Debating the Wrong Things

Just a reminder – JUST ABOVE SUNSET will be blogging live tomorrow evening, January 31, from the Democratic primary debate at the Kodak Theater on Hollywood Boulevard. Press credentials are so cool. 

But looking ahead is pointless. Who knows what the candidates will say? That reporter in New Jersey didn’t know the Hindenburg was going to crash and burn, after all – not to say that Hillary Clinton won’t end up standing on a chair and screaming “I’m the QUEEN and you will OBEY!” or Barack Obama offer all his responses in some sort of gangster rap none of us white guys get, and then quote the Koran. But you never know. We’ll see – no point in guessing.

After all, Wednesday, January 30, was a day full of surprises, like this – “The battle for the White House narrowed dramatically on Wednesday as the exit of Rudolph Giuliani and John Edwards left Republican and Democratic front-runners in a pair of two-horse races.”

What is this about horse races? Rudolph Giuliani and John Edwards both threw in their respective towels, a boxing metaphor that only extends the way the media characterizes all this, as a slugfest, or something. That metaphor sums up a lot of the reporting – we’re to think of the competition for each party’s presidential nomination as ambitious people, for wealth and fame, pounding on each other until one drops unconscious. But if you extend the metaphor, you realize that leaves one a bloodied loser and shamed, and the other grinning but, after winning a number of these things, stumbling through the rest of life with manifest motor and cogitative deficiencies, making little sense but standing, unsteadily, proud. Actually, when you think about it that way, a life in politics does that to people. Winners turn into punch-drunk bullies-if-they-could-be, grabbing your sleeve and telling you how things really should be if they had their way, damn it. Ronald Reagan, Mohammed Ali, and now Bill Clinton – power doesn’t corrupt so much as the competition to get power and hold power results in something that mimics organic brain damage. Sensible people don’t seek it, although one might make an exception for the starry-eyed idealists. But even they have to fight others to make something out of their idealism, and that fighting does something to you.

Be that as it may, the news of these two dropping out of the fight, which they both of course saw as “the good fight,” caused no end of speculation. Giuliani quickly endorsed his good friend John McCain and said he would campaign for him, unless that would be counterproductive (a little self-effacing humor about all the scandals and his three wives and all the rest there), so most of the chat was about how Giuliani had flamed out – either musing on a stunning fall from his status as a national hero, or wonder that it took so damned long when, after you took into account his behavior in September 2001, nothing he was or did had anything to do with what Republicans are, or think they are. There was some speculation Giuliani was angling for the vice presidential slot, but that was only half-hearted. He’s done. He will return to the obscurity he so richly deserves, as they say.

Edwards, the smarmy populist with his fight-those-corporations message, didn’t endorse anyone. He said he was happy just to “change the dialog” – poverty, homelessness, that proper healthcare for all should be a right of all citizens, respect for labor and not just ingenious investment – all that stuff is now on the agenda for his party. He says he’ll be happy enough for that. But no one cared – everyone was wondering who he would finally endorse and how that would change things, and if he didn’t endorse Clinton or Obama, how the math would work out in all the primaries, state by state. A few hours scanning everything that was written and glancing at the talking heads on television led to one conclusion – no one knows, and they all used many, many words to spin out hypothetical scenarios they then qualified. It seems odd that people make a living doing that.

Then came the first CNN debate here in Los Angeles, the three remaining Republicans, McCain, Romney and Ron Paul, having at each other at the Reagan Library out in Simi Valley. But why watch? CNN was sending emails – exclusive rush transcripts of everything said and a link where you could download photos you could publish, with attribution. Press credentials are indeed cool.

Rick, the News Guy in Atlanta, who helped JUST ABOVE SUNSET with the press credentials for what would now be the Clinton-Obama debate the following evening, sent emails too. Was the sound bad? Should he email his buddies in production? Gee, it was hard to tell when you’re writing a column with the radio tuned to the USC station and they’re pumping out pleasant nineteenth century string quartets.

And it wasn’t much. Associated Press ran Romney, McCain spar over Iraq timetable – “Republican Mitt Romney said John McCain used dirty tricks by suggesting shortly before the Florida primary that the former Massachusetts governor wanted a deadline for withdrawing U.S. troops from Iraq, as the two men squared off in a spirited debate Wednesday night.”

