J. Bradford DeLong's Grasping Reality with a Prehensile Tail

Questions of Fact

The corrupt and mendacious Charles Krauthmmer writes:

Charles Krauthammer : This month, I wrote a column outlining two exceptions to the no-torture rule: the ticking time bomb scenario and its less extreme variant.... The column elicited protest and opposition that were, shall we say, spirited. And occasionally stupid. Dan Froomkin... asserted that "the ticking time bomb scenario only exists in two places: On TV and in the dark fantasies of power-crazed and morally deficient authoritarians."... On Oct. 9, 1994, Israeli Cpl. Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car. He was interrogated with methods so brutal that they violated Israel's existing 1987 interrogation guidelines, which themselves were revoked in 1999 by the Israeli Supreme Court as unconscionably harsh. The Israeli prime minister who ordered this enhanced interrogation (as we now say) explained without apology: "If we'd been so careful to follow the [1987] Landau Commission [guidelines], we would never have found out where Waxman was being held"...

I had thought that Yasir Arafat had told the Israelis where Waxman was being held. Anybody know anything?

And, of course, the most interesting thing is how narrow Krauthammer's defense of Cheney, Bush, Rice, Powell, Rumsfeld, and Tenet is. As I understand things, we imprisoned 15,000 people at black sites around the world, tortured 5,000 of them, and killed 100 under torture--and our principal aim in torturing people was "for the hell of it" while our secondary aim was "to establish a link between Al Qaeda and Saddam Hussein."

A half-competent and half-moral editor would pull Krauthammer's column and replace it with something informing his readers. But Fred Hiatt of the Washington Post is neither half-competent nor half-moral.

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

We Are Not Getting Our Money's Worth Out of NPR

Just saying. Ari Kelman::

Tortured logic. « The Edge of the American West: Did NPR ever not suck? That’s a serious question, by the way, as I’ve begun to doubt my memories of public radio’s glorious past. Anyway, I was trapped in my car yesterday and had no choice but to tune in to “Talk of the Nation”. Lucky me, I got to hear Neal Conan’s inane effort to be fair and balanced about torture (listen here — if you dare). I almost drove into incoming traffic to end the pain...

CIA Sleep Deprivation, Torture Reporting, and Journalistic Ethics

One reason that we academics tend to judge journalists harshly is because of their... excessive claims of originality. We tend to believe strongly that situating your work and your contribution in the ongoing discussion is one of the very first duties of a writer--and a duty that is absolutely essential to any attempt to inform or educate readers.

Journalists act differently. They try to make their readers as ignorant as they can about where the information is coming from. In my view, this is both unethical and ineffective: it tends to lead to great suspicion of American journalists, and a discounting of what they write:

Now comes Greg Miller of the Los Angeles Times refusing to acknowledge what appear to be very substantial dependencies on Spencer Ackerman and Hilzoy.

Let's pick up the trail. On April 29, Spencer Ackerman wrote in the Washington Independent:

A Torture Mystery: How Did the CIA Come to Use Stress Positions for Sleep Deprivation? Hidden in plain sight in the Office of Legal Counsel memos on the CIA interrogation is a mystery: How did the “enhanced interrogation” technique of sleep deprivation come to depend on stress positions? Somehow, between 2002 and 2005, CIA interrogators began using what the International Committee of the Red Cross called “prolonged stress standing” as a means to keep detainees from falling asleep so as to make them docile and cooperative when questioned. What isn’t clear is how that non-intuitive sense of “sleep deprivation,” which was not mentioned in the initial legal authorization for the technique, came into official CIA usage.... But by the time the OLC reevaluated the CIA’s interrogation program in 2005, it revealed that the technique was overwhelmingly physical. “The primary method of sleep deprivation involves the use of shackling to keep the detainee awake,” wrote Bybee’s eventual replacement, Steven Bradbury, on March 10, 2005. “In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling.” The detainee’s feet are shackled to a bolt in the floor, giving him a “two-to-three-foot diameter of movement.” His hands “may be raised above the level of his head, but only for a period of up to two hours.” His weight is “borne by his legs and feet during sleep deprivation,” ensuring that he had to keep awake, for if he “los[t] his balance” from exhaustion he would feel “the restraining tension of the shackles.”

Both memos gave legal approval to the use of stress positions like shackling. And both memos contemplated and blessed the use of techniques in combination with each other, finding that no conceivable permutation of combined techniques would constitute “severe pain or suffering” or “severe mental pain or suffering.” But until the release of the 2005 memo, there had been no official acknowledgment that sleep deprivation as practiced by the CIA depended on physically restraining a detainee...

Today Greg Miller of the Los Angeles Times writes:

Memos shed light on CIA use of sleep deprivations: From the beginning, sleep deprivation had been one of the most important elements in the CIA's interrogation program, used to help break dozens of suspected terrorists, far more than the most violent approaches. And it is among the methods the agency fought hardest to keep.... Because of its effectiveness -- as well as the perception that it was less objectionable than waterboarding, head-slamming or forced nudity -- sleep deprivation may be seen as a tempting technique to restore.

