Reading about the "election" results in Iran, I can't help but marvel at the inexperience (or incompetence) of whoever was put in charge of fixing the results.  Facing what was believed to be a close election, you don't report a 64-35 landslide, and certainly not before the ballots could have been counted.

A better role model would have been Mayor Richard Daley of Chicago, who in 1960 waited until the rest of Illinois had reported its results before announcing the votes from Cook County, which gave John F. Kennedy a margin of victory large enough to carry the state and the Electoral College.  That shows a certain amount of subtlety.

The results from Iran remind me of south Philadelphia (and Democratic) politician Michael "Ozzie" Myers who, early in his career and before he was allowed to be elected to Congress (where he got ensnared in the "Abscam" sting and was sent to prison), was entrusted with the job of getting signatures on a nominating petition for a Democratic candidate.  When the petition was challenged, it was learned that one of the "signatures" on the petition belonged to a voter who had no fingers.

Maybe after a few more years of democracy, Iran will learn how to fix an election the right way.

On the 6/1/2009 "O'Reilly Report" on FoxNews, Bill O'Reilly repeated the claim that recently-murdered Dr. George Tiller had performed 60,000 abortions in his career.  But is that possible?

Roe v. Wade was decided in 1973, so if Dr. Tiller's abortions were all legal, they would have been performed in the last 36 years.  Sixty thousand divided by 36 is about 1,667 per year.  If Dr. Tiller took 4 weeks of vacation, sick leave, or other non-working days each year, that means he performed about 35 abortions a week, or about one an hour (assuming a 9-to-5 day with an hour off for lunch).

Performing an abortion an hour every working day for 36 years is a pace that would have taxed Lou Gehrig.  I don't believe it happened.

Maybe this has been obvious to everyone else for awhile, but it just dawned on me.

If so-called "enhanced interrogations" (i.e., waterboarding, stress positions, sleep deprivation, cold temperatures, and other forms of torture) were used to create evidence of links between Hussein and al Qaeda links and evidence of weapons of mass destruction in order to build a more convincing case for the invasion of Iraq (where more than 4,000 American troops have died),

Then, contrary to what Cheney, Bush, and other apologists have claimed, didn't the use of "enhanced interrogations" cost American lives, and not save them?

Even before Sonia Sotomayor was nominated by President Obama to the seat to be vacated by Justice Souter on the Supreme Court, I had read that her opinion in a reverse-discrimination case brought by largely white firefighters in New Haven might cause her problems.  So I read the opinions in the case, and what I found surprised me in a couple of ways.

One thing that surprised me was that Judge Sotomayor did not write any of the opinions in the case. She was simply one of three judges of the Second Circuit who decided to affirm the decision of the District Court (the trial court) without writing a new opinion. (More on this below.)

The other surprise was that the trial court opinion was largely unsurprising and unremarkable, and appeared to follow the statutes, regulations, Supreme Court precedents, and Second Circuit precedents quite carefully. In fact, the opinion of the trial judge, and the affirmation by the Second Circuit, should be viewed as an example of judicial restraint, and not any kind of "judicial activism." Is that how the Obama administration intends to present the case to the Senate?

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In his "remarks" at the National Archives on May 21, President Obama spoke of "so-called enhanced interrogation techniques" and said the he "ended them once and for all."

But did he?

Obama ended the use of "enhanced interrogation" through an executive order, but anything that can be ended with an executive order can be restarted with an executive order, so there is no assurance that a later President (or even Obama himself) could not reinstitute the same program that brought us Guatanamo Bay, Abu Ghraib, and waterboarding.  Nothing could make this clearer than to point out that, on the same day that President Obama declared that the program was ended "once and for all," former Vice President Cheney declared in a speech to the American Enterprise Institute that he "was and remain[s] a strong proponent of our enhanced interrogation program" and that "every method used was in full compliance with the Constitution, statutes, and treaty obligations."

In order to be sure that these methods have really ended "once and for all," we need a clear adjudication by a court, commission, tribunal, or other public process to establish that what the Bush administration did violated federal law, the Constitution, and international law.  I don't know whether it needs to be a criminal prosecution, a civil judgment, or a bipartison commission.  But we need something that is public and authoritative.  Then, and only then, will those methods be ended "once and for all."

President Obama would prefer not to have to go through that kind of process, and it is clear that his reasons are political and not ethical or moral or legal.  He simply wants to avoid the political divisiveness that such a process could provoke.

