how to talk about torture

and no, it has nothing to do with nancy pelosi or hillary clinton ...

hasselback:	what is your mind — i know your mind is, ah, pretty made up about waterboarding, correct? you were waterboarded part of, part of your navy seal training, correct?
ventura:	no, it wasn't part of navy seal training; it was part of what they call SERE school: survival, escape, resistance, evasion. it's, it's a school that they required you to go to prior to the combat zone in vietnam. and yes, we were all waterboarded there, and yes, it is torture.
hasselback:	what do you think about nancy pelosi in terms of what she has been claiming with the cia lying to and misleading congress ... ?
ventura:	i, i, what's worse is this: the fact that it happened. if, if we hadn't waterboarded to begin with, none of this would be a controversy, would it?
hasselback:	if we hadn't waterboarded ...
ventura:	and torture, wait — torture is torture. if you're going to be a country that follows the rule of law, which we are, torture is illegal.
hasselback:	but these were specifically approved techniques with ksm, okay ... ?
ventura:	approved by who ... ?
hasselback:	khalid sheik mohammed, the information we extracted from him before waterboarding was zip. afterward, he released the information ...
unidentifed:	no ...
ventura:	no, we got all of that before waterboarding.
unidentifed:	yes.
hasselback:	this was the case that was used three times ...
ventura:	the question is this: alright, wait a minute — if waterboarding is okay, then —
hasselback:	[to unidentified] do you want me to put you in a triple nelson?
ventura:	wait, wait, if waterboarding's okay, then why don't we let our police do it to suspects so that they can learn what they know?
	[applause]
hasselback:	i understand that question, i understand that question ...
ventura:	if waterboarding's okay, why didn't we waterboard mcveigh and nichols, the oklahoma city bombers, to find out if there were more people involved?
behar:	well, what's your answer to that? why didn't we? why didn't we?
ventura:	well, i don't know, but we only seem to waterboard muslims.
goldberg:	hmm ...
audience:	oohh ...
	[crosstalk]
ventura:	haa-ha, ha-ha! have we waterboarded anyone else? name me someone else we've waterboarded!
behar:	well, one of the things that's coming out now is that they were waterboarding them to get a connection between iraq and al qaeda. and that the reason they waterboarded was to get information out so they could justify the invasion of iraq.
hasselback:	what do you think is gonna happen now —
behar:	so how does that work into your theory of how great it is?
hasselback:	look, i'm not saying it's great. i'm not saying, okay everybody, let's all go next door and get waterboarded. i'm, i'm concerned right now about nancy pelosi, who was supposedly briefed on this thing —
goldberg:	she lied —
ventura:	okay, they want her out now, right? because she lied? well, why didn't they ask for bush, bush and cheney to go out when they lied about why we went into iraq?
	[applause]
hasselback:	senator clinton! senator clinton, hillary clinton was right there with them, as were many democrats ...
ventura:	the point is, nothing is gonna happen cause they're all involved. the dems and repubs are both involved. that's why president obama's backing off from it, and they're not gonna do it now. it's a good thing i'm not the president. i'm an independent. because i would prosecute the people who did it, i would prosecute the people who ordered it, and they would all go to jail.
	[applause]
hasselback:	well, wouldn't they prosecute president obama in the future going backwards when he ordered the killing of the somali pirates? i mean, you have to think about —
ventura:	no, because the somali pirates —
goldberg:	there's a lot of differences ...
ventura:	that's apples and oranges. you're not talking about someone in custody who is supposedly under — okay, how would we feel, look how outraged we were when waterboarding was done to our vets in vietnam. where do you think we learned that? and we created the hanoi hilton right in guantanamo. that's our hanoi hilton. people have died there, people are tortured there — i'm ashamed of my country.
hasselback:	people aren't basing all those, extremists are not basing their behaviors on us, i can guarantee that, they are —
ventura:	because — should we stoop to their level?
hasselback:	look, we have —
ventura:	no. we should be above that.
hasselback:	absolutely —
ventura:	torture is wrong.
	[applause]
hasselback:	torture is wrong, but enhanced interrogation is —
ventura:	"enhanced interrogation" is dick cheney changing a word. dick cheney comes up with a new word to cover his ass.
	[crosstalk]
goldberg:	new question! new question!
ventura:	i've said it before: you give me a waterboard, one hour and dick cheney and i'll have him confessing to the sharon tate murders.
unidentified:	yeah baby!
	[applause]

smith:

our chief fox report correspondent jonathan hunt is live with us. johnathan, republicans seemed to keep the pressure on the speaker throughout the weekend and certainly continuing into today.