But the Justice Department memos released last month by Obama, as well as information provided by officials familiar with the program, indicate that the method, which involves forcing chained prisoners to stand, sometimes for days on end, was more controversial within the U.S. intelligence community than was widely known. A CIA inspector general's report issued in 2004 was more critical of the agency's use of sleep deprivation than it was of any other method besides waterboarding, according to officials familiar with the document, because of how the technique was applied. The prisoners had their feet shackled to the floor and their hands cuffed close to their chins, according to the Justice Department memos....

"The position is sufficiently uncomfortable to detainees to deprive them of unbroken sleep, while allowing their lower limbs to recover from the effects of standing," it said....

The Justice Department memos also cited research that suggested sleep deprivation was not harmful. "Experience with sleep deprivation shows that 'surprisingly, little seemed to go wrong with the subjects physically,' " said the May 10, 2005, Justice Department memo -- one of many instances in which government lawyers cited scientific papers in asserting that the program was safe.

But some authors of those studies have since said that the conclusions of their research were grossly misapplied. James Horne, director of the Sleep Research Center at Loughborough University in Britain, said he was never consulted by U.S. officials and didn't know how his work was being used until the memos were released. "My response was shocked concern," Horne said in an e-mail interview. Just because the pain of sleep deprivation "can't be measured in terms of physical injury or appearance . . . does not mean that the mental anguish is not as bad."... "To claim that 180 hours is safe in these respects is nonsense," Horne wrote in a separate online posting. Even if sleep deprivation succeeded in getting prisoners to talk, he said, "I would doubt whether the state of mind would be able to produce credible information, unaffected by delusion, fantasy or suggestibility."

And here is the "separate online posting":

Hilzoy:

Obsidian Wings: Prof. James Horne On The Memos: When discussing sleep deprivation, the memos released last Thursday cite the work of Dr. James Horne in support of the claim that sleep deprivation for up to 180 hours is not torture. (See here, pp. 35-40.) I wrote to Dr. Horne and asked him whether he would like to respond to this use of his work. (He had given a statement to Zachary Roth at TPMMuckraker, but I thought he might like the opportunity to respond at greater length.) What follows is his response....

My book ‘Why We Sleep’ was written without any thought of ‘coercive techniques’ in mind. Nevertheless I made it very clear that pure sleep deprivation in otherwise happy healthy volunteers, as in laboratory settings without additional stresses, is not very eventful for the body, while it is much more so for our brain and behaviour. Whereas sleep helps people withstand stress, sleep loss makes us more vulnerable to other stresses, especially as the inherent sleepiness and other adverse effects on the brain confuse the mind’s ability to figure out how to deal with and avoid these stresses.  Thus I emphasise that my book’s conclusions were based on ‘pure sleep deprivation’ without additional stresses. Such findings were derived from otherwise undemanding and benign laboratory studies that do not typify the real world, whereas people are usually sleep deprived because of other stresses such as long and arduous working hours, family crises, etc. Healthy people who have volunteered for sleep deprivation experiments are usually well cosseted by their experimenters, perhaps too much so, and might have been inadvertently protected from the full effects of sleep loss.  Apart from the sleep deprivation, volunteers typically lead a tranquil existence, are fed very well and, except for having periodically to undergo various harmless tests, have plenty of time for relaxation, reading and watching TV. There have been many of these experiments with human volunteers, with the longest lasting 8-11 days.  Volunteers can pull out any time and there is full medical cover. The purpose of these studies has been to explore what sleep does for the body and brain, by removing sleep and see what happens. Under these circumstances, the ‘body’ copes well, whereas the brain and behaviour are obviously affected – not only by sleepiness but by more subtle changes whereby individuals can no longer think for themselves and become more like automatons.  

With additional stresses as in ‘coercive techniques’, the situation for the sleep deprived victim becomes deplorable, as the mind and brain under these circumstances trigger the body’s defences to create a physiological ‘alarm reaction’ whereby, for example, various stress coping hormones are mobilised and prepare the body for possible trauma, even blood loss. I emphasise that this alarm reaction is not present under ‘pure sleep loss’ as I have just described.  Prolonged stress with sleep deprivation will lead to a physiological exhaustion of the body’s defence mechanisms, physical collapse, and with the potential for various ensuing illnesses.  We don’t know at what point this latter phase would be reached with ‘coercive techniques’, but to claim that 180 hours is safe in these respects, is nonsense.  Moreover, whereas physical pain may not be particularly apparent even at this stage, the mental pain would be all too evident, and arguably worse than physical pain.

Even if one was to be pragmatic and claim that this form of sleep deprivation produced ‘desired results’, I would doubt whether the state of mind would be able to produce credible information, unaffected by delusion, fantasy or suggestibility.

Whilst Bradbury’s memo acknowledges (p36) that, “We note that there are important differences between interrogation technique used by the CIA and the controlled experiments documented in the literature” – i.e. what I wrote might not be wholly applicable to ‘coercive techniques’, this key point was understated. I had no knowledge of this memo or its contents until a few days ago, and am both saddened and appalled that my book has been used in this way.  

Jim Horne

Sleep Research Centre, Loughborough University, UK
20th April 2009

Department of "Huh?"

