Friday, April 25

The Toughness Question

Much of DKos and other sites have gone full-on Obama as the level of rancor has reached a fever pitch. With the strike of pro-Clinton kossacks we really aren't hearing much from the other side of the argument and that just might be something we need to hear, and Obama needs to hear.

There actually are some reasons besides sexism and racism that people have been bitterly clinging to their support of Hillary Clinton, and I think it's simply the toughness question.

Does Barack Obama have what it takes to keep fighting and fighting and fighting...?

It doesn't really matter to Hillary supporters that she has continued to shift goal-posts, gone back on previous pledges, uses her fuzzy-math to claim the lead, has helped feed the fake outrage storm over his so-called elitist anti-american-secret-muslim leanings, and has fed the fires of White Wright-Panic and Affirmative Action resentment.

And there's only one reason why.

None of the under-handed dirty tricks and double-talk matters, because Hillary is showing us all something that we haven't seen from Nancy (Impeachment-is-off-the-table) Pelosi and Harry (We-just-can't-make-the-Republicans-Filibuster-the-War-Budget-Again!) Reid.

One word.


I've been a long-time Bill Clinton supporter and still feel he may have been probably the best President of the 20 Century after FDR. I think he did a massively important thing when he stood up to the Republican Congress to prevent them from gutting our budget with tax cuts, and twice shutdown the government.

They thought he would cave - like a typical Democrat - but he didn't.

Whether we Obama supporters like it or not, during this election Hillary Clinton has proven to be the Freaking Energizer Bunny of Politics.

In a way, seeing this side of any democrat is refreshing.

This carefully constructed image of invulnerability - laughing hysterically whenever she's asked a tough question, rather than grimacing and barking out a be-grudging answer or ducking the issue - is working for her precisely because it feeds into a deep seated need for Democrats to feel that someone is willing to be a full-on pit fighter for them.

We've had too many promises broken.

We've seen too many would be champions of the rule of law, such as John Conyers, eventually prove to be ineffective and deflatable. Henry Waxman and Pat Leahy had promised to dog the crimes of the Bush Administration to the ends of the earth, yet one memo from Fred Fielding claiming executive priviledge and their various investigations have crashed into a solid brick wall.

Not zesty.

We won the Congressional majority, but we still haven't stopped the war - or defunded it, in fact we have more soldiers in harms way today than we did when Pelosi and Reid were sworn in.

But Hillary? She keeps Going and Going and Going...

But she's not going to win. She simply doesn't have the numbers and she keeps bleeding supers.

And even if she does win in some magically way, what exactly are we getting?

Yes, it's clear we need Democrats who are willing to take it to the mat and then some, but the other question that needs to be asked and answered is - how much of our integrity, values and common-sense our we willing to give up in the process?

Winning isn't everything if in the process of winning you have to give up what it is your actually fighting for such as fairness, justice, integrity and truth. Do Democrats have to start operating "on the dark side" (as Dick Cheney has put it), and use any available excuse simply to get what they want?

Isn't that kind of "ends justify the means" thinking that has led the Bush Administration completely off the moral precipice with their ridiculous and endless justifications for Torture, Domestic Spying and Unprovoked War?

Here's another point that both Obamans and Clintonistas need to consider. It may be true that Obama has far less Washington experience than Clinton, but we need to consider what she's done with that experience and wonder just when have we ever seen this endless fighting spirit of Clinton's before?

As posted on Democratic Underground: When has Hillary Clinton really fought for anything except herself?

Where was her "fight" during the Senate confirmation of John Ashcroft?

Where was her "fight" during the Senate confirmation of Alberto Gonzales?

Where was her "fight" during the failed Senate confirmation of John Bolton?

Where was her "fight" when she voted FOR cloture on the nomination of corrupt corporatist Priscilla Owen, clearing the way for her confirmation to the Fifth Circuit Court of Appeals?

Where was her "fight" when she voted FOR cloture on the nomination of unqualified fascist Janice Rogers Brown, clearing the way for her confirmation to the DC Court of Appeals?

Where was her "fight" when she voted FOR cloture on the nomination of religious zealot and homophobe William H. Pryor, clearing the way for his confirmation to the Eleventh Circuit Court of Appeals?

Where was her "fight" when she voted FOR cloture on the nomination of John Roberts, clearing the way for his confirmation as Chief Justice of the United States Supreme Court?

Where was her "fight" during the Senate confirmation of Samuel Alito?

Where was her "fight" when she skipped the Senate debate and confirmation vote on Michael Mukasey?

Where was her "fight" against the Military Commissions Act?

Where was her "fight" during this summer's vote on the Iraq War Supplemental?

Where was her "fight" during the vote to extend FISA?

Where was her "fight" during the Walter Reid scandal?

Where was her "fight" during the debate on Telecom Immunity?

Where was her "fight" when she SKIPPED the Senate vote to strip TelCo immunity from the FISA bill?

Where was her "fight" on the possible impeachment of Dick Cheney?

Where was her "fight" on the possible impeachment of George Bush?

