Inconvenient News,
       by smintheus

Saturday, November 29, 2008

  George Bush: Look back in wanker

A week after voters had repudiated him for the second election in a row, George W. Bush was interviewed by his sister, Doro, on behalf of StoryCorps. The subject was Bush's legacy as president. The White House has now selected and posted some excerpts of the more interesting, or possibly coherent, parts of the interview. This apparently is George Bush at his most reflective.

Q How do you want to be remembered, and what are you most proud of?

THE PRESIDENT: I would like to be a person remembered as a person who, first and foremost, did not sell his soul in order to accommodate the political process. I came to Washington with a set of values, and I'm leaving with the same set of values. And I darn sure wasn't going to sacrifice those values; that I was a President that had to make tough choices and was willing to make them. I surrounded myself with good people. I carefully considered the advice of smart, capable people and made tough decisions.

I'd like to be a President (known) as somebody who liberated 50 million people and helped achieve peace; that focused on individuals rather than process; that rallied people to serve their neighbor; that led an effort to help relieve HIV/AIDS and malaria on places like the continent of Africa; that helped elderly people get prescription drugs and Medicare as a part of the basic package; that came to Washington, D.C., with a set of political statements and worked as hard as I possibly could to do what I told the American people I would do.

In case you're still wondering how the Bush presidency managed to turn out quite the way it did, read that passage a second time and savor it. Can you imagine serving two terms as president and wanting to be remembered for these specific things?

I carefully considered the advice of smart, capable people and made tough decisions.

And once you've gotten over the flabbergast to your syntactical regions, put aside all his gibberish ("came to Washington, D.C., with a set of political statements") and consider how far Bush's estimation of his presidency differs from nearly everybody else's.

When you think of George Bush does your mind turn instinctively and immediately of his HIV and malaria campaigns, whenever they are said to have occurred? Or his disastrous invasions of Iraq and Afghanistan? And by the by, is that what he means when he claims to have "liberated 50 million people", or is Bush referring to what remains of his political base?

The rest of the selected excerpts are if possible even less edifying as a reflection upon eight tumultuous years. I'm not surprised that Bush doesn't want to be remembered for promoting torture or failing to prevent the 9/11 attacks (yes, those two things are closely linked). But does he get to substitute wholly imaginary successes, such as strengthening religious freedom and advancing tolerance in the United States?

crossposted at


Friday, November 28, 2008

  "Why didn’t we see this coming?"

Paul Krugman talks of economists' dismay that they didn't foresee the impending collapse of US financial institutions. The truth is, however, that it was foreseen by people who hadn't taken leave of their senses.

Some people say that the current crisis is unprecedented, but the truth is that there were plenty of precedents, some of them of very recent vintage. Yet these precedents were ignored.

Just as regularly occurs every generation, an irrational exuberance brought with it complacency. Whether it was deregulation, or the housing bubble, or the mortgage Ponzi scheme built upon it, or the substitution of leveraging for reserves, or the ability of the Federal Reserve to act as a firewall, or the supposed "resilience" of the financial system – financial wise guys saw only what they wanted to see. Whatever evidence didn't fit into their complacent view of unlimited horizons of wealth, got ignored or dismissed.

For example, how much concern was raised last December when the reserves held by US banks dropped 50%? Or in January when the continued plunge in banks non-borrowed reserves dipped into negative numbers? By September bank reserves had reached negative $187 billion.

When these declines first appeared, they were called a ''false alarm,'' and the results of a ''change in definition'' and ''arithmetic'' calculations."

The "false alarm" was said to be due to a new way of calculating non-borrowed reserves – one that was in fact more accurate. But as the author Kamran Afshar points out, even factoring out that changed definition the national banks' reserves clearly had plunged dangerously early in 2008. Smaller banks too were in trouble, with their non-performing loans and leases approximately tripling between 2007 and mid 2008 (rising to about 50%).

Very clearly, since the end of 2007, the banking system showed a significant drain on its reserves. The Federal Reserve's own data show the drain was not limited to the larger national banks, but hit small banks, as well.

Somehow, this data had morphed from ''false alarms'' in February to catastrophe in September 2008. There were plenty of signs early this year that regulators should have recognized and then, by taking early action, averted the full $700 billion bailout.

But that would have required Henry Paulson and his gang of incompetents to leave the Wall Street world of make believe for the harsher and less well upholstered world of reality. In the complacent world of too many financiers, a statistic matters only when it bolsters their fantasies. And as Krugman warns, the world of make believe will be back in fashion sooner than we care to believe.

And because we’re all so worried about the current crisis, it’s hard to focus on the longer-term issues — on reining in our out-of-control financial system, so as to prevent or at least limit the next crisis...

For once the economy is on the road to recovery, the wheeler-dealers will be making easy money again — and will lobby hard against anyone who tries to limit their bottom lines. Moreover, the success of recovery efforts will come to seem preordained, even though it wasn’t, and the urgency of action will be lost.

So here’s my plea: even though the incoming administration’s agenda is already very full, it should not put off financial reform. The time to start preventing the next crisis is now.

crossposted at

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Wednesday, November 26, 2008

  From the 'Not News' file

In the Wall Street Journal today James Conway, the Commandant of the Marine Corps, makes a contribution to the Not News file:

"Al Qaeda's Focus Is Pakistan, U.S. Senior Commander Says"

Pakistan has replaced Iraq as al Qaeda's main focus, and the terror group has stepped up its efforts to destabilize the nuclear-armed South Asian nation, according to a senior U.S. military commander.

"Iraq is now a rear-guard action on the part of al Qaeda," said Gen. James Conway, the head of the Marine Corps and a member of the Joint Chiefs of Staff, in an interview. "They've changed their strategic focus not to Afghanistan but to Pakistan, because Pakistan is the closest place where you have the nexus of terrorism and nuclear weapons."

Well, ok, come to think of it there is some remarkable news buried in that intervew after all. When's the last time anybody seriously pretended to believe that Iraq had ever been "the main focus" of al Qaeda? That's at least as silly as Conway's statement on May 30, 2003 that "it remains a surprise to me now, that we have not uncovered" WMD stores in Iraq.

But the recognition that al Qaeda is focused on exerting influence in Pakistan, where there really are nuclear weapons? Even trying to destabilize the Pakistani government? That's a good fit for our Not News bureau.

Dec. 31, 2007: "Bhutto's death helps further Al Qaeda's Pakistan agenda"

Ms. Bhutto's death is a victory for Osama bin Laden's network, which called the opposition figure a tool of US influence. And, they say, Al Qaeda stands to gain most from the spreading unrest in Pakistan.

Only weeks ago, Al Qaeda No. 2 Ayman al-Zawahiri issued a message saying that Bhutto, and all those who participate in Pakistan's elections, would meet their end.


Al Qaeda has several times targeted President Mushaaraf, as well, and in recent months has twice targeted the former interior minister, Aftab Ahmed Sherpao. But in all those cases, the assassination attempts failed.

The day after Bhutto was killed, Asfandyar Amir Zeb was killed by a remote-controlled bomb in Swat, an area bordering Afghanistan where the Pakistani Army is battling militants. Mr. Zeb, a member of Mr. Musharraf's ruling Pakistan Muslim League-Q party, was an outspoken critic of Islamic militancy.


US officials and Pakistani analysts have long been warning that Al Qaeda's strength has grown in Pakistan, nurtured by remote strongholds in the tribal belt and weak government counterterrorism policies. Once unknown in Pakistan, Al Qaeda-like suicide bombings are now a regular occurrence and have claimed as many as 600 lives in the last year alone.

"[Al Qaeda] seems to have increased their focus on Pakistan. There's some shift in their policy," says Mr. Shah.

Sept. 8, 2006: "Pakistan: Hello al-Qaeda, goodbye America"

With a truce between the Pakistani Taliban and Islamabad now in place, the Pakistani government is in effect reverting to its pre-September 11, 2001, position in which it closed its eyes to militant groups allied with al-Qaeda and clearly sided with the Taliban in Afghanistan.

While the truce has generated much attention, a more significant development is an underhand deal between pro-al-Qaeda elements and Pakistan in which key al-Qaeda figures will either not be arrested or those already in custody will be set free.


Thus, for example, it has now been agreed between militants and Islamabad that Pakistan will not arrest two high-profile men on the "most wanted" list that includes Osama bin Laden, his deputy Ayman al-Zawahiri and Taliban leader Mullah Omar.


Pakistan has also agreed that many people arrested by law-enforcement agencies in Pakistan will be released from jail.

Importantly, this includes Ghulam Mustafa, who was detained by Pakistani authorities late last year. Mustafa is reckoned as al-Qaeda's chief in Pakistan.

