New site
I've set up a new site at http://newsrackblog.com. It's not quite what I want -- not sure about the green or the rather small font -- but all of that can be fixed once I've either built up some coding skills or found a better Wordpress template (so long, blogger.com). But the URL is right, I was able to move all the Haloscan comments over to the new system, and recent comments now appear on the sidebar, along with "quick hit" links to stuff I've run across.

See you there! posted by Thomas Nephew at 6/14/2008 11:17:00 PM -- |  

 
Memory almost full

(Self-updating listing of my "del.icio.us" links)

This blog is parked at an ISP home page site granting about 16MB of space. After about six and half years(!) of blogging, that space is almost full; you might say newsrack blog is approaching the "one more wafer" stage. I've been moving images (they really are worth a thousand words!) and various documents over to Photobucket and Google Docs, but soon that won't do the trick either.

So (while I've said it before) expect a move to a new host in the nearish future, other higher priority chores permitting. I'll redate this post to the front page as I undertake that transition, and will eventually add a link to the blog's new location. That blog will probably be remodeled a bit; I'll take suggestions again here, and will bear in mind the ones people have made in the past.

[orig. date 4/7] posted by Thomas Nephew at 5/31/2008 01:30:00 AM -- |  

 
RealNews video clips
The Real News Network is a great resource for different takes (and sometimes the only takes) on world news, with voices from outside the mainstream of U.S. media. Here are some of the clips I've saved, as recently as today, on topics from Iraq to Zimbabwe to the Democratic primaries. As storage resources tighten here, this and the recent deli.cio.us links post will migrate to the top of the blog.

Consider donating to Real News; I did. The link leads to a page with -- of course -- video pitches by Robert McChesney or Paul Jay, and a donation form. By the way, in case you care: it's tax-deductible, and they'll send you a receipt.


=====
PS: Take care with the donation form, it's pre-set to monthly donations -- not that there's anything wrong with that, but it may not be what you expect.
[orig. date 4/21]
posted by Thomas Nephew at 5/31/2008 01:29:00 AM -- |  

 
Worth reading

A stalled U.S. peace movement? Antiwar activity since 2001 (janinsanfran, "Happening Here") --- This is the fifth and last post of a series Jan wrote to gather her thoughts for a history workshop, and the whole series is worth your while. Jan concludes:

A more effective peace movement needs to be offering a vision of a plausible, sustainable global community that doesn't hinge on U.S. use of force to maintain empire. Elements of that vision clearly need to include challenges related to technology, climate change, and how to rein in cancerous capitalism. We really haven't known how to put out such a vision yet.

That's not surprising -- it is hard and perhaps, also, the struggle against empire may not have changed us enough so that we could see it. But the group(s) that find elements of that vision will discover that millions are already with them, looking for something similar, ready to elaborate something as yet unknown. They just don't currently identify with the peace movement.

The Cynic and Senator Obama (Charles Pierce, Esquire) --- This is one of the best political essays I've read in a long time. Self-described cynic Pierce considers Obama's oratory and politics, and finds them serviceable but not entirely satisfying:

There is one point in the stump speech, however, that catches the cynic up short every time. It comes near to the end, when Obama talks about cynics. Obama says that cynics believe they are smarter than everyone else. The cynic thinks he’s wrong. The cynic doesn’t think he’s wiser or more clever or more politically attuned than anyone else. It’s just that he fears that, every morning, he’ll discover that his country has done something to deface itself further, that something else he thought solid will tremble and quake and fall to ruin, that his fellow citizens will sell more of their birthright for some silver that they can forge into shackles. He has come to believe that the worst thing a citizen of the United States of America can believe is that his country will not do something simply because it’s wrong. It would be a mistake for anyone -- but especially for a presidential candidate -- to believe that the cynic thinks himself wise or safe or liberated. In 2008, the cynic is more modest. He considers himself merely adequate to the times.

I could go on quoting this piece at length, but I'll make do with two quotes -- one that made me nod my head as the main thing I hold against Obama (link added):

In 2007, when asked about the possibility -- just the possibility -- of impeaching George W. Bush and/or Dick Cheney, Obama scoffed at the idea, not entirely because it was constitutionally unsound but also because it was impolite and a nuisance and might make many people angry at one another, and he was, after all, running to help save us from ourselves.

“We would, once again, rather than attending to the people’s business, be engaged in a tit-for-tat, back-and-forth, nonstop circus.”

He was offering a guilty country a nolo plea. Himself. Absolution without confession.

The cynic declined the deal. There were not enough people in handcuffs yet.

And one that made me laugh:

“I look forward as president to going before the world community and saying, ‘America is back. We’re ready to lead,’ “ Obama says on the radio, the static crackling and popping and the transmission fading, and it takes a moment for the cynic to wonder whether or not the world wants America to lead. Maybe the world wants America to sit down and shut up for a while.

Race to the Bottom, (Betsy Reed, "The Nation") -- Reed stipulates that misogynistic attacks on Hillary Clinton have happened and are deplorable, but thinks declaring "sexism the greater scourge" than racism is not helpful. She continues:

Yet what is most troubling--and what has the most serious implications for the feminist movement--is that the Clinton campaign has used her rival's race against him. In the name of demonstrating her superior "electability," she and her surrogates have invoked the racist and sexist playbook of the right--in which swaggering macho cowboys are entrusted to defend the country--seeking to define Obama as too black, too foreign, too different to be President at a moment of high anxiety about national security.

Women and the Invisible Fist (Charles Johnson, Rad Geek People's Daily) --- Libertarians (and others) grant and even assume the possibility of spontaneous order; but if so, must they not also grant the possibility of spontaneous repression? An interesting essay by libertarian Charles Johnson argues yes, with a close examination of writings by feminist theorist Susan Brownmiller. The latter coined the ugly but compelling "Myrmidon theory" of rape -- that men as a class or gender benefit from the transgressions of rapists.* Roughly speaking, the thinking is that the "good" men often identify themselves as protectors, women often agree, and society as a whole shapes itself around the ever-present threat. Johnson:

But if widely distributed forms of intelligence, knowledge, virtue, or prudence can add up, through many individual self-interested actions, into an benign undesigned order, then there’s no reason why widely distributed forms of stupidity, ignorance, prejudice, vice, or folly might not add up, through many individual self-interested actions, into an unintended but malign undesigned order. Moreover, if you consider that spontaneous orders can emerge as unintended consequences of certain widespread forms of violence, then it ought to be especially clear that not all undesigned orders can be considered benign from a libertarian point of view.