hunt:

yes, absolutely, this is the political gift that keeps on giving for the republicans. instead of this debate being about national security, what is and isn’t torture, what the bush administration should and shouldn’t have allowed and whether anybody in that administration should now be prosecuted, they are, they, the republicans are now able to frame this debate as to whether nancy pelosi is fit to continue as speaker. so shep, they are not about to let their foot off the gas in any way, shape, or form right now.

what dick said

and, more importantly, what he didn't say ...

---

*mid-atlantic shredding services
  (see also: zelikow memo)

quote of the day

gonzalo boye, spanish human rights lawyer and co-plaintiff filing torture and war crimes charges against the bush white house:

if they are innocent, they shouldn’t be afraid.

a modest proposal

for a modest president of a modest nation, offered to firedoglake's jane hamsher by constitutional lawyer bruce fein:

jane:	... so, ah, george bush pardons everybody on the way out the door, there's a new president: what would you like to see happen in a new administration, in order to be able to look back, and i'm assuming that you're not one of the people who says "let bygones be bygones, let's all look forward" ... ?
bruce:	the first thing the president ought to do is announce that we don't have any war against international terrorism, that these are criminals, and we will treat them as criminals, we'll capture them as criminals, and try them, prosecute them, and punish them as criminals. second thing he should do is say "i don't have any power to detain americans as enemy combatants, ah, we either charge you with [a] crime or let you alone." third thing he'd say "i do not have any power to violate federal laws in gathering foreign intelligence. i can't commit torture, i can't violate fisa, i can't open your mail, except in accordance with what congress has prescribed." fourth thing he should say is "i'm not gonna invoke execute privilege and use secrecy to prevent you from knowing what i'm doing. absent weapons systems, my government will be transparent, and i'll make certain all my officials come and testify before congress. there may be need for executive sessions, if there's sensitive information, but i will not claim executive privilege and hide from congress anything." another thing that he should say is "i do not have authority to engage in extraordinary rendition. i can't go abroad and simply kidnap people, stick them in an interrogation chamber, torture them, dump them out without any political or legal recourses. and i won't do that. that is a formula for returning the world to a hobbesian state of nature, and authorizing other foreign governments to kidnap americans who might be sympathetic to some indigenous force, chechens in russia for instance, or tibetans in china. and the fifth thing he should say is "i'm shutting down the military commissions in guantanamo. all those people charged will be moved to civilian, ah, sector for trial consistent with due process, and all the guantanamo bay detainees will have a right to habeas corpus and i'm not detaining even non-citizens as enemy combatants. if i think i have evidence they've committed a crime, i prosecute them, otherwise, y'know, they can go back." and perhaps the most important thing — i don't have enough time to fully amplify on this idea — is to say "the united states of america chief, really cardinal mission, is to protect america and make it a more perfect union. we don't need and it doesn't make us safer to have a military footprint all over the globe. and i will work to eliminate all of our foreign troops abroad. defense will mean we'll have a defense against anyone who wants to attack us. if anyone attacks us, we'll incinerate them, but other than that, we, um, wish other people in the world happiness and freedom but we're not gonna sacrifice our men and women to protect the lives of people who have no loyalty, no taxes that pay to the united states, they're not u.s. citizens or who aren't involved in any way. we don't go abroad in search of dragons, as john quincy adams said in 1826, to project our power abroad. it's that, that craving for international stature and prestige that's caused disaster to the constitution of the united states," and i'd want to see a president of the united states say "that era is over." "now i'm a president of modesty. i don't want to leave my footprints in the sands of time based upon fighting wars and attempting to transform the world in our own image. we've got enough problems making ourselves a more perfect union, and i'm not gonna do something that i don't know how to do, and in any event, it's not up to me to risk men and women's lives for a people who owe no loyalty to the united states." that is what i'd like to see. now regards to the people who are outgoing? i'd want to say the president should announce that he certainly will open criminal investigations if there was wrongdoing in the prior administration, ah, and he's gonna make certain that and pledge that he would expect a succeeding administration after his to do the same, if his administration committed any wrongdoing. um, and so he's not gonna hold this administration up to any more immunity than he would grant a predecessor administration.
jane:	i hope we get that president.

