My Crystal Ball was Right on Mukasey and Waterboarding

The Inquisition was full of good ideas.

A few months ago I gazed into my crystal ball and wrote the following:

Sadly the reality is that no AG under Bush will declare waterboarding illegal. You guys ever read the Ironic Times? They put it well:

"Bush Pick for Attorney General Headed for Confirmation Mukasey last piece in puzzle keeping Bush, Cheney from firing squad."

No AG picked by Bush is going to turn around and call Bush a criminal.

That was quite the limb I went out on. I'm very brave. Today I learned that my crystal ball is in fine working order.

Attorney General Michael Mukasey said Tuesday he will refuse to publicly say whether the interrogation tactic known as waterboarding is illegal, digging in against critics who want the Bush administration to define it as torture.

I haven't been this shocked since the sun rose this morning.

Mukasey had promised to report on the legality of waterboarding at his confirmation hearing. Or did he?

WHITEHOUSE: If it's torture? That's a massive hedge. I mean, it either is or it isn't.

Do you have an opinion on whether water-boarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?

MUKASEY: If it amounts to torture, it is not constitutional.

WHITEHOUSE: I'm very disappointed in that answer. I think it is purely semantic.
[...]
I want to pin you down and ask you, sir, if you would pledge to undertake some formal process of review and evaluation of those internal protocols, norms and practices so that you get a report from experienced people on what needs to be repaired.

MUKASEY: I'm going to pledge to undertake to review the practices. I am going to pledge to consult people both inside and outside the department in the course of that.

Convening a formal process is something I can't commit to now. If it is necessary, and if I find that the results of inquiry and consultation don't yield a satisfactory result, I will consider that.

WHITEHOUSE: Will you agree to keep me informed of your activities in this area?

MUKASEY: I will.

That's some clever wordsmithing by Mukasey. Although the discussion was specifically about waterboarding he never explicitly agreed to comment on waterboarding, merely on the "internal protocols, norms and practices." And because we are not waterboarding someone as I type this it doesn't qualify as a current practice.

Clever? Yes. Deceitful? Certainly. But as the Ironic Times captured so succinctly, Bush was not going nominate an honest Attorney General any more than he has going to hold a gun to his own head. Refusal to declare waterboarding torture was a prerequisite for nomination.

Joe Klein Still Doesn't Get It

"I have neither the time nor legal background to figure out who's right."

When we last checked in on Joe Klein he and his Time editors were falling all over each other to correct, excuse and explain away the fact that he writes editorials without performing basic research and without understanding the relevant facts. You might think that after that embarrassment he would stick to writing about his area of expertise -- whatever that might be -- but you'd be wrong. What makes Joe Klein such a serious and respected reporter is his ability to compound errors with further errors and to bravely wade once again into issues that mystify him.

Joe Klein once again weighs in on the FISA debate. (It's worth reading the comments at the end -- his readers are on to him) His previous debacle taught him nothing about FISA but it did teach him a neat trick: instead of saying things that are misleading or outright false, he trots out others to do it for him. This way he is merely "reporting" rather than inventing.

Over the past few weeks, I’ve asked Constitutional Law professors from Harvard, Yale and the University of Chicago about the immunity provision. There are differences of opinion—no one is thrilled about immunity, to be sure—but the bottom line is, essentially, that this is a lesser issue diverting attention from the passage of an important law.

Joe Klein talks to some contacts of his and they all agree with Joe Klein. Amazing how that works out.

At the start of his piece Klein rattles off a list of issues that have "broad agreement among most members of Congress." But he never takes the next step in suggesting that Congress go ahead and pass a bill containing those broad agreements. If "no one is thrilled about immunity" Klein could write a piece admonishing Republicans for insisting on it-- but that's not the Klein we know and love. No, our Joe Klein is busy rounding up "experts" as clueless as himself who can join him in uttering a few half-hearted words against telecom amnesty before blindly supporting it.

