Dismembering Justice

In my last article on the torture conducted by the Bush administration, I may have left out another important reason for a full and complete reckoning for all involved at every level of government. It was in my last article I explained why I understand that Obama won't prosecute the agents that carried out the torture. To reiterate, we need our agents in the field to be able to do their jobs without worrying about the outcome of the next election and whether their actions will become unpopular.

However, of course that was the plan of the Bush administration all along. It now appears that from the beginning they planned on denying any responsibility for the torture by arguing that they had only asked how far they could go legally and it was the nefarious Department of Justice that told them to torture. Though, the new information seems to indicate that those lawyers were pressured to produce opinions that indicated torture was legal.

Given the amount the DOJ was politicized by the Bush administration it is highly unlikely that any advisory opinion that emanated from that DOJ was free of undue influence. Also, why would the DOJ have generated this opinion if it werent asked? And why would the question have been asked if it werent abundantly clear what the "correct" answer was?

Though if you believe the story being sold to us by the former administration through MSM is true, that every lawyer "consulted" by the Bush administration agreed that the techniques were legal, that does not make it so. The DOJ does not make the law. Congress makes the law. And Congress has made torture illegal. As I have explained in my previous article, waterboarding and the other techniques used were and still are torture.

Tortured Logic

As Daniel Schorr indicates, it is absurd that the current dialogue regarding torture is focused on whether and when it is OK instead of what Pelosi knew and when she knew it.

I should probably start out with the basics and define torture. Especially since ambiguity over what is and is not torture is abused by armchair nationalists to cloud the debate.

"torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Art I, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Or if you prefer U.S. law:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

18 U.S.C. §2340. The definitions are substantially similar in the act that constitutes torture is the infliction of severe suffering, though the U.N. treaty requires a particular goal in mind they both define torture as the act of a government. So clearly, any argument based around the ambiguity inherent in the word "suffering" designed to imply that imprisonment qualifies as torture is disingenuous at best. Any reasonable person would agree that water boarding fits under this definition as torture. The argument that the presence of a doctor during waterboarding changes it into something other than torture because the victim is less likely to die cuts decency to the quick. The blatant disregard for both the legal definition of torture and the suffering of the victim lays bare that anyone making such an argument has no respect for those the argument is being made to.

One might raise the argument that such legal protections only extend to uniformed soldiers captured on the battlefield. This ignores the clear intention of the above convention which indicates that it is the goal of the person performing the torture that makes the act illegal, not the identity of the tortured subject. It's simple common sense to say that if we have the jurisdiction to hold a person then they are under the jurisdiction and protection of our laws regardless of whether we find it convenient. Further, though the United States Supreme Court has not decided this narrow issue yet, it has decided a line of cases that a rational person would think extends to cover this situation (a rational person being one who has not set out with the goal of achieving an end result where torture is justified). In a line of cases from Ex parte Milligan to Boumediene v. Bush the Supreme Court has held that even the detainees at Guantanamo Bay fall under the protection of U.S. law and that they can not be deprived of fundamental rights like Habeas corpus. Also, that Congress and the President, even working together cannot simply declare certain people and places to be without those protections.

Though it is yet to be determined if the prohibitions against torture apply to non-uniformed foreign national enemy combatants captured in a foreign country, we have frequently tried to make a clear argument on this blog that the protections of the law should apply to these people. I have tried to make this argument by making the implication that any innocent American citizen could be taken to Gitmo. Of course, any time someone implies that the government could wrongfully imprison an innocent person the notion is labeled as X-Files type conspiracy lunacy. Which is why I have tried to be careful and point to situations that show how easy it is to be mistakenly labeled as a terrorist. Where the no-fly list includes the names of innocent people, or where police label nuns and peace activists, that they admit are innocent of any crime, as terrorists.

If you combine the fact of how easy it is to become labeled a terrorist or an enemy combatant with the fact of how difficult it has been for those in Gitmo to even contest that label, even when they have been found innocent by their own government, you see that torture is being used on people merely for being accused of being a terrorist, having not been found guilty in any court, merely because there is the possibility that they may have some information that could be obtained through torture that could not be obtained as quickly through more conventional interrogation. Even when good old fashioned investigation still works. I am not so foolish as to believe that everyone in Gitmo is an innocent victim of circumstance or that there aren't dangerous terrorists being held there that can never be released without representing a serious threat to the American people. I am just worried about the labels being used and logic being applied to justify locking people up for an indefinite period of time punishing them without the accusations against them(and their accusers) seeing the light of day and I am particularly uneasy about the U.S. torturing anyone, especially in such suspicious circumstances.

