Monica Lewinsky - The Butterfly and the Hurricane

My wife was telling me about the final episode of the The Tonight Show with Jay Leno. During his final monologue, Jay thanked, among other people, Monica Lewinsky. After all, she gave him a lot of material.

Jay's reference reminded me of the famous postulation that "a butterfly flapping its wings can result in a hurricane on the other side of the world." Not to excuse President Clinton for his inexcuseably self-indulgent and juvenile behavior, Monica Lewinsky really was the butterfly that generated a hurricane.

Think about it. Monica "does" President Clinton, tells a friend, and holds on to her stained blue dress. These actions result in a Republican attempt to impeach president Clinton, candidate Gore thinking that he needed to distance himself from a popular incumbant, "Clinton fatigue" - I sure felt it, the election of President Bush instead of Al Gore (who should have been a lock), Bush (and Cheney) being in office during and after 9/11 instead of President Gore, illegal spying, a falsified case for invading Iraq, an American torture program, thousands of dead Americans and hundreds of thousands of dead and/or displaced Iraqis, further financial deregulation, a refusal to rein in overly risky mortgage lending, financial collapse . . .

Let's face it. A lot can happen from flapping one's wings (or other apendages).

Be careful out there people.

Joe H.

Wow!

What We Have Here is a Failure to Argue

I've often encountered students who, during a debate on a moral issue, would raise their hands and then say "I'd argue that . . ." followed by a statement of their opinion. "I'd argue that abortion is always wrong" or "I'd argue that people shouldn't eat meat" or something similar.

When my students did this, my response was always the same. I'd say . . .

"Go ahead."

Most of the time the student would just sit there staring at me, having no idea why I'd said what I just said. I'd then point out that simply saying that you "would argue" that a particular belief is true is not actually arguing that the particular belief is true. I'd tell the student that he or she was merely asserting that a belief is true, while replacing the word "believe" or "claim" with "argue." I'd explain that this rhetorical trick makes an assertion seem like an argument, and even convinces many people that they are arguing, but that such people simply are not
arguing.

I'd further explain that an argument always contains (at least) two propositions. Arguments always have a conclusion, which is the proposition that is supposed to be accepted as a result of the argument's force, and a premise which provides the reason for accepting a conclusion.

I'd then repeat my earlier instruction. "Go ahead."


In this article, Jonathan Chait makes pretty short work of the state of anti gay-marriage argumentation. He points out that the statement "I believe marriage should be between a man and a women" is a version of the "I'd argue . . ." non-argument. His analysis comes to the following excerpt, which I think is dead on.

"The line 'I believe that marriage should be between a man and a woman' is an expression of that sensibility--a reflection of unease rather than principle. As people face up to the fact that opposing gay marriage means disregarding the happiness of the people most directly (or even solely) affected by it, most of us come around. Good ideas don't always defeat bad ideas, but they usually, over time, defeat non-ideas."

Well said.

Joe H.

Ricci v. New Haven and Judicial Activism. UPDATE BELOW

Judge Sotomayor has been taking heat for being a "judicial activist" who will allow her racial and gender identity to influence her decisions - instead of the law. Exhibit "1" is her decision in Ricci v New Haven where she rejected the appeal of a fire fighter who claimed that the city of New Haven intentionally discriminated against him by discarding the results of a written test for promotion. New Haven rejected the written test because white fire fighters performed systematically higher on the test than fire fighters of other races.

What the detractors leave out is any analysis regarding whether her decision was correct?

Under Title VII, there are two ways an employer can discriminate against a member of a protected class regarding promotions. They can deny someone a promotion based on their membership in a protected class, or they can employ a promotion criteria that systematically disadvantages members of a protected class. The second method is called "disparate impact" discrimination. Under Title VII, employers are liable for discrimination if they employ promotion criteria that have a disparate impact on members of a protected class, unless they can also demonstrate that the promotion criterion addresses an essential aspect of job performance.

If a case were to be litigated, the plaintiff would have the initial burden of proving by a "preponderance of the evidence" - meaning "its more likely than not" - that the promotion criterion had a disparate impact on members of a protected class, including the plaintiff himself. If a plaintiff meets this burden, the burden shifts to the employer, who must articulate a non-discriminatory performance based reason for employing the promotion criteria. If the employer fails, it loses and is liable for discrimination.

If the employer succeeds, the burden shifts back to the plaintiff to show that the promotion criteria is unrelated to an essential aspect of job performance. If the employee succeeds, he or she wins and the employer is liable. If the employee fails, he or she loses and the employer is not liable.

The key point to keep in mind with regards to "disparate impact discrimination" is that it does not require the employer's intent to discriminate. The law places a duty on employers to insure that its promotion criteria relate directly to job performance. An employer does not have to intend to discriminate. It is liable under Title VII, if its promotion criterion has a non performance related disparate impact on members of a protected class.

In the Ricci v. New Haven case, the written promotions test had a disparate impact on blacks and Latinos (they didn't perform as well on the test as whites did). The City of New Haven, undoubtedly on the advice of counsel, decided to scrap the test results because it worried that relying on the written promotion test would violate Title VII.

Fire fighter Ricci (who scored well on the test) sued the City of New Haven. He alleged that New Haven intentionally discriminated against him by disregarding the test results that would have resulted in his being promoted. The Federal District Court ruled against Ricci and the 2nd Circuit Court of Appeals, including Judge Sotomayor, affirmed the District Court's ruling. The courts held that the City of New Haven did not discriminate against Ricci. The City simply followed established law on disparate impact discrimination.

