Update from the Heartland
No.387
11.5.09 – 17.5.09
Blog version: http://heartlandupdate.blogspot.com/
No.387
11.5.09 – 17.5.09
Blog version: http://heartlandupdate.blogspot.com/
To all,
The follow-up news items:
-- President Obama has decided to oppose a federal judge’s order from June 2006, regarding the public release of detainee images since 2003 [126, et al], as part of legal action by the American Civil Liberties Union (ALCU) and other advocacy groups. The images were expected to be released no later than 28.May. The ACLU seeks the release of hundreds of images showing U.S. personnel allegedly abusing prisoners in Iraq and Afghanistan. The President listened to the warfighting professionals, who argued that the release of more images like Abu Graib would serve little purpose other than further enflame Muslims and endanger U.S. and Allied troops. Fortunately, the President listened to reason.
-- The President continues to grapple with what to do with captured battlefield combatants [371], which his administration has chosen not to recognize as such. As they strive to close the Guantánamo detention facility, they announced their intention to detain some “terror suspects” – actually captured, Islamo-fascist, battlefield combatants – on the sovereign territory of the United States – indefinitely and without trial. Now, why does that sound familiar? The administration also announced re-activation plans for military commission trials [153, et al] for some “suspects” now detained at Guantánamo, and their aim to expand legal rights for defendants while stopping short of the due process protections provided to defendants in civilian courts. This gets more familiar all the time, doesn’t it?
-- Regarding Enhanced Interrogation Techniques (EIT) [126, 313, et al] – the public debate continues unabated. Speaker of the House Pelosi [AKA San Fran Nan] pressed her self-destructive denials regarding prior knowledge of EIT, and this week accused the CIA of misleading her and Congress regarding the employment of EIT. On the flip-side, the CIA denied the request of former Vice President Cheney to release the intelligence yield from those interrogations to counter-balance the distortion surrounding EIT usage. I doubt I could have written a better script to demonstrate why politicians can never be trusted and should never be allowed near national intelligence means & methods. In addition, these latest convulsions are tragic on many levels, but not least of which is the direct aiding of our enemies. I suspect this is far from over and is going to get a whole lot nastier. What is worse, the true losers in this whole debacle are We, the People. I truly hope the New York Times, the traitor(s) who disclosed classified information involving national intelligence means & methods, and President Obama himself feel a sense of vindication and righteous indication . . . at least a few of us can be happy. I am not!
-- On Friday, Lakhdar Boumediene was released from the Guantánamo detention facility and flown to join relatives in France. Boumediene was the petitioner in the Supreme’s pivotal habeas corpus case – Boumediene v. Bush [553 U.S. ___ (2008); no. 06-1195] [340]. On remand, Judge Leon concluded, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention.” Boumediene v. Bush [USDC DC civ action no. 04-1166 (RJL) (2008)] [362/3] In addition to Boumediene, Judge Leon also ordered Lakhdar’s buddies, Mohamed Nechle, Hadj Boudella, Mustafa Ait Idir, and Saber Lahmar, to be released as well. Ah yes, ain’t American jurisprudence just grand!
-- Investigators for the U.S. Attorney interviewed Karl Rove, former chief of the White House Office of Political Affairs, the Office of Public Liaison, and the Office of Strategic Initiatives – regarding his involvement in the firing of a dozen U.S. attorneys in December 2006 [268, et al].
Secretary of Defense Gates asked for and received the resignation of General David D. McKiernan, USA – Commander, International Security Assistance Force (ISAF) and Commander, U.S. Forces Afghanistan (USFOR-A). SecDef nominated Lieutenant General Stanley A. McChrystal, USA [USMA’76] – currently Director of the Joint Staff and former commander of the Joint Special Operations Command – to replace McKiernan; McChrystal’s promotion to general and his assignment must be confirmed by the Senate.
We return to a frequent topic of discussion by way of an essay.
“Religion and Politics Don’t Mix?”
by Mark Alexander
Patriot Post
Published: 14 May 2009
http://patriotpost.us/pdf/09-19a.pdf
The attempt at sarcasm in the title did not ring the bell. The essay gives us a fairly good view of one side of the argument. Alexander began his essay, “For all of our nation’s history, there have been tactical battles between opposing political ideologies – liberals (leftists) who want to liberate us from constitutional rule of law, and conservatives who strive to conserve rule of law. Great political capital has been, and continues to be, expended by the Left in order to offend our Constitution, and by the Right in order to defend it.” The two sentences fairly well set the tone – division and corrosion, rather than debate, negotiation and compromise – so common to both extremes of the ideological spectrum; and, this sample is no different. He concluded, “It may not be in the power of man to alienate the gift of liberty, but it will certainly take the power of men, guided by our Creator, to defend it. To that end, religion and politics are inseparable.” When I read opinions similar to Alexander’s essay, I always wonder, what is it about history that is so hard to understand, learn from and appreciate? Jefferson’s letter to the Danbury Baptists referred to a “wall of separation between Church & State,” rather than any separation between God & State. These arguments are quite typical . . . exaggerate the premise to enflame the believers; along with others like it, this argument has been seriously distorted. The choice of whether or what to believe is a matter of parental education, contemplative consideration, and the utmost of personal choice. The best I can do is urge each and every citizen not to be distracted or confused by such shallow arguments. History is too clear a taskmaster.
Why do some folks continue to blame schools for the conduct of schoolyard bullies, or blame guns for the actions of killers, or blame the police for the behavior of criminals? We seem to have a penchant for the façade of symptoms and an urge for the quick fix. When are we going to focus our attention on the ROOT CAUSE of aberrant public behavior of individuals?