Still Cheney is making the political talk show rounds insisting that torture produced valuable intelligence that saved lives. This argument is being picked up and repeated as if anything Cheney says about intelligence to the media can be trusted after the fiasco that was the run up to Iraq and the Valerie Plame scandal. It has even been revealed recently that torture was even used to produce some of that bad intelligence that Colin Powell presented to the U.N. security council.

This is exactly the worst case scenario that comes to mind whenever there is mention of torture. There was no ticking time bomb and the poor sap being tortured didn't know anything and only gave the people committing the torture what they wanted to hear in order to end the torture. That bad information was relied on to put us in an unnecessary war and thousands of people have died. Yet the idea that torture produces effective intelligence continues to be tossed around like it is a valid argument. Even if torture produces good intelligence some of the time, the risk that bad information will be relied on because it is what is politically expedient at the time is far too great a risk for us as a nation to be throwing our morality to the wind.

Even if torture works it is still morally wrong. Unfortunately I don't have any arguments here, just a bald assertion of a moral absolute.

I could argue that Alberto Gonzales was clearly wrong at his confirmation hearing when he said we can never be like our enemy's. Or I could parrot the refrain that being seen as abandoning our collective principles encourages extremist anti-Americanism. Or I could point to the damage this does to our international relations. Friendly nations wonder why we have fallen from being Regan's shining beacon of freedom on a hill, and antagonistic nations like Russia and Iran point to our abuses when we criticize them for kangaroo trials or oppressive measures. I could point to truly oppressive regimes across the globe that now simply label as terrorists those they wish to abuse. However all those are pragmatic reasons, and I don't think that is the best foundation for a moral absolute. I know torture is always wrong because I have human compassion. And you know it too.

All that is beside the point. Torture is illegal and water boarding is torture. The only reason I can think of that the MSM has allowed itself to be hijacked by Cheney again is that Obama has decided that the people who committed acts of torture under color of law will not be prosecuted. So that ends that story. Only vague questions of conspiracy remain and the question still appears to be open as to whether those that wrote the torture memos and the members of Congress and the Executive branch who were complicit in authorizing torture will face any kind of consequences.

It is vitally important that we zealously prosecute everyone responsible for the use of torture from the interrogators and their commanders and guards at the camp that knew it was happening to those that wrote the memos and everyone in power who knew it was happening and did nothing to stop it. even if that means throwing half of Congress in prison. This is important for a couple of reasons. First, a full and complete prosecution of everyone responsible will correct many of the above mentioned pragmatic reasons that torture is wrong. Clearly extremists will continue to hate America for irrational reasons. However, by taking pains to correct our misdeeds we will show to friends and enemies internationally and future leaders of America that we are a nation committed to the rule of law and that we can bravely face our own misdeeds and see justice done.

The next reason is that only a full prosecution of everyone that could possibly be complicit is the only way to actually see justice done in this situation. Where the government at all levels and in multiple branches participates in enacting a broad policy that is illegal and immoral and actually produces negative consequences simply rooting out a sacrificial lamb like "Scooter" Libby only perpetuates the sense that those in power who are ultimately responsible for the crime are beyond justice. A full prosecution is also important to avoid domestic political wrangling. If we put Cheney on trial Pelosi needs to go on trial as well. So does every member of Congress that was briefed on the use of torture and everyone in the various agencies that used them, both political appointees and career agents. I am not saying that we need to imprison half the government and military, but in the interests of justice there needs to be a full and impartial investigation that brings charges against those who appear to be guilty of serious crimes against U.S. law.

I understand Obama's order that the interrogators not be prosecuted. Spies and agents in the field are not legal experts and have to be able to rely on the orders of their superiors. Unquestioning reliance on the command structure is vital to successful military operations. Still, there is a point where the guy who has boots on the ground knows something is wrong. That an order is wrong. It is that person's responsibility to say "no." I know it is a hard and cold and frankly unrealistic rule but that is the very same thing we say to accused former Nazi prison camp guards as they are extradited and prosecuted for simply guarding the camp. (No I didn't just fall prey to Godwin's Law)

I further understand Obama's decision not to prosecute the interrogators because doing so would turn our agents in the field into political paws by using them as a sacrificial lamb. An agent in the field has to be able not only to rely on his orders but also to believe that he can effectively carry out his mission even when there is an election coming. They need to know that they won't be hung out to dry just to appease the public when the party in power changes.

Because prosecuting the interrogators is off the table and it is highly unlikely that Congress will enact legislation that could put their own members in prison, and because there is a current sentiment that we need to move on with current troubles and not be concerned with the egregious acts of the prior administration it is highly unlikely that we will see any kind of full and non-partisan investigation that results in justice being done. The most we will see is someone like John Yoo getting a slap on the wrist. I am still too cynical to believe even that will happen.

