The rot, it runs deep

A piece by Jack Goldsmith (assistant attorney general under Bush, fellow at the Hoover Institution, and professor of law at Harvard) says closing Bagram and Guantanamo, is a wasted effort because the administration will just lead to sending suspected terrorists to worse places

This wouldn’t bother me so much (because, much as I would like to think otherwise, I don’t think this administration has the courage to be pure in this regard), save for the way he stacks the deck.

The government was under pressure to take terrorists off the streets and learn what they knew. But it could not bring them to the United States because U.S. law made it too hard to effectively interrogate and incapacitate them here.

Not at all. Interrogation can be done here. Goldsmith is arguing that we can’t do what needs to be done and you can’t get information from die-hard terrorist by offering them tea and cookies. This is, of course, nonsense).

But there it was, he slipped in the idea that one can’t get the job done without torture.

He does it again later.

It is tempting to say that we should end this pattern and raise standards everywhere. Perhaps we should extend habeas corpus globally, eliminate targeted killing and cease cooperating with intelligence services from countries that have poor human rights records. This sentiment, however, is unrealistic. The imperative to stop the terrorists is not going away. The government will find and exploit legal loopholes to ensure it can keep up our defenses.

First, it wasn’t, “legal loopholes,” they were exploiting to justify torture. There are no loopholes. The arguments applied by Yoo, Bybee, and Bradbury, weren’t finding loopholes, they were knocking holes in the walls and calling them doorways.

Second, none of that will, “stop the terrorists.” Once we have them in custody, they are stopped.

He closes:

The government, however, sees the terrorist threat every day and is under enormous pressure to keep the country safe. When one of its approaches to terrorist incapacitation becomes too costly legally or politically, it shifts to others that raise fewer legal and political problems. This doesn't increase our safety or help the terrorists. But it does make us feel better about ourselves.

Again, the one doesn’t follow from the other. The threat of terrorism won’t end. It can’t, because it’s cheap. A modern, “Phoenix Program” doesn’t incapacitate terrorists (how many times have we killed the number 3 member of al Qaeda?). It’s also not clear that moving to things like rendition/assassination, etc. equals “fewer political problems.

The real answer to terrorism probably hidden in higher up, This approach to detention policy reflects a sharp disjunction between the public's view of the terrorist threat and the government's. After nearly eight years without a follow-up attack, the public (or at least an influential sliver) is growing doubtful about the threat of terrorism and skeptical about using the lower-than-normal standards of wartime justice.

Dean Ing wrote a book, back in the early ‘80s, about stopping terrorism. He had a newscaster start mocking them. He made them objects of derision, and scorn. Turned them into laughingstocks. If they don’t get the reactions they want, and they end up in jail, the odds are the risks go down.

They won’t go away, but this stuff isn’t making them go away either.

(comments at Better than Salt Money

Obama is isn’t being transparent, nor particularly honest

Last week the Telegraph quoted General Taguba: Maj Gen Taguba, who retired in January 2007, said he supported the President’s decision [to contest a Freedom Of Information Act requirement to release photos], adding: “These pictures show torture, abuse, rape and every indecency. “.

Taguba has since said he was quoted out of context. That the photos in question don’t depict things quite that bad.

"The photographs in that lawsuit, I have not seen," Taguba told Salon Friday night. The actual quote in the Telegraph was accurate, Taguba said -- but he was referring to the hundreds of images he reviewed as an investigator of the abuse at Abu Ghraib prison in Iraq -- not the photos of abuse that Obama is seeking to suppress.

So far so good.

The White House, however, is trying to make this more than it is, Press Secretary Robert Gibbs sent this round.

A number of you have asked about or reported on a recent article in the Telegraph that inaccurately described photos which are the subject of an ongoing lawsuit. Both the Department of Defense and the White House have said the article was wrong, and now the individual who was purported to be the source of the article has said it's inaccurate. Given that this false report has been repeated around the world, and given the impact these negative reports have on our troops, I felt it was important for you to see this correction.

There is a subtle attempt at conflation. The proper correction would not be to say the report was false, but that the photos in question do not, “show torture, abuse, rape and every indecency. “ It’s a neat ploy to 1: make it seem these photos aren’t so bad, and 2: have to be suppressed because they will hurt the troops.

The former is a bit of card-palming. Taguba didn’t say there were no such photos, merely that the photos named in the FOIA matter aren’t the one’s he talked about in his report on Abu Ghraib. The White House wants US papers to say the entirety of the quotation, not merely its context is false.

That’s the first thing. The second is worse. Not for the specific act, but the implication.