Where was her "fight" against the myriad scandals surrounding the current administration?

Where was her "fight" when she campaigned for Joe Lieberman against Ned Lamont?

Where was her "fight" when she proposed legislation to ban flag burning?

Where was her "fight" when she voted FOR the 2001 Bankruptcy Bill?

Where was her "fight" when she voted FOR the USAPATRIOT act?

Where was her "fight" when she voted FOR the renewal USAPATRIOT act?

Where was her "fight" when she voted AGAINST an amendment to prevent the use of cluster bombs against civilian populations?

Where was her "fight" when she voted FOR the Iraq War Resolution?

Where was her "fight" when she voted FOR the Kyl/Lieberman amendment?

For some reason, Hillary Clinton only seems to be "a fighter" when she's fighting to feed her own naked ambition. Is that really what we want in a president?

It may be fair to say that we have seen Hillary the head-strong my-way-or-the highway pugilist at least once before: During her ill-fated Universal Health Care project.

What Hillary supposed learned, what she supposed discovered from that experience was how to accommodate, negotiate and reach across the isle. This is why she can now sit down with Richard Mellon Scaife and not involuntarily flinch from the squick factor.

There's another name for this tendency: Blind Bullheaded Ambition.

That kind of ambition and bullheadedness is likely why she voted for the Iraq War (showing she wasn't the typical squishy democrat on defense), and continues to defend that vote to this vary day.

Toughness is important, but so is Judgment.

On a variety of issues they break even. One might argue that Hillary's heath care plan has advantages over Barack's, and that his support of Nuclear Power is troubling considering the lack of a plan for long-term waste disposal.

But Barack has certainly shown better judgment when it comes to numerous issues - particularly Iraq, ethics reform and tracking down lose nukes - while Clinton has become even more Hawkish than the biggest neo-cons with her proposal for a nuclear umbrella over the middle east.

Clinton has clearly shown that she cares more about saying what people want to hear, than saying what they need to hear. This is a trait she shares with George W. Bush.

It's also clear she would be a far better President than George W. Bush could even dream of, but is that good enough? If we can do better, shouldn't we?

We democrats and the nation should realize that we need more than an unrestrained angry rampaging bull in the china shop of our foreign policy, domestic security and financial well-being.

We need a grown-up.

We need someone who can do more than rattle sabers and exploit fear to make cheap political points, but actually knows how to work with, deal with and find common ground with people whom they might otherwise have deep seated differences with. People like, ironically enough, Reverend Wright. People like William Ayers. Barack has said that he'd be willing to sit down and negotiate with those people that we don't like, such as Ahmadenijad as well as those that we do like - that he can bring disparate people together to meet common goals, rather than simply try to crush them, or "obliterate them".

We can do better, we have to.

Shunning and disavowing people we disagree with is not how you bring people together and solve problems, you have to engage them and challenge them - not simply walk away and expect them to come crawling apologetically to your feet.

Barack needs to make the argument that his wide and varied aquiantences are not a detriment, but an asset. He needs to rise to Clinton and the medias ridiculous arguments, all of them, and beat them back to where they belong - in the garbage. And do it with a smile.

Barack has the judgment, he has the rabid support of the people, but what he also needs to show is that he can go toe-to-toe with one of the toughest democratic politicians and political machines of a generation and not just barely survive it, but learn from it.

He needs to use this experience to Toughen Up, but do so without losing his integrity or his argument that he represents a shift away from the "old-time politix".

This is truly a clash of generations, the tried and true vs the new and dynamic. He needs to make that argument, and he needs his surrogates and supporters to continue to support this meme - it's time to put away the dirty tricks, the fear-mongering, the politics of division of the past and move forward with clean - but well worn and hard-working and fully engaged - hands.


Thursday, April 24

What Came First the Torture or the Criminal Conspiracy to Avoid Prison aka the "Yoo Memos"?

In an LA Times Editorial last week, Scott Horton noted that the infamous torture memos from John Yoo and Jay Baybee may in fact have been written as an after-the-fact excuse to hide War Crimes which were already in progress.

... Yoo's account of how and why the torture memos were crafted may not hold up. Congress is preparing hearings into the subject, and they have invited Yoo to testify. International law scholar Philippe Sands and other writers have punched holes in Yoo's claims about the facts. It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.

So the question needs to be asked, can the President and his chief Principals (Rice, Rumsfeld, Cheney, Ashcroft, Tenet and Powell) knowingly commit War Crimes then simply blow it off with a pair of CYA memos?

The question of course is just how illegal did they know it was, and when did they know it?

Horton Continued.

It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution?

We have to note, as mentioned during Congressional Testimony just yesterday by Rep Henry Wexler, that in 2002 FBI agents on the scene nearly arrested the CIA interrogators questioning Abu Zubaydah on the spot.

The videotapes, made in 2002, showed the questioning of two high-level Qaeda detainees, including logistics chief Abu Zubaydah, whose interrogation at a secret cell in Thailand sparked an internal battle within the U.S. intelligence community after FBI agents angrily protested the aggressive methods that were used. In addition to waterboarding, Zubaydah was subjected to sleep deprivation and bombarded with blaring rock music by the Red Hot Chili Peppers. One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.

