Update no.403

Update from the Heartland
No.403
31.8.09 – 6.9.09
Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- Former adversaries and now compatriots before the bar David Boies and Theodore Bevry “Ted” Olson [397] have followed through on their pledge to challenge the California Prop H8 [345, 355] vote [360] and subsequent state supreme court Strauss v. Horton [CA SC S168047 (2009)] ruling [389]. Boies and Olson will jointly represent plaintiffs – two couples of the same gender – in a Federal challenge of the California state constitutional law enforcing discrimination. U.S. District Judge Vaughn R. Walker of the Northern District of California has set the trial date in the case of Perry v. Schwarzenegger for 11.January.2010. I suspect we will see the result by late winter / early spring. No matter the outcome at the trial court, the decision will surely face inevitable appeals through the 9th Circuit Court of Appeals and eventually to the U.S. Supreme Court, and the process will probably take years. Beyond the human rights aspects of this case / issue, I eagerly await the scope and rationale offered up by Boies and Olson.
-- I suppose my drug regulation proposal [402] was a little too radical to be considered rational. I will freely admit that it is radical. What we need to hear are alternatives. OK, my hypothesis is not worthy, but surely there are other ideas. The status quo is simply not sustainable. Late this week, I did receive one comment [see Comments Section below].
-- As should be the case in a democracy and especially this Grand Republic, the debate over the purpose and extent of government enacted by We, the People, remains a perpetual tension [90, et al]. Another opinion, worthy of your attention:
Alexander’s Essay: “Rule of Law” – Part 1 of 2
by Mark Alexander
Patriot Post; Vol. 09 No. 35
Published: September 3, 2009
http://media.patriotpost.us/pdf/edition/09-35a.pdf
An interesting perspective, largely factual and un-opinionated, but ultimately self-serving to the ends Alexander espouses.

We shall begin this extended discussion of the CIA’s detention and interrogation program with former FBI agent Ali Soufan (1997-2005), who has been quite outspoken and critical of any use of Enhanced Interrogation Techniques (EITs).
“What Torture Never Told Us”
by Ali H. Soufan – Op-Ed Contributor
New York Times
Published: September 5, 2009
http://www.nytimes.com/2009/09/06/opinion/06soufan.html?_r=1
Soufan was involved with the interrogation of terrorist Abu Zubaydah. He deserves to be listened to and his opinion considered. I offer my opinion below.
Another view and opinion worthy of your time:
“Torture's Unanswerable Questions”
by Richard Cohen
Washington Post
Published: Tuesday, September 1, 2009
http://www.washingtonpost.com/wp-dyn/content/article/2009/08/31/AR2009083102911.html?wpisrc=newsletter&wpisrc=newsletter&wpisrc=newsletter
At least Cohen is making an attempt to find balance in this important topic that should not but now is part of our public debate. Richard concluded his opinion, “The questions of what constitutes torture and what to do with those who, maybe innocently, applied what we now define as torture have to be removed from the political sphere. They cannot be the subject of an ideological tug of war, both sides taking extreme and illogical positions – torture never works, torture always works, torture is always immoral, torture is moral if it saves lives. Torture always is ugly. So, though, is the hole in the ground where the World Trade Center once stood.” Reading the CIA reports recently released by the Administration provide considerably more insight into the intelligence interrogation process (see below).

