The Obfuscation Report

by Meteor Blades

I’ve been pondering about how very much I owe to a few people who in their fight against torture and government outlawry have combined an unwavering moral compass, keen analysis and sparkling eloquence. These people and a few organizations with the guts and stamina not to surrender deserve far more than mere thanks for their pursuit of truth, justice and what was once touted as the American way. But until that halcyon day when dissidents are awarded Medals of Freedom, simple gratitude will have to suffice.

They go by the names of Jane Mayer, Invictus/Valtin, Glenn Greenwald,
mcjoan, Christy Hardin Smith, jhutson, digby, Scott Horton, Armando/Big Tent Democrat, Marcy Wheeler, the ACLU, the Center for Constitutional Rights and the Physicians for Human Rights.

They have all along been unwilling to submit to the Cheney-Bush administration’s violation of the most basic principles of human rights, civil rights and the Constitution. They have opposed the rendition, secret incarceration and torture of people deemed to have surrendered their rights by the mere fact of having been abducted or captured by the United States. They have rejected the twisted concept that torture which is scientifically evaluated, approved, ordered, implemented and euphemized by Americans or American surrogates isn’t the same as torture committed by ...the bad guys.

When those who were supposed to expose and fight against the outlaws and their deeds failed us through sloth or malice, we were fortunate these others rose to the task. Whether it was waterboarding, holding children and other innocents for years without trial, breaking signed treaties, violating professional ethics, suborning the media, or playing Orwellian semantic games, our beacons were there, exposing the war criminals on high and actively seeking to stop them.

Anyone unaware of the details of what these criminals were doing can get a good idea from reading SENATE ARMED SERVICES COMMITTEE INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY. It’s heavily redacted, which means it conceals even worse than we already know, but it’s worth the time. Watching Torturing Democracy tells much of the story, too. And then there are all the essays and reports, organizing and legal maneuvering of those I’ve named.

Many members of that fidgety amalgam of people who call ourselves progressives want to let bygones be bygones, want to forget the past and move on when Mister Bush moves on to the private sector where, presumably, he will return to his less damaging role as an arrogant grifter with a rich daddy. But the courageous few who have loudly and relentlessly opposed torture and the associated outlawry believe, as do I, that prosecutions are, for the long-term health of our nation, as important as repairing the economy. We move on, we forget, at our peril.

As Glenn Greenwald wrote on December 18:

It's almost as though everyone's nose is now being rubbed in all of this: now that the culpability of our highest government officials is no longer hidden, but is increasingly all out in the open, who can still defend the notion that they should remain immune from consequences for their patent lawbreaking? As Law Professor Jonathan Turley said several weeks ago on The Rachel Maddow Show: "It's the indictment of all of us if we walk away from a clear war crime." And this week, Turley pointed out to Keith Olbermann that "ultimately it will depend on citizens, and whether they will remain silent in the face of a crime that has been committed in plain view. ...It is equally immoral to stand silent in the face of a war crime and do nothing."

As the Physicians for Human Rights stated in Broken Law, Broken Lives

Almost all of the detainees reported being threatened with severe harm, most commonly through verbal threats during interrogations. Eight of the eleven men reported that the US military utilized dogs to instill fear in the detainees. Two of the Iraqi former detainees were
threatened with execution, and two others were threatened with forced disappearance since they did not have prisoner identification numbers, were unregistered, and therefore considered "ghost" detainees. Youssef recalled being threatened with being shot by a guard during an interrogation in Guantánamo.

As digby wrote in "Torture Nation" on April 13:

I would imagine that our torture regime is much more hygienic than the North Vietnamese. Surely it is more bureaucratic with lots of reports and directives and findings and "exit interrogations." We are, after all, a first-world torturer. But at the end of the day it's not much different.

And as Scott Horton has written:

No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.

No words can fully express the admiration and respect I have for each of these and the other foes of torture I have named. They have refused to be silent. They have been unwilling to shrug off these crimes and say that our country has more important matters to deal with. "Speaking only for myself" (as one of them famously says), I can never offer enough thanks for what they have done, for their moral clarity and persistence.