Jan. 16, 2004:"Assassination tries linked to al Qaeda"

Investigators probing two recent attempts to assassinate Pakistani President Pervez Musharraf are increasingly convinced of two things: Suspects linked to al Qaeda played a role, and they had help from within Pakistan's security apparatus.


This isn't the first time members of Pakistani security forces have been implicated in activities directly opposed to government policy. After the 2002 assassination attempt in Karachi, Inspector Waseem Akhtar of the paramilitary group Pakistan Rangers was arrested and accused of providing details of Musharraf's route. Last fall, authorities arrested a dozen ranking army officers for suspected links to the Taliban.

Oct. 29, 2001: "Pakistani Intelligence Had Ties To Al Qaeda, U.S. Officials Say"

The intelligence service of Pakistan, a crucial American ally in the war on terrorism, has had an indirect but longstanding relationship with Al Qaeda, turning a blind eye for years to the growing ties between Osama bin Laden and the Taliban, according to American officials.

The intelligence service even used Al Qaeda camps in Afghanistan to train covert operatives for use in a war of terror against India, the Americans say.

The intelligence service, known as Inter-Services Intelligence, or I.S.I., also maintained direct links to guerrillas fighting in the disputed territory of Kashmir on Pakistan's border with India, the officials said.

American fears over the agency's dealings with Kashmiri militant groups and with the Taliban government of Afghanistan became so great last year that the Secret Service adamantly opposed a planned trip by President Clinton to Pakistan out of concern for his safety, former senior American officials said.

The fear was that Pakistani security forces were so badly penetrated by terrorists that extremist groups, possibly including Mr. bin Laden's network, Al Qaeda, would learn of the president's travel route from sympathizers within the I.S.I. and try to shoot down his plane.

Mr. Clinton overruled the Secret Service and went ahead with the trip, prompting his security detail to take extraordinary precautions. An empty Air Force One was flown into the country, and the president made the trip in a small unmarked plane. Later, his motorcade stopped under an overpass and Mr. Clinton changed cars, the former officials said.

Pakistan has been the main focus of al Qaeda for a very long time. Iraq never was.

crossposted at

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  The Just-Following-Orders defense

Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel under George W. Bush, offers appallingly bad advice about what to do in regard to "the Bush administration's harsh, abusive and illegal interrogation program". His solution: Let whatever investigations now going on run their course and then forget the whole matter. No Congressional hearings, no special commission, no DOJ task force, no special prosecutor. Just wind down the pitiful few investigations that have occurred, publish some of the documents they turn up, but make sure to turn the lights off when you're done.

The main reason that law-breakers should not be prosecuted, in his estimation, is that the people involved won't take it well. They're already quite unhappy at the prospect of being held accountable, you see, given that they were just following orders.

The investigations and public recriminations of the past few years have led many government lawyers to be more risk-averse and politically sensitive than ever. They have also had a harmful effect on the lawyers' clients, especially in the CIA. In response to the many investigations, CIA officials are "lawyered up" and are drawing down their legal liability insurance. None of these officials are likely to go to jail. But the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one's memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.

And worse, it has spooked the intelligence community. When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.

But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.

You'd have thought that getting a letter from the Office of Legal Counsel authorizing violations of the laws on torture would be good enough to protect you in the future. But oh, no, you'd be mistaken! You can actually get prosecuted for obeying illegal orders. Or nearly as bad, have to rack your memory in order to tell the truth about those orders. That's practically torture, right there.

The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

'Mistakes' must be the terminus technicus at the Office of Legal Counsel for what ordinary civilians call 'crimes'. It's also interesting to learn that the Justice Department considers "reputational losses" to be the most severe penalty, or 'retribution', that can be inflicted on criminals. Once they've achieved that, trials leading to convictions and jail time are pretty much superfluous.

crossposted at

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  They write letters by night

Kevin Hayden posts another in his series of interviews with attorneys representing Guantanamo prisoners, this time with Buz Eisenberg. Like the others, it's a must read for all who'd like to know what's actually involved in George Bush's detention and interrogation policies. The defense lawyers have all manner of shocking information that never seems to make its way into the traditional media's accounts of what transpires at Gitmo (and other prisons in the spiderweb).

In this interview, Eisenberg passes along a striking letter written one month ago by another attorney, Sabin Willett. In it Willett asks that the US government begin to treat his clients with a modicum of dignity now that a federal court has ordered their release.

Willett represents Uighur prisoners held for 7 years without trial in appalling conditions. The government admits that they're not enemy combatants and haven't engaged in any hostile acts toward the US, but never the less has delayed for years releasing them. Some were shipped off in 2006 to a detention center in Albania, but other innocent Uighurs continue to be locked up at Gitmo.

So in October of this year a judge in the DC Court of Appeals, who once again found no reason for the continued detention of these 17 Uighur prisoners, finally acted decisively and ordered their release into the custody of fellow Uighurs living in and around Washington. The Bush administration, true to form, appealed the decision and got a stay of the court order, expecting that it could delay releasing the Uighurs until after Bush leaves office.

For Bush, the issue is not justice or national security. Instead, it's all about not having to admit he's been defeated in his attempt to lock prisoners away forever for no good cause. That's the real reason why the Uighurs have to continue to suffer imprisonment, so that Bush is not seen to have presided over their release.

It's the same thing in the case of Salim Hamdan, a former driver for bin Laden, who's being transferred to Yemen to serve out the last month of his sentence. This summer, a Guantanamo military tribunal rejected the inflated allegations leveled by the Bush administration and sentenced Hamdan effectively to 5 months in prison, to last until the end of 2008. In essence, the military jury said Hamdan would have to serve for the duration of the Bush administration...or nearly so. To be more precise, the jury compelled the Bush administration to decide in its last few weeks what to do after Hamdan's short sentence expired. Would it follow through on its threat and continue to imprison Hamdan – thus nullifying the point of the very kangaroo courts Bush had striven to create? As I commented at the time:

So the [Hamdan] sentence, which runs through late December, also puts Bush on the spot during the last few weeks of his rule. He has the chance, if he chooses to take it, to demonstrate once again for posterity that he fits the Wilsonian mold of the vindictive, embittered president. After that, though, his wishes will suddenly stop mattering any longer.

As it turns out, Bush took a middle route – the route of petulance. He's shipping Hamdan to Yemen and letting that government take the onus of releasing him when the sentence expires. The most important thing, as with the Uighurs, is that George Bush should not have to face up to his own defeat.

And so in an act of supreme petulance the Bush administration will continue to fight against releasing Uighur prisoners whose detention it cannot justify, and whom it cannot continue to hold. Even worse, as with so many other Gitmo prisoners who had the gall to seek vindication of their legal rights in court, the government officials are ensuring that the Uighurs are treated abysmally in captivity.

And here's where that striking letter by Sabin Willett comes in. He composed it shortly after the DoJ had obtained a stay of the DC Court's order for the Uighurs' immediate release. The letter is addressed to attorneys in the Department of Justice who had obtained the stay after losing the case. After describing just how cynically his opposite numbers have behaved in regard to the Uighurs, Willett asks that government at least treat his clients with a modicum of dignity, for once, when he travels to Guantanamo to meet with them on October 27th. In particular, he asks that they not be shackled at the meeting since their imprisonment has been found to be illegal.

The letter speaks volumes about a good many things:

From: Willett, P. Sabin
Sent: Saturday, October 25, 2008 5:14 AM
To: 'Wolfe, Kristina (CIV)'; Warden, Andrew (CIV); Subar, Judry (CIV)
Cc: Manning, Susan Baker
Subject: Uighur cases

Dear Kristina, Andrew and Jud:

Our Uighur clients have now been at Guantanamo for about 6 1/2 years. After years of stalling and staying and appellate gamesmanship, you pleaded no contest -- they are not enemy combatants. You have never charged them with any crime. In October a federal judge said they must be freed. They were on freedom's doorstep. The plane was at Gitmo. The stateside Lutheran Refugee services and the Uighur families and the Tallahassee clergy were ready to receive them. You blocked their release by getting an emergency stay from the Court of Appeals. Then by extending the stay. Since then we have done everything we can to try to win that release again and we have failed. And you have positioned this shrewdly. You know it will take many months to get a decision. If we win you will ask for en banc review. And if we win that you will appeal for Supreme Court review. So you know and I know what is happening here. This won't be over in one month, or in six. It will be years.

And you know another thing. No other country is ever going to take them. Not ever. Not after some genius decided, in your overnight stay papers, for the first time ever, anywhere, to call these people "terrorists." That the charge is false, that you have now backed away from it in your brief, that doesn't matter. It will never happen now.

