of “activist judges” and “judicial fiat.” Unfortunately, this Obama nomination seems to have a peculiar smell to it, oddly similar to the Blagojevich [365] appointment of Roland Burris [368] – socially challenging.
The blindly anti-Bush-y and uber-Left crowd went into violent convulsions when President Obama indicated some captive battlefield combatants may be indefinitely detained without judicial or tribunal prosecution. We have many samples to choose from, and I shall offer this version.
“Obama's Guantánamo Appeasement Plan”
by Marjorie Cohn
t r u t h o u t Perspective
http://www.truthout.org/052709A
Cohn declared, “Mr. Obama's capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.” Such statements and writing suggest little understanding of the nature of war, national intelligence, or even international relations. I make no claims to expertise in any of these arenas, but I do know that our failure to recognize our state of war and the captives produced thereof are grievous injuries to our national security and our future ability to wage war successfully. While “W” must shoulder the leadership burden for that failure, he strove to defend this Grand Republic to the best of his (and his lieutenants) ability. We can criticize “W,” but we must recognize his accomplishments as well. The reality of presidential responsibility and the nuances of the War on Islamic Fascism are sinking into Barack Obama and his administration. It is oh-so-easy to hurl denouncements at the President; it is not-so-easy to do the job. Marjorie Cohn is flat-ass wrong and appears to be driven by ideology alone. History does not suffer the same flaws.
As could or should be expected, I read the California Supreme Court’s decision in the case of Strauss v. Horton [CA SC S168047 (2009)] – the judicial review of Proposition 8 (hereafter referred to as Prop H8, for obvious reasons). Six of seven justices concurred with the opinion written by Chief Justice Ronald Marc George. As you will recall, Prop H8 was the response of a willful majority to the court’s judgment in the case of In re Marriage Cases [CA SC S147999 (2008); 43 Cal.4th 757] [336]. As if size matters, the judicial opinion was 175 of 185 pages, followed by 10 pages of lawyers, organizations, and governmental entities that offered arguments for one side or the other; not that it really matters a hoot, but the presenters stacked up on eight pages (against Prop H8) versus 2 pages (in support of Prop H8, led by none other than Kenneth W. Starr, of Whitewater fame). The court took a very narrow view of the question before the bar. Do the People have a right to change the constitution in any manner they see fit? In California, the answer in direct, simplistic terms – yes! Absolutely and without question! The essence of governance from the Constitution, to our common law, and our public conduct grows entirely from We, the People. However, there is a much larger issue of governance – the People versus the government; the individual citizen versus a willful majority. The court went to exhausting lengths to document the legal process history of constitutional amendment versus constitutional revision, in California as well as other states with similar processes – the process was the issue. The court deftly avoided the dichotomy created by Prop H8. What is the court to do when voters legally pass a referendum that is in direct conflict with other provisions of the state constitution and the court’s rulings? The court did not address the broader issue – non-heterosexual marriage. As the majority noted, the broader issue is settled law – In re Marriage Cases and the Domestic Partner Rights and Responsibilities Act of 2003 [Stats. 2003, ch. 421, introduced as Assembly Bill No. 205 (2003-2004 Regular Session)]. The court split thin hairs very finely, concluding that non-heterosexual partners have all the rights and privileges of marriage; they are only denied the use of the term “marriage.” The court essentially rationalized that “separate but equal” provisions of the constitution are acceptable under the California constitution. At least the court unanimously validated the 18,000 same-gender marriages performed in California from the Marriage Cases ruling (May 2008) to the passage of Prop H8 (November 2008), which will give the residents of California a chance to see their fears of homosexual marriage are unfounded, irrational and not worthy of constitutional discrimination. In the end, it was Associate Justice Carlos Roberto Moreno’s dissent that best summarizes Strauss. “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.” The California initiative process allows the majority of citizens who vote in a particular election for a specific proposition to amend the state constitution for ALL citizens. To place a constitutional amendment on the next election ballot, signatures of 8% of residents who voted in the last gubernatorial election are required – 658,151 in this instance; and then, only a simple majority of those who choose to vote for that proposition will pass the measure. This is the choice of California residents. However, all freedom-seeking people must now question whether such easy legal enactment is in the best interests of ALL the people. As we have witnessed with Prop H8, a willful portion of citizens can and did impose their views on a minority. Taken to an extreme, if only 100 residents voted in the 4.Novermeber.2008 election, 51 residents might have imposed their desired legal restrictions on ALL 38.6M residents. Or, from another perspective, if 10M voted, only 5,000,001 votes would be needed to amend the constitution for all [the actual Prop H8 YES vote was: 52.2% of votes cast; 40.5% of registered voters; 30.4% of eligible voters; or 18.1% of residents]. If nothing else, such easy amendment of the state constitution speaks volumes about what havoc voter complacency can wreak upon a community. By the California constitution, the people have a right to discriminate, persecute, and abuse a minority as they see fit . . . at least to the point of direct conflict with the Federal Constitution; however, even that conflict resolution is not a certainty. As some have argued, the Constitution of the United States of America does not exceed a state constitution for the residents of that particular state, and thus, in this case, there is NO Federal constitutional remedy for such discrimination. This case and this ruling illuminates a most basic and fundamental question before We, the People. While the ultimate power and authority of governance belongs with We, the People, do we have a right to deny equal rights to another citizen without a compelling and demonstrable, public-good rationale for such discrimination? The proponents of Prop H8 did not have to present a convincing legal/legislative/judicial argument for the amendment. They simply needed the requisite number of signatures and one more than half the votes for the proposition on election day, which they achieved. Election votes are hard votes. There is no debate, negotiation, compromise, or checks & balances involved in the legislative process; there is no executive signature required; and, as we bear witness, there is no judicial review. There is no spokesman for the voters; there is only the vote. I also acknowledge that the law does not require that voter initiatives explain themselves or show cogent rationale. As a consequence, the courts have little substantiating evidence or information by which to aid interpretation. Most of those examples the court used reduced the rights of criminal defendants or convicted felons. What transgression against society has a person who chooses a life partner of the same gender committed? How have they offended the public good? As illuminated in Strauss, California constitutional (legal) amendments have been reduced to an opinion poll, and most citizens do not involve themselves in the law, either legislative or judicial. Many are not even familiar with contemporary events and issues. So much hinges upon the words on the initiative. Would California residents have voted for an amendment that read, “Any person who chooses a marriage partner of the same gender shall be denied equal protection under the law,” rather than “Only marriage between a man and a woman is valid or recognized in California?” Beyond the meaningless hypothetical question, we must ask, what happens when the people create a conflict between one portion of the constitution and another? Who decides which is more important? How do they decide? I do not have answers, but I do have a lot of questions. Nonetheless, the neat thing is, regardless of the discrimination by a willful majority or the pronouncements by the Judiciary, one way or the other, homosexual couples move on with their lives and live as they determine, as they see fit, despite the prejudice and discrimination of the majority. God bless them, for having the strength to pursue their Happiness, without the protections the majority enjoys. The willful majority may force them to hide, deny them equal protection under the law, and reject those things that are meaningful to our lives, but they remain who they are, and they are living their lives as they see fit despite the disapproval of their neighbors.
Once I completed reading Strauss v. Horton, and I was writing my review and opinion, I asked our little cruise group how they would feel if they lived in California, could supposedly “marry” with all the rights and privileges of marriage, but they could NOTE refer to themselves as married. Jacy answered, “Oh no! If I am told, you are a woman; you must vote over there. You cannot vote with the men. That is not acceptable. Either we are equal, or we are not!” I believe Jacy’s response fairly well summarizes the issue at hand in Marriage Cases, Prop H8, and Strauss v. Horton.
I am left with so many questions. Why are so many people mortally afraid of homosexuals? What is it they see that I do not see? Are many of us fearful that homosexuality is contagious, that if we accept it in other citizens that somehow we will be contaminated, or worse our children will become irreparably infected? What is it that makes a willful majority of voting citizens so bloody crazy when it comes to homosexuality that they must dictate to the minority how they should live their private lives?