Yeah, whatever – this was more of the same, no Hindenburg. It seems that they “sharply challenged each other’s conservative credentials and ability to lead the country.” But they generally remained civil, and each called the other “a fine man.” That’s nice.

Rick also wrote this:

If you’re not watching, you just missed a great rant by Ron Paul. I’m not a big fan (him being a Libertarian) but he gave every argument the rest of us give. He was great!

He must have been referring to Congressman Paul responding to a question from a viewer in Roswell, Georgia. Did he agree with Senator McCain’s statement that the United States might need to have troops in Iraq for as long as even one hundred years? And he was good: 

I don’t even think they should have gone, so keeping them for 100 years, where’s the money going to come from? (APPLAUSE) You know, the country is in bankruptcy. And when I listen to this argument, I mean, I find it rather silly, because they’re arguing technicalities of a policy they both agree with. They agreed with going in; they agreed for staying, agreed for staying how many years? And these are technicalities. We should be debating foreign policy, whether we should have interventionism or non-interventionism, whether we should be defending this country or whether we should be the policemen of the world, whether we should be running our empire or not, and how are going to have guns and butter?

You know, the ’70s were horrible because we paid for the guns and butters of the ’60s. Now we’re doing the same thing. And nobody even seems to care. The dollar is crashing, and you’re talking about these technicalities about who said what when? I mean, in 1952, we Republicans were elected to stop the war in Korea. In 1968, we were elected to stop the war in Vietnam. And, tragically, we didn’t stop it very fast:  30,000 more men died.


So when I talk about these long-term stays, I think, “How many men are you willing to let die for this, for something that has nothing to do with our national security?” There were no Al Qaida there. It had nothing do with 9/11. And there was no threat to our national security. They never committed aggression. It’s unconstitutional. It’s an undeclared war.


And we have these silly arguments going on about who said what when. I think it’s time to debate foreign policy and why we don’t follow the Constitution and only go to war with a declaration of war.


That’s refreshing, but Ron Paul has no chance of winning anything. On other issues he’s way out there. Still, this stuff should be said. But this was not the place for honest, insightful men to say such things. It was a slugfest after all.

And the significant news of the same day had to do with something else entirely, Attorney General Michael Mukasey testifying to congress. We are a nation that tortures people – it seems to have become policy – and we’re now pretty much medieval, if you will. You might not have noticed, but we have become something fundamentally different. You weren’t paying attention.

Back on November 3, 2007, there was Some of Us Want Our Country Back. Some of us do. The news late in the day on Friday, November 2, was the announcement by Democratic senators Charles Schumer (New York) and Diane Feinstein (California) that they would vote for the confirmation of Michael Mukasey, thus assuring that Michael Mukasey becomes the next Attorney General – the matter then moved from the Senate Judiciary Committee to the Senate floor and that was that.

Before being confirmed as attorney general, Mukasey skirted around the issue of the CIA’s interrogation program, and specifically the use of waterboarding. In October, Mukasey had witten to the Senate Judiciary Committee that he “could not render an opinion about the legality of any specific techniques” because he had “not yet been briefed on the program” – but he assured the committee that if confirmed he would “review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use.”

Diane Feinstein bought that hook line and sinker. The JUST ABOVE SUNSET item has the letter to Feinstein, excorticating her on the issue – and she sent a form letter back a month later saying you had to trust the man. But Mukasey has yet to provide a conclusive answer on the legality of such practices, of what is obviously torture. And now he has written a letter to Senate Judiciary Committee chairman Patrick Leahy, the Democrat, and ranking Republican member, Arlen Specter, concluding that “waterboarding is not among those methods” used by the CIA. He said this meant that he should not comment directly on the issue. In the hearing with the committee on Wednesday he maintained that waterboarding is purely a hypothetical technique. Even under the pressure of questions repeatedly targeted at the issue from almost every committee member, he refused to give a conclusive answer, giving Senator Durbin the justification for his non-response – “I have not been presented with a concrete situation.”

