Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong

Philippe Sands on John Yoo's Torture Memo and Berkeley Law School Dean Chris Edley

Over here: http://delong.typepad.com/the_torture_memo/2008/05/philippe-sand-1.html.

Here is a taste of what Philippe Sands has to say. He is reassured that his conclusions "have not been challenged":

VF Daily: Guantanamo Update: A New York Times editorial described [John] Yoo’s continued employment at Berkeley as “inexplicable”, and this seems to have stung the Dean at that law school, Chris Edley, into explaining the limited options available to him.... I have less sympathy... for Dean Edley’s assertion that:

no argument about what [Yoo] did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place...

[L]awyers play a crucial role, as gatekeepers of legality.... When the lawyers bend... cross a line... ethics violations... criminal violations.... I was told that, under their rules of criminal law, “the lawyer has the same responsibility as the interrogator,” and that, when it comes to torture authorized by a lawyer, “the lawyer who gives such legal advice is not [treated] as an accomplice, it is as though he is the author"...

Robert Waldmann on E.J. Dionne (Washington Post Death Spiral Watch)

If the Washington Post is going to survive four more years, it is going to have to train its columnists to fact-check Republicans before they take their word. It's not hard. But it is not done.

Here is Robert Waldmann on E.J. Dionne:

Robert's Stochastic thoughts: The excellent E.J. Dionne has a nice column about Republican panic. He notes, among other things, that the iron party discipline appears to be breaking. Mainly, he interviews Senator Bob Corker (R-Tenn). Corker hints at something very important

And Corker said voters did not believe the Republicans were "solving the major problems," notably guaranteeing Americans health coverage. "We just haven't been responsible," Corker said. "We deserve to be where we are. I hope we right ourselves."

Oh my. That is a Republican senator who just said that he wants to guarantee Americans health coverage. Corker is saying that if the Democrats are looking for a few Republican votes for Cloture on health care reform in 2009, he is ready to deal.

However, I am going to focus on something very unimportant. Corker was the only Republican to win a close race for the Senate in 2006, so he is a natural person to ask what the other Republicans are doing wrong. However, Corker's version of the 2006 Tennessee senate race is totally false.

Yet the national party almost blew the race near the end, Corker said, by running an ad that many saw as racist. The commercial, aired without Corker's knowledge, included a young, blonde, white actress declaring that she had met Ford "at the Playboy party." It ended with her whispering the words: "Harold, call me."

Corker was furious, and not just because his six-point lead melted into a four-point deficit. The party eventually pulled the radioactive ad, and Corker won narrowly.

At the time, lefty bloggers argued that the ad would help Corker, then argued that it had helped Corker. I wasn't following it, but it seems that ABC news agreed with Corker's recent claim that the ad backfired

You can guess the rest.

Hard data, that is polls, show that lefty bloggers were right, that ABC news was clueless and that the excellent E.J. Dionne allowed Corker to lie mislead about recent history by cherry picking two polls, which, in contrast to the overall average of polls, suggest that his support fell when the ad aired.

The ad came out in late October 2006. In September and early October, the polls were almost exactly tied. At the time of the ad controversy, Corker pulled ahead. Then he won. I recall that, at the time, people argued that the shift occurred because Ford confronted Corker at a Corker campaign event and not because of the ad. No one dinied the shift and the coincidence in timing. Two years later an agreed fact has made it down the memory hole.

Here is the report with a graph of polls from Pollster.com

E.J. Dionne should know better than to leave a Republican's fact claim unchecked.

Ross Douthat Writes a Truly Terrifying Horror Story

It's about people doing to George W. Bush in the future what others have in the past done to the foreign policy of Teddy Roosevelt:

The Atlantic Online | June 2008 | Redeeming Dubya | Ross Douthat: The national memory often confuses hubris with greatness. That’s good news for George W. Bush: The idea that history might rehabilitate George W. Bush seems too ludicrous to be seriously entertained. His approval ratings have been so low for so long, it’s hard to remember that he was ever popular. The Iraq War, his signal endeavor, has lasted for more years than America’s involvement in the Second World War and seems likely to last longer; a fragile truce in a wrecked, misgoverned country is the best the next president can hope for.

Even many of the president’s ideological allies consider him a failure... a false conservative who betrayed the Reagan legacy... a blunderer... [whp] couldn’t follow through. His liberal foes, whose bill of indictments has swollen to the size of Gravity’s Rainbow, while away the hours until January 2009 by arguing over just how terrible a president he’s been. The worst since Nixon? Since Hoover? Since James Buchanan?...

[N]early every presidential reputation, however tarnished, eventually finds someone willing to defend it.... But something more than partisan apologetics will be needed for his presidency to be remembered as something other than a failure.... George W. Bush will have to win over not only centrists but at least some liberals.... Imagining that these liberals, and others, might be won over again requires two big assumptions. First, assume that the years immediately after Bush leaves office pass without domestic calamity.... The harder assumption... America’s intervention in Iraq eventually needs to come out looking like a success story rather than a folly.

This seems improbable, to put it mildly. But the crucial word here is eventually. The Bush administration has often seemed bent on vindicating, in the short run and by force of arms, Francis Fukuyama’s famous long-term prediction that liberal democracy will ultimately triumph... if the Iraq of 2038 or so is stable, democratic, and at peace with its neighbors, and if American troops have maintained a constant presence in the country--no one should be surprised to hear hawkish liberals as well as conservatives taking up the idea that George W. Bush deserves a great deal of the credit.

I do not mean to suggest that this is a likely outcome, or that it would be a just one. The cost of the Iraq War, in lives and dollars and squandered opportunities, ought to far outweigh the possibility that a long-term American presence might push the Middle East in a direction it was headed anyway.... [W]e’ve forgiven Teddy Roosevelt his role in the bloody and disgraceful occupation of the Philippines.... Despite our crimes, the Philippines turned out well enough in the long run... these well-respected presidents have benefited, as well, from the American tendency to overvalue activist leaders....

[A] too-keen awareness of the American tendency to associate great leadership with world-historical ambition has wrecked the presidency of George W. Bush. But the enthusiasm for Barack Obama and John McCain suggests that the yearning, on the left and right alike, for presidents who will pursue greatness has only been enhanced by the debacle in Iraq. This is good news for Bush.... But it’s dangerous news for America. Those who rehabilitate the follies of the past are condemned to repeat them.

Matthew Yglesias: Why Are We in Iraq?

he quotes Spencer Ackerman:

Matthew Yglesias: Traffic Stop: Spencer Ackerman:

Geoffrey Millard, a soldier with the New York National Guard, was a general's assistant in Iraq. He related a story he attended a briefing his boss about: a soldier at a traffic control point, faced with a speeding, oncoming car, "made a split-second decision" to fire "more than 200 rounds into the vehicle," killing its inhabitants. "He then watched as the mother, father and two children were carried from that car.

"That evening, as it was briefed to the general -- and I flipped the slides for that briefing -- Col. [William] Rochelle, from the 42nd Infantry Division, DISCOM [Division Support Command] commander -- and I have to apologize for a little vulgarity here, but I feel it's intricate for my testimony -- he turned in his chair to an entire division-level staff, and he said, and I quote, 'If these fucking Hajjis learned to drive, this shit wouldn't happen.'"

To me, in a sense, it's these checkpoints incidents, more than anything else, that exposes the fundamental folly of occupation.

If you're an American, it's just not going to be tolerable to have a bunch of foreigners who only speak Arabic manning traffic stops while heavily armed and ultimately accountable only to an all-foreign chain of command. Nobody would put up with that -- it's absurd. And of course if an American cop had put 200 rounds into a car and killed a whole civilian family over a traffic violation there would have been a shitstorm about it in local politics and the legal system. Even if the shooter evaded any criminal sanction, there would be consequences -- you couldn't possibly just brush it off and put the guy back out there directing traffic!

And conversely, suppose you were asked to finish up your basic training and then go to a foreign country where you don't speak the language but there is a domestic insurgency that forms one part of a complicated patchwork of oft-violent political machinations that you have no way of understanding. You've got a gun, some of your colleagues have been blown up, and here's car speeding right toward you. How am I going to blame you for opening fire? And can you imagine orders going down the chain of command asking U.S. soldiers to radically increase their chances of getting killed in order to somewhat reduce the odds of Iraqis being killed in good faith mistakes? Or putting your life in the hands of your fellow soldiers and then turning around and ratting them out if their errors led to loss of civilian life?