An observation by a humble citizen:
When the constitutions of the original 13 states as well as the Articles of Confederation [1781] and the Constitution of the United States of America [1787] were drafted, signed and ratified, the term “man” or “citizen” was considered (implied) to mean Caucasian (European ancestry), male, educated, land (property) owners – period. We, the People, did not expand that definition until 1868. We did not embrace women as citizens under the law until 1920. Although citizens with dark skin pigmentation had been emancipated from the bondage of slavery in 1863, they did not achieve equal rights under the law until 1965, as full, free, voting citizens. Married, adult, heterosexual, intra-racial couples were denied access to contraceptive information until 1965. Interracial couples could not legally marry in more than a few states, until 1967. We gradually overcame our fears of the unwashed masses, dark skin pigmentation, and the female gender. One day, we will look back upon what has happened in this time and wonder, what were they so afraid of in homosexuality? Our successors will view our antipathy toward non-heterosexuals with the same dismay we view the doctrinaire views and actions of the segregationists.
News from the economic front:
-- The S&P/Case-Shiller U.S. National Home Price Index continued its multiyear tumble in March, and shows no near-term signs of abating. For the first quarter, home prices dropped 19.1% from a year earlier, the biggest quarterly decline in the index’s 21-year history, and at levels comparable to 4th Quarter 2002.
-- Banco Santander SA, one of the largest channels of investor money to Bernie Madoff, agreed to pay US$235M to settle potential legal claims by Irving Picard of Baker & Hostetler LLP, which Picard claims amounts to 85% of what he sought from Santander’s investment fund.
-- As suggested last week [388], the Russian Internet-investment group, Digital Sky Technologies (DST), made a US$200M investment in the social-networking company Facebook in exchange for preferred stock that represents a 1.96% equity stake. DST has also indicated that it will offer to buy at least US$100M of Facebook common stock from existing stockholders.
-- This was a fitful final week for General Motors prior to the government’s imposed and adjusted-once, restructuring deadline. The Wall Street Journal reported that the United Auto Workers (UAW) accepted a deal that will lead to the union owning 17.5% of the company as part of GM’s obligation to fund future retiree health-care obligations. Under the deal, GM will place US$10B of assets into a Voluntary Employee Beneficiary Association, or VEBA, on 1.January.2010. The UAW will also receive a new note for US$2.5B, payable in cash, that will be paid out in three installments taking place in 2013, 2015, and 2017. UAW members ratified the new labor agreement with General Motors with 74% in favor. More importantly to us taxpayers under the company’s restructuring plan, the U.S. Government (USG), i.e., We, the People, will hold a 72.5% stake, and will boost our support for GM by as much as US$50B. According to the WSJ, the USG will keep GM closely held for up to 18 months (I’m not exactly sure what that means). Secured bank lenders will get full recovery on US$6B in loans. GM announced that bondholders will gain a 10% stake in the new GM – with an option to purchase up to 15% in common stock. The company’s objective is to have only about US$10-12B in debt once it emerges from bankruptcy. Lastly, the Wall Street Journal also reported that negotiators from GM, Magna International and the German government reached a tentative agreement on Friday that would see Magna take a major unspecified stake in GM’s European operations.
-- Arthur Samberg, a well known hedge-fund manager, announced that he is closing down his company, Pequot Capital Management Inc., amid public disclosures about an ongoing investigation into possible insider trading, which have irreparable tainted his company.
-- Citigroup is negotiating with the Securities and Exchange Commission (SEC) to settle an investigation into whether the bank misled investors by not properly disclosing the amount of troubled mortgage assets it held as the market began to deteriorate in 2007.
-- The Federal Reserve is limiting how much of anticipated future revenue can be counted by banks to help them fill the capital holes illuminated by the government's stress tests. As a consequence, Bank of America must come up with billions of dollars in capital from other sources. Other stress-tested banks involved include PNC Financial Services Group and Wells Fargo. The affected banks face an 8.June.2009 deadline for government approval of their capital-raising plans.
-- Time-Warner has decided to spinoff America On-Line (AOL) as a standalone, publicly traded company focused on Web services – a not-too-surprising turn of events, I must say.
-- Microsoft formally unveiled its new search service Bing, in an attempt to compete with Google, Yahoo and others. This seems a day-late and a dollar-short to me, but we shall see.
-- The Wall Street Journal reported that European Union antitrust regulators are poking at Microsoft again – this time due to the company’s long lead in the Web browser market (Netscape used to be the big dog). To date, Microsoft included only its Internet Explorer browser with Windows. Apparently, the EU is considering an order that would force Microsoft to install rival Web browsers with their Windows operating system software.
-- Bank of America announced that O. Temple Sloan Jr. resigned from its board of directors, after serving in that role for 13 years. He was the chairman of the board’s executive committee, a member of the corporate governance committee, and had been the lead director since May 2006 Sloan had also served on the compensation and benefits committee. Wouldn’t you have just loved to listen in on that little dynamic within the bank’s board?
Comments and contributions from Update no.388:
“Three items, as brief as I can make them:
“(A) First and most, enjoy your vacation. I use the "deathbed question" method of setting priorities: "Whenever I realize that I am dying, what will I wish I'd spent more time doing?" The cruise would be right at the top of my list.
“(B) Second, I agree with your comment on respecting others' religion. I am not Christian, but I respect those who live out their beliefs. I first learned that from the Amish, who live ‘ff grid,’ don't own or drive motor vehicles and live modestly. That respect also extends to Jehovah’s Witnesses in some countries who risk their lives to live out their beliefs. However, I don't evangelize my beliefs and I don't waste my time or respect on those who attempt to evangelize me. ‘Respect,’ in my world, does not include telling me how wrong you think I am at a basic level or using psychological tricks to spread your religion.
“(C) Third, I suspect that you overestimate the background of your average reader. I do not know how to read the vote information in your posting on the two new laws signed by the President. The credit card reform received plenty of media attention, but I was not aware of the military acquisition bill and would like to know more about that. We have a mutual interest in tax dollars, and the military necessarily consumes a high percentage of the national budget.”
My reply:
(A) “Deathbed Question” method . . . excellent. We are at an age when such adventures are more attractive. Everyone is really excited, so I am fairly certain we will all have great stories to tell upon our return.
(B) Your definition of “respect” appears to be much closer to mine. Somehow, I just do not think a Muslim (or any other non-Christian) will see “sharing the Gospel of Jesus Christ” as showing respect for their religion. As I wrote, Mohler offers an excellent implicit rationale for the separation of church & State.
(C) My urge to cover many topics with some semblance of brevity leads me to contractions. My apologies. I include the vote records more for history, i.e., once I have it, I save it in my text, so I do not have to re-search it again. FYI: my congressional vote notation comes from the Library of Congress, e.g., Senate: 95-0-0-4(1) = the votes in sequence – yes-no-present-not voting (missing). Present = abstention. Not Voting = did not show up for the vote. Missing = not accounted for, e.g., the Minnesota Senate seat that remains unfilled. I hate to be a naysayer, but . . . the weapons acquisition bill appears like so many previous attempts to reform the Defense acquisition process. The success of this effort will depend upon the people who execute the process. The Defense acquisition structure is massive and deeply rooted; it cannot be reformed by simply passing laws. We shall soon see how Barack’s folks do. That said, I must say, the military inherently pushes technology to its limits, which adds significant risk & uncertainty – not properly recognized.
. . . a follow-up comment:
“I knew I'd missed something in my earlier comment. This is it: "we need far bolder initiatives to make alternative personal transportation means broadly available to the public." As a cyclist, transit rider and pedestrian, I applaud and agree.”
Comments from another contributor:
“From what I understand, Bolden is a former astronaut. That's probably the sort of person you want in the top spot at NASA, someone who was in the trenches. Maybe he can kick NASA in the butt and really get them focused on returning to the Moon, going to Mars, and just get folks excited about the Space Program a la the 1960s.
“As far as I'm concerned, most people really have no clue what torture is. Calling facial slaps and sleep deprivation torture is inane when you look at what the Japanese did to POWs in WWII, or the stuff that happened under the Khmer Rouge or Idi Amin or Saddam. What their lackies did to their own people is in a whole other universe compared to our tactics at Gitmo. As far as I'm concerned, if waterboarding or slapping someone in the face or throwing a bug in the room with some pile of crap can help prevent an attack that will kill innocent people, I'm for it.
“Nancy Pelosi. She's not too bright, she has no leadership ability, her only argument for anything is to blame George Bush. There are First Graders who could do a better job as Speaker of the House than her.
“Have fun on your cruise. I say don't worry about the blog. Everyone needs time off. Speaking of which, now that we're into summer and there's not many games for me to cover, it's time for me to have some vacation time.
“Happy Memorial Day!! And thank you and all other veterans for your service to this great country and guaranteeing the freedoms we all enjoy.”