I therefore hope that Cheney continues to give speeches and continues to make his views known.  The longer and more often he talks, the more we will see that torture has not ended "once and for all" and that there is still work to do.

GQ magazine has published a slideshow of some of the covers of the Secretary of Defense Worldwide Intelligence Updates that were prepared during the invasion of Iraq and delivered by then-Secretary of Defense Donald Rumsfeld to then-President George W. Bush.  The covers show dramatic (or artistic) photos of military personnel and equipment in Iraq, or entering Iraq, along with Biblical quotations that are (depending on your point of view) inspiring, creepy, blasphemous, or funny.

I looked up some of the Biblical quotations to see how out-of-context they might be, because I was pretty sure that the Bible didn't have much to say about Saddam Hussein, weapons of mass destruction, or invasions of Iraq, and found two quotations that were both contra-indicated and somewhat disturbing.

(In the quotations below, I am using the New Revised Standard Version of the Bible, which is somewhat different from the version of the Bible quoted by the Secretary of Defense, which I cannot identify.)

One cover showed a tank backlit with a rising (or setting) sun, along with a quotation from Ephesians 6:13:

"Therefore put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand."

But the preceding sentence makes it clear that the battle is spiritual and not human or earthly:

"For our struggle is not against enemies of blood and flesh, but against the rulers, against the authorities, against the cosmic powers of this present darkness, against the spiritual forces of evil in the heavenly places."

Another cover showed a picture of Saddam Hussein giving a speech on television, along with a quotation fromr 1 Peter 2:15:

"It is God's will that by doing good you should silence the ignorant talk of foolish men."

But the next sentence is telling:

"As servants of God, live as free people, yet do not use your freedom as pretext for evil."

So exactly how tractable was George W. Bush?  Was he really so simple-minded that he could be manipulated with some glossy photos and pseudo-righteous out-of-context Bible verses?

Bush should have remembered what Jesus explained in the Sermon on the Mount, in Mark 7:15-16:

"Beware of false prophets, who come to you in sheep's clothing but inwardly are ravenous wolves. You will know them by their fruits."

Vice President Cheney and the neocons brought war and torture, the spiritual forces of evil, and the pretext for evil.  Those were their fruits, and that is how Bush should have known them.

President Obama's recent decision to try to continue to withhold from public view photographs of detainee abuse in Iraq and Afghanistan was based on the conclusion that the consequences of the release of the photos "would be to further inflame anti-American opinion and to put our troops in greater danger."

This is a classic "national security" rationale.  We can't reveal the truth because it would put Americans in danger.  And that is the same rationale that led the Bush administration to assert the "state secrets" doctrine in civil suits by detainees against officials of the United States for violations of human rights (see, for example, El-Masri v. Tenet, ___ F.3rd ___, No. 06-1667 (4th Cir. 3/2/2007)) and is one the rationales still used by former Bush officials to argue against the disclosure of further details of the "harsh interrogation" methods approved by the Bush administration.

But what is being kept secret?  That detainees were abused has already been admitted, and those directly committing the abuses have been tried and convicted (but not those ordering the abuses).  And the detainees who were abused know that they were abused, and how they were abused.  So why try to keep a secret that everyone already knows?

During the Vietnam War, I remember reading about the "secret bombing" of Cambodia, and remember reading one commentator who asked from whom the bombing was a secret.  The Cambodians obviously knew they were being bombed, and knew who was bombing them.  The bombings were not being kept a "secret" from our enemy, but were being kept a secret from the American public and from world opinion.  As long as our government called it a "secret," they could publicly pretend it wasn't happening.

The detainees obviously know that they were abused, and they are free to speak of their abuse, so they are free to "further inflame anti-American opinion."  Under those circumstances, the only reason to withhold the photos is to deny the detainees some level of credibility.  We can still pretend that it wasn't that bad, or that widespread, and we can still hope that the former detainees won't be believed or won't be listened to.

In short, we don't want anyone else to see the photos because we are still in denial.

It is said that confession is good for the soul of the confessor, and it is also said that victims of crimes can begin to heal and forgive the perpetrator when the victims can hear a confession of guilt and regret.

We abused detainees physically and, judging by the photos I've seen what was done at Abu Ghraib, we humiliated them and took away their dignity.  Now we want to continue to withhold part of their dignity, because we want to deny them a public admission and public proof of what happened to them.  We want to ignore the detainees and we want the world to ignore them as well.