News from the economic front:
-- The Commerce Department reported that the U.S. trade deficit widened during March – the first time in eight months – as the price and use of imported oil both climbed. The U.S. deficit in international trade of goods and services increased to US$27.58B from February’s revised US$26.13B. U.S. exports in March decreased by 2.4% to US$123.62B from US$126.63B as trading partners bought fewer consumer goods and cars. Imports decreased at a lower rate, falling 1% to US$151.20B from February’s US$152.76B.
-- On Wednesday, the European Commission fined Intel a record US$1.45B for abusing its dominance in the microchip market to the exclusion of Advanced Micro Devices – Intel’s main rival.
-- The Commerce Department also reported that U.S. retail sales fell for the second month in a row in April, below expectations, as job losses and uncertainty about the economy put pressure on spending. Sales decreased by 0.4% compared with the prior month. Economists had expected an increase of 0.1%.
-- The Obama administration has begun the process of reforming the financial sector as they seek broadened authority to supervise the virtually unregulated, complex, derivatives financial instruments that were a major cause of the market crisis. The Government’s first shots are only the beginning. I hope they do not attempt to over-regulate, i.e., control, the financial marketplace.
-- The SEC is reportedly moving toward filing civil fraud charges against Angelo Mozilo [358], the co-founder of Countrywide Financial. The potential charges may include alleged violations of insider-trading laws as well as failing to disclose material information to shareholders.
-- The Bank of England dealt a blow to Chancellor of the Exchequer Darling’s hopes of speedy economic recovery, warning that the recession will be deeper, and the road to recovery longer and harder, than it predicted three months ago. The advice seems to be consistent with other sources.
-- Chrysler sent letters to 789 of its 3,200 American dealers revoking their franchises. General Motors followed by revoking 1,100 of 6,000 franchises and may increase that number 2,600 of its dealers. The pain spreads.
-- The Wall Street Journal’s survey of economists suggests the recession may end by August; however, the economy may take years to consume the inventory accumulated by the downturn. Nearly half of the economists said it will take three to four years to close the output gap, while more than a quarter say it will take five to six years. The survey further indicates the unemployment rate may climb to 9.7% by the end of the year, with two million more jobs lost over the next 12 months
-- The Treasury granted preliminary approval for Hartford Financial, Prudential Financial, Lincoln National and Principal Financial insurance companies to receive capital infusions under the government’s Troubled Assets Relief Program (TARP). The beat goes on!
-- The Federales are pressuring the Bank of America Board of Directors to bring in new directors with more banking experience. The Wall Street Journal observed that the effort reflects the balancing act faced by the Government as it tries to steer the banking sector through its crisis while also involved in a broader pattern of engagement in the operations of individual U.S. banks.
-- Under Treasury direction, General Motors is near a deal that would cut its hourly labor costs by more than US$1B a year and reduce its US$20B pledge to the United Auto Workers to cover health-care obligations. Further, GM expects to reduce its cash outlays for retiree health costs by half to about US$10B, and supplement that contribution with a 39% equity stake in the reorganized company. Interesting approach!
-- The U.S. Consumer Price Index (CPI) decreased 0.7% in April from a year earlier, as falling energy and food prices brought consumer prices down by their fastest 12-month rate in over a half century. The CPI was unchanged in April from March. However the core CPI, which excludes food and energy prices, rose 0.3% last month, the largest increase since June 2008 and above expectations. Yet, the data continue to suggest the risk of deflation remains remote, since the drops are still mostly centered in energy and energy-related products.
-- This is really rich! SEC Inspector General H. David Kotz reported the results of an internal investigation to SEC Chairman Mary Schapiro, which indicates that the conduct of two SEC enforcement lawyers may have violated insider-trading laws. The case has been referred to the FBI for criminal investigation. Regulators joining the perpetrators, ain’t life grand!
-- Chairman of Lloyds Banking Group Sir Maurice “Victor” Blank, 62, announced that he will step down from his position by 2010, after a Sunday Board meeting and continuing criticism of his decision to purchase struggling HBOS.
The 2nd Amendment to the Constitution of the United States remains a lightning rod for many who seek government control of firearms. A colleague, friend and contributor offer this observation.
“Received from 3rd party [unattributed] but it says it all. The legislation to be afraid of is the treaty for disarmament … that the Clinton administration would not sign but that Obama eagerly brought up when last in Mexico.
“No matter what your beliefs re: gun control or your political affiliation, it is important you be aware of the following. Please send this to everybody on your list... this is Obama gun control by secrecy.
“Very important for you to be aware of a new bill HR 45 introduced into the House. This is the Blair Holt Firearm Licensing & Record of Sale Act of 2009. We just learned yesterday about this on the Peter Boyles radio program. Even gun shop owners didn't know about this because it is flying under the radar.
“To find out about this - go to any government website and type in HR 45 or Google HR 45 Blair Holt Firearm Licensing & Record of Sales Act of 2009. You will get all the information. Basically this would make it illegal to own a firearm - any rifle with a clip or ANY pistol unless: .It is registered .You are fingerprinted .You supply a current Driver's License .You supply your Social Security # .You will submit to a physical & mental evaluation at any time of their choosing.
“Each update - change or ownership through private or public sale must be reported and costs $25 - Failure to do so you automatically lose the right to own a firearm and are subject up to a year in jail.