Henry Farrell writes:

Clive Crook on Torture: A Second Try — Crooked Timber: my first attempt to critique Clive Crook on torture seems to have ended rather badly, here’s a second go. NB that this post is not an obviation of the apology below for my initial misunderstanding and mischaracterization of his position...

And the apology:

Torture, Schmorture — Crooked Timber: I had taken him to be arguing that waterboarding was opprobrious but not torture in the same sense as crushing of fingers or other methods of torture causing lasting bodily harm, along the lines of the administration memos which made more or less that argument. It would seem that all he was saying was that there was a colourable legal argument to this effect. Obviously, I misread him.... As I understand Crook’s position – and I am open to correction here, it is as follows. (1) That waterboarding is unequivocally torture...

I say: not so fast. I don't think Henry misread. I think that either Clive miswrote or Clive is now backpedaling.

From generally accepted knowledge I posit:

(a) Common Article 3 of the Geneva Convention prohibits torture
(b) The United States has made violating Common Article 3 a crime.

And from this I deduce:

(c) If waterboarding is torture, then it is a crime.

And its contrapositive:

(d) If waterboarding is not a crime, then it is not torture.

Clive Crook wrote:

To many critics of the Bush administration, it is all so simple: waterboarding is torture, and thus both impossible to justify and illegal.... [T]his already far from simple issue gets even more complicated when you turn from the question of justification to the law. Many just take it for granted that waterboarding is torture, and hence illegal.... Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut. Congress should make waterboarding a crime, for the reasons I have stated, and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to...

And this seems to me to be, at least:

(e) Clive Crook doubts that waterboarding is a crime.

From which I deduce:

(f) Clive Crook doubts that waterboarding is torture.

It seems to me that if Crook's position was what Farrell now maintains it is, Crook would have written: "Congress made waterboarding a crime when it criminalized torture, but it should now criminalize waterboarding explicitly because some falsely claim it is not torture." Instead, Crook wrote: "Congress should make waterboarding a crime... it has had many chances... to do so. The fact is, it has chosen not to..."

Condi Rice and John Yoo

At Berkeley, John Yoo is in trouble for saying that the president could legally order the army and the CIA to torture--but Berkeley Dean Chris Edley says that John is safe from any form of academic process because he was staff and not line--he did not actually order anybody to torture or tell anybody that they were ordered to torture anyone.

Now Condi Rice comes forward. Cenk Uygur reports:

Cenk Uygur: Condi Rice Pulls A Nixon: When the President Does It, That Means It is Not Illegal: Condoleezza Rice was recently speaking at Stanford when students asked her an excellent question on waterboarding and torture. They have her answer on tape and it isn't pretty.... Here are the relevant quotes:

"The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture."...

"I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did."...

"The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture."...

[T]hese people don't understand the whole concept behind America. In our system of government, the president is not supposed to be above the law. He is not a king; his word is not the law. The president can violate the law and when he does, he is supposed to be held accountable. That is supposed to be one of the pillars of our democracy.... If someone doesn't do something about this dangerous idea it will do more damage than the torture itself...

As I understand things, Cheney and the Bush NSC--Rice and company--went hunting for someone who would tell them (a) waterboarding isn't torture, and (b) the president can legally order torture. They found John Yoo, who told them what they wanted. Then Bush told Rice to order the CIA to torture.

Now as I understand Edley's position, Berkeley cannot proceed against Yoo because he did not do any wrongful deeds--he just gave wrongful advice. And Stanford cannot proceed against Rice because even though she was in the chain of command she did not know that the deeds were wrongful.

A very nice setup indeed.

Quality Control, FT, Quality Control: You Can Do Better than This (Waterboarding-as-Torture Edition)

Clive Crook writes:

Clive Crook - Obama’s needless fight over torture: Many just take it for granted that waterboarding is torture, and hence illegal. The convoluted legal defences in the memos are so false, in their view, that they compound the crime. The bizarre care the memos prescribe to guard against lasting physical harm to suspects, for instance, is dismissed as a sham that only makes the enterprise more disgusting. Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut. Congress should make waterboarding a crime, for the reasons I have stated, and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to. Some of those in Congress now calling for prosecutions, including Nancy Pelosi, speaker of the House, were briefed about these methods in the panic-stricken aftermath of 9/11 and offered no objection. It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack...

Paul Begala:

Paul Begala: On November 29, 2007, Sen. McCain, while campaigning in St. Petersburg, Florida, said, "Following World War II war crime trials were convened. The Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was waterboarding."... Politifact, the St. Petersburg Times' truth-testing project (which this week was awarded a Pulitzer Prize), scrutinized Sen. McCain's statement and found it to be true. Here's the money quote from Politifact:

McCain is referencing the Tokyo Trials, officially known as the International Military Tribunal for the Far East. After World War II, an international coalition convened to prosecute Japanese soldiers charged with torture. At the top of the list of techniques was water-based interrogation, known variously then as 'water cure,' 'water torture' and 'waterboarding,' according to the charging documents. It simulates drowning.

Politifact went on to report:

A number of the Japanese soldiers convicted by American judges were hanged, while others received lengthy prison sentences or time in labor camps.

