Justice Souter Retiring

NPR is reporting that Justice Souter is going to retire at the end of the court’s current term. This is not a surprise – speculation has been going around for months. Listening to Nina Totenberg during my commute home, one thing continually stood out: her statement that Souter is a liberal “on this court.” While he certainly hasn’t been the conservative that the first President Bush was expecting, Souter isn’t really more than a center-left moderate. On this court, though, dominated by arch-conservatives, he is the very picture of a liberal.

So, while the many news analysts discuss how his replacement won’t shift the balance on the court (and it won’t), what it can do is change the nature of the balance. Concurrences and dissents are important, as are all of the secret compromises necessary to get a majority. President Obama can appoint a center-left moderate, or a true progressive, and this will matter by shaping the make-up of the court’s liberal bloc. He also has the opportunity to appoint a woman, which is necessary based on, if nothing else, the oral arguments last week in Safford Unified v. Redding. The point is, the appointment will matter. With that in mind, take a look at the argument for appointing a true progressive at Overruled.

Where President Clinton seriously dropped the ball, however, is corporate accountability.

[Snip.]

All of this is to say that issues like Roe and Gitmo are very important, but issues of corporate accountability are equally important.  I want the government to stay the hell away from my bedroom, but I also want to be able to rely on my insurance company if I get sick, and I want to be able to hold it accountable if it illegally denies me coverage of a medically-necessary treatment.

Published in: on April 30, 2009 at 10:39 pm  Comments (2)  
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Lysistrata in East Africa

Living classics.

NAIROBI, Kenya (CNN) — The fight for political reform in Kenya has moved into an unlikely venue — the nation’s bedrooms.

Activists in the East African nation are urging women to withhold sex for a week to protest the growing divide in Kenya’s coalition government.

[Snip]

“This will accomplish nothing other than embarrass us,” said Martin Kamau, a resident of Nakuru, a major city northwest of the capital. “We are being punished, and yet we are not the ones causing the problems.”

Kamau plans to plead his case with his wife. “Seven days is just too much,” he said.

Not quite as good as the original.

LYSISTRATA
And not so much as the shadow of a lover! Since the day the Milesians betrayed us, I have never once seen an eight-inch gadget even, to be a leathern consolation to us poor widows…. Now tell me, if I have discovered a means of ending the war, will you all second me?

CLEONICE
Yes verily, by all the goddesses, I swear I will, though I have to put my gown in pawn, and drink the money the same day.

MYRRHINE
And so will I, though I must be split in two like a flat-fish, and have half myself removed.

LAMPITO
And I too; why to secure peace, I would climb to the top of Mount Taygetus.

LYSISTRATA
Then I will out with it at last, my mighty secret! Oh! sister women, if we would compel our husbands to make peace, we must refrain…

CLEONICE
Refrain from what? tell us, tell us!

LYSISTRATA
But will you do it?

MYRRHINE
We will, we will, though we should die of it.

LYSISTRATA
We must refrain from the male altogether…. Nay, why do you turn your backs on me? Where are you going? So, you bite your lips, and shake your heads, eh? Why these pale, sad looks? why these tears? Come, will you do it-yes or no? Do you hesitate?

Published in: on April 30, 2009 at 2:49 pm  Leave a Comment  
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Obligatory Arlen Specter Post

First impression: Rank opportunism.

Second impression: This could be bad.

Third impression: File this under never gonna happen, but it is nice to imagine.

Fourth impression: What does this say about the “better democrats” part of “more and better democrats?”

My first thought here, of course, is that it says nothing. The Republican brand and conservative ideology are losing followers rather than gaining them, so attempting ideological primaries is a dangerous game. The Democratic brand, on the other hand, is rising, and the public’s openness to progressive leadership is robust. But, that is a hefty dose of hubris, almost up there with the “permanent Republican majority.”

That said, I do suspect that there are national trends that could be harnessed into a progressive (or populist) consensus similar to that at the turn of the century. It need not be partisan, though with the current state of the Republican party, I suspect that it would be. In that case, the ability to primary corrupt, insider, or lobbyist-tainted politicians would be high, even if such challenges would be interpreted by the media as ‘coming from the left.’ In this, I believe that Accountability Now has largely struck the right note. However, being less comfortable with populism than progressivism, this possibility also makes me a little uneasy.