The whole thing is maddeningly impossible. I can't at all imagine the right way to handle these situations. Shrugging it off with an "If these fucking Hajjis learned to drive, this shit wouldn't happen" clearly isn't the right answer, but is there one? I say, no there isn't -- there's just no good way to be a long-term occupying power. American soldiers are (rightly) accountable to American politicians who are (rightly) accountable to American voters but that means they can't be the ultimate source of authority in Iraq in any kind of reasonable way.

DeLong Smackdown Watch: John Yoo's Torture Memo and Academic Freedom

A commenter, Wetzel, writes:

You have placed Professor Drumond in a position where to initiate an action in defense of a thousand year tradition of law against, torture he must push up to the line, and maybe cross the line into an improper form of inquisition. The question of your standing, and the Senate's standing, is really important, I think, to interpreting the rationale of his reply.

For us who are outraged over what Yoo and the others have done in our name, his reply seems like a really thin gruel. I think he is probably taking the right approach, unfortunately. Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry.

There is another tradition in law going back even further than prohibition of state torture governing the standing of complainants in proceedings. The question of standing to speak is a settled wisdom that is a first order concern of any parliamentary organization. In the light of this, Dr. Drumond understands the limitations of his position. The controller of the floor must withstand those who would advocate the parliament assume a role for which it was not intended or proper. Obviously the introduction of matters of professional misconduct by peers within a university against each other to the floor of the Senate for debate must involve the questino of the standing of the complainant. Certainly it is not permitted for one faculty member to initiate an inquiry by the Senate against another faculty member as an individual Professor, and if there were such a process it would certainly need to be extremely circumspect and deliberative before even the first proposal of inquiry were public, no matter how egregious the complaint. I imagine Professor Drumond is a bit peeved that you do not seem to understand the dangers of Inquisition, because if you did then you would understand you have put the Inquisition on him, because many readers will see his reply simplistically and view him as Kafkaesque, cowardly, or participating in the banality of evil. The ability of a university administrator to accept this perception of their bland, indifferent replies as a bad thing is frankly sacramental.

Because the seriousness of John Yoo's Torture Memo extends to criminal behavior, I feel that an inquiry at the university level, especially at this early stage, is not proper because there would not be proper rules of evidence and processes ensuring objectivity and transparency. In a Berkeley inquisition, how would evidence of law breaking produced through the inquiry be referred to the Justice Department? Although I suspect that Professor Drumond would probably want to see Cheney, Yoo, Bush all at the Hague like the rest of his do, he modulated his reply to even have the not too diplomatic mention of the word 'defamatory', which is his way of kicking your shins a bit for catching up the Senate in the overall legal crisis of having a criminal in the White House. It is beyond their scope. I think you should not hold the letter against him because it is written to be exactly bland and imperturbable to protect the Senate against becoming an inquisition, which is a first order responsibility.

I think Wetzel's critique is easy to answer.

First I genuinely think a fact-finding inquiry would be useful. At what point violations of intellectual integrity become grave enough to warrant some kind of sanctions--that is not a question I know the answer to. I think that there is a line that should not be crossed, and that some form of responsibility for line-crossing would be a good thing, but I am not at all sure where the line is or what the sanctions should be. And my first response as an ineffectual liberal academic is to say that we should try to discover what the facts are and what we think about them by talking about them, publicly.

Wetzel says, essentially, that it is impossible to have a fact-finding inquiry into John Yoo's Torture Memo because the facts have an anti-Yoo bias:

Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry...

Thus Wetzel believes that any such inquiry must turn into an Inquisition, rather than (say) into a vindication of Yoo's actions (and legal theories) or into a rough consensus that Yoo faced painful dilemmas and dealt with them like a responsible adult. And I think that Wetzel suggests that if the facts were not so biased against John Yoo--did not suggest a possibility of criminal culpability that makes the Republican ex-chief of staff for Secretary of State Colin Powell suggest that Yoo not travel to western Europe ever again--then we could have a fact-finding inquiry.

I think there has got to be something wrong with any "it's unfair because the facts are biased!" position. Wetzel's position seems to me to be one such. It is not the case, mind you, that I am dead certain of what is wrong with Wetzel's "it's unfair because the facts are biased!" position. But I am dead certain that there is something wrong with it.

And I would like to know--coolly, factually, dispassionately--the answers to the following questions:

• In 2000, John Yoo wrote that President Clinton exceeded his powers as commander-in-chief by placing American forces in Kosovo under the command of British NATO General Michael Jackson. Is it possible for an honest and sane lawyer to believe that and also to believe the doctrines Yoo set forth in his Torture Memo?

• Does the omission of any discussion of the Youngstown case from John Yoo's Torture Memo cross a legal line and violate the professional duty of a lawyer to give advice about what the law is--not about what he thinks the law should become--to his clients?

• Consider the arguments of the Torture Memo--arguments about which Georgetown's Marty Lederman writes: "I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest..." Do these arguments rise to a level of misconduct equivalent to that of the misrepresentation of sources in other disciplines?

• Did John Yoo cross the line at OLC and become not just an advisor but an implementer, and thus a member of a conspiracy to commit acts of torture?

• Is there an academic freedom safe harbor, according to which all deeds and writings while not at the academy are irrelevant to whether one meets the intellectual standards of inquiry, scholarship, honesty, and honor that must be maintained for continued membership among the faculty of the university?

Originally I had two more questions:

• Was John Yoo's role in the Bush administration confined to the justification of torture only in "ticking bomb" situations in which the plea of necessity can be made (whether or not it is accepted)?

The answer to this is "no." John Yoo's role was to argue for the power to torture in routine bureaucratic cases--torture of people many of whose factual guilt and ability to threaten the national security of the United States was not only doubtful but extremely unlikely.

• Have John Yoo's actions strengthened the national security of the United States?

The answer to this is also "no." His actions have weakened it.

I Know That This Is Wrong...

But I cannot help but ask you all for your views on this:

The Corner on National Review Online: The Bush Legacy   [Jonah Goldberg]: About a month ago, I called Ramesh in a panic because I'd forgotten that I was slated to do a Close-Up Foundation interview on the Bush legacy and I hadn't thought too much about it. Fortunately, not only did Ramesh have some great thoughts, but I was wrong about the date — by a month (I'd entered it into my PDA wrong). Anyway, I'm doing the interview this Thursday and while I have my thoughts far better organized, I thought it'd be interesting to know what NRO readers think Bush's legacy will be. Please send thoughts — hopefully constructive — to JonahResearch@AOL.com

Post 'em in comments, and I will send them all bundled up to JonahResearch@AOL.com...

Philippe Sands Talks to Bill Moyers About the Torture Team--David Addington, John Yoo, and Company

This is even scarier than I had imagined it would be:

Bill Moyers Journal . Transcripts | PBS: After 9/11, writes Philippe Sands, our highest government officials sanctioned a 'culture of cruelty' that put our troops, our Constitution, and our own standing in the world at risk. This week, members of the House Judiciary Committee began hearings trying to find out how the President came to approve "enhanced interrogation methods" — that's the official code for the use of cruelty in the pursuit of confession. The administration has been fighting to stop a public accounting of the internal decisions behind that policy. The officials who took part in those discussions fear they could one day face prosecution if their actions turn out to have been illegal. Those key officials talked to Philippe Sands for his book, and this week he was asked to testify at those hearings in Congress.

REP. JERROLD NADLER:This hearing of the subcommittee on the Constitution, Civil Rights and Civil Liberties will come to order....

REP. MIKE PENCE: Some, of course, have suggested that relationship-building interrogation techniques are preferable and even more reliable in the long-run than stress methods. They raise the question, though, what about the hard cases? And I can tell by your grin you acknowledge the somewhat absurd thought that you could move people who have masterminded the death of more than 3000 Americans by Oprah Winfrey methods.

PHILIPPE SANDS: I did smile because, frankly, the image that weeks and weeks of rapport-building with KSM is somehow going to produce results is counterintuitive. But the reality is we don't know. And I spoke in my investigation to a lot of interrogators — military, FBI — who basically said, "coercion doesn't work. You get information that they want to give you that they think is going to stop the pain from happening."