Screenshots of Mukasey’s letter are at Mukasey says waterboarding still not “concrete situation” – and Diane Feinstein is a fool. The philosopher once said something about the Fallacy of Misplaced Concreteness. Here it is: Negroponte Admits Waterboarding Was Used In The Past:

Former US spy chief John Negroponte admitted that the US has used a controversial interrogation technique known as waterboarding but does not anymore, according to a published interview on Monday.

Negroponte, who currently serves as deputy secretary of state, told the National Journal that the country has made improvements and that it has been years since interrogators used the simulated drowning technique, often described as torture.

Dahlia Lithwick provides a summary of the hearing in Thank You. Now Go to Hell, and that opened with this:

Virtually every Democrat on the Senate judiciary committee opens his or her questions to Attorney General Michael Mukasey at today’s oversight hearing with a thank you. They thank him for appointing an outside prosecutor to investigate the destruction of the CIA torture tapes; they thank him for re-establishing appropriate boundaries between the White House and the Justice Department. They thank him for putting an end to disparate treatment of gay employees at DoJ, and for, er, reassigning the dread U.S. attorney for Minnesota, and for his work to depoliticize the Justice Department. All of these thanks join together to form a sort of mimed Hallelujah Chorus in which all can agree that any day Alberto Gonzales isn’t the attorney general is a good day in America. …

But he won’t say anything about waterboarding because we stopped doing it and because it’s “not an easy question.” That why they pay him the big bucks, of course. Lithwick – “In other words, having set about diligently to scrutinize the legality of the interrogation program, its legal justifications, and its applications, the nation’s top lawyer has come up with this lawyerly answer: It depends.” He will not discuss what’s happened in the past and he won’t disucss anything that might happen in the future.

Arlen Specter asked Mukasey whether, in his view, the president “can break any law he pleases because he’s the president – including, say, statutes banning torture,” as well as FISA and the National Security Act. Mukasey had his reply – “I can’t contemplate any situation in which this president would assert Article II authority to do something that the law forbids.”

Specter – “Well, he did just that when he violated the Foreign Intelligence Surveillance Act.” Mukasey – “Both of those issues have been brought within statutes.”

Specter – “But he acted in violation of statutes, didn’t he?” Mukasey – “I don’t know.”

Here we go again. Ted Kennedy asks that if Mukasey won’t offer an opinion on past water-boarding, might he give some future guidance regarding the practice. That’s simple – 

In your letter you wouldn’t even commit to refuse to bring water-boarding back, should the CIA want to do so. You wouldn’t take water-boarding off the table! … Under what facts and circumstances would water-boarding be lawful?”

Mukasey said he really didn’t know, and he would not be drawn into “imagining facts and circumstances that are not present and thereby telling our enemies exactly what they can expect in those eventualities.” And he certainly would never tell “people in the field what they have to refrain from or not refrain from in a situation that is not performing.”  The idea seems to be is that it’s just not his business.

Dahlia Lithwick sums it up:

Just to be clear then, to the extent that there is any purpose to the law, i.e., to punish past bad acts and to alert people as to what types of conduct will be punished in the future, the attorney general has just obliterated that purpose. Unless someone were to actually be water-boarded before Mukasey’s eyes at the witness table in the Hart Senate Building, America’s lawyer cannot hazard an opinion as to its legality.

That is absurd of course, but it gets more absurd:

Joe Biden, D-Del., gets Mukasey to obfuscate even further. Mukasey explains to Biden that the legal test for torture – conduct that “shocks the conscience” – has less to do with shocking the conscience than the exigency of the situation. Under his test, torture that “shocks the conscience” can be “balanced against the information you might get that couldn’t be used to save lives.”

That’s not a legal rule. It’s a judgment call.

Biden calls him out on it: “You’re the first person I’ve ever heard say what you just said … I just never heard the issue of torture discussed in terms of the relative benefit that might be gained from engaging in the technique.”

Senator Durbin goes further, citing Mukasey’s statement that “reasonable people can disagree” about the legality of water-boarding, and asks the attorney general to name some folks on the “pro” side. Silence – so Sheldon Whitehouse tries to get Mukasey to explain why the Justice Department is investigating the destruction of the CIA torture tapes, but is not investigating the underlying torture itself. What’s up with that?

Mukasey – “I don’t start investigations out of curiosity.” What does that mean?

