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Not a favorable comparison

Steven Benen, at the Washington Monthly, takes exception to the fact that the UK is banning political extremists from entering that country:

I can vaguely understand why these measures might be tempting, but it’s developments like these that remind me why U.S. civil liberties are worth appreciating.

I agree with his position that these bans are not a good thing, though I do find it somewhat delicious that Michael Savage is on the list, banned for hate speech. But I must take exception to his warm and fuzzy feelings about our civil liberties. My guess is that this country’s track record on banning people for political reasons is far worse, and of far longer standing, than the UK’s. This is from the New York Times of less than two months ago, discussing a case involving the Bush Administration’s refusal to allow a Muslim scholar to enter the country:

In its most recent brief in the case, last July, the government said both that the courts did not have the power to review such decisions and that the Supreme Court had repeatedly allowed the government to bar foreigners because of their views. The Obama administration has filed no briefs and has given no indication what course it will take.

That was the Bushies making those statements, but they were not always wrong, and their assertion about the Supreme Court is basically correct. I recall reading cases upholding this sort of thing when I was in law school, which was an enlightened age (the dying days of the Warren court) compared to the dark judicial ages in which we now exist. The folks on the Mayflower weren’t the last political dissidents to arrive on these shores, but ever since they arrived those shores have been ever less welcoming. We don’t compare favorably to the UK on this score.


The circle closes

Seldom are the victims (if only the secondary victims) of a conspiracy privileged to watch that conspiracy play out before there very eyes. The entire American people have now been so privileged, as we see the Bush torture conspiracy come to a successful end. It can truly be said that at no time has the conspiracy been truly secret. When now publicly acknowledged, its broad outlines have been known.

In today’s Times we get the word that a Justice Department investigation has concluded that while mistakes were clearly made, none of the lawyers who wrote those infamous memos should be prosecuted. The conspiracy is now complete.

Let’s review the definition of conspiracy. A conspiracy involves an agreement between or among individuals to achieve an illegal end by legal means, a legal end by illegal means, or an illegal end by illegal means.

Here, the illegal end is clear. The object of the conspiracy was to violate national and international laws against torture, and to get away with it if caught.

The means: Insulate the torturers by producing bogus legal opinions that gave them legal cover. You can do that because the opinions of the Office of Legal Counsel give government employees legal cover until a court finds them invalid. This leaves the lawyers themselves vulnerable, unless you determine that they were not criminal, merely incompetent. This requires that you ignore the inconvenient fact that the overarching conspiracy is patently obvious. Each participant knew, or should have known the obvious truth that no one in this entire conspiracy was acting in good faith. The legal principle that gives government employees cover if acting pursuant to an opinion from the Office of Legal Counsel presupposes that the opinion was given in good faith-that it is an honest attempt to discern the true state of the law, not a made to order brief designed from the start to reach a specific conclusion. The lawyers knew what they were doing. The torturers themselves could not have believed that they were not torturing, or is this a case in which they merely asked: “Who should I believe, John Yoo, or my lying eyes?”.

Now the Obama administration takes the last step in the conspiracy by sealing the deal, performing in precisely the manner that the Bushies expected should the torture come to light. There’s nothing to see here, and although some of these miscreants might have to lose their law licenses, there’s no need to get the torturers, or the people who were pulling those lawyer’s strings.

By the way, don’t try this at home. For the rest of us, claiming that we were following legal advice gets us precisely nowhere, if by following that advice we expose ourselves to criminal or civil liability. Nor does a good faith defense do a lawyer much good if they have exposed themselves or their client by giving bad advice. I’m aware of one exception. If a person is sued for malicious prosecution (suing someone without good cause) he or she can defend by saying they were relying on the advice of counsel. But that defense only goes so far. It gets the client off the hook, but not the lawyer, who remains liable.

It now remains to be seen whether Congress will do something about this national disgrace. I will risk a prediction that has little chance of being wrong: we will hear a bit of sound and fury, but in the end it will signify nothing.


Dodd speaks on torture

Okay, I give up. I normally spend my lunch time at work cruising the net, and often send links home that I think it would be good to write about. Often, unfortunately, I forget to send them. I just spent about an hour searching for a story I read about Obama’s tax haven proposal. I simply couldn’t find it, and I’m running out of time. So, nothing close to original from me today.