Gun Control in Washington D.C. - No, This isn't a Repeat

I had previously remarked about the bill moving through Congress that would give full voting rights to Eleanor Holmes-Norton (D-D.C.). In those comments I also remarked that it was interesting that John McCain was voting against more equal representation of the nations citizens on what appears to be party lines because the seat is expected to be solidly Democratic. People have tried to throw a red herring into this debate by claiming that only states can be represented in Congress. Which is an interesting academic debate from a legal perspective but in reality is a smoke screen for partisan bickering. I find it hard to believe that anyone actually has a principled stance on the nature of the state when it comes to representation in Congress like they do about gun control or abortion. It's a politicians issue and I seriously doubt that framing the issue in this way will get any traction.

To be sure, the Republicans aren't the only ones with partisanship dirt on their hands. The Democrats brought this up because they wanted the extra seat, and threw in the extra seat for Utah as a token gesture. That seat is likely to be just as solidly Republican but Utah was due that seat in 2000 and would be getting it in 2011 anyway after the next census so really, the Democrats aren't giving the Republicans anything of similar value to what they are attempting to give themselves. Still for me this is a freedom and democratic representation issue.

The real fun came in last week when the Republicans dusted off their old roadblock issue, gun control. This article comes from the same ignorant perspective that most MSM coverage of guns has but covers some interesting angles on the nature of gun politics in the Capitol. It pisses me off that in their effort to be as childish and partisan as possible the Republicans are dragging gun control into the mix. Sure it worked, but bringing an unrelated issue into the debate was crass and only indicates that these Republicans don't take a principled stand on anything. It's all politics.

The thing that pisses me off about this is that there is a legitimate reason for the Republicans to bring this up but they don't see it. They don't see it because they don't care about the Second Amendment. All they care about is political power and what they can get away with.

The real issue is the 5-4 decision in Heller. For gun rights Heller is Roe v. Wade. Heller affirmed that the Second Amendment protects the right of the individual to keep a pistol independent of any militia. That is a reasonably narrow interpretation but D.C. interprets the holding even more narrowly to only mean that individuals may keep a loaded single action pistol in their home. Which would mean a definition of "firearm" that is even more restrictive than the now expired Brady Bill and would mean that it is illegal to transport a firearm in any kind of working order. Lots of people on the abortion issue are eyeballing the Supreme Court and not just because of Justice Ginsburg's recent illness. (may she always be healthy and live to be 100) If D.C. can argue for their narrow interpretation successfully or if the balance of The Court shifts, the triumph of gun rights will have been short lived and the jubilation of gun nuts will turn to rage. Federal preemption of further suit by the fascists in D.C. will preserve the rights of law abiding citizens and help close a chapter of wasteful, ineffective, and unconstitutional legislation.

The Walk of Shame: Corruption and Government, Don't Look So Suprised

Apparently the tax law is so complex that even the guy in change of writing it doesn't understand his own obligations under that law. Or maybe he just forgot to report tens of thousands of dollars in income over two decades. Somehow, I think that if I made a similar mistake there would be gruff men in dark suits knocking on my door.

Speaking of money owed to the government. Days after the Interior Department received an award for high standards of integrity the Inspector General of the Interior Department issued a detailed report describing inappropriate conduct among the minerals management services who collect royalties from oil companies. The sordid dealings include contract fixing, inappropriate sexual relationships between regulators and oil company execs, and regulators being on the payroll of oil companies as consultants. The missing money comes in where the MMS has failed to pursue thousands of dollars in royalties owed to the government by the oil companies while they have been racking in record profits and growing fat off of huge tax subsidies. Subsidies which also don't seem to be doing anything to keep gas prices low. At least the "MMS Chicks" had a good time.

Pelosi seems to think this will effect the nature of the debates regarding increased offshore oil drilling. By which she doesn't mean that this information revealing that the Bush administration could have done something about the rising cost of oil will be used to take increased drilling off the table. (Drilling that wont do anything to reduce the cost of oil since it will take decades for there to be any production and that production will be so small as to not make any impact at the pump.) No, this will just result in some language being added to the bill regarding integrity. This new information won't change anything because it has already been decided to go ahead with drilling. In fact congress has decided to go ahead with a worse plan than that suggested by Paris Hilton.

The Walk Of Shame: Gubinatorial Spending

The governors mansion in Texas was burned down, probably due to arson. This morning the Governor declared he would rebuild his mansion regardless of the cost to the people of Texas. It is interisting to me that a government official would vow to spare no expense in rebuilding his own mansion when there is a mortgage crisis going on now and millions of people are finding themselves homeless.