Via Jim Henley, who seems lately to be about metamorphosing your father's (and/or mother's) libertarianism into something more honest, multifaceted, and interesting. See also in this respect Henley's Art of the Possible post, and the site as a whole: "Liberals and libertarians on common ground… and otherwise." Henley says that the challenge is to "correct spontaneous malign orders without the tool of state violence." I'm not sure that circle can be squared -- some countervailing force is needed against spontaneous malign orders, and that force will need some agreed on norms of justice and enforcement. But I'm interested that libertarians are thinking about the challenge.

"Secret Law and the Threat to Democratic and Accountable Government," Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, April 30, 2008 --- From Senator Russ Feingold's opening statement:

“More than any other Administration in recent history, this Administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits. It has relied increasingly on secret evidence and closed tribunals, not only in Guantanamo but here in the United States. And it has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress.

“These examples are the topic of much discussion and concern, and appropriately so. But there is a particularly sinister trend that has gone relatively unnoticed – the increasing prevalence in our country of secret law.

Feingold went on to list examples like the secret Yoo memoranda on torture and (as we now know) on warrantless surveillance. Testimony by Federation of American Scientists secrecy expert Steven Aftergood, former Clinton OLC lawyer Dawn Johnsen, and University of Minnesota law professor Heidi Kitrosser, among others, delineate the problem and suggest some legislative solutions, or at least balances. Kitrosser:

...as the experience with the surveillance and torture programs demonstrate, the oversight system too often cracks under the weight of executive branch disregard and legislative acquiescence in the same. Such disregard and acquiescence is facilitated in part by the same arguments used to justify the circumvention of substantive statutory directives. That is, the executive branch often simply asserts that statutorily required disclosures or requested disclosures would prove too dangerous, and these assertions too often are met with acquiescence.

Johnsen:

Given the Bush Administration's propensity to claim that it is simply engaging in statutory interpretation when it in effect is claiming the authority to disregard a statute, Congress should amend the current notification requirement to extend beyond cases in which the executive branch acknowledges iti is refusing to comply with a statute. Presidents should explain publicly not only when they determine a statute is unconstitutional and need not be enforced, but also whenever they purport to rely upon the constitutional avoidance canon to interpret a statute.

("Constitutional avoidance" is when a statute admitting of an unconstitutional interpretation is instead is interpreted in such a way that the result is constitutional.) Administration spokesbot Bradford Berenson had his say as well; find it yourself. Via Marty Lederman ("Balkinization").

=====
* The term "Myrmidon" is from the Iliad, where Myrmidons were Achilles' henchmen soldiers, who did his bidding: "Loyal and unquestioning, the Myrmidons served their master well, functioning in anonymity as effective agents of terror."

UPDATE, 6/2: "Rad Geek" elaborates on his points in a lengthy and worthwhile comment here. Also, reading between the lines of Henley's link to this post, I wonder if I gave offense; that was not my intent. Maybe what's metamorphosing are my own views, not libertarian thinking. I meant that I see Henley as having his own considerable impact on reshaping libertarian thinking (and/or promoting understanding of it) for the better. Glenn Greenwald is another example. Thanks also to Avedon Carol for her nice link to this post.

UPDATE, 6/10: "Rad Geek" comments on our discussion here at his own blog: "10,000 ways to lose your freedom."
posted by Thomas Nephew at 5/24/2008 11:59:00 PM -- |  

 
Good for a grin

Liberal Pundits Offer Unprecedented Apology (Berube, TPM Cafe) ---

The organization, "Repentant Villagers," announced today that it would be issuing formal apologies to hundreds of liberal bloggers, including Duncan Black, Jane Hamsher, Markos Moulitsas Zuniga, Glenn Greenwald, and "Digby," acknowledging that the progressive blogosphere was right about Lieberman after all. "No one could have anticipated the breach of the party," said Jonathan Chait, senior editor of the New Republic. "But Lieberman's recent op-ed, calling the Democratic Party insufficiently pro-American, is just sheer barking lunacy. I could never have seen this coming two years ago when I was calling Lieberman's critics 'a pack of crazed, ignorant ideological cannibals,' and I'm deeply sorry. It looks like I turned out to be the truly ignorant one in the end."

Fafblog Interviews: HILLARY CLINTON --- Worth it for this part alone -- "That's that no-nonsense down-to-business style I like about you, Hillary Clinton! You don't just talk about change. You talk about how much you don't just talk about change!" -- but there's more....

CLINTON: I didn't vote for the war, Fafnir. I voted to give the president the authority to go to war. What was he going to use that authority for? Maybe he'd just frame it and hang it in his office. Maybe he'd use it to prop up one of the legs on his desk. Maybe he'd use it to sing songs and dance jigs and lift weary spirits down at the old folks home! I honestly couldn't say!

FB: If only you knew at the time that that devious George Bush would use a war authorization to authorize a war!

CLINTON: You know, I guess I'm just too giving. Maybe I just love my country too much to deny it the universal health care and endless wars it so desperately needs. Maybe some theoretical secret black Muslim who hates America wouldn't have that problem.

FB: Maybe it didn't have to be an actual war, though. Maybe you coulda just met the president halfway by settin a big pile a money on fire an shootin a buncha random people.

The 3rd Annual Nigerian EMail Conference: "Write better emails. Make more moneys." ---

Like most Nigerians, you're probably finding that it's increasingly difficult to earn a decent living from email. That's why you need to attend the 3rd Annual Nigerian EMail Conference.

"This conference is an investment in your future. Learn to take advantage of modern technology, and make a great deal of money with very little effort. If you have any question, please contact me and I will send you a proposal that may be of interest to you. I await your response by return while assuring you that the transaction is absolutely risk free." - Dr. Collins Mbadiwe

Shroud Of Turin Accidentally Washed With Red Shirt (The Onion) ---

The damage occurred when Pope Benedict XVI, whose turn it was to do the Vatican laundry, did not notice that a brand-new, bright-red Hanes Beefy-T belonging to Cardinal Angelo Sodano had been placed inside of the consecrated cleansing vessel, the Holy Whirlpool 24934 top-load washer.

posted by Thomas Nephew at 5/24/2008 11:40:00 PM -- |  

 
It's Yoo again
In today's Washington Post article "Sentence in Memo Discounted FISA," Robert Barnes reports that Senators Whitehouse and Feinstein have finally pried loose an Office of Legal Counsel (OLC) opinion purporting to provide legal cover for ignoring FISA (the Foreign Intelligence Surveillance Act) as the exclusive means by which electronic surveillance may be conducted. Barnes quotes John Yoo:

"[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading.'