Last week [402], I noted the release of three (3) CIA documents regarding the Agency’s detention and interrogation program. I finally read and researched the three documents. First and foremost, before we jump in, please note the dates on each of the documents; the dates are important to place the content in context. The subject documents are:
-- “Counterterrorism Detention and Interrogation Activities (September 2001 – October 2003) (2003-7123-IG);” report of the Central Intelligence Agency, Office of the Inspector General (OIG); dated: 7 May 2004; 159pp; declassified, originally classified: TOP SECRET/ [SCI].
-- “Khalid Shaykh Muhammed: Preeminent Source on Al-Qa’ida;” report of the Central Intelligence Agency, Directorate of Intelligence; dated: 13 July 2004; 12pp; declassified, originally classified: SECRET/ [SCI] /NOFORN/MR.
-- “Detainee Reporting Pivotal for the War Against Al-Qa’ida;” report of the Central Intelligence Agency, Directorate of Intelligence; dated: 3 June 2005; 15pp; declassified, originally classified: SECRET/ [SCI] /NOFORN/MR.
In addition, another Bush administration Office of Legal Counsel (OLC) memorandum [381] often referred to in this discussion was:
-- Principal Deputy Assistant Attorney General Steven G. Bradbury, Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency; titled: “Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees;” dated: July 20, 2007; 79pp; declassified, originally classified: TOP SECRET/ [SCI] /NOFORN.
Despite substantial redaction, we can gain significant insight into the CIA’s Detention and Interrogation Program (DIP). Before I jump into my expanded opinion regarding this issue, I would like to illuminate several elements of the primary document – the 159-page, 7.May.2004, epistle written by the CIA Inspector General. OIG para.17: “The current CTC [CIA Counter-Terrorism Center] Detention and Interrogation Program has been subjected to DoJ [Department of Justice] legal review and Administration approval but diverges sharply from previous Agency policy and rules that govern interrogations by U.S. military and law enforcement officers. Officers are concerned that public revelation of the CTC Program will seriously damage Agency officers’ personal reputations, as well as the reputation and effectiveness of the Agency itself.” How prophetic! Just what we need, intelligence officers looking over their shoulder in the middle of a war! The difficulty we placed the CIA interrogators in can be clearly seen in OIG para.209: “According to a senior CTC officer, the interrogation team [redacted] considered Abu Zubaydah to be compliant and wanted to terminate EITs. [redacted] believed Abu Zubaydah continue withhold information, [redacted] at the time it generated substantial pressure from Headquarters to continue use of the EITs. According to this senior officer, the decision to resume use of the waterboard on Abu Zubaydah was made by senior officers of the DO [CIA Directorate of Operations]. [redacted] to assess Abu Zubaydah’s compliance and witnessed the final waterboard session, after which, they reported back to Headquarters that the EITs were no longer needed on Abu Zubaydah.” This episode is the primary source of Soufan’s objection to the use of EITs (noted above). From the OIG report conclusions section, para.250: “The Agency’s detention and interrogation of terrorists has provided intelligence that has enabled the identification and apprehension other terrorists and warned of terrorist plots planned for the United States and around the world. . . . The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured, however.” Lastly, from the OIG report, para.266: “The Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation Program, particularly its use of EITs and the inability of the U.S. Government to decide what it will ultimately do with terrorists detained by the Agency.” I will not extend the digestion of these government documents beyond one last observation from the 20.July.2007 OLC memorandum. As of the memo date and among the thousands of battlefield captives in the War on Islamic Fascism, 98 entered the CIA’s DIP; of those 98, only 30 required EITs to render them compliant. Let it suffice to say, even in the un-redacted portion of the intelligence reports, significant intelligence has been gathered by the CIA program.
As I read the CIA & OLC documents, I was immediately struck by several enduring impressions.
1. The primary national intelligence service of the United States – the Central Intelligence Agency (CIA) – possessed embarrassingly inadequate Human Intelligence (HumInt) capability prior to 9/11. [Of historic note: it appears the last time the United States had a viable interrogation capability was in 1945.]
2. The CIA did not have an established process or trained personnel for (and indeed was institutionally adverse to) an interrogation of high-value captives in the War on Islamic Fascism.
3. The CIA went to extraordinary lengths to ensure proper conduct of its field agents, however, the lack of proper training and supervision did result in events of excessive zealousness.
4. The CIA did everything prudent and proper to ensure it executed the stated policy the United States Government (USG).
5. As appears so typical with the USG, pervasive and burdensome bureaucracy rapidly set in to the CIA’s DIP shortly after the Agency was chartered with that mission.
6. The CIA’s serious lack of confidence in the political leadership in Congress and the Executive produced far too many professionals who were reluctant to be involved in the interrogation process because of doubts regarding the political will of politicians.
7. EIT’s are the tool of last resort, and can be avoided quite easily by providing the information the individual possesses.
I could go on, but those are my predominate impressions.
Knowledgeable voices like Soufan offer deserved criticism and reasonable counter-point to the public debate. Unfortunately, there are few voices to argue the benefits to national security. As a consequence, neither the Press nor any of the self-serving politicos raised the issue of context when the New York Times first disclosed the “torture” issue; and now, the pervasive notion of “torture” has taken on the mantle of truth – c’est la guerre. The fact that the USG made these documents public at all offers dark commentary on the foolish, short-sighted, politically-motivated treatment of our intelligence professionals. Then, to make matters far worse, the President decided to make the interrogation of battlefield captives a law enforcement activity, forming the High-value detainee Interrogation Group (HIG) and politicizing the HIG by having it report directly to the White House – an even further testament to the folly to which we bear witness. The HIG will use law enforcement procedures and be guided by Army Field Manual (FM) 2-22.3 – Human Intelligence Collection Operations –published in September 2006, largely after the abuses of Abu Graib [162, et al]. I have not always agreed with former Vice President Cheney, but at least he’s got the balls to stand up and defend the very agents who stand in harm’s way on our behalf. He is spot on the money . . . we have NOT been made safer or even more righteous by the political witch-hunt unleashed by the President and his Attorney General. I truly hope the uber-Left has gained some satisfaction and comfort for what they have done; I’d hate to think this foolishness has not provided pleasure to some among us. This whole sordid affair will go down in history as American self-emollition to placate the idealists. The CIA’s conduct of high-value combatant interrogations is not a high-water mark; conversely, the Agency is not a group of rogue inquisitors abusing innocent citizens. It is sad that the CIA, which went to such lengths to ensure our detention and interrogation activities were legal and appropriate including seeking Justice Department findings on the proposed techniques to be employed, is the subject of a special prosecutor investigation and public ridicule. I am appalled at how this whole issue has been blown so far out of proportion, and all to further a partisan political agenda. The incidents of overzealous agents or contractors were comparatively few, and as a few events warranted, the individuals involved should have been investigated and disciplined appropriately in secret, to protect a national security intelligence asset. One of the Founding principles of governance in this Grand Republic is that government is instituted by the People to perform the Peoples’ business. As a consequence, We, the People, expect transparency to facilitate our “supervision” of the government’s performance on our behalf, which in turn engenders us to vote for our representatives to best carry out our wishes. We depend upon an active, aggressive Press of help illuminate the actions of the government by turning the opaque into transparent, to facilitate a vigorous public debate. Such transparency stands in direct conflict with the national security charter of the Federal government. Sir Winston wisely observed, “In wartime, truth is so precious that she should always be attended by a bodyguard of lies.” We seem to have forgotten Sir Winston’s wisdom. President Bush made a grave mistake (one among many, I must add) in even acknowledging the existence of the CIA’s DIP. Intelligence collection and analysis is simple a body of tools used to wage war successfully, like rifles, warships, aircraft and missiles. As a sovereign nation-state, the United States of America has every right under national and international law to use the tools in its arsenal to defeat its enemies, who seek harm to its citizens. I read the words of constraint, bureaucracy and reluctance in the CIA documents, and I shiver with true regret that we are trundling down a familiar road to emasculating our intelligence service all in the name of some feel-good sense of propriety. The very existence, let alone the activities of the U.S. Army’s Military Intelligence Service (MIS) [AKA P.O. Box 1138] in World War II took 50+ years to reach public view, and even to this day, we do not know exactly what they did and what techniques they used at Fort Hunt. What do we do, we excoriate a similar unit in public condemnation while we are in the middle of a war, and even worse, we are so effective at our disembowelment of the intelligence program that we abandoned any semblance of a successor. I am NOT a happy camper. One last angry, sarcastic thought . . . I trust someone sent the Army FM to Usama bin Ladin and al-Qaeda, so they can prepare properly – after all, fair is fair, is it not!