scenes from an interrogation

where: not a dark, cold, clammy fetid hold deep in the bowels of a former soviet gulag. nor, for that matter, the bright, panelled, spacious chambers of the hague's international criminal court:

tom:	this story was made public by abc a few weeks ago. it claims that you, rice, tenet and others met in the white house to discuss different methods of "enhanced interrogation," is that correct?
ashcroft:	[angrily] correct? is what correct? is it correct that this story ran on abc? i don't know that. i don't know anything about it! is it a real story? when was this story, huh? huh?
tom:	um, early april, april 9th, i think ...
ashcroft:	[interrupting] you think? you think? you don't even know! next question!
tom:	the article says that you discussed "whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning"...
ashcroft:	i said, next question!

ashcroft:	no. no, [my position on torture] doesn't violate the geneva conventions. as for other laws, well, the u.s. is a party to the united nations convention against torture. and that convention, well, when we join a treaty like that we send it to the senate to be ratified, and when the senate ratifies they often add qualifiers, reservations, to the treaty which affect what exactly we follow. now, i don't have a copy of the convention in front of me ...
me:	[holding up my copy] i do! [boisterous applause and whistling from the audience] would you like to borrow it?
ashcroft:	[after a pause] uh, you keep a hold of it. now, as i was saying, i don't have it with me but i'm pretty sure it defines torture as something that leaves lasting scars or physical damage ...
student:	liar! you liar! [the student is shushed by the audience]
ashcroft:	so no, waterboarding does not violate international law.

me:	first off, mr. ashcroft, i'd like to apologize for the rudeness of some of my fellow students. it was uncalled for — we can disagree civilly, we don't need that. [round of applause from the audience, and ashcroft smiles] i have here in my hand two documents. one of them, you know, is the text of the united nations convention against torture, which, point of interest, says nothing about "lasting physical damage" ...
ashcroft:	[interrupting] do you have the senate reservations to it?
me:	no, i don't. do you happen to know what they are?
ashcroft:	[angrily] i don't have them memorized, no. i don't have time to go around memorizing random legal facts. i just don't want these people in the audience to go away saying, "he was wrong, she had the proof right in her hand!" because that's not true. it's a lie. if you don't have the reservations, you don't have anything. now, if you want to bring them another time, we can talk, but ...
me:	actually, mr. ashcroft, my question was about this other document. [laughter and applause] this other document is a section from the judgment of the tokyo war tribunal. after wwii, the tokyo tribunal was basically the nuremberg trials for japan. many japanese leaders were put on trial for war crimes and crimes against humanity, including torture. and among the tortures listed was the "water treatment," which we nowadays call waterboarding...
ashcroft:	[interrupting] this is a speech, not a question. i don't mind, but it's not a question.
me:	it will be, sir, just give me a moment. the judgment describes this water treatment, and i quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." one man, yukio asano, was sentenced to fifteen years hard labor by the allies for waterboarding american troops to obtain information. since yukio asano was trying to get information to help defend his country — exactly what you, mr. ashcroft, say is acceptible for americans to do — do you believe that his sentence was unjust? [boisterous applause and shouts of "good question!"]
ashcroft:	[angrily] now, listen here. you're comparing apples and oranges, apples and oranges. we don't do anything like what you described.
me:	i'm sorry, i was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat ...
ashcroft:	[interrupting, red-faced, shouting] pouring! pouring! did you hear what she said? "putting a cloth over someone's face and pouring water on them." that's not what you said before! read that again, what you said before!
me:	sir, other reports of the time say ...
ashcroft:	[shouting] read what you said before! [cries of "answer her fucking question!" from the audience] read it!
me:	[firmly] mr. ashcroft, please answer the question.
ashcroft:	[shouting] read it back!
me:	"the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."
ashcroft:	[shouting] you hear that? you hear it? "forced!" if you can't tell the difference between forcing and pouring ... does this college have an anatomy class? if you can't tell the difference between forcing and pouring ...
me:	[firmly and loudly] mr. ashcroft, do you believe that yukio asano's sentence was unjust? answer the question. [pause]
ashcroft:	[more restrained] it's not a fair question; there's no comparison. next question! [loud chorus of boos from the audience]

why jack bauer always gets his man

now i know justice antonin scalia has a great love for theatrics, but his recent use of a fictional tv character, tough guy government agent jack bauer of the popular series 24 (which i will disclose that i've never watched), to enthusicastically bolster his justification for torture as a crime-fighting tool, has left me wondering if the good judge has any sense at all of the profound irony he's just fallen victim to. (though in the classic use of irony the victim is always oblivious to his predicament — irony is the writer's gift to the reader.)

