A fortiori
Though we've never met, Marty Lederman, a Georgetown law professor who writes frequently for the blog "Balkinization," is someone I hold in high esteem. As a former Office of Legal Counsel (OLC) lawyer in the Department of Justice, he has great insight into the procedures and importance of that agency. He has also been a passionate advocate against abuses of power by the Bush administration, and has been an particularly invaluable guide in the past years through the maze of treaties, statutes and legislation governing detainee treatment -- and protecting their human rights.

Yet there is something quite dispiriting about some of what Mr. Lederman has written lately, specifically about legal accountability for war crimes. For what he seems to be saying is that there is none, not in this country at any rate. If I'm right about what he's saying, and he's right about what he's saying, that's a shame. If he's not right, though, it's a strange corner for him to have painted himself into.

The subject arose during Lederman's discussion of Judge -- and now Attorney General -- Mukasey's refusal to simply characterize waterboarding as torture. Lederman argued that "if one's interpretative principles and legal analysis of the terms "torture" or "cruel treatment" lead to the conclusion that waterboarding is not torture or is not cruel, then a fortiori one must abandon those interpretive principles and that form of legal analysis." (Emphasis in original). In a memorable comparison to the legal chestnut (I take it) of interpreting a law like "no vehicles in the park," he writes,

...if, in parsing the "no vehicles" rule, one arrives at the conclusion that a souped-up Corvette may be driven through the center of the park, then that's a pretty good clue that you need to find yourself some new interpretive principles. [...]

Waterboarding is the souped-up Corvette of the torture ban.

Lederman's point was that, contra Ben Wittes' article for The New Republic, Mukasey could indeed repudiate waterboarding as a "paradigmatic," archetypal example of torture: "The bottom line is that the OLC legal analysis in support of waterboarding is indefensible -- I think Ben would agree -- and Judge Mukasey should simply say so."

No prosecution for reliance on war crime advice
The gist of Wittes' point however -- and Lederman's own point in an earlier post -- was that since CIA operatives have acted in reliance on advice that waterboarding isn't torture, Mukasey doesn't want to pull the rug out from under them. Wittes agrees that waterboarding crosses a legal line, but understands Mukasey's reluctance to before he's read the latest, greatest OLC memo defending it:

...it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

Lederman believes this isn't such a big problem, though. Why? Because

[t]here is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable...)

What Lederman seems to be reporting -- no, what he is reporting -- from the legal profession to those of us gathered outside in the hallway, is that the "only following orders" dodge lives. "Judgment at Nuremberg" truly was only victor's justice, it seems; the only way a CIA waterboarder will ever face justice is if she's tried by a foreign country that has caught her and/or defeated us. I'm not saying I'm sure he's wrong as a practical or legal matter -- how could I? I'm just summing up the news for myself.

But that's not the half of it.

No prosecution for giving war crime advice
I wrote in to suggest it wasn't necessarily the waterboarders themselves whose plight concerned Mukasey or his handlers. No, it was those who gave those waterboarders the "souped up Corvette" advice: the Yoos, the Addingtons, the Bybees. The precedent, I suggested, was U.S. v. Altstötter, the so-called "Judges Trial" at Nuremberg establishing -- at minimum, I think -- that giving the color and imprimatur of law to what are plainly war crimes against humanity is itself a war crime against humanity. No again, Lederman replies

...unless there's a smoking gun memo out there somewhere showing that John or others did not really believe the advice they were giving, and that they were simply trying to justify conduct that they knew to be unlawful, I think it's inconceivable that DOJ would ever prosecute them, either. And I strongly suspect that there is no such smoking gun because John [Yoo], and Jay Bybee, did actually believe the advice they were providing was legitimate, possibly even "correct." [...] ...I think the providers of the 2002 and 2004 OLC advice probably believed in what they were writing. Or, in any event, there's unlikely to be evidence to the contrary.*

Returning to Lederman's first quote above, it turns out that "a fortiori" means "to the stronger" argument, i.e., "even more so," so that Lederman was saying that a patently wrong conclusion should force abandoning the premises leading to that conclusion.

But surely it should do more than that for those of us watching such "conclusions" being drawn.