BILL MOYERS: Philippe Sands is known in top legal circles for his work on torture cases spawned by such infamous dictators as Chile's Pinochet and Liberia's Charles Taylor, and by genocide around the world. He's a counselor to the Queen of England, and director of the Center on International Courts and Tribunals in London, where he closely studied the British fight against terrorists of the IRA.

PHILIPPE SANDS: The thinking in the British military and the thinking across the board politically — it's really not a left-right issue, it's a broad consensus in the United Kingdom — is that coercion doesn't work. The view is taken in the United Kingdom that it extended the conflict with the IRA probably by between 15 and 20 years....

BILL MOYERS: Let me go right to a story that happened after your testimony. It's the story of the suicide bomber in Baghdad who drove his bombing vehicle into an Iraqi police station. It turns out that he had been held at Guantanamo for over three years. Pentagon records say that he had told people he wanted to kill as many Americans as he possibly can . And a lot of people — you go to the blogs this morning — a lot of people are thinking, why give someone like that the benefit of the doubt?

PHILIPPE SANDS: Well, firstly, we give people the benefit of the doubt because that's the nature of our system. We are a country, United Kingdom, United States, who believe fundamentally in democratic values. We don't assume guilt. We assume innocence. There are people at Guantanamo who pose a threat, undoubtedly. But there are also a great many more people who don't pose a threat. And in those circumstances, I think using this as an example to somehow come down on the merits of the Guantanamo system is not a sensible thing to do. I think Guantanamo has been a problem as Abu Ghraib has been a problem, because it has undermined America's claim to moral authority in facing up to the very real challenge of terrorism. And, locking them up and throwing away the key is only going to exacerbate the problem. And it's a problem that we faced in Britain, for example, in relationship to the IRA back in the 1970s and the 1980s. That's not the way to go.

BILL MOYERS: You told the committee this week that the British experience in fighting the terrorists of the IRA actually extended the conflict 15 to 20 years. What's the evidence for that?

PHILIPPE SANDS: The story's a simple one. Back in '71, '72, the British moved as the United States has done now, to aggressive techniques of interrogation. They used pretty much the same techniques: hooding, standing, humiliation, degradation. Five techniques, they were called.... But there was a bigger problem, even beyond their illegality, in my view. And that was this: That what the use of those techniques did was to really enrage part of the Catholic community, who felt that IRA detainees alleged to be terrorists, were being abused. And it turned people who were perhaps unhappy with the situation into being deeply and violently unhappy with the situation. And if you speak to British politicians who were involved in that period, and the British military, what they'll tell you is that there is a feeling that the use of those types of techniques extended the conflict.

BILL MOYERS: Did you learn that people will say anything to stop the torture?

PHILIPPE SANDS: Well, actually, I think it's self-evident that that is what happened. If you speak to interrogators, they will tell you that aggressive techniques of interrogation don't work. They don't produce meaningful information. And just the other day, I was listening to a very interesting tape of John McCain. And he explained how he, in the end, had signed a confession, owning up to crimes against children and women in North Vietnam, basically because he had reached a point, he thought he wouldn't be broken, where he had reached a point where he simply couldn't bear it any more, and he wanted the pain to stop. And the only thing he could do was to tell them what they wanted to know. And that's, that's what interrogators will tell you. Abuse produces information that is the information the detainee thinks you want to know, and nothing more than that. It's not reliable.

BILL MOYERS: Going back to the hearings, one member of the committee, Representative Trent Franks of Arizona, a Republican, said--and I quote-- "The results of a total of three minutes of severe interrogations of three of the worst terrorists were of immeasurable benefit to the American people. A full 25 percent of the human intelligence we've received on Al Qaeda came from just three minutes worth of rarely used interrogation tactics."

PHILIPPE SANDS: Well, I remember that very well. And I appreciated very much everything that Representative Franks had to say. But I've described that to my friends in London as a sort of Monty Python moment in the hearing. Because he alleged that there had been three individuals water boarded. They had been water boarded for no more than one minute each. And they had spilled the beans. And I was sitting there watching him and thinking, well, that's new information. I've never heard that before. Where on earth does that come from? Counterintuitively, I can't imagine how a waterboarding of one minute is suddenly going to produce useful information. We don't even know if it is useful. But also, imagine the scene. You've got guys there with stopwatches. We're gonna waterboard him for one minute, and then we will stop. And in that one minute, everything will come up. I don't know where he got all that from. I thought he sounded as though he made up on the stop. We don't have any objective evidence that any of these interrogation techniques have produced any useful information. KSM, you've referred to, has owned up to virtually everything under the sun that has happened that is bad for the United States in the last five years. And I find that counterintuitive to common sense. I would say I don't have actual information on KSM. I do have actual information on detainee 063. I spent time, as I describe in the book, with the head of Mohammed al-Qahtani's Exploitation Team. And the bottom line of it was, contrary to what the administration said, they got nothing out of him....

PHILIPPE SANDS: Look, Bill, I've spent 20 years during courtroom work as a litigating lawyer. I like to see evidence on things. I like arguments to be based on evidence. David Rivkin is unable to provide any evidence. I have honed in on the interrogation of one man, detainee 063. The administration has publicly declared they got a mass of information out of him that related to all sorts of extraordinarily important things to protect the Americans. I then spoke to the people who were involved in his actual interrogation and the head of his Exploitation Team. That's not what they told me. If the evidence I had been given had been different, then I would reach possibly a different conclusion. Not as to the legality or the utility of torture, but what do we do in the face of evidence that it works? But there isn't evidence that it works. The British experience is that it doesn't work. The Spanish experience is that it doesn't work. The Egyptian experience is that it doesn't work, in the sense of producing meaningful information that is going to protect a country. Sure, it produces information. But as John McCain said in his interview in 1997, it produces the wrong information. Because someone who's subject to that sort of pain and suffering is going to do anything they can to stop it from happening. And they will tell the person who is abusing them what the person wants to hear, and nothing more and nothing less.

BILL MOYERS: Philippe, you spent a long time and made a lot of trips and talked to a lot of people to do this book. What was driving you? Why did you-- you've got enough to do. Why did you want to do this particular book?

PHILIPPE SANDS: I did it totally off my own back. I was fascinated by a simple question. How could lawyers at the upper echelons of the administration, trained at Harvard Law School and other distinguished institutions, have approved torture? In what circumstances could that happen? I didn't understand how it happened. And it combined with a real sense of injustice that the truth of the story had not come out. Because what the administration said, and I was really catalyzed by a press conference I read in June, 2004, as the administration struggled to contain the disaster of Abu Ghraib. The administration spun a story. You're a press man. You know how governments work. I know how governments work. And the story was this: The desire for aggressive interrogation came from the bottom up. People on the front line, people at Guantanamo, elsewhere, told us they needed to move to new techniques. Who are we at the top, to say no? And in that context, we approved certain techniques.... But it struck me as counterintuitive, because I know the American military. I've got a lot of friends in the American military. And they are deeply committed to the rules of the Geneva Conventions and other international rules, and don't go about the abandonment of President Lincoln's disposition. So what I decided to do was I took the famous memorandum by Donald Rumsfeld, signed in December 2002, where he writes on the bottom—why standing limited for four hours a day, I stand for eight hours a day--and I tracked back the entire decision making process, identified the 10 or 12 people I needed to meet. And one by one, tracked them down, went and found them, spoke to them and I'm truly grateful to them. Once I'd had my first conversation, which I think was with Diane Beaver who was the lawyer down at Guantanamo, I was then able to get right up to the very top. And one by one, I followed from Diane Beaver, the lawyer at Guantanamo, her boss, Mike Dunleavy (who's the head of interrogations, through General Hill, who is the head of Southern Command in Miami, up through General Myers, the Joint Chiefs of Staff, up to Doug Feith, the head of policy at the Pentagon, and then right up to the main man in my book, Jim Haynes. Jim Haynes was Mr. Rumsfeld's lawyer. And Jim Haynes wrote the very famous, the infamous, iconic, why is standing limited to four hours memo. And he went to Harvard Law School. And I just couldn't understand how someone so well trained could authorize abusive interrogation like that.

BILL MOYERS: And did he talk to you?

