Ecclesiastes's Blog

How Do Hate Crimes Affect Interstate Commerce?

2009-10-23T14:40:19Z

And is there anything left that does not affect interstate commerce?

The question arises because the U.S. Constitution did not give Congress the power to legislate generally, over any subject, but only over the subjects listed in the Constitution, one of which is the regulation of interstate commerce.

And so, in S. 909, the "Matthew Shepard and and James Byrd Jr. Hate Crimes Prevention Act," which yesterday became part of the 2010 defense appropriate act (S. 1390), Congress dutifully found that violence motivated by bias "affects interstate commerce."

Really? ]]>
When the Constitution was first proposed and then ratified in the late 1700s, interstate commerce was relatively limited. Most food was grown within a few miles of where it was eaten, and most goods were manufactured locally, and by hand. The industrial revolution was just beginning, and the only means of transporting goods long distances was by horse-drawn wagon or by sea.

As our economy has grown larger and more complicated, the importance of interstate commerce has also grown. Today, it's difficult to find anything in any store that was not either grown or manufactured in a different state or includes materials from a different state. And as interstate commerce grew, the power of Congress grew, so that Congress began regulating not just railroads and the interstate movement of goods, but also agriculture, manufacturing, working conditions, and product safety.

When it involves interstate commerce, Congress can legislate against discrimination and bias. The Civil Rights Act of 1965, which made it illegal for hotels, restaurants, and other public accommodations to discriminate based on race was based on the power of Congress to regulate interstate commerce, because there is no power in Congress to legislate against discrimination generally. (The 14th Amendment prohibits states from denying equal protection and does not prohibit private discrimination.) Later legislation has prohibited discrimination in housing and employment, and has extended to not just racial discrimination but also discrimination based on gender, ethnicity, religion, and disabilities.

I agree with all of this. We have a national economy, and we should have national laws regulating that economy. But do two homophobes beating up a gay man outside of a bar really affect the national economy?

According to Congress, it does. Section 2 of S. 909 states (in part) that violence motivated by bias:

substantially affects interstate commerce in many ways, including the following:

(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.

(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.

(C) Perpetrators cross State lines to commit such violence.

(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.

(E) Such violence is committed using articles that have traveled in interstate commerce.

The statute itself limits the crimes relating to gender, religious, gender identity, and other biases to those occurring "during the course of, or as the result of, the travel of the defendant or the victim--(I) across a State line or national border; or (II) using a channel, facility, or instrumentality of interstate or foreign commerce," those committed using a "channel, facility, or instrumentality of interstate or foreign commerce" or using a "firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce," and those that "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct" or "otherwise affects interstate or foreign commerce."

It's difficult to imagine any crime of violence, anywhere, that wouldn't fall under one of those categories. For example, it's pretty safe to say that guns, knives, and even baseball bats are manufactured and sold in interstate commerce, so any crime, committed with any gun, knife, or baseball bat that ever crossed any state line, can now be a federal crime.

And my hypothetical about two homophobes beating up a gay man outside of a bar is a crime falling within the new statute if the fight arose after the victim bought a beer in the bar (which is interstate commerce) or caused the victim to miss a day of work (which affects interstate commerce).

United States v. Lopez, 514 U.S. 549 (1995), is often cited as limitation on Congressional power, because in that case the Supreme Court ruled unconstitutional a law that made it a crime to carry a gun within a "school zone," rejecting arguments raised by the government that violence near schools will affect interstate commerce. However, the statute in question did not include any specific requirement that the crime be found to be "in interestate commerce" or "affect interstate commerce," and there were not findings by Congress about how the presence of guns near schools would affect interstate commerce, so the decision could be distinguished from S. 909 and it is not clear how the Supreme Court will react to "findings" and statutory "limits" like those found in S. 909.

One would think that there is a limit to congressional power, and that Congress cannot extend its power merely because the crime is carried out using some weapon that once crossed a state line, or because of some relatively minor and unintended economic consequence of the crime. But maybe not.

A Sarah Palin Tax Problem?

2009-10-19T23:03:39Z

Back in September, it was reported that a dinner with former Alaskan governor Sarah Palin was being auctioned by charity on eBay with a minimum asking bid of $25,000.