It was never going to happen anyway. State has been trying to resettle this for four years. China has blocked it everywhere. You know it will never happen. If you win your appeal these men will spend the rest of their lives as prisoners at Guantanamo.

So now I am on my way to Gitmo to tell them all of that on Monday.

And I asked for one simple thing of you. I said let me sit down with them together, as men, without them being chained to the floor. And the Defense Department said no.

So I said, let me meet them alone, as we always do. Let me meet them in the hut where we always meet. Station MPs outside that hut, as you always do. Just permit these men one shred of human dignity. Do not chain them to the floor.
And you said no.

Yesterday the court refused to intervene. But it doesn't end there. Because this isn't about courts or who wins a motion. This is really about just who in the hell you people are. What you see when you look in the mirror. Or who your clients are and what they see in the mirror. What kind of Americans treat innocent victims with this kind of reflexive, degrading cruelty? Americans don't treat criminals this way in a federal prison. Americans are not supposed to treat enemy prisoners of war this way under the service field manuals, or the Geneva Conventions, if anyone paid attention to the field manuals or the Geneva Conventions any more. And these people aren't criminals, and they aren't the enemy and you say the department of defense will not comply even with its own service field manuals, or with any basic human decency, and carry on like a bunch of small-minded, panicked little people. As an American, I don't understand that.

And that is what I am asking for you. I am asking you to request of the base commander that he look in the mirror. Tell him I will meet these men alone, one at a time, and I will sit in that hut, and he can station a whole platoon outside to make sure it is only one at a time, and I would like him to show these Uighurs the basic human respect of not having to be chained to the floor. That is my personal request of your client. As one American to another.

And if the base commander will not do that, not even that, then I would like him to meet me and look me in the eye and explain just what in the hell kind of American he is. Because I do not understand it. Whoever the narrow-chested bureaucrat may be who makes these legal decisions sitting in some political office in Washington , however small and un-American that execrable person may be, I am still willing to bet that the base commander is better than that.
I will be there Sunday night.

Thank you.


Imagine if you had devoted your life to the law and were to receive such a letter. What would your reaction have been?

Inside the Bush administration, the reaction was to deny the request. Willett was told that he could not micro-manage the military's security measures over these dangerous prisoners and thus he would have speak to them through a chain link fence or, in smaller groups, with his clients shackled to the floor. Willett asked the DC Court for an emergency motion to grant what the US government denied, and the same DOJ lawyers filed a motion to deny that.

Petitioners have not alleged, let alone demonstrated, that they will be irreparably harmed if the Court were to deny their motion.

True enough, I suppose. The irreparable harm was done during the previous 7 years of illegal detention. What's another year or so of lawlessness among friends?

crossposted at

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  Advocacy vs. cheerleading

I wonder if this good news will help to convince some Democrats that hard-nosed advocacy is more effective than silent hand-wringing or wishful thinking or worst of all, mere cheerleading for Democratic rule? That demanding reform is a mark of loyalty to their principles, rather than an embrace of the opposite? That the time to raise one's voice is before, not after, disastrous 'compromises' have been set in stone? That Democratic politicians respond to pressure, not to its absence?

John Brennan, the deputy to George Tenet when the CIA was forging and implementing an array of illegal practices including the Bush administration's torture regime, a man who has since then defended and justified Bush's rendition, detention, and interrogation policies, was being widely touted as a likely choice to head the CIA under Barack Obama. This and several other liberal blogs decried the possibility, arguing that the next administration needed to break with the past and be seen to be doing so. And voila. Today Brennan announced that he was withdrawing his name from consideration for any intelligence posts in the next administration because of the opposition he has aroused. He did not want to be a distraction, he said.

Obama's advisers had grown increasingly concerned in recent days over online blogs that accused Brennan of condoning harsh interrogation tactics on terror suspects, including waterboarding, which critics consider torture.

His withdrawal was a concession to a political reality that Democratic activists created by concerted and principled opposition. It was not the result of an epiphany for Brennan or a sudden contrition over the positions he's adopted. Quite the opposite, in fact.

His letter of withdrawal, available here, shows that Brennan continues to deny any responsibility for the illegal policies. He says he "was not involved" in the decisions about the policies; and that his "criticism of these policies within government circles" was the reason he was passed over for promotion by the Bush administration. Those claims cannot easily be tested, of course, since they concern opinions and behavior manifested (if at all) only behind closed doors. Brennan even asserts now that he was (always?) "a strong opponent" of "coercive interrogation tactics" tout court. It's a claim that does not really measure up against his public statements - although Brennan later did renounce one specific technique, waterboarding. In any case, Brennan refuses to acknowledge that he was being criticized in particular for promoting and defending some of those policies after leaving the CIA. His public statements are the one arena in which we can assess his beliefs, and in that arena he looked rather shabby. Brennan can't bring himself in his letter to admit even this much, that he needed to explain his public positions on the CIA's legacy of controversial illegal policies.

Thus it's clear that what led to Brennan's withdrawal was not a sudden attack of conscientiousness. It was, instead, a concession to political reality. Activism creates such political realities.

crossposted at

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Tuesday, November 25, 2008

  Criminal neglect

No doubt by now you've seen the reports that say New Orleans is the city with the highest crime rate in America, with 19,000 reported crimes in 2007 according to FBI statistics. Among large cities, the three with the worst crime rates reportedly were Detroit, Baltimore, and Memphis, in that order.

Proverbial damned lies and statistics. These rankings are calculated based on just 6 categories of crime (murder, rape, robbery, aggravated assault, burglary and auto theft). Hence they neglect most categories of crime and in particular many of the most severe kinds of criminal activity. If these were included, one city would stand head and shoulders above the others in its single-minded devotion to criminal enterprises: Washington, DC.

What sorts of major crimes have been excluded from consideration? For starters, all manner of war crimes – things like invading a sovereign country without justification and then neglecting its internal security, killing or driving into exile millions in the process. That's a criminal enterprise on a vast scale, isn't it? All of it headquartered in Washington.

But that's just the beginning of the list, whose outer limits are unknown and probably unquantifiable. For example, the illegal electronic surveillance of Americans without warrant by the NSA - and who knows how many other federal agencies - very probably affects tens of millions of us. But the White House won't fess up and the FBI and Congress refuse to investigate so we're left to guess how many crimes have been perpetrated in this category. Of course some haters of liberty would not want to press charges anyway, but plenty of others would leap at the opportunity to put the criminals behind bars.

If violating the wiretap laws isn't considered sufficiently felonious in your household to merit much concern, then consider instead the crime of torture. At least 775 prisoners have been locked up in Guantanamo Bay prison during the last few years, every one of them subject to extensive and prolonged tortures. But an untold number of prisoners have been abused in other sites around the world as part of a criminal conspiracy directed from Washington. Torture's pretty big as felonies go, isn't it?

As for the lesser crimes committed by this same gang, they too may be beyond count. Who can really say how many documents they've destroyed or concealed, in the attempt to obstruct justice, just with regard to their torture network? And the tally for subpoenas they've flouted has been limited only by the number that were served on them.

But you know all this. I call it to mind because of the very misleading statistics I began with, which apparently exclude torture and a variety of related white collar crimes. If included, they would qualify Washington as the crime capital of the country - for several years running. By extraordinary coincidence, those statistics are compiled by the very same cabal's self-styled "Justice Department". Not only does it not maintain a tally for torture and such crimes, but neither does it seek to prosecute for them.

Which brings me to a subject much discussed in recent weeks. Any number of news reports have passed along a viewpoint being expressed by anonymous advisers to president-elect Obama. It would be inadvisable to prosecute the really big criminals in Washington, the sources will have us to know, so we should anticipate that they'll be let off the hook for all their crimes - even or especially the most egregious ones.

It's an argument from expediency. Prosecutions of well-connected criminals would prove unpopular seems to be the gist of it. There's also a second argument from expediency being circulated: that Obama won't be able to concentrate on his own agenda if he wastes time prosecuting torturers and such. Cleaning up the crime wave in Washington forms no part of Obama's agenda, these anonymous types would have us believe.

On the face of it, their suggestion is preposterous. Prosecuting federal criminals is part of the presidency, a job Obama has been seeking for two years. If the president refuses to do it, there is nobody else who can take it on. It's not a prerogative, it's a duty. These advisers seem to be implying that Obama can't walk and chew gum at the same time.

Instead, they've been promoting the idea that a body such as the 9/11 commission ought to investigate the criminals thoroughly and then just maybe do nothing to hold them accountable. You remember the 9/11 commission, the one that decided as soon as it convened "not to play the blame game". The anonymous sources have also been promoting specific proposals that Obama create a new set of kangaroo courts to try some of the torture victims and a new legal status, "preventive detention", to keep other victims locked away without trial. The purpose would be to prevent that unpleasant discovery process from exposing awkward facts in open court about crimes that might not be expedient to prosecute.