There is simply no way that you can in good faith conclude that "no vehicles in the park" means "souped up Corvettes are OK" -- you are doing more than bending the rules, you're breaking them. Likewise, there is simply no way that you can conclude in good faith that waterboarding is not torture. To employ another metaphor Lederman has discussed, secret torture analyses that speciously justified waterboarding and other horrors short of organ failure weren't Yoo et al just getting "chalk on their spikes" -- i.e., nearly going out of bounds in a football game. They were eluding tackles by running off the field, using their teammates on the sideline for blockers, and sneaking into the end zone for a touchdown. (Lederman says as much himself: "The chalk is but a distant memory there.")

In such cases, Lederman's prescription that brushes with the legal sidelines must at least not occur in secret is no longer sufficient -- and he skids from calling waterboard opinions "souped up Corvettes in a no vehicles zone" to considering it critical whether people like Yoo and Addington believed in their own advice.

For my part, I think Yoo and Addington knew full well that they were gutting laws and a Constitution, not interpreting them, and I think they took pride in that rather than shame. But I also don't much care whether they believed themselves or not, any more than a traffic cop cares whether I believed the traffic light wasn't red when I ran it. Like me, even lawyers -- and even lawyers at the OLC -- are subject to law; like me, even lawyers -- and even lawyers at the OLC -- must face penalties when they cause laws to be broken, or there is no reason to believe that laws will be followed.

If lawyers like Yoo and Addington find themselves solemnly advising the executive branch that waterboarding is not torture -- and drafting, signing, and approving documents with legal force to that effect -- then "finding some new interpretive principles" is merely the first thing that should be done. A "fortissimiori," such advice is a patent war crime -- and the advisors should face the legal penalties.

Herbert Klemm -- a fortiori, John Yoo
Consider, for example, Josef Altstötter's co-defendant Herbert Klemm, who like almost all the defendants in the case was found guilty of "war crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, and plunder of property." (Emphasis added.) Among the specific acts proven against Klemm was his knowing complicity in torture during a stint at the Reich Ministry of Justice:

...after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the malicious acts law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the deputy of the Fuehrer, which later became the Party Chancellery. It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued (NG-310, Pros. Ex. 33):

1. Criminal procedures concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler. [...]

Klemm's sentence? Life in prison.

Klemm deserved that punishment -- even though he worked in a system that had already bent and rewritten laws to the point where they were in themselves institutionalized crimes against humanity. But if Klemm deserved punishment for his deeds in that system, then a fortiori Yoo et al do for theirs in a system that had not -- yet -- reached such levels of depravity.


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* Lederman repeats this in a post today about the re-opened Office of Professional Responsibility (OPR) investigation of the OLC.

NOTES: "U.S. v. Altstötter" -- Wikipedia "Justice Trial" entry; "knowing complicity," "life in prison" -- The Mazal Library.
PREVIOUSLY: Judgment at Nuremberg, 2006/09/18.
EDITS, 11/15: subtitles added; 11/16: Judgment at Nuremberg link added.
posted by Thomas Nephew at 12:20:00 AM -- |  

 
Majority say Bush and Cheney committed impeachable offenses
In a new American Research Group (ARG) poll, a substantial majority of Americans say both President Bush and Vice President Cheney have abused their powers to levels "which rise to the level of impeachable offenses under the Constitution." Among such Americans, a majority favors Bush's impeachment and removal, and a substantial majority favors the same for Cheney.

ARG contacted 1,100 respondents between November 9-12, and asked which of the following four statements they agreed with:

1. President Bush has not abused his powers as president.


2. President Bush has abused his powers as president, but the abuses are not serious enough to warrant impeachment under the Constitution.


3. President Bush has abused his powers as president which rise to the level of impeachable offenses under the Constitution, but he should not be impeached.


4. President Bush has abused his powers as president which rise to the level of impeachable offenses under the Constitution and he should be impeached and removed from office.

Responses are given below; the margin of error is +/- 3%:

11/12/07	#1	#2	#3	#4
All voters	36%	9%	21%	34%
Democrats (39%)	16%	9%	25%	50%
Republicans (35%)	64%	6%	12%	18%
Independents (26%)	29%	11%	26%	34%

Results were even more pronouncedly pro-impeachment and removal when the same questions were asked about Vice President Cheney:

11/12/07	#1	#2	#3	#4
All voters	30%	18%	9%	43%
Democrats (39%)	6%	25%	6%	63%
Republicans (35%)	61%	12%	6%	21%
Independents (26%)	26%	16%	18%	39%

Two things should interest Congressional leadership about these results. First, the largest group of Democrats are in the "impeach and remove" bracket for both Bush and Cheney, with the result for Cheney approaching near-consensus level of 63%.

