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The Role of the CIA

[ 0 ] April 17, 2009 |

Spencer has some thoughts:

And here’s how it’s problematic for Obama, Blair and Panetta to indicate to the CIA that they’ll stand by CIA officers who relied on OLC guidance for the torture. Marc Ambinder observes that there’s some wiggle room in that promise, although every indication from the administration is that it doesn’t want to prosecute CIA officials. And for the most part, I think that’s right. The CIA officer assigned to an interrogation is no more responsible for the regimen of torture that he is asked to inflict — and told all the while is legal — than the soldier in Baghdad is responsible for the invasion of Iraq.

But that doesn’t go far enough.

Most of this story — the torture techniques (except for the insects); the OLC blessings and reblessings — has been thoroughly reported already. What the memos leave unclear is how much the CIA jumped into the torture game and how much the Bush administration pushed it. The memos are written to be responsive to the CIA lawyer — the malefactor going to the priest to give his work absolution. They’re written to guide the interrogators. But they leave unclear — as does most of the narrative so far — who’s compelling Rizzo in the CIA counsel’s office to keep pushing for more. The senior leadership of the agency? The heads of its directorate of operations, which overseas the interrogators? The Counterterrorist Center leaders? Without this information, we don’t have a clear sense of moral culpability for the torture. And then we’ll need to know what kind of pressure they were under from the Bush administration. Who was pressured? Who was eager to comply? Who resisted? Who pressed his or her colleagues into acquiescence or insubordination? All of these questions are related but separate to the question of legal culpability.

And we fail to find most of that out in the absence of an investigation. I’m guessing that the administration believes that the practical downside is this; if CIA officials are ever prosecuted or investigated too deeply, then the Agency ceases to exist as a useful intelligence organization. Even if people within the CIA pushed for harsher techniques, prosecution and investigation after the DOJ granted legal authority for those techniques would have a chilling effect on future operations of all kinds. The first objection to this would run something like “then don’t do anything that might be illegal,” but that has obvious limitations for an intelligence organization, especially when the definition of legality changes every four years or so.

… I should make clear that I don’t agree with Spencer’s comparison between CIA interrogators and US soldiers in Iraq; the former have much wider latitude to refuse requests from superiors, and the morality of their actions is in much greater question (which is to say, really, not in any question at all). I do agree, however, that there is some question as to whether the interrogators can be held legally responsible. For those without legal training (and even many with) the legality of particular methods is not obvious, which is why we have a DOJ that is supposed to render legitimate opinions regarding the legitimacy of certain methods. This is to say that while it’s obvious to me that locking someone in a room with a stinging insect is horrible, it’s not obvious to me that it’s illegal to do so under certain conditions; I’d have to ask someone who was trained in the legal limits of interrogation. I would certainly be surprised to find out that it’s legal, but that’s not the same thing as knowing that it’s illegal.

…Glenn makes a compelling case for the opposite argument. To the extent that I have a rejoinder, it would be that “whether prosecution would produce good or bad outcomes” is always something that has formed part of a prosecutors discretion as to whether proceedings should initiate against any particular individual, and that further the extent to which the memos make successful prosecution unlikely (and I’m uncertain on this point) play a role in the “good or bad outcomes” question.


Opening Day!

[ 0 ] April 16, 2009 |

The only way this could have been any sweeter would have been for a pigeon to fly in right before the first pitch and relieve itself on Jeter’s cap.

I should mention, as Weiner has noted, that he looks right and I look largely wrong about last year’s Yankees/Pirates trade. Nady is right now an injured fourth OF, and will Marte is a better pitcher than he’s been as a Yankee, his value has to be in serious question. I’m still pretty skeptical about Tabata, but 1)he’s probably the most valuable property in the trade and 2)the players they traded have almost no value to them (and I suppose the crappy starters the Yankees throw in may be marginally better than the current alternatives.)

Mixed News on the Bush Torture Memos

[ 0 ] April 16, 2009 |

As Steve says, it’s a mixed news day; it’s good that Obama is releasing the torture memos, bad that CIA operatives who carried out torture won’t be prosecuted. Admittedly, the existence of the memos does make prosecuting lower-level people a difficult proposition, and I could live with it…as soon as Yoo, Bradbury et al. are put on trial and Bybee is impeached and then put on trial.

More on the memos later.

Greenwald: “They are unbelievably ugly and grotesque and conclusively demonstrate the sadistic criminality that consumed our government.”

Forever in Blue Jeans and Baseball Caps

[ 0 ] April 16, 2009 |

Is George Will just another Lee Siegel sockpuppet?

Frankly, I think it would explain a lot.

UPDATE [BY SL]: I excerpt some gems from the column here.

Sarah Palin Crash-and-Burn Watch

[ 0 ] April 15, 2009 |

I’m starting to think my governor might actually be mentally ill:

Gov. Sarah Palin surprised lawmakers Tuesday by forwarding the names of three appointees to the single open state Senate seat. Two of them, Tim Grussendorf and Joe Nelson, have already been rejected by the Senate Democrats.

