The Talking Dog

September 30, 2009, Musings

The Times of London treats us to an interview with Gore Vidal, in which the great American writer says that, as smart as Obama is, he's not up to the job and Vidal [a relation of Al Gore] says he should have backed Hillary because she at least understands the world at large better... oh, and the United States will likely be a dictatorship soon. Oh... and he's really bitter. (I was perplexed by mention of his correspondence with Timothy McVeigh, who he called "a patriot"... I suppose it's like Norman Mailer... American men of letters are supposed to adopt some killer on death row or something... sorry... not something I can understand...but I digress...)

I'll just say that not even I am as bitter or cynical as Mr. Vidal seems to be; I have some degree of hope for my countrymen, though it might be a bit misplaced (and to be fair, it's not a big degree of hope).

As I fight through a rather vicious and persistent cold, and look over at the kittens and the young 'un, I do worry about the simultaneous precipices we are now on-- financial, environmental, military, military-industrial, political, and of course, moral, and I say not without a tad of irony that as I read the words of the 83 year old Mr. Vidal, I'm kind of glad I'm already 46, and stand a good sporting chance of not being around long enough to see the full fruits of the psychotically short-sightedly rapacious mindset that took over my countrymen during my adult life... the children of the children of the Depression became the children of entitlement, and thereby made sure that their children... well... never mind that.

The best thing we can do for our own children is to prepare them to be resilient and adaptable... because our collective psychological inability to dial-down our rapacious lifestyles will ensure that they have to live under a different standard... and they'd best be ready for anything. And while man is the only animal blessed with the gift of self-delusion... teaching our children to see things as they are is about the best gift we can possibly give to them... and if we don't give them that, it's not clear what value anything else we give them will have.

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September 26, 2009, TD Blog Interview with Stephen Abraham

Stephen Abraham is an attorney in Newport Beach, California. A graduate of the University of California at Davis, he was commissioned in 1981 as an intelligence officer in the United States Army Reserves in 1981. Between 1981 and 2008 when he retired with the rank of Lieutenant Colonel, he served during periods of active and reserve duty, including tours in 1991 and following 9/11.

In 2007, Lt. Col. Abraham gave an Affidavit to the legal team representing the petitioners in the Al-Odah and Boumediene cases, which many believe was key to the United States Supreme Court decision to hear petitions from Guantanamo detainees regarding their detention, and the subsequent decision (Boumediene v. Bush, 2008) that Guantanamo detainees have habeas rights pursuant to the United States Constitution. On July 25, 2009, I had the privilege of interviewing Stephen Abraham by telephone; what follow are my interview notes corrected as appropriate by Mr. Abraham.

The Talking Dog: Where were you on September 11th?

Stephen Abraham: I was at the Bachelors Officers Quarters, Makalapa, Pearl Harbor, Hawaii. It was very early and I was getting ready for a reserve planning conference when I learned the news.

The Talking Dog: Can you explain what OARDEC is, and how you came to be there?

Stephen Abraham: OARDEC stands for the Office for Administrative Review of the Detention of Enemy Combatants, a military entity that fell under the control of the Secretary of the Navy. Though it was created at an earlier time, it evolved in the aftermath of two Supreme Court decisions in the Summer of 2004. In 2001, following 9/11, I was recalled to active duty and served for a year at Pearl Harbor. About a year and a half later, I was asked if I would be interested in serving with this organization dealing with the detainees at Guantanamo. Though initially considered for a position as a member of the Administrative Review Boards (“ARB”), by the time I got to OARDEC, in response to the Rasul decision, the executive learned that the continued detaining of enemy combatants could not rest solely on prior determinations of who was an "enemy combatant" but, instead, that a new process had to be established, one that satisfied the Supreme Court’s mandate for a meaningful process that comported with due process. So was OARDEC’s mission expanded. That process became known as the Combatant Status Review Tribunals or CSRT’s.

Upon my arrival, as a lieutenant colonel, I was assigned a number of tasks. I served as liaison officer, my duties being to work with other agencies that were tasked to search their records for exculpatory evidence, that is, evidence tending to demonstrate that a particular detainee was not properly classified as an enemy combatant. As an experienced intelligence officer, I also provided assistance to various members of OARDEC with respect to their collection and processing of information used by those preparing the files of information to be used by the Tribunal members. I also created a system for collating and assembling the information and performing certain reporting functions required by the OARDEC chain of command. I also was tasked to serve as a member of the Tribunals.