The best way to reduce anti-American passions is through humility, not secrecy.  We need to disclose, we need to be contrite, and we need to punish those who gave the orders.  In other words, we need to show that we are really serious when we say that this will not happen again.

In the 8/1/2002 memo to then Counsel to the President Alberto Gonzales signed by Jay Bybee, Bybee starts his discussion of "severe pain" (which is part of the definition of "torture" in federal law, 18 U.S.C. 2340), with a brief discussion of the "ordinary or natural meaning" of "severe pain" with reference to several dictionary definitions of "severe."  The discussion concludes with the statement that "the adjective 'severe' conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure."

If the memorandum had continued with a discussion of what is meant by "difficult for the subject to endure," it might have been a good memorandum.  But instead the memorandum wandered off into a kind of legal sophistry.  Let's not wander off now, but instead look at what kind of pain might be "difficult for the subject to endure."

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I can't yet let go of the "torture memos," and I'll be posting more commentary on the legal and ethical problems that Jay Bybee, John Yoo, and others face for trying to justify the unjustifiable.

But I'm also bothered by what I can only call "torture denial."  People who are saying that it wasn't really that painful, the standards were vague, some lawyers said it was okay, we had good reasons, it was effective, other countries do even worse, etc.

And so I'm going to want to address the justifications, rationalizations, and denials.

But for now I have a simple question:  Does it work both ways?

Is it okay for Al Qaeda to waterboard our soldiers until they vomit?  Is it okay for our sons and daughters to be kept awake for up to 10 days by bright lights and loud noises, while they are so cold that they shiver uncontrollably and their very bones ache from the cold?  Is it okay to spit on the Bible?  Do we have any problem with Americans being shackled in positions that eventually cause them to scream in pain?

Do we accept the principle that our enemies can apply pain to our friends and keep applying increasing amounts of pain until our friends break and are willing to say whatever our enemies want them to say?

Because that is what "harsh interrogation" (and "torture") means.  You apply pressure and stress and pain until the subject does what you want.  If that is acceptable for us, is it also acceptable for Al Qaeda and Iran and North Korea and anyone else in the world?

Saying "We're the good guys" isn't good enough.  It's not enough to talk the talk.  We also have to walk the walk.

Are we willing to accept a "level playing field" for pain and suffering, and allow our enemies the same liberties that we have allowed ourselves?

The following is the text of the letter I have sent to my Representative in Congress, asking that a impeachment investigation of federal judge Jay Bybee should begin:

I am a registered voter in your district, and I am writing to urge you to support an impeachment investigation of Jay S. Bybee, who is now a federal judge on the 9th Circuit Court of Appeals, to determine what role he played while serving as Assistant Attorney General in the authorization of physical and mental abuse, and possible torture, of detainees.

I have read Judge Bybee's memorandum dated 8/1/2002 to Alberto Gonzales, then Counsel to the President, and there is no doubt in my mind that the memorandum is so wrong in so many ways that it could not possibly be the result of differing legal views, or even incompetence. The multiple distortions of court opinions and legal principles can only be explained by deliberate dishonesty.

The memorandum therefore appears to be the product of a deliberate and concerted effort to subvert and evade the laws of the United States and the obligations of the President under the Constitution. That this effort resulted in both the deaths and sufferings of many people is undisputed.

I do not know whether Judge Bybee committed a criminal act in submitting the memorandum to the President's counsel, but the circumstances surrounding the memorandum, combined with his current status as a federal judge, demand an investigation.

This is a follow-up to my previous posting on the distortions of legal principles in the section on "specific intent" in the Bybee memo on the meaning of "torture." 

A lawyer with considerable experience in criminal law has written the following (which I am quoting here with his permission):

Not only do I think [Ecclesiastes] is right, there are a couple of other ways in which Bybee and Yoo (in all likelihood intentionally) mix apples and oranges. Every experienced lawyer knows the look and feel of another experienced lawyer attempting to provide plausible defense for something indefensible. That look and feel is all over this document.

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Some quick research turned up the following two cases from U.S. courts:

In re Estate of Marcos Human Rights Litigation, 910 F.Supp. 1460 (Hawaii, 1995), was a civil action by victims of President Fernando Marcos of the Phillipines, and the court found that the plaintiffs had experienced "human rights violations" including, but not limited to, "5. The 'water cure', where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation...." The court referred to the listed practices as "forms of torture" that were used in "tactical interrogation," which the court described as a "euphemism for torture, disappearance or summary execution." 910 F.Supp at 1463.