That was sort of funny.

It was later reported that the winning bid was $63,500, from a woman in Alabama.

That was less funny, and less widely reported.

But the tax consequences were apparently not thought about, because she might have realized taxable income of $63,500 with nothing to show for it.

There is a sometimes-overlooked tax regulation that states that you don't realize income by providing services to a charity, but that you do realize income by providing a service to someone else who then pays the charity for that service. (Treas. Reg. 1.61-2(c).)

If Sarah Palin had charged someone $63,500 to have dinner with her, she would have $63,500 of income, and she could later donate that money to charity and claim a charitable deduction subject to the limits on charitable deductions (usually 50% or 30% of adjusted gross income). The point made by the regulation, and by various rulings issued by the Internal Revenue Service, is that Palin can't avoid that result by assigning the right to have a dinner with her to a charity and letting the charity collect the money. As the Supreme Court first ruled back in 1930, the law taxes incomes "to those who earned them." Lucas v. Earl, 281 U.S. 111, 114 (1930).

So Palin should report the $63,500 as income, and then claim a charitable deduction for the same amount. If the charity is a "public charity" described in IRC section 170(c)(1), and she has at least $63,500 of other income, with no other charitable deductions, it might be a "wash," because she will also be entitled to a charitable deduction of $63,500 for the money that was (after all) paid to charity. But if she doesn't have that much other income, or if she claims other charitable deductions, it's possible that her charitable deduction will be less than the income realized, and she will end up having to pay federal income tax on money she didn't actually receive.

Will she? And will the IRS notice if she doesn't bother to report that income?

Wilson's Non-Apology

2009-09-15T03:11:30Z

I know I'm way behind in the news cycle here, but there's something about the "apology" of Rep. Joe Wilson (R-SC) to President Obama after calling the President a liar that continues to bother me.

Others have pointed out that Wilson was wrong on the facts. What Obama said, and Wilson called a lie, was actually true. The proposed health care reforms would not provide federal benefits to illegal immigrants.

Others have also pointed out that in his "apology" Wilson did not admit to any factual error. His statement included the qualification that "I disagree with the President's statement," as though Wilson might be entitled not only to his own opinion but also to his own facts. Wilson's "apology" merely expressed regret that his "You lie" outburst was "inappropriate" and represented a "lack of civility."

But there is another problem with Wilson's outburst and his apology that I haven't seen addressed, which is that Wilson did not shout "You're wrong" or "You're ignorant" or even "You're stupid." Wilson shouted "You lie." Wilson publicly shouted his belief that what the the President was saying was not just wrong, but deliberately, consciously, and maliciously dishonest.

And Wilson did not retract anything in his "apology." He didn't admit that he was wrong about the facts, and he didn't admit that he was wrong about the President's supposed lack of honesty. All he did was apologize for yelling his opinion at the wrong time and in the wrong place.

Wilson called the President of the United States a liar to his face and in public, and has not yet issued any retraction of that judgment. He did not apologize for what he thought, but only for saying it out loud.

True civility is more than the maintenance of a facade of decorum. Just as peace is more than the absence of violence, civility is more than the absence of rudeness. True civility, and true civilization, requires respect for one another. Wilson expressed disrespect to Obama during the joint session of Congress, and confirmed that disrespect by the superficiality of his "apology."

Conservative Fear

2009-09-11T03:22:57Z

The recent entry by David Kurtz, quoting a "long-time reader" in A Victim of His Own Paranoia, revives a thought I have puzzled about since the Clinton administration. Why did conservatives so hate (or fear) Bill Clinton?

Clinton was in many ways a moderate, balancing the federal budget, limiting entitlements, and strengthening the military. And yet the attacks from the right were relentless, accusing Clinton of corruption, death squads (including the murder of Vince Foster), and even forcing an impeachment for allegations of actions that were not a crime and had nothing to do with his service as president.

The explanation might be that the conservative right is inherently irrational, but another explanation is that what angered the conservative right most about the Clinton administration was not that Clinton was an extremist, but that he was a popular moderate.

Which suggests that the real goals and real agenda of the conservative right is not about policy, but about cultural purity. If you are part of a movement that has policy goals, such as less regulation, a balance budget, lower taxes, or greater national security, then a leader of an opposition party that will help you achieve those goals is a good thing, and not a bad thing.

