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I am not a member of any organized political party. I am a Democrat.
- Will Rogers

Frustration with Democratic leadership seemed to boil over in the last week or so. It began (as far as I can tell) with John Aravosis' withering criticism of the president over his speech last weekend at a Human Rights Campaign event. He wrote of "concerns about President Obama's inaction, and backtracking" on the Defense of Marriage Act (DOMA) and the military's Don't Ask Don't Tell (DADT) policy towards gays. The criticism led to backlash (here is a good example) and tensions have been high all around since. In a way Obama is not the right target, and some have acknowledged that even as they urge him to act. Vermont Law School Associate Professor of Law Jackie Gardina advocates his taking action on DADT, but acknowledges all he can change is the implementation. Overturning it can only be done by Congress. The same is true for DOMA. While it may be more appealing to focus all criticism on a single target, the fact is that these changes will only be durable when the legislature acts. The president is obviously not a passive figure in all this - he can urge Congress to act, give moral support to the effort through his rhetoric (something that has curiously been treated as largely irrelevant on this issue) and otherwise encourage action on these issues, but in the end the action is at the other end of Pennsylvania Avenue.

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No Associated Press content was harmed in the writing of this post

No Associated Press content was harmed in the writing of this post

No Associated Press content was harmed in the writing of this post

No Associated Press content was harmed in the writing of this post

No Associated Press content was harmed in the writing of this post

I started reading A Distant Mirror by Barbara W. Tuchman recently and was struck by this from page 43:

Philip bullied the first Avignon Pope, Clement V, into authorizing the trials of the Templars, and with this authority put them to atrocious tortures to extract confessions. Medieval justice was scrupulous about holding proper trials and careful not to sentence without proof of guilt, but it achieved proof by confession rather than evidence, and confession was routinely obtained by torture. The Templars, many of them old men, were racked, thumbscrewed, starved, hung with weights until joints were dislocated, had teeth and fingernails pulled one by one, bones broken by the wedge, feet held over flames, always with pauses in between and the "question" put again each day until confession was wrung out or the victim died. Thirty-six died under the treatment; some committed suicide. Broken by torture, the Grand Master, Jacques de Molay, and 122 others confessed to spitting on the cross or some other variation of crime put into their mouths by the Inquisitors. "And he would have confessed that he had slain God Himself if they had asked him that," acknowledged a chronicler.

How does America's treatment of detainees look next to that?

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All presidents are unpopular with a good part of the electorate, but there seems to be little skepticism towards the office itself. There is plenty of distrust and even outright revulsion towards particular presidents based on, for instance, whether one is more outraged by extramarital sex - by a political opponent, not by an ally - or war crimes. (Ironically, Republicans' approach with Mark Sanford has been to censure and move on; their refusal to use precisely that remedy with president Clinton was key in launching the first highly visible netroots site.) I am not even referring to the lunacy now coming into full bloom in some quarters. All those examples are about who a particular president is or what he has done. I am referring more to what a president ought to be able to do, which has trended almost exclusively towards greater deference and larger grants of authority in the last few years.

It is possible to argue, as Dana Nelson details in her book Bad For Democracy, that the presidency has been slowly but steadily aggrandizing since 1832 when Andrew Jackson "detoured from his predecessors who viewed the president as a mere executive by expanding his power when a clear mandate was expressed to him from 'the people.'" The president has increasingly come to be central to American political life and even viewed as the personification of the country. For as troubling as that is, though, we recently seem to also have added the idea that the president can act with impunity as long as it can be rationalized (however fabulously) as in the national interest. Presumably blowjobs are still verboten.