Or as Barnes puts it, "In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration."

Now we've known that Yoo is a dangerous authoritarian hack for years, so yet more evidence of that may evince nothing but yawns. Still...

• It took 2008-2001 = 7 flipping years for this opinion to come to light -- and even now only to Senators.
• As 'emptywheel' ("firedoglake") writes, the document is part of a set of four by Yoo that Senator Whitehouse quoted from in the Senate late last year, all of which purport to let the President be the principal arbiter of what his Article II powers are under the Constitution. Yoo was writing the recipe for a silent putsch.
• As Barnes reports, the Department of Justice continues to rely* on the 2001 authorization of military force (AUMF) against Al Qaeda as justification for warrantless electronic surveillance -- despite a vociferous denial by the Majority Leader at the time, Tom Daschle, that the legislation gave such authority.
  

I also want to add another point to these, one that's smaller in some ways, perhaps important after all in others.

After New York Times published Risen and Lichtblau's initial story on the NSA warrantless electronic surveillance, it developed that the publication was prompted in large part by Risen's threat to scoop his own story by publishing it in his then-upcoming book "State of War." In the course of the last few days I've been poking around the Internet looking for background and discussion of those decisions -- first, not to publish, and later to publish after all. One of the tangential items that hunt turned up was "Risen vs. Risen," a comparison, by Slate's Jack Shafer, of Risen's book with his and Lichtblau's reporting. Shafer sniffed at the allegedly poorer standards in the book:

...when Risen writes in his chapter about the "small, select group of like-minded conservative lawyers" in the Justice Department who Attorney General John Ashcroft assigned to write legal opinions to support the secret NSA surveillance. "They may have been some of the same lawyers involved in the legal opinions supporting the harsh interrogation techniques," Risen writes, bringing two thoughts to mind: 1) They may also not be and 2) such unsupported speculation would never pass muster in the Times.

Well, Shafer can rest his little head easier tonight. In fact, it was exactly the same lawyer involved.

I'm no expert on the journalistic protocols involved here. I assume if Risen wrote "they may have been some of the same lawyers involved " it's because sources told him "they may have been some of the same lawyers involved." And that's good enough for me -- even if there weren't a lawless, stonewalling mafia of an executive branch involved.

What gets me is Shafer's snotty attitude towards a journalist by someone allegedly concerned with journalistic standards. Shafer both leavened and sharpened the charge in his conclusion:

Enough of my ungrateful carping: James Risen deserves our thanks for both his book and his newspaper work. But my point stands. The fundamental difference between good book chapters and good newspaper articles boils down to this: The highest journalistic standard in New York book publishing is one of liability. "Did we libel anybody?" At newspapers like the Times it is, "Is it true?"

Given this week's news, Mr. Shafer, your point doesn't stand either. Actually, this is just the coup de grace -- it never did. What Risen said was true either way, and worthwhile writing either way, and it was shabby to imply otherwise.

And let me suggest a second set of questions to distinguish Risen the book author from Times editors' Hamlet-like indecision over his and Lichtblau's story: do we fail the country and our journalistic mission by not publishing this story? Or do we sit around and wait for someone braver?



=====
* Memorandum from Brian Benczkowski, Deputy Attorney General to Senators Whitehouse and Feinstein, published at "firedoglake" via "emptywheel". As a side note, it took the Post 2 days longer than this (excellent) blogger to report the story -- and the Post failed to supply any links like this one to supporting documentation.. Advantage: blogosphere. posted by Thomas Nephew at 5/23/2008 12:30:00 PM -- |  

 
One Chinese family suffers; no translation necessary
An NPR team followed a couple of parents back to the rubble of their apartment building in Dujiangyan, and reported it inDujiangyan Parents' Search for Child:

With some bodies now found, the military was called in. Soon, about three dozen military police arrived in green camouflage fatigues and black rubber boots but with no supplies or equipment. Mrs. Fu and Mr. Wang ran out to buy them cotton gloves and white cotton face masks. Other neighbors brought shovels. Friends brought out a white sheet and told Mrs. Fu they hoped her son and his grandparents would be found alive but just in case, they would tear this sheet into pieces so they could cover the victims' faces.

Just heard this on NPR. No happy ending here, or for thousands of other Chinese families:

At 4:40 in the afternoon, a worker came out and said, "we've found a child." The parents went limp. "Was he about two, wearing a striped shirt?" the mother cried. The worker nodded. The parents, along with aunts and uncles, sobbed and clutched each other tight. The mother cried out to the worker through her tears one last desperate appeal, "Did you call out to him? Maybe he had just fainted."

You didn't need a word of Chinese to know what the parents were crying when the bodies of their boy and his grandparents were finally found. I have a bad feeling there will be far more than the reported 15,000 dead estimated so far. More NPR coverage of the China earthquake at Chengdu Diary. posted by Thomas Nephew at 5/14/2008 05:38:00 PM -- |  

 
dove evolution
posted by Thomas Nephew at 5/12/2008 01:17:00 PM -- |  

 
Department of followups: obliteration, Altstoetter, UPDATE: Zimbabwe
An occasional review of further developments in stuff I've written about before.

Past diminishing and well into negative returns..., April 24, 2008 --- Responding to Senator Clinton's threat to "obliterate" Iran if it were to attack Israel,* Iranian cleric and "Assembly of Experts" member Ahmed Khatami said:

A disreputable American (presidential) candidate has said that if Iran attacks Israel, she will obliterate Iran if she is the president. I tell the American people, it is a shame for them that their presidents are servants of Israel without any willpower.

What they are saying recently is just psychological war. However, if the crazy people in Washington or Tel Aviv take any military action, the Iranian nation will hit them with such a slap that they will not be able to get on their feet again.

We are observing the siege of Shiite Sadr City in Iraq. It seems Americans would like to make what happened in Gaza happen in Sadr City too. We can only conclude that America is fighting Islam.