The kangaroo court idea quickly was taken back off the table by Obama after the suggestion provoked outrage. Yet it's tempting to conclude, as many have, that his advisers have fanned out under instructions to use the media to tamp down public expectations that the worst crimes will be punished as crimes. Because to fail to do that would be such a betrayal of the rule of law that one could hardly be expected to swallow it without the ground being prepared carefully in advance. And on the other hand, to let on that such a betrayal is in the works without any authorization from the president-elect would be, well, presumptuous.

But on the whole, I don't see much sense in the theory that the next president truly intends to let all these criminals off the hook. For one thing the legacy of lawlessness becomes permanent if such crimes are put off limits now. How unseemly would that be? It might lower the crime rate in Washington, true, but only because nobody's allowed to count a whole range of what used to classed as crimes. The pretense that they're really crimes sooner or later will have to be dropped.

And the criminals themselves, what will they get up to next?

But more's the point, you'd have to assume that legal chaos would ensue if laws of the utmost gravity go unenforced. For how could the government legitimately prosecute lesser crimes in the future if greater ones get written right off? It would be criminal neglect on a grand scale.

And if the criminal code starts to crumble, why should anybody assume the rest of the legal code would remain intact? Are contracts any longer enforceable if criminal laws are not?

Hmm...those anonymous advisers don't seem to have mentioned it yet, but could a cancellation of debts be in the works? As long as the next president is hollowing out the law as a favor to big time criminals, there ought to be something in it for all the rest of us. And come to think of it, I'm getting awfully tired of paying that mortgage.

How about it then, an amnesty for everyone and everything? That way we all win.

crossposted at

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Saturday, November 22, 2008

  How many Diebold voting machines failed in Pennsylvania?

What follows is a post written in the week after the election. Because it concerns an anomaly in election results that were then provisional, I delayed publishing it. As it turned out, the final results erased that anomaly – but in a way that suggests my original concerns may have been on target. An update at the end explains what I mean by that.

Are you certain that your vote was recorded and counted properly on November 4? If you live in Pennsylvania your answer may be "not at all".

On primary day in April, I happened to hear a poll worker comment that the Diebold AccuVote TSx machines at our precinct in Lehigh County (PA) aren't very credible. So I asked whether she trusted paperless DRE (Direct Recording Electronic) machines. She didn't. As it turned out neither did any of the other poll workers there - nor the other voters waiting in line. Nobody seems to trust them. That in itself is reason enough to get rid of these damnable black box systems. Without trust, what is left of democracy?

Ultimately there's no way of knowing whether those machines counted votes accurately in the April primary, or whether those votes were tabulated correctly. The very technology makes accountability impossible. As if that's not bad enough, the (ironically named) AccuVote has a history of flawed performance. What's more it can be hacked rather easily.

In fact, I see evidence that on Election Day one or more of these touch-screen machines in a local precinct may have failed to record as many as a few hundred votes in the presidential race.

The problem in question concerns the rural township of Lowhill, PA, where 767 voters (52%) are registered Republicans, 489 are Democrats, and 215 are Independents. Turnout on Election Day was at least 80%. The (still unofficial) vote totals in Lowhill for all the state-wide and local races ranged between 1117 and 1178. Even a bond referendum generated 1023 votes in the town.

However only 950 votes are recorded for president in Lowhill. That's 228 fewer votes than were cast in the (non-competitive) Congressional race. Thus the undervote in the presidential race in this town was extremely high (over 19%). By contrast, in neighboring rural towns with similar Republican majorities the normal pattern prevailed – that is to say, the presidential race received more votes than any of the down-ballot races did. I've not found any other precincts in the region where the presidential race this year generated fewer votes than down-ballot races, so the result in Lowhill is highly anomalous.

It looks like the entire undervote there is to be associated with John McCain. Clearly something's amiss with McCain's vote total, since he got only 15 more votes than Barack Obama in Lowhill (Obama 461, McCain 476). Democratic candidates simply do not come within 15 votes of winning Lowhill. In this century only a single Democratic candidate has lost by fewer than 120 votes in Lowhill Township (Ed Rendell in 2006, who lost to the hapless Lynn Swann by just 34 votes). To judge by the Democratic vote tallies in other races in Lowhill (past and present), and by the results this year in neighboring towns, 461 votes for Obama is about what you'd expect. However McCain's 476 votes in Lowhill is about 250 votes below what I would have anticipated based on these same factors.

Significantly, the estimated 250 vote deficit for McCain in Lowhill is also the entire amount of the undervote in the presidential race. Thus any 'missing' votes in Lowhill would have come from McCain's column.

It's possible that the peculiar vote tally in Lowhill was due to clerical error. Perhaps McCain's 476 votes should instead have been 746? A few days after the election I called the Lehigh County clerk's office to alert them to the anomaly. They refused to comment until official results have been certified. I've heard nothing from them since then.

It's also just barely possible that in this single town, for some unknown reason, vastly fewer Republicans supported McCain than in the area generally. The median income in Lowhill is higher, and it's true that national exit polls show McCain's support fell off by 3-4% as voters' income rose above the $200,000 mark. However that factor isn't remotely sufficient to cause the truly stark discrepancy between the recorded and the projected vote for McCain in this town. And in any case why would so many people cast no vote at all for president?

The Diebold DREs used in Lowhill are error-prone. Elsewhere in Pennsylvania, the same type of machines also malfunctioned so badly that an hour after the polls closed Judge Charles Saylor ordered them to be impounded – at the urging of both Democratic and Republican officials. Wired Magazine's Kim Zetter explains why all 185 of one county's AccuVote machines were impounded.

Touch-screen voting machines used yesterday in Northumberland County, Pennsylvania, have been impounded on a judge's order after voters experienced problems on the machines when trying to vote a straight-party ticket.

County poll workers discovered around 7:30 am Tuesday morning that voters who chose to vote a straight-party ticket could not see their selections on the summary review screen. The summary review screen allows voters to verify that the machine has registered their selections accurately before they cast their ballot.

Northumberland County uses AccuVote paperless touchscreen machines made by Premier Election Solutions (formerly Diebold Election Systems), which are supposed to display the chosen candidate's name on the review screen. But voters who voted a straight-party ticket could see only a message saying they had voted a straight-party ticket.

In short, the AccuVote machines that had been certified ready for use were instead malfunctioning in a consistent pattern that cannot be attributed to voter error. It's unclear so far whether the DREs in Northumberland County tallied any votes incorrectly, or perhaps caused frustrated voters to 'correct' their vote in such a way as to nullify their intent. What matters in the end is that the machines are demonstrably unreliable – and, since they lack a paper trail, any malfunctions are difficult if not impossible to reverse after the fact.

And let's not forget that a study by computer scientists at Princeton has demonstrated that the AccuVote machine is easily hacked.

We analyzed the machine's hardware and software, performed experiments on it, and considered whether real election practices would leave it suitably secure. We found that the machine is vulnerable to a number of extremely serious attacks that undermine the accuracy and credibility of the vote counts it produces.

Computer scientists have generally been skeptical of voting systems of this type, Direct Recording Electronic (DRE), which are essentially general-purpose computers running specialized election software. Experience with computer systems of all kinds shows that it is exceedingly difficult to ensure the reliability and security of complex software or to detect and diagnose problems when they do occur. Yet DREs rely fundamentally on the correct and secure operation of complex software programs. Simply put, many computer scientists doubt that paperless DREs can be made reliable and secure, and they expect that any failures of such systems would likely go undetected.

Not to put too fine a point on it, if you aren't concerned yet about the integrity of elections in the US, then it's about time that you were. Paperless DREs are subject to any number of problems that make their vote tallies suspect. Diebold in particular has worked hard to earn every bit of its public notoriety.

Indeed, in October the elections officials in Ohio learned that the PES (Diebold) vote tabulators used in conjunction with their unreliable DREs are also prone to malfunction. Kim Zetter again:

Several election watch dog groups have sent an advisory to election officials warning them about a problem with Premier Election Solutions' vote tabulating software that could cause the system to lose votes.

Premier (formerly called Diebold Election Systems) disclosed the problem in August after officials in Butler County, Ohio, discovered that 150 votes were dropped from a memory card during the state's March primary. Ten other Ohio counties discovered their system had dropped votes as well when vote totals on the memory card were uploaded to a county server. The problem occurred when officials tried to upload multiple memory cards at once.