Final thought: This is it. Thanks to months of media reporting on the need for Democrats to get 60 votes in the Senate, we can now do exactly what we want and establish a socialist state. I hope that my portion of the means of production consists of a distillery.

Honestly, from this point forward, any failure to get things passed in the Senate is going to reflect very poorly on either Harry Reid or the president. To anyone who has been paying real attention, of course, Nelson, Bayh, and Lieberman have always made the 60-vote threshold  a myth. That won’t stop the media from playing it that way anyway. The flip side of this is that it may give a certain confidence vote flavor to cloture. Democratic senators who hope to ride Obama’s coattails may be less willing to see him fail on key reforms if they know the blame will no longer be apportioned to the party of no.

Or, at least, I can hope.

Published in: on April 28, 2009 at 10:20 pm  Leave a Comment  
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Meditations on Torture: Michel de Montaigne

As a new feature, each Sunday I am going to present a brief meditation on torture from some historic or contemporary thinker or expert; philosophers, generals, doctors, jurists, etc. The goal is to present the wide-ranging and long-running opposition to torture on both moral and pragmatic grounds in the Western tradition. I don’t intend this as an appeal to authority, but merely to demonstrate that the Bush administration and its current defenders are wildly out of touch with basic traditions of Western thought. I hope that this will become obvious over the course of the coming weeks.

Our first intellectual is one of our earliest – Michel de Montaigne. Montaigne was a French writer and philosopher during the 16th century. He is credited with popularizing the essay as a literary form for trying out or contemplating a particular train of thought. The word “essay” derives from the French “essayer”, meaning “to try or attempt.” Montaigne was a noted skeptic, and his skepticism generally drove him in the direction of tolerance, notably for religious dissidents, witches, and the ‘cannibals’ of the New World. It is in this same vein that he approaches the the question of torture. The full essay, “On Conscience” can be found here, and is chapter five of book two of his Essais.

The putting men to the rack is a dangerous invention, and seems to be rather a trial of patience than of truth. Both he who has the fortitude to endure it conceals the truth, and he who has not: for why should pain sooner make me confess what really is, than force me to say what is not? And, on the contrary, if he who is not guilty of that whereof he is accused, has the courage to undergo those torments, why should not he who is guilty have the same, so fair a reward as life being in his prospect? I believe the ground of this invention proceeds from the consideration of the force of conscience: for, to the guilty, it seems to assist the rack to make him confess his fault and to shake his resolution; and, on the other side, that it fortifies the innocent against the torture. But when all is done, ’tis, in plain truth, a trial full of uncertainty and danger what would not a man say, what would not a man do, to avoid so intolerable torments?

“Etiam innocentes cogit mentiri dolor.”

[“Pain will make even the innocent lie.” – Publius Syrus, De Dolore.]

In the essay, Montaigne considers torture both from without and within – the torture of conscience we inflict upon ourselves and the tortures inflicted upon by others. Of the former, only part of the discussion is relevant to us. Montaigne is considering a form of judicial torture, used to extract confessions. While his emphasis is mostly practical – that the innocent will lie to escape torture, making it unreliable – he nevertheless identifies it as “inhumane”, but its morality is not discussed further.

Montaigne was concerned about uncertainty. We are uncertain that someone is guilty. We are uncertain their confession is true. Torture confounds these uncertainties. It may be possible to draw some kind of belief from a person’s willingness to speak, but only if the speech is uncoerced. But by compelling speech, torture casts doubts on even the most likely of confessions. We should be even more cautious when the goal is not a confession, but operative intelligence.

Published in: on April 27, 2009 at 12:24 am  Leave a Comment  
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Sunday Torture News

From Calitics, the California Democratic Party has resolved to support an impeachment inquiry into Jay Bybee, author of torture memos and federal judge on the 9th Circuit Court of Appeal. Congratulations to DDay (David Dayen) who launched petition to have the resolution adopted at this weekend’s state party convention. The text of the resolution is below the fold.