The courts have at times been all too eager to assist in this project, and on Monday the New York Times reported (via) their willingness to do so has unleashed some unintended consequences. The Supreme Court's Ashcroft v. Iqbal decision in May was a civil rights damages lawsuit against former Attorney General John Ashcroft. Javald Iqbal was swept up along with more than 1,000 other mostly Arabic people in America right after 9/11. He claimed mistreatment and filed suit against Ashcroft on the theory that responsibility goes to the top. The Court ruled that essentially unless Ashcroft was physically present and ordering the abuse he was not liable. In other words, in its eagerness to shield the executive branch from being held responsible for this or any other covert lawbreaking it substantially raised the evidentiary bar for lawsuits. Or as the Times described it, the ruling eviscerated discovery:

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On Tuesday lambert pointed out something I had not noticed: Talking Points Memo had not covered Matt Taibbi's Rolling Stone article on Goldman Sachs, and its coverage of them has been very light in recent months. Caveats: TPM advertises itself as "Breaking News and Analysis" and it gets to decide what is news and what merits analysis; Taibbi's article was a lengthy narrative in a magazine and not breaking news, similar to Todd Purdum's profile of Sarah Palin in Vanity Fair this month; while a web site has nearly unlimited space to devote to news there are only so many hours in the day end workers to publish during it. There are any number of good reasons why a site like TPM would not have covered it.

It still seems a curious omission though. After all, Purdum's article got a brief mention and link on the front page. Financial scandals are covered there, and a search on Bernie Madoff brings up three pages of results. Like Martha Stewart before him Madoff seems to have become a synecdoche for the entire financial industry. Now, Stewart's crime was a half million dollar stock scam whereas Madoff's was a $50 billion Ponzi scheme, so the latter had a much larger impact. Still, it A) only affected private investors and B) is relatively small when compared to bailout, son of bailout and who knows what other giveaways we are only vaguely aware of at the moment. It seems that an article like Taibbi's would serve an important reminder as to what the stakes and who the biggest players really are.

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Last week digby posted on a report that the CIA is now looking to recruit Wall Street financial analysts to offer their guidance on economic matters. I'm going to go out on a limb here and guess that the CIA's retirement program is a government pension and not a 401(k). She followed up this week by pulling a May 2006 Business Week article from Dawn Kopecki back from the memory hole. The BW piece reports on a 1977 amendment to the Securities Exchange Act of 1934 that allows the president to exempt companies from accounting and reporting requirements in the name of national security. (Think presidents Bush or Obama have considered national security at stake during the economic crisis?) One of the comments to the article is fascinating:

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Last week Andy McCarthy prompted the latest change in my understanding in how the right thinks about torture. Initially I believed they were unwilling to accept their leaders were engaging in it, and that if it turned out they were they would recoil as sharply as the rest of us. That changed when I read a Los Angeles Times piece by Jonah Goldberg that basically stipulated we tortured but was fine with it anyway. It may have been this one, where he writes:

the meatier part of the argument is in the more nuanced area of "coercive measures," "stress positions" and what one unnamed official once described to the Wall Street Journal as "a little bit of smacky-face." [Since elaborated as "wrapp[ing] a collar around [a detainee's] neck and smash[ing] him over and over against a wall."]...The way [Andrew] Sullivan and those who agree with him see it, torture is torture is torture -- and torture is always wrong, even when defined as intimidation and "smacky-face." "Not in my name" is their rallying cry, often with the sort of self-righteousness that suggests that those who disagree must admire cruelty.

Reading that, it became clear that Bush's supporters were willing to uncritically accept the administration's positions. Techniques were given cute euphemisms (see also) and those who objected to it on principle were dismissed as moral divas. Moreover, their reflexive support meant ignoring torture's history. Engaging in practices with a gruesome past or lifting terminology from the Gestapo was never examined.

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This week Conor Friedersdorf looked at the murder of Dr. George Tiller and asked if defenders of George Bush's counterterror policies would "be comfortable if President Obama declared two or three extremist pro-lifers as 'enemy combatants'? Should Pres. Obama have the prerogative to order the waterboarding of these uncharged, untried detainees? Should he be able to listen in on phone conversations originating from evangelical churches where suspected abortion extremists hang out?" Considering that the suspect in Tiller's murder is already further along towards a conviction than Abu Zubaydah it seems reasonable to look at what tactics are theoretically available against someone that much more advanced in the legal process.