But if your goals are political and theological domination, and cultural purity, then a moderate or reasonable opponent is bad thing, and not a good thing, because it might lead to compromise.

Bush 43 was often referred to as "manichean" because espoused a view of foreign policy, and perhaps also domestic policy, which recognized only right and wrong, or good and evil, and in which there was no room for compromise. A completely dualistic world view in which there were only two possible ways of thinking, and one of those was of thinking was wrong.

It is possible that much of the right-wing animus to President Barack Obama is due to his liberal policies (or his race). But like Clinton, Obama is in some ways a moderate, striving for compromise and moderation and bipartisanship, and it is also possible that much of the right-wing hostility to Obama is due to his moderation and not his liberalism.

In Obama, the right might have seen the perfect foil, the black liberal who would alienate whites and conservatives through extremist social engineering. But Obama has stuck to the same relatively moderate and centrist platform that he used as his platform during his campaign, and has consistently embraced bipartisanship and the spirit of compromise, and so continued to appeal to moderates and independents.

And that has been driving (manichean) conservatives guano crazy.

Republican Health Care Reform

2009-08-19T13:05:16Z

Recent responses by Republican leaders to Democratic proposals on health care reform remind me of the scene in the movie Goldfinger in which Goldfinger has James Bond strapped to a table and sets a powerful laser moving up the table to cut Bond in half. Bond becomes agitated (to say the least) and asks what Goldfinger wants. Does he want him to talk? Goldfinger seems slightly puzzled or amused by the question. "No, Mr. Bond, I want you to die," he replies.

Republicans can't repeal Medicare (although it is clear that at some of them would like to, as former House majority leader Dick Armey showed on Meet the Press on Sunday), but they clearly want health care reform to die.

But if you held the Republican party's collective feet to the fire (metaphorically, of course), what kind of plan would they come up with? I would imagine it would look something like this:

1. Lower costs would be achieved through greater competition, by allowing any health insurance company licensed in any state to sell insurance in all 50 states.

2. Incentives for employers to provide health insurance would be provided through tax credits that would be in addition to the tax deductions already allowed.

3. Incentives for individuals to purchase health insurance would be provided through income tax deductions for premiums paid.

4. Revenue to pay for the tax credits and deductions could be provided by classifying employer-provided health care premiums as "wages" to employees subject to both FICA (Social Security and Medicare taxes) and federal income tax. (The employee would be entitled to an income tax deduction, consistent with #3, if the employee itemizes).

And this is not a complete strawman, because Republicans have actually proposed all of these things, or something like them, at one time or another.

The first proposal is insidious in a subtle way, because it seems like such a simple, open-market solution, but it would have the effect of destroying any meaningful state regulation of health care. All health care insurers would flock to the state with the weakest regulations, and every state would have an incentive to weaken their regulations in order to either attract or keep insurers in their state (and so increase tax revenues).

The effect of the second and fourth proposals would be to shift much of the cost of health insurance from the employer to the employees. And the deduction allowed by the third proposal would be valuable to high-income taxpayers but do no good whatsoever for those who don't have enough income to pay federal income tax, or don't have enough other deductions to itemize (usually those who don't own their own homes and so don't have mortgage interest or real estate tax deductions).

The fact that these proposals would benefit insurance companies, employers, and the wealthy, while imposing additional taxes on average working Americans, is, of course, completely inadvertant and unintentional.

And anyone who suggested otherwise would be un-American in trying to incite class warfare.

Health Care Dichotomy

2009-08-14T22:27:59Z

Conservatives seem to be expressing two fears about health care reform:

1. The government will intrude into the patient-doctor relationship, interfering with things like end-of-life decisions.

2. The government will NOT intrude into the patient-doctor relationship, allowing things like legal abortions.

The first fear is especially peculiar, because it was conservatives who wanted the federal government to intrude into the end-of-life decisions of the Schiavo family.

The lesson I draw from this is that conservatives don't want the government intruding into your decisions as long as you make the decisions that conservatives approve of. If you make any other decision, well then the government will have to step in.

In which case, it's your own fault for not being more moral and sensible.

