A book recommendation: One Bullet Away

Last night I finished One Bullet Away by Nathaniel Fick. Fick was an Marine Recon officer who served in Afghanistan and Iraq. The book describes Fick's military journey from Officer Candidate School while he was in college at Dartmouth to returning home from Iraq and his entry back into civilian life.

This is an outstanding book, and I highly recommend it.

Although there are passages which support some of my views about the Iraq war, the book--as I read it--is not trying to take a stand one way or the other on the war. The book is instead primarily about, as its subtitle says, "the making of a Marine officer." The book details experiences in Afghanistan and Iraq, but the description of those experiences resonates in a way that is universal in nature. In other words, that description seems to me to be about war and combat in general, not just in Afghanistan and Iraq. Fick's story also shows not just the demands and harsh realities faced by those serving in combat, but also the tremendous skill, ability, and character of the Marines with whom he served.

Supporters of the war will find passages they like, and opponents of the war will find passages they like. As for me, this book makes me glad and proud that our military has people like Fick and the rest of his Marine Recon platoon.

Follow-up on the Burning Bush doctrine and the Palestinian election

Troubling signals from Hamas

In my initial post, I said "I think there is a possibility that Hamas--now that it is part of the system--will have to move more toward the center. There is also a possibility that will never happen." Well, early signs do not look so promising.

First, there is this from yesterday's New York Times:

The exiled political head of the radical Islamic group Hamas said Saturday in Damascus, Syria, that the group would adopt "a very realistic approach" toward governing the Palestinian Authority and would work with the Fatah president, Mahmoud Abbas, on an acceptable political program.

But the leader, Khaled Meshal, also said Hamas would not "submit to pressure to recognize Israel, because the occupation is illegitimate and we will not abandon our rights," nor would it disarm, but would work to create a unified Palestinian army.

He insisted that "resistance is a legitimate right that we will practice and protect," and he defended attacks on Israeli civilians, which included many suicide bombings until a cease-fire nearly a year ago. Then he said Hamas was "ready to work with Europe and even the United States if they wish."

(emphasis added). There are mixed messages in the above statements, and as the article discusses at length, there are seemingly many mixed messages coming from Hamas. Still, the fact that one of its leaders says the group still will not recognize Israel or disarm is not welcome news. The article also points out that one of the core stated objectives of Hamas is the destruction of the Israeli state and contains doubts from several experts that Hamas will change that goal.

Another not so good signal was reported by the AP:

The leader of Hamas suggested Saturday that the Islamic group could create a Palestinian army that would include its militant wing — responsible for scores of deadly attacks on Israelis — in the aftermath of its crushing victory in parliamentary elections.

No further explanation should be needed.

And Reuters reported yesterday that Hamas intends to use sharia (Islamic law) as a "guide" for legislation. Can anyone say "theocracy"?

Reuters also reported that "Although Hamas is formally committed to destroying Israel, it has said it could accept a temporary state and a long term truce if Israel gave up all of the West Bank and East Jerusalem following last year’s withdrawal from the Gaza Strip." Yeah, like that's reasonable.

This is what we were--and are--destined to receive.

As I stated in the previous post, idealism without pragmatism and reality is a dangerous thing. Democracy in the Middle East is a noble idea, but Bush and the rest of neocons tried to pursue the ideal with a complete disregard for reality and pragmatism. We basically went into Iraq with one major ally--Britain (keeping in mind that Australia and Poland, while significant, did not provide anywhere near the same military participation). In other words, the vast majority of the countries that really mattered--which is to say those with significant military, financial, and diplomatic strength--were against war, but Bush basically said "Screw you, we're going to go on our own if need be." And wouldn't it have been helpful to have many more countries to share the military, financial, and diplomatic burdens of the war and the post-war period?

Shortly after 9-11 Bush did one of the most senseless things he could have done by referring to the war on terrorism as a "crusade." It would take too long to explain the sheer stupidity in using that term, but I will say that Bush could have not found a word more alarming and offensive to the Arab world. As explained in a September 19, 2001, article by Ted Olsen on the Christianity Today site,

"This crusade, this war on terrorism is going to take a while," President Bush said. Vice President Cheney also used the word crusade. But after many complaints, "administration officials gave private reassurances that the word would not be used again," reports the Pittsburgh Post-Gazette. "It's what the terrorists use to recruit people—saying that Christians are on a crusade against Islam," Yvonne Haddad, professor of the history of Islam at Georgetown University, told the Associated Press. "It's as bad to their ears as it is when we hear jihad." One would think Bush's chief speechwriter would know this[.]

You know how there are some things that once said cannot be taken back? The use of "crusade" was such a thing. Bush's and Cheney's intentions or understandings were and are irrelevant. For Muslim Arabs, "crusade" has a particular meaning, especially when used in the same breath with "war." The important thing was their perception and understanding, not ours. For Arabs, "crusade" gave credence to the later proclamations of "infidels" invading Arab land. So, the majority of people in the Middle East (and that majority is larger if Iraq is not included) already thought Americans were infidels, and then we invaded Iraq, and the image was fulfilled in their minds. Given that, how can anyone be surprised that anti-American groups are making gains in democratic elections?

And then there was this little nugget from a Washington Post article:

Despite deep Israeli misgivings, the administration late last year shifted policy and decided Hamas could participate in the elections even though it had not disarmed its militias, in contrast to rules set for elections in Afghanistan and Northern Ireland.

What in the wide Wide World of Sports is a-goin on here??? Here is a good example of how pragmatism needs to be taken into account. The Israelis, Fatah (the Palestinian party now out of power), and supposedly the U.S. did not want Hamas gaining power. At the same time, to completely shut out Hamas from the electoral process would have been very risky. So, what to do? Well, one might have tried to put conditions on Hamas taking part in the election. That way, they would not have been shut out, but the risk of adverse consequences might have been reduced in the event Hamas made significant electoral gains (which it did). In other words, one might not be able to control the outcome of an election, but perhaps one can control how the game is played after the election. Admittedly, this approach might have been unsuccessful. However, at least it presented a possibility that was completely eliminated by the "shifted policy" adopted by the Bush administration.

This is just one of the things that astounds me about how the Bush administration operates. Time after time, the Bushies take actions that eliminate future options and flexibility. In other words, they obstinately choose actions which either leave us with only one choice or no good choices.

In memoriam: Dr. Robert Allen

On Friday, Dr. Robert Allen, the Senior Minister of First United Methodist Church in Wichita Falls, passed away from cancer. Dr. Allen came to FUMC 10 years ago after serving as Senior Minister at Wesley United Methodist Church in Oklahoma City for 15 years. This is a tremendous loss for our church and our city. There is so much to say about Dr. Allen and what he did for our church and community, but I find myself not up to the task, so I will instead use the words written by Judith McGinnis in an article in today's Wichita Falls Times Record News:

In the days after the 1995 Oklahoma City bombing, a weary firefighter asked Dr. Robert Allen, then coordinator of the chaplains who ministered to rescue workers and families, "Where do we go from here?"

Allen told the man he hoped all those affected by the tragedy would treasure memories of the loved one or friend they lost and be grateful for anyone who stepped up to help them through dark times.

Today the family, friends and congregation of Dr. Robert Allen are hanging on to that advice. Allen, 59, who became senior minister of First United Methodist Church in January 1996, died Friday morning at his home after a long battle with cancer. He preached his final sermon on Jan. 8.

Services are pending with Owens & Brumley Funeral Home.