People may disagree with disparate impact discrimination law. But it is and was the law (and will be the law until the Supreme Court changes it). Judge Sotomayor followed established precedent in rendering her decision. The race of the plaintiff (or the other firefighters), or her personal agendas, had nothing to do with her decision.

Honestly. If this is exhibit "1" against Judge Sotomayor, her opponents are in serious trouble.

Joe H.

UPDATE: Sometimes people who are trying to pursue an idelogical agenda get lost in a circle of argument. In this single op-ed, Charles Krauthammer (1) criticizes the liberal idea that "empathy" has any legitimate role to play in judicial decision making; and (2) criticizes Judge Sotomayor's decision in Ricci v. New Haven, based in part on how unfair that decison was to Ricci (who had worked hard to overcome a learning disability).

I think this contradiction illustrates the virtue of dispassionate reason.

Judge Made Law

I'm noticing that President Obama's nominee to the Supreme Court, The Honorable Sonia Sotomayor, is getting flack from conservatives for her comments stating that appellate courts are where "policy" is made. Conservatives are criticizing her for thinking that appellate court judges "make law" as opposed to merely interpreting the law.

People who make such statements reveal a stunning ignorance about our legal system. Under our "common law" system of jurisprudence (created when William the Conqueror organized the disparate courts of feudal England into a single "common" court system), judges regularly make law in the act of interpreting existing law. Judges were making law in this manner hundreds of years before the English legislature ever existed.

Here's a simple example from a case I worked on when I clerked at an appellate court. A Hawaii statute required drivers to be "secured" by a seat belt. One day on Maui, a young woman wore her shoulder belt under her arm and across her abdomen, instead over her shoulder and across her chest, which is how the belt is designed to be worn. Apparently, the front of her dress was decorated with something that she didn't want the seat belt to smash. The police stopped her and ticketed her for failing to wear her belt "properly."

In the district court, the woman argued that nothing in the statute required her to be "properly secured" by the seat belt - the statute only required her to be "secured" and she was secured. The judge didn't buy her argument and she was convicted and fined.

She appealed. Her argument was, once again, straight forward and simple. The law did not require her to be "properly secured." It only required her to be "secured," and she was secured. She added that it was not up to the prosecutor and/or district court to rewrite the law to insert the word "properly" into the statute.

Our court sided with the woman. The Hawaii Intermediate Court of Appeals cited the legal principle known as "in pari materia" - which holds that if two statutes address an identical or a substantially similar issue, any differences in the statutory language is presumed to be intended by the legislature. The Court then noted that the statute requiring small children to be placed in car seats that are secured by seat belts contained the phrase "properly secured." The court concluded that, pursuant to the doctrine of in pari materia, the Court was required to construe the lack of the word "properly" in the adult seat belt law as an intentional legislative omission. Consequently, the Court reversed the district court's ruling, noting that "because we are not judicial activists, we decline the prosecution's invitation to insert the term 'properly' into the seat belt statute."

The Hawaii Supreme Court reversed the Intermediate Court of Appeals' decision noting that the clear intent of the legislature in enacting the seat belt law was to render crashes less deadly, and that by wearing the seat belt under one's arm, the force of any crash is transferred into the abdomen (where all the vital organ's are) instead of dispersed across the torso. They said the in pari materi doctrine did not apply because the clear intent of the legislature was evident from the legislative history of the statute.

But one of the Supremes dissented, declaring that our court had decided the case properly!

Granted, all this lawyering seems like a great waste of judicial resources. However, the point of the example is that the Hawaii Court of Appeals and the Hawaii Supreme Court made law when they interpreted the seat belt statute. They had no choice. There was no other way to decide the case. And by creating new law, each court did exactly what appellate courts are designed to do - fill in the legislative gaps with judge made law/policy.

The legislature, of course, was (and is) free to overturn either court's decision. But the idea that it is inappropriate for judges to make law or policy is silly. Conservatives who make such arguments are grossly ignorant. Conservative lawyers who make such arguments are completely dishonest.

Joe H.

An Enormous Difference

Although President Obama has backtracked somewhat on indefinite detention and the state secrets privilege - it is false to say that he is fully embracing Bush/Cheney policy. Andrew Sullivan put it very well when he wrote:

"The two fundamental issues many of us (by no means all on the "left") were concerned with - and it's hard to get more fundamental - were a) the use of torture, coercion and abuse against prisoners in violation of Geneva and the UN Convention and domestic law; and b) the claim that the power to detain indefinitely and torture - beyond all law and treaty - was vested solely in the executive branch, with no accountability or checks outside of elections.

These were, in my view, fundamental attacks on America - much more fundamental than the mass murder of 9/11. They were attacks on the core meaning of America, on American decency and values, and on the rule of law and constitutional balance. They gave the executive branch the power to coerce evidence and to avoid all accountability for such [coercion] [sic]. They allowed the president to torture an American citizen, Jose Padilla, into madness before he was allowed to stand trial (on charges that bore no relation to the original claims). This regime and its claims are now over, even as Cheney threatens to revive them in the future. For this shift, we should be glad. And Obama fulfilled that fundamental promise. He ended torture and he ended tyranny. That is no small change. Yes, the Bush administration, prodded by the courts and Congress and its own saner, calmer members, walked back some of this from 2004 onwards. But the clarity of Obama's decency and constitutionalism remains. It's what the last election was about for some of us."

I agree with these sentiments. Al Queda attacked American citizens. President Bush, and particularly Vice President Cheney, attacked America. They may not have meant to, but they clearly did. In doing what they did they revealed, with crystal clarity, that they did not understand what America is.