The Talking Dog: What did you expect your assignment to be, and what did you expect to find at OARDEC, and how did this contrast with what you encountered there?

Stephen Abraham: I expected to see an organization staffed largely by JAG (Judge Advocate General) and intelligence officers. I expected to see analytically trained and experienced officers. I expected to see an organization specifically created to deal with a complicated issue having profound legal and political consequences. Instead, I found an organization created out of whole cloth, an organization that had considerable logistical requirements but no assets, an organization that had extraordinary intelligence requirements but no true ability to task intelligence assets, an organization that required a considerable understanding of intelligence programs but that was led by individuals with diverse but little intelligence experience.

This struck me as peculiar, given that the imagery presented by those who were involved in OARDEC’s creation and evolution clung so tightly were of the trials conducted following the end of World War II. What I expected was a well though out and implemented operation. What I perceived was quite different.

To be very clear, it would be difficult to imagine an organization more enthusiastic about its mission or individuals more dedicated to the achieving of the highest levels of service. That said, what I found was an organization that had no ability to task intelligence organizations from which it required information to function, no ability to collect information from sources essential to the conduct of the Tribunals, no budget for witnesses, no particular expertise with respect to the information collected, and an impossible time frame for the conducting of hundreds of Tribunals, not driven by the time required to engage in a thorough process but, instead, driven by political motives. Perhaps the best indicator that something was wrong was the fact that the organization was not led by either intelligence or legal professionals but, instead by an engineer and two aviators.

The creators of OARDEC provided no one in that organization with the ability to task any agency with responding to its inquiries or to compel any agency to provide such a response. OARDEC was a function with no power and no real budget to perform all necessary tasks, as former Secretary of the Navy Secretary Gordon England himself even acknowledged. Nonetheless, this was the organization tasked with the collection of information and conduct of tribunals used to justify holding these men.

The Talking Dog: Am I correct that you ran across details associated with what the government asserted were its reasons for detaining virtually all of the detainees that had CSRTs while you were at OARDEC? Also, if you could, please tell us what you did at OARDEC-- and where?

Stephen Abraham: My various functions brought me into contact with some aspect of almost all CSRTs between September 2004 and June 2005. I was familiar with most of the materials used in the CSRTs, and was involved as a panel member in one tribunal. I also participated on planning meetings associated with the CSRT process.

Most of the OARDEC work of which I am aware took place in Washington, DC (as did my own). I would estimate 99% of my own tasks associated with OARDEC took place in Washington, D.C. I went to Guantanamo itself no more than three times.

As to the tribunal on which I sat, we met for perhaps an hour or two. The presentation of material to us was short, and it took place entirely in Washington D.C. and not at Guantamo. Needless to say, any CSRT in Washington was without the personal participation of the detainee, a situation that occurred in a large number of cases.

The Talking Dog: What did your own panel (panel 23, associated with detainee 654, Ahmed al-Ghizzawi, now represented by Candace Gorman) conclude?

Stephen Abraham: We concluded that there was no credible evidence to support the asertion that al-Ghizzawi was an unlawful enemy combatant. We had a number of questions about the information presented to us and took much of it as simply not making out a serious case against the detainee. We were then directed to "leave the tribunal open for additional evidence." While additional material was taken, little of it satisfied our concerns and certainly did nothing to move us from our prior conclusions. We stood on our prior decision that detainee 654 had not properly been classified as an unlawful enemy combatant.

The Talking Dog: I understand (from your interview with Andy Worthington, among other places) that you don't like the use of the term "evidence" in this context; can you explain why?

Stephen Abraham: "Evidence" gives an impression of substance, of information that has reached a level of quality and trustworthiness such that it is given due regard by the very use of the word. That term was not justified in this case, nor in many others. Let me give you an example. I'm getting ready for a trial. A party has testified. He has made previous statements, and given a deposition. Through those proceedings, the testimony takes shape. Where the testimony can be corroborated by other evidence, we can form opinions about its trustworthiness. The ability of that evidence to prove a particular fact – its probative value – can be better understood through the process of trial. But if the testimony is not amenable to being verified, we cannot really make any assessment of its truth but by relying on our own conclusions about the source. We decide that we must trust or not trust the source but, ultimately, have no basis for our decision other than our own particular biases.