They have your DNA

Here is another reason for innocent people to fear a government with free access to lots of information. They will use it to widen their dragnet and intentionally sweep up people they know are not involved in the crime they are investigating.

California (that pioneer of hairbrained legal shenanigans) has decided to use DNA evidence to round up family members of whoever's DNA they happen to find at the crime scene. I left DNA everywhere I went today. If a crime happens there later, does that mean the cops are going to go harrass my mother at her workplace in the hopes of finding a clue? Or will they simply use this circumstantial evidence as an easy way of pinning the blame on the first most likely suspect they can scrape up, in a horrifying combination of lazy police work and beureaucratic demands to justify an expensive test?

The practical problems I have with this new California program is that they will be spending millions on testing to answer a question that a simple records check could answer. Also, this law will only serve to create more costly criminal litigation as the courts hash out how it dovetails with the new federal law making its way through congress that forbids discrimination based on genetics.

The Walk of Shame

Jack Thompson is a lawyer in Florida who spends his time acting as an attention whore screaming about the gaming or pornography industries interchangably. Its easy to hate him, but I am compelled to feel sorry for someone who is obviously an extreme result of the psychological pathology of our society. Where we childishly glorify violence and adress sex with a bizarre characture, Thompson lashes out at attempts to profit from this communal tendancy. This man is a symptom of our collective social mental illness. Fortunately for the legal profession, he faces sanctions for his outlandish behavior.
http://www.abajournal.com/news/lawyer_threatened_with_sanctions_after_putting_images_of_kangaroos_swastika/#When:08:10:00Z

The FBI abused its power under the Patriot Act? I'm schocked, schocked! Well maybe not that schocked.

Lastly, for anyone who is somehow so unaware that they may be compared to a cave dwelling hermit and in keeping with our mockery of hypocratical politicians; Elliot Spitzer.

My Contempt for W

If those who are being held in contempt of Congress are above the law because they were ordered not to cooperate by Bush himself, then why not hold W in contempt? There is no article or provision that puts the President above the laws of the land. For offenses up to and including the most heinous crime against a state, treason, the President should expect, as any other citizen, the combined weight of our laws, codes, and regulations when he chooses to violate them. Otherwise, why should any other citizen expect that there will equitable enforcement of the laws? Tin foil hats aside, with just a sparse review of his conduct, there are very simple cases that can be made. For starts, how about the NSA wiretapping program that is widely acknowledged to have been illegal? Then, in the light of Grand Jury discovery, or perhaps even the threat of it, we can finally untangle the web of lies, spin, and contempt which has so characterized the way the Bush administration has treated its adoring public.

Probable Cause

Kenneth Wainstein was on NPR today discussing the warrentless wiretapping bill currently stalled in the legislature. The man must be an excelent litigator, he never became distressed even when faced with difficult questions or confrontational or callers. The part of the interview that sent me into a patriotic rage was his explination as to why FISA is insufficient to aquire necessary intelligence on terrorists. Unfortunately no transcript of the interview is available currently but audio file of the show should be on NPR's website tonite. So I will be forced to paraphraze.

Mr. Wainstein explained that FISA is insufficient because it requires them to show probable cause. Showing probable cause to a judge requires expendature of manpower and time. Those intelligence analysts and lawyers could be doing other things.

So basically the justice department finds it inconvenient and cumbersome to deal with our justice system designed to protect innocent people from abuse of police power. Or in other words, the warrentless wiretapping bill, in its avoidance of probable cause, is designed to circumvent our Fourth Amendment rights against unreasonable search and seizure. Or to put it another way the government wants the ability to spy on anyone with or without probable cause.

In discussions of this nature the question is often raised, "Why do you care?" or, "You should not have anything to worry about if you are not a criminal." These kinds of statements being based in a naive trust not just in the institution of government but in the individuals acting as agents of the government.

Honest, law abiding people have reason to fear not only of being wrongly accused by mistaken identity, beureucratic error, mistake from lazyness or stupidity, intentional framing by the real perpetrator of the terrorism, but we also have reason to fear simple corruption in the hourly employees of the various agencies handeling the information. For example, if you purchase anything over the internet, use internet banking, or speak about your financial information on the phone, you put your account numbers and pin numbers at risk of simple opportunistic theft by the employee handling your info.

For a real world example of things "going missing" after being handled by agents responsible for national security. boingboing

More pertinent article outlining other reasons to be conserned.

Legitimate Law Enforcement or Uncommon Criminal Behavior?

First, by way of introduction, here is a moving testimonial from a cop who doesn't understand the pharmacology of tetrahydracannabinol. (How many style points does that judge have?)