The folks at Politifact interviewed R. John Pritchard, the author of The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East. They also interviewed Yuma Totani, history professor at the University of Nevada-Las Vegas, and consulted the Columbia Journal of Transnational Law, which published a law review article entitled, "Drop by Drop: Forgetting the History of Water Torture in U.S. Courts."

Either a retraction and correction, or a clarification by Clive Crook that he believes that the International Military Tribunal for the Far East committed miscarriages of justice when it hanged members of the Kempitai for waterboarding Americans would be appreciated. One or the other seems to be called for.

Who Have We Become?

Or, rather, who have George W. Bush and his Republican Party turned us into?

Hilzoy is up at 2:21 AM, worrying:

The Washington Monthly: A couple of other things that are missing from the torture memos:

First, the memos cite various legal precedents for the definition of torture. They are particularly fond of Mehinovic v. Vuckovic, which involved "a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of 'Russian Roulette'." (p. 24; the details of this case are repeated on four separate occasions in this memo alone, like an incantation.) Isn't it strange, then, that not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos? You'd think they might be apposite. Oddly enough, though, Steven Bradbury didn't think to include them.

Second: As I noted last night, under the US Code, an important issue in determining whether something counts as producing "severe mental pain or suffering" is whether it produces "prolonged mental harm". In discussing this question, especially with regard to sleep deprivation and waterboarding, Steven Bradbury spends a lot of time discussing the scientific literature on these topics. And yet, once you think about it, he had a much better source of information available to him. These memos were written in May, 2005. The CIA had been using these "methods of interrogation" for nearly three years. Moreover, the memos fall all over themselves describing the repeated psychiatric evaluations that detainees are given:

"Prior to interrogation, each detainee is evaluated by medical and psychological professionals from the CIA's Office of Medical Services ("OMS") to ensure that he is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." (p. 4)

Bradbury then quotes the OMS' guidelines:

"[T]echnique-specific advance approval is required for all "enhanced" measures, and is 'conditional on on-site medical and psychological personnel confirming from direct detainee examination that the enhanced technique(s) is not expected to produce "physical or mental pain or suffering"'. As a practical matter, the detainee's physical condition must be such that these interventions will not have lasting effect, and his psychological state strong enough that no severe psychological harm will result." (p. 4)

Moreover:

"Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees), and "[d]aily physical and psychological evaluations are continued throughout the period of [enhanced interrogation technique] use." (p. 5; square brackets in the original.)

With all those psychological workups having been conducted on CIA detainees over a period of nearly three years, one might think that the CIA, and specifically its Office of Medical Services, would have lots of information on whether or not the techniques under discussion actually did produce any "prolonged mental harm." And yet, strange to say, the memos don't mention any evidence at all about the effects of these techniques on CIA detainees[1]. It's pretty strange that the CIA had all that data about the psychiatric effects of its interrogation techniques ready to hand, and yet no one mentions it.

Or then again, maybe not.

[1] This is particularly striking in the case of Abu Zubaydah, whose psychiatric condition is described at considerable length in the August 1, 2002 memo. As Emptywheel has noted, the description of Abu Zubaydah in the memos is completely different from the FBI sources quoted by Ron Suskind -- they called him "certifiable". But let's pretend we don't know that, and ask: given the 2002 memo's extensive description of Abu Zubaydah, and given that he was the detainee on whom these techniques had been used the longest, wouldn't it be natural for Bradbury to explain what dazzling psychological health he was enjoying several years after the CIA had begun using "enhanced techniques" on him?

On reflection, though, maybe using Abu Zubaydah as a poster child for the benignity of the CIA's methods would not have been such a good idea:

"The sadistic treatment of Abu Zubayda also seems to have affected him psychologically in bizarre ways. Two sources said that he became sexually obsessive, masturbating so much his captors feared he would injure himself. One described him as acting "like a monkey at the zoo." A physician was called in for consultation -- one of many instances in which health professionals have played truly disturbing roles in this program."

Can We Please Never Forget How Bad a President Bush Was?

Outsourced to Josh Micah Marshall:

Talking Points Memo | Us Too!: Frances Townsend, President Bush's counter-terrorism coordinator was just on CNN talking about closing Gitmo. And from how she tells it, there's really no difference. Obama wants to close it. But Bush did too. Only it 'didn't happen'.

We'll grab the video so you can see.

How the Susan Crawford interview changes everything we know about torture. - By Dahlia Lithwick and Phillipe Sands - Slate Magazine

Dahlia Lithwick and Philippe Sands:

How the Susan Crawford interview changes everything we know about torture: When Vice President Dick Cheney told the Weekly Standard last week, "I think on the left wing of the Democratic Party there are some people who believe that we really tortured," he probably wasn't thinking about Susan J. Crawford, convening authority of the military commissions at Guantanamo Bay.... And that's why everything changed this morning when the Washington Post published a front-page interview by Bob Woodward, in which Crawford stated without equivocation that the treatment of alleged 20th Sept. 11 hijacker Mohammed al-Qahtani at Guantanamo Bay was "torture."