Meanwhile, at Firedoglake, George Lakoff, a professor of cognitive science at UC Berkeley, makes a novel argument for torture investigations:

President Obama has argued that empathy is the basis of our democracy. It is because we care about others, he has argued, that we have principles like freedom and fairness, not just for ourselves but for everyone.  I have found, in studies of largely unconscious political conceptual systems, that empathy is the basis of progressive political thought, and the basis for the very idea of social, not just individual, responsibility. Conservative political thought is otherwise structured, based on authority, discipline, and responsibility for oneself but not others. The major moral, social, and political divide in America centers around empathy.

[Snip]

Torture violates empathy in the most direct way. The very neural system we use in creating inhuman, unbearable pain in someone you are looking at, hearing, and touching is the same neural system that equips us to feel the pain we are creating. It is the same neural system that creates human connections with others. And the same neural system that lies at the heart of political democracy. Turning it off is turning off humanity, and with it democracy.

It’s interesting. Go read the whole thing.

(more…)

May 19 Special Election: Don’t Listen to the LA Times

The Los Angeles Times came out with its endorsements on the May 19 special election. Unfortunately, their decision-making is a little baffling. With regards to Proposition 1A, they see the problem (one I have called government by algorithm) and then draw a truly strange conclusion:

The reserve fund is closely linked to the spending cap, and that gives us pause, because The Times has long objected to hands-free budgeting — decision-making that removes human thinking from the fiscal planning process. But after several decades’ worth of ballot measures that impose formulas to grab cash for education and other favored programs, California finds itself so far down the robo-budgeting road that it may need a bit more automation just to regain its bearings [emphasis added].

I disagree – strongly. Beyond being anti-democratic (with a small ‘d’), more “robo-budgeting” makes the legislature even less accountable to voters. The only way to restore balance to the budgeting process is to make the legislature more accountable to voters. Currently, for example, the 2/3rds rule prevents true accountability because no single party gets the blame or credit for the debacle. Republicans point to the Democratic majority and say “don’t blame us”, while the reverse is equally true. This cultivates a throw-the-bums-out mentality that makes the entire process more toxic and discourages innovation and true reform. The spending cap will complicate this issue. The Times would be better served by opposing Prop 1A and calling for systematic budget process reform, including both the repeal of outstanding robo-budgeting propositions and the 2/3rds rule.

Additionally, the Times completely ignores the increased power given to the Governor to mandate cuts in lean years – a step that further reduces legislative accountability and further distrupts an already unequal balance of powers in Sacramento.

The Times then moves on to Prop 1B, and draws this conclusion:

It’s ostensibly intended to restore $9.3 billion in funding that public schools and community colleges would get in better economic times under Proposition 98 (the granddaddy of ballot-box budgeting measures, passed in 1988 as an attempt to ensure adequate school funding). But in doing so, it could ratchet up the autopilot spending that Gov. Arnold Schwarzenegger says he’s trying to stop. We support better funding for schools, but not by imposing more inflexible formulas [emphasis added].

And yet this is precisely what proposition 1A does! Honestly, their reasoning is not internally consistent. Instead, I suspect they honestly oppose robo-budgeting, but want to appear to be part of the “responsible center” – hence their endorsement of proposition 1A.

The rest of the editorial is more-or-less what you would expect, and, honestly, I don’t care all that much about the remaining propositions. However, on Prop 1C, they make another inconsistent argument. Namely, that it will raise revenue without raising taxes. What it will actually do it raise revenue now at the cost of decreased revenue in the future. Fewer cuts or tax increases now at the cost of cuts or tax increases in the future. This is, of course, exactly what the state does when it borrows, but given declining lottery revenues due to the economy, I’m not so certain we’ll be able to sell its future revenues for nearly as much as the governor things we can. This is not a wise or responsible path.

For a more complete discussion of my opinions on the ballot measures, see this post here. Also take a look at the Calitics endorsements (hint: we more-or-less agree) and the nonpartisan League of Women Voters, who have a very good discussion.

Tu Quoque (Updated)

The lastest pushback from the Republican party on the released torture memos is the claim that Democrats knew about the techniques – waterboarding in particular – and raised no objections.

[A] full-blown battle has opened between House Speaker Nancy Pelosi, D-San Francisco, and her GOP counterpart, Ohio’s John Boehner about how much top Congressional leaders knew about water boarding in 2002. It is being fueled in part by a timeline released by the Senate Intelligence Committee, chaired by another California Democrat, Dianne Feinstein.