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When the aggrandizement of the executive branch began during the Bush administration I expected conservatives to be supportive because it was consistent with their history. On spending, for example, Ronald Reagan had no problem with profligate boondoggles as long as they were in his preferred area - even famously dismissed the entire concept of fiscal probity by quipping that the deficit was "big enough to take care of itself." This, remember, is the president the GOP most fondly remembers and reveres of at least the last fifty years, maybe since Lincoln. If its standard bearer couldn't be bothered what does that say about the rest of the party?

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On Wednesday lambert pointed me to a Bloomberg article by Robert Schmidt and Jesse Westbrook claiming the Obama administration will call for moving some of the powers of the Securities and Exchange Commission (SEC) to the Federal Reserve. While the SEC has come under fire for its reluctance to aggressively monitor Wall Street, the solution (as lambert points out) is to give the agency the resources, incentive and mission to do so, not to transfer authority elsewhere. Schmidt and Westbrook note that it "still has powerful supporters, including a number of Democrats on the Senate Banking Committee who aren’t likely to support having an agency they oversee cut back," so maybe this is just a trial balloon. Either way it doesn't deserve to make it past the rumor phase.

Whenever the news turns to the world of financial services, though, it seems like the path grows dark very quickly. (If so, that probably is by design.) I read stories like this and think, Congress oversees the SEC which is as it should be - and the SEC should be regulating...what? One of the most interesting reports I have read this year is The Story of Deep Capture by Mark Mitchell (pdf). First published last year, it is a 69 page report alleging corruption and collusion among hedge funds, regulators and financial reporters. It is tempting to dismiss it as tin foil hat conspiracy paranoia, but Mitchell is a former editor of the Columbia School of Journalism. Maybe he went off the rails after working there or maybe he was a bad hire in the first place, but that is something that should be backed up with evidence. All I have seen so far are ad hominem attacks from targets of his investigation.

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This week may have foreshadowed the kind of twists and turns we can look forward to as more information about the US torture program becomes public. Jeff Kaye took note of a Washington Times story about how Jonathan Fredman, the top CIA lawyer for the agency's interrogation program, disputes the record of an October 2002 interrogation meeting. According to the minutes this is where Fredman uttered the immortal words about interrogation, "If the detainee dies you're doing it wrong." It seems he or an ally does not wish for that to be the lasting impression of him because the Times article rather remarkably disputes the notes themselves.

Meeting notes seem to me to be fairly uncontroversial things. It certainly is rare for contemporaneous notes of one to spark debate. The usual procedure is basically: Have someone scribble down the main points people are making during the meeting, then afterwards type them up and send them out. Maybe something needs to be sharpened or modified in some way, but according to the Times "Mr. Fredman says the writer of the 2002 memo misconstrued enough of his points that the memo is unreliable." That gets my antenna up. While I suppose it is possible for someone to get huge swaths of a meeting fundamentally wrong it does not seem very likely. It sounds more like a somewhat desperate and implausible attempt to rewrite history.

Fredman's efforts to reshape an already-settling record is not what really interested me in Kaye's post, though. It was his description of how the Army Field Manual (AFM) was lurking below the surface of the torture debate and will sooner or later emerge as yet another large knot to untangle. I had been under the impression that the military had a much stricter standard for interrogations, and once president Obama put the CIA under the AFM we had at least ensured torture would not be an issue going forward. It will not be quite so simple. Kaye pointed out in another post that in September 2006 Donald Rumsfeld ordered the overhaul of the AFM. The revised edition contained a section, Appendix M, which may have been initially intended to be classified. (Given what it contains this is yet another reason to be extremely skeptical of classification claims, for national security or other reasons.) It authorizes a set of interrogation procedures that go by the euphemism Separation. Kaye analyzes them, then arrives at the following commonsense formulation: "The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment."