"When he was first diagnosed, he told us that it was his therapy to minister to his congregation," said Kay Yeager, a third-generation member of FUMC. "He has done wonders for the church and the congregation and is supportive of so many people from behind the scenes."

Born in Hope, Ark., Allen sometimes mentioned he attended kindergarten with former President Bill Clinton. The family moved when his father took a job with the General Motors plant in Arlington, Texas, and he graduated from Arlington State College. Allen was studying to be an attorney when he felt strongly moved to become a minister instead.

"At the time, he and his family weren't active in the church, so he was a little confounded," said the Rev. John Dillard, FUMC associate pastor, remembering Allen's wry sense of humor. "He told us that after he 'received the call' to ministry he asked the Lord, 'Are you sure you've got the right number?' "

Allen was senior minister at Wesley United Methodist Church in Oklahoma City when the Alfred P. Murrah Building was destroyed in 1995. On Sept. 11, 2001, he organized a community-wide ecumenical service at FUMC to comfort Wichita Falls residents after the World Trade Center bombings.

"He was so devoted to this community," said David Hartman, minister of First Christian Church, who worked with Allen most recently helping Hurricane Katrina evacuees. "He was such a gracious man who never hesitated to give of himself and reach out to people. He was a good friend."

Of all the funerals Allen presided over, many remember the windy November day when he helped lay to rest Baby John Doe, an infant who was found dead in a local trailer park. More than 100 people came to pay their respects.

"We simply name him Baby John Doe, but our faith reminds us that God knows his name," Allen said.

Bill Thacker was on the personnel committee at FUMC that hired Allen. Over the next 10 years, the longest tenure of any minister at the church, Allen would start a television ministry, spearhead new construction and renovation of the beautiful sanctuary and see membership increase every year.

"He was a blessing to this church and this community. He was a wonderful friend," said Thacker. "Last week when they announced he had gone into Hospice care, most of the congregation came down to the front to pray."

Allen is survived by his wife, Madalyne, a daughter, Jennifer of Dallas, and a son, Jeffrey of Oklahoma City.

The Burning Bush doctrine and the Palestinian election

With George's 2006 State of the Union Address three days away, this is a good time in general to reflect upon his 2005 State of the Union Address. Given the results of this week's Palestinian election, such reflection is even more relevant.

I wrote a series of posts (gosh, what a surprise) about the grand foreign policy dream in Bush's 2005 SOTU, namely the spreading of democracy across the globe, a/k/a the Burning Bush doctrine. In my first post on the matter, I had a section entitled "The 'be careful what you ask for' problem," and I said the following:

Bush says he wants to establish democracy in the entire world, but a true democracy could very well result in a government "by the people and of the people" that is anti-American. Would that help protect this country? Would that fulfill what Bush his ownself has described as his most solemn duty?

While I feel my observation and concerns are still accurate and valid, it is not like I was some sort of genius in stating them, as they came straight from the head office of the Department of the Bloody Obvious.

And now the Palestinians--through a democratic vote--have spoken and the majority has voted for Hamas, a group that is in part a terrorist organization. Moreover, Hamas is strongly anti-American, refuses to recognize Israel as a legitimate sovereign nation, and has as its major policy goal the destruction of Israel.

But, hey--no worries. Freedom is on the march in the Middle East.

Things might work out in Israel and Palestine. I think there is a possibility that Hamas--now that it is part of the system--will have to move more toward the center. There is also a possibility that will never happen. Similar scenarios are possible everywhere else in the Middle East (and beyond), including Iraq. Indeed, such scenarios have to a degree already occurred. As stated in a report on "All Things Considered" on January 27, 2006,

[R]ecent Mid East elections haven’t quite turned out as the administration hoped. In Iraq, the winner in December’s election was an Islamist Shiite alliance rather than a secular group friendly to the U.S. In Egypt, the Muslim Brotherhood made a strong showing in December, and this week Hamas won.

The potential problem with an Islamist Shiite alliance having power in Iraq is that it has very close ties with Iran--you know, the country next to Iraq with the Islamist theocracy that is very anti-American. A December 23, 2005, BBC report explains that the Muslim Brotherhood "Wants to create a state governed by Islamic law." The following excerpts from that report should give you some idea of why power for them presents potential problems for us.

The leader of Egypt's opposition Muslim Brotherhood (Mohammed Mahdi Akef) has joined Iranian President Mahmoud Ahmadinejad in calling the Nazi Holocaust a "myth".

*******

Mr Akef's remarks came only weeks after his group won a record 19% of seats in Egypt's parliamentary elections.

*******

"Western democracies have criticised all those who adopt a view different from that of the people of Zion about the myth of the Holocaust," he wrote on the group's website.

Mr Akef said he wanted to "expose the false American rule which has become a nightmare of a new world order."

One problem America faces, thanks to good ol' George and his stated "solemn duty to spread liberty and democracy," is that once democratic processes produce results, we cannot then turn around and reject those results. To do so would be blatant hypocrisy in the eyes of the people of those countries, and that would further damage our standing in the world. Another problem is that our actions in Iraq have greatly damaged our standing among the Middle East nations. Regardless of whether one thinks that is justified or not, that is a fact. Consequently, the chances of anti-American groups gaining power and possibly control in Middle East countries has increased.

Yippy skippy.

Idealism is basically good and necessary, but when it is devoid of a relation to pragmatic reality, it can be foolish, reckless, and dangerous. As I have explained before, the Burning Bush doctrine doesn't even know Pragmatic Reality's zip code. And now, that lack of reality (going back to the run up to the Iraq war) is not exactly working out to our advantage.



ADDITIONAL READING: Here are the links to my series on the Burning Bush doctrine:

• America's new calling
• An update on "America's calling"
• Political buffoonery (another update on "America's calling")
• Rice's "Welcome remarks" in light of Bush's press conference
• The inspiration for the Burning Bush doctrine shows one of its shortcomings

Also, there is a discussion of idealism without realism in Brent Scowcroft speaks out--Part 2 in the section entitled "Scowcroft's realism v. the neocons' delusion."

Kinky media alert--and an explanation

The Kinkster continues his national media tour with an appearance on "The Tonight Show" on Wednesday.

And now for an explanation about why I am supporting Friedman. It comes down to this: he is an independent. That means "independent" as in neither Republican or Democrat. That means "independent" as in he is not beholden to any group or any special interests. That means "independent" as in he is not going to pretend to be something he is not in order to gain power.

I do not agree with all of his positions on issues. For instance, he supports school prayer, while I think that it should not be an activity sanctioned by a school district and made an organized part of the school day. A further discussion on school prayer should be done in a separate post, but I will say here four things: 1) if folks want to pray on their own during school, I support that; 2) anyone who believes in prayer has plenty of opportunity to pray outside of school and should be doing that anyway; 3) for me, prayer is part of matters that are the responsibility of the family and churches (and similar groups in other faiths); and 4) it is not a matter for public schools.

Friedman supports some form of prayer in school, and he often says (as he did on "60 Minutes" this past Sunday) he wants to bring the Ten Commandments back to school. I disagree with him, but I am still campaigning for him. In part that is due to the fact that I agree with him on most issues, but his independent status is the main reason. As Governor, he would be able to take positions without having to worry about pleasing or displeasing either political party. He would not have to follow the wishes of any party leaders because he would be elected without their help. Once upon a time, politicians from both parties actually did work together here in Texas, and we really need that to happen again. A truly independent Governor has a legitimate chance of helping that to maifest.

Kinky Friedman would be that independent voice, and that's why I am supporting his campaign for Governor.