[T]he Senate armed services committee issued a report just last month pointing the finger of responsibility for the military interrogations at then-Secretary of Defense Donald Rumsfeld and his general counsel Jim Haynes. The committee did not use the T-word, however.... Alberto J. Mora, former general counsel of the U.S. Navy, wrote in a letter to the Navy's inspector general: "The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture." The 84-page log of al-Qahtani's interrogation has long been a matter of public record, and there is now little dispute that the treatment it describes rose to the level of torture....

What changes as a result of Crawford expressly using the word torture? First, the administration can no longer hide behind parsing the language of the Geneva Conventions and the torture statute.... Crawford has... repudiated the formalistic (and perennially shifting) definitions of torture as whatever-it-is-we-don't-do. She has admitted that there is a medical and legal definition for torture and also that we have crossed the line into it.

The consequences go further. Crawford also told Woodward that the charges against al-Qahtani were dropped because he was tortured. This has devastating consequences for the Bush administration's entire rationale for the new techniques of interrogation: that they would make the United States safer by producing intelligence and keeping dangerous individuals off the streets. We now know they do neither....

Whether torture occurred and who was responsible will no longer be issues behind which senior members of the administration and their lawyers and policymakers can hide. The only real issue now is: What happens next? The answer to that question takes you to a very different place when the act is torture.... Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.

Impeach George W. Bush and Richard Cheney! Impeach Them Now!

Impeach every presidential appointee in the Bush administration. All of them. Now:

Spencer Ackerman: This torture hearing in the Senate Armed Services Committee is really a watershed. I’m begging you to read some of this stuff over at The Streak. Here’s the guidance of a CIA lawyer to Guantanamo officials: “If the detainee dies, you’re doing it wrong.” Here’s how the torture went from Guantanamo to Iraq. Here’s some conveniently-missing memories. Here’s Joe Lieberman being Joe Lieberman. And we’re not even on the second panel yet...

In Which We Rue the Confirmation of Roberts and Alito...

Hilzoy writes:

Obsidian Wings: Boumediene For Dummies: [T]he Supreme Court has ruled in Boumedienne et al v. Bush.... Boumediene and the other petitioners are detainees at Guantanamo. They want to know: do they have the right to file a writ of habeas corpus -- that is, to ask the government to justify their detention?

[T]he Constitution says (I.9): "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." That sounds pretty definitive: the Military Commissions Act contained no finding that the United States has been invaded, or is in the midst of a rebellion, nor is there any evidence that either condition obtains.... [H]ere are two questions the Court needs to answer: who has habeas rights? And where do they extend? The court's answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

As for the second question (where?), the Court looks at its own precedents, which concern such fascinating questions as: to what extent does the US Constitution extend to territories and possessions? It also looks at the British common law from before the Constitution was adopted, to see what the framers of the Constitution and those who adopted it might have understood "the" Privilege of the Writ of Habeas Corpus to involve. Did it extend, say, to people detained by the British in India, which was not then part of the British empire? What about Ireland and Scotland? And so on and so forth. The Court concludes that these cases do not settle the issue one way or another.

The government argues that people detained in Guantanamo do not have habeas rights, because the US government does not have legal sovereignty over Guantanamo.... Petitioners argue that the US nonetheless exercises complete control over Guantanamo, and so habeas rights should extend there. The Court sides with the petitioners, and its language is quite striking:

The Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

Or, in short: if we accept the government's argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that. This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important....

It's also worth noting that this decision was 5-4, with Roberts, Scalia, Thomas, and Alito in dissent. If Bush had been able to fill one more vacancy, and if he had (as he has in the past) chosen someone who shares the Cheney/Addington view of executive power, this decision would have come out differently. That is, to me, a terrifying thought. Because Publius' headline is accurate: with this decision, Court Reaffirms Existence Of Constitution. But had one vote changed, they would have given the Executive the power to avoid it at will.

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.

The John Yoo Situation

Hoisted from Comments: Charley Carp writes:

Grasping Reality with Both Hands: Economist Brad DeLong's Fair, Balanced, and Reality-Based Semi-Daily Journal: Another vote for taking action. Prof. Yoo willfully mistated the law -- with respect to both Quirin (see n. 13) and Youngstown, at the least -- for the purpose of allowing criminals engaging in criminal conduct to claim reliance on advice of counsel. He's a mob lawyer, not fit to be considered scholar or gentleman.

A proper statement of the holding of Quirin on the point made would have shown that his entire analysis was contrary to the authority upon which he was basing it.

Obviously, Prof. Yoo might think (contrary to the views expressed by Justice Alito and Chief Jutice Roberts at their confirmation hearings) Youngstown wrongly decided. At an absolute minimum, though, he's obligated to say so and explain coherently when advising a client as to what the law provides.

This is, I think, a serious breach of legal ethics: It is a violation of the Code of Professional Responsibility to lie to your clients by omitting key Supreme Court cases from your memos. It does raise the question of whether John Yoo is incompetent at his university duties: budding lawyers need to learn what their professional ethical responsibilities are, and someone who does not understand them cannot teach them.

Ben Sargent Is a National Treasure

Somebody just said, "Ben Sargent is a national treasure." They're right. Now who was it?

Michael Froomkin Watches the New York Times Water Its Brand...

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

Michael Froomkin writes::

Discourse.net: NYT Times Waters Its Brand: Shorter David Brooks: I have finally achieved my ambition of writing a column as tactical and mendacious as William Safire.