And there’s this:

When Whitehouse tries to get Mukasey to agree that they both know enough classified information to have a very concrete, non-speculative legal discussion about whether what happened on those tapes is legal, Mukasey again insists that whether or not what happened on those tapes is legal is about which “certifications were given” and “who permissibly relied on it.”

Whitehouse calls this the “Nuremberg defense. … I had authorization and therefore I’m immune from prosecution.”

And that’s where we are.

And this is the joke:

Whether they voted for Mukasey or not, Democrats widely want him to examine the interrogation tactic designed to make the subject think he is drowning, and answer definitively: Is it illegal torture?

“I do believe he will be a truly nonpolitical, nonpartisan attorney general; that he will make his views very clear; and that, once he has the opportunity to do the evaluation he believes he needs on waterboarding, he will be willing to come before the Judiciary Committee and express his views comprehensively and definitively,” said Sen. Dianne Feinstein of California, one of the six who voted with the majority for confirmation.

So when you watch the testimony you see she was suckered. The summary from Talking Points Memo:

Sen. Joe Biden (D-DE) said that he’d been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden – the Jack Bauer scenario – but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was “not simply a relative issue,” but there “is a statute where it is a relative issue,” he added, citing the Detainee Treatment Act. That law engages the “shocks the conscience” standard, he explained, and you have to “balance the value of doing something against the cost of doing it.”

What does “cost” mean, Biden wanted to know.

Mukasey said that was the wrong word. “I mean the heinousness of doing it, the cruelty of doing it, balanced against the value…. balanced against the information you might get.” Information “that couldn’t be used to save lives,” he explained, would be of less value.

The widely-read Digby is flabbergasted:

It’s really hard for me to believe that someone who used to be a federal judge can blow that sophistry in a congressional hearing with a straight face. If you don’t know what they know, then you can’t know in advance if what they know might save lives, right?

I honestly don’t know why everybody’s so hung up on waterboarding specifically at this point. If this is their legal understanding, then they can use the rack, they can break arms and legs and they can pull teeth out with a pair of pliers. There is no logical difference between any of that and waterboarding if the only moral and legal guideline is that “it might be used to save lives.”

Many Democrats felt they had already “won” by forcing out Alberto Gonzales. Diane Feinstein thought anyone would be more trustworthy. No.

And how can the legality of waterboarding depend on the circumstances? Marty Lederman discusses that here, and it boils down to this:

What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not “cruel treatment” under Common Article 3 (even though it is, by Mukasey’s own lights, “cruel” – go figure). Therefore the only question, in their view, is whether it shocks the conscience under the Due Process Clause. A careful parsing of Mukasey’s letter confirms this: Mukasey did not write that whether waterboarding is torture depends on the circumstances; instead, he wrote that there are circumstances where “current law” would (and would not) prohibit waterboarding.

Mukasey apparently has concluded that the Office of Legal Council was correct that waterboarding is not torture because it does not entail physical suffering of “extended duration or persistence” (an untenable theory I discuss here).

And that’s where we are. And the debates are a diversion.

And there was one other item the day of the first debate, this little news nugget:

President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq that Congress passed as part of a new defense bill.

… One section Bush targeted created a statute that forbids spending taxpayer money “to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq” or “to exercise United States control of the oil resources of Iraq.”

The Bush administration is negotiating a long-term agreement with Iraqi Prime Minister Nouri al-Maliki. The agreement is to include the basing of US troops in Iraq after 2008, as well as security guarantees and other economic and political ties between the United States and Iraq.

Kevin Drum with a quick analysis:

As recently as a year ago the White House at least acknowledged that Congress had the power to defund military activities if it wished. In fact, their argument, essentially, was that funding was pretty much the only power Congress had over military and foreign policy. Now, apparently, they think Congress doesn’t even have that.

None of this will come up in the debates. There aren’t enough Ron Paul types to go around. But there are bigger issues.


30 January 2008 - The Republican Debate


Photo: E.M. Pio-Roda © 2008 Cable News Network. A Time Warner Company. All Rights Reserved.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in CIA, Hardball Politics, Nasty Politics, Power Struggles, Presidential Hopefuls, Press Notes, The Law, Torture. Bookmark the permalink.

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