So how big a deal is the immunity provision? In effect, it is a grandfather clause: it essentially says that telecoms should not be punished for acts that were illegal in the past but now become legal in the FISA reform bill. In other words, it would be like prosecuting a doctor in 1974 for abortions he performed before Roe v. Wade was decided. He had performed abortions when they were illegal, but they were now legal and therefore…what? None of the legal scholars I spoke with were sure how such cases had been handled in the past...[em. added]

His analogy is nonsense but beyond that look at the last line. The entire premise of his piece is that instead of offering his own uninformed opinion he will report on what his experts think -- but they are no more informed than Klein! Klein couldn't be bothered to perform his own research (didn't have the time nor legal background) and neither could his contacts. So now instead of having to listen to one ignorant and lazy pundit we have to listen to a handful. Much better. They argue that telecom amnesty is acceptable while admitting they don't know how it works.

Klein's experts aren't experts on retroactive immunity. Well surely they are experts on the immediate issues surrounding FISA right?

Barron, however, is opposed to lifting immunity for telecoms "because, going forward, you don't want to send the message that anyone has a free pass to act illegally on such a basic Constitutional question, even if they've been asked by the government to do so." Barron acknowledges that there are mitigating circumstances in this case: the country seemed under the threat of imminent attack in the months after 9/11, when these data-mining requests were made, and that such searches will now become legal under the new law. He suggests a compromise. The telecoms should not be granted immunity, but punitive damages should be waived if the cases are litigated.

How wrong are thee? Let me count the ways.

1. The warrantless wiretapping began prior to 9/11. "9/11 changes everything" is annoying enough even when it has some grain of truth, and this claim does not.

2. Klein constantly refer to "data-mining" without explaining what he means or how he knows that data-mining is all that occurred. It's hard to believe he even knows what data-mining is, given that he only speaks about it in shifting generalities.

3. "Such searches will now become legal under the new law" is entirely circular logic. Much of the debate is centered around the question of whether certain surveillance techniques should ever be legal.

4. While arguing that law-breakers should not get a "free pass" the proposed solution is just that: literally a free pass. Some compromise.

Joe Klein's experts are just repeating the same falsities and inane logic Klien himself employs to give his opinions a veneer of respectability.

Professor Cass Sunstein of the University of Chicago agrees that if no immunity is granted to the telecoms, there should be no punitive damages: "Huge damage awards would just be passed on to the consumers in any case." But Sunstein also believes that the importance of immunity has been blown out of proportion: "This is a terrible, mostly symbolic fight. The stakes are far lower than the level of noise suggests. The notion that essential civil liberties are at stake here is just an exaggeration. The important thing is to get the new statute right."

If "the important thing is to get the new statute right" then why are Klein and his allies pushing to pass a bill that includes provisions that "no one is thrilled about"? The argument that huge damages would be passed on to consumers could of course be used in defense of virtually any corporate misdeed.

So far Klein has done well in letting his experts make inane assertions on his behalf, but in true Joe Klein fashion he has to get in on the act:

But the NSA program, if operated under the legal restrictions imposed by an updated FISA law, is a crucial intelligence tool. It has the potential to prevent the next 9/11. (And indeed, it should be remembered that the actual data-mining is done by mid-level, apolitical NSA employees—political appointees of the Bush Administration have absolutely no legal access to the information and there have been, to my knowledge, no specific abuses reported so far.) If, for example, it is found that Bush administration officials were sifting through the NSA data to gain information on their political opponents, then they should tried, convicted and thrown in the clink for as long as possible....But there is no suggestion that they, or the telecoms, have done anything like that.

The Bush Administration and the telecoms in question have already demonstrated a willingness to break the law, and people like Joe Klein argue that they deserve no penalties for those illegalities; the argument that things will be swell if everyone follows the law to the letter is naive at best. Given that they already broke the law without penalty what makes this time different? A pinky-swear?