My response:
Yep, same Charlie Bolden. He flew four missions as I recall. Knowing Charlie, I expect he will make an excellent administrator.
The only one of the ten OLC memo EIT items that could remotely be called torture is waterboarding, since it does produce a sensation of drowning and “the threat of imminent death.” I can, do and will argue that the technique causes no injury. Used simply to torment an individual, it is torture. Used to “induce” a captured, battlefield combatant leader to give up the information he possesses, it is an EIT. Used properly, the captured leader can avoid any EIT – no.1 through no.10 – he simply answers all the interrogator’s questions truthfully and completely. Unfortunately, the vast majority of citizens who wish to pass judgment on “W,” the OLC lawyers and their memoranda, the interpretation of the law, and even the definition of torture or intelligence interrogation, get a queasy sensation in their stomach when they consider the brutality of man, the ugliness of war, and the unclean process of intelligence interrogation.
Prisoners of war have been confined remotely for the duration of every war. Common warriors were repatriated as soon as the war was over. Leaders, or perpetrators of war crimes, were tried before tribunals. Captured battlefield combatants in the War on Islamic Fascism do not even possess the legal status of prisoners of war – they do not qualify – and, 80-90% of those captured are probably common warriors and would never experience EIT no.1, let alone EIT no.5. There is a huge difference between intelligence interrogation and torment for the amusement of the guards.
I am not one of those citizens who will underestimate Nancy Pelosi. I may vehemently disagree with her politics. I may be revolted by her lack of integrity. However, I have a healthy respect for the power she has acquired. She did not become Speaker of the House by happenstance, good fortune or divine providence.
Another comment:
“Where are you going on your cruise? Hope you and your family have a wonderful time, and a safe trip. Bon voyage! Happy Anniversary too!”
My reply:
The original itinerary was: Miami, sea, Grand Cayman, Isla Roatan (Honduras), Belize, Cozumel, sea, Miami. Due to the travel restrictions on Mexico, the route’s last two days are now: sea, Key West, Miami. We are all excited. The only cruises I’ve done are the grey type. Happy Memorial Day.
A different contribution:
“I hope you have a nice cruise. We've never been on one. Please let me know what you think, and do send along a few pictures.
“I'm just back from attending a wedding at lake Tahoe. Low 70s, snow on the peaks all around, tall pines, beautiful water, and clean air. What a setting. I think that was my seventh or eighth time there. Always nice. Always gets me to thinking to how I might be able to afford to live there. I can never seem to figure it out.
“I watched a program last night entitled Medal of Honor. Every story brought tears to my eyes; Iwo Jima always being the most emotional for me. To think that we pay spoiled brats millions of dollars in salary and endorsements for playing basketball and treating them like heroes. It disgusts me. How can we teach our kids values?”
My response:
I’ve been on quite a few cruises . . . all of the grey variety. LOL This will be a first for me as well; actually a first for all of us except Jeanne, who enjoyed her first cruise last year [326]. I’ll attempt a reasonable travelogue. More to follow.
Lake Tahoe is magnificent country . . . always has been and hopefully always will be. I trust y’all had a most enjoyable time of it.
Teaching kids values and life lessons is the responsibility of each and every parent. One day, society will hold parents accountable for the character of the children they foist upon the rest of us. Someday?
A contribution from another person:
“Again a couple of points regarding torture or enhanced interrogation techniques -- First, torture is illegal under the laws of the U.S. and treaties to which the U.S. is party. This seems to be overlooked by most commentators. Also, the Bush Administration stepped back from the use of waterboarding and the other harshest techniques shortly after the disclosures from Abu Ghraib in 2004. In other words, the decisions that Cheney says put the country at risk were taken in mid-2004 and continued through half of his term in office.
“Regarding the point that Abu Ghraib were the works of a few bad apples—note the comment below. The SASC report held that the techniques had been introduced into Abu Ghraib under the authority of SecDef Rumsfeld. And how do transportation company National Guard troops who were transferred to prison guard duty (without any formal training) come to use the same interrogation techniques employed by Israeli intelligence on Arab prisoners?
“(from an article in Harpers)
“‘The events at Abu Ghraib were ‘disgraces’ and violations of ‘law and decency.’ But as the report of Lieutenant General Randall Mark Schmidt revealed, the techniques applied at Abu Ghraib and those used at Gitmo were identical, both drawn directly from the Bush Administration program. Just to take a notable example, recall the photograph of Lyndie England holding a prisoner by a dog leash. Schmidt disclosed that this was an accepted technique under the heading of ‘pride and ego down’ called ‘walking the dog.’ The Senate Armed Services Committee's unanimous report concluded that the program had been introduced at Abu Ghraib with authority of Secretary of Defense Rumsfeld.’
“(Additional comments by a former military interrogator- note that Abu Ghraib and torture became a prime recruiting tool. It hasn’t helped us be any safer – at least our troops.)
“‘As a senior interrogator in Iraq (and a former criminal investigator), there was a lesson I learned that served me well: there's more to be learned from what someone doesn't say than from what they do say. Let me dissect former Vice President Dick Cheney's speech on National Security using this model and my interrogation skills.’
“‘First, VP Cheney said, ‘This recruitment-tool theory has become something of a mantra lately... it excuses the violent and blames America for the evil that others do.’ He further stated, ‘It is much closer to the truth that terrorists hate this country precisely because of the values we profess and seek to live by, not by some alleged failure to do so.’ That is simply untrue. Anyone who served in Iraq, and veterans on both sides of the aisle have made this argument, knows that the foreign fighters did not come to Iraq en masse until after the revelations of torture and abuse at Abu Ghraib and Guantánamo Bay. I heard this from captured foreign fighters day in and day out when I was supervising interrogations in Iraq. What the former vice president didn't say is the fact that the dislike of our policies in the Middle East were not enough to make thousands of Muslim men pick up arms against us before these revelations. Torture and abuse became Al Qaida’s number one recruiting tool and cost us American lives.’
“‘Secondly, the former vice president, in saying that waterboarding is not torture, never mentions the fact that it was the United States and its Allies, during the Tokyo Trials, that helped convict a Japanese soldier for war crimes for waterboarding one of Jimmie Doolittle's Raiders. Have our morals and values changed in fifty years? He also did not mention that George Washington and Abraham Lincoln both prohibited their troops from torturing prisoners of war. Washington specifically used the term ‘injure’ -- no mention of severe mental or physical pain.’
“‘Thirdly, the former vice president never mentioned the Senate testimony of Ali Soufan, the FBI interrogator who successfully interrogated Abu Zubaydah and learned the identity of Jose Padilla, the dirty bomber, and the fact that Khalid Sheikh Mohammad (KSM) was the mastermind behind 9/11. We'll never know what more we could have discovered from Abu Zubaydah had not CIA contractors taken over the interrogations and used waterboarding and other harsh techniques. Also, glaringly absent from the former vice president’s speech was any mention of the fact that the former administration never brought Osama bin Laden to justice and that our best chance to locate him would have been through KSM or Abu Zubaydah had they not been waterboarded.’
“‘In addition, in his continued defense of harsh interrogation techniques (AKA torture and abuse), VP Cheney forgets that harsh techniques have ensured that future detainees will be less likely to cooperate because they see us as hypocrites. They are less willing to trust us when we fail to live up to our principles. I experienced this firsthand in Iraq when interrogating high-ranking members of Al Qaida, some of whom decided to cooperate simply because I treated them with respect and civility.’
“‘The former vice president is confusing harshness with effectiveness. An effective interrogation is one that yields useful, accurate intelligence, not one that is harsh. It speaks to a fundamental misunderstanding of interrogations, the goal of which is not to coerce information from a prisoner, but to convince a prisoner to cooperate.’
“‘Finally, the point that is most absent is that our greatest success in this conflict was achieved without torture or abuse. My interrogation team found Abu Musab Al Zarqawi, the former leader of Al Qaida in Iraq and murderer of tens of thousands. We did this using relationship-building approaches and non-coercive law enforcement techniques. These worked to great effect on the most hardened members of Al Qaida -- spiritual leaders who had been behind the waves of suicide bombers and, hence, the sectarian violence that swept across Iraq. We convinced them to cooperate by applying our intellect. In essence, we worked smarter, not harsher.’”
. . . with a follow-up comment:
“As a further note, General Petraeus opposes EITs and supports the move to close Gitmo.