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^{If you’d like to thank them as well, one concrete way you can do so is by reinforcing their message: Join with bloggers at Docudharma and Democrats.com and sign the petition seeking a Special Prosecutor on war crimes.}

Warren On? Party Off.

By Richard Cohen
Tuesday, December 23, 2008; A17

Not that he was planning to attend, but Barack Obama should know that my sister's inauguration night party -- the one for which she was preparing Obama Punch -- has been canceled. The notice went out over the weekend, by e-mail and word of mouth, that Obama's choice of Rick Warren to give the inaugural invocation had simply ruined the party. Warren is anti-gay, and my sister, not to put too fine a point on it, is not. She's gay.

She is -- or was -- a committed Obama supporter. On the weekend before the presidential election, my sister and my mother drove from the Boston area, where they both live, to Obama's New Hampshire headquarters in Manchester. There my mother made 76 phone calls for Obama, which is not bad for someone who is 96, and gives you an idea of the level of commitment to Obama in certain precincts of my family.

I should say right off that my mother feels less strongly about Warren than my sister does. But I should add immediately that my sister feels very strongly, indeed. She's been in a relationship with another woman, the quite wonderful Nancy, for 19 years, and she resents the fact that Warren has likened same-sex marriage to incest, pederasty and polygamy.

"I'm opposed to redefinition of a 5,000-year definition of marriage," Warren told Beliefnet.com's Steve Waldman. "I'm opposed to having a brother and sister being together and calling that marriage. I'm opposed to an older guy marrying a child and calling that marriage. I'm opposed to one guy having multiple wives and calling that marriage."

Waldman asked, "Do you think those are equivalent to gays getting married?"

"Oh, I do," said Warren.

There you have the thinking of the man Obama has chosen above all other religious figures to represent him in this most solemn moment. He likens my sister's relationship -- three children, five grandchildren, so loving as to be envied and so conventional as to be boring -- to incest or polygamy.

The conventional thing to say is that Obama has a preacher problem -- first the volcanic Jeremiah Wright and now the transparently anti-gay Warren. But the real problem has nothing to do with ministers and everything to do with Obama's inability or unwillingness to be a moral leader. Sooner or later, he just might have to stand for something.

This was apparent to me almost a year ago when I reported that Obama's church, the Trinity United Church of Christ, had given a major award to Louis Farrakhan, the anti-Semitic leader of the Nation of Islam. The award was presented in Wright's name and featured in a cover story in the church's magazine, Trumpet. When I asked the Obama campaign about this, I was told that Obama himself did not agree with Farrakhan. What a relief!

And what a joke. I never for a moment thought Obama viewed Farrakhan any differently from the way I do. But I also thought that as a U.S. senator, as a presidential candidate or even as a mere citizen, he had an obligation to denounce the award -- maybe quit the church. Do something! He did nothing.

Now we have a repeat of that episode. This time it is not Obama's preacher who has decided to honor a bigot, it is Obama himself. And, once again, we get the same sort of rationalizations. Obama says he does not agree with Warren about all things. Obama says he himself is not anti-gay and, in fact, although he does not support same-sex marriage (as opposed to civil unions), he has been a stalwart champion of gay causes. Therefore, it seems to follow, he can honor an anti-gay activist.

I can understand Obama's desire to embrace constituencies that have rejected him. Evangelicals are in that category and Warren is an important evangelical leader with whom, Obama said, "we're not going to agree on every single issue." He went on to say, "We can disagree without being disagreeable and then focus on those things that we hold in common as Americans." Sounds nice.

But what we do not "hold in common" is the dehumanization of homosexuals. What we do not hold in common is the belief that gays are perverts who have chosen their sexual orientation on some sort of whim. What we do not hold in common is the exaltation of ignorance that has led and will lead to discrimination and violence.

Finally, what we do not hold in common is the categorization of a civil rights issue -- the rights of gays to be treated equally -- as some sort of cranky cultural difference. For that we need moral leadership, which, on this occasion, Obama has failed to provide. For some people, that's nothing to celebrate.

The party's off.

December 23, 2008
Bush v. Gore Set to Outlast Its Beneficiary

By ADAM LIPTAK

WASHINGTON

The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

That sentence, translated from high legal jargon into English, was often taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.