(And they got elected twice. Wow!)

Obama has disappointed me. Asserting "state secrets" to cover up past wrongdoing (torture and illegal spying), and threatening to withhold intelligence information from an ally in order to cover up CIA torture, are particularly troubling. So is Obama's reversal on indefinite detention - despite the fact that Obama promises to involve the judicial and legislative branches in any system of indefinite detention. Also troubling is Obama's unlawful refusal to investigate and/or prosecute Bush administration torture crimes.

These are very troubling steps taken by President Obama, particularly given that Obama campaigned against all of these practices. But they are not acts of torture or tyranny. Obama does not claim unreviewable tyrannical authority as "commander in chief" presiding over a war that will never end and a battlefield constituting the entire world.

And that is an enormous difference from the previous administration.

Joe H.

Proposition 8 is Affirmed

Today the California Supreme Court upheld Proposition 8, a voter initiative that overturned the California Supreme Court's ruling that required the State to grant marriage licenses to same sex couples.

The history of this dispute is as follows. The California Supreme Court held that, by enacting a system of civil unions for gay couples - unions that were functionally equivalent to marriage in terms of their legal benefits - California had implicitly acknowledged that same sex couples are in need of, and are entitled to, state recognition and support for their unions.

The Court further held that, because California had, by its own democratic processes, acknowledged that same sex couples are similarly situated to opposite sex couples with regards to their need for, and right to, state recognition and support for their unions, California had no justification for reserving the more prestigious institution of "marriage" to heterosexual couples. The Court explained that excluding same-sex couples from the institution of marriage stigmatized their unions. The Court further explained that, by its own implicit admission, California lacked any rational justification for stigmatizing same sex unions and that, based on a long history of case law, such stigmatization constituted a violation of the equal protection clause of the Fourteenth Amendment.

In response to the California Supreme Court's decision, the People of California, by a 52 to 48 margin, voted to amend their constitution to reserve the institution of Marriage for opposite sex couples. Today, the California Supreme Court upheld Proposition 8, but refused to nullify the approximately 18,000 same sex marriages that occurred during the interim.


On the whole, I think this was probably a good result. The legal reasoning for upholding the Proposition seemed sound. But more importantly, the proponents of gay marriage are already planning to put the issue back on California's ballot this year, and every year thereafter. Given the inexorable trend of public opinion, gay marriage is a fait accompli for California.

And once California turns, its all over.

As Andrew Sullivan reminds us, supporters of gay marriage can't hope to outspend the Mormon and Catholic Church, but they are sure to outlast them.

Joe H

In the Name of God! Go!

This Special comment from Kieth Olberman pretty much sums up my feelings on Dick Cheney.

And for anyone who thinks that waterboarding is not torture, watch here.

Why Not Just Kill Them?

Yesterday, President Obama proposed a legal scheme for "indefinite detention" of alleged terrorists. His argument, as I understand it, is that we are holding some people who, for one reason (torture) or another, cannot be convicted of a crime, but who are nonetheless "too dangerous" to release.

So here's where we stand. Some of the alleged terrorists will be tried in Federal Court and/or in Military Court Marshall proceedings. These are the individuals against whom the government has strong and untainted evidence - they are the individuals that the government knows it can convict pursuant to a fair process.

Other alleged terrorists will be tried by Obama's revived system of "Military Commissions." In these tribunals, the rules of evidence will be relaxed to allow hearsay testimony - testimony regarding what a (not present) third party allegedly told the witness about the defendant's actions or representations. Granted, the presiding judge has to be convinced that the testimony is "reliable." But the existing federal rules of evidence already contain exceptions for hearsay testimony derived from circumstances giving rise to the inference that the testimony is reliable. Compromising these carefully contemplated rules can only serve one purpose - to ensure convictions that cannot be obtained pursuant to a fair process.

Think about this for a minute. The hearsay exclusionary rule is premised on the Sixth Amendment right of the accused to confront all witnesses against them (hearsay constitues testimony from witnesses who cannot be confronted by cross examination). President Obama, in reviving the Military Commissions (which provide a fairer process than the commissions envisioned by the Bush Administration), is admitting that there are a class of detainees whom we cannot convict pursuant to rules that embody constitutional protections. His solution is to set up an alternative process that partially exchanges the rule of law (Sixth Amendment based protections) for the rule of men (the discretion of officials who ultimately answer to the executive himself) to insure that we convict these people.

Okay . . .

But now Obama has gone even further. He is claiming that there are some people that the government "knows" are dangerous, but whom it cannot convict even when the rules of process are relaxed below traditional constitutional standards. For these people we need a scheme of indefinite detention with only minimal process - a committee meets once in awhile to review its own previous determination that an individual is "dangerous" (not that they have actually committed any crime - just that they are "dangerous").

Wow!

I've got to tell you that I'm pretty tired of protesting that this kind of stuff is un American. I'm tired of hearing government officials arguing that we should set up different levels of process, the obvious purpose of which is to insure (in advance) that the government will prevail and that the executive will be allowed to detain and imprison anyone it wants, on its say so alone.

To hell with it. Forget half measures. The Fifth and Fourteenth Amendments to our constitution supposedly protect all persons falling under American jurisdiction from deprivation of "life, liberty, and Property" without "due process." If we're going to ignore (or manipulate) the "due process" requirement in so far as it protects liberty, why not ignore the due process requirement in so far as it protects against deprivations of life?

Shoot the bastards and be done with it!