Afghanistan was supposedly the good battle . . . at least we were going after Usama bin Ladin and his henchmen. Now, reports of a resurgent Taliban, rapidly mounting Allied casualty figures, and assessments by flag officers reporting a dire situation, bring some citizens to conclude we should cut our losses, pull up stakes, abandon Afghanistan to its fate, and withdraw to our shores. Of course, that is a viable alternative as long as we are comfortable with the Taliban returning barbarism to that hapless country and hosting their fellow radicals – al-Qaeda. As long as we are prepared to accept the risk of the status quo ante, we’re good to go.

All this Chicken Little ranting-and-raving about President Obama taking us down the road to socialism is a bunch of hooey, IMHO (in the cyber-vernacular). Is he advocating and pushing for socialist-type programs like universal, state-sponsored, health care? Yes, there is no question of the socialist bent to some of these debates. However, as an independent, moderate, Libertarian-minded citizen, we must seek and find some intersection of balance between compassion for our fellow man with our defense of individual rights, free from intrusion by the State. I would rather spend my precious tax dollars on some form of back-stop coverage for disadvantaged or indigent citizens rather than all the damnable, porky, “bridge to nowhere” projects Congress has such a penchant to lavish on their supporters. On the flip side, I truly believe socialism is feel-good pabulum for the masses that ultimately is fatally corrosive to our freedom and Liberty. Thus, to me, the key to finding an adequate health-care compromise lays with constructing a solution that helps the less-fortunate among us without demanding universal sacrifice. As with my psychotropic substance legalization / regulation proposal, we must look to the greater public good rather than our narrow, self-serving and ultimately selfish interests. In essence, I am in favor of the government helping those who seek help as long as such assistance does not allow the State to further intrude upon our private lives. I want to help, but I want the government to withdraw from the private domain and focus solely on the public good; so much so that I will gladly sacrifice the few in need, to get the government out of the private domain. Sound cynical? Perhaps . . . but that is a measure of my dissatisfaction with what has happened within this Grand Republic in my lifetime. I want to smite the camel’s nose, not allow him to push his head, neck and forelegs into my tent.