PHILIPPE SANDS: He did talk to me. I had two meetings with him. The fact of the meeting was on the record, the content of those meetings were off the record. But as I say in the book, concluding chapter includes taking to account everything he said to me.... [T]ake Diane Beaver. I had written a previous book where I treated her legal advice. She had been the person down at the bottom who'd signed off on aggressive interrogation. I didn't like her legal advice at all. I thought it was really bad advice and wrong advice. And I was rather uncomplimentary, perhaps even rude about it, in my last book. And then I met her. And she explained to me the circumstances in which she found herself. I don't think it justifies what happened. But she described to me the pressure she felt herself under, the anniversary of 9/11 coming up. This man, detainee 063, al-Qahtani, present and caught. Tremendous pressure coming from the upper echelons of the administration. She described to me a visit that the administration has never talked about in which the three most important lawyers in the administration, Mr. Gonzales, who's the president's lawyer, Mr. Addington, who is the vice president's lawyer, and Mr. Haynes, who is Secretary Rumsfeld's lawyer-- came down to Guantanamo at the end of September, talked to them about interrogations and other issues, watched an interrogation, and left with the message, do whatever needs to be done. Now, put yourself in Diane Beaver's situation. You're getting a signal from the main man at the top of the administration: do whatever needs to be done. That takes the lid off and opens the door.

BILL MOYERS: Was there a single architect of the decision, the person who said, "Take the gloves off?"

PHILIPPE SANDS:There was one lawyer in particular who everyone kept referring to as being, if you like, the brains. I'm slow to use that word for such an awful series of events. But the driving force behind it, and that was David Addington.... But he wasn't speaking off his own back. I mean, he was speaking for the vice president. And I think that the finger of responsibility in the end, will most likely go to the vice president. But Mr. Rumsfeld was deeply involved. And, of course, the president has indicated just within the past month, that he signed off on everything.

BILL MOYERS: You subtitle the book Rumsfeld's Memo and the Betrayal of American Values. Tell me briefly about that memo and why it betrayed American values.

PHILIPPE SANDS: The memo appears to be the very first time that the upper echelons of the military or the administration have abandoned President Lincoln's famous disposition of 1863: the U.S. military doesn't do cruelty.... It's called the U.S. Army Field Manual, and it's the bible for the military. And the military, of course, has fallen into error, and have been previous examples of abuse.... But apparently, what hasn't happened before is the abandonment of the rules against cruelty. And the Geneva Conventions were set aside, as Doug Feith, told me, precisely in order to clear the slate and allow aggressive interrogation... at the insistence of Doug Feith and a small group, including some lawyers. And the memo by Donald Rumsfeld then came in December, 2002, after they had identified Muhammed al-Qahtani. But it was permitted to occupy the space that had been created by clearing away the brush work of the Geneva Conventions. And by removing Geneva, that memo became possible. Why does it abandon American values? It abandons American values because this military in this country has a very fine tradition, as we've been discussing, of not doing cruelty. It's a proud tradition, and it's a tradition born on issues of principle, but also pragmatism. No country is more exposed internationally than the United States. I've listened, for example, to Justice Antonin Scalia saying, if the president wants to authorize torture, there's nothing in our constitution which stops it. Now, pause for a moment. That is such a foolish thing to say. If the United States president can do that, then why can't the Iranian president do that, or the British prime minister do that, or the Egyptian president do that? You open the door in that way, to all sorts of abuses, and you expose the American military to real dangers, which is why the backlash began with the U.S. Military.... It slipped into a culture of cruelty. There was a, it was put very pithily for me by a clinical psychologist, Mike Gellers, who is with the Naval Criminal Investigation Service, spending time down at Guantanamo, who described to me how once you open the door to a little bit of cruelty, people will believe that more cruelty is a good thing. And once the dogs are unleashed, it's impossible to put them back on. And that's the basis for the belief amongst a lot of people in the military that the interrogation techniques basically slipped from Guantanamo to Iraq, and to Abu Ghraib. And that's why, that's why the administration has to resist the argument and the claim that this came from the top.... It started with a few bad eggs. The administration has talked about a few bad eggs. I don't think the bad eggs are at the bottom. I think the bad eggs are at the top. And what they did was open a door which allowed the migration of abuse, of cruelty and torture to other parts of the world in ways that I think the United States will be struggling to contain for many years to come.

BILL MOYERS: You said that the backlash came from the military....

PHILIPPE SANDS: You've got different camps who are struggling down at Guantanamo. And I think it would be wrong in any way to give the sense that there was unanimity to move towards abuse or that there was even strong support towards moving towards abuse. There was a strong body of belief down at Guantanamo amongst the military community, amongst the military lawyers, with the FBI, with the Naval Criminal Investigation Service, that this is a bad thing. Abuse doesn't work, abuse undermines authority, abuse undermines morale. We are going to stop it. Initially, they weren't successful. But once the abuse began, a backlash followed. And the folks down at Guantanamo identified a man in Washington who was the general counsel of the Navy, a man by the name of Alberto Mora, who truly is a heroic individual, in my view, who intervened very courageously, no personal advantage, directly with Jim Haynes, and said, "This must stop. If it doesn't stop, I'm going to reduce this into writing, and I'm going to cause a big fuss."...

BILL MOYERS:The legal affairs correspondent of The National Journal, a very respected fellow named Stuart Taylor, says that we should focus on amending the law to prevent future abuse of torture, but not hold those responsible for past interrogations of questionable legality. What do you think about that?...

PHILIPPE SANDS: I think the crucial issue is you've got to ascertain the facts. I was asked by the committee what should happen. My answer to that question was, "Let's sort out the facts. Once we've sorted out the facts, then it will be for others to decide what to do." I'm satisfied here a crime was committed.... The Geneva Conventions were plainly violated in relation to this man. And in our system laws, if a man violates the law and commits a crime, he is punishable.

BILL MOYERS:So who violated the law?

PHILIPPE SANDS: I think it goes to the top.... I'm not on a witch hunt. I'm not saying that there should be a campaign of investigation and prosecution and sentencing, and conviction, and so on and so forth. What I'm saying is let's start by sorting out the facts. Once the facts have been sorted out, let's see exactly what they say, and it will be for others to decide what needs to be done. But until that's done, you can't close on the past and you can't move forward.... The lawyers were deeply involved in the decision making process. The lawyers that I've identified, from John Yoo at Department of Justice, preparing a legal memorandum which abandons American and international definitions of torture, and reintroduces a new definition that has never been passed by any legislature, that is totally unacceptable. What was he doing there? Was he really giving legal advice? No he wasn't. He was rubber stamping a policy decision. This is not careful, independent legal advice. What was Jim Haynes doing when he recommended to Donald Rumsfeld the authorization for the approval of 15 techniques of interrogation? He was saying to the Secretary of Defense, I'm your lawyer. I'm telling you this is fine. You can do it. If he hadn't done that, Mr. Rumsfeld would not have signed the piece of paper that Jim Haynes wrote. Jim Haynes is directly involved in the decision making process. And the lawyers, as such, play an absolutely key role. Now, at the end of the day, they're not the most important people. The most important people are the people whose signatures are actually appended. They are the politicians who actually decided the issue. But in this case, without the lawyers, they would never have had a piece of paper to sign.

BILL MOYERS: Do you think that people like David Addington and John Yoo and Jim Haynes, and the other lawyers you've mentioned who advised and were on the torture team, should ultimately be held responsible in court for what they did in government at this period of time?

PHILIPPE SANDS: If they were complicit in the commission of a crime, then they should be investigated. And if the facts show that there is a sufficient basis for proceeding to a prosecution, then they should be prosecuted. Lawyers are gatekeepers to legality and constitutionality. If the lawyers become complicit in a common plan to get around the law, to allow abuse, then yes, they should be liable.... Soldiers on the front lines who are doing their best in difficult circumstances, to protect the United States, should not be blamed for what was decided at the top.... If people like Doug Feith and Jim Haynes had said to me, "Look, Philippe. September the 11th came. The anniversary was coming. We were getting information that there were going to be more attacks. We had people that we were told had information that we need to do something about. And we therefore felt, in those circumstances, it was right to use all means appropriate and necessarily to get the information. But, with the benefit of hindsight, we realize we fell into error, we made a mistake. We accept responsibility for that. We will learn from those mistakes. We'll make damn sure it doesn't happen again." I didn't get that at all. There was not a hint of recognition that anything had gone wrong, nor a hint of recognition of individual responsibility. When you read these chapters, when you read my account with Doug Feith and with others, you will see the sort of weaseling out of individual responsibility, the total and abject failure to accept involvement. Read Mr. Feith's book. on how to fight the so-called war on terror. And it's as though the man had no involvement in the decisions relating to interrogation of detainees. And yet, as I describe in the book, the man was deeply involved in the decision making from step one. So it's about individual responsibility. And there's been an abject failure on that account.