What the "slap" would be is left to our imaginations, but Americans are now presumably in the collateral damage crosshairs if Iran chooses to retaliate for any American military action. A corollary to "violence begets violence" is "reckless, foolish talk begets reckless, foolish talk."

Practice to deceive, April 22, 2008 --- In prior posts I've echoed the suggestions of legal scholars like Scott Horton and Philippe Sands that the Nuremberg "Judges" or "Justice Trial", a.k.a. U.S. v. Altstoetter, is a precedent for trying lawyers like John Yoo and David Addington for war crimes based on giving the color of law to illegal acts. However, writing at "Balkinization," New Zealand legal historian Kevin Jon Heller argues otherwise:

The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

The key difficulty, Heller believes, is that none of the Altstoetter defendants merely gave legal advice; rather, all were also part of the Nazi legal machinery denying habeas corpus to prisoners and issuing verdicts. Heller asserts that the NMT (Nuremberg Military Tribunal) arguably convicted all the defendants for their deeds rather than their legal advice:

... the mode of participation they use to convict a defendant -– ordering, aiding and abetting, joint criminal enterprise, etc. -– and often even fail to identify which of the defendant’s acts discussed in the judgment they consider criminal. [...]

... individual responsibility required the prosecution to prove “that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense”

Related posts at "Balkinization" include Marty Lederman's setup for Heller, "What, if Anything, Does the Nuremberg Precedent Tell Us About the Criminal Culpability of Government Lawyers?," acknowledging the potential relevance of Altstoetter, and "What's the Relevance of Altstoetter, Anyway?" following Heller's piece which reiterates Lederman's skepticism about the propriety of Altstoetter-based criminal charges against Yoo et al for their "aspirational" readings of U.S. and international law, rather than an inquiry into whether constitutional obligations were breached.**

However, Lederman also acknowledges Scott Horton's comment about Heller's post. There's much more in Horton's comment, but one part makes a point I made in "Practice to Deceive" -- that the way in which the advice and directives were concealed argues for knowledge that said advice was criminal in nature:

Philippe Sands's key finding -- if there is just one -- is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a "top down" story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers' trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it's possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed.

Zimbabwe: enough is enough, April 10, 2008 --- The repression of Zimbabweans following their election of Morgan Tsvangirai (contested by Robert Mugabe's ZANU-PF party and state apparatus) continues unabated -- but so far at least without the logistical resupply of a ship full of weapons sold by China to the Zimbabwean government. The An Yue Jiang was not allowed to dock in South Africa, Namibia or Angola -- generally thanks to union activism in those countries.

But Nell Lancaster ("A Lovely Promise") points to a recent article at Sokwanele *** alerting readers that the government of Malawi may be the weak link in the chain of refusals to allow the ship to offload its deadly cargo. As the Sokawanele author Hope puts it, the case is important because (a) political violence in Zimbabwe continues, (b) the case has proven to be something people outside Zimbabwe can get involved in, and (c)...

it is also forcing countries in the region to ‘nail their colours to the mast’, so to speak. In the open glare of the public eye, this story shows us which nations are concerned for the safety of the Zimbabwean people, and which ones are more concerned with the loyalty to the Zanu PF regime.

The Malawi embassy in Washington, D.C. can be contacted at (202) 721-0274. Embassy e-mail addresses I've found include embassy@malawi.com.tw (Taiwan) and mwiun@undp.org (UN); several others are listed here.


=====
* Clinton's remarks to Chris Cuomo (emphases added): "whatever stage of development they might be in their nuclear weapons program, in the next 10 years during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them." Like him or not, Khatami is justified to consider this, on careful consideration, as a (reckless) threat of nuclear retaliation by Clinton for a nonnuclear attack -- even if, in a subsequent interview with Keith Olbermann, she conditions a U.S. nuclear response on an Iranian nuclear attack on Israel. In another interview with Andrea Schaefer, she claimed "facts on the ground have changed" since October 2007 (before the release of an NIE denying an active Iranian nuclear weapons program was underway) -- and considered the notion of Iranian theocrat undeterrability plausible enough to repeat without qualification on national TV.

** Lederman thus at least implicitly concedes the possibility and potential propriety of impeachment proceedings against Yoo (and possibly the president) by Congress. As may or may not be well known, one of the consequences of a conviction for an impeachable act is that the convicted person may not hold federal office again. Both impeachment and conviction are thus useful and possible after that person has held federal office.

*** The word means "Enough is Enough"; the site chronicles Mugabe's repression and democratic resistance to it in Zimbabwe.

NOTES: (1) Khatami remark link is to a Real News Network video clip, transcript, and translation of Khatami's remarks. (2) Nell has an earlier post about the An Yue Jiang here.

posted by Thomas Nephew at 5/11/2008 02:15:00 PM -- |  

 
Even Myanmar's junta may hit this one out of the park
First Lady Condemns Junta's Response to Storm - washingtonpost.com:

'Although they were aware of the threat, Burma's state-run media failed to issue a timely warning to citizens in the storm's path,' she said. 'The response to this cyclone is just the most recent example of the junta's failures to meet its people's basic needs.'

=====
UPDATE, 5/8: How hypocritical is Ms. Bush? ThinkProgress counts the ways.

But herewith an end to politics; it's more important to (try to) help Burmese victims of this catastrophe. Nationally, consider OxFam America (Charity Navigator gives them a 4-star rating). Locally, the Mandalay Restaurant is collecting donations and forwarding them to a local temple; they're also planning a fundraiser soon. If/when I get details, I'll post them here. And I'll be there -- not only is it a good cause, but the "Nephew Restaurant Guide to Silver Spring" gives Mandalay "two thumbs way up."

UPDATE, 5/10: In comments, Nell points to a Daily Kos post by "zawmoo" recommending a Myanmar ex-pat doctor's group which can "route around the damage" of the junta's refusal to cooperate with relief efforts:

Checks to:
The Myanmar American Medical Education Society, Inc.
MEMO: Emergency Relief Fund

and mailed to:
Myanmar American Medical Education Society
128 Mott Street, Suite 302
New York, NY 10013

Please have a look.
posted by Thomas Nephew at 5/06/2008 04:00:00 PM -- |  

 
A nation turns its stony eyes from you
Last week I had to put down my newspaper in the Metro for a long time. The front page news photo -- connected with the story "U.S. Role Deepens in Sadr City" -- was this:

Two-year-old Ali Hussein is pulled from the rubble of his family's home in the Shiite
stronghold of Sadr City in Baghdad, Iraq, April 29, 2008.
(Karim Kadim/AP Photo)

It might have been a more cropped version. Certainly all I looked at was the boy, Ali Hussein, aged 2. According to the caption, he died at the hospital he was brought to. Reacting to the photo in a letter to the editor this weekend, Virginia mom Valerie Murphy was upset, writing:

We know that a war is going on. Must you use a photograph of a dying Iraqi 2-year-old, especially on the front page?