“There is a child provision clause on page 16 section 305 stating a child-access provision. Gun must be locked and inaccessible to any child under 18. They would have the right to come and inspect that you are storing your gun safely away from accessibility to children and fine is punishable for up to 5 yrs. in prison.
“This is just a ‘termite’ approach to complete confiscation of guns and disarming of our society to the point we have no defense - chip away a little here and there until the goal is accomplished before anyone realizes it. (Did Obama promise transparency? It seems his motives are more and more transparent while his methods are hidden in back rooms.)
“This is one to act on whether you own a gun or not. If you take my gun, only the criminal will have one to use against me. HR 45 only makes me/us less safe. After working with convicts for 26 years I know this bill, if passed, would make them happy and in less danger from their victims.”
http://www.opencongress.org/bill/111-h45/show
http://www.govtrack.us/congress/bill.xpd?bill=h111-45
My opinion:
The proposed law is similar to all the other damnable morality laws that impose the Government boot on our private lives and affairs. There are many personal and private reasons for a strong, viable 2nd Amendment, most of which are and of every right should be beyond the reach of the State.
The Blair Holt's Firearm Licensing and Record of Sale Act of 2009 [HR 45] – “To provide for the implementation of a system of licensing for purchasers of certain firearms and for a record of sale system for those firearms, and for other purposes” – remains stalled in the House Judiciary Committee. The really scary part of the legislation’s purpose is “for other purposes” – common to many bills but particularly sinister in this instance. I doubt a bill this controversial could withstand public scrutiny. What I fear, and is more likely the path to passage, is burying the legislation in some other massive spending bill, like Defense Appropriations or some such, where it is often very difficult to find and will never be subjected to proper public debate. We must remain ever vigilant. Those politicians are crafty bastards.
Comments and contributions from Update no.386:
“I have read the Yoo and Bybee memos, and they are legally sloppy and poorly written. It is as if they were written after the fact to cover practices, which they may have well been.
“To give one very important example, Yoo did not mention the one case that he should have, Youngstown Sheet & Tube v. Sawyer, a seminal Supreme Court case relating to Presidential powers. (I took Constitutional law over three decades ago, and this is one of the cases that I still recall by name- it is that important. It is Law School 101. As a lawyer, he was ethically and duty bound to have mentioned the case. He was free to distinguish the situations if he could, but he could not ignore the case. In some earlier Yoo writings, by the way, he had relied on the case. This is not a small matter, but is at the heart of a lawyer's responsibility to his client. Republican or Democrat, liberal or conservative, no matter what, this is crucial to being an ethical and responsible attorney. For him to have left out that case in such an important issue was either totally incompetent (which I don't think he is) or unethical. As such, he should suffer sanctions from his State Bar. Further, possibly a criminal case could be made as a violation of "false official statement" in that he made the representation in his official duties of the case law holding in a matter and knew that it was false and not complete.
“As I noted, he could have mentioned the case and given reasons for distinguishing Youngstown from the situation at hand. That he didn’t' do so, tell me that he knew he couldn’t. So he just left out the case, leaving his clients unaware that the case law governing the issue was contradictory to his memo.
“I have been a lawyer for over 30 years and this is one of the basic rules. I know of several attorneys who have been sanctioned over omissions of the holding case law.
“Below is a portion of an article on the Youngstown case and Yoo’s having left it out.
“Yoo’s August 2002 memo said Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.
“‘As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy,’ says the 50-page Aug. 1, 2002 memo prepared for Alberto Gonzales titled “Standards of Conduct for Interrogation.
“But OPR investigators believed Yoo should have cited and applied Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry S. Truman’s effort to seize steel mills shut down in a labor dispute during the Korean War. Truman believed the strike would threaten national defense. According to the 1952 Supreme Court opinion, Truman ‘issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills.’
“‘The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces,’ the Supreme Court brief says. ‘The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions.’
“The Supreme Court overturned Truman’s order saying, ‘the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.’ Although Truman did alert Congress about his plans, Congress did not delegate authority to Truman nor did they specifically provide Truman with approval to seize the steel mills. Therefore, the Supreme Court found, Truman’s actions were unconstitutional.
“Justice Robert Jackson wrote a well-known concurring legal opinion in the case on the separation-of-powers often cited by constitutional scholars as defining presidential powers during wartime
“‘Justice Jackson’s opinion is the most persuasive of the opinions justifying the decision,’ Scott Horton, a Columbia Law School professor said in an interview. “If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance. It’s obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did.”
. . . follow-up comments:
“More background on the memos. I know the JAGs were very upset about this. Again, as I noted in my earlier email. Yoo and Bybee did not cite relevant legal precedent. That is why their memos are being criticized and why at least the bar associations should administer sanctions. Again, Law School 101.
“When military lawyers protested that the brutal interrogation methods may have violated anti-torture laws, White House meetings were hastily arranged involving then-White House Counsel Gonzales, Vice President Dick Cheney, his chief counsel David Addington, National Security Adviser Condoleezza Rice, and other officials from the State Department and the Pentagon.
“The discussions focused on the drafting of a legal memo for CIA interrogators describing what methods could be used against detainees, the sources said. Yoo then crafted a memo, which was signed by Bybee, providing the Bush administration with the legal justification to authorize interrogators to subject suspected terrorists to techniques, such as waterboarding.
“The legal sources said the OPR report criticizes Yoo and Bybee for not citing relevant legal precedent that would undercut their arguments, meaning that the White House was not given proper legal advice. This alleged failure could lead the Justice Department to refer the matter to state bar associations for disciplinary actions, including possible debarment.