All of the votes were recovered, but Ohio officials had to expend considerable time and energy to retrieve them and make sure all were accounted for.

The flaw is in Premier's Global Election Management System (GEMS), which is used in at least 31 states. GEMS software sits on a computer system at a county's election headquarters and is used to tabulate votes cast on both touchscreen voting machines and optical-scan machines. Premier said the flaw was in versions 1.20.2 and earlier of the software, though other versions may be affected as well.

After denying for some time any responsibility for the manifest problems with their vote tabulators, and getting sued in August by the Ohio Secretary of State, Premier finally admitted that it's software doesn't work properly (PDF). As a result, an alert went out in the hopes of containing the problem.

The Brennan Center for Justice at New York University School of Law sent an advisory to election officials Thursday -- along with Common Cause and Verified Voting -- urging them to follow the procedures and to conduct a rigorous post-election manual audit to reconcile vote totals on memory cards with those in the tabulation system.

Well, I hope that elections officials in Pennsylvania are conducting a rigorous audit to catch these malfunctions. Perhaps that will also suffice to correct the suspicious anomaly in Lowhill's presidential tally.

And after they're done trying to catch and correct all the mistakes caused by Premier Election Solutions' malfunctioning machines, I hope they'll have the good sense to ditch the damnable DREs, make a clean break, and find a more reliable technology to count votes - one that voters can reasonably place their trust in. At a minimum, we desperately need to adopt a voting technology that allows officials to audit and recount the vote with confidence. It's not good enough to rely upon DRE voodoo.

Update: This week Lehigh County posted on line its certified results here. In nearly every race in all the local precincts I'd examined earlier, including the races in Lowhill, the final tallies for every candidate were within 5 votes of the preliminary tallies posted immediately after the election.

However the vote tally for John McCain in Lowhill Township rose by 254 votes, from 476 to 730. The new total is approximately where I suspected it should be. Obama's total in Lowhill rose by only 4 votes (461 to 465).

So what happened? I'd hoped it was just a question of clerical error in transcribing or entering the completed vote tally. But given the McCain numbers before and afterwards, that doesn't appear a likely explanation. A problem with one or more of the 5 AccuVote machines used in Lowhill seems much the more likely explanation for the huge initial undervote.

If so, it may seem reassuring that elections officials were able to catch and correct a loss of that many votes. But on the other hand, when I discovered the anomaly I did press a County election official to investigate it carefully. So it's possible that their normal post-election certification process would not otherwise have caught a problem of this type.

In any case, the correction of the undervote does not reassure me that the technology in use is credible. Quite the opposite, it strengthens my concerns about Diebold's AccuVote machines.

If I'm able next week to get the Lehigh County clerk to explain how they discovered the error and what caused it, I'll post the information at this site.

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  Yet another White House domestic propaganda scandal

Over and over the Bush administration has been caught engaging in illegal domestic propaganda. To generate public support for the invasion of Iraq, they paid retired military officers to repeat administration talking points as pundits on TV. They paid newspaper columnists to parrot administration policy positions. They distributed free fake "news reports" to local TV and radio stations. All of it covert domestic propaganda, all of it patently illegal however much the Bush administration's Office of Legal Counsel doth protest.

Now we learn of another element in this propaganda machine. A former program manager at a right-wing talk radio station in Milwaukee, Dan Shelley, reveals that the Bush White House sent out propaganda daily to talk-radio contacts. That's entirely and sadly predictable, as well as illegal.

Here Shelley is speaking of two of the talk show hosts, Charlie Sykes and Jeff Wagner, whose programs he managed at WTMJ until he left the station in 2006. His larger point is that these conservative radio hosts rarely criticize Bush or the Republicans on air - and then only strategically (in order to maintain the appearance of independent thinking) "without appreciably harming the president or party".

Yet while talk show audiences aren’t being led like lemmings to a certain conclusion, they can be carefully prodded into agreement with the Republican views of the day.

Conservative talk show hosts would receive daily talking points e-mails from the Bush White House, the Republican National Committee and, during election years, GOP campaign operations. They’re not called talking points, but that’s what they are. I know, because I received them, too. During my time at WTMJ, Charlie would generally mine the e-mails, then couch the daily message in his own words. Midday talker Jeff Wagner would be more likely to rely on them verbatim. But neither used them in their entirety, or every single day.

The production and dissemination of these talking points for conservative talk radio, centralized for long periods at the White House, almost certainly used taxpayer funds and government property. Hence Bush's propaganda central would at a minimum be in violation of the Congressional prohibition against using appropriated funds for unauthorized domestic "publicity and propaganda". Since 1951, the prohibition has been attached annually as a rider to the Consolidated Appropriations Act.

"No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress."

Can there be any doubt that this is just another aspect of a broad effort by the Bush administration to use the resources of government to propagandize the American public? Even if the rider leaves some room for interpretation, the general boundaries of prohibited behavior are clear.

As explained in a March 21, 2005 report by the Congressional Research Service, "publicity or propaganda" is defined by the U.S. Government Accountability Office (GAO) to mean either (1) self-aggrandizement by public officials, (2) purely partisan activity, or (3) "covert propaganda." By covert propaganda, GAO means information which originates from the government but is unattributed and made to appear as though it came from a third party.

The dissemination of Bush administration talking points secretly to Republican talk show hosts, in the expectation that the hosts would repeat those arguments as if they were their own, meets all three GAO criteria for prohibited "publicity or propaganda". They promoted George Bush and his political views. They were an integral part of the Republican partisan machinery. And they did these things covertly rather than openly.

It is the covertness of the talking-points operation that shows most conclusively that the White House knew it was engaged in domestic propaganda. Indeed in a 2005 memo the Office of Legal Counsel noted that in 1988 it had determined that "covert attempts to mold opinion through the undisclosed use of third parties" violated the prohibition against using appropriated funds for "propaganda".

The 1988 OLC memo arose in connection to the controversy over the Reagan administration's backing of the Contras. The memo described what kind of information the government was permitted to disseminate:

[It] "can make available to private groups, upon request, printed materials that explain and justify the Administration's position on Contra aid. These materials must be items that were created in the normal course of business and not specifically produced for use by these private groups."

The OLC memo went on:

It would be unwise, however, for the Administration to solicit the media to print articles by or interviews with anyone not serving in the government. And, of course, the Administration cannot assist in the preparation of any articles or statements by private sector supporters, other than through the provision of informational materials as described in the preceding paragraph.

In supplying talking points written not in the course of normal business, but specifically to influence statements made by private-sector supporters in the media, the Bush administration has done exactly what the OLC in 1988 determined that the president may not legally do. It couldn't be clearer that the White House has engaged in illegal domestic propaganda.

For that matter, I don't believe it was only the White House that engaged in sending talking points to right-wing talk radio hosts during the last 8 years. Long time readers of Inconvenient News may recall that in July 2006 I demonstrated that Donald Rumsfeld's Pentagon was sending out talking points to conservative radio talk show hosts. Specifically, I thought I could prove with a high degree of probability that the DoD was sending lists of questions/issues that the hosts should ask Rumsfeld about in upcoming on-air interviews. These included, in particular, the information that Rumsfeld wanted to be asked about a thoroughly cynical, feel-good website he'd created,

The Pentagon operation was a part of the Bush administration's domestic propaganda network, I was sure of it. It's no surprise, then, to find a radio talk show manager confirming that Republican hosts regularly received such guidance direct from Washington about the issues the Republican officials wanted discussed on air.

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Friday, November 21, 2008

  Michael Mukasey is unhappy

Attorney General Michael Mukasey is unhappy about losing the first two Guantanamo habeas corpus reviews. Yesterday's defeat was especially galling because the judge responsible for saying that the government's evidence against the prisoners was garbage, Richard Leon, is himself a reliable Republican partisan. In fact Leon's on record as being opposed to giving habeas review to Gitmo prisoners at all. Things must look pretty bleak for the Bush administration's Cuban dungeon policy when they're losing cases even before staunch national-security ideologues.

So today in the Republican propaganda flagship, the Wall Street Journal, Mukasey issued a call to action. Congress, he believes, needs to act quickly to pull Bush's ashes out of the fire. Otherwise courts will continue to interpret literally the Supreme Court's ruling (Boumediene v Bush) that Gitmo prisoners may appeal for their release – by actually releasing those prisoners!

Of course Mukasey's opinion is essentially worthless. He's the man who still can't determine whether waterboarding constitutes torture, and doesn't care to find out. But what is he up to in this op-ed?

Image Hosted by ImageShack.usWell, the illustration that accompanies his piece speaks volumes about the intent. It portrays a robed federal judge gaveling flagrantly unreconstructed terrorists out through the gates of Guantanamo. In other words, the existence of habeas reviews (despite SCOTUS) are per se a national security breach that needs to be closed.