Klein pretends to speak authoritatively that only "apolitical NSA employees" are privy to data and that surveillance powers have not already been abused. How he knows these things is a mystery, especially given that he continuously gets even basic facts wrong. The reality is that nobody knows to what extent surveillance powers have been abused. The Bush Administration has repeatedly hidden behind state's secrets privledges and executive priviledge to avoid divulging information and telecom immunity would short-circuit the already difficult process of discovery through court proceedings.

Joe Klein has no idea what the administration has done so far; he has no interest in finding out and advocates policies that actively prevent those who are interested from further investigations. He's willing to see and hear no evil and wants to force us to do the same by law.

The entire thing is so disengenuos. The clueless Klein lines up equally clueless experts who all back up his opinion that we have to vote for a bill regardless of content or the terrorists will win. He writes editorial after editorial arguing that Democrats should cave and include nonsense provisions but he'll never argue that Republicans should stop politicizing national security policy and stop insisting on policies that even his own experts pay lip-service to opposing.

In Joe Klein's world it just has to be the fault of Democrats. That's his invented narrative and he's sticking to it. They should just suck it up and vote for bad bills because asking Republicans to vote for good bills is not proper decorum.

Just once I'd like to read a pro-amnesty editorial that didn't include falsehoods and purposely misleading rhetoric. I suspect it will never happen because the case for telecom amnesty is so anemic it's impossible to prop up without a relying on a loose relationship with the truth.

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Anatomy of a Dishonest Editorial

Instead of On Language maybe I should do On Dishonest Rhetoric. I am experimenting with a new style of commentary on written pieces that avoids breaking the original piece up into small chunks. Seems to work well but your mileage may vary.

Update: I've changed the wording slightly in response to a comment. Technically there are no outright lies in the editorial, just purposeful distortions.

What's it like to have no shame? Ask the editors of the Wall Street Journal. Their Wiretap Politics op-ed is a perfect example of purposely misleading rhetoric. Time to break out the red pen.

We're told that Senate Majority Leader Harry Reid is saying privately he now won't attempt to update the 1978 Foreign Intelligence Surveillance Act (FISA) on the wiretapping of al Qaeda suspects. Instead, he'll merely support another 18-month extension of the six-month-old Protect America Act. Among other problems, the temporary bill includes no retroactive immunity for the telecom companies that cooperated with the feds after 9/11.¹

In October, the Senate Intelligence Committee passed a bill updating FISA on a bipartisan vote led by Democratic Chairman Jay Rockefeller. It would provide a Congressional blessing for warrantless wiretaps of suspected al Qaeda communications overseas that happen to pass through U.S. switching networks², as many do in a world of packet switching and fiber optics. The bill also gives retroactive immunity to the phone companies, which have been sued by the likes of the ACLU for hundreds of billions of dollars for the crime of answering a President's request for assistance.³

1. Note that lack of amnesty for law-breaking corporations is characterized as a "problem", as opposed to "how the law works."

2. This is not what the bill actually does -- a blatant distortion. The text of the bill is freely available. The bill does not merely allow warrantless wiretaps on communications that "happen to pass through U.S. switching networks", it allows warrantless wiretaps on communications where one endpoint is a US citizen inside the US, as long as that person is not the designated target. It's right there in section 702 b.(Which includes the hilarious clause that the surveillance "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." Shouldn't that go without saying?)

Maybe like Joe Klein the WSJ editors don't have the inclination and legal background (AKA basic English language comprehension) to read the text of the bill and figure out what it says? Or maybe they are just cynical manipulators. Take your pick.

3. The ACLU is a favorite punching-bag of conservatives -- somehow fighting for civil liberties is anti-American these days. But the real gem here is the notion that the "crime" these companies committed was "answering a President's request for assistance" -- which is not a crime at all. Helping the President is not illegal, so why aren't these cases instantly thrown out of court? If the only "crime" here is a non-crime then why do these companies need amnesty?