In fact, I can do no better than link to My Left Nutmeg, which, along with other selected Connecticut bloggers, made news across the blogosphere with its scoop on Chris Dodd’s take on the torture issue. Chris’s dad was a prosecutor at Nuremberg, so it stands to reason that he might have strong feelings about the issue:

I believe that waterboarding is torture. … Pat Leahy of Vermont has been arguing for a select committee – or a commission, I forget which he’s talked about – to go and review all of this. I agree with him on that. There’s some debate about whether he does it or the Intelligence Committee does it – somebody ought to do it. […]

In a sense, not to prosecute people or pursue them when these acts have occurred is, in a sense, to invite it again in some future administration. If you think it doesn’t mean anything, that you can basically do what you want and we’ll somehow just say, “That was yesterday, today’s today.” Had that handful of people who advocated at the Nuremberg Trials embraced that view – Nuremberg became the symbol of who we were. Even these thugs got a lawyer. Even these thugs had a trial, despite their acts. So we became a symbol of jurisprudence and the rule of law. […]

Let’s not forget that Dodd was a strong voice against the telecom bill, and against FISA. He’s been one of the few politicians who has bothered to make an issue out of civil liberties and constitutional issues, and he deserves re-election for that reason alone.

By the way, I am not bitter about the fact that I was not invited to this Connecticut blogger confab. I don’t feel the slightest amount of resentment. It wouldn’t mention it except that I feel the need to make my total lack of pique explicit.


A Good Witch

When my kids were little my wife and I read most, if not all, of the Oz books to them, both those by the original author, L. Frank Baum, and by his successor, Ruth Plumly Thompson. So I was interested when I saw Finding Oz in my local bookstore. It’s a biography of Baum by Evan I. Schwartz, which makes a more or less plausible case for the sources for the Oz stories and characters (he convincingly debunks the idea that it is a disguised attack on the gold standard). Among other things, he makes the argument that Baum’s mother-in-law was the inspiration for both the Good Witch of the South and the Wicked Witch of the West. In the book, there are two good witches; the beautiful one appears only at the end, and she’s the one Schwartz feels Baum’s mother in law inspired. This might be just a tired mother-in-law sort of joke, except that this particular mother-in-law was a remarkable woman, a relatively neglected woman’s rights advocate who was a full member of a triumvirate that included Susan B. Anthony and Elizabeth Cady Stanton.

Her name was Matilda Joslyn Gage. You can read more about her here, at the website for the Matilda Joslyn Gage Foundation. Baum was an early supporter of equal rights for women, quite likely influenced by Ms. Gage and her almost equally strong minded daughter. What I found interesting was the fact that she, alone among the then big three in the women’s movement, refused to make common cause with the temperance movement, which was dominated by religious fundamentalist women, and which, even then (if Schwartz is to be believed) Gage referred to as the “religious right”. She split with Anthony over the issue, and she turned out to be prescient, since the religious types abandoned the women’s movement as soon as it was no longer useful to them.

Gage believed that religion was an instrument of oppression, particularly against women, and had written extensively about the fact that the mass burning of witches had been essentially a war on women.

More from the website:

Unlike many of her sisters in the American suffrage movement, Gage was unwilling to compromise her position on the absolute necessity of religious freedom as a prerequisite for authentic women’s liberation. Specifically, Gage was not interested in forming alliances with organizations such as the Women’s Christian Temperance Union whose goals included eliminating the separation of church and state. Through her creation of the Woman’s National Liberal Union, her contributions to The Woman’s Bible, and perhaps most significantly, her publication of Woman, Church, and State, Matilda Joslyn Gage left a legacy of radical feminist analysis of the relationship between women’s oppression and organized religion. Her seminal work as a feminist, a freethinker, and proponent of a gyno-centric spirituality is striking not only because it stands so clearly in advance of the dominant thinking of her time, but because it continues to challenge sexist boundaries and assumptions in contemporary America.

While Gage’s opposition to the Church was nurtured over a lifetime, her most nationally recognized acts of defiance in this regard were accomplished in the last decade of her life. Among these was her organization of a society dedicated to the free expression of radical reform and free thought agendas which she organized after the merger of the National Woman’s Suffrage Association, of which Gage had long held both intellectual and organizational leadership roles, with the American Woman’s Suffrage Association.