“In an interview this past weekend with Radio Free Europe, Gen. David Petraeus said that he supports President Obama's decision to close the Guantánamo Bay detention facility and opposes the use of enhanced interrogation techniques:
“‘PETRAEUS: In fact, I have long been on record as having testified and also in helping write doctrine for interrogation techniques that are completely in line with the Geneva Convention. And as a division commander in Iraq in the early days, we put out guidance very early on to make sure that our soldiers, in fact, knew that we needed to stay within those guidelines.’
“‘With respect to Guantánamo, I think that the closure in a responsible manner, obviously one that is certainly being worked out now by the Department of Justice - I talked to the attorney general the other day [and] they have a very intensive effort ongoing to determine, indeed, what to do with the detainees who are left, how to deal with them in a legal way, and if continued incarceration is necessary - again, how to take that forward.’
“‘But doing that in a responsible manner, I think, sends an important message to the world, as does the commitment of the United States to observe the Geneva Convention when it comes to the treatment of detainees.’”
My response:
Thank you for taking to the time to continue the education of Cap.
In an effort to avoid re-hacking the same ground, I shall attempt a different tack, hopefully for a more progressive and constructive end.
Let us set aside the argument over waterboarding, as it is contaminating the debate. In fact, for the moment, let us set aside the lightning rod issue of “torture.” To frame our discussion . . .
A. Are we at war?
B. Does the President of the United States have the authority to carry out the foreign policy of the Nation? . . . including the conduct of war?
C. Is there a difference (a distinction) between national intelligence interrogation and criminal prosecutorial interrogation?
D. If the answer to Question B is yes, then what “inducements” are or should be available to intelligence interrogators beyond those defined by judicial interpretation of the 4th, 5th and 8th Amendments?
E. Is there a difference (a distinction) between the status of a captured battlefield combatant; a prisoner of war as defined by Geneva Convention III; and, an incarcerated felonious criminal?
F. Regardless of the answer to Question E, does a captive battlefield combatant and a prisoner of war have full habeas corpus and constitutional protections, and thus full access to the criminal justice system?
G. Depending on the answer to Question E, is there a limit to the duration of detention of each category of “captive?”
H. Assuming the Guantánamo detention facility is closed outright and completely as POTUS ordered by his 22.January.2009 Executive Order, what do you propose we do with the remaining battlefield combatant captives? (The US AG will act on behalf of the administration, but I would truly appreciate your view).
Hopefully, these questions and subsequent branch threads will help me progress this discussion. That said, allow me to emphatically state that the conduct of the 2003-2004 Abu Graib guards was immature, foolish, counter-productive and otherwise a really bad idea . . . not just the treatment of the captives but the idiocy of taking “entertainment” photographs. There is NO rationale to justify their conduct. Any activity carried out for the “entertainment” of guards is a clear violation of Geneva III, regardless of the context. I must also add that neither Yoo nor Bybee envisioned such conduct.
Gen Petraeus and LtGen Schmidt are soldiers, fighting a war. They are only interested in those activities that enhance their warfighting ability and will resist any activity they deem counter-productive. They are also not responsible for national intelligence. Given the mishandling of the Bush administration regarding the whole process of captured battlefield combatants, I would hold the same opinion as the generals, if I had stars on my collar points. The Bush administration allowed a whole mythology to bloom as a consequence of not having a clear, rehearsed plan for handling the inevitable – one of many strategic mistakes I lay upon “W,” Rummie and their cronies. They allowed Guantánamo to become politically toxic, but I will argue it was precisely the correct thing to do, if it had been handled differently. Admiral Farragut’s combat axiom serves the battle well, however, it is a disastrous diplomatic approach.
. . . round two:
“I mean to work on the questions you raised-- but I am crashing on a couple of things, trying to get ready to go TDY to Vienna next week. Setting aside waterboarding is a good idea, but it isn't the only one of the EITs that is/can be considered torture. Sleep deprivation and temperature extremes had been authorized and they, especially when combined, can be torture. Actually, a number of detainees have died under these techniques.
“Question A- are we at war?-- Seemingly a no brainer- yes. But on further examination, maybe not so clear cut. Congress had not made a declaration of war. We have not gone to conscription-- we haven't even raised taxes, but have, during the Bush Administration, lowered taxes. Our Armed Forces are certainly at war- in open combat, but the rest of the country is not on a war-time footing. And if we are at war, who are we at war with? Not 'terrorism', which is a means. And if we are at war, why? Especially in Iraq. We have been given a number of reasons for going into Iraq and waging war, and those reasons change as they become overcome by events.
“I know SecDef Gates considers himself now as the ‘Secretary of War’ -- and has done a great job of turning things around from the disastrous reign of his predecessor. Anyway, not as cut and dried an answer as one would think.
“Question B-- the President does have the authority to carry out the foreign policy of the Nation- but he is subject to the laws of the Nation and the treaties to which the U.S. is party to. Further, the Congress, through its power of the purse, has a hand in shaping the foreign policy of the country -- or at least it should. Plainly, the President does not have a free hand to do anything he desires.”
. . . my response to round two:
I am far more interested in critical dialogue / debate than prompt reply. Take your time. Further, we are leaving for a week long cruise in the Western Caribbean with our granddaughters & their parents (our daughter & her partner). So, this week’s Update will probably take a few weeks to see the light of day.
Here are some additional thoughts to what you have written so far.
A. True; Congress did not pass a bill with the explicit words “declaration of war.” The Authorization for Use of Military Force [PL 107-40] did not mention anything about putting the Nation of a war footing. As I have written earlier, one of many presidential failures I place on W’s shoulders is just that point – not mobilizing the country for war. “W” & Rummie thought they could fight this war on the cheap, and they have proven once again that it is simply war by half-measures by another name. As you noted and I agree, “W” did not provide us with sufficient rationale or give us a since of direction – other than we will defeat the bastards. The answer to your question – if we are at war, why? – offers a different perspective of my original question. My answer: we were attacked by an extra-national group of religiously motivated people who threaten our way-of-life, our sovereignty, and our international interests. Our attackers are part of a much larger group of religious fundamentalists who seek domination of their religion over all others, and exhibit no tolerance for the personal, free choice of anyone else. We face religious and ideological fascism and the use of terrorism against innocent citizens to further their objectives. We fight for freedom. We fight to protect the rights of every citizen to freely and without intimidation choose their religion, their politics, their pursuit of Happiness. That is why we are at war.
I agree re: Bob Gates. He appears to have taken a far more realistic and pragmatic approach to fighting the War on Islamic Fascism. Yet, like his predecessor, he will not likely get the resources he should have, which means this war will be far more protracted than otherwise need be. C’est la guerre.
B. Yes, in general, agreed. However, as both Yoo & Bybee wrote, the President also has the authority to suspend a treaty as conditions warrant. Yes, Congress can and should be involved in foreign policy. Yet, I do not recall Congress being consulted in the formation of the P.O. Box 1142 interrogation unit of World War II [246] or being asked to sanction Operation OVERLORD. We may not like how the President chooses to wage war successfully, but it is still his responsibility alone by the Constitution. Nonetheless, another one of W’s failures was his willingness to use that authority in a near, “damn the torpedoes,” unilateral execution of his authority. Part of this debate centers upon ‘ability’ to act and ‘wisdom’ to act, in that he may possess the authority under the Constitution, thus the ability to act, but having the wisdom to recognize that he must bring along a lot of citizens with him to ensure proper support to “wage war successfully.” How the President uses his constitutional authority is the critical missing “legal” element. We depend on the judgment of the individual who holds the office. That said, we may not like how “W” executed his authority, but I am quite reluctant to constrain or restrain that presidential authority.
“That’s just my opinion, but I could be wrong.”
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
This update was published over a week late due to our celebratory cruise [see Update 390].
The follow-up news items:
-- On Monday, a 4.7 magnitude seismic event located in the northeast mountains of the Democratic Peoples Republic of Korea (DPRK) suggested more than a tectonic strain relief episode. Some unofficial analysis suggests the event may have been a 1.4KT nuclear detonation; the official government analysis has not been made public, as yet. This latest provocative action by Grand Dear Leader Umpa-Lumpa comes 31 months after their last attempt [252] and with multiple rocket/missile launches. The speculation in the Press covers the spectrum from general governmental paranoia, to a looming power struggle given Dear Leader’s diminished capacity, as well as other unseen forces at play.