Wait. I'm sorry. I misspoke. Our slogan should be "shoot those individuals whom the government claims are bastards, but only after they've received the level of process that guarantees that they will be officially convicted as bastards."

That's the American way.

Joe H.

Conundrums for Pro-Choicers?

I used to tell my Philosophy 101 students that they shouldn't allow themselves to become too agitated by professors who criticize their traditional worldviews (remember, I taught in Salt Lake City, Utah). I would remind them that, in the end, there is no air tight cosmology - all cosmologies can be criticised effectively. In the end, the only philosophical school that seems perfectly defensible is skepticism and, as a general practice, Philosopher's essentially ignore the skeptics (because we can't answer them).

In that spirit, I'd like to acknowledge that many pro-choice proponents (the people who favor keeping abortions legal) face a conundrum similar to the one faced by pro-lifers (the people who want to criminalize abortion, or prevent abortions from being performed). A good many of those folks say that they could never have an abortion personally. When pressed to explain why, many concede that they think (they usually say "feel") that "abortion involves killing another human being."

They perceive that their disagreement with pro-lifers is over their unwillingness to force their beliefs on others. They reason that it should be the woman herself who decides, in consultation with her physician, not outsiders.

But that makes no sense at all. If you would never have an abortion because you think it amounts to the murder (wrongful killing) of your child, it is pretty clear that you also think that that the choice to have an abortion is an utterly illegitimate choice. No one should be free to chose to murder somebody else, no matter where they are located. And we have never been squeamish about imposing this view on dissenters. To the contrary, we enforce this view with the harshest social sanctions imaginable (capital punishment in many jurisdictions).

It will not do to say that one personally opposes abortion because it involves killing another person, but others should be free to make that choice for themselves.

And thus, it turns out that there are conundrums on both sides of this issue.

Any thoughts?

Joe H.

BTW, a version of this confusion has been exploited by torture partisans who argue that we shouldn't criminalize "policy differences." Legitimate policy differences only include those acts or policies that we have not already criminalized.

Abortion and the Term "Human Being"

Some people believe that the abortion question can be decided by an appeal to straight forward syllogisms. They believe that such syllogisms employ simple moral and factual propositions that are expressed in clear and generally accepted terminology, and thereby render their pro-life conclusions irresistible. For example:

1. It is morally impermissible for human beings to kill other human beings (without justification);

2. By definition, a living human entity, pre-natal or post-natal, is a human being;

3. Abortion is a method of killing a human being - Abortion kills a human being;

Therefore;

4. It is morally impermissible to abort a living fetal entity (without justification).

This argument appears to be straight forward and compelling. But it is not. It is instead an example of the logical fallacy known as "begging the question" (or "circular reasoning").

"Begging the question" means "assuming what you're allegedly proving." If I argue that "everyone can't be famous, because everyone can't be well known," I'm uttering what sounds like a reasonable argument. But in reality, I'm saying that "everyone can't be famous, because everyone can't be famous (i.e., well known)." My premise (or reason for accepting the conclusion) is the conclusion itself, expressed differently.

Similarly, if I argue, "I met an angel last night" and then, when I am challenged, reply "he told me he was an angel and angels don't lie," I'm assuming (that it was an angel that I saw) in my argument that allegedly proves that it was an angel.


The test for determining whether an argument "begs the question" involves two steps:

(1) Identifying the question that is in dispute; then

(2) Looking to see if the answer an argument is defending (as its conclusion) is also one of the argument's premises.

Regarding step one, the pro-life vs pro-choice dispute is fundamentally about whether (or when) fetal life and post-fetal life share a comparable moral status. It is, after all, a person's moral status that anchors the moral prohibition against killing him. If (or when) fetal life and post-fetal life share the same moral status, killing either will be equally wrong.

So, the question in the abortion debate is, "when does fetal life have the same moral status as a post-natal life? Hard line anti-abortionists answer "at the moment of conception." Most pro-choice proponents answer "at some later point in the fetus' development, but long before birth." Hard line pro-choice proponents answer "as long as the fetus is in the womb."

(I consider myself to be non-hard line pro-choice).

Now that we know what the question is, we can check to see if the differing answers that the parties give to the question appear as one of their premises.

Pro-choice proponents cite what they say is a morally relevant distinction. They say that the non-existence of a “someone” in the earlier stages of fetal development, and the presence (or possible presence) of a “someone” in the latter stages of fetal development, provide grounds for drawing a moral distinction. Their argument is very simple. “No someone, no victim, no harm” on the one had, versus "someone, victim, harm," on the other.

Is this argument question begging? Not at all. Pro-choice proponents are not arguing that "the comparable moral status exists at some point after conception, because the comparable moral status exists at some point after conception." They're arguing that the feature that generates (or anchors) the prohibition against killing is our existence as a "someone," and that our existence as a "someone" does not occur until well after conception.

Note that I'm not saying that this argument is unassailable (although I think it is right). I'm saying that the argument is not question begging.

What about the pro-life argument?

The version we considered (above) goes as follows: (1) all human entities are “human beings"; (2) killing is a morally impermissible thing to do to another “human being"; (3) abortion is killing; therefore (4) abortion is a morally impermissible thing to do.

Is this argument question begging? Absolutely. Premise (1) lumps all human entities into a single category - "human being." Premise (2) assigns all members of that category the same moral status. The problem is that premise (2) assigns the same moral status to all of the members of the category "human being" without any argument whatsoever. The pro-life argument collapsed (or ignored) the key distinction that their pro-choice counterparts developed (and relied upon) without providing any explanation or argument as to why this distinction should be ignored. The pro-life argument, thus, works by obfuscation and sleight of hand. It simply ignores the distinction advanced by the pro-choicers without mentioning that it is ignoring that distinction.