Boehner released news reports from 2007 that seemed to contradict Pelosi, and Pelosi’s office fired back with their own. Boehner said Congressional leaders “received an awful lot of information” about interrogations, and that “not a word was raised at the time, not one word. And I think you’re going to hear more and more about the bigger picture here, that … the war on terror after 9/11 was done in a bipartisan basis on lots of fronts.”

I agree entirely. In fact, this has been a long-running complaint among most progressives that the cotton candy ass Democrats in Congress did nothing to stop the erosion of civil liberties and the rule of law over the past eight years. But this misses the point. Whether and when Congressional leaders knew about waterboarding is of no import on the question of whether Bush officials violated the law. It is of political import, of course, and of moral import. It may even be of legal import for those Congressional leaders (see: the Ministry Cases from Nuremberg). But on the sole question of whether war crimes were committed, it doesn’t matter.

I also think that this argument from Boehner evinces a basic misapprehension about what is going on here. Republicans are making a political defense because they believe all of this ‘torture stuff’ to be a political attack. Likely because if roles were reversed it would be a political attack. But it isn’t now. The D.C. political class is frankly doing everything in its power to avoid dealing with this, largely, I suspect, because they do know they face a serious political downside both for being seen as partisan and for having ignored the issue for so long. If not complicit they were at least complacent.

For most, if not all, prosecution advocates, it doesn’t matter who committed the crimes. I would want prosecutions just as strongly if a Democratic administration had been the bad actor. War crimes should never be swept under the rug. And, just to head you off at the pass, the Clinton impeachment was different. I would have been perfectly happy to have had Bill Clinton arrested and tried for perjury the minute he left office, but impeachment is a political process in a way that a criminal investigation and prosecution is definitively not. And, of course, perjury cannot really be compared to war crimes in any meaningful way.

Finally, Speaker Pelosi, this response you’ve developed isn’t going to work.

At that or any other briefing, and that was the only briefing that I was briefed on in that regard, we were not — I repeat, we were not — told that water boarding or any of these other enhanced interrogation methods were used.

What they did tell us is that they had some legislative counsel — the Office of Legislative Counsel [sic] opinions that they could be used, but not that they would. And they further — further, the point was that if and when they would be used, they would brief Congress at that time, A.

B, I know that there are some different interpretations coming out of that meeting. My colleague, the Chairman of the committee, has said, ‘Well, if they say that it’s legal, you have to know that they’re going to use them.’ Well, his experience is that he was a member of the CIA and later went on to head the CIA. And maybe his experience is that if they tell you one thing, they may mean something else. My experience was they did not tell us they were using that. Flat out. And any — any contention to the contrary is simply not true.

Speaker Pelosi, you had at the very least a moral obligation to prevent the administration from violating the law and committing a war crime. The mere fact that they believed they could torture people should have prompted all kinds of outrage. When the first reports about Abu Ghraib came out in January 2004, it should have been easy to connect the dots. By the time the Bybee memo leaked in the summer of 2004, you had no excuse whatsoever for not addressing this. Do not play coy. You hold a great deal of moral responsibility for what happened here, even if it is nowhere near the amount that accrues to the Bush administration. You can begin to redeem yourself by admitting your failures – the public loves a mea culpa. But more than being the correct political move, confession is good for the soul.

Update: Glenn Greenwald makes this same point quite a bit better than I do.

Update 2: It is worthwhile to remember that whatever Congresswoman Harman’s other flaws, she did protest the torture program.

Prosecutions: Now or Later?

Elizabeth de la Vega, a former federal prosecutor, was on Countdown tonight arguing that we need to delay the appointment of a special prosecutor, at least for a while. She cited the following concerns:

  • A special prosecutor would allow both Congress and the administration to bury any torture investigation, sending it into a “black hole”. She specifically cited the Scooter Libby investigation as an example.
  • There is no guarantee of an indictment from a grand jury, meaning that the full story may never be known without an initial public investigation. Again, she cited the Libby investigation, where he was only indicted for perjury and we still don’t know the full story.
  • The need for a full public narrative regarding torture, which is unlikely to arise without a public investigation and report.
  • And, finally, now that the law establishing the Office of the Independent Counsel has expired, special prosecutors aren’t really independent and their appointment is essentially a PR move. She again cites the Libby case, but also investigations into the destruction of the CIA torture tapes and the US attorney firings.