On Tuesday, President Obama nominated Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit to replace Associate Justice David Souter [385]. As the Press has reported, Sotomayor possesses an impressive curriculum vitae. I did a search of my Update text files and other research folders to see if I had reviewed any of her legal writing. No joy! So, I shall remain neutral, observant and critical, until I form an opinion on her nomination. Nonetheless, the oh-so-familiar, contemporary, political practice of personal exaggeration has begun with ideological opponents illuminating the negatives and proponents emphasizing her attributes. Reality is somewhere in the middle. Yet, one statement she made at a Duke University Law School conference in 2005 is particularly troubling to me. She said, “. . . the court of appeals is where policy is made,”. The context was not as the conservative talking-heads have stated or implied, but regardless of the context, her association of “court” and “policy” in the same sentence will be very difficult to rationalize amid the common epithets of “activist judges” and “judicial fiat.” Unfortunately, this Obama nomination seems to have a peculiar smell to it, oddly similar to the Blagojevich [365] appointment of Roland Burris [368] – socially challenging.
The blindly anti-Bush-y and uber-Left crowd went into violent convulsions when President Obama indicated some captive battlefield combatants may be indefinitely detained without judicial or tribunal prosecution. We have many samples to choose from, and I shall offer this version.
“Obama's Guantánamo Appeasement Plan”
by Marjorie Cohn
t r u t h o u t Perspective
http://www.truthout.org/052709A
Cohn declared, “Mr. Obama's capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.” Such statements and writing suggest little understanding of the nature of war, national intelligence, or even international relations. I make no claims to expertise in any of these arenas, but I do know that our failure to recognize our state of war and the captives produced thereof are grievous injuries to our national security and our future ability to wage war successfully. While “W” must shoulder the leadership burden for that failure, he strove to defend this Grand Republic to the best of his (and his lieutenants) ability. We can criticize “W,” but we must recognize his accomplishments as well. The reality of presidential responsibility and the nuances of the War on Islamic Fascism are sinking into Barack Obama and his administration. It is oh-so-easy to hurl denouncements at the President; it is not-so-easy to do the job. Marjorie Cohn is flat-ass wrong and appears to be driven by ideology alone. History does not suffer the same flaws.
As could or should be expected, I read the California Supreme Court’s decision in the case of Strauss v. Horton [CA SC S168047 (2009)] – the judicial review of Proposition 8 (hereafter referred to as Prop H8, for obvious reasons). Six of seven justices concurred with the opinion written by Chief Justice Ronald Marc George. As you will recall, Prop H8 was the response of a willful majority to the court’s judgment in the case of In re Marriage Cases [CA SC S147999 (2008); 43 Cal.4th 757] [336]. As if size matters, the judicial opinion was 175 of 185 pages, followed by 10 pages of lawyers, organizations, and governmental entities that offered arguments for one side or the other; not that it really matters a hoot, but the presenters stacked up on eight pages (against Prop H8) versus 2 pages (in support of Prop H8, led by none other than Kenneth W. Starr, of Whitewater fame). The court took a very narrow view of the question before the bar. Do the People have a right to change the constitution in any manner they see fit? In California, the answer in direct, simplistic terms – yes! Absolutely and without question! The essence of governance from the Constitution, to our common law, and our public conduct grows entirely from We, the People. However, there is a much larger issue of governance – the People versus the government; the individual citizen versus a willful majority. The court went to exhausting lengths to document the legal process history of constitutional amendment versus constitutional revision, in California as well as other states with similar processes – the process was the issue. The court deftly avoided the dichotomy created by Prop H8. What is the court to do when voters legally pass a referendum that is in direct conflict with other provisions of the state constitution and the court’s rulings? The court did not address the broader issue – non-heterosexual marriage. As the majority noted, the broader issue is settled law – In re Marriage Cases and the Domestic Partner Rights and Responsibilities Act of 2003 [Stats. 2003, ch. 421, introduced as Assembly Bill No. 205 (2003-2004 Regular Session)]. The court split thin hairs very finely, concluding that non-heterosexual partners have all the rights and privileges of marriage; they are only denied the use of the term “marriage.” The court essentially rationalized that “separate but equal” provisions of the constitution are acceptable under the California constitution. At least the court unanimously validated the 18,000 same-gender marriages performed in California from the Marriage Cases ruling (May 2008) to the passage of Prop H8 (November 2008), which will give the residents of California a chance to see their fears of homosexual marriage are unfounded, irrational and not worthy of constitutional discrimination. In the end, it was Associate Justice Carlos Roberto Moreno’s dissent that best summarizes Strauss. “Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.” The California initiative process allows the majority of citizens who vote in a particular election for a specific proposition to amend the state constitution for ALL citizens. To place a constitutional amendment on the next election ballot, signatures of 8% of residents who voted in the last gubernatorial election are required – 658,151 in this instance; and then, only a simple majority of those who choose to vote for that proposition will pass the measure. This is the choice of California residents. However, all freedom-seeking people must now question whether such easy legal enactment is in the best interests of ALL the people. As we have witnessed with Prop H8, a willful portion of citizens can and did impose their views on a minority. Taken to an extreme, if only 100 residents voted in the 4.Novermeber.2008 election, 51 residents might have imposed their desired legal restrictions on ALL 38.6M residents. Or, from another perspective, if 10M voted, only 5,000,001 votes would be needed to amend the constitution for all [the actual Prop H8 YES vote was: 52.2% of votes cast; 40.5% of registered voters; 30.4% of eligible voters; or 18.1% of residents]. If nothing else, such easy amendment of the state constitution speaks volumes about what havoc voter complacency can wreak upon a community. By the California constitution, the people have a right to discriminate, persecute, and abuse a minority as they see fit . . . at least to the point of direct conflict with the Federal Constitution; however, even that conflict resolution is not a certainty. As some have argued, the Constitution of the United States of America does not exceed a state constitution for the residents of that particular state, and thus, in this case, there is NO Federal constitutional remedy for such discrimination. This case and this ruling illuminates a most basic and fundamental question before We, the People. While the ultimate power and authority of governance belongs with We, the People, do we have a right to deny equal rights to another citizen without a compelling and demonstrable, public-good rationale for such discrimination? The proponents of Prop H8 did not have to present a convincing legal/legislative/judicial argument for the amendment. They simply needed the requisite number of signatures and one more than half the votes for the proposition on election day, which they achieved. Election votes are hard votes. There is no debate, negotiation, compromise, or checks & balances involved in the legislative process; there is no executive signature required; and, as we bear witness, there is no judicial review. There is no spokesman for the voters; there is only the vote. I also acknowledge that the law does not require that voter initiatives explain themselves or show cogent rationale. As a consequence, the courts have little substantiating evidence or information by which to aid interpretation. Most of those examples the court used reduced the rights of criminal defendants or convicted felons. What transgression against society has a person who chooses a life partner of the same gender committed? How have they offended the public good? As illuminated in Strauss, California constitutional (legal) amendments have been reduced to an opinion poll, and most citizens do not involve themselves in the law, either legislative or judicial. Many are not even familiar with contemporary events and issues. So much hinges upon the words on the initiative. Would California residents have voted for an amendment that read, “Any person who chooses a marriage partner of the same gender shall be denied equal protection under the law,” rather than “Only marriage between a man and a woman is valid or recognized in California?” Beyond the meaningless hypothetical question, we must ask, what happens when the people create a conflict between one portion of the constitution and another? Who decides which is more important? How do they decide? I do not have answers, but I do have a lot of questions. Nonetheless, the neat thing is, regardless of the discrimination by a willful majority or the pronouncements by the Judiciary, one way or the other, homosexual couples move on with their lives and live as they determine, as they see fit, despite the prejudice and discrimination of the majority. God bless them, for having the strength to pursue their Happiness, without the protections the majority enjoys. The willful majority may force them to hide, deny them equal protection under the law, and reject those things that are meaningful to our lives, but they remain who they are, and they are living their lives as they see fit despite the disapproval of their neighbors.
Once I completed reading Strauss v. Horton, and I was writing my review and opinion, I asked our little cruise group how they would feel if they lived in California, could supposedly “marry” with all the rights and privileges of marriage, but they could NOTE refer to themselves as married. Jacy answered, “Oh no! If I am told, you are a woman; you must vote over there. You cannot vote with the men. That is not acceptable. Either we are equal, or we are not!” I believe Jacy’s response fairly well summarizes the issue at hand in Marriage Cases, Prop H8, and Strauss v. Horton.