By lumping all human entities together under the ambiguous term "human being," the pro-life argument imports the premise that all human entities have a comparable moral status. But, if you'll recall, the question in dispute (expressed a bit differently) was whether or not all human entities have an equal moral status (pro-life "yes . . . abortion is impermissible," pro-choice "no . . . abortion is permissible"). By embedding the "yes" answer within the argument's premises, the pro-life proponents "begged the question."


In short, Pro-lifers have been challenged to prove that all human entities (from zygotes to adults humans) share the same moral status. They cannot do so simply by embedding their "yes" answer as an implicit premise of a simple syllogism. They need to discredit the distinction drawn by pro-choice proponents between a human entity prior to the existence of a “someone,” and a human entity after a “someone” has emerged. If that distinction is irrelevant or misguided, they need to explain why.

So far, they have not done so (IMO). And it will be very difficult for them to do, given that the "someone" aspect of our existence is the part that we value.

Joe H.

Obama at Notre Dame

A number of prominent bloggers and commentators concluded that Obama routed his detractors, politically at least, by refusing to allow social conservatives to co-opt him as an opponent in a renewed culture war. In his speech, Obama called for fair-mindedness, mutual understanding and respect. He also displayed significant respect for the Catholic Church and its teachings. In doing these things, Obama, as E.J. Dionne explained, strengthened the forces of moderation inside the Church, while increasing his political popularity among the faithful.

Fair enough. However, if you believe what the hardliners do, i.e., that fetal life enjoys the same moral status as every other human being at every stage of its development, then the most Obama can do is make them "appear" unreasonable. The hardliners can rest assured that they were not being unreasonable at all. If anything, they were being far too passive and tolerant.

People in the right to life camp face a pretty serious conundrum, which is illustrated by the following hypothetical. Suppose someone told you that inside a particular building, adults were grabbing two-year olds, one at a time, and killing them. Suppose further that when you asked the person, "did you call the police?" the person replied "it turns out that the U.S. Supreme Court overturned all of the laws nationwide prohibiting the killing of anyone two-years old or less - what the adults are doing is perfectly legal." Suppose that the person then picks up two shotguns, throws one to you and says, "I don't care what the law says, I'm gonna put a stop to this. I'll give them a chance to stop without shooting, but I'll shoot if I have to. Are you with me?"

There's absolutely no doubt that I'd be with him. It would be cowardly of me not to take decisive action, even if it required violence, to put a stop to the slaughter. And if anyone criticized me, which is almost unimaginable, it wouldn't faze me in the least. Nor should it. In fact, I'd deserve severe criticism if I failed or refused to act and allowed the killing to continue. And if I had to shoot to get them to stop, so be it.

Agree?

Of course you do!

(For the record, I don't count pacifists among the cowardly - there's is a principled stand that most of us, thankfully, reject).

But if you agree, and if the moral insight and the logic of its application are sound in the case of two-year olds, and you add the additional premise that fetal life at all stages shares the exact same moral status as a two year old - which is precisely what pro-lifers say they believe - then . . .

By the way, Philosophers call this form of argument "reductio ad absurdum." The idea is to accept your opponent's premise and then show how its implications are unacceptable. Most people who are confronted with a successful reductio argument reconsider the premises they are relying on. In this case, I've proven that the core pro-life premise implies that Pro-lifers who do not violently confront abortion providers (or find some other way to stop them immediately) are acting cowardly, given what they say they believe.

However, what I think I've really proven is that they don't really believe that premise - they only think they do.

Any thoughts?

Joe H.

I'll Sign My Name

I endorse every word of this piece. Every word!

And if you can watch this clip and not conclude that the Obama administration needs to immediately open an investigation into the Bush administration's torture program then . . . well . . . I don't want to know you.

Joe. H

Cutting Through the Crap

It turns out that national security must sometimes yield to the rule of law. Some rules truly are more important than national security. There are lines that you just don't cross.

I wholeheartedly agree with Sullivan's take on the Jon Stewart's piece. It has the added virtue of being funny.

And what to make of Obama? The right worshipped Bush for a long time and he led them off a clift. The result is that many on the Right have gone stark raving mad!

I'm beginning to think Obama was a con man. Either that or a political coward who is being corrupted by his "handlers." I hope I'm wrong, but I also hope his worshipers keep their wits about them and their eyes wide open.

Joe H.

A Troubling Thought

I'm getting a little tired hearing that our practices of indefinite detentions, illegal spying, water boarding, running secret prisons outside the reach of the law, and so forth have created an "image problem" as Senator Lyndsey Graham recently put it. And yes, they are our practices - we, the people, are sovereign.

I think we need to come to grips with something important. America and Americans do not have an image problem.

AMERICA AND AMERICANS HAVE A CONDUCT PROBLEM!

Can you imagine anyone saying that an ordinary crimnal has an "image problem?" Of course not. Image is the least of criminal's problems and only a fool could fail to see this.

It frankly amazes me how infantile we are regarding our ability to critique ourselves as a nation. We can allow our government to do all sorts of horrible things and still think of ourselves as beacons of moral goodness, albeit with an "image problem." And God help the person who expresses shame for the actions of this country - no matter how heinous those actions might be. And Apologize? "You gotta be outta your mind!"

Proof of this? Senator Graham must call morally dispecable practices an "Image problem" to avoid offending his constituents.