Palin said the third, Alan Wilson, is a “successful small businessman and active in the community.” He is a former president of the Alaska State Home Building Association and is currently president of Alaska Renovators, a Juneau remodeling company. Wilson only became a Democrat on March 4. He was previously registered nonpartisan, and Juneau Democratic Party officials are opposing him, as they did Nelson and Grussendorf.

Palin appears to have ditched the weird legal theories on which she was relying a few weeks back, when she argued that a 22-year-old legal memo provided sufficient basis to nullify a state law governing the selection of replacement legislators. Now, however, she’s apparently discovered a new way to read the law and — rather than submitting a single name (customarily selected from a list provided by local party officials) — she’s decided to submit a list of her own, indicating that among other things she doesn’t understand the meaning of simple parts of speech like “a,” “the,” or “another.” Tellingly, Palin’s misogynist and homophobic attorney general nominee believes the senate Democrats should stop arguing about whether the governor’s actions are “legal or illegal” and just accept someone to fill the seat.

Meantime, Palin seems wedded to the belief that the state’s capital city deserves unqualified, inexperienced representation in the upper house of the legislature. Tim Grussendorf, like Alan Wilson, had recently changed his party affiliation to qualify for the senate nomination; Wilson’s primary qualification appears to be that his wife sold her some shoes when John McCain decided to end the presidential race two months early she was named as McCain’s running mate. Joe Nelson’s party credentials were reputed to be similarly thin (though I’ll outsource the details there, since Nelson happens to be an administrator at a certain fine public university that has yet to grant me tenure.)

Some of this is rooted in Palin’s widely-known disregard for Juneau — a city she doesn’t believe should be the state’s capital to begin with — and some is surely part of the fallout from the Troopergate investigation (along with earlier conflicts with the legislature over line-item budget cuts). The rest of it is simply a function of Sarah Palin being a uniquely awful executive.

"When they have a club in their hands, no one is more sadistic. When the club is removed, no one is more whiney."

[ 0 ] April 15, 2009 |

What Glenn said.

Force Feeding

[ 0 ] April 15, 2009 |

The Yankees move from ordinary villainy to cartoonish super-villainy:

The New York Civil Liberties Union today filed a federal lawsuit against the NYPD on behalf of a Queens man who was ejected from the old Yankee Stadium last August after trying to use the restroom during “God Bless America.”

The lawsuit maintains that Bradford Campeau-Laurion, a 30-year-old lifelong baseball fan and resident of Astoria, was the victim of religious and political discrimination on Aug. 26, 2008 when police officers forcibly restrained and ejected him from Yankee Stadium after he tried to walk past an officer during the playing of “God Bless America.”

I *HATE* God Bless America.

Call It Democracy

[ 0 ] April 15, 2009 |

Via Yglesias, I see that Megan McArdle has actually pushed the logic of opposing judicial review because it involves decisions that (at least at the federal level) are made by unelected officials where it leads, arguing against an independent federal reserve. I actually think that this is to McArdle’s credit. As djw said, one of the strange things you encounter when reading a lot of constitutional theory is that the properties that allegedly make judicial review “deviant” are, in fact, utterly banal. I think there’s even a certain superficial attractiveness to the idea of considering decisions made by non-elected state actors “undemocratic”; I always like teaching Scalia’s Mistretta dissent, with its objection to creating a “junior varsity Congress” to make decisions elected officials are unwilling to. But my problem with both McArdle and Scalia’s arguments remains that they’re essentially useless. All modern liberal democracies involve large amounts of delegation to unelected officials, and it’s obvious that this is inevitable. Even smart and well-informed legislators are only going to be able to develop policy expertise with respect to a small percentage of what the state does, let alone have time to make the huge volume of relevant judgments. So if an instance of delegation works well — like the federal reserve — works well, I see no reason to dismantle it in tribute to a vision of “democracy” that never has existed and never will exist, and under any foreseeable set of circumstances probably wouldn’t even be desirable.

Another point to make is that the belief that judicial decisions mean that an issue will therefore be “insulated” from the political process that’s quite mistaken. In the case like the Iowa same-sex marriage decision — where there’s an explicit, not-terribly-cumbersome override mechanism and if the court’s decision is “final” it’s only because a majority of legislators and/or the public want it to be — this is clear. But even at the federal level, Supreme Court decisions can’t “insulate” issues from the political process. With respect to abortion, for example, the questions of which marginal regulations will apply to abortion has now been left almost completely to the political process, and the Supreme Court’s prohibition on total abortion bans stands only because of politics — because a bipartisan, cross-regional majority of senators defeated Robert Bork, largely because of his highly unpopular views about the right to privacy. Courts have real powers, but settling public policy disputes of any consequence or removing them from the political process isn’t one of them.