in fact, if i may allow myself to appropriate a tv personality of my own, it was the daily show's host jon stewart who remarked, in his report on the graceless exit of former deputy secretary of state randall tobias, a casualty of this spring's dc madam scandal, that "there is nothing the administration can do that is not ironic."

the globe and mail: senior judges from north america and europe were in the midst of a panel discussion about torture and terrorism law, when a canadian judge's passing remark — "thankfully, security agencies in all our countries do not subscribe to the mantra 'what would jack bauer do?'" — got the legal bulldog in judge scalia barking. the conservative jurist stuck up for agent bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "jack bauer saved los angeles. ... he saved hundreds of thousands of lives," judge scalia said. then, recalling season 2, where the agent's rough interrogation tactics saved california from a terrorist nuke, the supreme court judge etched a line in the sand. "are you going to convict jack bauer?" judge scalia challenged his fellow judges. "say that criminal law is against him? 'you have the right to a jury trial?' is any jury going to convict jack bauer? i don't think so. "so the question is really whether we believe in these absolutes. and ought we believe in these absolutes."

what should disturb everyone is that scalia takes import from the fact that jack bauer wins. jack bauer always gets his man. he saved california, fer chrissakes!!! and jack wins because he's willing to torture. it is of course the classic "ends justifies the means" argument, and disappointingly, not a particularly sophisticated example, considering that its source is supposed to be one of the smartest jurists in the country.

but how can scalia credit jack's willingness to torture for jack's success when the reality is that — and here is where the irony i so subtly foreshadowed kicks in — as a fictional character, jack's success or failure has absolutely nothing to do with the merits of anything he does but instead depends entirely on the desires of his scriptwriters!

the reality is that jack bauer has never saved anything or anybody. he's not real. bauer wins because the scriptwriters want him to. likewise, torture works only because the scriptwriters want it to.

in america's fight against terrorists, we don't need jack bauer. what this country needs are his scriptwriters.

torture has perhaps saved some at the expense of honour, by uncovering 30 bombs. but at the same time it has created 50 new terrorists. — albert camus

torture logic

if anyone is still a little puzzled why president bush has invested so much of his waning political capital into an end run around the geneva convention, it's not just to save himself the cost of a trip to the hague, although that alone would certainly be reason enough.

juan cole relates a most enlightening lecture delivered by former uk ambassador to uzbekistan craig murray at a recent academic symposium on central eurasia:

the bush administration has been about "the greater middle east" (including central asia). it has been about basing rights in those areas. it says it is fighting a "war on terror" that is unlike past wars and may go on for decades. it has been about rounding up and torturing large numbers of iraqis, afghans and others. this region has most of the world's proven oil and gas reserves. why is the bush administration so attached to torturing people that it would pressure a supine congress into raping the us constitution by explicitly permitting some torture techniques and abolishing habeas corpus for certain categories of prisoners? ... boys and girls, it is because torture is what provides evidence for large important networks of terrorists where there aren't really any, or aren't very many, or aren't enough to justify 800 military bases and a $500 billion military budget.

boys and girls, is there any doubt that when this chapter of american history has been committed to ink that it will catalogue the war on terror with the spanish inquistion and the salem witch trials?

wwjd?*

josh marshall:

if you were to pick the single greatest hypocrisy of the bush presidency, wouldn't it have to be this: that the man who ostentatiously claims jesus as his favorite philosopher (he of "do unto others as ye would have them do unto you" fame) would say, in all seriousness, "common article iii says that there will be no outrages upon human dignity. it's very vague. what does that mean, 'outrages upon human dignity'?"