The White House supports a bill to make it possible for them to carve exceptions to the FOIA, on the president’s whim.

Detainee Photographic Records Protection Act of 2009

The problem is it’s a terrible repetition of precedent. A precedent which is just as bad when Obama does it, as it was when Bush did it, as it would be if anyone, anywhere did it.

The meat of the matter is: (d) Nondisclosure of Detainee Records- A covered record shall not be subject to--
(1) disclosure undersection 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act); or
(2) disclosure under any proceeding under that section.

So, the FOIA will, (for a limited set of documents) no longer apply? Why?
Because the president doesn’t like being forced to release them. It hurts his feelings, or something. Which is crap. Presidents (and mayors, and school boards and congressmen, and the CIA, etc.) all hate to be told they have to cough up things which show the nasty things they (or their predecessors) have done.
I don’t know why Obama has been convinced to refuse the release. The people sponsoring this amendment (Lindsey Graham and Joe Lieberman) aren’t friends of either Obama, nor openness in government. Graham is a torture apologist (and Bush defender) and Der Leibermouse is in the game for himself. My guess is he’s been persuaded that allowing the spotlight to shine into these corners will put him in a pickle.
If something dramatic happens, it will be his fault. He’s being cagey. Someone (Rahm?) is saying, “you have to triangulate this one.”

That’s the first problem. This bill not only makes him look weak, it weakens him. He is showing he can be pushed around.

The second problem is more worrisome. This is more ex post facto legalising the illegal. This bill (like the telecom immunity, and the rewrite of FISA, and the “we won’t prosecute the little fish, nor go after the architects of our torture program) is saying, “the laws don’t apply to the gov’t.”

Which is wrong. The whole point of the Bill of Rights, the Constitution, and its predecessors, all the way back to the Magna Carta, is that no one, not even the king, is above the law. The law is absolute.

Carving exceptions, esp. ones which have no review, no oversight, and no means of appeal is privilege, in the Roman sense of the word, privilegium, a construction from privus lex, private law; i.e. something which applied to only one person, or a small group, is not on. It's a rent in the fabric of society.

There are places where privilege needs to be in the law (though it’s often overbroad, as with police who are, “acting in good faith” being protected from overzealousness. It’s one thing to get an address wrong in a search warrant. It’s quite another to strip a car to parts and then leave it for the owner to repair when nothing was found).

But such exemptions need to be narrow, and the more power the official has, the more narrowly those privileges need to be built; the more oversight needs to be on them.

And no one, no one, should be allowed to get the law undone after the fact. If you think the need was so great, appeal to the jury. “Twelve people, good and true,” may elect to set you free, with an undertone of, “well done, thou good and faithful servant.” Fine. That’s one thing.

It’s quite another to say, “Whoa... that law didn’t apply to him.”

(comments at Pecunium

On abortion, in general

Over at Slacktivist is begun, what shall almost certainly prove to be an interesting; and fruitful, discussion of abortion.

Right at the top, however, came a comment about the nature of what the pro-choice side ought to be considering.

Let me just add an addendum: I know that most pro-choice folks don't think abortion is a good thing either (and I didn't mean to suggest otherwise), just that many believe a woman's bodily autonomy is so important that the right to abortion has to be absolute. That's why some, such as Amanda Marcotte at Pandagon, who I admire greatly, says that anything that even hints at any limitations on abortions (such as the already mentioned "safe, legal and rare" theme), shouldn't be entertained. But that's a view that I think will hurt the pro-choice cause with many Americans.

I don't, for a second, doubt the sincerity of the statement. Nor her (I assume female from the handle, "Daughter") belief that abortion ought to be legal.

Here is my view on the matter:

Abortion should be legal.

Abortion should be the woman's call. Not the state, not her partner, not anyone else. She can get all the advice she likes, talk to her parents, her spouse/lover/partners/best friend/worst enemy. She ought to see medical opinions on the possible risks to her health.

But the call is hers. First, last, and always.

Abortion ought to be available. None of the tricks of hemming it so firmly only the wealthy can manage to get it. No putting it in the hands of a doctor, or a health board or any one else (see above, the decision is hers)

Abortion should be rare. Not because of social stigma. Not because of cost, or a dearth of access to it. Not because the hurdles to getting one are too many, and too high.

It ought to be rare because it is rarely needed. Pregnancies should be wanted. That means comprehensive sex-ed. It means readily available birth control. It means all the social support needed to avoid unwanted pregnancy.

And it means when a pregnancy is unwanted, it can be terminated.

So yes, I agree, safe, legal and rare. But not rare because of any outside pressures. Rare because the choice is less often needed.

Comments at Pecunium