I can think of no other reason for putting such a picture on the front page than to stir up opposition to the war and feed anti-U.S. sentiment.

You have sensationalized a child's death and subjected young children to inappropriate images. From now on, I will preview what's in your paper before my children see it.

Because after all, it's all about the children.

As another great Virginian once said, "It is well that war is so invisible, or we should grow weary of it," or some similarly repellent comment. This ought to be (yet another) "Napalm Girl" photo of the Iraq War, but it's gone MIA from the Internet since then, except at the photojournalism analysis site BAGnewsNotes, Glenn Greenwald, and the Kansas City Star.

It's a small miracle it ever appeared at the Washington Post -- it's less of one that you won't find the front page photo they used there now.* Meanwhile lead editor Fred Hiatt was writing this weekend that Somalian chaos proves we're right to be creating Iraqi chaos, or something like that. Hence my reposting of the photo, which I hope falls under "fair use" given that I'm discussing it here.

Did the pilot who dropped the bomb intend to kill Ali Hussein? No. Did the commander who gave him the order take sufficient care to avoid that? I don't know -- though dropping a bomb in a populated neighborhood ought to be a last resort, even for a highly critical mission. Let alone this one. Did the commander-in-chief who continues to wage this war take sufficient care to avoid it? Definitely not. Did the people who voted him into office twice, or who ever supported a needless war? Also, no. Did this or does this war and occupation serve any discernible legitimate purpose? Not in my opinion.

I'm among those who ever supported this war -- so some of little Ali's blood is on my hands too. At the time, I thought I was advocating protecting my own child and others from future attacks, ones worse than 9/11. Instead, if anything, I've made them more likely.

And if a Ms. Murphy speaks for any appreciable number of others, or if we passively allow this war to continue, we may collectively deserve the "terror nation" epithet Rev. Wright so controversially bestowed. Just as with Senator Durbin's comments once about abuses at Guantanamo, what was said is not unthinkable. It's not impossible. It may or may not always have been the truth, but it may be the truth now.

My own little Maddie turns 10 today. I love her dearly. I know this boy's father must have loved him, too -- look at him, he's an angel even in his final moments. There's nothing I can do for either of them but ask forgiveness -- and do whatever peaceful thing I can think of to help bring this war to an end.

=====
* A zoomed out shot of the same scene, from a different angle, is part of the online photo slideshow for the story.
UPDATE, 5/10: The father speaks (ABC News):"You attacked civilians' houses crowded with people for the sake of a few militants," said Hussein's father, his face in tears. "A considerable number of people were killed for the sake of killing four." posted by Thomas Nephew at 5/06/2008 12:30:00 PM -- |  

 
Ask not for whom the torturer comes
What Jim Henley said, about Supreme Court Justice Antonin Scalia's sophistry about torture not being prohibited under the Eighth Amendment because it isn't "punishment" but interrogation:

...one of my biggest arguments was that the corruption of war and torture would seep back across the border and contaminate republican institutions and principles here at home. Scalia makes clear that that is actually the idea. Conservatism is just the interest of the stronger.

Note also thoreau's point in comments that Scalia's answer completely ignores the Fifth Amendment's prohibition against torture, which is of course the working definition of self-incrimination and attempts to bring that about. As thoreau shows in an earlier post, that prohibition was one of the intended effects of the Fifth Amendment.


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UPDATE, 5/2: embedded 60 Minutes clip added. posted by Thomas Nephew at 5/02/2008 09:30:00 AM -- |  

 
Mission accomplished! -- "Responsible Plan" dropped off at Van Hollen's office
As advertised, I joined my friends Michelle Bailey, Hank Prensky, and Joy Austin-Lane in a short visit to Congressman Chris Van Hollen's (D-MD-8) local Hyattsville office (just outside Takoma Park), to bring the Congressman a copy of "A Responsible Plan to End the War in Iraq."

Michelle is a fellow impeachment activist -- or I should say I am, she and Lisa Moscatiello were the ones who started Takoma Park impeachment activism, I joined in late. I was also very gratified that former Takoma Park City Council members Hank Prensky and Joy Austin-Lane joined us.

We met at a local cafe first and went over what we were going to say. I had brought along talking points supplied by TrueMajority.org which helped us gather our own thoughts.

I introduced the plan as a comprehensive legislative agenda calling for a complete exit from Iraq, with no permanent bases, that I hoped Rep. Van Hollen would be able to support. I noted that Rep. Van Hollen is indeed a co-sponsor of many of the legislative initiatives the plan highlights -- for instance, a key bill calling for a diplomatic offensive with Iraq's neighbors -- which we thanked him for.

I also noted that the plan calls for an end to off-budget appropriations for the Iraq war; Mr. Prensky added that he hoped Van Hollen would vote against the looming Iraq supplemental appropriations bill. Ms. Austin-Lane recalled the opposition to the Iraq war in Takoma Park, and the City Council resolution she and Mr. Prensky voted for opposing it.

As an impeachment activist, Michelle added that she hoped Van Hollen would reconsider his opposition to impeachment; I joined her in that, but emphasized that wasn't a feature of the plan we'd come to discuss.

I added that I hoped Van Hollen would consider making the "Responsible Plan" part of the DCCC's 2008 agenda, and that I thought he should make sure to support the candidates who've endorsed it.

It was a pleasure meeting Mr. West, who staffs Chris Van Hollen's Hyattsville office. He listened carefully, took notes, and told us he'd have the copy of the "Responsible Plan" in Rep. Van Hollen's hands this afternoon. posted by Thomas Nephew at 5/01/2008 12:30:00 PM -- |  

 
I have a responsible plan to end the war in Iraq

Thursday, May 1 is the fifth anniversary of "Mission Accomplished" - the day George Bush stood on an aircraft carrier declaring major combat operations over in Iraq.