---

^* what would jesus do?

for the president's clarification

george w. bush, addressing the press in the white house rose garden:

this debate is occurring because of the supreme court's ruling that said that we must conduct ourselves under the common article iii of the geneva convention. and that common article iii says that there will be no outrages upon human dignity. it's very vague. what does that mean, "outrages upon human dignity"? that's a statement that is wide open to interpretation. and what i'm proposing is that there be clarity in the law so that our professionals will have no doubt that that which they are doing is legal. you know, it's — and so the piece of legislation i sent up there provides our professionals that which is needed to go forward.

the geneva convention, article 3, regarding the treatment of prisoners of war, in force since october 21, 1950:

in the case of armed conflict not of an international character occurring in the territory of one of the high contracting parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. to this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. the wounded and sick shall be collected and cared for. an impartial humanitarian body, such as the international committee of the red cross, may offer its services to the parties to the conflict. the parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present convention. the application of the preceding provisions shall not affect the legal status of the parties to the conflict.

now tell us again, george — just what part is it that's "vague" and "wide open to interpretation"?

no, george, this "debate" is not occurring because of any wrist-slap from the supreme court. the geneva convention did not pass unmolested for more than a half century because no one noticed how pretty the plain and bespeckled old bird was. so too with the constitution and your craven efforts to play peeping tom on its citizens.

no, george, after spending your two terms shamelessly defiling both the convention and the constitution, your flabby virgin backside juts exposed to charges of war crimes and impeachment and you need your rubberstamping posse running congress (but running it for not too much longer) to cover your unsightly naked emperorship.

less than human

those who can make you believe absurdities, can make you commit atrocities. (voltaire)

even in an age of laser-guided precision instuments of mayhem, warfare still remains an untidy business. civilians still get slaughtered, exposing the slaughterers to bad press and, more inconvenient, the risk of legal sanction. just how can an honest warmonger do what he does best — mass murder — without all the headaches?

never fear, celebrity lawyer-pundit alan dershowitz is here! and he has just the solution you need when you can't — or won't — let pesky civilians hamstring your efforts to bomb your opponent into the stone age:

just redefine the term "civilian" — no purchase necessary!

... we need a new vocabulary to reflect the realities of modern warfare. a new phrase should be introduced into the reporting and analysis of current events in the middle east: "the continuum of civilianality." though cumbersome, this concept aptly captures the reality and nuance of warfare today and provides a more fair way to describe those who are killed, wounded and punished. ... the israeli army has given well-publicized notice to civilians to leave those areas of southern lebanon that have been turned into war zones. those who voluntarily remain behind have become complicit. some — those who cannot leave on their own — should be counted among the innocent victims. ... every civilian death is a tragedy, but some are more tragic than others.

it is epiphanies like these that honestly make me wonder if it is actually embarassing to be as brilliant as alan. i mean, this is so simple! no need to retool weapons or rethink strategies. (or — god forbid — question the legitimacy of the attacks!) just relabel the dead!

of course, a nonetheless elegant solution, even one as brilliant in its simplicity as this, can sometimes be a little too simple. as juan cole explains, does relabeling really go far enough?