The "logic" here is extraordinary: these companies have done nothing illegal, so they need protection from lawsuits, or else they might be found guilty in court of engaging in illegal activities.

Only lawbreakers benefit from amnesty.

The Bush Administration is aware of Mr. Reid's plans and is debating a response, and we hope Chief of Staff Josh Bolten and the President don't flinch now. Immunity for the telcos is not only fair but crucial. As the Senate Intelligence Committee concluded, these companies acted in response to written requests or directives assuring that their activities were authorized by the President. "The extension of immunity," wrote the panel in its conference report, "reflects the Committee's determination that electronic communication service providers acted on a good faith belief that the President's program, and their assistance, was lawful."

Even I know that ignorance of the law is no excuse for lawbreaking, which is all the above amounts to. At least one telecom company, Qwest, did not believe that participating in warrantless wiretapping was legal. Perhaps Qwest lawyers took the radical step of reading relevant laws.

Title 18 of the US Code already includes a good-faith exemption. It's right here in Section (d). Nothing prevents these companies from using that defense in court.

Who did the Senate Committee call as witnesses? What evidence did they consider? We have no idea. We have a very well-defined system for determining innocence and guilt in this country, and it does not involve the legislative branch making broad proclamations following secretive procedures.

Again, the logic at the root is that these companies need amnesty because they did nothing wrong. Curious.

Mr. Bush also has all the high political cards here. Most Americans think it's preposterous that a judge should have to approve listening to foreign enemies¹, and a fight over this in an election year is the last thing smart Democrats want.² Mr. Bush could help his successor and the public by promising to veto any FISA extension that isn't permanent and infringes too much on Presidential war powers. If this issue were such good politics for Democrats, Chris Dodd might have done better than sixth in Iowa.³

1. Here we have the common "most Americans think exactly what I think" ploy. In this case not only is it a lazy and unsupported argument but also irrelevant, as Democrats do support wireless wiretapping for "communications overseas that happen to pass through U.S. switching networks."

2. And here is another common ploy, the old "the best advice for Democrats is to act exactly like Republicans." Funny how that is always the case. We were told that Democrats were making a huge mistake by opposing the War in Iraq, followed by Democrats sweeping into control of Congress on exactly that platform. According to the WSJ the President "holds the high political cards" and it would be wise for Democrats to follow the lead of an historically unpopular President they were elected to oppose.

3. There is an obvious logical fallacy here in stating that a candidate's issues must be unpopular because candidate did poorly in Iowa, especially a candidate like Dodd that was never given any media attention. By that logic all of Guiliani's issues are unpopular as well, something you won't see the WSJ arguing any time soon. And in fact Dodd received his biggest bumps in popularity and campaign contributions when he championed these issues - it was good politics for Dodd.

The more subtle error here is that the argument has shifted entirely from what is good for US security to what is good politics for Democrats. The argument that we should violate the Fourth Amendment because it is a good career move for politicians is absurd on every level. Why should the citizens of a country or the staff of a newspaper editorial board encourage political careerism?

This editorial is not just silly or poorly reasoned, it contains blatant misrepresentations. Democrats do not oppose modernization fixes to FISA that make foreign-to-foreign warrantless wiretaps legal. That is pure fiction.

It should be scandalous when a major newspaper puts out editorials that deliberately mislead. But instead it is ordinary. Nearly every editorial and every TV pundit appearance in favor of telecom amnesty includes the same mischaracterizations of both what Democrats support and what the bills actually do. These errors have been repeatedly corrected for months -- at this point they must be purposeful. It's not in the best interests of telecom amnesty supporters to deliver the unadulterated truth -- so they don't.

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I Endorse Kodos for President

Kodos drools with anger at having his name spelled incorrectly in the title.

I don't do endorsements. Vote for whoever you want.