“The OPR report also criticizes another OLC lawyer, Steven Bradbury, whose later legal opinions gave additional cover to the Bush administration's interrogation policies, the sources said.”
. . . and a further follow-up:
“Note this article on former FBI agent Soufan regarding questioning of detainees.”
“‘We Could Have Done This the Right Way’ – How Ali Soufan, an FBI agent, got Abu Zubaydah to talk without torture.”
by Michael Isikoff
Newsweek
From the magazine issue dated May 4, 2009
http://www.newsweek.com/id/195089/output/print
My reply:
After reading the first nine OLC memoranda, I wrote, “The analysis of the law appears accurate, at least from the Executive perspective, and yet the argument conveniently ignores the checks & balances to Executive powers to prevent or reduce the likelihood of abuses, as well as the political aspects, i.e., public perception; which weakens the basis for the President’s warfighting authority.” [381] The weakness in the memos (I’ve read) is the paucity of balance, bent upon rationalization of maximum extension of presidential warfighting authority in a highly asymmetric war.
To me, proper counsel is presentation of all aspects of an issue, analysis of the various elements, and a recommendation based on that analysis. Clearly, by the memoranda offered up so far (and they may have been chosen for this purpose), the legal analyses of these sensitive warfighting-related issues appears to be markedly unilateral.
As you noted, I have not found one reference to Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579 (1952); no. 744] [350] in the memoranda. As Justice Jackson observed in Youngstown, “Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army?” Yet, with the central theme of presidential power in Youngstown and the present debate, we have one major difference – Youngstown was about domestic authority. Somehow, I doubt either Yoo or Bybee were incompetent or unethical or irrational. Nonetheless, I do agree with your assessment. Youngstown was too important of a case in any debate about presidential constitutional authority to be ignored.
I continue to struggle with the separation of and yet inevitable intersection of judicial prosecution and national security intelligence processes. The 4th & 8th Amendments strive to protect the citizen and define limits of State power; however, they are not shields for attacking the State. I understand and appreciate the need to extend the umbrella of our freedoms to all who enter our sphere of influence. After all, we want all people to enjoy the rich bounty of freedom. We need the Bill of Rights, habeas corpus, and the rule of law to order society, seek proper balance between public and private, and help us realize that bounty.
As I read both 2.August.2002 memoranda, they sought the limit to “enhanced interrogation techniques” for an “increased pressure phase,” involving high-value captives. Yoo & Bybee were cautious with the law, recognizing the vast difference between a common domestic criminal, and a Geneva Convention prisoner of war, and extra-national battlefield combatants. We can debate torture, severe pain, injury, irreparable harm, et cetera. But, we must also define intelligence versus prosecution.
I have asked the same question repeatedly, and as yet, no one has attempted to define the limits of interrogation techniques available to “encourage” a captive to offer up the information they possess. I continue to ask the same question. What is the inducement necessary to get the target to talk?
The techniques discussed in one of the 2.August memoranda do not and have not caused injury. Bybee carefully articulated the need for medical (including psychological) treatment availability as part of the enhanced interrogation processes.
I appreciate Ali Soufan’s sensitivity and all the other FBI & military officers who bring a law enforcement approach to interrogation. As the Isikoff article reported, “They nursed his wounds, gained his confidence and got the terror suspect talking. They extracted crucial intelligence, including the identity of Khalid Sheikh Mohammed as the architect of 9/11 and the dirty-bomb plot of Jose Padilla before CIA contractors even began their aggressive tactics.” I would say, congratulations to Soufan and his colleagues. If the high-value captive can be encouraged to relinquish his information with milk & cookies, I am all for that. If the captive does not cooperate, what next? Do we press on for a decade in hopes he eventually breaks? Do we simply wait him out? How do we rationalize allowing a WMD strike to be executed while we wait for the guy to give up his information? And, when he does, will it be relevant, timely or of any value? I am all in favor of the least possible pressure. I am not and never will tolerate abuse of any captive, but the Bill of Rights does not apply to battlefield captives, which means that if we eventually seek prosecution of high-value captives, the evidence must be developed beyond his interrogation for intelligence purposes.
We must seek and find balance. We are not there. We must also acknowledge that having this debate in public virtually negates the potential benefit of “enhanced interrogation techniques.” They will know and train for the playbook. Never, ever, a good thing, to my thinking.
A postscript:
The issue of Enhanced Interrogation Techniques (EIT) is the last choice for a very few, specific captives. Most battlefield combatants do not possess information of strategic intelligence value. Even the faction that do, perhaps most will respond to convention “police” interrogation techniques. An even smaller percentage might open up using soft “intelligence” techniques. However, there are few like KSM that leave us the only choice of EIT or give up. We are NOT talking about general, indiscriminate abuse of captives. Further, one factor not yet included in this debate is time; do we have time to allow the softer approaches to work?
Despite my attempts to find some rational perspective in this sensitive topic, Porter Goss is correct. Once the New York Times began their exposé, the damage to our national security intelligence means & methods was done, just as it was with the NSA surveillance program. Very sad, actually . . . just to satisfy a political agenda. Oh well, shit happens.
Another contribution:
“I really appreciate your synopses of the various text and legally renderings. After reading most, not all, however, of them you are spot on in your interpretation of them. Your agreement or disagreement with them are always open for discussion.
“COMMENT: one of personal liberty’s greatest good is to allow a person to have and/or create wealth legally without the government spying on us.”