Five years later, the costs of war keep mounting and there's still no end in sight. In 1994, the Republicans came up with a Contract with America that they worked to implement as soon as they were sworn in. This time around, it will be up to us to make sure that whoever is elected to Congress move briskly to enact the Responsible Plan to End the War in Iraq and bring our troops home.

-- True Majority e-mailing.

On Thursday, I'll be joining hundreds of others around the country who will be delivering a copy of the plan to their Congressional representatives (details below). We'll be putting Washington on notice -- once again --that there is strong support for getting out of Iraq and preventing future Iraqs.

As befits candidates for civilian, legislative office, the plan is a statement of purpose, campaign platform, and legislative agenda rolled into one rather than a detailed "brigade X leaves city Y at time Z" military plan. Its principles are...

• Ending U.S. military action in Iraq
• Using U.S. diplomatic power
• Addressing humanitarian concerns
• Restoring our Constitution
• Restoring our military
• Restoring independence to the media
• Creating a new, U.S.-centered energy policy

The authors point to recommendations made by the Iraq Study Group in late 2006 to flesh out the fuller implications -- e.g., renouncing permanent bases and ramping up a "diplomatic offensive" in the region. There are already legislative proposals to accomplish some of these goals: as Ilan Goldenberg writes in The New Republic, H.R.3797 (for a "New Diplomatic Offensive for Iraq") would direct the president to appoint a high-ranking Special Envoy responsible for dealing with Iraq's neighbors.

As is clear from the bullet list above, the plan is not just about how to get out of Iraq, but also about how to prevent future abuses of power from happening; thus, the plan also highlights legislation like S. 139, the Foreign Surveillance Expedited Review Act, which makes it easier to challenge FISA abuses in court, or H.R. 3045, the Presidential Signing Statements Act of 2007, which "[p]rohibits any state or federal court from relying on or deferring to a presidential signing statement as a source of authority when determining the meaning of any Act of Congress." The "Responsible Plan" document also mentions legislation against "outsourcing" torture, and legislation requiring that the U.S. end its use of military contractors -- i.e., mercenaries -- in Iraq.

For more on the "Responsible Plan" -- which was developed not by some think tank, but by Darcy Burner, Donna Edwards, and other progressive congressional candidates -- visit the web site at http://www.responsibleplan.com, and download the document.*

To join my delegation to Congressman Van Hollen's Hyattsville office, please RSVP at this "TrueMajority" link. We'll gather as a group at Savory Cafe (7071 Carroll Ave., Takoma Park) around 8:30am on Thursday morning, go over the talking points, take a photo and then deliver the plan to the Congressional office at 9:00am. The address is

6475 New Hampshire Avenue
Suite C-201
Hyattsville, MD 20783 (map)
(301) 891-6982

I've called ahead to notify the staffer there of the meeting, which ought to be polite, of course -- for one thing, Rep. Van Hollen is a co-sponsor of many of the bills highlighted in the "Responsible Plan" document.** It also will need to be brief -- the staffer is due elsewhere by 9:30. If you prefer to meet us at the New Hampshire Avenue office at 9am, that's OK, too, of course, but it may be nice to get a cup of coffee with us and get acquainted first.


=====
* I've written about the plan here and here as well.
** This footnote will be replaced with (1) a list of "Responsible Plan"-endorsed legislation co-sponsored by Van Hollen, and (2) one list of such legislation not yet co-sponsored by him.

UPDATE, 4/30: TrueMajority.org is providing additional resources (signs, talking points) for the Responsible Plan Delivery here. They will also host a conference call tonight at 9PM EST with Alan Charney, the Program Director of USAction, and leaders behind the Responsible Plan including Congressional Candidates Darcy Burner and Eric Massa, as well as analysts from the National Security Network.

Responsible Plan Briefing Conference Call
Wednesday, April 30th, 2008, 9 PM Eastern
800-761-6708; entry code: 586945#

posted by Thomas Nephew at 4/30/2008 12:35:00 AM -- |  

 
Past diminishing and well into negative returns...
...on the value of this Democratic primary campaign. eRobin ("fact-esque") and others see it differently, seeing the campaign as giving candidates a chance to hear from more voters:

...the more time they're out there forced to compete for the votes of the people who want to hear about the candidates' schemes to reverse the damage of the BushCo years, the better off the Democrats are for November.

In the abstract, I'd agree. Here, now, and with respect, I don't, because I guess I'm not seeing the campaign they're seeing.

The campaign I'm seeing features Hillary slingshotting rightward off of questions about flag lapel pins, the Iranian nuclear threat -- remember, there isn't one -- and appearances and "toughness" generally. What people are likely to remember from Pennsylvania primary isn't energy policy or college tuition support, but belligerent statements on Iran, "can't stand the heat get out of the kitchen", and the hideous ABC debate (regardless of the crowd outside). The outcome will be either to bloody nominee Obama, or coronate nominee Clinton by overturning the pledged delegate and popular vote count via party elders... like herself. Yes, that would be nominally legit. No, it wouldn't be good.

I'm particularly appalled by Clinton's Iran war drum beating and her bizarre extension of a nuclear umbrella over not just Israel -- which has its own nuclear weapons -- but other Middle East countries. And for using Good Morning America to do it. I gave her the benefit of the doubt once about falling for hypotheticals (re the so-called "ticking time bomb" scenario); no more. Congratulations all around -- Charles Krauthammer's "Slim Pickens" fantasy is only two weeks old and already it's taking shape as future U.S. policy.

In so doing, Hillary has all but single handedly revived the Iranian hardliner position for getting a deterrent of their own. And here's the beauty part (if you're a "Left Behind" fan or a Likudnik, that is): all without even trying to get a nuclear free zone including Israel in the Middle East -- the only way I'd want an American president to even consider such a step. But wait, that's not all: she's also hemming and hawing about how Iran may be undeterrable -- something that was a critical (il)logical* step to getting us into the Iraq War.

I surely won't be pleased about it, but Clinton being more "likely to be bamboozled into another war" may (unfortunately) turn out to be the most accurate assessment I've ever made for the record. For all her vaunted experience, the closer I look at her Iran statements, and the more I think about them, the much worse she looks: like someone who is play-acting tough, and like someone who's playing with fire.

If this kind of talk is punished at the polls, I'll stand corrected that the Democratic primaries are serving a higher purpose. As it is, McCain could -- if he were smart, and so inclined -- flank Clinton from the left and undermine her "experience" bullet point with a variation on the "in your heart you know she's nuts" strategy. After all, he just joked "bomb bomb bomb, bomb bomb Iran." She was in earnest. She was talking about using nuclear weapons. And not even in retaliation for an attack on this country.