alan "torture is ok" dershowitz is annoyed that the israelis have been accused of killing innocent civilians. he is now arguing that there are degrees of "civilianity." he wonders how many innocent civilians killed by israel in lebanon would still be innocent if we could make finer distinctions. (he should read the lebanese newspapers and he would get the answer. one third of those killed by the israelis are children. i'd guess they are all civilian all the time. and then there are the families, like the canadian women, children and men blown up at aitaroun. i suppose they are really civilians. etc.) but i don't know why dershowitz stops there. let me reformulate his argument for him. shouldn't we recognize degrees of humanness? after all, isn't that the real problem? that the enemy is considered a full human being in the law of war? that horrible supreme court judgment that hamdan had to be given a trial of some sort was based on the misunderstanding that he is a human being. israeli officials have already showed us how arabs can be reclassified away from a full "human" category that they clearly, in the view of the kadima government, do not deserve. for instance, israeli ambassador to the united nations dan gillerman angrily denounced kofi annan for neglecting this key fact. the guardian reports,' mr gillerman said "something very important was missing" from mr annan's speech: any mention of terrorism. hizbullah were "ruthless indiscriminate animals", he told reporters.' so you see, one reason that you can just bomb the hell out of the lebanese in general is that they aren't human beings at all. they are "animals." you might quibble that gillerman is only referring to members of the hizbullah party as animals, not all lebanese. but most shiite lebanese, some 45 percent of the population, support hizbullah. and the lebanese government, made up of christians, sunnis and druze, let hizbullah into the lebanese government and gave it cabinet posts. so probably those who tolerate hizbullah are at most half-human. this has yet to be worked out. it might be possible to declare them .66 animal. or maybe they are just all animals. they speak arabic, after all, right mr. gillerman? there is a problem with stopping here, however. it is not enough to reclassify some human beings as animals. after all, you have to treat animals humanely. you can even be fined for mistreating an animal, though probably you would not go to jail. the staff of us secretary of state condi rice has made a suggestion for another, more convenient level, that of snake. thus, a senior white house official referred to the massive israeli bombing campaign and destruction of lebanon's civilization and killing of hundreds and wounding of over a thousand as "defanging" hezbollah. i am pretty sure that language is meant to suggest that the shiites of lebanon, although apparently human beings, are actually snakes. i suppose it is possible that another sort of reptile is is intended, but i suspect that "snake" is the intended classification. but some snakes are protected species. we need a lower category. it is clear that some human beings are neither human nor animal. hamas and hizbullah members, for instance, are actually not even full organisms, just diseases. israeli deputy consul general for san francisco, omer caspi, said of the lebanese and palestinian publics concerning hamas and hizbullah members, "we say to them please remove this cancer off your body and soul before it is too late." caspi did not specify whether members of hamas are leukemia and those of hizbullah melanoma, or the reverse. the good thing about finding out that some apparent human beings don't have to be treated as well as whales (which have almost been wiped out) is that it allows us to put behind all wimpy hesitancy just to do what needs to be done. i mean, a cancer. everyone knows what you have to do with a cancer. it requires chemotherapy. it needs to be just exterminated, before it kills the snakes, animals and humans. so we have the human beings, like israeli prime minister ehud "bomb'em back to the stone age" olmert and torture defender, attorney alan dershowitz. then we have the animals, like the "persons" who vote for hizbullah and hamas. then we have the level of human-appearing snakes, who need to be "defanged," which apparently involves killing their wives and children with air strikes. then we have the cancers, who need to be "wiped out" immediately. i understand that president bush is appointing alan dershowitz to be head of the "human-non-human metrics" commission that will decide which people are full human beings, and which fall into other categories, such as "animal," "snake," and "cancer." it is rumored that that dershowitz intends to create a special category, of "cockroach," for the human-appearing creatures who dare to criticize him.

the not ready for prime time players

it's saturday night, so let's tune into the not-ready-for-prime-time players. but it's not the cast of nbc's saturday night live we'll be watching, though this season's replacements from washington d.c. — that tragicomic capital of calumny and calamity — should prove as entertaining as the originals, if nothing else. we should by now be used to nothing else.

as i forewarned in my post "elegy", the constitutional crisis facing the country can only be resolved by congress' resumption of its responsibilities to both its constituents and itself as a concrete bulwark against any encroachment on its powers and duties by either of the other two branches of government — in these circumstances, the encroachments of the bush administration against the nation's time-tested system of checks and balances.

as glenn greenwald argues with his characteristic clarity — and frustration — in his post "a new low — the senate seeks to 'pardon' the president for past lawbreaking", from which i excerpt liberally, the 109th congress, especially as represented by senate intelligence committee chair arlen specter, is not quite ready for prime time:

observing and commenting on the behavior of arlen specter is one of the most unpleasant obligations a person can have, but for anyone following the nsa eavesdropping scandal specifically, and the bush administration's abuses of executive power generally, it is a necessary evil. the principal reason that the bush administration has been able to impose its radical theories of lawbreaking on the country is because congress, with an unseemly eagerness, has permitted itself to be humiliated over and over by an administration which does not hide its contempt for the notion that congress has any role to play in limiting and checking the executive branch. and few people have more vividly illustrated that institutional debasement than arlen specter, who, along with pat roberts, has done more than anyone else to ensure that congress completely relinquishes its constitutional powers to the president. congressional abdication is so uniquely damaging because the founders assumed that congress would naturally and instinctively resist encroachments by the executive, and the resulting institutional tension — the inevitable struggle for power between the branches — is what would preserve governmental balance and prevent true abuses of power. but for the last five years, congress has done the opposite of what the founders envisioned. they have meekly submitted to the almost total elimination of their role in our government and have quietly accepted consolidation of their powers in the president. if the congress is unmoved by their constitutional responsibilities, then at least basic human dignity ought to compel them to object to the administration's contempt for the laws they pass. after all, the laws which the administration claims it can ignore and has been breaking are their laws. the senate passed fisa by a vote of 95-1, and the mccain torture ban by a vote of 90-9, and it is those laws which the president is proclaiming he will simply ignore. and yet not only have they not objected, they have endorsed and even celebrated the president's claimed power to ignore the laws passed by congress. and that failure, more than anything else, is what has brought us to the real constitutional crisis we face as a result of having a president who claims the power to operate outside of, and above, the law. a bill proposed yesterday by arlen specter to resolve the nsa scandal — literally his fifth or sixth proposed bill on this subject in the last few months — would drag the congress to a new low of debasement. according to the washington post, specter has introduced a bill "that would give president bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the national security agency." this proposal is the very opposite of everything specter has saying for the last several months: specter's approach modifies his earlier position that the nsa eavesdropping program, which targets international telephone calls and e-mails in which one party is suspected of links to terrorists, must be subject to supervision by the secret court set up under the foreign intelligence surveillance act (fisa). a law which makes it "an option" — rather than a requirement — for the government to obtain a warrant before eavesdropping is about as meaningless of a law as can be imagined. but that complete change of heart by specter is not even nearly the most corrupt part of his proposed bill. for pure corruption and constitutional abdication, nothing could match this: another part of the specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law. the idea that the president's allies in congress would enact legislation which expressly shields government officials, including the president, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe. ... what makes this proposed amnesty so particularly indefensible is that specter himself has spent the last two months loudly complaining about the fact that he — along with the rest of the country — has been denied any information about how this illegal, secret eavesdropping has been conducted. has that power been abused? has it been exercised for political, rather than national security, reasons? before one even considers shielding those responsible for this lawbreaking from liability, wouldn't one have to at least know the answer to those questions? ... specter receives substantial criticism because of the flamboyant way in which he engages in what can only be described as sado-masochistic rituals with the administration. he pretends to exercise independence only to get beaten into extreme submission, and then returns eagerly for more. it is as unpleasant to watch as it is damaging to our country. but specter's unique psychological dramas should not obscure the fact that it is the entire congress which has failed in its responsibilities to take a stand against this president's lawbreaking and abuses, and there is plenty of blame to go around in both parties. the reason the president has been allowed to exert precisely the type of unrestrained power which the founders sought, first and foremost, to avoid, is because the congress has allowed him to.

update:

to glenn's further consternation, it looks like the post may have only imagined the heinous amnesty proposal in specter's bill:

before i wrote the post, i searched for the actual text of specter's bill in order to read it myself, but could not find it (specter's website is one of the worst sites for any senator, as it is usually a month or more behind). as a result, my post ... was based upon the post's reporting about specter's bill, rather than my own reading of it. i have now had a chance to review the actual text of specter's bill and cannot find any basis for the post's claim that it contains an amensty [sic] provision for past violations of the law. ... there is simply nothing in it which supports the post's report.

glenn had good cause to be cautious — this wasn't the first time that the post bungled the reading of the ever-multiplying proposals spawning from the senate intelligence committee:

before i wrote the post on friday, i was very reluctant to post anything about specter's bill in reliance on the report of the washington post. that's because the post previously published a front-page article about another fisa-related bill, this one proposed by sen. michael dewine, which was completely inaccurate about what the bill actually provided — not with regard to minor details of the bill, but with regard to its fundamental provisions. this is what happened. on march 17, the post published a front-page article by charles babington regarding the proposed legislation introduced by dewine (co-sponsored by sens. snowe, hagel, and graham), which was offered by those senators as the "compromise" solution when the republicans on the senate intelligence committee refused to hold hearings to investigate the nsa warrantless eavesdropping program. the post article falsely depicted this gop bill as vesting oversight power in the congress to stop warrantless eavesdropping, even though the bill provided nothing of the kind. specifically, the post article claimed — erroneously — that the bill would allow the administration to engage in warrantless eavesdropping only if a newly formed senate intelligence subcommittee approves of the program's renewal every 45 days. in fact, the legislation provided nothing of the sort. it gave no power whatsoever to any senate committee to approve or disapprove of warrantless eavesdropping. contrary to the post's front-page claim, that legislation would have vested no power whatsoever in the congress (or the courts) to stop the warrantless eavesdropping. it merely required that the administration "brief" the subcommittee, but the subcommittee (along with everyone else) would be completely powerless under that bill to stop the administration from engaging in warrantless eavesdropping. on that day, i first read the post article about this proposed legislation, but then found the legislation itself and read it. it was very clear that the post was simply wrong in what it told its readers on its front page about this significant legislation — wrong about the legislation's fundamentals.