This certainly raises the question of what kind of patriotism have we instilled? It seems awfully shrill and shallow to me.

Joe H.

Tortured to Justify A War!

Evidence is mounting that we tortured people not to get information about planned attacks. We tortured people to hide political lying. We tortured people to justify a war.

Wow, I really don't know what to say. I'm pretty stunned.

And the thing is, these reports come from credible sources, some of them conservative republicans (I say this not to make this a left right issue - I say this because many would like it to be precisly that so they can say that an investigation is a left wing which hunt).

Think of this for a minute. We tortured detainees to hide a political lie and launch an unnecessary war that cost hundreds of thousands of people their lives and hundreds of billions of tax payer dollars?

And Obama doesn't even want to investigate?

My God!

Joe H.

What Horrors Are They Hiding? UPDATE Below

This doesn't make much sense to me. Obama appears to be exposing our torture program to the light of public scrutiny. But he then threatens to withhold terrorism information from the British if their court reveals the details of our involvement in the torture of one of their citizens?

What could they be hiding? What could be worse then slicing the man's penis? Could some other country be involved? The British Supreme Court doesn't seem to think any vital intelligence is at stake. So why the threat to cut off intelligence? Why the attempt to intimidate and/or scare the British judiciary (which is independent and can't be controlled directly).

I'm going to let this speak for itself. I'll just add that Obama has apparently lost his soul.

Bush has the last laugh. He takes Obama down with him. His corruption was so thorough it created realities that force Obama to act lawlessly.

That doesn't excuse Obama, however.

Joe


UPDATE:

Wow! This legal brief is unbelievable. It reads like a Mob warning. "Pretty little intelligence operation you got there - be a shame if something should happen to it."

You can begin reading at page 6, starting with the paragraph that begins "It has come to the Attention of the United States Government." Its pretty short.

After reading this, there's no doubt in my mind that the Obama administration is trying to intimidate the independent British judiciary. The Obama administration (not the Bush administration)!

What kind of country am I living in?

There Coming to Take Me Away! Updated Below

Remember when you ran for president and we got on our knees and prayed to God that you would not be elected?

Well . . .

You were elected any how and then the days got worse and worse and now you see we've gone compeltely out of our minds!

And . . .

By the way, these comments were not made by some obscure right wing blogger. They were made by Representative Pete Sessions, a congressman from Texas who heads the National Republican Congressional Committee.

Here's the key paragraph.

"According to the New York Times, in an interview with the paper, Sessions said that the current administration wants to 'diminish employment and diminish stock prices" in a "divide and conquer" strategy that's part of a power grab. He added that Obama's plans are "intended to inflict damage and hardship on the free enterprise system, if not to kill it' and that, come the fall of 2010, voters may again yearn for a time when, under Republicans, 'many dreams were achieved.'"

Many dreams were achieved?

Wow! I thought it was illegal to smoke stuff that good.

Joe H.

UPDATE

During my "surfing lunch" (internet not ocean - which I can see from my downtown Honolulu sixteenth floor office, by the way) I found a more comprehensive account of the GOP lunacy. Enjoy!

You Can't Handle The Truth!

Three Cheers for Anonymous Liberal for this evolutionary history of our torture debate.

"This entire debate has progressed in an almost surreal way. For a long time, the Bush administration and its right wing apologists were in pure denial mode, claiming that the U.S. did not torture and conceding that torture was a bad thing ("what's a Code Red?"). After Abu Ghraib, the official line was that torture is against the law and these acts were the work of a few bad apples disobeying clear orders from above ("the men were specifically told that Private Santiago was not to be touched"). Eventually as the extent of the torture began to be reported, the Administration's apologists began to defend the concept of torturing terrorists in the abstract, while still not admitting to any specific conduct ("Private Santiago is dead and that is a tragedy, but he is dead because he had no code. He is dead because he had no honor, and God was watching.") With the release of the torture memos, however, we've now reached a whole new stage. Dick Cheney and his defenders are now in full on Jack Nicholson meltdown mode ("You have the luxury of not knowing what I know, that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. . . .you want me on that wall, you need me on that wall!"). I just hope we eventually get to the frog march stage ("You fuckin' people, you have no idea how to defend a nation. All you did was weaken a country today.")"

Out - blinking - standing!

Joe H.

Diagnosing The Republican's Problems

God I hope the GOP ingnores Anonynous Liberal's advice.

I really am a sucker for a clear explanation of the way things are, why they are the way they are, and what should be done about it.

Joe H.

Motive Versus Specific Intent?

Andrew McCarthy over at the National Review Online has torture apologists in a state of rapturious delight. He's argued that the Obama administration and proponents of prosecution of Bush administration officials are hypocrites because they share the OLC's lawyers' view that for an act to be torture under the Convention on Torture ("COT"), there has to be a "specific intent to torture."

McCarthy pointed out that the Obama administration has asserted this very same argument in court, and that the Third Circuit Court of Appeals upheld this view as the law. The Court held that a man resiting deportation to Haiti could not invoke the COT unless he could demonstrate that the government of the country he was being deported to had the specific intent to torture him. Mere knowledge that the government would treat him in a way that would result in his experiencing severe pain and suffering (in this case, by imprisoning him despite his serious illness, pursuant to its policy of imprisoning all repatriated ex-convicts) was not sufficient grounds to invoke the provisions of the COT.

Fair enough, but McCarthy continues to argue that this legal standard exhonerates Bush Administration officials because it requires them to have "evil motives" and they had no such motives (or cannot be shown to have had such motives). According to McCarthy, they needed to have specific intent to torture, but they had no such intent.