I'd like her not to.


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* Obligatory "by me too." NOTE: The embedded video collection above includes four clips substantiating the statements about Iran I'm attributing to Senator Clinton. Re Iranian undeterrability, she says in the Olbermann interview "I don't buy that", nosirree, but leaves that qualifier out in the Schaefer interview, inviting those viewers to believe the mad mullahs are all itching for a nucular showdown someday.

UPDATE, 4/25: Transcript of 4/23 Clinton exchange with Andrea Schaefer on "Morning Joe" (4th clip in embedded video above). Also, for how two experts think Iran should be addressed, tune in to this bloggingheads.tv dialogue between ISIS Jackie Shire and Ploughshares Fund's Joe Cirincione.
UPDATE, 5/4: Transcripts of the key parts of all 3 Hillary Clinton clips above (Cuomo=1st clip, Olbermann=2d clip, Schaefer=4th clip) are now here: Cuomo interview ("obliterate"), Olbermann interview ("would provoke a nuclear response"), Schaefer interview ("facts on the ground have changed"). The note above now specifies which interview is which.

UPDATE, 5/28: The Olbermann clip is no longer available in the video collection embedded above.
posted by Thomas Nephew at 4/24/2008 01:38:00 AM -- |  

 
Practice to deceive
The past few weeks have provided numerous headlines about torture authorized by the American government. The stories quickly climbed up the dungeon ladder from John Yoo's second torture memo to the revelation that Cabinet-level discussions were held specifically about whether and how to "interrogate" -- that is, torture -- prisoners, to the revelation that Dubya himself knew of those meetings and approved this message, so to speak.

Of course none of these things are surprising any more. As Thoreau once observed, you find a trout in the milk, that's pretty good circumstantial evidence the farmer's been watering the milk, even if you never actually saw him do it.* You find a bunch of MPs proudly mugging, thumbs up and smiles wide, for photographs of curious, cruel, abusive, torturous, illegal, and revolting practices contradicting literally centuries of American military practice and policy, you have the distinct feeling the gloves are off and the trail leads upwards.


A partial catalogue of lies
By deliberately and continuously hiding what they've done, and by stonewalling internal and outside investigations, the Bush/Cheney administration has succeeded in making it boring and hard to understand what each new piece of the puzzle adds, if anything, to understanding what was done by whom.

However, these deceptions and delays are evidence in their own right, and deserve to be examined closely, with a view to eventual war crimes prosecution either here or abroad. Consider:

• Douglas Feith:
  

  Feith described how, as he and Myers spoke with Rumsfeld, he jumped protectively in front of the general. He reprised his “little speech” for me. “There is no country in the world that has a larger interest in promoting respect for the Geneva Conventions as law than the United States,” he told Rumsfeld, according to his own account, “and there is no institution in the U.S. government that has a stronger interest than the Pentagon.” So Geneva had to be followed? “Obeying the Geneva Conventions is not optional,” Feith replied. “The Geneva Convention is a treaty in force. It is as much part of the supreme law of the United States as a statute.” Myers jumped in. “I agree completely with what Doug said and furthermore it is our military culture It’s not even a matter of whether it is reciprocated—it’s a matter of who we are.” [...]
  

  ...The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

  (Philippe Sands, "The Green Light", Vanity Fair, May 2008)
  
• William Haynes II:
  

  In June [2003], press accounts asserted that the U.S. was subjecting detainees to “stress and duress” techniques, including beatings and food deprivation. Senator Patrick Leahy, Democrat of Vermont, wrote to Secretary of State Condoleezza Rice, asking for a clear statement of the Administration’s detainee policy. Haynes wrote a letter back to Leahy, which was subsequently released to the press, saying that the Pentagon’s policy was never to engage in torture, or cruel, inhumane, or degrading treatment—just the sort of statement Mora had argued for. He wrote in his memo that he saw Haynes’s letter as “the happy culmination of the long debates in the Pentagon.” He sent an appreciative note to Haynes, saying that he was glad to be on his team.
  
  On April 28, 2004, ten months later, the first pictures from Abu Ghraib became public. Mora said, “I felt saddened and dismayed. Everything we had warned against in Guantánamo had happened—but in a different setting. I was stunned.” He was further taken aback when he learned, while watching Senate hearings on Abu Ghraib on C-SPAN, that Rumsfeld had signed the working-group report—the draft based on Yoo’s opinion—a year earlier, without the knowledge of Mora or any other internal legal critics. Rumsfeld’s signature gave it the weight of a military order. “This was the first I’d heard of it!” Mora told me.
  

  (Jane Mayer, "The Memo", The New Yorker, Feb 6, 2007)
  
• David Addington:
  

  On January 25 [2003], Alberto Gonzales put his name to a memo to the president supporting Haynes and Rumsfeld over Powell and Taft. This memo, which is believed to have been written by Addington, presented a "new paradigm" and described Geneva’s “strict limitations on questioning of enemy prisoners” as "obsolete." Addington was particularly distrustful of the military lawyers. "Don’t bring the TJAGs [military lawyers in the office of the judge advocate general -- ed.] into the process—they aren’t reliable," he was once overheard to say.

  (Philippe Sands, "The Green Light", Vanity Fair, May 2008)
  
  
  
• John Yoo (and/or Jay Bybee and/or John Ashcroft):
  

  ...John Yoo did not have the legal authority to issue this opinion... unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office. So the obvious question is:
  
  Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is "no," then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn't anyone check with [correction: Bybee] and/or Ashcroft? If not, why not?
  
  This was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms -- so that an unconfirmed, rogue deputy in OLC can't just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned. [Something similar appears to have occurred with respect to the landmark September 25, 2001 OLC Opinion on the President's unilateral power to take whatever military steps he thinks necessary to preemptively deter terrorist actions -- the memo that first argued that Congress is powerless to regulate the Commander in Chief. That, too, went out under Yoo's name, rather than under the name of the Acting AAG, who at the time was the much more careful and temperate (and superlative) career attorney, Dan Koffsky. How could that have happened?
  