The video of the interview can be found here (I still do not know how to embed MSNBC video in wordpress). An article she wrote making the same argument is here.

We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess – just as any lawyer would do when contemplating choices of action in a case – what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it’s smarter to wait before taking a prosecutive step and this is one of them.

Read the whole thing and watch the interview – it is a good argument and immediately cooled my blood. However, I’m not convinced. The reason rests largely with this point made by Christopher Anders, the ACLU’s senior legislative counsel during a live chat at Crooks & Liars.

Holder doesn’t have to appoint an independent prosecutor today, but he can’t waste too much time. The Anti-Torture Act has an eight-year statute of limitation, but Abu Zubaydah (who was waterboarded 80+ times in a single months) was captured in March 2002, and FBI agents who observed the CIA interrogating him from April-June 2002 described it as “borderline torture” and comparable to SERE tactics. The statute of limitations for those particular interrogations runs out in about a year. And that’s a very important set of interrogations because they occurred before the OLC opinions were issued—so no OLC opinions there to complicate a prosecution.

This is a point that bears repeating. We should not allow the statute of limitations to expire on this, as has happened for some of most clearly illegal warrantless wiretapping. There can be no good faith reliance on advice of counsel defense for acts that occured prior to the receipt of advice from counsel, which could be key in getting mid-level officials to testify against their superiors. In January, John Conyers proposed extending the statute of limitations on torture and warrantless wiretapping, among other crimes, to 10 years. It is unfortunate his proposal was not quickly acted upon. It is too late for the March 2004 wiretaps, but not for the April-June 2002 interrogations or the August 2002 Bybee memo.

I do not believe that de la Vega is in any way disingenuous about believing that the best possibility for a full public accounting of the torture program and a successful prosecution of those involved requires a more measured public approach. However, indictments will take time, even in the aftermath of a full public report from a commission; a report that will take considerable time in of itself. In the absence of congressional action, the clock is ticking and the questions may need to be asked: would we rather a full public accounting or a prosecution? Are we willing to let some people involved go free by virtue of their early departure from the administration, like Jay Bybee, in order to make the case against others stronger? These are not questions that I feel comfortable answering, but someone will need to – sooner rather than later.

On a broader note, it should not be possible for the statutes of limitations for any crime committed by executive branch officials in their official capacities to expire during a two-term presidency, meaning that they all must be longer than 8 years or they should be tolled until the end of the current administration. This seems like a common sense good government reform, though I’d be willing to hear arguments saying otherwise.

Tinfoil is the New Black

In many ways, this is a conspiracy theorist’s dream come true (as articulated by Paul Krugman):

Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link.

Published in: on April 22, 2009 at 11:02 pm  Leave a Comment  
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People Who Know What They’re Talking About

After my post last week on the need for columnists who know something about the history of political ideology, it is refreshing to see these two pieces in the Boston Globe.

The conservative cries of fascism…:

Make no mistake, however: Cries of fascism are fast emerging as the favored conservative criticism of the Obama administration. You can see why: Given its inextricable link to Mussolini and Hitler, fascism carries no end of unsavory connotations. And, of course, charges of socialism haven’t stuck to Obama.

But wait. Where is the extreme militaristic nationalism that the Encyclopedia Britannica tells us is fundamental to fascism? The contempt for electoral democracy and cultural liberalism? The effort to subordinate the individual to an authoritarian state?

Those are matters an intelligent commentator would want to consider before invoking the term.

…and socialism:

Still, branding someone as a socialist has become the slur du jour by members of the American right, from Newt Gingrich to Rush Limbaugh. Some, like Mike Huckabee, intentionally blur the differences between socialism and communism, between democracy and totalitarianism.

If we could get beyond such nonsense, I think this country could use a good debate about what goes on here compared with places with a long social-democratic tradition like Sweden, Norway, and Finland, where, by and large, the middle class has a far higher standard of living.

Kudos to the Globe for a healthy dose of realty in an unreal debate (and, of course, to Bernie Sanders for speaking unpopular truths).