The economics of the internet and the future

Josh Marshall had a post yesterday about a big issue concerning the internet. There is a link to a Washington Post article entitled "The Coming Tug of War Over the Internet." According to Marshall, the article "explains how the free flow of information on the Internet could be squelched out by the end of the decade."

This is one time I disagree with Josh. This is not to say that the issue described in the article is not serious or that it could not affect the free flow of information. However, such a conclusion as Marshall's ignores some basic concepts of economics and fairness.

According to the article, telecommunications companies such as AT&T, Verizon, and Bell South are trying to get laws passed that will enable them to charge increased fees for various service providers such as Yahoo and Google to use their phone lines. As stated in the article,

The changes may sound subtle, but make no mistake: The telecommunications companies' proposals have the potential, within just a few years, to alter the flow of commerce and information -- and your personal experience -- on the Internet. For the first time, the companies that own the equipment that delivers the Internet to your office, cubicle, den and dorm room could, for a price, give one company priority on their networks over another.

This represents a break with the commercial meritocracy that has ruled the Internet until now. We've come to expect that the people who own the phone and cable lines remain "neutral," doing nothing to influence the content on your computer screen. And may the best Web site win.

Oh my! This is the end of the world as we know it! All right, my previous sentence is hyperbole, but I stated it as such to prove a point. The point is that the telecommunications companies have a very good point themselves. The view of the telecommunications company was stated elsewhere in the article:

In a November Business Week story, AT&T Chairman Edward E. Whitacre Jr. complained that Internet content providers were getting a free ride: "They don't have any fiber out there. They don't have any wires. . . . They use my lines for free -- and that's bull," he said. "For a Google or a Yahoo or a Vonage or anybody to expect to use these pipes for free is nuts!''

*******

Whether or not you agree with Whitacre, you can understand his frustration. Companies like Google and Yahoo pay some fees to connect to their servers to the Internet, but AT&T will collect little if any additional revenue when Yahoo starts offering new features that take up lots of bandwidth on the Internet. When Yahoo's millions of customers download huge blocks of video or play complex video games, AT&T ends up carrying that increased digital traffic without additional financial compensation.

In other words, the telecommunications companies undertake all the expense and risk to build and provide the eqipment that makes wide use of the internet possible, but ISPs and internet businesses don't really pay for any of that. Here's another way to look at it. Many of the ISPs would have have no business at all without the equipment and infrastructure provided practically free of charge by the telecommunications companies. That means that the ISPs are paying little or nothing in order to make lots of money. Maybe I am mistaken, but I don't think that's the way a market economy is supposed to work. And I know it is not fair. If I provide equipment or service that allows a business to exist, I expect to be compensated. And if the business I enabled to exist grows and requires more equipment and/or services from me, I don't want to have to pay for that increased cost without receiving further compensation.

Naturally, ISPs and companies like Google and eBay are opposing the efforts of the telecommunications companies. The article explains one of the several reasons for their opposition:

At the end of the day, Google's Davidson says that his biggest worry is not for Google but for the prospect of bringing fresh innovation to the Internet. After all, if worse comes to worst, Google can pay AT&T or BellSouth to maintain its role as the Internet's dominant search engine. But the bright young start-up with the next big innovative idea won't have that option.

Well, if the bright young start-up does not have the ability to pay for the very thing that would allow his "big innovative idea" to manifest at all, should the start-up be given a free ride by the companies that had to spend billions of dollars to provide the necessary equipment? I am simply asking the question.

Now, before it seems like I have turned into a cold-hearted fat cat sort of guy [I could have said "Bush Republican," but I did not. ;-) ], I will say that some sort of compromise seems available. As a self-employed person, I know that the deck is already strongly stacked against small businesses and "bright start-ups." Anyone who has to pay self-employment tax to the IRS knows this. There needs to be some mechanism to allow start-ups to manifest and grow, and a pure market economy will eventually swallow up small businesses. However, in the context of this internet issue, it is insane to make one group of companies bear almost all of the cost of building, providing, and maintaining the very infrastructure which makes internet commerce possible while others reap profits from internet commerce. It makes no sense that if 1) internet commerce grows, meaning 2) more profits for those businesses, and 3) such growth requires more expenditures from the telecommunications companies to increase bandwidth, that the internet commerce business do not have to spend some of their increased profits to pay for that cost. It seems to me that there should be a way to pay the telecommunications companies some compensation while spreading out that cost of doing business among those in internet commerce. The issue for the telecomminications companies does not appear to be control over the internet as much as it appears to be cost. In other words, the economic reality is that increased internet usage in general and internet commerce in particular will require more expenditures on phone lines, fiber optic networks, servers, bandwidth, etc., and that cost should not be borne by the telecommunications companies alone. Do we want an internet that has a free flow of information? I know I do, but it seems to me that in order to have that, the financial cost has to be spread around.

I admit that my knowledge of the economics of the internet is limited, so if anyone has a better understanding of these matters, please feel free to share your views.

The National Anthem at sporting events

I just finished hearing the "Star Spangled Banner" performed before the Denver-Pittsburgh game by trumpeter Chris Botti. Botti is a very talented musician best known for his smooth jazz. I really enjoy hearing him play--except for his rendition of the National Anthem. His pitch was perfect, his tone was gorgeous as it was piped through the PA system via a wireless mike, he made no mistakes...but I did not like it. He played it much like a jazz player would take a theme and create a new version. Call me old school, but that should not be done with the National Anthem (and I feel the same way about vocalists who do the same thing). For me, THE standard for how the "Star Spangled Banner" should be performed was set by Dallas trumpeter and SMU alum Tommy Loy. For 22 years, Loy (who was a superb jazz musician) played the Anthem before Dallas Cowboys home games. He simply walked on the field, put his trumpet to his mouth, and played--usually without a microphone--the music as it was written. No embellishments, no added arpeggios to show how good he was, no changes in the rhythm or melody. It was dignified and powerful. And I liked it.

More on my concerns with Alito

Overview

Via Laura Rozen at War and Piece, I saw a column in Slate by Dahlia Lithwick entitled "Kiss and Make It Up." Lithwick's concern--like mine--is Alito's potential to put more power in the office of President, but Lithwick focuses mostly on the context of the war on terror. While I agree with her analysis, my concerns go beyond the war on terror. However, the war on terror as discussed by Lithwick is a tangible example of why giving any President--but especially Bush--more power is a bad idea. This overall situation is definitely the proverbial "slippery slope." In other words, once this President is given more power (and less required accountability), where does the process stop? What is to stop the President from then using this precedent to argue for, assert, and then gain approval for even more power in other areas? What is to stop the President from trying to spin other situations into part of the "war on terror" to argue for, assert, and then gain approval for even more power in other areas?

While I especially do not want to see George W. Bush get more power now or ever, this issue goes beyond Bush and partisanship. As I said in A quick note on the Alito hearings,

...just ask yourselves whether you would want, oh, let's say...Hillary Clinton being President and having that kind of power. Aside from the fact that I don't want a Hillary Presidency, I don't want any President to be above the law.

Baseball provides a popular analogy.

In the comments to A quick note on the Alito hearings, Luth, my political (as opposed to musical) cohort, presented a baseball umpire analogy to question why there has been such a fuss over some of Alito's allegedly evasive answers [which I maintain is evidence that Luth is not a knee-jerk lefty activist ;-) ]. I countered with the following:

There is no problem with an umpire saying "the game is afoot and I'll have to apply the rules to it," AS LONG AS HE DOESN"T TRY TO CHANGE THE RULES. The problem with Alito is that it seems that he favors changing the most basic rules of our government to give the President more power. And if he gets on the Supreme Court, he will be in a position to change the rules.