I am left with so many questions. Why are so many people mortally afraid of homosexuals? What is it they see that I do not see? Are many of us fearful that homosexuality is contagious, that if we accept it in other citizens that somehow we will be contaminated, or worse our children will become irreparably infected? What is it that makes a willful majority of voting citizens so bloody crazy when it comes to homosexuality that they must dictate to the minority how they should live their private lives?
An observation by a humble citizen:
When the constitutions of the original 13 states as well as the Articles of Confederation [1781] and the Constitution of the United States of America [1787] were drafted, signed and ratified, the term “man” or “citizen” was considered (implied) to mean Caucasian (European ancestry), male, educated, land (property) owners – period. We, the People, did not expand that definition until 1868. We did not embrace women as citizens under the law until 1920. Although citizens with dark skin pigmentation had been emancipated from the bondage of slavery in 1863, they did not achieve equal rights under the law until 1965, as full, free, voting citizens. Married, adult, heterosexual, intra-racial couples were denied access to contraceptive information until 1965. Interracial couples could not legally marry in more than a few states, until 1967. We gradually overcame our fears of the unwashed masses, dark skin pigmentation, and the female gender. One day, we will look back upon what has happened in this time and wonder, what were they so afraid of in homosexuality? Our successors will view our antipathy toward non-heterosexuals with the same dismay we view the doctrinaire views and actions of the segregationists.
News from the economic front:
-- The S&P/Case-Shiller U.S. National Home Price Index continued its multiyear tumble in March, and shows no near-term signs of abating. For the first quarter, home prices dropped 19.1% from a year earlier, the biggest quarterly decline in the index’s 21-year history, and at levels comparable to 4th Quarter 2002.
-- Banco Santander SA, one of the largest channels of investor money to Bernie Madoff, agreed to pay US$235M to settle potential legal claims by Irving Picard of Baker & Hostetler LLP, which Picard claims amounts to 85% of what he sought from Santander’s investment fund.
-- As suggested last week [388], the Russian Internet-investment group, Digital Sky Technologies (DST), made a US$200M investment in the social-networking company Facebook in exchange for preferred stock that represents a 1.96% equity stake. DST has also indicated that it will offer to buy at least US$100M of Facebook common stock from existing stockholders.
-- This was a fitful final week for General Motors prior to the government’s imposed and adjusted-once, restructuring deadline. The Wall Street Journal reported that the United Auto Workers (UAW) accepted a deal that will lead to the union owning 17.5% of the company as part of GM’s obligation to fund future retiree health-care obligations. Under the deal, GM will place US$10B of assets into a Voluntary Employee Beneficiary Association, or VEBA, on 1.January.2010. The UAW will also receive a new note for US$2.5B, payable in cash, that will be paid out in three installments taking place in 2013, 2015, and 2017. UAW members ratified the new labor agreement with General Motors with 74% in favor. More importantly to us taxpayers under the company’s restructuring plan, the U.S. Government (USG), i.e., We, the People, will hold a 72.5% stake, and will boost our support for GM by as much as US$50B. According to the WSJ, the USG will keep GM closely held for up to 18 months (I’m not exactly sure what that means). Secured bank lenders will get full recovery on US$6B in loans. GM announced that bondholders will gain a 10% stake in the new GM – with an option to purchase up to 15% in common stock. The company’s objective is to have only about US$10-12B in debt once it emerges from bankruptcy. Lastly, the Wall Street Journal also reported that negotiators from GM, Magna International and the German government reached a tentative agreement on Friday that would see Magna take a major unspecified stake in GM’s European operations.
-- Arthur Samberg, a well known hedge-fund manager, announced that he is closing down his company, Pequot Capital Management Inc., amid public disclosures about an ongoing investigation into possible insider trading, which have irreparable tainted his company.
-- Citigroup is negotiating with the Securities and Exchange Commission (SEC) to settle an investigation into whether the bank misled investors by not properly disclosing the amount of troubled mortgage assets it held as the market began to deteriorate in 2007.
-- The Federal Reserve is limiting how much of anticipated future revenue can be counted by banks to help them fill the capital holes illuminated by the government's stress tests. As a consequence, Bank of America must come up with billions of dollars in capital from other sources. Other stress-tested banks involved include PNC Financial Services Group and Wells Fargo. The affected banks face an 8.June.2009 deadline for government approval of their capital-raising plans.
-- Time-Warner has decided to spinoff America On-Line (AOL) as a standalone, publicly traded company focused on Web services – a not-too-surprising turn of events, I must say.
-- Microsoft formally unveiled its new search service Bing, in an attempt to compete with Google, Yahoo and others. This seems a day-late and a dollar-short to me, but we shall see.
-- The Wall Street Journal reported that European Union antitrust regulators are poking at Microsoft again – this time due to the company’s long lead in the Web browser market (Netscape used to be the big dog). To date, Microsoft included only its Internet Explorer browser with Windows. Apparently, the EU is considering an order that would force Microsoft to install rival Web browsers with their Windows operating system software.
-- Bank of America announced that O. Temple Sloan Jr. resigned from its board of directors, after serving in that role for 13 years. He was the chairman of the board’s executive committee, a member of the corporate governance committee, and had been the lead director since May 2006 Sloan had also served on the compensation and benefits committee. Wouldn’t you have just loved to listen in on that little dynamic within the bank’s board?
Comments and contributions from Update no.388:
“Three items, as brief as I can make them:
“(A) First and most, enjoy your vacation. I use the "deathbed question" method of setting priorities: "Whenever I realize that I am dying, what will I wish I'd spent more time doing?" The cruise would be right at the top of my list.
“(B) Second, I agree with your comment on respecting others' religion. I am not Christian, but I respect those who live out their beliefs. I first learned that from the Amish, who live ‘ff grid,’ don't own or drive motor vehicles and live modestly. That respect also extends to Jehovah’s Witnesses in some countries who risk their lives to live out their beliefs. However, I don't evangelize my beliefs and I don't waste my time or respect on those who attempt to evangelize me. ‘Respect,’ in my world, does not include telling me how wrong you think I am at a basic level or using psychological tricks to spread your religion.
“(C) Third, I suspect that you overestimate the background of your average reader. I do not know how to read the vote information in your posting on the two new laws signed by the President. The credit card reform received plenty of media attention, but I was not aware of the military acquisition bill and would like to know more about that. We have a mutual interest in tax dollars, and the military necessarily consumes a high percentage of the national budget.”
My reply:
(A) “Deathbed Question” method . . . excellent. We are at an age when such adventures are more attractive. Everyone is really excited, so I am fairly certain we will all have great stories to tell upon our return.
(B) Your definition of “respect” appears to be much closer to mine. Somehow, I just do not think a Muslim (or any other non-Christian) will see “sharing the Gospel of Jesus Christ” as showing respect for their religion. As I wrote, Mohler offers an excellent implicit rationale for the separation of church & State.
(C) My urge to cover many topics with some semblance of brevity leads me to contractions. My apologies. I include the vote records more for history, i.e., once I have it, I save it in my text, so I do not have to re-search it again. FYI: my congressional vote notation comes from the Library of Congress, e.g., Senate: 95-0-0-4(1) = the votes in sequence – yes-no-present-not voting (missing). Present = abstention. Not Voting = did not show up for the vote. Missing = not accounted for, e.g., the Minnesota Senate seat that remains unfilled. I hate to be a naysayer, but . . . the weapons acquisition bill appears like so many previous attempts to reform the Defense acquisition process. The success of this effort will depend upon the people who execute the process. The Defense acquisition structure is massive and deeply rooted; it cannot be reformed by simply passing laws. We shall soon see how Barack’s folks do. That said, I must say, the military inherently pushes technology to its limits, which adds significant risk & uncertainty – not properly recognized.
. . . a follow-up comment:
“I knew I'd missed something in my earlier comment. This is it: "we need far bolder initiatives to make alternative personal transportation means broadly available to the public." As a cyclist, transit rider and pedestrian, I applaud and agree.”
Comments from another contributor:
“From what I understand, Bolden is a former astronaut. That's probably the sort of person you want in the top spot at NASA, someone who was in the trenches. Maybe he can kick NASA in the butt and really get them focused on returning to the Moon, going to Mars, and just get folks excited about the Space Program a la the 1960s.