Mukasey can't quite bring himself to ask that Congress overrule SCOTUS, however, so he argues instead that it's the (inevitable) lack of uniformity in court findings that endangers the country. You'd have thought that the possibility of judicial differences of interpretation was an argument against the courts hearing any kinds of cases whatever. But no, apparently it's just a concern when the cases concern the rights of prisoners held at Gitmo for years without trial. Here's Mukasey's lament:

But as different judges reach different answers -- and as some of those answers, I fear, create risks for our national security -- there remains a pressing need for Congress, working with the administration, to establish one set of rules that is both consistent with the Supreme Court's decision and recognizes the important national security and intelligence interests of the United States.

The questions with which courts have grappled are of critical importance. They include foundational issues: How should we define an "enemy combatant" during a conflict with a nontraditional enemy like al Qaeda? They include trial issues: What evidence may the government rely on when making that determination? And they include practical issues: What does it mean to order a detainee "released"? Can a court order release into the U.S. if a detainee cannot be transferred to his home country, either because it won't accept him or because we fear he might be mistreated upon his return?

The answer to the last question already was established by Judge Ricardo Urbina's ruling on Uighur prisoners: yes. As for what "release" means, that's just another way of saying Congress should prohibit the release of prisoners into the US. But Urbina was ruling on prisoners that the US admitted were not enemy combatants, and he ordered their release into the US because he and the administration could identify no other place they could be released to. Congress cannot legislate to prevent a judge from enforcing a prisoner's right to release just because some people wouldn't care to see it happen. So that part of Mukasey's appeal to Congress is asinine.

Furthermore, the Bush administration already defined "enemy combatant". Their definition was "anybody we say is an enemy combatant". It's the fact that their definition turned out to be unsatisfactory that now requires judges to determine whether these prisoners really are "enemy combatants". Is Mukasey really suggesting that Congress can step in to define away the 'problem' of the courts investigating whether the government may continue to hold people as "enemy combatants"? Unless it's a self-policing definition, one that leaves no room for interpretation, then it will still come down to a judge determining whether the government has evidence to show a prisoner is an enemy and a combatant. Again, it's asinine for Mukasey to suggest that the problem is Congress has never donned its lexicographical cap.

Ah, but there's still this question buried in Mukasey's plaint:

What evidence may the government rely on when making that determination?

That's what Mukasey is really aiming at in this op-ed. Forget the other distractions. What Mukasey hopes is that Congress can be persuaded to rewrite the rules of evidence in these cases. In other words, he wants to preserve some of the kangaroo-court quality that was built by the Bush administration into the tribunals and commissions at Guantanamo. The rest of Mukasey's op-ed repeatedly returns to the question of how to bolster the administration's power with regard to evidence.

But even with his real goal out in the open, Mukasey continues to camouflage it. In particular, he complains that federal courts aren't able to handle the government's evidence. Thus he'd have us believe it's not the ridiculous lack of evidence that keeps causing the government to lose these habeas cases. No, according to Mukasey it's just the inability of the courts to know what the government knows. So presumably the right of these defendants to know the evidence against them needs to quashed by Congress.

More importantly, in many cases, the government has faced great difficulty in collecting and presenting evidence in a manner that protects the vital sources and methods upon which our national security depends. Indeed, lacking clear protections for classified information, we have found at times that we are simply unable to provide our best evidence to the court.

All this ignores the plain fact that federal courts have long been permitted to adopt special measures to review secret evidence. Mukasey's evidentiary crisis is a non-issue...another distraction.

Let's look at his conclusions, the three things he calls on Congress to do:

1. Prevent release of prisoners into US. As noted, a non-issue because it's infeasible.

2. Devise new rules for using classified evidence in court. As noted, a non-issue.

Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.

Federal courts have never before treated habeas corpus as requiring full-dress trials, even in ordinary criminal cases. It would be unwise to do so here, given the grave national security concerns at issue.

Devising a legal framework to review our military's detention decisions is an unprecedented challenge. It should not be left to the courts alone.

Bingo. Mukasey's really calling on Congress to create yet another kangaroo court system that will look a lot like federal court, but not actually be permitted to act independently or "interfere with the mission of our armed forces" or give the prisoners, you know, real trials.

Mukasey must figure that if Congress was daft enough to make him Attorney General, then it's capable of falling for any line of nonsense he dishes out.

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  Federal judge rejects enemy combatant charges against Guantanamo prisoners

Today the Bush administration suffered its fourth major defeat since June in litigation over detentions at Guantanamo. This ruling by US District Judge Richard Leon, a Bush appointee, is the most devastating yet. He'd been expected to favor the government, not least because in 2005 Leon had ruled that the detainees have no habeas rights. And these are not low-profile prisoners. In his 2002 State of the Union address, George Bush had accused them of planning to bomb the US embassy building in Sarajevo. (As with other such garish accusations, the Bush administration subsequently and very quietly changed its allegations to something considerably more mundane – planning to fight in Afghanistan.)

Yet Leon rejected the administration's argument that five Algerian nationals formerly resident in Bosnia are enemy combatants and ordered their release "forthwith".

The text of his ruling is here (PDF).

It's the first time that a federal court has investigated the merits of a Bush administration claim that it possesses sufficient evidence to continue detaining a prisoner as an enemy combatant. Thus there's great significance in the fact that the administration's evidence has finally been put to the test and, right off the bat, found to be lacking. In fact, the evidence upon which these prisoners were held for the last 7 years, and treated horrifically, was ridiculously weak. Just like the 'evidence' against so many of the remaining prisoners at Gitmo, it depends upon hearsay or unverified/unverifiable allegations of a vague nature from unnamed or shadowy figures.

“The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents many of the detainees.

Leon found the government's case to be extremely flimsy, based as it was upon one undocumented allegation by a single unnamed source.

Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces. That secret document, the judge said, was too “thin a reed” on which to base detention.

Their detention has been so outrageously without merit that, very unusually, the judge urged the Justice Department lawyers not to appeal his ruling. The prisoners had waited seven years "for our legal system to give them an answer", Leon argued, and it wouldn't be useful to prolong the injustice with a pointless appeal. He found that a sixth prisoner was being held on the basis of sufficient evidence, and Leon suggested that the DoJ had plenty of opportunity to contest the broader legal issues in the appeal of his continued detention without delaying the release of the other five prisoners any longer.

In June the Supreme Court handed down a landmark ruling about these prisoners in Boumediene v. Bush, which upheld their right to challenge the basis for their detention in federal court. It was an unusually strong ruling against the Bush administration's policies of open-ended detention. What was most remarkable was the Supremes' intervention into the appellate process in order to expedite the habeas review it was ordering for the Guantanamo prisoners. The concurrence written by Justice Souter in particular argued that the prisoners had been held for far too long without habeas review to allow the government to continue to drag things out through the appeals court. The government's allegations against Boumediene and the other prisoners in that case were on the face of pretty ridiculous on their face, though no court had yet examined them. Hence Judge Leon's ruling today that the government has no credible basis for imprisoning these men was the predictable outcome of the SCOTUS ruling.

Let's not forget that these prisoners had already been arrested, investigated, and ordered freed by the Bosnian Supreme Court before the US, ignoring that finding, demanded custody of the Algerians. Like a number of other prisoners held at Tuzla air base in Bosnia after the September 11 attacks, they were tortured while in US custody. At a minimum, they were treated to the sensory deprivation that became a standard part of the "exploitation" of prisoners at Guantanamo, Bagram, and elsewhere. As the European Parliament report (PDF) by Dick Marty stated:

While still on Bosnian soil, the six men were kept shackled in painful positions. They were forced to wear goggles to prevent them from seeing, headphone-like covers over their ears to make it impossible for them to hear, and face masks making it impossible to be understood and very difficult to breathe. They were subsequently transported to the U.S. Naval Base at Guantanamo Bay.

It should be stressed that Judge Leon's ruling frees the men and urges the US to arrange for their return to Bosnia, but does nothing to redress the torture inflicted on them during seven years of captivity.

A similar pair of rulings in June and October regarding the Uighur prisoners at Gitmo came to a similar result as the rulings on the Bosnians. In June the DC Court of Appeals rejected sarcastically the Bush administration's claims about the Uighur prisoners, mocking the government's reliance upon hearsay and unvetted evidence at Combatant Status Review Tribunals, as well as its claims of secrecy in withholding evidence. The administration has to actually prove in court that the evidence supports the allegations.