It annoys me that from the very start the Democratic race has been billed as Obama vs. Hillary, with Edwards making a cameo. The media creates a chicken-and-egg problem: a candidate does not have buzz, therefore the media doesn't cover him, therefore the candidate does not have buzz. I was saddened to see Chris Dodd depart so soon. Had he gotten the same coverage as Clinton or Obama his numbers would indisputably have risen.

None of the Democratic front-runners align well with the values I blog about.

I don't like telling people who to vote for or even what party to vote for. However I can't understand how anyone could vote for a candidate that is promising to be the next Bush, only more so. (Giuliani, Thompson, Romney and McCain.) If you loved Bush then vote for one of them I suppose. They fall all over each other to claim the Reagan mantle but when you put their policies side by side with the current Bush Administration's the differences are negligible. They are all warmongering anti-Constitutionalists. Romney wants to double Gitmo, Giuliani wants to invade Iran, McCain wants troops in Iraq forever.

I strongly endorse not voting for any of those clowns.

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Will McCain win in New Hampshire tomorrow?

We could pontificate on this for a while -- or we could wait one whole day and find out.

But no, since we're the media, we'll pontificate for a while. Because predicting what will happen tomorrow is a valuable service to the audience.

Oops there is no time to get into candidate policies, we've spent too long handicapping the race. Join us next time!

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We Don't Drink the Kool-Aid Here

Critical thinking is a foreign notion to some people, especially when it comes to analyzing their own viewpoints. Here at Common Nonsense we believe that all views should be subject to critical analysis, including and especially our own. We believe that the means to an end are important, and that a poor argument in our favor is still a poor argument.

Some people disagree. From FreeRepublic.com:

Did the weakest Dem candidate for the general election won tonight? I think so.

By sending forth Hussein Osama out of Iowa, Democrats have unwittingly weakened their general election prospects.

Hussein’s exotic mixture of radical liberalism, Kwanzaa Socialism, antipathy towards the unborn, and weakness against his jihadi brethren will all come back to destroy him against almost any Republican opponent, even the snake-grope from Hope.

I think we as Republicans should be celebrating tonight at the coronation of Hussein, in whose presence millions of Democrat women, from elementary school teachers to journalism majors to law school grads to dykes on bikes will go weak in their knees.

As defenders of this great Republic, and of the pinnacle of Western civilization that it represents, we should all come together tonight and agree on a common strategy that will keep the White House from becoming a madrassa.

How can anyone write read or write this dreck without being painfully embarrassed? First it is the too-common wishful-thinking everything-is-good-for-us variety of conservative "analysis" -- no doubt if Clinton had won a similar piece would have been written about her. Second and more importantly it's just plain stupid. Kwanzaa Socialism? Hussein Osama? Jihadi brethren? It's one empty rhetorical jab after another, cotton-candy writing at its finest.

Were I a conservative who disliked Obama I would still feel compelled to point out that the piece is poor, that "Kwanzaa Socialism" is an invention and that his name is Obama with a 'b'. The readers of FreeRepublic have no such objections. (Read the comments yourself) They agree with the general point, "grr Obama bad!", and that's good enough for them. There are no other standards in play, including basic accuracy.

Not content to let FreeRepublic monopolize stupidity for a moment RedState.com gets in on the act.

The bad news: our liberal “friends” – you know, the ones who believe so strongly in free speech and open debate – have done what they can to prevent us from making these improvements, so that our influence will be minimized just as we head into the 2008 presidential primary season.

No, our Blue State buddies haven’t succeeded in stopping us from improving our website. But they’ve made it more difficult and more expensive – which is why I’m coming to you for help.

Let me explain …

You see, when we started RedState in May of 2004, we used a website program called Scoop — the same program a lot of similar sites on the left used. But, as the number of visitors to our site grew, Scoop kept crashing on us.

If we’d been a liberal website, we would have been able to fix the problem quickly and relatively cheaply. The online left loves Scoop. Unfortunately, there weren’t really any conservative Scoop developers out there to help us. We kept crashing and were out of money. We had to close down or take drastic action.

