Tuesday, April 28, 2009

Specter of Irrelevance

Anyone reading this will have already heard Arlen Specter, Senator-PA, has announced a change in party affiliation, changing the 'R' after his name to a 'D'. While many Democrats are excited over this, I find myself with some mixed feelings.

The underlying assumption seems to be the switch, combined with Al Franken eventually being seated, will give Democrats the much vaunted 60th-seat, thus bringing an end to filibusters, and thereby ushering in a new era of peace and prosperity, a cure for cancer and aging, unlimited sources of clean energy and so on.

Reality says otherwise. No matter how much the Republican party may have "left" him by continuing to move to the right, Specter will unquestionably be one of the most conservative members of the Democratic caucus. He's already said he won't be an "automatic" 60th vote, and there is no reason to doubt his word on the matter. It's likely Dems will see Specter vote somewhat more often for cloture than he would have if he had remained in the Republican caucus, but how much more often remains to be seen.

If anything, Specter might be in a similar position to Ben Nelson of Nebraska, where he use the threat of withholding his vote to get changes to various bills he might want, but which don't really mesh with a progressive agenda.

On the other hand, it's quite likely Dems could do better if they were simply patient - Specter was motivated to switch affiliation because it became increasingly apparent he would not win a 2010 Republican primary against Pat Toomey. In the 2004 primary Specter narrowly edged Toomey, the definition of a hard-core conservative, but since then many of the voters who helped him squeak by have re-registered as Democrats. However, if Toomey does, indeed, win the Republican nomination, any Dem with a pulse would defeat him in the general ... so why not wait and get a candidate more in line with the full agenda?

In the near term, I suspect the ultimate effect of the swap will be minimal, other than further emphasizing (if any further emphasis was needed) how truly extreme the core of the Republican party has become. Any larger might have to wait until after the 2010 elections - if that vote were held now, Dems would be favored to collect 3-5 more Senate seats in addition to Specter's (which was already among those most likely to switch parties), which truly would give Democrats a filibuster-proof majority, and would consign Republicans to even greater irrelevance.

Sunday, April 19, 2009

Kill the Lawyers, redux

The Arizona Daily Star ran an Associated Press update today quoting White House chief of staff Rahm Emanuel as saying the administration was not intending to prosecute any Bush administration officials for the acts of torture they officially sanctioned.

Not surprisingly, this position was happily accepted by Republicans. Quoting the article:

GOP Sen. Lindsey Graham of South Carolina, a member of the Senate Armed Services Committee, said the idea of “criminalizing legal advice after one administration is out of the office is a very bad precedent. ... I think it would be disaster to go back and try to prosecute a lawyer for giving legal advice that you disagreed with to a former president.”

The problem with this is it creates a backdoor by which the administrative branch can claim unlimited power. Want to spy on any US citizen without a warrant? Simply have a friendly OLC lawyer devise some half-assed argument supporting it. Want to drop a nuke on Canada because you can't stand the way they keeping adding 'eh?' to the end of every sentence? Call in the OLC! Nothing is so far out there we can't find some flimsy justification for it.

So what if, after the fact, the legal reasoning is found to be childish, amateurish, completely lacking of any professional standard - you got done what you wanted to get done. It's time to focus on the future, not look backwards to the past.

Supposedly, lawyers have professional standards, and if those standards are not met, or it is, at best, questionable those standards are met, then it is entrely appropriate to prosecute the lawyers who give such poor advice. The fact we are talking about lawyers making legal decisions which impact policy decisions for our entire nation makes this more imperative, not less.

If no other Bush administration official is prosecuted for these atrocities, at an absolute minimum the lawyers who provided the flimsy cover of legality which Bush, Cheney et. al. used as justification for their heinous acts must be. Otherwise, we are can no longer claim to be a nation of laws, only a nation of legal justifications.

Saturday, April 18, 2009

Kill the Lawyers

The Obama administration has released the memos the preceding administration used to justify it's torture regimen, and not surprisingly they are as ugly as one could expect. The callous disregard for human dignity can really only be appreciated by reading them first hand. The documents are linked to by a number of commentators, including x4mr here. For those interested in more legal analysis, I point you to Glenn Greenwald(here and here) and Anonymous Liberal (here and here).

Greenwald and AL have an exchange of posts discussing the discussing the decision to guarantee no prosecution of the individuals who committed these acts if they relied in "good-faith" on the legal advice provided them. Greenwald makes the case we are obligated to bring them to trial, AL argues as a practical matter any such trial is likely unwinnable, and thus would be counter-effective. From my position, while I understand Greenwald's reasoning and desires, I find myself persuaded to AL's point of view. (And, as has been noted, for those who went beyond what was authorized, or are found to not have acted in"good faith" ... well ... prosecution is too good for them).

However, as AL in particular notes, there is one set of individuals who simply must be prosecuted - the lawyers responsible for creating the flimsy cover which "justified" the abuse, beginning with Jay Bybee and, especially, John Yoo.

Even a cursory reading of the memos makes it clear there was no attempt on the part of the OLC laywers to make a "good-faith" effort to provide well-reasoned, defensible legal advice on the issue. Rather, it's quite obvious the conclusion that torture would be determined to be legal was pre-determined, and the argument would be twisted to support the conclusion - no matter how much that argument had to be tortured in order to make it comply.

The tactics found to be allowable included (from Greenwald) "nudity, "dietary manipulation" involving "minimum caloric intake at commercial weight-loss programs," "corrective techniques" (facial and abdominal slapping), water dousing, "walling," stress positions and "wall standing" (to "induce muscle fatigue and the attendant discomfort"), cramped confinement, and sleep deprivation.", and amazingly in 2005 then OLC chief Steven Bradbury (in one of the memos) affirms the legality of the methods, despite acknowledging the U.S. had termed the use of some of them as "torture" when applied by other nations (Indonesia is mentioned in his memo).

Get Bybee, Yoo, Bradbury, et. al. up on charges and when they are convicted, their punishment should include being subjected to the same regimen of torture they found acceptable when applied to others. After a full cycle completes, we can ask them again about their views regarding the Constitutionality of such actions.