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Now that we are seeing more and more details about the Bush administration's torture program, it is forcing those in favor of it do defend in greater detail. Right wing blogs have been the lustiest advocates. Even someone like A.J. Strata who in his own words has "left the conservative fevered swamps" can write of the left: "Their base is adamant that there be public witch hunts against the Bush administration for being aggressive in the war on terror, and for inflicting a faked drowning reaction in established mass murderers tied to 9-11." The terminology is fascinating - investigations are witch hunts, the gutting of habeas corpus is being aggressive, waterboarding is fake drowning (sounds more like a girl at the beach trying to get a lifeguard's attention), and Abu Zubaydah and Abd al-Rahim Nashiri have been transmuted through some heretofore unknown Terrorism Philosophers Stone from low level al Qaida functionaries - or potentially even less (via) - into key architects of 9/11. From there, the story goes, these people gave up valuable intelligence. The subtext: They had it coming.

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During the Bush years it seemed as if the stifling of debate on torture caused a great tension to build, but that pent-up frustration has finally started to release. The last few weeks have seen a dizzying series of developments, starting with Mark Danner's first article on torture at CIA dark sites. That, along with his subsequent publication of the International Committee for the Red Cross' report on it, may have removed any remaining arguments against releasing the torture memos. So they were released, all hell broke loose, and we now may be in the early stages of a circular firing squad.

With details of the horrors we engaged in emerging it has become vital for anyone implicated to shift blame. Omertà has been violated, and it has started to look like the political equivalent of the paradox of thrift - actions that benefit individuals harm the larger group. It leads to exchanges like the one detailed here, where Nancy Pelosi claims that she was never told any of the torture methods the CIA briefed Congressional leaders on were actually going to be used (did she think it was a purely academic discussion?) and Porter Goss emphatically contradicts her.

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No Associated Press content was harmed in the writing of this post

An inflection point is a place on a curve where the growth rate flips from positive to negative (or vice versa). Once it is hit the curve will continue its trend, but unless another inflection point is reached it will inevitably turn down (or up). We may be approaching something like that with civil liberties and human rights. This week Mark Danner published the second half of his coverage of the International Committee of the Red Cross' (ICRC) report on detainee torture at CIA black site prisons, along with the report itself. The ICRC document is sickening, a gruesome catalog of horrors inflicted by us on those in our custody. In his first article Danner noted how the public message was that we needed to "take the gloves off" after 9/11. That was not just White House spin or a slogan for the new product getting rolled out, though - it also constituted the whole debate on torture. It was both inflection and turning point.

There was plenty of evidence evil was being done in our names, but the fundamental dishonesty of our leaders prevented an airing. As Jane Mayer wrote, "[t]he Bush Administration could have openly asked Congress for greater authority, or engaged the public in a discussion of the morality and efficacy of 'enhanced' interrogations, but instead it chose a path of tricky legalisms adopted in classified memos." With Congress being controlled first by Republicans with an authoritarian streak who placed obedience to the president above the law, then by timid and cowardly Democrats who refused to confront a bully (then) or a hyperventilating minority (now) we have seen no action on this vital issue. Since at least December 26, 2002 - the day the Washington Post reported on a black site near Bagram air base - Congress has been grossly negligent on the issue.

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On Tuesday the Washington Post reported on an effort by the Obama administration to get some new powers from Congress: the ability to seize control of certain non-financial entities like insurance companies and hedge funds. Coming a day after Tim Geithner's poorly received plan for Bailout II the timing could not have been much worse. Many economics and finance experts - those who have credibility by virtue of having sounded the alarm when the party was in full swing - such as Duncan Black and Paul Krugman have emphatically rejected the plan. Yves Smith wrote "Given the lack of any mention of a special resolution regime, or intent to develop one, the point of this bill is...to get broader authority to bail [firms] out." Joseph Stiglitz called it outright theft. (Very important exception: Nouriel Roubini has given his qualified approval.)