Palin the Usurper

2009-07-28T02:33:51Z

While watching a Sarah Palin retrospective tonight, following her resignation as governor of Alaska, a question occurred to me:

Was the election of Barack Obama, a former president of Harvard Law Review and Senator from Illinois, as the first African-American President of the United States, almost upstaged/eclipsed (or was it upstaged/eclipsed?) by a former beauty pagent contestant who was an unsuccessful candidate for Vice-President of the United States?

On "This Week with George Stephanapolous" on 7/26, conservative commentator George Will complained about the continuing over-exposure given to the pronouncements of Barack Obama on every subject. But hasn't Obama at least been elected to a national office? How do we explain the continuing attention given to the utterances of Sarah Palin?

Ozzie Myers in Iran

2009-06-17T01:56:51Z

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.

O'Reilly on Tiller: 60,000 Abortions

2009-06-02T02:59:33Z

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.

Did Use of "Intelligence" from "Enhanced Interrogations" Cost American Lives?

2009-05-30T13:21:24Z

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?

Sotomayor on the New Haven Firefighters

2009-05-28T22:20:46Z

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?

]]> Background

According to the opinion of the trial judge, the city of New Haven, Connecticut, decided to create a new examination for promoting firefighters and hired an outside consultant to design the examination. The consultant created both a written exam and an oral exam and, under the city's contract with the firefighter's union, the written exam counted as 60% of the final score for each applicant and the oral exam counted as 40%, and a score of 70% would be a passing grade.

The results of the exams apparently surprised the city. Forty-one applicants took the exam for promotion to Captain and 25 of the applicants were white, 8 were black, and 3 were Hispanic. Twenty-two of the applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. But under the rules under which the city operated, it would be allowed to promote only those among the top 9 scorers, and of those top scorers there were 7 whites, 2 Hispanics, and no blacks.

The results of the exam for Lieutenant were similar. Seventy-seven applicants took the exam and 43 were white, 19 were black, and 15 were Hispanic. Thirty-four passed, of whom 25 were white, 6 were black, and 3 were Hispanic. But the city would be making promotions from the top 10 scorers, all of whom were white.

The city's Civil Service Board (CSB) held five public hearings on whether to certify the results of the examinations. The CSB made public the racial impact of the test results (although not the names of those who had passed or failed) and allowed firefighters to express their opinions about whether the results should be certified, and whether they thought that the tests were fair. The CSB also took testimony about how the examinations were prepared and heard opinions (some of them rather speculative) from a variety of different sources about why blacks and Hispanics had not performed as well on the tests as whites had performed. (The trial judge's opinion devotes about 12 pages to summarizing the testimony before the CSB.) Ultimately, the CSB split evenly, two votes to two votes, on the issue of whether to certify the results of the examinations, which meant that the results were not certified. Several white (and Hispanic) firefighters then sued several city officials for racial discrimination in violation of federal law, resulting in Ricci v. DeStafeno, Docket No. 3:04cv1109 in the U.S. District Court for Connnecticut.

Opinion of the Trial Judge

The District Court judge found that the essential facts were largely undisputed, and granted the defendants' motion for summary judgment, finding that the plaintiff firefighters were not entitled to any relief as a matter of law.

It was undisputed that the test results showed a "racially adverse impact" under standards established by the regulations of the Equal Employment Opportunity Commission, which means that, if the city had certified the results, the minorities adversely affected by the test would have had a valid "prima facie" case against the city for racial discrimination. The plaintiffs conceded that the test results showed a racially disparate impact, but argued that the city could have successfully defended the test results through a "validation study" performed in accordance with EEOC regulations. But the court held (and here's where some of the judicial restraint appears up) that the statutes and regulations did not require the city to perform a validation study.

In the usual race discrimination case, the plaintiff-employee shows that an employment test has an adverse effect on racial minorities and then the defendant-employer tries to justify the test. The trial judge recognized that this case reversed those roles because the defendant-employer was showing that the employment test had a racial impact and the plaintiffs-employees were arguing that the test should be used anyway. The trial judge therefore had to apply the statutes and regulations to a dispute that the authors of the statutes and regulations had not expected.