Matilda Joslyn Gage was furious that the new organization, the National American Woman’s Suffrage Association (NAWSA) was openly courting the support of such conservative Christian groups as the WCTU led by the legendary Frances Willard. Gage, as a champion of the separation of church and state, was intellectually and morally repulsed by Willard’s goal that “…Christ shall be this world’s King. King of its courts, its camps, and its commerce; King of its colleges and cloisters; King of its customs and its constitutions.” When Willard declared that she wanted an amendment to the United States Constitution declaring Christ the author and head of the American government, Gage was disgusted. “This looks like a return to the Middle Ages and proscription for religious opinions, and is the great danger of the hour.” In Gage’s scholarly, feminist opinion, any move toward public reform in the name of religion was a move away from the goals of women’s true freedom.

Some things never change. We could use more like her.

By the way, according to Schwartz, the Wizard was inspired, to varying degrees, by Thomas Edison, P.T. Barnum, John D. Rockefeller and Swami Vivekananda.


The Republican Philosophy in a Nutshell

The folks at ThinkProgress have done an admirable job of exposing Karl Rove’s latest bit of hypocrisy here. Seems Karl no longer feels that the President’s choice for the Supreme Court deserves absolute deference. No surprise there, and in any event, exposing Rovian hypocrisy makes shooting fish in a barrel look like rocket science.

But while he was burnishing his hypocrite’s credentials, Rove also perfectly summarized the Republican constitutional philosophy.

In fact, this is going to be one the big dividing lines. President Obama…said he wanted a judge who would uphold the Constitution, but also a judge would be empathetic. These two things are in conflict.

The word “empathetic” derives from “empathy”, which my dictionary defines as follows:

Identification with and understanding of another’s situation, feelings, and motives.

Rove has it right here, at least from the perspective of the right. Their constitutional philosophy is bottomed in a refusal to empathize- a refusal to either attempt to understand the situation of others or accept that the law must address the real world problems of real people. The conservative legal philosophy is one that insists on cramming people into artificial legal constructs rather than crafting legal constructs to deal with realities.

A system of law that is based on a refusal or inability to see the world from another’s perspective, to walk in that person’s shoes, so to speak, is one that will in time grow increasingly rigid and prevent the society as a whole from adequately responding to new challenges. The society grows ossified. If our legal system and our law is to evolve properly, empathy is not a luxury, it’s a necessity.


Friday Night Music-Rock Me Baby

This is almost like cheating. How can you miss with BB KIng, Eric Clapton, Buddy Guy and Jim Vaughn? The sound is first rate too.


If it was good enough for Jesus, it’s good enough for Abu Zubaydah

From CNN:

The more often Americans go to church, the more likely they are to support the torture of suspected terrorists, according to a new survey.

At first blush it seems odd. These folks worship a man who was tortured and executed because he was a suspected terrorist, or at the very least an enemy of the state. One would think that his self proclaimed followers would be hesitant to inflict similar suffering on others, but that’s obviously not the case. Throughout their long history Christians of almost all denominations have been quite comfortable with the idea of inflicting pain on those with whom they disagree. Perhaps their shared delusion that we all have a chance at an eternity of bliss makes them more willing to inflict suffering here on earth.


Winston was good, but George (Washington, that is) was better

There’s a bit of speculation going around about just which article Obama recently read about Winston Churchill’s anti-torture policy, with a recent Andrew Sullivan piece being among the top contenders. Apparently, there’s also a little push back, to the effect that the British may not have always stuck to their anti-torture policy.

Well, we don’t need to go off shore for anti-torture precedent. We need only look to the one great president whose name began with George, the sometimes under appreciated George Washington. Here’s Bobby Kennedy, Jr. citing David Hackett Fisher’s Washington’s Crossing, the book from which I also learned this little factoid:

Washington decided to behave differently. After capturing 1,000 Hessians in the Battle of Trenton, he ordered that enemy prisoners be treated with the same rights for which our young nation was fighting. In an order covering prisoners taken in the Battle of Princeton, Washington wrote: “Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren. ….. Provide everything necessary for them on the road.”