BILL MOYERS: Do you think torture's still going on?

PHILIPPE SANDS:I don't think torture is still going on at Guantanamo.... I think there was probably far more systemic torture in Afghanistan, at Bagram and in Kandahar, but not in the military. And I think the military has now stopped. But it's important not to forget that although the military now, following in particular, the intervention of the United States Supreme Court in 2006, very important judgment in the case of Hamdan v. Rumsfeld, which said, Common Article Three of the Geneva Conventions can be invoked by all detainees at Guantanamo. So on the military side, it has stopped. But there remains the other side, the dark side, as Vice President Dick Cheney called it, the CIA. And just in the past few weeks, the President of the United States has vetoed legislation which would... prohibit the CIA from using the very techniques of interrogation that are the subject of this book....

BILL MOYERS: I read comments just this week by a noted Arab scholar, who said that if you walk the streets of Cairo today, stop at the book stalls, stop at the book stores, you see, looking out at you everywhere, photographs of Abu Ghraib and Guantanamo. That the-- this torture, these enhanced interrogate-- interrogation techniques — this cruelty-- has seized the imagination of the Arab world. And that long after all of us have gone, including the torture team, the next generation of Arabs will living with those images. What's your own sense of that?

PHILIPPE SANDS: Well, that, I'm very sad to say, is my observation. I do travel a lot. I travel, you know, in South America, I travel in Asia, I travel in the Arab world. I do a lot of work for governments around the world. And it's sad but true. The image of the United States today is that it's a country that has given us Guantanamo and Abu Ghraib. Now, that is not the America that I know. I've spent a lot of time here, you know. I'm married to an American. My kids were born in the United States. I know what the true America is. And for me, this is a distressing story, because it has allowed those who want to undermine the United States a very easy target for doing it. It's even worse than that, Bill. I mean, I've been in situations-- in a globalized world with the internet, the legal advices that have been written by people like John Yoo at the Department of Justice, and the memos written by Jim Haynes, that have been put in front of the desk of Donald Rumsfeld, have gone all over the world. They've been studied all over the world. Other governments are able to rely upon them, and to say equally, look, this is what the United States does. If the U.S. does it, we can do it. It's undermined the United States' ability to tackle corruption, abuse, human rights violations in other countries, in a massive way. And it will take 15 or 20 years to repair the damage. And that's why, irrespective of the complexion of whichever next president happens to hold that high office-- and I think irrespective of whether it's Mr. McCain or Mr. Obama, or anyone else, there will be a recognition of a need to move on. And moving on means recognizing that errors were made.

BILL MOYERS: So the next president has to wrestle with this, and so do we?

PHILIPPE SANDS: I think we're all going to be wrestling with this. And I think we have a responsibility to wrestle with it in a constructive way, precisely because I think we do face real global challenges. And the threat of terror is real. And the importance of putting the spotlight on the past is to make us learn for the future and to make sure it doesn't happen again.... You need to take the trouble to go and spend many, many hours with people, talk to them, get to know them, understand what motivated them, understand that these are not bad people. These are not people who wanted to do bad things. These are people who found themselves in a very difficult situation, under intense pressure from the top. I think once you've spoken to people, you begin to get a clearer picture. And I hope I have accurately conveyed the conversations in a fair and balanced way. There are people I liked, there are people I didn't like. There are people whose views I shared. There are people whose views I didn't share. But I thought it was terribly important to lay out in the book the range of views that were expressed, and often not even to comment on them. But to let people's views inform the reader, and the reader can then form a view as to whether they agree or disagree. But I have put the other side of the argument, against my own argument. And there will be many, I'm sure, who will disagree with me. And that's fine. Because that's what our societies are about, debating these important issues. I know what I think, though. What happened was wrong, and it needs to be sorted out.

BILL MOYERS: And it's only the beginning. There will be more hearings in June before the same committee, with David Addington saying he will be there, and many of the others: John Yoo and Haynes, and others, saying they will come voluntary and testify.

PHILIPPE SANDS: Yes.... The next hearing is slated in for the 26th of June. I think John Yoo is going to appear at that hearing. He has agreed, if I understand it, to come voluntarily...

The Bush Administration: Worse than You Can Imagine Even Though You Know It Is Worse than You Can Imagine

Via Sadly, No! Stew Magnuson reports on psychopaths who "have the ear" of Undersecretary Jay Cohen:

Security Beat: Now a fixture at Department of Homeland Security science and technology conferences, SIGMA is a loosely affiliated group of science fiction writers who are offering pro bono advice to anyone in government who want their thoughts on how to protect the nation. The group has the ear of Department of Homeland Security Undersecretary Jay Cohen, head of the science and technology directorate, who has said he likes their unconventional thinking.... Among the group’s approximately 24 members is Larry Niven, the bestselling and award-winning author of such books as “Ringworld” and “Lucifer’s Hammer.”...

Niven said a good way to help hospitals stem financial losses is to spread rumors in Spanish within the Latino community that emergency rooms are killing patients in order to harvest their organs for transplants.

“The problem [of hospitals going broke] is hugely exaggerated by illegal aliens who aren’t going to pay for anything anyway,” Niven said.

“Do you know how politically incorrect you are?” Pournelle asked.

“I know it may not be possible to use this solution, but it does work,” Niven replied.

“I cannot guarantee I’m going to be a great help to Homeland Security,” Niven said earlier....

The 45-minute panel discussion quickly deteriorated as federal, local and state homeland security officials, and at least one congressional aid, attempted to ask questions, which were largely ignored...

The Bush administration: worse than you can imagine even though you know it is worse than you can imagine.

John Yoo and Professional Responsibility

2006 Yale Law School Commencement: May 22, 2006: Dan M. Kahan, Deputy Dean and Elizabeth K. Dollard Professor of Law http://www.law.yale.edu/documents/pdf/kahanREVISED.pdf:

There’s another [thing we teach here], which is more complicated and which is concerned with making you good rather than bad lawyers in a somewhat different sense.... [T]here is an element of moral agency in good lawyering.... When I as a lawyer exercise professional judgment, when I perform my professional responsibilities, I affirm the authority and extend the vitality of the norms that construct our professional situation sense... point those understandings in a either a just or an unjust direction....

A little over a decade ago, a brilliant 25 year-old [John Yoo] was standing where you are. Less than a decade later... [John Yoo] found himself serving as Deputy Assistant Attorney General... battling internal opposition from career military officers and lawyers, [John Yoo] wrote a legal memorandum which construed the law to permit the use of interrogation techniques that the U.S. had for decades understood to be banned by the Geneva Convention. Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

The analysis reflected in the so-called Torture Memo did not, in fact, become part of our professional and cultural understandings, our situation sense. But... credit for that belongs to another individual lawyer, who as a 20-something also stood where you now are about a decade and a half ago.... In 2003 he took over as head of the Office of Legal Counsel. And to the shock of his patrons, he immediately issued a directive advising the military intelligence services that they couldn’t rely on the so-called Torture Memo... at a time when high-ranking political appointees in the Justice Department and Pentagon were continuing to place decisive reliance on the Torture Memo. As a result, this lawyer had every reason to believe the Memo’s understanding of the law would persist, and that it would pervade and shape the shared professional and cultural understandings of lawyers, unless he as a lawyer took responsibility for repudiating it. So he did.

This lawyer, Jack Goldsmith, was ultimately pushed out of OLC.... Now that Goldsmith is there [at Harvard Law School], I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of [Goldsmith's] actions, it's much less likely any of you ever will either.

This was my last chance to teach you some law, Yale style. These were my final two slides: one bad lawyer, one good. What made the bad one bad wasn’t that he knew “less law.” It was that he, unlike the good lawyer, refused to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself.