  (Marty Lederman, "The Yoo/Chertoff/Ashcroft Memo?
  How Did the OLC Opinion Come to Be Issued from DOJ, Anyway?,"
  Balkinization 4/2/2008

  
  

In each case, a deception or -- what amounts to the same thing in a bureaucracy -- a knowing violation of protocol was carried out. In each case, the deception was needed in order to grease the skids for an immoral and criminal policy, by either sidestepping persons or offices with inconvenient integrity, or by pretending to agree with them even as the diametrically opposite decision was taken. In each case above the deception itself answers the question, "was the torture policy advocate acting in good faith?"


"Consciousness of guilt"
"Of course he wasn't," many will say; others will add, "that shouldn't matter, anyway." I agree with both reactions. But some disagree, even when -- like Georgetown law professor (and former OLC lawyer) Marty Lederman -- they're at the forefront of efforts to oppose the Bush administrations torture and detainee habeas policies. Lederman argued last year that "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."

In a post I wrote in response last year ("A fortiori"), I argued that the sincerity of Yoo et al's legal advice shouldn't matter -- and am thus taking a kind of "strict liability" approach to war crimes or legally advocating for them. But if it must matter, then I hope this post helps suggest that "smoking gun memos" aren't needed to establish that good faith was lacking; the deceptions practiced by these actors show a "consciousness of guilt" (like 'good faith' and 'strict liability', a legal term of art) that strongly argues against it.**

While details vary by jurisdiction, the outlines of evidence for "consciousness of guilt" are a longstanding feature of Anglo-Saxon criminal procedure. A nice treatment of it for laypersons like myself was written by Dan Stigall, using the plot of "Crime and Punishment" as a touchstone ("Prosecuting Raskolnikov: a literary and legal look at "consciousness of guilt" evidence, Army Lawyer, Dec. 2005). Stigall distinguishes "four separate categories of action that are, and have historically been, considered admissible for purposes of demonstrating a criminal's consciousness of guilt: disposing of the evidence, giving false exculpatory statements, flight, and evidence of the accused's demeanor."

While no suspect has fled (yet), one may fairly classify the deceptions practiced on Mora, Senator Leahy and others as "false exculpatory statements."** It's hard to be any more blatant about disposing of evidence than burning tapes of interrogations. And as to demeanor, Philippe Sands recounts an interesting anecdote about William Haynes:

...the death blow to the administration’s outlook did not occur for three more years. It came on June 29, 2006, with the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld, holding that Guantánamo detainees were entitled to the protections provided under Geneva’s Common Article 3. The Court invoked the legal precedents that had been sidestepped by Douglas Feith and John Yoo, and laid bare the blatant illegality of al-Qahtani’s interrogation. A colleague having lunch with Haynes that day described him as looking “shocked” when the news arrived, adding, “He just went pale.”

Beyond the pale, one might say.

One objection to this line of inquiry might be that secrecy was required by national security. Yet this objection founders -- and founders in nearly every instance of pro-torture policies developed by the civilian Bush administration -- on just who was being kept in the dark at first by the irregular procedures used to develop and promulgate those policies: generals, top military lawyers, the Senate. All had security clearances, all had a right and the authority to know what was going on. All were misled by furtive, guilty tactics emanating from Vice President Cheney's office -- no doubt with a firm, gruff "great work, keep in touch" nod of approval from our bicyclist-in-chief.


Looking ahead
Sands's article is probably best known for an assertion by a European prosecutor looking at the text of the Military Commissions Act:

The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

Maybe so, and such a tap on the shoulder would be better than nothing. But international criminal courts are no guarantee of justice -- just ask the survivors of Srebrenica, who watched the ICC find the ethnic slaughter there was no genocide by studiously ignoring documents proving it was.

More importantly, I think, Americans shouldn't welcome the prospect of others doing justice we won't do ourselves. The political fallout in the U.S. of American politicians held and tried overseas would be, I think, significantly worse than those of impeachment or domestic criminal trial.

Yet what may we expect from our next chief law enforcement official? I confess I have no idea when it comes to Hillary Clinton; she may be a lion for justice, or she may be a finger-to-the-wind trimmer.*** As a chief architect of the MCA, John McCain's version of straight talk on prosecuting war criminals is liable to be either "no" or a thousand words involving "honor", "patriotism," "time honored principles," and "national greatness" followed by "no."

For his part, Barack Obama answered Philadelphia journalist/blogger Will Bunch last week about whether an Obama Justice Department would "aggressively go after and investigate whether crimes have been committed." Obama was forthright about not looking forward to the prospect (and as disappointing as ever on his attitude about impeachment). He even seems to think there's the possibility that Abu Ghraib, over a hundred dead after interrogation, etc. were perhaps just the result of "really bad policies," and not "genuine crimes."

But he doesn't rule out investigation and prosecution altogether. And note what he's looking for:

Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

If such a case is made for a President Obama, "consciousness of guilt" will be a part of it. That case can be made. Obama supporters must insist he understands that, and sees to it.


=====
RELATED POSTS: Alberto J. Mora; William Haynes II: not just no -- hell no; Judgment at Nuremberg; A fortiori.

* NOTES: Thoreau's version is pithier than mine, but assumes familiarity with milk-watering. Haynes's deceptions led to an unprecedented joint plea by 20 retired military officers that the Senate Judiciary Committee reject his nomination as to the 4th Circuit Court of appeals. For more on "consciousness of guilt," see John Wigmore's classic 1929 treatise A Treatise on the System of Evidence in Trials at Common Law" or the "Pocket Code" version (ony 970 pages!), both available via GoogleBooks. Title via Sir Walter Scott, 1771-1832: "Oh what a tangled web we weave, When first we practise to deceive!"
** While I'm guessing it's a mock court document rather than one with much legal relevance in its own right, those with criminal law experience may find legal citations in this "Sample Suppressed Evidence Instruction" of interest. As a lawyer at the OLC, Yoo had obligations similar to a prosecutor's. The legal precedents cited here might be relevant for judging Yoo's work (the torture memoranda are generally considered to be particularly weak specimens of legal reasoning), rather than 'simply' his behavior or the consequences of that work.
*** For a sample of Clinton's general (and generally good) stated framework on the issue of torture and other abuses of power, see "2008 presidential candidates on executive powers" (12/27/07) on this site. However, Charlie Savage's questionnaire only addressed what the candidates would do as President themselves, not what they might do to bring justice to members of the prior administration.

EDIT, 4/23: "the sincerity of Yoo et al's legal advice" added for clarity. In "A fortiori," I argue

"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 ca