the architects of human destiny

dreams die hard when you're a neocon. it's just that the rest of us do the suffering.

in francis fukuyama's recent eulogy to neoconservatism, the newly repentant and newly retired acolyte laments that "the idealistic effort to use american power to promote democracy and human rights abroad that may suffer the greatest setback." "The problem with neoconservatism's agenda," he has come to realize, "lies not in its ends, which are as american as apple pie, but rather in the overmilitarized means by which it has sought to accomplish them."

it would be snide to suggest that fukuyama and his shadowy braintrust neither appreciated nor calculated, in their machiavellian way, the negative consequences of unleashing upon the planet yet another series of ideological wars, with their attendant destruction, mayhem, atrocities and moments of brazen television horror.

nonetheless we are forced to wonder if they also anticipated the renunciation of long-established international legal norms, the kidnappings, the secret gulags, the extra-legal detentions and last but never least the torture. did the constriction at home of civil freedoms that are "as american as apple pie" in order to expand them abroad enter into their cold calculus? how much of the neocons' original thought went into the actual implementation of american strategic policy, the so called "bush doctrine"?

while we may not know for decades the bush administration's real goal for intervention in the middle east, for the sake of this discussion let us temporarily put aside dark murmurs of oil and schemes of american hegemony. let us for the time being grant the administration its stated mission of furthering the development of freedom and democracy across the globe, even so far as to grant the terms "freedom" and "democracy" with the best possible meanings and all the visible blessings that go with them. are not these goals in themselves worth the price?

"imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death one tiny creature — that baby beating its breast with its fist, for instance — and to found that edifice on its unavenged tears, would you consent to be the architect on those conditions?" — fyodor dostoevsky, the brothers karamazov, 1880

in the 2001 action film swordfish, john travolta's super-slick and super-glib super-spook starkly justifies himself by citing the classic theologic defense of god's apparent tolerance of evil, which defines evil as a necessary means towards a greater good. his character's name suggests, despite the hellish and high-casualty havok his plots unleash, that gabriel the spook, like his namesake the archangel, is in the service of a force for benevolence:

"[you're] not lookin' at the big picture, stan. here's a scenario: you have the power to cure all the world's diseases but the price for this is that you must kill a single innocent child. could you kill that child, stanley? no? you disappoint me. it's the greatest good."

neither dostoevsky nor poor stanley could take that step, but for others, like gabriel and the neocons, the question proves too compelling and the logic seems inescapable: indeed, how could one deny peace to the long-suffering billions of earth for the sake of only a single life, one child?

however, the logic is inescapable only if one presumes the power of a god: that one has perfect control over events and perfect knowledge that the intended outcome is absolutely guaranteed. since mere mortals, even neocons, are blessed with neither omnipotence or omniscience (much less omnibenevolence), that any human should answer such a question with not simply "yes, i would kill that child" but righteously "yes, i would kill untold thousands of children" demonstrates the epitome of arrogance and the source of the hubris only now admitted to by neocons like fukuyama:

"... successful pre-emption depends on the ability to predict the future accurately and on good intelligence, which was not forthcoming, while america's perceived unilateralism has isolated it as never before. it is not surprising that in its second term, the administration has been distancing itself from these policies and is in the process of rewriting the national security strategy document."

so without any guarantee that our goal, the spread of freedom and democracy, is achievable, can we still justify these machiavellian visions, the failures of the bush administration nonwithstanding? after all, though repentant he may be, fukuyama still sees, as quoted above, the failure of the neocon dream as a failure only of implementation:

"the problem with neoconservatism's agenda lies not in its ends, which are as american as apple pie, but rather in the overmilitarized means by which it has sought to accomplish them."

so long as men like fukuyama continue to believe that even though the execution be flawed, the neocon dream remains worthwhile, the rest of us shall remain the pawns of the would-be architects of human destiny.

to the architects then let us honestly restate dostoevsky's conundrum, and ask them to take into account the limits of human knowledge, power, competence and will:

if you believed that you might be able to make some men somewhat happier by torturing to death thousands of tiny creatures — those babies beating their breast with their fist, for instance — would you consent to be the architect on those conditions?