At the time, as the introductory sentence implies, the British were behaving quite differently. They were engaging in a terror campaign against American civilians. On the battlefield, the Hessians were ordered to take no prisoners, and they followed orders. In the face of that, Washington has this to say about the way we should treat Hessian prisoners (from a letter to Robert Morris, George Clymer and George Walton):

The future and proper disposition of the Hessian Prisoners, struck me in the same light in which you view it, for which Reason I advised the Council of Safety to separate them from their Officers, and canton them in the German Counties. If proper pains are taken to convince them, how preferable the Situation of their Countrymen, the Inhabitants of those Counties is to theirs, I think they may be sent back in the Spring, so fraught with a love of Liberty and property too, that they may create a disgust to the Service among the Remainder of the foreign Troops and widen that Breach which is already opened between them and the British.

Keep in mind that the danger we face pale in immediacy to those faced in those days. Enemy troops were on our soil, brutalizing our populace. Our troops taken prisoner were kept in unspeakable conditions. Washington himself faced execution if things didn’t go so well. The danger was not hypothetical, it was happening as Washington wrote.

I don’t know whether the Hessians were sent back to their lines, but I do know that many of those prisoners stayed behind when the war was over. They were little more than slaves in their native country, whose major export at the time was mercenaries. If we had followed the good George’s example this time around, might we not have returned humanely treated prisoners back to where they came, where that humane treatment might have dampened terrorist recruiting?

So in my book, Obama should be citing George Washington, and reminding our country that in a time of much greater hazard, we stuck to our principles, which at the time were an innovation. There was no Geneva convention back then, and humane treatment of prisoners was hardly the norm.

UPDATE: How odd that a commenter who adopts the sobriquet “Notostalin” writes in to support torture.


Boiling Mad

It’s not easy being a member of a minority group. It’s bad enough being marginalized, but it’s even worse to be smeared. Look at this quote from Talking Points Memo:

But don’t mistake DeMint for a crank. He’s actually a consummate optimist. He says “Pat Toomey, who is running in Pennsylvania, is one of the most mainstream Americans I know.” And surely all those diaspora northerners will repatriate Pennsylvania when they realize that the “mainstream” is on the rise and “forced unionization” will no longer beleaguer the tea-loving masses.

As a tea-lover, I feel degraded and humiliated by being stereotyped, particularly this stereotype. What did we tea-lovers ever do to be lumped together with Jim DeMint and Pat Toomey, not to mention Republicans in general? It’s bad enough that when I go to a restaurant the coffee drinkers get a decent brew while I get a bag full of some substance that used to be part of a tea plant. But to have it insinuated that I share the mindset (if mindless people can have a mindset) of these cretins is beyond the pale.

This sort of thing has gone on oolong enough. Just because we tea lovers are a minority group in a nation of coffee drinkers does not mean we can be associated with a justly despised splinter group of doubtful sanity. If this keeps up we tea lovers will come to a rolling boil, after which we will steep in our righteous anger until the full flavor of our fury blossoms forth. Our vengeance shall be terrible, yet surprisingly convivial.


Not to be trusted

Arlen Specter is becoming a Democrat. Having concluded that he cannot win the Republican primary, he has done the “principled” thing and once again become a Democrat. This is a man who only recently opined that investigating torture is something they do only in banana republics and who, also recently, did a 180 turn on Employee Free Choice. Of course, that was when he still was trying to appease his right flank. Having concluded that it is impossible for him to do so, and perhaps feeling a bit of security as the result of who knows what secret deal, he is opting to compete in the Democratic primary.

What can we expect from this new Democrat. Not much. Will he (when Franken finally gets seated) make 60 to stop the filibusters? Not according to Spector:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees Free Choice (Card Check) will not change.

If the Democrats have cut a deal and promised him a clear path to the nomination, they have cut their own throats. The only thing that will keep him in line is a threat from the left that will give him the incentive to behave himself. We don’t necessarily need his vote on Employee Free Choice. It’s probably asking too much to expect him to make yet another about face on that issue. But there’s no reason why he can’t take the “principled” stand that though he’s against it, he believes it should come to a vote. That’s the kind of thing Joe Lieberman is good at, and Arlen will be nothing if not another Lieberman.

The optimal outcome would be that he has to tack to the left to win the nomination, loses anyway, and a real Democrat trounces Pat Toomey. That is, by the way, not an unlikely outcome.