Lithwick also used a baseball umpire analogy, but in a slightly different way. Her point is that previous laws and precedents do not address the circumstances of the war on terror:

In a new era, fighting a new kind of war unlimited by time or place, with guidance only from World War II- and Civil War-era cases and sloppily crafted statutes, judicial promises of modesty and humility offer little comfort. You can't call balls and strikes until a strike zone has been invented. It will soon fall to the high court to determine the contours of executive authority, and the justices who will be on that court will have precious little to constrain them. Don't worry, they'll still call whatever they're doing "strict construction." But the only thing they may be strictly construing is the president's will.

(emphasis added).

Both interpretations of the umpire analogy are valid.

Lithwick has a point, but I feel that I do also. Lithwick's point seems to be that the relative roles of the Legislative and Executive branches have not been defined in the context of the open-ended "war" that is not like any other war will be determined by the Supreme Court. While I agree, the Supreme Court will not simply be making rules where none existed before. As I explained in the discussion of the legislative process and statutory construction by the Courts in Part 6 of a series on the McCain amendment, there are longstanding principles and rules which would have to be changed in order to give a President the authority to disregard acts of Congress which had received the President's signature or survived a veto. Part of any process which gives a President more power will necessarily involve statutory construction, and that means that the Supreme Court will have to change the rules. Alito's position on signing statements indicates to me that changing the rules of statutory construction is something he will attempt. The primary reason I am against such change--and thus against Alito--is that such change will, in my opinion, clearly violate the Constitution by giving the President more power over the legislative process (see Part 6 on the McCain amendment).

Also, I feel that statutory construction will be used as a foundation for/stepping stone to rulings which actually change basic Constitutional law. Why? Saying that the Supremes are simply applying rules to interpret statutes is far less controversial and easier to sell to the public than immediate changes to core Constitutional law.

Still, Lithwick has a very good point, because the Constitutional interpretation of the President's powers in general and relative to the Congress is the sole responsibility of the Supreme Court. The Supreme Court ultimately determines that issue, and it does not in any way have to look to or rely upon or give deference to Congress in making that determination. Lithwick concisely states her concerns as follows:

But all that nice jurisprudential wallpaper simply falls away where it really matters: the constitutional limits of the war on terror. When it comes to the reach of the president's authority to pursue this war with a warrantless wiretap in one hand and a cattle prod in the other, there is almost no statutory authority or court precedent. Judges, specifically the justices of the Supreme Court, will in the end be making up the law more or less as they go.

I have yet to see anything from Alito to indicate he considers that the possibility of giving a President too much power even exists. I would welcome some evidence to the contrary (which means feel free to cite some), but until I see it, there is no way I can support the confirmation of Alito.

Another Kinky update

Tomorrow night, the Kinkster will appear on "60 Minutes" in an interview with Morley Safer. I hope everyone here in the Lone Star State tunes in. Kinky just might offend and turn off some folks, but that just shows he is not going to try to pass himself off as something he is not. What you see is what what get, and he is not going to change to try to get votes.

On the fund raising front, Kinky is doing pretty well. As reported on the official Kinky Friedman for Governor site, the Dallas Morning News reported that Friedman has raised much more money than either of the Democratic candidates.

Former U.S. Rep. Chris Bell raised $355,000 in the last six months, and one-time state Supreme Court Justice Bob Gammage collected $67,000, according to campaign finance reports filed Tuesday with the state.

By comparison, Mr. Friedman, the mystery novelist and singer-songwriter who's running his first race for statewide office, reported raising $1.5 million between July and December.

"It speaks volumes how lost the Democratic Party has become in this state and how dispirited Democrats have become," said Mr. Friedman's campaign manager, Dean Barkley.

The comparison to the Dem candidates should be taken with a grain of salt at this point. Bob Gammage will likely win the Democratic nomination, and he could be a formidable opponent. If Friedman was not in the race, I would campaign and vote for Gammage. He is a good man with lots of political experience and connections. He entered the race late and has not had much time to do fund raising. His money numbers will go up.

That being said, the fact that Kinky raised $1.5 in six months is rather impressive. It shows not only that he can raise money, but that people are taking his candidacy seriously AND that he is connecting with Texas voters.

The Dallas Morning News article also notes that the Friedman campaign has already spent just over $1.2 million and that his opponents are saying that that shows disorganization and an inability to compete in the long run. A closer look shows something different. As I explained in my previous Kinky update, Friedman faces a challenge just to get on the ballot as an independent. He must obtain approximately 46,000 signatures on a petition, AND to be valid a signature must be from someone who DID NOT vote in the primaries, AND signatures can only be collected within a 60-day period after the primaries. That means that the campaign has to have the structure to get those signatures in place before the primaries on March 11. And according to Dean Barkley (who was also campaign manager for Jesse Ventura's successful bid for governor of Minnesota), that is where much of the money has been spent.

"We're set," Mr. Barkley said. "We've got our organization built, and we've got most of the expenses already paid for the petition drive. We've got the money we need to successfully get him on the ballot right now."

Anybody that thinks the Kinky Friedman campaign is going away needs to think again.

And they need to take a closer look at that campaign to see who Friedman is and what he stands for.

Another way to do that is to look at where current governor Rick Perry and the other "independent" candidate, Carole Keeton McClellan Rylander Strayhorn, have gotten most of their money. According to the Houston Chronicle, Perry raised $4.6 million and Strayhorn $2.4 million in the last half of 2005. From that article, here is a rundown of some of Strayhorn's money:

Strayhorn, the Republican comptroller, continued to rake in money — $400,000 in December — from a favorite funding source, Ryan & Co., a Dallas-based accounting firm. She announced her independent candidacy on Jan. 2 after polls indicated she couldn't beat Perry for the GOP nomination.

George Brint Ryan, the company's chief officer, gave her $100,000, as did the company's political action committee. Four other principals in the firm contributed $50,000 apiece.

The company's history of contributions to Strayhorn was cited last year in a state auditor's report that concluded the comptroller reduced some tax bills for companies that gave — through PACs or tax consultants — to her campaigns.

*******

Strayhorn in December also received several large contributions from trial lawyers, including $100,000 each from Walter Umphrey of Beaumont and John Eddie Williams of Houston, and $50,000 each from Michael T. Gallagher and W. Mark Lanier of Houston.

*******

David Alameel of Dallas, a dentist, gave Strayhorn $100,000.

Coastal Development, which a Strayhorn spokesman said was a New York-based company with gambling interests in New York and Florida, donated $75,000.

(emphasis added).

The Houston Chronicle also discussed details of Perry's money:

Perry, meanwhile, was heavily supported by business executives and business-oriented groups.

*******

Perry's single biggest contributor in the last half of 2005 was Wal-Mart heiress Alice Walton of Mineral Wells, who gave $100,000. Perry also got $10,000 from the Wal-Mart PAC.

Perry received $50,000 from the Texas Dental Association's political action committee and $50,000 each from two investment groups, ACC Capital Holdings of Austin and Big City Capital of Dallas. Big City Capital has tried to promote legalized slot machines in Texas.

The governor also received $50,000 from John Speer of Houston, CEO of Royce Builders, a home building company; $35,000 from James Pitcock Jr. of Houston, chairman and CEO of Williams Brothers Construction Co.; and $30,000 from another Houston businessman, Tilman Fertitta, founder of the Landry's Restaurant chain.