Scott Horton deconstructs the NYT's spinelessness when criticized by the Administration.

And this is our best newspaper.

Here's Scott Horton:

Scott Horton: I commented on a recent story authored by Gall and Worthington... “Time Runs Out for an Afghan Held by the U.S.,” concerning the death in Guantánamo detention of Abdul Razzaq Hekmati. This was an important article in several respects. First, it put a human face on one of the prisoners held in Guantánamo who was held unjustly.... Second... it pointed to the smoldering conflict between the Karzai Government and the United States over detention policy. Everyone who works this turf and deals with the Karzai Government’s representatives knows about this issue, but there seems to be a conspiracy of silence surrounding it.... I was pleased to see this finally work its way into the public record. But to my astonishment, today this “editor’s note” was posted under the article:

A front-page article on Tuesday described the problems of the tribunals at the American military base in Guantánamo, as seen through the failure to resolve the case of Abdul Razzaq Hekmati, an Afghan war hero who died there Dec. 30 after a five-year-long detention. The article quoted several Afghan officials who said they were prepared to offer evidence that he was falsely accused, but were never given a chance to do so. Andy Worthington... listed as its co-author, did some of the initial reporting but was not involved in all of it, and The Times verified the information he provided. That included the fact of Mr. Hekmati’s death, and the content of transcripts released by the Pentagon showing that the accusations against Mr. Hekmati had been made by unidentified sources and that the tribunal at Guantánamo had never called outside witnesses requested by detainees.

Mr. Worthington has written a book, “The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison,” in which he takes the position that Guantánamo is part of what he describes as a cruel and misguided response by the Bush Administration to the Sept. 11 attacks. He has also expressed strong criticism of Guantánamo in articles published elsewhere. The editors were not aware of Mr. Worthington’s outspoken position on Guantánamo. They should have described his contribution to the reporting instead of listing him as co-author, and noted that he had a point of view....

I have a pretty good guess what happened. A call came to the New York Times from a Bush Administration figure complaining bitterly about the article, and viciously attacking Worthington. Since the Bushie attack dogs rarely do anything halfway, I’d wager Worthington was tarred as some sort of barking leftist kook. And the Times editors... did what they usually do... cowardice... buy peace with the powers that be by assailing their own writer.

So we see a note in which Worthington’s views on Guantánamo are described as “outspoken” and the Times distances itself from them.

What’s really going on here? The Bush Administration has fed the media the most vitriolic propaganda about the Guantánamo camps for over six years. The detainees were labeled as “the worst of the worst” and the Chairman of the Joint Chiefs of Staff was quoted saying they were the kind of people “who would gnaw their way through cables to make a plane crash.” These claims were reported without contradiction or criticism. They were untrue and known to the government officers who uttered them to be untrue. In the Times view, however, Government officials are free to lie without contradiction.... The story that Gall and Worthington presented exposed a ... lie, and it produced a retaliation. The Times editors are not forthcoming enough to give an honest account of what happened; they are focused on accommodation with the Pentagon’s PR machine, and they are prepared to sacrifice good journalistic ethics to get it.

The still more preposterous aspect of the “note” is the suggestion that there is something “outspoken” in calling to close Guantánamo and labeling the facility what it is. The posture adopted in Worthington’s book is indeed very radical. Among the radicals who have embraced it are the American Bar Association, Pope Benedict XVI, the Archbishop of Canterbury, the Dalai Lama, Chancellor Angela Merkel, the English Lord Chancellor, Lord Falconer, and hundreds of other political and spiritual leaders around the world. Come to think of it, the list of radicals includes the editorial board of the New York Times.

This “note” is a badge of shame for the New York Times. It shows a paper whose editors operate to demonstrably lower standards than the journalists they employ. The editors promised that in the wake of the gross mistakes they made in the run-up to the Iraq War, they would reform and demonstrate a higher level resistance to efforts at undercover manipulation by the Government. On that promise, their integrity hangs. But they are failing in it.

READ THIS NOW!

Please. Then impeach Bush. Impeach Cheney too:

A tale of two decisions (or, how the FBI gets you to confess) (PsychSound by Steve Bergstein): The next day, the Court of Appeals reissued the Higazy opinion. With a redaction. The court simply omitted from the revised decision facts about how the FBI agent extracted the false confession from Higazy. For some reason, this information is classified. Just as the opinion gets interesting, when we are about to learn how an FBI agent named Templeton squeezed the "truth" out of Higazy, the opinion reads at page 7: "This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced."

So the opinion, while interesting, is much less interesting because now we don't know how the FBI extracts false confessions from people. Looking at things from another angle, we don't know how the FBI gets suspected terrorists to tell the truth. Except that we do know this, because the... horse is out of the barn, and the classified portion of the opinion is embedded in the Internet... we can see the part of the ruling that the Court redacted:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, "I knew that I couldn't prove my innocence, and I knew that my family was in danger." He explained that "[t]he only thing that went through my head was oh, my God, I am screwed and my family's in danger. If I say this device is mine, I'm screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Higazy explained why he feared for his family:

The Egyptian government has very little tolerance for anybody who is —they’re suspicious of being a terrorist. To give you an idea, Saddam’s security force—as they later on were called his henchmen—a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister.