But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. “You’re starting to see courts invoke it,” said Samuel Issacharoff, a law professor at New York University, “and you’re starting to see briefs cite it.”

Divorced from its earlier context, the growing point of the case is to impose order on often chaotic election processes in the states.

“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

Bush v. Gore was, for instance, unapologetically at the heart of a unanimous decision last month from the United States Court of Appeals for the Sixth Circuit, in Cincinnati, allowing a comprehensive challenge to Ohio voting systems to move forward. The three-judge panel acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore. Nonetheless, the panel said, “we find it relevant here.”

What Bush v. Gore means, the panel said, quoting from the decision itself, is that once a state grants the right to vote on equal terms, it may not “by later arbitrary and disparate treatment, value one person’s vote over that of another.” Forcing people in some parts of the state to wait many hours to vote as a consequence of the arbitrary allocation of voting machines, for instance, would violate the core principle in Bush v. Gore, the panel said.

It is possible, of course, to read Bush v. Gore more narrowly than that. The case did, after all, emerge from authentically peculiar circumstances. It may be that the decision means only something like this: A court-supervised statewide recount violates equal protection guarantees when it treats similar ballots differently by instructing local officials to use new and insufficiently specified standards.

But even versions of that narrower reading are turning out to have a practical impact.

Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken. The candidates’ briefs cited the case some 20 times, arguing in earnest detail about how the Supreme Court’s understanding of the role of equal protection in election administration applied in Minnesota.

“Bush v. Gore has a future,” said Edward B. Foley, an election-law specialist at Ohio State. “We’re now starting to see it. There is a sense, eight years later, that some of the initial reaction was an overreaction.”

In the early days, of course, the case was mocked as illegitimate in both its reasoning and its result. “That was so completely the prevailing wisdom” in the law schools, Professor Issacharoff said, “that there were even challenges as to whether Bush v. Gore could be taught as a serious case.”

Many judges flatly refused to consider the decision as precedent for anything, relying on the Supreme Court’s admonition and a more general unease. No Supreme Court opinion, including concurrences and dissents, has ever cited Bush v. Gore.

“It hasn’t been cited even in cases where it should have been cited,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles and is the author of “The Untimely Death of Bush v. Gore,” published last year in The Stanford Law Review. “The case is radioactive. Anyone who touches it knows he’s playing with something very dangerous.”

Indeed, when the Ninth Circuit cited the case in March 2001, it was to justify its own assertion that one of its rulings was “valid only in this case.”

But the law is ordinarily understood as a system of neutral principles consistently applied. “To provide a reason for a decision,” Frederick Schauer wrote in The Stanford Law Review in 1995, “is to include that decision within a principle of greater generality than the decision itself.”

To be sure, courts sometimes limit earlier decisions to their facts, which robs them of precedential force and essentially overrules them. But what the Supreme Court did in Bush v. Gore was “historically unique,” Chad Flanders wrote in The Yale Law Journal last year. “No other majority in the history of the court,” Mr. Flanders wrote, “has applied limiting language to the very case being decided.”

Other scholars say the court’s admonition was a routine caution that the decision, issued very quickly, should be read narrowly, not that it should be ignored entirely.

Until the recent Sixth Circuit decision, the most important invocation of Bush v. Gore by a federal appeals court probably came in a 2006 case decided by a different panel of the same court. The decision was later vacated as moot by the full court, but the testy interaction of the panel’s judges remains instructive.

The dissenting judge on the three-judge panel criticized his colleagues for relying on “the Supreme Court’s murky decision in Bush v. Gore” in a case about the use of punch-card ballots in Ohio. The judge, Ronald Lee Gilman, pointed to the one-ride-only language and what he called the Supreme Court majority’s ideological inconsistency and lack of intellectual seriousness.

The judges in the majority were having none of that. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” they wrote, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it — ‘Supreme Court’ — carries more weight with us.”

“Whatever else Bush v. Gore may be,” Judge Boyce F. Martin Jr. wrote for the majority, “it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”

Labels: Law of Unintended Consequences