Second, the results are only different in degree among Independents. Were Democratic impeachment decisions purely dictated by political tactics, they would seek to win the largest group of "political neighbors" -- the 39% of the Independent vote also advocating "impeachment and removal" of Cheney and the 34% advocating that for Bush.

Of course, such decisions ought not be purely dictated by political tactics -- impeachment of these two traitors to the Constitution would be the right thing to do regardless of the percentage of Americans agreeing that it is.

But it's disingenuous in the extreme to plead -- as variously Conyers, Van Hollen, and Pelosi have -- that impeachment is "off the table" because it might jeopardize 2008 election prospects. If anything, these numbers suggest the opposite.

Whose Democratic Party? What is it for?


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NOTE: ARG poll via ThinkProgress and DailyKos diarist Steve Singiser. posted by Thomas Nephew at 12:33:00 AM -- |  

 
Optical scan voting survives Maryland House committee vote
Thanks to tenacious lobbying by TrueVoteMD, SAVEOurVotes, and other verified voting supporters -- and to strong advocacy by District 20 delegates Sheila Hixson, Heather Mizeur, and Tom Hucker -- optical scan voting machines remained funded in the House version of the Special Session budget to be sent to conference, and then on to the governor. Yesterday District 20 Delegate Tom Hucker wrote to TrueVoteMD activist Stan Boyd:

The Appropriations Committee tonight rejected a recommendation to unfund the machines and therefore left the funding intact. Full bill should pass tomorrow.

The switch to optical scan voting was approved by the Maryland legislature earlier this year -- but made contingent on funding in the coming year's budget.

Lest yesterday's vote appear to be a narrow special interest victory, Maryland citizens overwhelmingly support the more secure, cheaper optical scan voting machines over the snafu-ridden electronic voting machines we're currently saddled with. From the summary of a poll of 839 Marylanders, conducted between October 16 and 21 by Gonzales Research & Marketing:

Statewide, 64% think the Governor should fund this change back to a system that uses paper ballots counted by optical scanners, while 31% do not think he should fund this change, with 5% giving no response.

By party, 74% of Democrats think the Governor should provide funding for this and 22% think he shouldn’t; 75% of independents think the Governor should provide funding and 19% think he shouldn’t; and 43% of Republicans think the Governor should provide funding and 51% think he shouldn’t.

A majority of voters in every region of the state think the Governor should fund the change from touch screen voting machines back to a system that uses paper ballots counted by optical scanners.

(Via SAVEOurVotes.) Not only are optical scan voting machines more secure -- they are 'automatically' backed up with recountable paper ballots -- they're cheaper, too. From SAVEOurVotes "Do The Math" flier:

Optical scan voting systems are far less expensive to operate because they require only 1/5 as many machines. Our 19,000 touch-screen machines could be replaced by just 4,000 machines. Each polling place would need only one optical scanner and one ballot-marking station to enable voters with disabilities or language barriers to mark a paper ballot. Switching to an optical-scan voting system would probably reduce our operating costs by as much as 25% to 50%, saving about $2.7 to $5.4 million per year.

The same source reports that Maryland's State Board of Elections annual budget has skyrocketed from $3.1 million in 2000 to $29.5 million in 2007 -- nearly 10 times as much -- with operating costs averaging $10.7 million over the last three years.

Even with yesterday's success, optical scan voting is not assured -- it needs to survive the House-Senate conference. Following that, under Maryland's constitution, Governor O'Malley has wide discretion whether or not to put funds in the budget, and his budget must be ratified by a final General Assembly vote sometime in the new year.

So while the governor has said he'll do "everything in my power" to ensure the switch to optical scan by 2010, it won't hurt to remind him of that, and to keep reminding all our elected officials that optical scan voting is cheaper and more secure than Maryland's electronic voting system.