And Higazy added:

[L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be —might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay.

That's how they do it, folks. If a foreign national is suspected of terrorist activity, the FBI will threaten to have a brutal foreign government punish his family. And punishment in a place like Egypt is not like punishment here. Punishment here consists of solitary confinement and a very long prison term. Punishment over there is torture.

Why Oh Why Can't We Have a Better Press Corps? (Yet Another Washington Post Edition)

Robert Waldmann watches Barton Gellman and Jo Becker not name Bush administration names:

Robert's Stochastic thoughts: The second article of the very excellent Gellman and Becker series on Cheney includes a minor but extreme example of generous granting of anonymity....

The Justice Department delivered a classified opinion on Aug. 1, 2002, stating that the U.S. law against torture "prohibits only the worst forms of cruel, inhuman or degrading treatment" and therefore permits many others.... Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed the definition of "torture" to mean only suffering "equivalent in intensity" to the pain of "organ failure... or even death."

When news accounts unearthed that opinion nearly two years later, the White House repudiated its contents. Some officials described it as hypothetical, without disclosing that the opinion was written in response to specific questions from the CIA.

Hmm[. W]ho might [those "some officials"] have been (and might one of them have been under oath at the time)?...

Text http://www.washingtonpost.com/wp-dyn/articles/A25211-2004Jun8.html: Ashcroft Comments on Anti-Terror Policy: Tuesday, June 8, 2004....

[SENATOR] KENNEDY: In the front page of the Times, it has this quote, "A team of administration lawyers concluded in a March 2000 legal memorandum, President Bush was not bound either by international treaty prohibiting torture or by federal anti-torture law because he has the authority as commander in chief to approve any techniques needed to protect the nation's security." Do you agree with that conclusion?

[ATTORNEY GENERAL] ASHCROFT: Senator Kennedy, I'm not going to try and issue hypothetical...

[SENATOR] KENNEDY: I'm not asking hypothetical. This is a memoranda that, again, was referred to today in the Post. "August 2002, Justice Department advised the White House that torturing Al Qaida terrorists in captivity abroad may be justified and that international laws against torture may be unconstitutional if applied to interrogations." Do you agree with that?

[ATTORNEY GENERAL] ASHCROFT: I am not -- first of all, this administration rejects torture.

[SENATOR] KENNEDY: I'm asking you whether this is -- these are -- there are three memoranda, January 9, 2002, signed by John Yo (ph), the August 2002 Justice Department, the (inaudible) amendment memo and the March 2000 -- the interagency working group. Those are three memoranda. Will you provide those to the committee?

[ATTORNEY GENERAL] ASHCROFT: No, I will not.

[SENATOR] KENNEDY: KENNEDY: On what basis? Under what basis?

[ATTORNEY GENERAL] ASHCROFT: On the basis that the long-standing established reasons for providing opinions provided to the executive branch...

[SENATOR] KENNEDY: General, the executive privilege is not a legitimate basis of withholding memoranda from this committee. This Congress is investigating the prisoners' abuse that have occurred. Immense importance -- we have specific need of the documents that have allowed these abuses to occur. The memoranda issued did not involve confidential communications between the Justice Department and the president, but instead legal advice that was widely distributed throughout the executive branch. There are many examples of executive privilege that have been waived or over-written.... President Reagan, on November 4, 1982, issued guidelines on executive privilege. Ronald Reagan issued executive privilege memoranda to heads of the executive to "comply with congressional requests for information to the fullest extent consistent with the constitutional statutory obligations of the executive branch," and added that "executive privilege would be used only in the most compelling circumstances, and only after careful review demonstrated that assertions of the privilege was necessary." Now, are you invoking executive privilege here and denying us those memoranda? You've had 72 hours to think about this, General. This has been in the newspapers, you had information about it. You've had 72 hours to think about that you were going to be asked about this. I'm a member of the Armed Services Committee. We've been investigating and looking into this. The courageous act of the chairman, John Warner. And we're entitled to know whether that information is going to be available to the committees.

[ATTORNEY GENERAL] ASHCROFT: Well, the confidential memoranda provided -- any confidential memoranda provided to members of the executive branch...

[SENATOR] KENNEDY: This was generally circulated.

[SENATOR] HATCH: Let him answer the question.

[ATTORNEY GENERAL] ASHCROFT: ...is considered by the department to be important that we maintain it, that we not provide it outside the executive branch. And let me just say that we're at war, and to talk about the powers of the president....

[SENATOR] HATCH: Senator, your time is up. But if you'd care to answer.

[ATTORNEY GENERAL] ASHCROFT: Well, I do care to answer because the senator raises very serious issues. And I think they deserve an answer....

[...]

I'm not doing anything other than to say that there is a long-established policy reason grounded in national security that indicates that the development and the debate of hypotheses and practice of what can and can't be done by a president in time of war is not good government....

[I]t seems to me that Ashcroft is definitely saying the memoranda were hypothetical and, thus, is lying [under oath] and a felon.

Gellman and Becker have done a great job, but shouldn't they have named the people who lied in public?