My response:
Discussion and debate is the whole point – not being right or wrong. Thank you for your contribution to the debate.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
The follow-up news items:
-- President Obama has decided to oppose a federal judge’s order from June 2006, regarding the public release of detainee images since 2003 [126, et al], as part of legal action by the American Civil Liberties Union (ALCU) and other advocacy groups. The images were expected to be released no later than 28.May. The ACLU seeks the release of hundreds of images showing U.S. personnel allegedly abusing prisoners in Iraq and Afghanistan. The President listened to the warfighting professionals, who argued that the release of more images like Abu Graib would serve little purpose other than further enflame Muslims and endanger U.S. and Allied troops. Fortunately, the President listened to reason.
-- The President continues to grapple with what to do with captured battlefield combatants [371], which his administration has chosen not to recognize as such. As they strive to close the Guantánamo detention facility, they announced their intention to detain some “terror suspects” – actually captured, Islamo-fascist, battlefield combatants – on the sovereign territory of the United States – indefinitely and without trial. Now, why does that sound familiar? The administration also announced re-activation plans for military commission trials [153, et al] for some “suspects” now detained at Guantánamo, and their aim to expand legal rights for defendants while stopping short of the due process protections provided to defendants in civilian courts. This gets more familiar all the time, doesn’t it?
-- Regarding Enhanced Interrogation Techniques (EIT) [126, 313, et al] – the public debate continues unabated. Speaker of the House Pelosi [AKA San Fran Nan] pressed her self-destructive denials regarding prior knowledge of EIT, and this week accused the CIA of misleading her and Congress regarding the employment of EIT. On the flip-side, the CIA denied the request of former Vice President Cheney to release the intelligence yield from those interrogations to counter-balance the distortion surrounding EIT usage. I doubt I could have written a better script to demonstrate why politicians can never be trusted and should never be allowed near national intelligence means & methods. In addition, these latest convulsions are tragic on many levels, but not least of which is the direct aiding of our enemies. I suspect this is far from over and is going to get a whole lot nastier. What is worse, the true losers in this whole debacle are We, the People. I truly hope the New York Times, the traitor(s) who disclosed classified information involving national intelligence means & methods, and President Obama himself feel a sense of vindication and righteous indication . . . at least a few of us can be happy. I am not!
-- On Friday, Lakhdar Boumediene was released from the Guantánamo detention facility and flown to join relatives in France. Boumediene was the petitioner in the Supreme’s pivotal habeas corpus case – Boumediene v. Bush [553 U.S. ___ (2008); no. 06-1195] [340]. On remand, Judge Leon concluded, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention.” Boumediene v. Bush [USDC DC civ action no. 04-1166 (RJL) (2008)] [362/3] In addition to Boumediene, Judge Leon also ordered Lakhdar’s buddies, Mohamed Nechle, Hadj Boudella, Mustafa Ait Idir, and Saber Lahmar, to be released as well. Ah yes, ain’t American jurisprudence just grand!
-- Investigators for the U.S. Attorney interviewed Karl Rove, former chief of the White House Office of Political Affairs, the Office of Public Liaison, and the Office of Strategic Initiatives – regarding his involvement in the firing of a dozen U.S. attorneys in December 2006 [268, et al].
Secretary of Defense Gates asked for and received the resignation of General David D. McKiernan, USA – Commander, International Security Assistance Force (ISAF) and Commander, U.S. Forces Afghanistan (USFOR-A). SecDef nominated Lieutenant General Stanley A. McChrystal, USA [USMA’76] – currently Director of the Joint Staff and former commander of the Joint Special Operations Command – to replace McKiernan; McChrystal’s promotion to general and his assignment must be confirmed by the Senate.
We return to a frequent topic of discussion by way of an essay.
“Religion and Politics Don’t Mix?”
by Mark Alexander
Patriot Post
Published: 14 May 2009
http://patriotpost.us/pdf/09-19a.pdf
The attempt at sarcasm in the title did not ring the bell. The essay gives us a fairly good view of one side of the argument. Alexander began his essay, “For all of our nation’s history, there have been tactical battles between opposing political ideologies – liberals (leftists) who want to liberate us from constitutional rule of law, and conservatives who strive to conserve rule of law. Great political capital has been, and continues to be, expended by the Left in order to offend our Constitution, and by the Right in order to defend it.” The two sentences fairly well set the tone – division and corrosion, rather than debate, negotiation and compromise – so common to both extremes of the ideological spectrum; and, this sample is no different. He concluded, “It may not be in the power of man to alienate the gift of liberty, but it will certainly take the power of men, guided by our Creator, to defend it. To that end, religion and politics are inseparable.” When I read opinions similar to Alexander’s essay, I always wonder, what is it about history that is so hard to understand, learn from and appreciate? Jefferson’s letter to the Danbury Baptists referred to a “wall of separation between Church & State,” rather than any separation between God & State. These arguments are quite typical . . . exaggerate the premise to enflame the believers; along with others like it, this argument has been seriously distorted. The choice of whether or what to believe is a matter of parental education, contemplative consideration, and the utmost of personal choice. The best I can do is urge each and every citizen not to be distracted or confused by such shallow arguments. History is too clear a taskmaster.
Why do some folks continue to blame schools for the conduct of schoolyard bullies, or blame guns for the actions of killers, or blame the police for the behavior of criminals? We seem to have a penchant for the façade of symptoms and an urge for the quick fix. When are we going to focus our attention on the ROOT CAUSE of aberrant public behavior of individuals?