Well, they thought about the difficulty of proving the nonsensical charges they were leveling against the Uighurs and decided to drop them instead. So in October, at a habeas review for the Uighurs in DC District Court, judge Ricardo Urbina ordered their immediate release. The government managed to get a stay of that order, but that could be reversed before the month is out.

Four cases in six months, each of them devastating to the Bush administration's pretense that it holds prisoners at Guantanamo based on overwhelming evidence of terrorist activities.

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Thursday, November 20, 2008

  The health insurance reform carnival

Health insurers have announced that they'll support a new requirement that they must accept all applicants, including those who are ill or disabled, as long as everybody is required to purchase health insurance. In other words, while acknowledging the intense public pressure for real health care reform, they're advancing a scheme to insure universal employment for health insurers.

The insurers do not however support a flat rate for both healthy and sick applicants - without which their apparent concession really is just another ploy coming out of the industry's bottomless bag of tricks.

What they're aiming for is a health insurance 'reform' bill that will allow them to continue to turn away high-risk applicants (in the future by the simple device of making such premiums unaffordable), while milking the healthier population by means of a new line of legally mandated insurance. The latter probably would include a substantial amount of junk insurance designed to give the appearance of health coverage but carrying minimal benefits. Insurers already do a tidy business in selling junk health insurance, but with legal mandates their profits in this sector could soar.

So this cynical announcement is emblematic of what is most wrong with our current health care system enterprise.

Let's face it, we don't have anything like a system in the US for delivering health care. We have a crazy patchwork of overlapping devices, none of which properly functions in itself or on its own. Even worse, at the core of this enterprise is a for-profit insurance industry that by design works at odds with the goal of providing health care. It exists to extract the maximum of money in exchange for the minimum of health care. The problem is not that the machine needs to be fine-tuned. The real problem is that it's a Rube Goldberg contraption.

This mess has grown and thrived because, regrettably, in the US we don't like to call a spade a spade. Or rather, the more severe a problem the more the traditional media and the DC political establishment refuse to acknowledge it. The evidence of elite denial is all around us.

We've just finished a campaign in which the Republicans nominated an absurdly and frighteningly ignorant vice-presidential candidate. Many voters figured that out pretty darn quickly. But how often did you see the political or media elite acknowledge publicly that Sarah Palin was a ridiculous nominee before voters had rejected her? After Election Day, sure, some put their fingers to the wind and decided it was safe to state the obvious. But until then, the important thing was to pretend that the selection of a patently unqualified candidate presented no problem of any significance. She was packaged as a serious candidate, therefore the only thing to do was pretend she be taken seriously.

The same has occurred with every major problem the country has faced in recent years. The invasion of Iraq? There was transparently no need for it once weapons inspectors were admitted into Iraq. Anyway the evidence presented by the Bush administration simply didn't stack up. But how many establishment types dared to say the obvious? Much better just to get along by going along with the fantasy of seriousness being peddled.

The mortgage mess? For more than a dozen years it was clear to anybody acquainted with the housing market that house prices in many areas were inflating at ridiculous and unsustainable rates, and that lenders had thrown caution to the winds in pushing money at virtually anybody who inquired about buying the overvalued property, no matter their credit-worthiness. It was also clear that ARMs and other bizarre mortgage plans lenders pushed, along with a flood of unnecessary home equity loans, were going to create high default rates. When we first started to look at buying a house a decade ago, I recoiled in horror at the mortgage practices I saw. How many establishment types addressed this looming catastrophe until the house of cards actually began folding?

The meltdown of Wall Street financial institutions? That has been in the works since the 1980s when Depression-era regulations were swept aside, replaced by the 1920s ethos of anything-goes. Anybody willing to look candidly at what modern financial securities actually were predicated on could see that Wall Street's apparent success was built on nothing more than a pyramid scheme. Even insiders acknowledge shock at the willingness of just about everybody to pretend that the inherent flaws didn't so much as exist.

How often does Congress address well-known problems forthrightly, before they become urgent? What do you expect more from the traditional media, candor or timidity? A cynic might conclude that showing you're perfectly able to ignore looming disaster is a prerequisite to acquiring a position of prominence in politics or the traditional media in the US.

In any case, we can expect that nobody of influence is ever going to want to admit that the American health care 'system' is a broken and ridiculous contraption, or that adding any number of further levers, tensioning devices, mirrors, and spring-loaded squirrel ramps won't ever fix what is wrong with it. That would be revolutionary admission, after all, requiring some discussion of how a genuine health care system ought to be designed.

The establishment in the US is unwilling to concede that we have a health care carnival rather than a free market. There's no way that they're prepared to acknowledge that a health care 'system' dependent upon private insurance can never work properly because it's not designed to work. There can be no discussion of the plain fact that it's designed to extract the maximum of money in exchange for the minimum of health care.

It's a carnival, and the health insurance industry spokesman is the carnival barker. His job is to maintain the illusion that what we rubes need and want is an ideal health insurance package, and that he'll help us find it somewhere along that arcade if we just take his advice.

What we really need of course isn't in that arcade. It's universal health care, without the middlemen, without the con-artists.

But what it looks like we'll get from Congress, instead, is mandated con-artistry at semi-regulated rates of flim-flammery. Universal health insurance is not reform. It's an inoculation against actual reform. If that's what the 'reform' movement interjects this time around, it could be yet another 60 years before Americans finally get the universal health care that the rest of the developed world has long enjoyed.

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Sunday, November 16, 2008

  Sorting out Bush's torture techniques

To find a vocal critic of the Bush administration's torture regime stumbling around while discussing its components is a little disconcerting. It confirms what I've long suspected - that even as bits of the torture program have been exposed little by little, the Bush administration managed never the less to sow confusion over those revelations. People really need to sort this out before the Obama administration comes to grip with its predecessor's vile record.

Briefly, the background is this: James Gordon Meek reported that Democrats like the "anti-torture views" of John Brennan, Barack Obama's chief adviser on intelligence matters. Brennan was the deputy to former CIA director George Tenet at the time that Bush's torture regime was implemented. It does seem strange to describe Brennan as "anti-torture" just because he's renounced waterboarding in the last few years and allowed that "the dark side has its limits". Glenn Greenwald documents how Brennan has advocated or made excuses for extraordinary rendition specifically and Bush's detention and interrogation policies generally.

Meek and Greenwald then got into a back and forth over Brennan's anti-torture credentials. Meek argues faux-naively that extraordinary rendition per se can be dissociated from the torture that awaits prisoners handed over to countries that routinely practice torture. Meek says nothing about the spiderweb of America's own secret prisons where Bush administration prisoners have been flown to be tortured.

In any case, Greenwald responded to Meek's tendentious argument with a certain degree of confusion about what is what in Bush's torture regime:

The most incriminating aspect of Brennan's views, in my opinion, is his support for the Bush administration's "enhanced interrogation techniques." Since he says he opposes waterboarding and isn't on record opposing anything else, one can reasonably assume that must include some combination of things like stress positions, forced nudity, hypothermia, sleep deprivation, exploitation of paranoias, extreme isolation, hanging by the wrists, threats, and other previously forbidden techniques authorized by the Bush administration.

This needs sorting out. Several of the things Greenwald lists are not, apparently, part of what the Bush administration terms "enhanced interrogation techniques".

To judge by published reports, these consisted of a discrete and detailed list of coercive techniques, including waterboarding, to be used only with high-level authorization against specific prisoners...those who are described typically as "hardened" or "high-value" al Qaeda suspects. The CIA has claimed that "enhanced interrogation techniques" have been used against only about 30 prisoners. The list of "enhanced techniques" originally was approved at a White House meeting (in 2002, it seems) of Dick Cheney, Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft. During the next year or more, requests for authorization to use "enhanced" techniques against specific prisoners were, reportedly, discussed at several further meetings of the National Security Council Principals Committee.

But "enhanced interrogation techniques" are far from the only forms of abuse meted out to prisoners under Bush. They shouldn't be confused with the underlying programs of abusive treatment that were inflicted on many or all detainees abroad. For the latter, the Bush administration has used the term "exploitation". It was partly to clarify the distinction between the much-discussed "enhanced interrogation techniques" and the less understood but more widespread "exploitation" that I wrote this Abbreviated History of Exploitation Processes.

Abuse of prisoners in Bosnia and Afghanistan began shortly after the Sept. 11 attacks. By December 2001 at the latest, the Bush administration began to try to systematize that abuse by reverse-engineering techniques used in the military's SERE training schools. These existed to train US military personnel in techniques they'd need if captured by an authoritarian regime. The training included systematic psychological abuse of the kind practiced on American POWs during the Korean War. It was these "exploitative" practices in particular that the Bush administration decided in 2001 to adapt and apply against terrorism suspects. They became the baseline standard of abuse meted out to nearly all detainees held in secret prisons or transferred to Guantanamo. "Exploitation" focuses principally on prolonged isolation, sensory deprivation/overload, disorientation, stress, extremes of noise, light, and heat, forced nakedness, sexual humiliation, and generally creating psychological confusion and a state of infantile dependency. The result frequently is extreme mental degradation. Prisoners often become suicidal.