It's a minor form of corruption that Gellman and Becker are engaged in--telling their Washington Post readers that they promised not to reveal the names of the administration officials who falsely described the memo as "hypothetical" instead of writing "Attorney General Ashcroft and other officials." But it is a form of corruption nevertheless.

Impeach George W. Bush Now

Scott Horton:

"Defending Enhanced Interrogation Techniques": Before there were “enhanced interrogation techniques,” there was verschärfte Vernehmung, (which means “enhanced interrogation techniques”) developed by the Gestapo and the Sicherheitsdienst in 1937 and subject to a series of stringent rules. Now, as we have seen previously, there were extremely important differences between the Gestapo’s interrogation rules and those approved by the Bush Administration. That’s right-—the Bush Administration rules are generally more severe, and include a number of practices that the Gestapo expressly forbade.

Today Andrew Sullivan takes a look at the criminal prosecutions that followed the war in which Gestapo officers who used enhanced interrogation techniques were prosecuted for war crimes as a result. What arguments did they advance? Well, Dick Cheney and Rudy Giuliani will be pleased to know that they haven’t missed any major points.

the ticking time-bomb exception, and the need for better intelligence about an insurgency-—the same defense as the GOP establishment has used for exactly the same techniques-—hypothermia, stress positions, sensory deprivation, etc.—-in the US and Iraq. The terms and specific methods used are the same for the Gestapo’s “verschärfte Vernehmung,” “Third Degree,” and Bush’s “enhanced interrogation.”

HEYDRICH told him that he reserved for himself the final approval of such measures in Germany and he would see to it that they were applied only in the most urgent cases.

Questions for Dick Armey

Former Republican Majority Leader Dick Armey is guestblogging over at Time's political weblog http://time-blog.com/swampland/. There are two questions I wish somebody would ask him.

(1) You are a committed shrink-the-state small-government Republican. Yet you carried a huge number of buckets of water for the Bushies in 2001 and 2002 as they expanded the federal government substantially while making no provision for funding the increased spending. You did this without pushing back at all--thus serving as a good soldier for policies that you thought were destructive and unpatriotic. Why?

(2) You are a committed civil libertarian. Yet you carried a huge number of buckets of water for the Bushies in 2001 and 2002 as threw a great many procedural protections of constitutional rights overboard. You did this without pushing back at all--serving as a good soldier for policies that you thought were destructive and unpatriotic. Why?

It would be a service to the public and to history if Armey's feet were to be held to the fire until he explains just what the hell he thought he was doing in 2001 and 2002. He certainly broke the hearts of people I know who believed in him.

When I met Armey in 2004, you see, he talked a very good game as a committed small-government fiscally-prudent libertarian conservative. And the small-government conservative plan at the start of 2001 was to (a) use the fact that Bush had run his campaign promising a big tax cut to pass a big tax cut, (b) use the procedural requirements of the Budget Enforcement Act to attach promises of future spending growth restraint to the tax cut, and then (c) actually enforce the spending caps adopted. All of these linkages are important: as Bill Niskanen argues these days (and as Jim Buchanan argued three decades ago) deficit-causing tax cuts are worse than useless as far as achieving small-government ends in the long run are concerned.

Yet Armey punted on this agenda at almost every opportunity during the 2001-2002 term in which he was Majority Leader. Consider:

• The--big--decision in 2001 and 2002 to abandon the procedural restraints of the 1991 Budget Enforcement Act--PAYGO and its cousins.
• The--big--decision to make the fiscal impact of the tax cut look smaller by "sunsetting" it after nine years.
• The leadership's direction that CBO lowball the assumed future discretionary spending growth rate in order to make the budget picture look rosier than it truly was http://nationaljournal.com/members/buzz/2001/budget/020601.htm
• The rejection of Greenspan's and O'Neill's advice to make the full implementation of the 2001 tax cuts contingent on successful spending restraint.
• The leadership's decision in 2001 to use Mitch Daniels's OMB numbers--biased and cooked--rather than CBO numbers during the tax debate.
• The leadership's decision in 2001 to ignore the spending growth cap it had passed in its own budget resolution.
• The leadership's acquiescence in OMB's delay of its 2001 mid-session review in order to avoid having to deal with bad budget news that would have forced either smaller tax cuts or more spending restraint during the summer.
• The leadership's decision in the summer-of-2001 to shift the budget goalposts from "not raising the national debt" (i.e., balancing the budget without counting the Social Security and Medicare surpluses as net revenue) to "balancing the budget" (i.e., counting the Social Security and Medicare surpluses as net revenue).
• The leadership's decision not to offer tax increases to fund the war against Osama bin Laden.
• The leadership's decision to use "emergency supplementals" for expected and foreseen spending--not for true surrise emergencies.
• The 2002 passing of a "stimulus" bill after Greenspan had called the end of the recession it was supposed to cure.
• The 2002 farm bill.
• The breaking of the House's version of the budget resolution spending caps when it came time to actually pass fiscal-2003 appropriations.
• In fact, the lack of any spending growth restraint at all in the fiscal 2003 appropriations.

I won't even speak of Armey's role in the Bush "security" agenda after 911.