The political action committee of SBC Communications, since renamed AT&T, gave Perry $25,000. The company won a major victory last summer with legislative approval and Perry's signature on a new law paving the way for phone companies to offer cable TV-like services.

Perry also received $25,000 from Texans for Lawsuit Reform, which has successfully lobbied in Austin for restrictions on civil lawsuits supported by the governor.

Investor George Hixon of San Antonio gave Perry $45,000, and Charles Butt of San Antonio, president of the H-E-B chain, gave $25,000.

Perry and Strayhorn are getting huge money from very wealthy individuals and organizational/corporate interests. Thus, while they both have more money, it comes from a limited pool of people and special interests. Friedman, on the other hand, has collected his money from everybody else. Friedman's latest campaign finance report is not yet available online, but his report covering the period from July 20-August 19, 2005, is online. That report shows 614 contributors. The report shows one $10,000 , one $5000, two $1500, seven $1000, two $500, and one $300 contributions. That means that the other 600 contributions were all below $300. Most of them were $100. AND they all came from individuals--no big corporations, no special interests. Compare those facts to the Perry and Strayhorn campaigns.

Like I said, Friedman is connecting with Texas voters. Will that continue? Will Kinky continue to raise significant money?

Stay tuned, and if you live in Texas, check out Friedman's campaign and get involved.

UPDATE (1-24-06): Kinky's campaign finance report for the last half of 2005 is now available online. I will provide more info after reviewing it.

Congratulations to Courtney and Chris!

Back on December 11, 2004, I noted that my nephew Chris got engaged to his then girlfriend Courtney. This past Saturday (January 14), they got married in Moraga, California. The entire weekend was fantastic. I had the honor of being a groomsman, and my father co-officiated the ceremony. I have to admit, however, that I felt a bit out of place given that the average age of the rest of the wedding party was approximately half mine. ;-) The wedding was in the Moraga Valley Presbyterian Church, and that sanctuary is one of the most beautiful I have ever seen, and Courtney was (and is) one of the the most beautiful brides I have ever seen. Chris has been doubly blessed, for his in-laws are great people.

So, congratulations to Courtney and Chris!

Part 7 of a series on the McCain amendment: Bush and the separation of powers

Overview

Bush's position in his signing statement for the McCain amendment is based on the separation of powers as expressed in the Constitution and judicial decisions. Part 7 will analyze Bush's claim in a limited fashion. A full analysis could fill an entire book, and even I do not feel like undertaking that task. Instead, Part 7 will present some of the basic elements of this portion of Constitutional law and show why, in the context of the McCain amendment and one of the reasons given by Bush for opposing it, Bush's signing statement is bullshit.

Bush's argument

Bush’s argument will be that:

1. Article II, Section 2 of the Constitution makes him Commander in Chief of the military.
2. Article II, Section 1 of the Constitution vests all the executive power of the government in the President.
3. Supreme Court rulings establish that the President has primacy in matters of national security and foreign affairs.
4. The question of interrogation of detainees falls within his duties and powers as described in 1-3; therefore, the Congress–through the McCain amendment--cannot place any limits on his powers.

A brief look at the legal bases for Bush's argument

Article II, Section 2 of the Constitution says "The President shall be commander in chief of the Army and Navy of the United States[.]"

Article II, Section 1 of the Constitution says "The executive power shall be vested in a President of the United States of America." The FBI, CIA, State Department, and the Department of Justice are all part of the Excecutive branch.

As for the judicial decisions, they are numerous--and varied. For purposes of this post, I am going to present some of the authorities that best support Bush's position. A good discussion of some of those decisions appears in the dissenting opinion by Justice Thomas in Hamdi v. Rumsfeld, issued on June 28, 2004. Here are some excerpts from the opinion (citations to the applicable authorities are listed in the opinion) which support Bush's argument:

• The Founders intended that the President have primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations.
• John Marshall explained that "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."
• With respect to foreign affairs as well, the Court has recognized the President's independent authority and need to be free from interference.
• That is why the Court has explained, in a case analogous to this one, that "the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U. S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission "must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress"). This deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. (emphasis added).

Hamdi in general, and Justice Thomas's dissent in particular, are not directly applicable to issues involving the McCain amendment, but the above principles nonetheless support Bush's argument. I must say, however, that there are other portions of Thomas's dissent which controvert Bush's argument, but in this post I am trying to present only elements which support Bush's argument.

So, for the sake of argument, let's assume that Bush's argument is correct.

Bush's argument shows that one of his reasons for opposing the McCain amendment is yet another false, disingenuous statement.

Recall that Bush claimed the McCain amendment was unnecessary because there were already laws which did the same thing. Bush also claimed that he would follow those laws. So why then did Bush issue a signing statement saying that he reserves the right to ignore the McCain amendment? How is that any different from saying that he does not have to obey any of the existing laws covering the same subject matter? Bush, through his signing statement on the McCain amendment basically said that he does not have to follow any law passed by Congress that deals with torture or related activity. So for him to say that there are existing laws that he will follow is just out and out bullshit.

And this is typical of Bush and the rest of his administration.

If Bush's argument is correct, then he--or any other President--never has to comply with any law created through the legislative process that relates to the military, national security, or foreign affairs.

A quick note on the Alito hearings

The hearings for Judge Alito begin later today. Given Alito's views on Presidential "signing statements" discussed in Part 6 of the series on the McCain amendment, I must say that as of now I am against Alito being on the Supreme Court. My reasons will be clearer once I finish Part 7 and further discuss separation of powers under the Constitution. However, for the time being I will say that his memo on signing statements--as reported by the Washington Post--leads me to think that not only does he have questionable views on Constitutional law but that he believes in giving the President (and especially our current President) more power and more ability to basically be above the law and not accountable.

Anyone who is not concerned about this issue concerns me. For any Bush supporters who don't think this is a problem, just ask yourselves whether you would want, oh, let's say...Hillary Clinton being President and having that kind of power. Aside from the fact that I don't want a Hillary Presidency, I don't want any President to be above the law.

The Senators on the Judiciary Committee damn well better grill Alito on separation of powers and his views on the powers of the President.

Part 6 of a series on the McCain amendment: Just when I thought I was finished...

Overview

I was about to write a short (no, really) explanation of why I bothered to keep writing about Bush's opposition to the McCain amendment after it became clear that the provision would be passed by the Congress and signed by the Prez. And then ol' George went and did something else that simply must be discussed.

George Bush's latest act in regard to the McCain amendment is further evidence that he is an arrogant, power-mad moron who is being aided by plenty of other arrogant, power-mad morons in his administration.

The McCain amendment becomes law, but will it be followed?

Congress did indeed pass the McCain amendment as part of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006."

And Bush did indeed sign the McCain amendment into law. When he signed H.R. 2863, Bush issued what is known as a "signing statement." The Washington Post ran an article on January 2, 2006, which discussed "signing statements."

As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

The Post went on to cite an article by Phillip J. Cooper (a professor at Portland State University) from the September 2005 issue of Presidential Studies Quarterly which asserts that Bush "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress."

What makes the foregoing relevant to this post is what Bush said about the McCain amendment in the signing statement for H.R. 2863:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

What the hell?

Translation

So just what is Bush saying here? I found two good statements of the answer. Marty Lederman at Balkinization gives a meaning specific to the McCain amendment: "I reserve the constitutional right to waterboard when it will 'assist' in protecting the American people from terrorist attacks."