News from the economic front:
-- The Commerce Department reported that the U.S. trade deficit widened during March – the first time in eight months – as the price and use of imported oil both climbed. The U.S. deficit in international trade of goods and services increased to US$27.58B from February’s revised US$26.13B. U.S. exports in March decreased by 2.4% to US$123.62B from US$126.63B as trading partners bought fewer consumer goods and cars. Imports decreased at a lower rate, falling 1% to US$151.20B from February’s US$152.76B.
-- On Wednesday, the European Commission fined Intel a record US$1.45B for abusing its dominance in the microchip market to the exclusion of Advanced Micro Devices – Intel’s main rival.
-- The Commerce Department also reported that U.S. retail sales fell for the second month in a row in April, below expectations, as job losses and uncertainty about the economy put pressure on spending. Sales decreased by 0.4% compared with the prior month. Economists had expected an increase of 0.1%.
-- The Obama administration has begun the process of reforming the financial sector as they seek broadened authority to supervise the virtually unregulated, complex, derivatives financial instruments that were a major cause of the market crisis. The Government’s first shots are only the beginning. I hope they do not attempt to over-regulate, i.e., control, the financial marketplace.
-- The SEC is reportedly moving toward filing civil fraud charges against Angelo Mozilo [358], the co-founder of Countrywide Financial. The potential charges may include alleged violations of insider-trading laws as well as failing to disclose material information to shareholders.
-- The Bank of England dealt a blow to Chancellor of the Exchequer Darling’s hopes of speedy economic recovery, warning that the recession will be deeper, and the road to recovery longer and harder, than it predicted three months ago. The advice seems to be consistent with other sources.
-- Chrysler sent letters to 789 of its 3,200 American dealers revoking their franchises. General Motors followed by revoking 1,100 of 6,000 franchises and may increase that number 2,600 of its dealers. The pain spreads.
-- The Wall Street Journal’s survey of economists suggests the recession may end by August; however, the economy may take years to consume the inventory accumulated by the downturn. Nearly half of the economists said it will take three to four years to close the output gap, while more than a quarter say it will take five to six years. The survey further indicates the unemployment rate may climb to 9.7% by the end of the year, with two million more jobs lost over the next 12 months
-- The Treasury granted preliminary approval for Hartford Financial, Prudential Financial, Lincoln National and Principal Financial insurance companies to receive capital infusions under the government’s Troubled Assets Relief Program (TARP). The beat goes on!
-- The Federales are pressuring the Bank of America Board of Directors to bring in new directors with more banking experience. The Wall Street Journal observed that the effort reflects the balancing act faced by the Government as it tries to steer the banking sector through its crisis while also involved in a broader pattern of engagement in the operations of individual U.S. banks.
-- Under Treasury direction, General Motors is near a deal that would cut its hourly labor costs by more than US$1B a year and reduce its US$20B pledge to the United Auto Workers to cover health-care obligations. Further, GM expects to reduce its cash outlays for retiree health costs by half to about US$10B, and supplement that contribution with a 39% equity stake in the reorganized company. Interesting approach!
-- The U.S. Consumer Price Index (CPI) decreased 0.7% in April from a year earlier, as falling energy and food prices brought consumer prices down by their fastest 12-month rate in over a half century. The CPI was unchanged in April from March. However the core CPI, which excludes food and energy prices, rose 0.3% last month, the largest increase since June 2008 and above expectations. Yet, the data continue to suggest the risk of deflation remains remote, since the drops are still mostly centered in energy and energy-related products.
-- This is really rich! SEC Inspector General H. David Kotz reported the results of an internal investigation to SEC Chairman Mary Schapiro, which indicates that the conduct of two SEC enforcement lawyers may have violated insider-trading laws. The case has been referred to the FBI for criminal investigation. Regulators joining the perpetrators, ain’t life grand!
-- Chairman of Lloyds Banking Group Sir Maurice “Victor” Blank, 62, announced that he will step down from his position by 2010, after a Sunday Board meeting and continuing criticism of his decision to purchase struggling HBOS.
The 2nd Amendment to the Constitution of the United States remains a lightning rod for many who seek government control of firearms. A colleague, friend and contributor offer this observation.
“Received from 3rd party [unattributed] but it says it all. The legislation to be afraid of is the treaty for disarmament … that the Clinton administration would not sign but that Obama eagerly brought up when last in Mexico.
“No matter what your beliefs re: gun control or your political affiliation, it is important you be aware of the following. Please send this to everybody on your list... this is Obama gun control by secrecy.
“Very important for you to be aware of a new bill HR 45 introduced into the House. This is the Blair Holt Firearm Licensing & Record of Sale Act of 2009. We just learned yesterday about this on the Peter Boyles radio program. Even gun shop owners didn't know about this because it is flying under the radar.
“To find out about this - go to any government website and type in HR 45 or Google HR 45 Blair Holt Firearm Licensing & Record of Sales Act of 2009. You will get all the information. Basically this would make it illegal to own a firearm - any rifle with a clip or ANY pistol unless: .It is registered .You are fingerprinted .You supply a current Driver's License .You supply your Social Security # .You will submit to a physical & mental evaluation at any time of their choosing.
“Each update - change or ownership through private or public sale must be reported and costs $25 - Failure to do so you automatically lose the right to own a firearm and are subject up to a year in jail.
“There is a child provision clause on page 16 section 305 stating a child-access provision. Gun must be locked and inaccessible to any child under 18. They would have the right to come and inspect that you are storing your gun safely away from accessibility to children and fine is punishable for up to 5 yrs. in prison.