“As far as I'm concerned, most people really have no clue what torture is. Calling facial slaps and sleep deprivation torture is inane when you look at what the Japanese did to POWs in WWII, or the stuff that happened under the Khmer Rouge or Idi Amin or Saddam. What their lackies did to their own people is in a whole other universe compared to our tactics at Gitmo. As far as I'm concerned, if waterboarding or slapping someone in the face or throwing a bug in the room with some pile of crap can help prevent an attack that will kill innocent people, I'm for it.
“Nancy Pelosi. She's not too bright, she has no leadership ability, her only argument for anything is to blame George Bush. There are First Graders who could do a better job as Speaker of the House than her.
“Have fun on your cruise. I say don't worry about the blog. Everyone needs time off. Speaking of which, now that we're into summer and there's not many games for me to cover, it's time for me to have some vacation time.
“Happy Memorial Day!! And thank you and all other veterans for your service to this great country and guaranteeing the freedoms we all enjoy.”
My response:
Yep, same Charlie Bolden. He flew four missions as I recall. Knowing Charlie, I expect he will make an excellent administrator.
The only one of the ten OLC memo EIT items that could remotely be called torture is waterboarding, since it does produce a sensation of drowning and “the threat of imminent death.” I can, do and will argue that the technique causes no injury. Used simply to torment an individual, it is torture. Used to “induce” a captured, battlefield combatant leader to give up the information he possesses, it is an EIT. Used properly, the captured leader can avoid any EIT – no.1 through no.10 – he simply answers all the interrogator’s questions truthfully and completely. Unfortunately, the vast majority of citizens who wish to pass judgment on “W,” the OLC lawyers and their memoranda, the interpretation of the law, and even the definition of torture or intelligence interrogation, get a queasy sensation in their stomach when they consider the brutality of man, the ugliness of war, and the unclean process of intelligence interrogation.
Prisoners of war have been confined remotely for the duration of every war. Common warriors were repatriated as soon as the war was over. Leaders, or perpetrators of war crimes, were tried before tribunals. Captured battlefield combatants in the War on Islamic Fascism do not even possess the legal status of prisoners of war – they do not qualify – and, 80-90% of those captured are probably common warriors and would never experience EIT no.1, let alone EIT no.5. There is a huge difference between intelligence interrogation and torment for the amusement of the guards.
I am not one of those citizens who will underestimate Nancy Pelosi. I may vehemently disagree with her politics. I may be revolted by her lack of integrity. However, I have a healthy respect for the power she has acquired. She did not become Speaker of the House by happenstance, good fortune or divine providence.
Another comment:
“Where are you going on your cruise? Hope you and your family have a wonderful time, and a safe trip. Bon voyage! Happy Anniversary too!”
My reply:
The original itinerary was: Miami, sea, Grand Cayman, Isla Roatan (Honduras), Belize, Cozumel, sea, Miami. Due to the travel restrictions on Mexico, the route’s last two days are now: sea, Key West, Miami. We are all excited. The only cruises I’ve done are the grey type. Happy Memorial Day.
A different contribution:
“I hope you have a nice cruise. We've never been on one. Please let me know what you think, and do send along a few pictures.
“I'm just back from attending a wedding at lake Tahoe. Low 70s, snow on the peaks all around, tall pines, beautiful water, and clean air. What a setting. I think that was my seventh or eighth time there. Always nice. Always gets me to thinking to how I might be able to afford to live there. I can never seem to figure it out.
“I watched a program last night entitled Medal of Honor. Every story brought tears to my eyes; Iwo Jima always being the most emotional for me. To think that we pay spoiled brats millions of dollars in salary and endorsements for playing basketball and treating them like heroes. It disgusts me. How can we teach our kids values?”
My response:
I’ve been on quite a few cruises . . . all of the grey variety. LOL This will be a first for me as well; actually a first for all of us except Jeanne, who enjoyed her first cruise last year [326]. I’ll attempt a reasonable travelogue. More to follow.
Lake Tahoe is magnificent country . . . always has been and hopefully always will be. I trust y’all had a most enjoyable time of it.
Teaching kids values and life lessons is the responsibility of each and every parent. One day, society will hold parents accountable for the character of the children they foist upon the rest of us. Someday?
A contribution from another person:
“Again a couple of points regarding torture or enhanced interrogation techniques -- First, torture is illegal under the laws of the U.S. and treaties to which the U.S. is party. This seems to be overlooked by most commentators. Also, the Bush Administration stepped back from the use of waterboarding and the other harshest techniques shortly after the disclosures from Abu Ghraib in 2004. In other words, the decisions that Cheney says put the country at risk were taken in mid-2004 and continued through half of his term in office.
“Regarding the point that Abu Ghraib were the works of a few bad apples—note the comment below. The SASC report held that the techniques had been introduced into Abu Ghraib under the authority of SecDef Rumsfeld. And how do transportation company National Guard troops who were transferred to prison guard duty (without any formal training) come to use the same interrogation techniques employed by Israeli intelligence on Arab prisoners?
“(from an article in Harpers)
“‘The events at Abu Ghraib were ‘disgraces’ and violations of ‘law and decency.’ But as the report of Lieutenant General Randall Mark Schmidt revealed, the techniques applied at Abu Ghraib and those used at Gitmo were identical, both drawn directly from the Bush Administration program. Just to take a notable example, recall the photograph of Lyndie England holding a prisoner by a dog leash. Schmidt disclosed that this was an accepted technique under the heading of ‘pride and ego down’ called ‘walking the dog.’ The Senate Armed Services Committee's unanimous report concluded that the program had been introduced at Abu Ghraib with authority of Secretary of Defense Rumsfeld.’
“(Additional comments by a former military interrogator- note that Abu Ghraib and torture became a prime recruiting tool. It hasn’t helped us be any safer – at least our troops.)
“‘As a senior interrogator in Iraq (and a former criminal investigator), there was a lesson I learned that served me well: there's more to be learned from what someone doesn't say than from what they do say. Let me dissect former Vice President Dick Cheney's speech on National Security using this model and my interrogation skills.’
“‘First, VP Cheney said, ‘This recruitment-tool theory has become something of a mantra lately... it excuses the violent and blames America for the evil that others do.’ He further stated, ‘It is much closer to the truth that terrorists hate this country precisely because of the values we profess and seek to live by, not by some alleged failure to do so.’ That is simply untrue. Anyone who served in Iraq, and veterans on both sides of the aisle have made this argument, knows that the foreign fighters did not come to Iraq en masse until after the revelations of torture and abuse at Abu Ghraib and Guantánamo Bay. I heard this from captured foreign fighters day in and day out when I was supervising interrogations in Iraq. What the former vice president didn't say is the fact that the dislike of our policies in the Middle East were not enough to make thousands of Muslim men pick up arms against us before these revelations. Torture and abuse became Al Qaida’s number one recruiting tool and cost us American lives.’
“‘Secondly, the former vice president, in saying that waterboarding is not torture, never mentions the fact that it was the United States and its Allies, during the Tokyo Trials, that helped convict a Japanese soldier for war crimes for waterboarding one of Jimmie Doolittle's Raiders. Have our morals and values changed in fifty years? He also did not mention that George Washington and Abraham Lincoln both prohibited their troops from torturing prisoners of war. Washington specifically used the term ‘injure’ -- no mention of severe mental or physical pain.’
“‘Thirdly, the former vice president never mentioned the Senate testimony of Ali Soufan, the FBI interrogator who successfully interrogated Abu Zubaydah and learned the identity of Jose Padilla, the dirty bomber, and the fact that Khalid Sheikh Mohammad (KSM) was the mastermind behind 9/11. We'll never know what more we could have discovered from Abu Zubaydah had not CIA contractors taken over the interrogations and used waterboarding and other harsh techniques. Also, glaringly absent from the former vice president’s speech was any mention of the fact that the former administration never brought Osama bin Laden to justice and that our best chance to locate him would have been through KSM or Abu Zubaydah had they not been waterboarded.’
“‘In addition, in his continued defense of harsh interrogation techniques (AKA torture and abuse), VP Cheney forgets that harsh techniques have ensured that future detainees will be less likely to cooperate because they see us as hypocrites. They are less willing to trust us when we fail to live up to our principles. I experienced this firsthand in Iraq when interrogating high-ranking members of Al Qaida, some of whom decided to cooperate simply because I treated them with respect and civility.’
“‘The former vice president is confusing harshness with effectiveness. An effective interrogation is one that yields useful, accurate intelligence, not one that is harsh. It speaks to a fundamental misunderstanding of interrogations, the goal of which is not to coerce information from a prisoner, but to convince a prisoner to cooperate.’