Michael Roston at Looking for Someone to Lie to Me puts the matter into a broader perspective:

How often has a president ever said "I'm going to interpret a limitation on my authority in such a way that it does not in fact limit my authority?"

In other words, Bush's signing statement on the McCain amendment shows his overall attitude and SOP towards Congress: "Screw you, I will do whatever I want."

A review of checks and balances reveals the arrogance and ignorance of the Bush administration.

• Initial analysis
  

The intended use of "signing statements" as described by Alito is ridiculous. As noted above, the idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent." The way our system of government is set up, the President's interpretation of legislation passed by Congress and signed by the President is irrelevant. To argue otherwise is to argue that the President has control of the legislative process, and that clearly is not allowed by the Constitution.

• The legislative process
  

The Executive branch--led by the President--does not create or vote on legislation. Yes, the President does play a role in creating proposed legislation and in negotiations, but the facts are that the President does not directly introduce or vote on any legislation. That is the sole province of the Legislative branch pursuant to Article 1, Section 1 of the Constitution.

The role played by the President comes after legislation has been passed by both houses of the Legislative branch (See Article 1, Section 7 of the Constitution). At that point, the President gets to "vote" by either signing the legislation or vetoing it. In other words, at that point the President can either approve or disapprove of the legislation. If the President issues a veto, he sends the legislation back to Congress "with his objections." In other words, the President then gets to detail his desires and interpretations. Through the veto power, the Executive branch acts as a check on the Legislative branch. However, the Legislative branch can check and balance the President's veto power by overriding the veto. If the Congress then overrides the veto, the President's objections and interpretations are not part of the law.

It follows that--as between the Congress and the President--the ultimate authority on what given legislation means is the Congress.

• The role of the Judicial branch and the focus on the intent of Congress
  

The ultimate arbiter of what legislation means is the Judicial branch. In this way, the Judicial branch acts as a check and balance on both the Legislative and Executive branches. This process is known as statutory construction. The overriding objective is to determine the intent of Congress. As the U.S. Supreme Court said in Negonsott v. Samuels, 507 U.S. 99, 104 (1993), "Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive." (emphasis added). In Miller v. French, 530 U.S. 327 (2000), the Supreme Court ruled "where Congress has made its intent clear, 'we must give effect to that intent,'" citing Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215 (1962). Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117 (1991), declared that "As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us. 'If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress,'" citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). And in Dodd v. U.S., 540 U.S. 526 (2005), the Supremes stated this rule as follows: "[W]hen the statute's language is plain, the sole function of the courts--at least where the disposition required by the text is not absurd--is to enforce it according to its terms," quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000). The Court in Dodd also said "We 'must presume that [the] legislature says in a statute what it means and means in a statute what it says there.'"

Here's a quick summary (and another is presented below): 1) the Supreme Court determines what a given statute means. 2) Legislative intent, not the President's interpretation, is the determining factor in that process. 3) When the language of a statute clearly and unambiguously shows Congressional intent, that intent--not the President's wishes or interpretation--must be enforced.

In other words, once the President signs legislation or has his veto overriden what the President thinks is irrelevant.

Still not convinced? By signing legislation, the President basically gives his approval to that legislation. What Bush wants to do through his signing statements is tantamount to saying, "I know I approved this legislation, but I reserve the right to interpret how I want and not follow it." What an asshole.

There is another reason--given the rules of statutory construction--why the concept of signing statements as described by Alito and used by Bush is just wrong. Recall that Alito felt that the signing statement should be considered by the courts along with legislative history when interpreting a statute. The problem is that, as stated in Ratzlaf v. United States, 510 U. S. 135, 147-148 (1994), "(courts) do not resort to legislative history to cloud a statutory text that is clear. 18 See Barnhill v. Johnson, 503 U.S. ___, ___ (1992) (appeals to legislative history are well taken only to resolve statutory ambiguity)." In other words, when the language of a statute is unambiguous, legislative history is irrelevant. It follows that the President's interpretation is also irrelevant. As discussed below, the McCain amendment is unambiguous.

• Summary of statutory construction process

The job of statutory construction (interpretation) belongs to the Judicial branch. Pursuant to the Constitution, Congress, not the President, creates and votes on legislation. The President has a chance to voice his concerns, objections, and interpretation through the veto power. However that veto power can be overridden by Congress. As a result, the Congress has the final say--as between the Legislative and Executive branches--as to the meaning of a statute. That is why the goal of the Judicial branch in statutory construction is to determine the intent of Congress, not the President. The courts look first and foremost to the language of the statute. If that language is clear and unambiguous, that language comprises legislative intent and must be enforced as written. In these instances, what the President thinks is irrelevant.

• Application of statutory construction to the McCain amendment

The McCain amendment is unambiguous. It applies to every person in the custody or control of the U.S. Government and Department of Defense. It clearly defines what treatment is prohibited. As to detainees held or controlled by the DoD, it clearly defines what is allowable now and in the future (the Army Field Manual). It must be followed by all military and government personnel.

There is no ambiguity. That means that the McCain amendment "says what it means and means what it says." That means that the McCain amendment clearly expresses the intent of Congress and will be enforced by the courts as written. That means that--according to established law--Bush's signing statement regarding the McCain amendment is of no effect or importance.

There is another question...

In terms of statutory construction, there is no question that Bush does not have a leg to stand on. The McCain amendment is clear and unambiguous and must be enforced according to its express terms--unless it violates the Constitution's principles of separation of powers. Bush seems to be saying that treatment of detainees comes with his exclusive Constitutional domain as Commander in Chief, meaning that Congress cannot tell him what to do.

This issue will be examined in Part 7.

Longhorns win title.

Well, U.S.C. has been dethroned--by Vince Young. In one of the greatest performances I have ever seen in college football, the U.T. quarterback almost singe-handedly destroyed the the 2-time defending champions. Young had 267 yards passing, 200 yards rushing, and scored 3 rushing touchdowns. Simply amazing.

Man, I am miserable. Take how I feel about George Bush, multiply that by 10, and you will have some idea how I feel about u.t. football.

Still, they deserve the glory this year.

And Pete Carroll deserves blame for calling a crappy defensive game. Except for the last two times U.S.C. had the ball (and there was :16 left the last time), U.S.C. scored every time it had the ball in the second half. They had a 12-point lead with about 7:00 left in the game, AND THEY LOST. U.S.C. allowed Vince Young time to make reads and passes, and he absolutely killed them. Because of that, U.S.C. did not deserve to win. They handed Texas the chance to win, and the Longhorns grabbed it and shoved it right down the Trojans' throats.

NFL Playoffs

As a Cowboys fan, this past weekend caused me to channel Jim Mora.

What a disappointment. The Boys were so inconsistent this season, and a monumental collapse against the Redskins, the most embarassing performance in the last 15 years in the second game against the Redskins, and another last second collapse against the Seahags eliminated Dallas from the playoffs even before they went out and lost to the hapless Rams.

Oh well.

Since there is no chance that t.o. can get a ring, I will be pulling for the NFC team in the Super Bowl. That being said, I hope that will be the Giants (I know at least one person will be happy to hear that).

Part 5 of a series on the McCain amendment

Overview

Part 5 examines the reasons given by the Bush administration for its opposition to the McCain amendment. When considering these reasons, keep in mind Part 2 (which discussed the views of former military commanders who supported the McCain amendment), Part 3 (discussing the fact that torture and "enhanced" interrogation produces unreliable information), and Part 4 (discussing the need for a better image and the damage done to our image by opposing the McCain amendment). The Bush administration's reasons for opposing the statutory ban on torture and inhuman treatment were: 1) the McCain amendment was unnecessary because it would be duplicative of existing law; 2) the McCain amendment was unnecessary because we do not torture; 3) "enhanced techniques" produced good results and were needed for the future; and 4) the McCain amendment was a limitation on the power of the President.