“This is just a ‘termite’ approach to complete confiscation of guns and disarming of our society to the point we have no defense - chip away a little here and there until the goal is accomplished before anyone realizes it. (Did Obama promise transparency? It seems his motives are more and more transparent while his methods are hidden in back rooms.)
“This is one to act on whether you own a gun or not. If you take my gun, only the criminal will have one to use against me. HR 45 only makes me/us less safe. After working with convicts for 26 years I know this bill, if passed, would make them happy and in less danger from their victims.”
http://www.opencongress.org/bill/111-h45/show
http://www.govtrack.us/congress/bill.xpd?bill=h111-45
My opinion:
The proposed law is similar to all the other damnable morality laws that impose the Government boot on our private lives and affairs. There are many personal and private reasons for a strong, viable 2nd Amendment, most of which are and of every right should be beyond the reach of the State.
The Blair Holt's Firearm Licensing and Record of Sale Act of 2009 [HR 45] – “To provide for the implementation of a system of licensing for purchasers of certain firearms and for a record of sale system for those firearms, and for other purposes” – remains stalled in the House Judiciary Committee. The really scary part of the legislation’s purpose is “for other purposes” – common to many bills but particularly sinister in this instance. I doubt a bill this controversial could withstand public scrutiny. What I fear, and is more likely the path to passage, is burying the legislation in some other massive spending bill, like Defense Appropriations or some such, where it is often very difficult to find and will never be subjected to proper public debate. We must remain ever vigilant. Those politicians are crafty bastards.
Comments and contributions from Update no.386:
“I have read the Yoo and Bybee memos, and they are legally sloppy and poorly written. It is as if they were written after the fact to cover practices, which they may have well been.
“To give one very important example, Yoo did not mention the one case that he should have, Youngstown Sheet & Tube v. Sawyer, a seminal Supreme Court case relating to Presidential powers. (I took Constitutional law over three decades ago, and this is one of the cases that I still recall by name- it is that important. It is Law School 101. As a lawyer, he was ethically and duty bound to have mentioned the case. He was free to distinguish the situations if he could, but he could not ignore the case. In some earlier Yoo writings, by the way, he had relied on the case. This is not a small matter, but is at the heart of a lawyer's responsibility to his client. Republican or Democrat, liberal or conservative, no matter what, this is crucial to being an ethical and responsible attorney. For him to have left out that case in such an important issue was either totally incompetent (which I don't think he is) or unethical. As such, he should suffer sanctions from his State Bar. Further, possibly a criminal case could be made as a violation of "false official statement" in that he made the representation in his official duties of the case law holding in a matter and knew that it was false and not complete.
“As I noted, he could have mentioned the case and given reasons for distinguishing Youngstown from the situation at hand. That he didn’t' do so, tell me that he knew he couldn’t. So he just left out the case, leaving his clients unaware that the case law governing the issue was contradictory to his memo.
“I have been a lawyer for over 30 years and this is one of the basic rules. I know of several attorneys who have been sanctioned over omissions of the holding case law.
“Below is a portion of an article on the Youngstown case and Yoo’s having left it out.
“Yoo’s August 2002 memo said Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.
“‘As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy,’ says the 50-page Aug. 1, 2002 memo prepared for Alberto Gonzales titled “Standards of Conduct for Interrogation.
“But OPR investigators believed Yoo should have cited and applied Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry S. Truman’s effort to seize steel mills shut down in a labor dispute during the Korean War. Truman believed the strike would threaten national defense. According to the 1952 Supreme Court opinion, Truman ‘issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills.’
“‘The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces,’ the Supreme Court brief says. ‘The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions.’
“The Supreme Court overturned Truman’s order saying, ‘the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.’ Although Truman did alert Congress about his plans, Congress did not delegate authority to Truman nor did they specifically provide Truman with approval to seize the steel mills. Therefore, the Supreme Court found, Truman’s actions were unconstitutional.
“Justice Robert Jackson wrote a well-known concurring legal opinion in the case on the separation-of-powers often cited by constitutional scholars as defining presidential powers during wartime
“‘Justice Jackson’s opinion is the most persuasive of the opinions justifying the decision,’ Scott Horton, a Columbia Law School professor said in an interview. “If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance. It’s obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did.”
. . . follow-up comments:
“More background on the memos. I know the JAGs were very upset about this. Again, as I noted in my earlier email. Yoo and Bybee did not cite relevant legal precedent. That is why their memos are being criticized and why at least the bar associations should administer sanctions. Again, Law School 101.
“When military lawyers protested that the brutal interrogation methods may have violated anti-torture laws, White House meetings were hastily arranged involving then-White House Counsel Gonzales, Vice President Dick Cheney, his chief counsel David Addington, National Security Adviser Condoleezza Rice, and other officials from the State Department and the Pentagon.
“The discussions focused on the drafting of a legal memo for CIA interrogators describing what methods could be used against detainees, the sources said. Yoo then crafted a memo, which was signed by Bybee, providing the Bush administration with the legal justification to authorize interrogators to subject suspected terrorists to techniques, such as waterboarding.
“The legal sources said the OPR report criticizes Yoo and Bybee for not citing relevant legal precedent that would undercut their arguments, meaning that the White House was not given proper legal advice. This alleged failure could lead the Justice Department to refer the matter to state bar associations for disciplinary actions, including possible debarment.