“‘Finally, the point that is most absent is that our greatest success in this conflict was achieved without torture or abuse. My interrogation team found Abu Musab Al Zarqawi, the former leader of Al Qaida in Iraq and murderer of tens of thousands. We did this using relationship-building approaches and non-coercive law enforcement techniques. These worked to great effect on the most hardened members of Al Qaida -- spiritual leaders who had been behind the waves of suicide bombers and, hence, the sectarian violence that swept across Iraq. We convinced them to cooperate by applying our intellect. In essence, we worked smarter, not harsher.’”
. . . with a follow-up comment:
“As a further note, General Petraeus opposes EITs and supports the move to close Gitmo.
“In an interview this past weekend with Radio Free Europe, Gen. David Petraeus said that he supports President Obama's decision to close the Guantánamo Bay detention facility and opposes the use of enhanced interrogation techniques:
“‘PETRAEUS: In fact, I have long been on record as having testified and also in helping write doctrine for interrogation techniques that are completely in line with the Geneva Convention. And as a division commander in Iraq in the early days, we put out guidance very early on to make sure that our soldiers, in fact, knew that we needed to stay within those guidelines.’
“‘With respect to Guantánamo, I think that the closure in a responsible manner, obviously one that is certainly being worked out now by the Department of Justice - I talked to the attorney general the other day [and] they have a very intensive effort ongoing to determine, indeed, what to do with the detainees who are left, how to deal with them in a legal way, and if continued incarceration is necessary - again, how to take that forward.’
“‘But doing that in a responsible manner, I think, sends an important message to the world, as does the commitment of the United States to observe the Geneva Convention when it comes to the treatment of detainees.’”
My response:
Thank you for taking to the time to continue the education of Cap.
In an effort to avoid re-hacking the same ground, I shall attempt a different tack, hopefully for a more progressive and constructive end.
Let us set aside the argument over waterboarding, as it is contaminating the debate. In fact, for the moment, let us set aside the lightning rod issue of “torture.” To frame our discussion . . .
A. Are we at war?
B. Does the President of the United States have the authority to carry out the foreign policy of the Nation? . . . including the conduct of war?
C. Is there a difference (a distinction) between national intelligence interrogation and criminal prosecutorial interrogation?
D. If the answer to Question B is yes, then what “inducements” are or should be available to intelligence interrogators beyond those defined by judicial interpretation of the 4th, 5th and 8th Amendments?
E. Is there a difference (a distinction) between the status of a captured battlefield combatant; a prisoner of war as defined by Geneva Convention III; and, an incarcerated felonious criminal?
F. Regardless of the answer to Question E, does a captive battlefield combatant and a prisoner of war have full habeas corpus and constitutional protections, and thus full access to the criminal justice system?
G. Depending on the answer to Question E, is there a limit to the duration of detention of each category of “captive?”
H. Assuming the Guantánamo detention facility is closed outright and completely as POTUS ordered by his 22.January.2009 Executive Order, what do you propose we do with the remaining battlefield combatant captives? (The US AG will act on behalf of the administration, but I would truly appreciate your view).
Hopefully, these questions and subsequent branch threads will help me progress this discussion. That said, allow me to emphatically state that the conduct of the 2003-2004 Abu Graib guards was immature, foolish, counter-productive and otherwise a really bad idea . . . not just the treatment of the captives but the idiocy of taking “entertainment” photographs. There is NO rationale to justify their conduct. Any activity carried out for the “entertainment” of guards is a clear violation of Geneva III, regardless of the context. I must also add that neither Yoo nor Bybee envisioned such conduct.
Gen Petraeus and LtGen Schmidt are soldiers, fighting a war. They are only interested in those activities that enhance their warfighting ability and will resist any activity they deem counter-productive. They are also not responsible for national intelligence. Given the mishandling of the Bush administration regarding the whole process of captured battlefield combatants, I would hold the same opinion as the generals, if I had stars on my collar points. The Bush administration allowed a whole mythology to bloom as a consequence of not having a clear, rehearsed plan for handling the inevitable – one of many strategic mistakes I lay upon “W,” Rummie and their cronies. They allowed Guantánamo to become politically toxic, but I will argue it was precisely the correct thing to do, if it had been handled differently. Admiral Farragut’s combat axiom serves the battle well, however, it is a disastrous diplomatic approach.
. . . round two:
“I mean to work on the questions you raised-- but I am crashing on a couple of things, trying to get ready to go TDY to Vienna next week. Setting aside waterboarding is a good idea, but it isn't the only one of the EITs that is/can be considered torture. Sleep deprivation and temperature extremes had been authorized and they, especially when combined, can be torture. Actually, a number of detainees have died under these techniques.
“Question A- are we at war?-- Seemingly a no brainer- yes. But on further examination, maybe not so clear cut. Congress had not made a declaration of war. We have not gone to conscription-- we haven't even raised taxes, but have, during the Bush Administration, lowered taxes. Our Armed Forces are certainly at war- in open combat, but the rest of the country is not on a war-time footing. And if we are at war, who are we at war with? Not 'terrorism', which is a means. And if we are at war, why? Especially in Iraq. We have been given a number of reasons for going into Iraq and waging war, and those reasons change as they become overcome by events.
“I know SecDef Gates considers himself now as the ‘Secretary of War’ -- and has done a great job of turning things around from the disastrous reign of his predecessor. Anyway, not as cut and dried an answer as one would think.
“Question B-- the President does have the authority to carry out the foreign policy of the Nation- but he is subject to the laws of the Nation and the treaties to which the U.S. is party to. Further, the Congress, through its power of the purse, has a hand in shaping the foreign policy of the country -- or at least it should. Plainly, the President does not have a free hand to do anything he desires.”
. . . my response to round two:
I am far more interested in critical dialogue / debate than prompt reply. Take your time. Further, we are leaving for a week long cruise in the Western Caribbean with our granddaughters & their parents (our daughter & her partner). So, this week’s Update will probably take a few weeks to see the light of day.
Here are some additional thoughts to what you have written so far.
A. True; Congress did not pass a bill with the explicit words “declaration of war.” The Authorization for Use of Military Force [PL 107-40] did not mention anything about putting the Nation of a war footing. As I have written earlier, one of many presidential failures I place on W’s shoulders is just that point – not mobilizing the country for war. “W” & Rummie thought they could fight this war on the cheap, and they have proven once again that it is simply war by half-measures by another name. As you noted and I agree, “W” did not provide us with sufficient rationale or give us a since of direction – other than we will defeat the bastards. The answer to your question – if we are at war, why? – offers a different perspective of my original question. My answer: we were attacked by an extra-national group of religiously motivated people who threaten our way-of-life, our sovereignty, and our international interests. Our attackers are part of a much larger group of religious fundamentalists who seek domination of their religion over all others, and exhibit no tolerance for the personal, free choice of anyone else. We face religious and ideological fascism and the use of terrorism against innocent citizens to further their objectives. We fight for freedom. We fight to protect the rights of every citizen to freely and without intimidation choose their religion, their politics, their pursuit of Happiness. That is why we are at war.
I agree re: Bob Gates. He appears to have taken a far more realistic and pragmatic approach to fighting the War on Islamic Fascism. Yet, like his predecessor, he will not likely get the resources he should have, which means this war will be far more protracted than otherwise need be. C’est la guerre.
B. Yes, in general, agreed. However, as both Yoo & Bybee wrote, the President also has the authority to suspend a treaty as conditions warrant. Yes, Congress can and should be involved in foreign policy. Yet, I do not recall Congress being consulted in the formation of the P.O. Box 1142 interrogation unit of World War II [246] or being asked to sanction Operation OVERLORD. We may not like how the President chooses to wage war successfully, but it is still his responsibility alone by the Constitution. Nonetheless, another one of W’s failures was his willingness to use that authority in a near, “damn the torpedoes,” unilateral execution of his authority. Part of this debate centers upon ‘ability’ to act and ‘wisdom’ to act, in that he may possess the authority under the Constitution, thus the ability to act, but having the wisdom to recognize that he must bring along a lot of citizens with him to ensure proper support to “wage war successfully.” How the President uses his constitutional authority is the critical missing “legal” element. We depend on the judgment of the individual who holds the office. That said, we may not like how “W” executed his authority, but I am quite reluctant to constrain or restrain that presidential authority.
“That’s just my opinion, but I could be wrong.”
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
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