News from the economic front:
-- The Institute of Supply Management (ISM) reported on manufacturing activity within industrial nations worldwide. August activity expanded in the United States for the first time in 18 months. ISM’s purchasing manager's index rose to 52.9 last month from 48.9 in July, reaching the highest level since June 2007. Readings above 50 indicate expansion in the manufacturing industry. The People’s Republic of China manufacturing activity continued to expand, along with Germany and France, while Spain, Italy and the UK showed unexpected weakness.
-- Retailers reported August same-store sales fell for a 12th straight month as back-to-school results came in worse than expected. The bright side of the results comes in the fact that the decline was smaller than July.
-- Employers cut 216,000 jobs last month, compared with a revised 276,000 in July. The unemployment rate grew to 9.7% from 9.4% in July – the highest level since June 1983. The rate of job losses has decreased substantially since the first of the year – a further indication the recession may be approaching the turn-around knee.
-- In a long running dispute between Boeing and Airbus, the World Trade Organization (WTO) issued a preliminary ruling that Europe's Airbus had received unfair and forbidden subsidies from European Union governments. The WTO declared that every launch aid package given for the A380 passenger jet was an illegal subsidy.
-- Finance ministers and central bank chiefs from the Group of 20 largest economies agreed Saturday to a global framework for bank capital rules under which banks will face higher capital requirements. They also agreed on guidelines for the payment of bonuses to bankers, but could not agree upon a limit to the amount that can be paid to an individual. The finance official met in preparation for a gathering of G-20 leaders in Pittsburgh on 24/25.September.

Comments and contributions from Update no.402:
From the blog:
“I read the article on the C Street house, and I find that chilling. I find this much more scary than the TV preachers or assorted bigots in the streets. These people connect exactly the sort of insane ideas that you and I oppose so vehemently to the people in power that we so distrust. The hypocrisy about the sexual affairs is the least of this. The article states that they call themselves the ‘Christian Mafia.’ I suspect that they resemble the Mafia far more than they do the Christians.”
My comment to the blog:
Everything I have learned about the C Street House leaves me nauseated, angry, and incited to action. Even more regrettably, one Kansas senator (Brownback) and my representative (Tiahrt) are reported to be members of this disgusting group. Any person or group of persons who place themselves above others, no matter what the reason or rationale, will attract my ire and disdain. I also think your opinion is spot on the money; they far more closely resemble the Mafia than they do Christians . . . and now that I think of it . . . that is giving Mafiosi a bad name. At least the Mafiosi are not hypocrites.

Another contribution:
“The more I see what not just Obama but also his various appointees, and his more liberal supporters in Congress are doing, proposing, etc, the more worried I get. We get a lot of stuff saying ‘Oh NO, that is not true,’ when what has been proposed at least IS true. So why doesn't Obama fire those people, or at least put the squash on Congress people who are far left of mainstream America? Obama is no dummy! He sees what is going on.”
My reply:
Good question. My guess: all presidents in contemporary times view such actions in essentially pure political terms, i.e., to fire someone with the opposition clamoring for him to do so is a sign of weakness – fresh blood for the sharks – an incitement to a feeding frenzy.
Everything I have seen, read, heard, or I am aware of tells me these progressive disclosures, leaks and public pillory of the CIA is 100% a political ploy to placate the uber-Left. I can find very little rational justification for what is happening.