Because you today are standing where these two lawyers stood, because you are standing where number members of Congress, Justices of the Supreme Court, and Presidents of the United States have all stood too, I feel petty certain that a number of you too will be in that position some day. If you are, how good a lawyer you are won’t be determined by how many rules you’ve learned; it will turn on how good a person you are. My apology for not teaching you more “law” is that I thought it was much more urgent to try to teach you that.

Ezra Klein's Menagerie of Decent Conservatives

He names five:

Ezra Klein Archive | The American Prospect:

• Megan McArdle.... I read Megan long before she moved to DC, and in fact, long before I knew her real name, or had ever met her.... I read, and link, to her because she's the writer on the right who's engaged in the project most similar to mine: Namely, trying to seriously examine social and economic policy. But... she's also my inverse. Where my project is trying to figure out social policy from the premise that the economic system is stacked against the not-so-powerful, her premise -- and target -- seems to be that the political culture is stacked against the interests of the rich and economically dynamic.... [S]he comes to some bizarre -- and occasionally cruel -- conclusions, but she also gets in a lot of worthwhile insights, and asks a lot of questions that I find useful. So if what you're interested in is a right wing version of me -- which is to say, a social policy writer who comes to the opposite conclusions and starts from the opposite premises -- she's your girl.

• Ramesh Ponnuru: I find it exhausting to wade through The Corner, but Ponnuru is an interesting thinker with takes policy research very seriously. His article on the conservative approach to health care is about the best I've read on the subject. If I could get a feed of just his blog posts, he'd probably be atop my list.

• Ross Douthat: Great writer, deep thinker. For better or for worse, Ross is among the conservative writers most palatable to liberal readers, probably in part because he's often writing in contraposition to the Republican establishment.... [R]eading Ross will tends to give you insight into how the Republican party is experienced by its more thoughtful members....

• The American Scene: A totally unclassifiable group of political thinkers assembled by Reihan Salam, who's possibly the world's least classifiable individual, period. Includes Peter Suderman, who's one of my favorite cultural writers, and James Poulos, whose stuff I enjoy quite a bit.

• David Weigel: Weigel's one of Reason's guys... loves politics, is obsessed with the horserace, and hates both parties. It's like reading a sports blog by someone who loathes all the teams but can't tear himself away from the joy and spectacle of the competition.

Four of these are, IMHO, OK. But I really have to dissent from the recommendation of Ponnuru. I can't understand what Ezra Klein is thinking.

When I think of Ramesh Ponnuru, I think of someone who is "mystified" at being accused of offering "bad math" in his comments on Bush's Social Security plan:

Ramesh Ponnuru: My post criticized Jacob Weisberg for claiming that President Bush had been unwilling to cut Social Security benefits and had instead balanced the books on his reform plan by invoking high stock-market returns. That wasn't true. Bush proposed cuts in future benefits...

Alas, Bush never "balanced the books" on his Social Security reform plan. Never. Jason Furman--the only person ever to go public with any estimates of the budget impact of the Bush plan, such as it was (certainly no Bush appointees ever had any numbers to talk about), calculated that it closed "only 24 percent of the 75-year [estimated Social Security funding] gap..."

When I think of Ramesh Ponnuru, I think of the guy who flamed Rod Dreher for being concerned about the interaction of industrial air pollution with his kid's asthma.

And, of course, when I think of Ramesh Ponnuru I think of the guy who fled in terror from the subtitle and dust jacket of his own book:

Ramesh Ponnuru: The Corner on National Review Online: A QUIBBLE byRamesh Ponnuru: Garance Franke-Ruta mentions my forthcoming book The Party of Death[: The Democrats, the Media, the Courts, and the Disregard for Human Life], which she describes as a "book on Democrats." The book does have quite a bit to say about the Democrats, and it's tough on them. But the book is about more than that, and the title isn't meant as a pejorative term for the Democrats. I explain, mostly in the introduction, what I mean and don't mean by the phrase. I'm not saying this to complain about Franke-Ruta. It was nice of her to mention the book, and her assumption was an easy one to make, partly because the Amazon page on the book is a bit misleading. (I've tried to get Amazon to change it a few times.)

But what Ponnuru was "complaining" about did not come from Amazon but from Ponnuru's own publisher, Regnery. Here was the inside flap of his book:

Is the Democratic Party the "Party of Death"?

If you look at their agenda they are.

IT’S NOT JUST abortion-on-demand. It’s euthanasia, embryo destruction, even infanticide—-and a potentially deadly concern with "the quality of life" of disabled people. If you think these issues don’t concern you—guess again. The Party of Death could be roaring into the White House, as National Review senior editor Ramesh Ponnuru shows, in the person of Hillary Rodham Clinton.... Ponnuru details how left-wing radicals, using abortion as their lever, took over the Democratic Party-—and how they have used their power to corrupt our law and politics, abolish our fundamental right to life, and push the envelope in ever more dangerous directions.... Ponnuru’s shocking exposé shows just how extreme the Party of Death has become as they seek to destroy every inconvenient life, demand fealty to their radical agenda, and punish anyone who defies them. But he also shows how the tide is turning, how the Party of Death can be defeated...

There is a Ramesh Ponnuru who is a reasonable thinker. But there is also a Ramesh Ponnuru who will say anything to get in better with Republican office-holders. And there is a Ramesh Ponnuru who thinks his job is to feed the wingnuts. You cannot separate them. You shouldn't pretend that you can.

If Ramesh Ponnuru wants to pull an Andrew Sullivan--to perform a public apology and penance for his past sins against sanity--then Ezra Klein can add him to his menagerie of decent conservatives. But until then, no.

Party of the Damned

Dan Froomkin shows us what the print Washington Post could be, if anybody working for it had any ovaries:

Party of the Damned: As the Bush presidency staggers to an end, it's hard to say who has less to brag about: the president or the journalists who cover him. So it's fitting that the last White House Correspondents' Association dinner of the Bush era -- the ultimate celebration of chumminess between the most powerful people in the world and those who are supposed to hold them accountable -- was a dispiriting, mostly humorless affair.

President Bush phoned in his appearance, uttering a few topical one-liners but leaning primarily on greatest-hits footage from previous performances -- and wrapping up with a cartoonish but crowd-pleasing "conducting" of the Marine band. Comedian Craig Ferguson essentially apologized in advance for his understated headlining performance -- a far cry from the withering diatribe delivered by Stephen Colbert two years ago.... [T]he only time he really showed teeth was to attack the no-show New York Times. "The New York Times unfortunately did not buy a table," he said. "They felt that this event 'undercuts the credibility of the press.' It's funny, you see, I thought that Jayson Blair and Judy Miller took care of that. What? . . . Did I go too far? Now let me try this: Shut the hell up, New York Times, you sanctimonious whining jerks!"...

Key members of the White House's torture-management team-- Cheney, Secretary of State Condoleezza Rice, former secretary of state Colin Powell -- along with leading torture apologists -- Attorney General Michael Mukasey, CIA Director Michael Hayden, former White House spokesman Tony Snow and current spokeswoman Dana Perino -- were fawned over as honored guests....

Watch it yourself if you dare. Here is video of the red carpet arrivals and the entire dinner. Here is the Bush performance and the Ferguson performance. Here is footage of the swampy hell that was the Bloomberg after-party.

Michael Scherer writes for Time that Bush "rose to offer C-SPAN viewers another reason to doubt political journalists' ability to be anything but cowardly suck-ups to presidential pomp. In recent years, this event has been known mainly for the fantastic performance in 2006 of Stephen Colbert, the Comedy Central host, who addressed the crowd with a withering critique of both the failures of President Bush and the media. . . . Neither the press nor the president had a rebuttal to Colbert, then or now, so he was simply not invited back and officially forgotten. Ever since, the dinner had been a far less newsworthy affair. As is tradition, the president stood to do a short stand up act, which included the retelling of an old joke about Vice President Dick Cheney watching Bush through a peephole in the Oval Office door while masturbating. Such is the state of Washington humor....

[W]hat did British actor Rupert Everett thinks about the dinner? "'Hideous,' he said flatly. 'One of the most hideous events I've ever been to.'"...