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PREVIOUSLY: "Optical scan voting penciled in to Maryland budget" (10/30); "Maryland switch to optical scan voting imperiled?" (11/7). posted by Thomas Nephew at 12:30:00 PM -- |  

 
Cassini-Huygens, Titan / Opportunity, Mars

Movie built from telemetry data during the descent of the ESA probe "Huygens" to the surface of Titan. Some Brian Eno type had the nice idea of associating the activation of different mechanisms on board the Huygens with specific musical tones and colors:

This movie, built with data collected during the European Space Agency's Huygens probe on Jan. 14, 2005, shows the operation of the Descent Imager/Spectral Radiometer camera during its descent and after touchdown. The camera was funded by NASA.

The almost four-hour-long operation of the camera is shown in less than five minutes. That's 40 times the actual speed up to landing and 100 times the actual speed thereafter. [...]

Sounds from a left speaker trace Huygens' motion, with tones changing with rotational speed and the tilt of the parachute. There also are clicks that clock the rotational counter, as well as sounds for the probe's heat shield hitting Titan's atmosphere, parachute deployments, heat shield release, jettison of the camera cover and touchdown.

Sounds from a right speaker go with the Descent Imager/Spectral Radiometer activity. There's a continuous tone that represents the strength of Huygens' signal to Cassini. Then there are 13 different chimes - one for each of instrument's 13 different science parts - that keep time with flashing-white-dot exposure counters. During its descent, the Descent Imager/Spectral Radiometer took 3,500 exposures.

The "instrumentation" sidebar panels are also explained. For a sense of Titan's strangeness, watch the ESA video "Huygens on Titan: one year after"; the planet seems to have a liquid methane cycle the way Earth has a water cycle: methane-soaked "mud," methane rivers, methane clouds, methanefall.

Meanwhile, on Mars, the Opportunity and Spirit rovers keep on ticking, with the Opportunity rover poised to enter Victoria Crater via "Duck Bay," the safest (rockiest, most shallow sloped) entry point to the crater:

For the current state of the mission, visit the JPL "Mars Exploration Rover Mission" web site.


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NOTES: Cassini Huygens video via commenter sglover; that and "methanefall" link via Thoreau ("Unqualified Offerings"). Other posts at this site mentioning Cassini-Huygens: 2005/01/15: "Touchdown on Titan: Bravo Cassini-Huygens!"; 2004/12/09: "Rings, shadows, moon," a beautiful image of Saturn's rings.

UPDATE, 11/12: There is some nice footage from Mission Control at JPL from when the rover landed back in January 25, 2004 and started transmitting. Give those folks a hand. Man, Gore is everywhere, isn't he? See also a favorite video of mine (also on YouTube): "Six Minutes of Terror" -- as well as this funny animation. posted by Thomas Nephew at 10:02:00 AM -- |  

 
Well said, David Wade
Senator John Kerry spokesman David Wade, responding to Rush Limbaugh's claim that the Swift Boat Veterans' charges about Kerry in Vietnam "were right on the money, and nobody has disproven anything they claimed in any of their ads, statements, written commentaries, or anything of the sort":

At first I thought, that’s not Rush, that’s just the OxyContin talking. Nonetheless, this is a despicable but unsurprising new lie from a man whose closest brush with combat came when customs officials tried to take away his Viagra. This portly peddler of hate is once again wrong on the facts. John Kerry served his country with honor in Vietnam, and has fought for his fellow veterans ever since. The lies and smears of the Swift Boat Veterans for Bush were disproved conclusively in 2004 by the men who fought by John Kerry’s side in Vietnam, by the military’s own records, by investigative journalists, and by the incredible contradictions that exposed these right wing smear artists. It is long past time that we end the politics of fear and smear that we have seen used against decorated veterans from John McCain to Max Cleland and John Kerry. Rush Limbaugh’s ignorance and determination to divide Americans is just another reminder that you can’t spell ‘Rush Limbaugh’ without the letters L-I-A-R.

(Via Steve Benen, "Carpetbagger Report".) Emphases added because that helps me remember great lines.

Nice job, David! Nice job, Senator Kerry, for hiring David!

Next time do it three years sooner.


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NOTE: "claim" link leads to a MediaMatters post recounting Limbaugh's lie -- and exhaustively documenting just why it is a lie. posted by Thomas Nephew at 11:59:00 PM -- |