In Cavazos v. State, 160 S.W.2d 260, 261 (Tex. Crim., 1942), it was undisputed that the defendant "was carried from one jail to another by the officers; that he was made to stand for hours on tin cans with his feet bare and with his arms extended above his head; that he was slapped and kicked; that he was given electrical shocks with an iron rod charged with electricity; that he was given what is termed 'water cure' until he was willing to confess and did confess to the commission of the offense in order to escape such further treatment." The court concluded that the confession was obtained "by force and physical and mental torture" and was inadmissible.

Now, the use of the word "torture" in those two decisions is what lawyers sometimes call "dicta," because the federal statute that prohibits torture outside of the United States (18 USC 2340A) wasn't before the courts, and the issues that were before the courts didn't really require a determination of whether the "water cure" was "torture."  So the opinions aren't really "on point" and the language in the opinions has to be taken with a grain of salt.

But the fact that both a federal judge in 1995 considered the pouring of water over a prisoner's face to be a form of torture, and a Texas appeals court in 1942 felt the same way, should mean something.  That the Department of Justice never even looked for these kinds of cases speaks volumes about the "thoroughness" of their research and their desire to reach the result they wanted to reach without having to consider any pesky contrary opinions.

One of the major criticisms of the Bush Administration was that the Department of Justice had been "politicized" and that the White House had exerted too much influence over who should be prosecuted.

As a result, I'm now starting to get unnerved by the questions being addressed to President Obama about who is or is not going to be prosecuted for torture.

I think that the White House is starting to wake up to the fact that it would be better for Obama not to be directly involved in those decisions, both as a matter of politics and as a matter of policy.  The better process will be to:

1.  Let the Justice Department investigate what they believe needs to be investigated, and let the Justice Department prosecute what they believe needs to be prosecuted.

2.  If Congress is not satisfied with the prosecutions (or lack thereof), Congress can hold hearings and investigate.

3.  If the President is not satisfied with a particular prosecution, the President can issue a pardon for that particular person.

Fortunately, all that the President has done so far is talk, and he has not yet issued any pardons or any amnesty.  Let's hope it stays just talk until we see what AG Holder intends to do.

Okay, this one is complicated, so you're going to have to bear with me, but I've seen something in one of the torture memos that parallels a well-known tax evasion scam, sometimes called a "reliance defense package."  The idea is that, in order for the government to convict you of tax evasion, they need to prove that you knew that what you were doing was illegal, but if you have an opinion from a lawyer that the federal income tax does not apply to wages, then you had a good faith, reasonable basis, to believe that you were not required to pay taxes, and you can't be convicted.

Here's the weird part:  The Supreme Court decision that established that a good faith belief is a defense to charges of income tax evasion was cited in one of the torture memos.

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The release of more memos justifying the torture of prisoners by American officials provides more reasons for us to be shocked, outraged, and ashamed of our government, but there are other reasons for us to fear for our future as a society.

1.  We are one of the few (if not the only) modern industrialized nation that continues to execute people.  Until two recent Supreme Court decisions, we were among the only countries in the world to execute minors and people convicted of crimes other than murder (i.e., rape).

2.  We have a greater percentage of our population in prison than any other country, and we have more of our prisoners in long-term solitary confinement than any other country.  (Prisoners of war such as John McCain report that solitary confinement can be worse than beatings, and medical studies have shown that long-term solitary confinement can do long-term emotional and neurological damage to prisoners.)

3.  We have more guns, and more gun violence, than any other industrialized nation.

4.  We tolerate (and even express pride in) a system that denies routine medical and dental care to those unable to pay, leading to horrors like preventable amputations among diabetes sufferers and people pulling out their own rotting teeth with pliers.

5.  At Guantanamo Bay, we imprisoned hundreds of people for years without ever charging them with any crime or allowing them to communicate with lawyers or their families.

So the official sanctioning of torture was not a shocking violation of our principles, but just another expression of our violent and brutal natures.

Which also explains the lack of public outrage over both the admissions of torture and the lack of any prosecutions or consequences for the people who ordered the torture as well as those that carried it out.

Somewhat coincidentally, Newsweek magazine's 4/13/2009 cover story was "The End of Christian America."  If what we have I have described above is what could be called a "Christian America," then the sooner it ends, the better.