Meanwhile. . . . Mark Mazzetti writes in the New York Times: "The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law. The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

"While the Geneva Conventions prohibit 'outrages upon personal dignity,' a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments. 'The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,' said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public. . . . Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

"'What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,' said Scott L. Silliman, who teaches national security law at Duke University....

Legal blogger Sandy Levinson writes that there is "a certain logical paradox here: The very fact that the some US interrogator would suggest that some particular conduct is 'reasonable' in some situation would, by definition, mean that there is not 'universal' condemnation of the practice. This is especially true if one accepts the DOJ argument that 'The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.' Once one allows what might be termed 'purity of utilitarian motive' to dominate the analysis, the game is over, for there will always be those who will argue that it is worth doing practically anything to forestall any 'terrorist attack.'"

Phillip Carter blogs for washingtonpost.com: "Among the more Kafkaesque arguments proffered by the Bush administration for its coercive interrogation (or torture) regime is this: Cruel, inhuman or degrading acts are not torture if they're done with good intentions."

Gitmo Watch

Jess Bravin writes in the Wall Street Journal (subscription required): "When military prosecutors enter Guantanamo's heavily guarded courtroom Monday, they can expect to face a spectacle: their former boss, in uniform, testifying against them. Col. Morris Davis, for two years the chief Guantanamo prosecutor, is expected to testify that the operation he once led has been infected with political agendas and corrupted by the Achilles' heel of military justice -- unlawful command influence. The Bush administration's military commissions plan has careered through internal disarray, administrative setbacks and legal debacles since the president announced it in November 2001, and still has yet to conduct a single trial. But Col. Davis's appearance may be the strangest twist yet. 'It's not that I'm sympathetic to the detainees or say they should get a free pass,' says Col. Davis, now director of the Air Force Judiciary. 'But I do think they are entitled to a fair trial.'"

Jonathan Weisman Strikes Again!

Ah. Page A1 of the Post. The death spiral continues:

McCain Offers Tax Policies He Once Opposed: Now that he is the presumptive Republican presidential nominee, however, McCain is marching straight down the party line. The economic package he has laid out embraces many of the tax policies he once decried: extending Bush's tax cuts he voted against, offering investment tax breaks he once believed would have little economic benefit and granting the long-held wishes of tax lobbyists he has often mocked....

To supporters, McCain has simply seen the light and now understands the power that business tax relief has to spur economic growth and innovation. Said J.D. Foster, a former Bush White House and Treasury tax policy expert, now at the Heritage Foundation: "It's logical that he wouldn't be repeating the arguments he made then. We all learn from experience."

To critics, it is political pandering. "It's just part of the new John McCain that's taking on the conventional wisdom that in tight races, you have to energize the base and win by 50.000001 percent," Chafee said. "I was frankly surprised that he's kept it up after securing the nomination. I thought he'd move to the center, and I haven't seen it"...

First time I have ever seen anybody describe J.D. Foster as a tax policy "expert." Lobbyist, yes. Apparatchik, yes. Ideologue, yes. But expert? Never seen that before...

Why oh why can't we have a better press corps?

Top Bush aides pushed for Guantánamo torture | World news | The Guardian

OGMB sends us to:

Top Bush aides pushed for Guantánamo torture: Senior officials bypassed army chief to introduce interrogation methods by Richard Norton-Taylor The Guardian, Saturday April 19 2008: America's most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques of terror suspects held at Guantánamo Bay, leading to the US military abandoning its age-old ban on the cruel and inhumane treatment of prisoners, the Guardian reveals today. General Richard Myers, chairman of the US joint chiefs of staff from 2001 to 2005, wrongly believed that inmates at Guantánamo and other prisons were protected by the Geneva conventions and from abuse tantamount to torture. The way he was duped by senior officials in Washington, who believed the Geneva conventions and other traditional safeguards were out of date, is disclosed in a devastating account of their role, extracts of which appear in today's Guardian.

In his new book, Torture Team, Philippe Sands QC, professor of law at University College London, reveals that:

• Senior Bush administration figures pushed through previously outlawed measures with the aid of inexperienced military officials at Guantánamo.
• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of vice-president Dick Cheney, and at Donald Rumsfeld's defence department.
• The Guantánamo lawyers charged with devising interrogation techniques were inspired by the exploits of Jack Bauer in the American TV series 24.
• Myers wrongly believed interrogation techniques had been taken from the army's field manual.

The lawyers, all political appointees, who pushed through the interrogation techniques were Alberto Gonzales, David Addington and William Haynes. Also involved were Doug Feith, Rumsfeld's under-secretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals. The revelations have sparked a fierce response in the US from those familiar with the contents of the book, and who are determined to establish accountability for the way the Bush administration violated international and domestic law by sanctioning prisoner abuse and torture. The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo Bay and Abu Ghraib prison in Iraq by blaming junior officials. Sands' book establishes that pressure for aggressive and cruel treatment of detainees came from the top and was sanctioned by the most senior lawyers.

Myers was one top official who did not understand the implications of what was being done. Sands, who spent three hours with the former general, says he was "confused" about the decisions that were taken. Myers mistakenly believed that new techniques recommended by Haynes and authorised by Rumsfeld in December 2002 for use by the military at Guantánamo had been taken from the US army field manual. They included hooding, sensory deprivation, and physical and mental abuse. "As we worked through the list of techniques, Myers became increasingly hesitant and troubled," writes Sands. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process. He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture. "We never authorised torture, we just didn't, not what we would do," Myers said. Sands comments: "He really had taken his eye off the ball ... he didn't ask too many questions ... and kept his distance from the decision-making process."

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: "I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways. The secretary did this by cutting [Myers] out of important communications, meetings, deliberations and plans. At the end of the day, however, Dick Myers was not a very powerful chairman in the first place, one reason Rumsfeld recommended him for the job". He added: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."

Impeach George W. Bush. Impeach Richard Cheney. Impeach all present and former members of their personal staffs. Impeach Gonzales, Addington, Haynes, Feith, Bybee, and Yoo. Impeach every present and former cabinet and subcabinet official in the Bush administration.

Do it now.

Fafblog Justifies Saving the Universe from the Moon

Giblets explains:

Fafblog! back to save the universe.: Giblets is a patient Giblets... willing to entertain even the most tedious requests... especially if it gets him published columns in Slate and The New York Times. So was Giblets really wrong? Was the war a mistake? Were we right to blow up the moon?

Oh sure, it's easy to look back now with our twenty-twenty hindsight and our armchair quarterbacking and whine and moan about how it all went wrong. But what about the case for blowing up the moon at the time? For literally dozens of years the moon had menaced Western Civilization with its eclipses and its werewolf hordes and its sinister seduction of our seas, all the while dangling its massive stony bulk above us with nothing but universal gravitation standing between the free world and a cold and moony end! Oh, the usual crowd of peaceniks and anti-kill killjoys would have had America stand idly by and do nothing, leaving frightened children and Brookings scholars to tremble under their beds at night while our nation's nocturnal nemesis threatened once again to plunge from the heavens and squish us all, but 9/11 taught us that we can't wait for danger to become dangerous before we pre-re-endanger it back! And by defeating the moon America would ensure not only its own security, but the destruction of al Qaeda's deadly space laser, the liberation of the moon men from the terrible tyranny of the Crater King, and the second coming of Astro-Jesus!

Of course by now everybody thinks they're an expert.... Oh, we didn't send enough troops, oh, we didn't plan for the aftermath, oh, the explosions launched millions of tons of radioactive moon rock into the atmosphere and killed hundreds of thousands of people. Well, boo hoo hoo! Nobody said this war was gonna be perfect. It's true, if Giblets had to blow up the moon all over again he would have made some changes, like firing Donald Rumsfeld and putting more boots on the ground and getting more international support. But would he oppose the moon war altogether? Well that's the kinda crazy talk we were only hearing from namby-pamby pot-smoking puppet-wielding moon hippies like Al Gore and Zbigniew Brzezinski....

The point is, we saw a problem and we dealt with it. Did the problem actually exist? Who knows! Did our solution end up killing lots of people who'd otherwise be alive? Who can say! We could spend all day long pointing fingers and arguing over who slaughtered millions of what, but where will that get us?... Giblets and the rest of America have a war to win. There's still a lot of the moon left to blow up, people - and now it's even more dangerous than ever, because it's been raining this deadly shower of moon rocks down on us ever since some crazy bastards started blowing it up! It's time to stop this pointless bickering over who was "right" and "wrong" and get back to fighting the war we started back when we were obviously wrong. And then we can move on to the real threat by invading the sun.