A different contribution:
“I would have another take on Holder's decision. He is the Attorney General of the United States and has a duty to investigate situations that look like they involve potential criminal conduct. What he is doing is proposing an examination of those who went beyond the guidelines that were provided for the enhanced interrogation techniques (EITs) – which were pretty expansive from what had been allowed before. If there is something that looks like a serious federal crime has been committed, he is duty bound to look into it. And despite what has been said, there was no ‘investigation’ of this by DOJ. The cases in point had been sent to a U.S. Attorney’s office, NY or Northern VA I believe that essentially acted as a ‘dead letter file.’ No investigation had actually been conducted.
“The Administration clearly would not like this to happen, but that Holder is doing it shows he is doing what he is supposed to do and do so in an independent manner. There is never a good time to investigate things like this about your own government. That is the very message we were giving the Serbs a few years ago.
“And despite the fact that torture is illegal in the U.S. by law and treaty, its adherents say that is should be employed because it works. While that is a legal irrelevance, the fact is that it doesn't work. The former VP had been calling for documents to be released that would 'conclusively prove' that EIT worked. They were released and they clearly did not do what the VP said they would. See below comments from a retired FBI agent on this subject- he says the facts are not there that this stuff works.”
My response:
I finally read the recently released CIA reports as well as the referenced OLC memoranda I had not already digested. Those reports paint a far different image of the CIA’s detention and interrogation program than the popular notion espoused by the majority of the Press. We have discussed a few of the OLC memos that served as the basis. We can go ‘round & ‘round over just the definition of torture. I certainly agree that excesses did occur and should be dealt with properly; however, public investigation and trial during wartime is NOT the way to do it. I have seen no evidence to claim a general, broad moniker of ‘torture’ being applied to the USG’s intelligence interrogation process. From March 2002 to July 2007, of all the hundreds or thousands of battlefield captives in the War on Islamic Fascism, 98 were deemed high-value enough to be rendered into the CIA’s interrogation process. Of those 98, just 30 needed more than “law enforcement” procedures, i.e., EITs. 30! Just the KSM yield alone brings the question to a point. From the CIA OIG report in May 2004, we see the struggle within our primary national intelligence service regarding the interrogation process, concern by agents, and we also see the benefit.
Yes, torture is illegal; torture = the act of inflicting excruciating pain. I agree with the OLC, EITs as used by the CIA are not torture; they were not and are not administered to elicit a confession, to impose punishment, or even to seek retribution; no injury occurred. The EITs could easily be avoided by providing the information the interrogators sought.
As I have written, I think POTUS’s HIG is a really bad idea and not in the best interests of national security. National intelligence and law enforcement are two, distinct, vastly different purposes and processes. What they have done with the HIG is forced the former to shift a goodly distance toward the latter. This is just another self-inflicted wound not materially different from the 1978 Church Committee.

One last contribution this week:
“RE:..................... ‘There is much more to this story; however, this should suffice to offer a picture of what I think drug legalization / regulation might look like and how it might operate. I’m sure you have plenty of questions and arguments, so fire away. Thank you for asking and listening.’ ….........
“Your dissertations appear to reject virtually all moral boundaries which I believe leads to endless uncertainty, confusion and societal destruction. Yours is, I believe, a horrible model for parenting or leadership of any type (Civil or Military). It is I believe ludicrous, even insane, to insist or assume that there is any right to privacy that exists behind our doors or inside our bodies.
“The model you suggest requires a degree of regulation that no human can possibly define or administer. What a horrible nightmare it creates for our Civil and Military Protectors: Parents, Teachers, Politicians, Policemen and Soldiers. Only a Divine Authority can define and administer such a model. But you appear to reject any and all Divine Authority.
“For myself, I believe in and accept the Divine Authority I see in The Judeo-Christian Faith, and believe to be presented in the Christian Bible, which documents and presents clear Moral Boundaries for all Leadership.
“I believe that Faith is strongly imbedded in our United States Constitution and related documents, which have for that duration set the Moral Boundaries of our society. I am also convinced that we, as were the inhabitants of the Biblical Nineva, are destined for extinction as we drift away from that Faith.”
My reply:
The issue is not whether you or I have moral values. I think we can both recognize and acknowledge comparable moral values. The central issue is whether every citizen has the expectation – the fundamental right – to privacy and the exercise of their freedom of choice.
You said, “It is I believe ludicrous, even insane, to insist or assume that there is any right to privacy that exists behind our doors or inside our bodies.” Interesting! If so, do you believe the government (city, county, state and federal) has the authority to enter anyone’s home and to control all bodily functions of every citizen? If so, based on what authority? Where is that written in the Constitution or common law? If not, what were you trying to say? Without a fundamental right to privacy, how can any of us ever expect to realize our Life, Liberty and pursuit of Happiness? What is freedom without privacy? To return to your argument, why should We, the People, enact and enforce laws that attempt to control conduct / behavior in private homes?
We have a rich arena for debate.
What would you propose we do about drug use, the criminal sub-culture that supplies the drugs? Why should we tell a citizen they cannot use alcohol, tobacco, marijuana, cocaine, heroin, any substance? Surely, you would agree that the war on drugs has been, is, and will remain a failure, destined to absorb more resources, destroy more lives, and compromise more of our freedom as its corrosion continues to work.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)