The trial court cited (and quoted) several Second Circuit opinions for the proposition that the city had the right to try to improve racial diversity in race-neutral ways. For example, in a 1999 decision involving different exams in a different city and state, the Second Circuit had declared that "nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation."

So the ultimate issue in the case was whether an employer should be required to use a test that has a racial impact even though it is not known why the test has a racial impact and the test might accurately measure employment qualifications in a race-neutral way. The trial judge could not find any statute, regulation, or previous court opinion that required that result, and was unwilling to create such a new requirement, and so ruled against the plaintiffs. (More of that judicial restraint.)

Second Circuit Affirms

The Second Circuit Court of Appeals has twelve active judges and ten "senior judges," but cases on appeal are assigned to a panel of three judges to hear and decide the appeal. Judge Sotomayor was one of the three judges assigned to the appeal by the firefighters, and after reading the briefs and hearing oral argument, all three judges agreed to affirm the decision "for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below."

The three judges added that they were "not unsympathetic expression of frustration," but added that the plaintiffs simply did not have a valid claim under the relevant statute. In other words, the judges were not claiming that the result was fair, but only that they believed that the law required them to rule against the plaintiffs.

Conclusions

So will Judge Sotomayor's role in this case help or hurt her prospects for confirmation?

Conservatives may try to use the case to support their claim that she is racist and may accuse her of voting against the appeal of the white plaintiffs simply because they are white and not because of the law.

Her supporters can justifiably point to the decision as an example of her judicial restraint, not activism, because the decision did not create new law or new remedies and the judges refrained from ordering the city of New Haven to do something it didn't want to do.

In his campaign for President and in his administration to date, Obama has shown that he plans ahead and tries to anticipate possible problems before they arise. The Ricci case was cited as a possible problem for Judge Sotomayor even before she was nominated, so it seems likely that the Obama administration already has a plan for how to address the case. It will be interesting to see what that plan is and whether it works.

Once and For All

2009-05-23T13:55:08Z

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.

A Pretext for Evil

2009-05-19T03:40:47Z

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.

The National Security of Abuse (and Abuse of National Security)

2009-05-15T11:41:47Z

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.

A Common Sense (and Catch-22) Definition of "Torture"

2009-05-15T02:42:37Z

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."

]]> If the pain is so severe that it is unendurable or unbearable, then the subject will do anything, anything, to end the pain. If someone is subjected to "severe pain," then they will say anything and agree to anything in order to stop the pain, because "severe pain" is unendurable.

So now we have a practical, objective, and functional definition of "severe pain" (and, by extension, "torture"). If the pain is so great that the subject will do anything to stop it, then the pain is "severe" and the infliction of the pain is "torture."

Assuming that this definition is correct, what are the practical consequences?

The practical consequence is that, if someone doesn't want to tell you something, and you inflict enough pain that they tell you want you want to know even though they didn't want to tell you, then you have almost certainly inflicted pain that is severe and unbearable.

If that proposition is true, then the interrogator/torturer is faced with a Catch-22. If you inflict pain that is unbearable, so that the subject tells you what you what to know, then you have tortured. But if you inflict pain that is bearable, and the subject can choose whether or not to tell you what you want to know, then you haven't tortured but you also haven't accomplished anything because the subject of the pain is still free to withhold information.

In other words: Heads, you torture; but Tails, you get no information.

Which is fine as far as I am concerned, because it eliminates any incentive to torture. If the interrogator knows in advance that any pain that is coercive is torture (and a crime), while pain that is not coercive is not a crime, but also useless, then there is no incentive to apply any pain at all.

Former Vice-President Cheney has said that waterboarding and other "enhanced interrogation" techniques are "effective." If "effective" means that the subject does what you want, then torture is "effective" because severe, unbearable, pain (i.e., "torture") will coerce someone into saying whatever you want. In that sense, torture is "effective." (Whether severe pain is "effective" in producing reliable information is a completely different question that is not necessarily related to the question of whether severe pain is "effective" in producing desired information.)

Which means that Cheney has totally missed the point. Yes, torture is "effective" because it allows the torturer to coerce the victim into saying what the torturer wants. And it is the very effectiveness of the pain that makes it torture. The fact that Cheney believes that waterboarding is "effective" is not evidence that waterboarding is justified, but evidence that waterboarding is torture.