How much of this nonsense can we take? Lets go through it again.

McCarthy confuses motives with intent. Motives constitute the reasons for doing a particular thing. Intent has nothing to do with motive. You can do an act intentionally with a variety of motives.

Moreover, the law does not care about a person's motive. It only cares about a person's action and the degree of intentionality with which a person performs the action.

In the law, "specific intent" means that a person acted knowingly and volitionally in doing the act, as oppossed to recklessly or negligently. In order for a person to be guilty of torture pursuant to the COT, that person has to knowingly and volitionally torture someone.

So far so good.

The COT defines "torture" as "inflicting severe physical or mental pain or suffering." The case that McCarthy cites and excerpts in his post explains all of this. Go read it for yourself if you don't believe me.

So, the definition of "torture" pursuant to the COT and U.S. case law is "acting with the specific intent of inflicting severe physical or mental pain or suffering."

The question, therefore, is . . . did Bush administration officials act with the specific intention of inflicting severe phyisical or mental pain or sufferring?

Amazingly, McCarthy and other Bush Administration defenders think that they didn't.

Pardon me, but my understanding is that the "enhanced" techniques were designed and used to "break" the detainees - Vice President Cheney's term, not mine. And (I hope) its beyond dispute that these techniques were designed to create pain and suffering. That's how they work, after all.

Don't believe me? Hire a team of people to keep you awake for eleven straight days and see how you feel on day eleven. Have them strip you naked and high chain you in a 54 degree room for a good part of that time. You'll get the idea.

And, of course, you "break" a detainee by inflicting unbearable pain or suffering on him. That is, you torment him until he can't take it anymore and he provides you with the information that you want.

And wouldn't unbearable pain or suffering have to be "severe?"

For the love of God, already. Inflicting severe pain and suffering was the plan! Bush administration officials have admitted as much - "we're taking the gloves off" is the way they themselves described and boasted about their actions. The OLC lawyers were part of the plan to cover their asses - legally speaking. That makes them co-conspirators.

Am I missing something, or is this is really just a load of bullshit.

Come one guys, stop it already.

Joe H.

Breathtaking Card Check Lying

You've got to be a little amazed at how brazenly dishonest partisans can be. Take for example the oft repeated canard that the Employee Free Choice Act would take away "an employee's right to have a secret ballot" on the issue of forming a union.

Not only is that claim false, its a complete perversion of the actual state of the law. First of all, employees do not have the right to call for a secret ballot on the issue of forming a union. Yes, that's right, employees do not have that right.

Employers have that right. Under current law, if a majority of a firm's employees sign up to join a union, employers can insist on a secret ballot - an option they almost always take to buy time to convince their workers not to unionize. (I'll leave their methods of persuasion to your imagination, for now anyway).

The Employee Free Choice Act would take that right away from employers and give it to employees. It would allow employees to make the decision as to whether or not to have a secret ballot.

In other words, the EFCA would remove a big union busting club that employers currently have at their disposal. That's why businesses hate the proposal and unions love it.

Politicians who tell these kinds of breathtakenly brazen lies are nothing but shameless partisans who know they can't win the argument on the merits. The truth is simply irrelevant to them - they feel no obligation to it.

And truth be told, lying like this ultimately corrodes the soul. In fact, the fate of the national Republican party is, at least in part, a cautionary tale with regards to this sort of lying. I've followed politics for many years and one thing has always been clear - most of what Republicans wanted to do has never been popular and most of what they opposed was popular. And the Republican strategy has generally been simply to lie about what they were trying to do.

I could give you dozens of examples of this behavior, but the EFCA lie is illustrative. The Iraq war is also illustrative. Sarah Palin is an example of the ultimate fruit of habitual lying - lying to yourself.

It doesn't quite seem like they've learned their lesson. But what doth it profit a political party to beat back card check (for a year) but lose its soul?

By the way, I'm open to examples of political liars on the left, but they don't seem as prevalent. That's partly because there aren't too many people on the left to begin with.

Joe H.

Mindless Propoganda at the Washington Post

This Op-ed, by John R. Bolton, appeared today in the editorial section of the Washington Post. Mr. Bolton is concerned that President Obama is allowing the Spanish Magistrate Baltasar Garzón's investigation to become Obama's proxy prosecution of Bush administration officials. Bolton argues that this is a dangerous precedent - allowing foriegn governments to pass judgment on American officials acting in a time of war. Bolton further argues that, unless Obama exerts pressure on Spanish officials to shut down Garzon's investigation, and unless Obama unequivocally affirms the principle that our constitution reserves jurisdiction over our leaders to American law enforcement officials, he may find himself "hauled before the bar of some mini state" that subsequently decides civilian casualties in Afghanistan constitute a war crime.

You can tell that Bush era officials are desperate to avoid any legal determination that their actions were criminal. I can understand why they spew forth propoganda. But it is severe journalistic malfeasance for Fred Hiatt, the editorial editor of the Washington Post, to allow Mr. Bolton to intentionally misinform the country about what the law requires.

First, we are signatories to the Convention on Torture. The Convention was ratified by the United States Senate in 1988. The Convention grants U.S. officials, and subjects the same officials to, universal jurisdiction for prosecution of torture related crimes. Absolutely nothing in our constitution prohibits our government from committing our leaders to a scheme of universal jurisdiction under international law. Nothing!