Reason 1: the McCain amendment was duplicative of existing law

• Reason 1 as stated by Scotty Boy
  

Back on July 25, 2005, in the early stages of this process, Scotty Boy said the following at his press briefing: "And there are some amendments that people have suggested that we believe might be unnecessary or duplicative." When asked on October 5, 2005, why the President opposed the McCain amendment, Scotty gave this answer: "Well, there are already laws on the books, and so I think part of this, if you go back and look at the statement of administration policy that we put out, it would be unnecessary and duplicative."

Man, this is one weak-ass reason.

• Initial analysis
  

If there were indeed laws on the books that did the same thing that the McCain amendment would do, why would it be harmful to have another law to the same effect? The answer is there would be no harm. Furthermore, even if the McCain amendment was duplicative, a new statement by the U.S. government that it will not engage in cruel and inhuman treatment would clarify and emphasize the fact for the rest of the world, which would help our image (see Part 4).

Moreover, if the McCain amendment was actually duplicative, why did McCain, joined by Lindsay Graham and John Warner (see Part 1), lead the effort to have it approved by the Senate? Why did Colin Powell say it was needed? Why did so many former generals and admirals say it was needed?

• Some of the existing U.S. laws
  

By the way, I have yet to find any statement by Bush, Scotty Boy, Big Dick Cheney, or anyone else in the Bush administration specifically identifying these existing laws. Since they did not take the time to cite them, I will cite some of them now.

Title 18 of the U.S. Code is entitled "Crimes and Criminal Procedure." Chapter 113C thereof covers torture. 18 U.S.C. § 2340A (a) makes torture a crime punishable by up to 20 years in prison, and, if death occurs, by life imprisonment or the death penalty. However, this provision applies only to torture committed (or attempted) outside the United States. Remember that.

18 U.S.C. § 2340 defines "torture" as follows:

(1) “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;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501 (2) of title 49.

• The McCain amendment

In comparison, the second section of the McCain amendment, which applies to persons in the custody of the U.S. government, says "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." That section goes on to say that "cruel, inhuman, or degrading treatment or punishment" is defined in part by the United Nations Convention Against Torture (CAT). Article 1 of the CAT says the following:

the term "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.

It appears that I have no choice but to say that it seems that Scotty Boy was right. Section 2340 seems to be very similar to the McCain amendment and the CAT. There is, however, one major difference. Recall that while § 2340 defines "torture," § 2340A holds that there is no crime of torture unless it happens outside the U.S. The McCain amendment prohibits torture and cruel and inhuman treatment regardless of where it happens. The means that the existing law was not duplicative in terms of its application.

• And what if I am wrong and Scotty is totally right?
  

Go back and read the first paragraph of the Initial Analysis above. Enough said.

Reason 2: We do not torture.

• George and Scotty Boy are emphatic.
  

While in Panama on November 7, 2005, George his ownself declared

We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.

(emphasis added). The next day Scotty Boy said the same thing over and over and over...

Q: Can you give me a straight answer for once?

MR. McCLELLAN: Let me give it to you, just like the President has. We do not torture. He does not condone torture and he would never --

Q: I'm asking about exemptions.

MR. McCLELLAN: Let me respond. And he would never authorize the use of torture. We have an obligation to do all that we can to protect the American people.

*******

MR. McCLELLAN: We are going to do what is necessary to protect the American people.

Q: Is that the answer?

MR. McCLELLAN: We are also going to do so in a way that adheres to our laws and to our values. We have made that very clear. The President directed everybody within this government that we do not engage in torture. We will not torture. He made that very clear.

*******

MR. McCLELLAN: -- the President has already made it clear that we do not torture and we do not tolerate torture.

*******

MR. McCLELLAN: The President has made it very clear that we do not torture.

I'm confused...If we do not torture, and everything we do is within the law, what is the problem with having a new law which makes that fact explicitly clear?

Perhaps the answer is that the McCain amendment prohibits more than what the Bush administration considers "torture." Why else would a reason for opposing the McCain amendment be that we do not engage in or condone torture?

• Techniques that have been used

ABC News published a report which listed and explained some of the "enhanced" interrogation techniques that the U.S. has been using.

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

The Washington Post's editorial of November 23, 2005, posed an interesting question regarding the use of these techniques.

Are these techniques "not torture," as Mr. Goss (CIA Director) claims? In fact, several of them have been practiced by repressive regimes around the world, and they once were routinely condemned by the State Department in its annual human rights reports. By insisting that they are not torture, Mr. Goss sets a new standard -- both for the treatment of detainees by other governments and for the handling of captive Americans. If an American pilot is captured in the Middle East, then beaten, held naked in a cold cell and subjected to simulated drowning, will Mr. Goss say that he has not been tortured?

(emphasis added). I would like to know the answer, particularly in light of the definition of torture pursuant to the CAT.

Of these techniques, I will discuss one--water boarding. Andrew Sullivan has been all over the torture issue, and his site is one of the best for news, sources, and detailed analysis on the issue. I particularly like a post he wrote about a Wall Street Journal editorial which basically said that waterboarding--among other things--is acceptable and not "anything close" to torture. Sullivan points out that the main main of the Spanish Inquisition, Torquemada, did consider waterboarding to be be torture. In fact, Torquemada would use waterboarding when The Rack proved ineffective. Now try and argue that waterboarding is not torture.

Reason 3: The McCain amendment would prohibit techniques that produced good results and are needed for the future.

• Initial analysis
  

Think about this one for a moment. What the Bush administration was saying was that while we don't use or condone torture, we have used techniques that would be considered cruel and inhuman under the McCain amendment and we want to be able to use them in the future. If I am wrong about this, then why would anyone oppose the McCain amendment? If I am wrong about this, then the McCain amendment would allow the use of these same techniques, meaning there would be no reason to oppose it. However, as shown, the McCain amendment would prohibit the enhanced techniques described above--the same techniques that have been used already.

This is like potentially entering into a contract with someone, but that someone says "I won't breach the contract, but I want the option to do so." Would you enter into a contract with this person? If your answer is "no," then why would you believe McClellan or Bush when they claim that we do not torture?

• A concise statement of an argument for--and against--enhanced techniques

The November 21, 2005, issue of Newsweek has an article, "The Debate Over Torture," which sums up the argument for the continued use of the enhanced techniques:

Less violent but still coercive techniques can sometimes be effective. These "enhanced" interrogation techniques, like placing a smelly hood over a prisoner and making him stand or squat naked for hours in a cold and dark room, are called "torture lite." In modern times, these tactics have been used by British intelligence to unravel the command structure of the IRA and by the Israelis to stop Palestinian suicide bombers.

Since 9/11, torture lite has been used by the Americans in the war on terror...

*******

Torture lite has been a sparingly used but essential tool, says a senior Bush aide who spoke anonymously because of the classified nature of the subject. "We're talking about the most successful intelligence gained in the war on terror coming from these programs," he says. Details are hard to come by, but Sen. Kit Bond, a member of the Senate intelligence committee, told NEWSWEEK that "enhanced interrogation techniques" worked with at least one high-level Qaeda operative, 9/11 mastermind Khalid Shaikh Mohammed, to thwart a plot. Bond would not say which one, but among foiled plots vaguely described by the White House and linked to "KSM" was a scheme to attack targets on the West Coast of the United States with hijacked airlines. The planning for such a "second wave" attack may have been in the early stages...The White House suggests the intelligence obtained has less to do with people and plots and more to do with the structure of Al Qaeda. Because of "the program," as they somewhat spookily describe the CIA's "aggressive interrogation techniques," White House aides say that the United States has a much better idea how Al Qaeda operates around the world.