Yet the president wants the author of this plan to have a wealth of new powers, and exuberantly claims "I think [he] is doing an outstanding job" (which has unnerving echoes of Brownie's heck of a job). Geithner does not need votes of confidence at this point. He needs instead to find a monastery in some distant and isolated land, go to an empty room in a quiet and remote part of it, unroll a somewhat comfortable rug, sit on it and meditate until he is able to envision a world without Goldman Sachs. More bluntly, he comes across as someone narrowly locked into one specific way of seeing the world, and this poverty of imagination is forcing him to offer the same solution over and over.

It may not be a coincidence that the inability to think creatively is so proximate to the claimed need for more power. Perhaps Obama's economic team is crippled by the same sclerotic thinking that infected the Bush administration's national security team, which seemed to manifest itself in a never ending list of demands for more power. It leads to the following proposition: The amount of authority an individual claims to need to do a job is inversely proportional to his or her competence. Extravagant requests are more likely to be born out of insecurity (beforehand) or guilt (afterwards). While not strictly true, it may be a good rule of thumb. The good ones pay attention even when not under scrutiny and make do with what is at hand.

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Mark Danner's coverage of the International Committee of the Red Cross report on the CIA's treatment of detainees is maybe the most important addition to our body of knowledge on the Bush administration's torture program since The Dark Side. He goes through the problems torture creates in the pursuit of justice ("If the 'coercive' and 'abusive' interrogation of [twentieth 9/11 hijacker Mohammed al-]Qahtani makes trying him impossible, one may doubt that any of the fourteen 'high-value detainees' whose accounts are given in this report will ever be tried and sentenced in an internationally recognized and sanctioned legal proceeding"). He also documents the organized cruelty in sickening detail, once again elaborates the practical limitations of it, and draws a series of unflinching conclusions ("Beginning in the spring of 2002 the United States government began to torture prisoners...The most senior officers of the US government, President George W. Bush first among them, repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public").

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After September 11th George Bush authorized warrantless wiretapping called the Terrorist Surveillance Program (TSP) and for several years it went on under (at best) arguably legal circumstances. On March 4th, 2004 then-Attorney General John Ashcroft was briefed on a review of the program by the Department of Justice (DOJ) Office of Legal Counsel (OLC); he indicated changes needed to be made. Six days later the dubious authorization expired, leaving not so much as a fig leaf of legal cover. Bush then reauthorized the TSP the next day without a DOJ certificate of legality, and it continued (pdf) "for a period of several weeks following March 11, 2004." Details are fuzzy - we do not know exactly when it was re-certified (as far as I know), but the key point is that as of then there was not even the flimsiest legal cover for warrantless wiretapping.

On that very day Wendell Belew, a Washington D.C. lawyer, was wiretapped by the government without a warrant. He represented a Saudi Arabian charity under federal suspicion and the government was listening in. Then, as Ryan Singel reported, in an epic bureaucratic failure the details the wiretapping were delivered to him. When it was discovered agents seized the documents back and basically told Belew he should forget he had ever seen anything. When he realized what it might have meant he sued.

For those of us already persuaded of the organized criminality of the Bush White House this represents a nearly miraculous confluence of events. The Bush OLC threw sand into the gears of justice by issuing memos known as "Golden Shields" because they can be used to claim innocence on anything they cover. Any charges against high ranking officials can be disputed by their pointing to the lawyers and saying they believed it was legal. Forget whether it is a legally valid strategy or whether it ultimately would prevail; all that matters is that it would be used to contest any charges and make the legal waters murky. This particular case, though, occurred when no Golden Shields were in effect and the TSP had not yet been reauthorized. It happened during that tiny window when the administration was completely legally exposed.

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