We've already talked extensively about police corruption and brutality. I would agree that there are law enforcement officers who are more than thugs with badges. Unfortunately for those who would like to have a rosy view of the state of law enforcement in America, there is an abundance of evidence that police officers aren't always the most upstanding citizens. But, also, there is a sense of helplessness in the face of power, demonstrated by the examples of police who are charged with brutality or some other criminal charge, yet are given the equivalent of a vacation with pay.

In this case,(with video) a police officer is caught on the camera of his squad car planting marijuana on a suspect. As the suspect already had a warrant out for his arrest, the additional brutality and charges seem rather spiteful.

In this case,(with video) a family from Hobart, Indiana catches their beating on their front yard surveillance camera. I can't help but wonder what that woman said to the police officer to receive that kind of treatment.

In the trial of the two officers charged with manslaughter in the 50+ bullet shootout that resulted in the death of Sean Bell, there has been some pretty startling testimony. I'm sure that the defense will try to destroy the credibility of the witness on cross examination, but the question remains whether or not officers identified themselves as such before they started shooting.

Of course, there is the question or racial discrimination in the enforcement of laws. In some cases, as is allegedly the case in Seattle, there are allegations that police officers arrest minorities on subjective charges, which will invariably tear communities apart through distrust. In other cases, law enforcement officials cover-up the actions of violent racist extremists, as allegedly is the case in North Carolina, which would appear to be a horrible example of officially legitimated violence against those protesting racism and injustice. As the records in question were allegedly destroyed in 2004 or 5, one has to wonder who is being protected by this?

While it may seem a foregone conclusion that our society must have police officers, it is not necessary that there be police officers who flagrantly violate the law. After all, if those entrusted with enforcing the law have no interest in following the law, why should the rest of us? (+ or -?)

Wire Fraud

It just so happens I was working in fraud prevention when this happened. The thing they were doing in the sale of their dick steroids, is something I have observed many companies doing. I will not mention any names because I don't want to get sued. Basically what happens is once they get your financial information for any reason they start charging you for all kinds of crap you never intended to purchase and sending you regular shipments of things you didnt even know they made, or they charge you and never ship the worthless garbage they say you bought.

The company tries to define what they are doing as a monthly subscription or something like that. In the case of enzyte all you have to do is buy one of their other supplements and they start filling out orders you never asked for sending you a months supply of whatever crap you ordered every month and sending you a "sample" of every product in their catalog. One of the main ways they trick you into giving them your credit card information is by offering a free sample that you only have to pay shipping for, then they insist on payment of the shipping cost with a credit card.

This way of behaving once a corporation has your credit card number is not unusual or restricted to companies that sell things that don't really work. Perhaps you have a legitimate subscription service for a monthly entertainment service like movies, internet, cable, or satellite. Any of these companies are likely to continue charging you for services you are not recieving long after you have cancelled your account. Some even stop billing you, wait a few months, then reactivate automated billing without resuming services or informing you. In hard economic times some large and seemingly reputible companies have used this method of raising revenue to enhance their bottom line. Again, mentioning no names, but if you do some research you can find out about some prior federal lawsuits of this nature.

Then once they have your information they are free to charge you for whatever they want and you are unlikely to recover any of that money. When you contact your bank, or usually when they contact you, you will initially talk to an overworked phone jocky who will try to explain the situation to you and try to figure out with you which transactions on your account you did not consent to. Next, you will be transferred to the person who's job it is to say "No." The bank calls them something that leads you to believe its their job to get your money back but reallythey are there to tell you why this fraud is your fault and what obscure federal regulation allows them to deny your claim. Every claim of a fraudulent charge that is maid is filed as an insurance claim by the bank to their insurance company, who also has people whos job is to deny claims. The bottom line they will give you is something like, "you gave them your financial information, so now they can sell you whatever they want."

Sure the product descriptions are intentionally deceptive, and the clause about recurring charges until the end of time are in fine print, and sure all of that might be illegal, but what are you gonna do? Sue?

The Legal Front of the War on Us All

Remember Jose Padilla? Or John Yoo? Apparently Jose is none too happy about being tortured while in the Naval Consolidated Brig at Charleston, South Carolina, and feels as though John is liable for said treatment.

You're on the ship, the USS Censorship

This is writen from an English perspective. As much as the limeys are afraid of freedom this article draws attention to a bill in the Senate will enact censorship here in the land of the free. Write your freedom hating senator and tell them to stop hating freedom.

http://www.guardian.co.uk/Columnists/Column/0,,2170822,00.html

go here to find out why you should care.

http://www.firstamendmentcenter.org/