This from people who fetishize self-reliance. (I left out the part where they beg for money) Liberals may pretend to be for free speech but since they aren't doing charity work for RedState clearly that's merely pretense. Follow the logic, if you can.

It's so absurd it's impossible to satirize. Even their own technical incompetence is somehow the fault of liberals.

Again an honest person who reads RedState should still feel compelled to point out how incredibly stupid this is, how it goes against the RedState disgust with handouts and opposition to victimhood. But again most RedStaters have no problem with it. To them there is no bad way to blame a liberal.

---

Crappy writing does not deserve a free pass based on ideology. Common Nonsense is not a liberal or Democratic blog. It's not about our team winning. Our team is the truth as we best understand it and policies derived from factual analysis.

We reject the notion that what you can be sloppy or deceiving in service to a greater good, one of the hallmark concepts of the Bush Administration. Accuracy and precision are themselves greater goods. The process of deriving conclusions matters more than the conclusions themselves.

Places like RedState and FreeRepublic do not attract people who like to think, they attract people who like to agree to a rigid ideology. That is not our goal. That is why we avoid in-group jargon, why we stick mostly to substantive complaints, why we make arguments based on primary-source material. We do not have to stretch the truth, outright invent, purposely misspell names or rely on cheap rhetorical tricks because unlike at FreeRepublic we don't have to. The simple facts are good enough.

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On Language: Habeas Corpus and Constitutional Text

I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —
Alberto Gonzales

In a way Alberto Gonzales is quite right: the Constitution does not explicitly grant Habeas Corpus.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Of course, by that same logic Amendment I does not grant freedom of assembly, Amendment II does not grant the right to bear arms, Amendment IV does not grant protection from search and seizure, Amendment VII does not grant trial by jury and Amendment XV does not grant voting rights. (It's true -- read 'em!)

The completely naive defense against this clever rules-lawyering is that it sure seems strange to include passages in the Constitution with no meaning. But we are not completely naive. The Constitution is written the way it is for good reason. And if you aren't sure what that reason is Amendment IX provides a hint:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Constitution does not grant rights to the people as much as it grants rights and places restrictions on the government. When the Constitution was written the right to Habeas Corpus had already existed for at least 500 years, having been formally written-up in the Magna Carta of 1215.

The fact that the Constitution does not expressly grant certain rights (shorthand I am guilty of using) makes a powerful statement about the nature of those rights: that they exist before and outside of our modern government. Rights granted by the government can be repealed; intrinsic rights can not be. The government does not grant us poor peasants rights as it sees fit, instead we force the government to keep it's hands off our pre-existing rights.

You don't have to take my word for it. Federalist Paper #84 explains why the original Constitution did not include a Bill of Rights at all.

The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provisions in our constitution, are perhaps greater securities to liberty and republicanism than any it contains.
[...] The observations of the judicious Blackstone in reference to the latter [Habeas], are well worthy of recital. "To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British constitution."

Gee, Habeas sounds kinda important. But we continue:

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.
[...]
It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. [...]
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Here we see exactly why Alberto Gonzales' words were a purposeful misrepresentation of the truth that should have gotten him impeached on the spot. The Constitution does not grant certain rights because the government cannot grant that which all people naturally already have. Nor can the government restrict rights it has no power to restrict. As we see above, Hamilton believed that including rights in the Constitution only allowed for the plausible fiction that the government decides what rights we possess at all, when it is the people who grant the government its rights, not the reverse.

Sadly the Bush Administration has an antagonistic view of the Constitution and the Justice Department works not to enforce it but to actively undermine it by purposely interpreting it as exactly opposite the intended meaning. Once again the familiar question arises: are they ignorant or dishonest?

Gonzales thought (or pretended) he was on to something when he pointed out that the Constitution does not explicitly grant Habeas Corpus, as if that justified the denial of Habeas rights. Nothing could be further from the truth, a self-evident fact for any good-faith actor with a basic understanding of the Constitution and its history.

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