Second, Garzón's investigation is not a rogue investigation. It is mandatory under the Convention if U.S. officials refuse to investigate and/or prosecute - as is the case here. It would be lawless for Spain not to investigate and/or prosecute our officials. Our government, and the governments of the other signatories to the Convention, are acting lawlessly in refusing to prosecute. Spain's government, by and through Magistrate Baltasar Garzón, is the only government living up to its treaty obligations.

Third, Bolton may be correct in warning that it sets a dangerous precedent to allow Spain to take the lead. Although Bolton's "mini-state" comment reveals his contempt for the rest of the world, Bolton's point is well taken. By allowing and perhaps encouraging the Spanish investigation, Obama is creating a precedent that might make it more difficult for future leaders to defend the country.

Unfortunately, Bolton wants no one to take the lead, because he wants no prosecutions at all - he says its wrong to "criminalize policy differences." Bolton instead wants Obama to lean on the Spanish to find a away to shut down Magistrate Garzón's investigation.

So, let me get this straight. A former ambassador to the United Nations pens an op-ed that: (1) misinterprets our constitution; (2) ignores and omits well documented provisions of international law while suggesting that Spain is acting improperly(when Spain is the only nation acting properly); and (3)recommends that our President exert pressure on Spanish officials to unlawfully stop Magistrate Garzón's investigation.

Okay, fine. Bolton's propaganda serves a purpose. Not a noble purpose, but an understandable one.

But Fred Hiatt, who is well aware of our laws and responsibilities, allows this op-ed to be published in the Washington Post without any comment or response whatsoever. What purpose could that serve? How can he keep his job?

And for the last time, can someone call these people out on the "criminalize policy differences" argument. Certain actions constitute crimes. Criminally prohibited actions (like torture) are not legitimate policy choices. That's what "criminal" means. Congress criminalized torture a long time ago. Bush administration officials instituted torture as a policy. They chose to make criminal conduct their policy.


Imagine if our government instituted a policy of grabbing Iraqi toddlers and hurling them off over-passes onto crowded freeways (something that actually happened in our State last year). Would you, for one second, take them seriously when they, facing prosecution, claimed "you're criminalizing policy differences." Of course not, even they had a plausible reason to believe that such actions made America safer.

Enough already with the nonsense. I know its tough to defend the indefensible, but please!


Joe H.

Calling Out the GOP - And Know Nothing Christianism

Here's a money quote from Blogger Andrew Sullivan on the state of the National GOP.

"On most issues, I side with what used to be the center-right, but the GOP is poison to me and many others. Why? Their abandonment of limited government, their absurd spending under Bush, their contempt for civil liberties, their rigid mindset, their hostility to others, their worship of the executive branch, their contempt for judicial checks, their cluelessness with racial minorities and immigrants, their endorsement of torture as an American value, their homophobia, their know-nothing Christianism, and the sheer vileness of their leaders - from the dumb-as-a-post Steele to the brittle, money-grubbing cynic, Coulter and hollow, partisan neo-fascist Hannity."

I am, of course, far more liberal than Sullivan, so I don't side with the center right on most issues. Nevertheless, I found his description of the Modern GOP, and its cast of characters, spot on. If there is ever an institution that deserved to collapse on itself, the modern GOP is it.

However, its worth noting that, despite Sullivan's criticism of "know nothing Christianism," Sullivan is himself a Christian. In fact, Sullivan engaged in a rather interesting and spirited theism vs. atheism debate with noted atheist Sam Harris. You can read that debate here, if you're so inclined.


So, Sullivan draws a distinction between being a Christian (i.e., believing that Christianity is true and that other faiths are false) and "know nothing Christianism." If the distinction is in the "know nothing" part of the description (as in "know nothing" vs. "know something)," it would be important to ask, "know what?"

But the distinction might reside in Sullivan's understanding of "Christianism" (by which I take him to mean a fundamentalist state of Christian belief in which the believer is functionally incapable of doubt, regardless of the evidence, and feels entitled to have his Christian beliefs celebrated by the state and imposed into law).

Personally, I think it resides in both, but more in the distinction between "Christian" and "Christianism." Unfortunately, Sullivan's understanding of "Christianism" is a pretty good description of the majority of evangelicals.

Joe H.

Smelling Like a Rose?

It just occured to me that, for all the talk about prosecuting Vice President Cheney, there's an obvious problem with doing so. Cheny had no constitutional or legal authority to authorize anyone in the government to do anything. His giving orders to the CIA had exactly the same legal effect as my giving orders to the CIA.

None!

Now, it has been well documented that Cheney wielded enormous decision making power in the Bush administration - people actually did what he told them to do. And Cheney has admitted authorizing waterboarding on national T.V.

Moreover, we've prosecuted waterborading as torture a number of times, and President Obama has admitted that it constitute's torture.

But Cheney was legally powerless to authorize waterboardinig. Nobody had to do what he told them to do. Instead of admitting to the authoriziation, Cheney should have said "hey, I was only the vice president. I couldn't authorize anything."

Maybe he could be prosecuted for conspiracy, but I'm not confident of that. Unless President Bush officially delegated his authority to Cheney, Cheney might be in the clear.

Perhaps Cheney was Bush's agent?

Any thoughts?

Joe

Dark Night of the Soul - UPDATE

I think Gary Kamiya gets it exactly right in this article. We need to face ourselves, as a country, and confront what we became under the Bush administration. We need to face the fact that most of what we know about the Bush administration's crimes was known in 2004.

Joe H.

Andrew Sullivan, author of "The Conservative Soul" understands what this is all about just as well.

Boy I wish I could write (and think) like these guys.

How is This Possible?

Let me simply repeat myself. How is this possible?