The videotapes made of these interrogations have since been illegally destroyed.

The initial justification for use of waterboarding and other techniques in all likelyhood did begin long before John Yoo's involvment, and in fact may have begun with a January 25,2002 memo from Alberto Gonzales which openly argued that the President and his administration just might face potential prosecution under 18 USC 2441 (The War Crimes Act) if certain precautions weren't taken, namely - eviscerating the Geneva Conventions.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

The first problem with this is of course that The President Doesn't Make the Law, Congress does.

The second problem is that the Geneva Conventions have an open catch-all section which indicates that anyone whose status is undetermined are to be considered Covered by the Convention until their status (POW or Civilian Criminal) can be determined by a tribunal.

Geneva Article 5.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

The President is NOT a competent tribunal.

The third problem, which was recently raised by John Ashcroft, is that treaties such as Geneva and the UN Convention Against Torture can have "Reservations" attached to it when they are ratified by the Senate. Again, yesterday, as Ashcroft attempted to use this argument to duck and dodge his own culpability in these War Crimes when confronted with them by a student at Knox college, he unwittingly revealed that yet again - Congress has the power to determine what is and isn't the law, not the President.

There was no legal basis in law (or logic for that matter) for Gonzales or President Bush to attempt to exclude the Taliban and Al Qeada from the Geneva Conventions. The only reason they did it was to avoid probable prosecution.

As it turned out when they actually began interrogations, the Gonzo Gift wasn't good enough. Even with the Jan 2002 Gonzales memo and the President's subsequent determination that Geneva didn't apply to "Enemy Combatants" there was still a fierce debate within the DOJ and Pentagon.

Apparently this conflict - as well as the capture of Abu Zubaydah - is what prompted the drafting of the Yoo Memos in March of 2002. But yet another problem arises, Yoo didn't have the authority to issue the memo.

On Friday, March 14th, 2003, that [Assistant Attorney General for the Office of Legal Opinion] was Jay Bybee. [UPDATE: Post corrected to reflect fact that Jay Bybee remained AAG on the 13th.] Yet John Yoo issued the Opinion in his own name. 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 here's another news flash, John Yoo has now declined to testify before congress to explain himself and his actions.

We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch.

This may very well turn into a subpeona, which based on past experience, the Justice Dept won't enforce and Congress will have to vote on Contempt charges and defer the issue to a outside judge - again.

Oy vey.

With the advent of the Hamdan decision, the Gonzales rationale for torture was stripped away as the Supreme Court affirmed that "Enemy Combatants" are indeed covered by Geneva and hence protected from War Crimes. The Bush Administration responded to this with the Military Commmissions Act, which established retroactive immunity for all acts or torture or coercian which may have occurred between Sept, 2001 and 2005., revoked habeaus corpus for "alien enemy combatants", allowed for the use of self-incrimination and coerced testimony, and re-wrote the War Crimes Act to conform to the "Bybee Standard" (Torture isn't "torture" unless someone is about to die).

That's Game, Set and almost match...

Almost. Still, there is hope that they won't get away with it. First all of because some of those who've been held in detention and abused have actually met the Bybee Standard. They didn't just have a simulated death experience - They Died.

So read several of the 44 US military autopsy reports on the ACLU website -evidence of extensive abuse of US detainees in Iraq and Afghanistan 2002 through 2004. Anthony Romero, Executive Director of ACLU stated, "There is no question that US interrogations have resulted in deaths." ACLU attorney Amrit Sing adds, "These documents present irrefutable evidence that US operatives tortured detainees to death during interrogations."

Guess what George? We aren't just talking about a bunch of frat-boy pranks on the night shift at Abu Ghraib, we're talking about a specific plan to implement a policy of abuse and avoid the legal consequences - a plan which has led to the death of numerous detainees. Murder is still Murder. Imagine that.

Secondly the Military Commission Act is unlikely to withstand judicial scrutiny under Geneva which prohibits:

the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Removing Habeaus, as well as the protection of the 5th and 8th Amendments doesn't really qualify as "affording all the judicial guarantees"... now does it?

And lastly Bush and his Cabal are unlikely to get away with it because what this long paper trail clearly shows us is there was a plot and a plan to engage in these actions, regardless of the existing law and procedures which should have been followed. Evidence was deliberately destroyed in violation of a court order and congressional subpeona to protect the guilty. What we now know is that with the various meetings of the Principals to discuss "enhanced interrogation" methods which were patently illegal is that what we really have here - is a conspiracy.

And under 18 USC 2430, that could still be a big problem for Bush and Co.

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Just as Gonzales warned in Jan 2002, the Bush administration is still at risk of being prosecuted by the next administration. Their only viable option left is to have a Pardon Party as they slide out the back door in Jan of 2009.

But let's just cling bitterly to the audacity to hope these thugs and criminals all have their day in court (something they've work so hard to deny to so many other people)