The same article also contains part of the case against the use of enhanced techniques.

A career CIA official involved with interrogation policy cautioned NEWSWEEK not to put too much credence in such claims. "Whatever briefing they got was probably not truthful," said the official, who did not wish to be identified discussing sensitive matters. "And there's no way of knowing whether what good information they got could not have been obtained by more traditional means."

Thus, while there is no way at this point to know whether this unidentified CIA official is correct, there is also no way at this point to know whether the unidentified senior Bush aid and Bond (Kit Bond) are correct. However, given the lack of veracity the Bush administration has shown on this issue (and damn near every other issue), I ask again why should anyone believe the Bush administration?

• A strong counter-argument to Reason 3
  

John McCain described this counter-argument in his statement on the Senate floor on November 4, 2005:

I’d note for my colleagues’ consideration that the State of Israel, no stranger to terrorist attacks, has declared cruel, inhumane and degrading treatment illegal. In 1999 the Israeli Supreme Court issued a unanimous decision to this effect that contained words we may wish to reflect on today. “A democratic, freedom-loving society,” the court wrote, “does not accept that investigators use any means for the purpose of uncovering the truth. The rules pertaining to investigations are important to a democratic state. They reflect its character.”

The Israeli position was discussed further in a November 17, 2005, L.A. Times editorial:

The 23-page 1999 ruling requires Israeli interrogators to use only the methods on terrorism suspects that police are permitted to use on ordinary suspects: "The asking of questions that seek to elicit truthful answers."

Rather than defining torture, the ruling forbade the use of physical means in interrogation and banned "borderline" methods that Israeli interrogators once routinely used: forcing a suspect to crouch on the tips of his toes, playing loud music and using hoods that cover a detainee's entire head, even if it is ventilated to allow breathing. The ruling also banned sleep deprivation for the purpose of "breaking" a suspect.

The ruling was the culmination of a long, wrenching process for Israeli society in which Israeli authorities and the public came to disavow torture. It began in 1984 when, after years of ignoring complaints by Palestinians about torture and abuse, a national commission of inquiry was formed following the killing of a Palestinian terrorist by GSS interrogators, who then lied about the death. The commission's report, submitted in 1987, sanctioned the use of physical duress, explaining that sometimes--after psychological methods have been exhausted--"a moderate measure of physical pressure cannot be avoided" when interrogating a terrorism suspect who is believed to have knowledge of an imminent danger to the public. Only in such "ticking time bomb" scenarios were interrogators permitted to shake a detainee's upper torso.

Shortly after the report was published, the first Palestinian uprising erupted and thousands were detained and interrogated. Mounting complaints of abuse indicated that GSS interrogators were using the disallowed methods and abusing the flexibility granted them under the "ticking time bomb" exemption. One detainee was shaken to death, and many others--some of them political activists who were released without charges--appealed their treatment to the Supreme Court. Barak and his colleagues examined the legality of each of the techniques routinely used by the GSS and banned them, including in "ticking bomb" situations.

Wow. The Israelis--who live with the reality of terrorism on a daily basis--determined that "enhanced techniques" would not be used. And Israel reached that decision after years of experience. These facts do not disprove Reason 3, but it certainly raises serious doubts about its credibility.

Reason 4: the McCain amendment would limit the President's power.

On July 25, 2005, Scotty Boy said one of the reasons for Bush's opposition to the McCain amendment was that it was duplicative, and then he said

We want to make sure that there is nothing that restricts the President's authority to be able to do what he needs to do to protect the American people and prevent attacks from happening in the first place, and bring to justice those who seek to murder innocent civilians.

(emphasis added). Scotty Boy's "duplicative" claim on October 5, 2005, appears above, but it is worth reprinting--and adding what he said immediately following that claim:

Well, there are already laws on the books, and so I think part of this, if you go back and look at the statement of administration policy that we put out, it would be unnecessary and duplicative. And it would limit the President's ability as Commander-in-Chief to effectively carry out the war on terrorism.

(emphasis added). Now think about this one for more than one moment. If the McCain amendment was truly duplicative and thus unnecessary, how could it limit the President's power in any way other than that already imposed by those existing laws? Scotty Boy--as usual--was making no sense at all. The McCain amendment applies only to the treatment of U.S. detainees. It does not affect in any way the President's authority in anything else. That means that if the McCain amendment would limit the President's power, then Bush was complaining that it would limit his power to order torture and cruel and inhuman treatment. You know--the stuff that he said he does not condone.

Everyone should understand that when McClellan speaks about not limiting the President's power, he is talking about a lot more than enhanced interrogation techniques. Indeed, he is talking about giving Bush unlimited and unchecked power in any matter which could be connected in any way to the war on terror. The Bush administration has taken this position ever since 9-11. The position was expressed recently (December 20, 2005) by Big Dick Cheney:

...I do believe that, especially in the day and age we live in, the nature of the threats we face, it was true during the Cold War, as well as I think what is true now, the President of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy.

In other words, Big Dick and the Bush administration believe that Bush should be allowed to do whatever he wants and not have to answer to anybody.

Conclusion

Reason 1 is outright bullshit.

Reason 2 is false. When we have approved and engaged in a technique that the top torturer of the Spanish Inquisition said was torture and harsher than The Rack, the only way you can argue that waterboarding is not torture is to utilize twisted bullshit definitions--which is exactly what the Bush administration has done. As for the Wall Street Journal editorial board saying that waterboarding is not "anything close" to torture, those assholes need to stick to business issues.

Reason 3 is the only possibly credible argument in favor of the enhanced techniques. However, proponents cannot show that the use of such techniques was the only way that the information they claim was procured could have been procured. Moreover, it is difficult to understand why these techniques are needed in the future when even Israel won't use them.

Reason 4 is just scary bullshit. When Reason 4 is evaluated in light of the weakness of Reasons 1 and 2, it is clear that the Bush administration opposed the McCain amendment because it would limit Bush's authority to order the use of the enhanced techniques. In other words, Bush wants the authority to order the use of techniques that are cruel and inhuman. What is really scary are the facts that the Bush administration thinks the President automatically has this power AND that the President does not have to answer to anyone regarding this power.

Checks and balances? Anyone? Bueller?

As I said, Bush's desire for this kind of power is not limited to interrogation techniques. There is so much to say about this subject, but for now I will refer to and quote an editorial by Steve Chapman of the Chicago Tribune published on December 25, 2005:

President Bush is a bundle of paradoxes. He thinks the scope of the federal government should be limited but the powers of the president should not. He wants judges to interpret the Constitution as the framers did, but doesn't think he should be constrained by their intentions.

He attacked Al Gore for trusting government instead of the people, but he insists anyone who wants to defeat terrorism must put absolute faith in the man at the helm of government.

*******

But the theory boils down to a consistent and self-serving formula: What's good for George W. Bush is good for America, and anything that weakens his power weakens the nation. To call this an imperial presidency is unfair to emperors.

*******

What we have now is not a robust executive but a reckless one. At times like this, it's apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can't be bothered to earn it.

And to close on another pop culture note, Chapman's "unfair to emperors" comment could be a line in a new movie--"A Mullet called George."