“The OPR report also criticizes another OLC lawyer, Steven Bradbury, whose later legal opinions gave additional cover to the Bush administration's interrogation policies, the sources said.”
. . . and a further follow-up:
“Note this article on former FBI agent Soufan regarding questioning of detainees.”
“‘We Could Have Done This the Right Way’ – How Ali Soufan, an FBI agent, got Abu Zubaydah to talk without torture.”
by Michael Isikoff
Newsweek
From the magazine issue dated May 4, 2009
http://www.newsweek.com/id/195089/output/print
My reply:
After reading the first nine OLC memoranda, I wrote, “The analysis of the law appears accurate, at least from the Executive perspective, and yet the argument conveniently ignores the checks & balances to Executive powers to prevent or reduce the likelihood of abuses, as well as the political aspects, i.e., public perception; which weakens the basis for the President’s warfighting authority.” [381] The weakness in the memos (I’ve read) is the paucity of balance, bent upon rationalization of maximum extension of presidential warfighting authority in a highly asymmetric war.
To me, proper counsel is presentation of all aspects of an issue, analysis of the various elements, and a recommendation based on that analysis. Clearly, by the memoranda offered up so far (and they may have been chosen for this purpose), the legal analyses of these sensitive warfighting-related issues appears to be markedly unilateral.
As you noted, I have not found one reference to Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579 (1952); no. 744] [350] in the memoranda. As Justice Jackson observed in Youngstown, “Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army?” Yet, with the central theme of presidential power in Youngstown and the present debate, we have one major difference – Youngstown was about domestic authority. Somehow, I doubt either Yoo or Bybee were incompetent or unethical or irrational. Nonetheless, I do agree with your assessment. Youngstown was too important of a case in any debate about presidential constitutional authority to be ignored.
I continue to struggle with the separation of and yet inevitable intersection of judicial prosecution and national security intelligence processes. The 4th & 8th Amendments strive to protect the citizen and define limits of State power; however, they are not shields for attacking the State. I understand and appreciate the need to extend the umbrella of our freedoms to all who enter our sphere of influence. After all, we want all people to enjoy the rich bounty of freedom. We need the Bill of Rights, habeas corpus, and the rule of law to order society, seek proper balance between public and private, and help us realize that bounty.
As I read both 2.August.2002 memoranda, they sought the limit to “enhanced interrogation techniques” for an “increased pressure phase,” involving high-value captives. Yoo & Bybee were cautious with the law, recognizing the vast difference between a common domestic criminal, and a Geneva Convention prisoner of war, and extra-national battlefield combatants. We can debate torture, severe pain, injury, irreparable harm, et cetera. But, we must also define intelligence versus prosecution.
I have asked the same question repeatedly, and as yet, no one has attempted to define the limits of interrogation techniques available to “encourage” a captive to offer up the information they possess. I continue to ask the same question. What is the inducement necessary to get the target to talk?
The techniques discussed in one of the 2.August memoranda do not and have not caused injury. Bybee carefully articulated the need for medical (including psychological) treatment availability as part of the enhanced interrogation processes.
I appreciate Ali Soufan’s sensitivity and all the other FBI & military officers who bring a law enforcement approach to interrogation. As the Isikoff article reported, “They nursed his wounds, gained his confidence and got the terror suspect talking. They extracted crucial intelligence, including the identity of Khalid Sheikh Mohammed as the architect of 9/11 and the dirty-bomb plot of Jose Padilla before CIA contractors even began their aggressive tactics.” I would say, congratulations to Soufan and his colleagues. If the high-value captive can be encouraged to relinquish his information with milk & cookies, I am all for that. If the captive does not cooperate, what next? Do we press on for a decade in hopes he eventually breaks? Do we simply wait him out? How do we rationalize allowing a WMD strike to be executed while we wait for the guy to give up his information? And, when he does, will it be relevant, timely or of any value? I am all in favor of the least possible pressure. I am not and never will tolerate abuse of any captive, but the Bill of Rights does not apply to battlefield captives, which means that if we eventually seek prosecution of high-value captives, the evidence must be developed beyond his interrogation for intelligence purposes.
We must seek and find balance. We are not there. We must also acknowledge that having this debate in public virtually negates the potential benefit of “enhanced interrogation techniques.” They will know and train for the playbook. Never, ever, a good thing, to my thinking.
A postscript:
The issue of Enhanced Interrogation Techniques (EIT) is the last choice for a very few, specific captives. Most battlefield combatants do not possess information of strategic intelligence value. Even the faction that do, perhaps most will respond to convention “police” interrogation techniques. An even smaller percentage might open up using soft “intelligence” techniques. However, there are few like KSM that leave us the only choice of EIT or give up. We are NOT talking about general, indiscriminate abuse of captives. Further, one factor not yet included in this debate is time; do we have time to allow the softer approaches to work?
Despite my attempts to find some rational perspective in this sensitive topic, Porter Goss is correct. Once the New York Times began their exposé, the damage to our national security intelligence means & methods was done, just as it was with the NSA surveillance program. Very sad, actually . . . just to satisfy a political agenda. Oh well, shit happens.
Another contribution:
“I really appreciate your synopses of the various text and legally renderings. After reading most, not all, however, of them you are spot on in your interpretation of them. Your agreement or disagreement with them are always open for discussion.
“COMMENT: one of personal liberty’s greatest good is to allow a person to have and/or create wealth legally without the government spying on us.”
My response:
Discussion and debate is the whole point – not being right or wrong. Thank you for your contribution to the debate.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
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