All Piracy, All the Time

[ 0 ] April 15, 2009 |

Dan Drezner and I talk piracy:

See also Spencer on piracy and navy reformers.

Non-Resignation Resignation

[ 0 ] April 15, 2009 |

Apparently, any flamboyant, extremely whiny public resignations notwithstanding, Jake DeSantis is still using the immense expertise he gained by knowing absolutely nothing about the relevant deals to collect paychecks from AIG. I’m sure he’s preparing an op-ed about his lost job security right now…

The Radical Harold Koh

[ 0 ] April 15, 2009 |

The man is so beyond the pale that even the well-noted Trotskyite Ken Starr has endorsed him.

The Post You’ve All Been Waiting For!

[ 0 ] April 15, 2009 |

If it’s mid-April, it must be time for the joint BerubeLemieux Stanley Cup Playoff preview. Michael’s picks are here, and I’m dismayed that he’s not giving the Flames more respect after watching them humiliate the Rangers at MSG. Although, right, that came when some of our good defensemen were healthy. Never mind. In his spirit, I’m going to try not to just pick the chalk

The picks:


(1)SJ vs. (8) ANA This is an incredibly tempting upset pick. Any team with defensemen like Pronger and Niedermayer is a live dog, Giguere (despite is uneven year) has been to two finals and won one, and I like Carlyle. Still, this is a much older and thinner team, and before the matchups I thought that this really would be San Jose’s year, and I’ll stick with that. It won’t be easy, though. Sharks in 6.

(2)DET vs. (7) CLB Despite having seen them choke up a 3-goal lead live, my main impression of the Red Wings is just the obvious one: that they’re scary, scary good. Lidstrom — who I think might be the best defenseman of my hockey-watching lifetime, including Bourque — has barely lost a step, he’s well backed-up, and the forwards remain superb. Hossa was a terrific signing. I generally don’t like to pick teams in their first playoff run. And yet — partly to send a message that I don’t think the Wings will get out of the strong conference again — I’m going to pick the upset. Hithcock’s superb defensive coaching will, I think, mitigate the first-year jitters effect, and the general profile of the team seems similar to the ones that have pulled similar upsets (especially the Ducks). I also think Mason is the real deal, which brings us to the one thing about the Red Wings’ slight playoff underachievement Michael didn’t mention: Holland has, for reasons I can’t fathom, repeatedly taken his Bentley of a team and outfitted it with Lada goaltending. The rest of the team is so good that he’s gotten away with it more than he should, but I don’t think they can win with by far the first goaltending in the playoffs again. It may not catch up to them in Round 1, but it will. BLUE JACKETS IN 7.

(3)VAN vs. (6) STL Given that Luongo is the best goaltender in the conference and St. Louis (though on a nice streak) is the weakest of the teams new to the party, this is the easiest one for me to call in the conference. Vancouver probably doesn’t have the firepower to get to the finals, but they’re too well-disciplined to lose to a clearly inferior team. CANUCKS IN 5.

(4)CHI vs. (5) CGY I should probably be standing up for my team here, and you can make a case. As I’ve said, I don’t like first-time playoff teams, and I’m not sure Chicago’s defense is physical enough. Though once again uneven in the regular season Kiprusoff is talented enough to get very hot in the playoffs (cf. getting the Flames to Game 6 OT against Detroit in a series in which they were otherwise completely dominated in every game two years ago, after beating them two years before that), and their forwards are the deepest and most skilled in the conference after the big 2, and Bourque is apparently ready to go. If they can get far enough to get Regehr healthy, they could be very dangerous. But that’s the rub. I agree with Michael that you can’t pick a team facing the kind of skill Chicago has with their best defenseman out and their #2 and #3 gimpy. And Khabibulin owns the Flames. HAWKS IN 5.


(1)BOS vs. (8) MTL Since I picked Boston as a #8 seed last year, I’m certainly not giving up on them this year. I think that this year’s mediocrity is much closer to the Habs‘ real level than last year’s fluky #1 seed. BRUINS IN 5.

(2)WAS v. (7)NYR Sort of a similar dynamic to the 2-7 matchup in the West — the underdog has the Stanley Cup coach and the better goaltender. Except that Washington ain’t nearly as good as the Wings, even if they have the best player the sport and Green has become the defenseman Phanuef was supposed to be. I like the upset. RANGERS IN 7.

(3)NJ vs. (6)CAR A lot of people see the upset here, because the Devils slumped a bit before the playoffs. But I see the Devils as similar to the Canucks — don’t quite have the offense to go all the way, but it will take a clearly better team to beat them. DEVILS IN 6.

(4)PIT vs. (5)PHI Very interesting series, and tempted to pick the upset as my gut all year has told me that the Penguins won’t get back to the finals quite yet. But I don’t like the matchup the Flyers have; I think Malkin, Crosby et al. will survive at least one round. PENS IN 5.