A few of these methods were later incorporated into the "enhanced interrogation techniques" so there was some overlap with baseline "exploitation". But it's absolutely vital to keep them distinct. Because the Bush administration and its apologists have tried to minimize the extent of their crimes by focusing all attention on the victims of "enhanced" techniques – who are few in number and can be depicted more easily as dangerous terrorists.

"Exploitation" is used to establish mental conditions favorable to manipulative interrogations. Many of the prisoners "exploited" were never in fact interrogated, or only in a very cursory way. Even after the US military and CIA lost interest in prisoners or concluded that they had no connection to terrorism, the prisoners often continued to be subject to "exploitation" for months or years on end. More to the point, "exploitation" has continued to be the standard for mistreating prisoners at Guantanamo down to this day. It's not the exception, it's the rule.

And since John Brennan has sought to justify extraordinary rendition flights, during which prisoners are "exploited" most repulsively, then it's very difficult to see how he has done anything other than align himself with the Bush administration's policy of torture.

crossposted at

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Saturday, November 15, 2008

  The 'debate' about Gitmo

Either Barack Obama will show strength by adopting the core of Bush's policy regarding the prisoners held at Guantanamo Bay and continue to detain them without trial, or the next president will give in to political pressure from crazy civil libertarians, release known terrorists and endanger the US.

That's the message of much of the commentary on Gitmo churned out in the traditional media since the election, including this NYT report by William Glaberson. It has relied not so much on the staunchest critics of Bush's detention and torture policies – no surprise that - but instead on Washington establishment types with axes to grind or interests to protect. Their notion is that, while Obama remains most malleable, he needs to be gulled into thinking that the central issues concern political leadership and the need to protect America from dangerous terrorists.

They don't. The central issue is whether to restore the rule of law. Much to their regret, that's not a very complicated issue.

As a result, the 'serious' people (who generally did nothing under Bush to stop his illegal policies) are straining to find ways to complicate the question of what to do - now that Bush won't any longer be an impediment to change. The most intractable complication of any change in essential policy, we're told, is that restoring due process means - horribile dictu - that some prisoners might go free.

What if some detainees are acquitted or cannot be prosecuted at all?

In most constitutional states, that's considered a feature of due process rather than a bug: People whom the government cannot charge and convict of crimes should not be held in prison.

Apologists for Bush's Gitmo policies are worried principally about three things: (i) That the government has little evidence to charge most of the prisoners with crimes, and much of that is laughably weak or acquired by illegal means such as torture. (ii) The government's manipulation of evidence, of charges, and of the kangaroo courts it created would be exposed in real court proceedings. (iii) All the prisoners have been tortured through a system of "exploitation" crafted by the Bush administration.

Under those circumstances, few if any prisoners could be convicted of crimes. None could be charged without exposing government wrongdoing to public scrutiny in the US. In the civilized world, both those things would be welcomed: the release of prisoners long detained without adequate evidence, and the exposure of government crimes.

But Glaberson's cohort of experts is urging Obama to circumvent the imaginary 'problem' of due process by creating a new system of "preventive detention".

Benjamin Wittes, a fellow at the Brookings Institution, argued in a book published in June that Americans needed to cross a “psychological Rubicon” and accept the idea that preventive detention was a necessary tool for fighting terrorism.

“I’m afraid of people getting released in the name of human rights and doing terrible things,” Mr. Wittes said in an interview.

That is to say, because of Mr. Wittes' fearfulness and his disdain for human (i.e. legal) rights, Obama is supposed to restore the rule of law by creating a parallel system of injustice to cover the people the president (or Mr. Wittes) doesn't wish to put into the justice system (or prisoner of war camps).

“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.

Let me demonstrate that Mr. Cole is wrong: There is no circumstance in which a democratic society can preventively detain someone. I just said what he claimed could not be said.

Proponents of a president's 'right' (or 'duty' as some would have it) to incarcerate 'dangerous' people without trial 'preventively' point to our willingness to lock lunatics away in insane asylums. Just as in the Soviet Union, I guess, criminal charges are supposed to be likened to mental disorders. By this confusion of criminal charges with medical diagnoses, the presumption of innocence would no longer apply. That sort of argument might appeal to fools and Brookings fellows, but I won't waste further time on it.

The other main reason that Glaberson's cohorts favor a new law on 'preventive detention' is that they assume it will never be invoked against people like themselves. To the smart set, the presumption that presidents with monarchical power would lock up only 'truly dangerous people' makes the long-term damage to the very foundations of our legal system seem trivial. Indeed for them there's a considerable benefit if Obama cooperates in drawing a veil over the past by not exposing it to judicial discovery: the unpleasant business of prosecuting the worst crimes of the Bush administration can be pushed aside indefinitely.

It's generally an unspoken rule of the Washington establishment that very important people do not have to answer for their abuse of power. In particular, according to this viewpoint, each successive administration is supposed to give its predecessor a pass for any and all crimes it committed. That's considered the height of bi-partisanship. Prosecuting important criminals, by contrast, "could be perceived as vindictive". "It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," says former federal prosecutor Robert Litt – whose own law firm's clients specifically stand not to benefit by spending time in that fashion.

You see, for the Washington elite the benefits of upholding our legal tradition hinge upon whether or not the legal system is brought to bear upon oneself and one's friends and clients.

Interwoven into this shameless assault on accountability and the rule of law are several preposterous (and therefore unstated) assumptions. In particular we're supposed to accept that certain prisoners are indescribably dangerous...more dangerous than the attack on our legal tradition...and that the Bush administration has lots of reliable information that "someone is a threat" though it can't be proved in court. An essential corollary is the assumption that these somebodies are critical operatives in the machinery of terrorism. Their release, we're to suppose, would lead inevitably to further acts of terror, whereas their continued detention prevents terrorism.

Now, I don't accept the specious view that Common Law stops applying whenever an allegation of terrorism is made. Neither should anybody. It's authoritarianism presented in legal raiment, very much in the tradition of the infamous Sedition Act of 90 years ago.

The imperative of Panic does not trump all. But even if I did accept that cowardly notion, there are many good reasons for rejecting the assumption that prisoners at Gitmo are dangerous in ways that no other actual or potential criminal suspects can ever be. Because unless you accept that the rules, laws, or precedents set in this instance can never be applied to anybody other than the terrorism suspects already held at Gitmo or in George Bush's other secret prisons, then you're stuck with an extra-legal system of imprisonment ruled over by the president. Far from solving any problems, you've just created (or institutionalized) a big one.

In any event, a single reason for rejecting that assumption is sufficiently devastating that there's little point in dwelling upon any others. And that is this: The Bush administration has shown again and again that it does not truly believe the inflated allegations it directs against Gitmo prisoners.

For example, obscured in the 'debate' thus far concerning what to do about Guantanamo is the Seton Hall study delivered in August to the Senate Judiciary Committee. That's a huge omission. This meticulous study (PDF) documents how many former prisoners have been released to their home countries, and how little correlation there has been between the rate and speed of their release, on the one hand, and the gravity of the Bush administration's allegations against them on the other.

In his written testimony to the Committee, Professor Mark P. Denbeaux, director of Seton Hall Law’s Center for Policy and Research stated, “…the Center sought to determine how evidence gathered against any given detainee influenced the decision whether to release him. Center researchers expected to find that the detainees who presented the greatest threat would have been released last, or would still be held at Guantánamo.

“Center analysis shows that was not the case. The only significant correlation to one’s being released, the date of his release, and status upon release, is the nationality of the detainee. Those from Afghanistan, Pakistan, or Saudi Arabia were more likely to be released, and more quickly.”

In other words, the allegations stop mattering once the Bush administration decides it wants to stop detaining a given prisoner. That makes perfect sense, of course, under the circumstances. Everybody involved knew that many of these prisoners had been purchased in the first place under a program so bizarre that the sales prices had to be euphemized as so-called "bounties". The allegations applied to the prisoners, once purchased, came straight off a menu of hyperbolic and simplistic tropes - as an earlier Seton Hall study (PDF) had shown conclusively.

Thus before the advocates for creating a new system of "preventive detention" ever get a hearing, they ought to be required to explain why we should give credence reflexively to allegations by a Bush administration that has a credibility gap. I really don't think they have an answer to that.

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