Jim Henley on Bush Appointees' Travel Plans

He writes:

: The safest vacations for Bush Administration officials may be domestic ones.... Philippe Sands... reports that the military commissions act of 2006 may increase the likelihood of a future foreign war-crimes prosecution for those in the torture chain-of-command. Sands glosses a European prosecutor saying that "it would make it much easier for investigators outside the U.S. to argue that possible war crimes would never be addressed in their home country."

Which is true enough! Time was, I could mutter darkly about the arrogance of universal human rights violations and "rule from Brussels" and all of that. Now I say, bring it on. My own country has asserted its own universal jurisdiction, but a much more grandiose and damaging version of it. You don't see Belgian judges conquering entire countries in the name of "freedom" or "benevolent hegemony." Given a choice between grabbing the odd retired official from an airport, jailing him in comfort and allowing him access to counsel and a public trial, and triggering the killing of tens to hundreds of thousands and the displacement of millions, while shoving hundreds of prisoners into legal black holes for abuse, the lesser evil kind of jumps out at me.

What the Raw Story gloss on the article doesn't go into is whether the Military Commissions Act itself might constitute a criminal conspiracy under international law.

Kissing the Duke of Exeter's Daughter, or De Laudibus Legum Angliae...

William Blackstone, IV, 25, 326:

The rack, or question, to extort a confession from criminals, is a practice of a different nature [than pressing with stones until the torturee either offers a plea or is dead]; this having been only used [for procedural purposes] to compel a man to put himself upon his trial; that being a [substantive] species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once, when the dukes of Exeter and Suffolk, and other ministers of Henry IV, had laid a design to introduce the civil law into the kingdom as a rule of government, for a beginning thereof they erected a rack for torture, which was called in derision the Duke of Exeter's daughter, and still remains in the Tower of London; where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth. But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of English law, that no such proceeding was allowable by the laws of England.

It seems astonishing that this usage of administering the torture should be said to arise from a tenderness for the lives of men; and yet this is the reason given for its introduction into the civil law, and its subsequent adoption by the French and other foreign nations; viz., because the laws cannot endure that any man should die upon the evidence of a false, or even a single, witness, and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves!...

Interesting phrase that: "...used as an engine of state, not of law..."

---

• Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, and Lord Brown of Eaton-under-Heywood (2005), A and others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand.pdf
• Jeremy Waldron: Torture and Positive Law: Jurisprudence for the White House http://www.columbia.edu/cu/law/fed-soc/otherfiles/waldron.pdf
• Times: A noble vision loshttp://www.timesonline.co.uk/tol/comment/article757265.ece

John Yoo and FDR...

Sandy Levinson writes:

Balkinization: I have also recently read William Stevenson's The Man Called Intrepid, about all sorts of irregular and illegal activities that book place both in Great Britain and the United States prior to the formal outbreak of World War II. Indeed, Robert Sherwood is quoted as saying that FDR realized that he would impeached if Americans knew of some of his violation of the neutrality acts. I have no reason to doubt that John Yoo believed that the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40. How important is it whether one agrees or disagrees with his analysis of the situation and his concomitant willingness to do what he did?

I will be genuinely grateful for any reflections on these questions--and any other questions that any respondents might wish to raise--as I try to figure out my own position on whether Berkeley has any duty to initiate a serious inquiry into John Yoo's fitness to continue as a member of its faculty...

I thought that this was pretty clear. Neacessity is a defense or an excuse or a justification (whatever of those applies) for illegal actions. But it is necessity that is required-- not "I believed it was necessary," not "some unqualified bozo with bad judgment above me in the chain of command said he thought it was necessary."

If John Yoo had written "this is illegal but necessary" and if it had in fact been necessary for the safety of the world and the American people that we routinely torture goatherds sold to the CIA for cash by clan enemies claiming they belonged to Al Qaeda on the one-in-a-million chance that one of them knows something, I wouldn't have a problem with John Yoo.

But he did not write "this is illegal but necessary." And the torture of goatherds has made the world and the American people much less safe.

And, to say the least, I have grave doubts that anybody ever believed that the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40.

Joe Klein Is Shrill!

He writes, apropos of the Kagan family:

Too Many Kagans, Too Little Knowledge: Fresh from his assertion that the Iraq civil war was "over" a week ago, here's Fred--plus added bonus attraction Kimberly--Kagan reinforcing their profoundly warped view of Iraq in the Weekly Standard. There are several truly disingenuous, and flat out misleading, things here:

1. The promulgation of the myth that Maliki's Folly was to clean out "terrorists" rather than a violent election-year ploy to clear out his legitimate Sadrist political opposition.
2. Perpetuation of the myth that effective Iraqi Security Forces actually exist and aren't primarily composed of (a) pro-Maliki and pro-Hakim militias and (b) former Iraqi soldiers more interested in making a living than in fighting. (Add: No acknowledgment that U.S. troops in the field simply do not trust their Iraqi counterparts.)
3. Conflation of the "special groups"--trained and supported by the Iranian Qods force--and the Jaish al-Mahdi, which is the main Sadrist Iraqi nationalist militia. Kagan, a military historian, should check with David Petraeus about the relationship of those two separate forces. Indeed, part of Sadr's cease-fire strategy was allow the U.S. to cleanse Iraq of the "special groups." Sadr's no hero, but if he's a terrorist then so are the majority of Iraqi Shi'ites--i.e. his supporters.
4. No mention at all of the Badr Corps, the pro-Iranian Hakim militia that is Sadr's main enemy in Basra and Maliki's best friend. No mention of the widely held belief that the Iraqi Army units in Basra are riddled with Badr militia members.
5. No acknowledgment of the sheer complexity of the situation--the fact that all Shi'ite militias are receiving support from Iran, the fact that Sadr may be the most popular political figure in Shi'ite Iraq, courtesy of his father's fierce anti-Saddam, anti-Persian nationalism. No acknowledgment that our policy toward the various Shi'ite factions might be more successful if we were as nuanced as the Iranians.
6. It is nice, finally, that Kagan acknowledges there's a lot we don't know about the situation in Iraq. Where was that five years--no, actually, one week--ago?
7. On the day that John Yoo's remarkable torture memo is released, this foolishness is a reminder that none of these people--none of the vicious, mendacious, naive, simplistic, unapologetic, neo-colonialist ideologues who promulgated this disaster--should have even the vaguest claim on the time or tolerance of fair-minded people. Fred Kagan's certainty is an obscenity, his claim to expertise a farce.

This Garment Stands for Its Bearer's Maturity of Mind, His Independence of Judgment, and His Direct Responsibility to His Conscience and His God...

Marty Lederman directs us to http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf and http://gulcfac.typepad.com/georgetown_university_law/files/march14.memo.part2.pdf.

And he notes:

The March 2003 Yoo Memo Emerges! (not an April Fool's Joke): The Torture Memo to Top All Torture Memos: Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day -- a Saturday -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which applied only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004.... Think about that: Either Jay Bybee -- who actually signed the August 2002 torture memo concerning the CIA -- did not know of this explosive memorandum, or it was so implausible that Bybee refused to issue it to the Pentagon. And as soon as he was quite literally out the door, John Yoo did not hesitate to issue the opinion on a weekend, presumably bypassing the head of the office (Acting AAG Ed Whelan) and the Attorney General. (I am assured that Ed had no involvement in this matter.)

As I've discussed previously -- see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)...

My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo's appointment to the University of California faculty should be revoked for moral turpitude.

But I find myself frozen, unable to decide whether I should or should not write to William Drummond. I find myself frozen because I am confronted by the ghost of medieval scholar Ernst Kantorowicz. Ernst Kantorowicz--right-wing authoritarian anti-Democratic anti-communist German nationalist--was asked as a condition of his appointment to the University of California faculty to swear this oath:

Having taken the constitutional oath of the office required by the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence, and that I have no commitments in conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary.

He refused and protested:

Ernst Kantorowicz: There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

What should the Berkeley Division of the Senate of the University of California Do?