Even if you get past the use of the word, the quality of the "evidence" did not appear to be consistent with the lofty purposes of the CSRTs, to determine in the first instance if the initial characterization of these individuals as enemy combatants was correct. What information we received had no indicia of reliability. Instead, we were told that we had to accept it, that we could not question it, and that we, in essence, were to presume the validity not only of the information but of the conclusions drawn from it. Years later, nothing has changed.

In many cases, there was little information about the detainee prior to his capture, a rather curious state of the record, seeing as how the task of the CSRT’s was to determine whether the individuals had been (unlawful) enemy combatants prior to their detention. Instead, the files would be weighted down by reports of a detainee's post-detention conduct, interesting but completely irrelevant. Such information would reveal little of why they were detained in the first place, or whether that reason constituted a basis for a finding that the detainee was an unlawful enemy combatant.

The Talking Dog: All that said, I still want to come back to the question of whether the government continues-- to this day, in defending habeas petitions by detainees, for example-- to rely on this same... flawed... OARDEC-generated (I won't use "evidence") material?

Stephen Abraham: Let's talk about overlapping time-lines. Since people have been detained at Guantanamo, information obtained from interrogations there has been used to justify further, ongoing detention of people there. Of course, even in the face of court orders against it, the government has still never come to acknowledge the reality – that OARDEC was incapable of performing its duties in the manner contemplated by the Supreme Court in 2004. Simply put, what OARDEC did, no matter how noble the effort, did not come close to meeting the requirements of Due Process.

For a few detainees, "new records" were created. But enough lawyers involved can tell you that the quality of "evidence" has not markedy improved to this day.

Over the past number of years, the Government has spent considerable effort "re-doing" CSRTs in an effort to correct flaws in the intial proceedings, all the while contending that that the old ones were good enough. While that is going on, what is conveniently overlooked is the fact that those original CSRT’s were claimed to be a proper basis for holding men for six or more years. The analogy is that the prosecution loses its case, but asks for a new proceeding, and simultaneously asks that we completely forget that the first one happened... but nonetheless, still insists it was good enough all along!

The Talking Dog: Let me ask another "quality" kind of question... in my interview with Lt. Col. Darrel Vandeveld, he noted of the military commissions process that it was marked by the prosecution files, which should have been in apple pie order after supposedly years of building cases, were instead in total disarray. Can you comment on the state-- the physical state-- of the documents and materials that OARDEC was working with as far as the CSRTs?

Stephen Abraham: From an aesthetic point of view, the files looked nice enough. But I am sure that is not what you meant. Substantively, the files appeared as a collection of documents, often times having very little to do with the individual detainee. You have to understand that many of the individuals – not all of course – were simply unknown prior to their detention. As a result, there was no pre-existing information about them and no real ability to gather information relating to them in all too short a period of time allowed for the tribunal process. As a result, efforts were taken to put anything in the file, anything that might even remotely relate to the individual, his alleged organizational links, his region, or even his country. Of course, there were no real standards for the quality of information in the files, only that they have “something,” enough to get past the Tribunal.

The Talking Dog: Given that thus far, it seems that the new Administration is, in many ways, indistinguishable from the old administration, is there any advice you'd like to give (my college classmate) President Obama on how to deal with these matters?

Stephen Abraham: Assuming that the Administration cared about my opinion, I would call for an hour or so of genuine introspection. It was suggested in an early BBC commentary shortly after the election that we have heard from the politician Obama, and now we have to wait for the President Obama. Candidate Obama said that Guantanamo would be closed, and detainees treated fairly and in accord with due process. President Obama has now responded that the task is harder than was first understood.

The Administration's willingness to believe itself capable of "solving the Guantanamo mess" becomes utterly irrelevant if the Administration is unwilling to change the line up. Does it matter what the President says he intends to do if the United States Attorney standing up in court has not changed his legal position one bit from that taken in the Bush Administration?

What I have seen so far reflects little change of direction and certainly no change in the attitudes of those leading the charge to continue indefinitely the detention of individuals as to who there has been and continues to be a persistent reliance on a fundamentally flawed Tribunal process. For all of the talk of justice, many, but not all, of those who act on behalf of our Government – as opposed to those who speak – continue to make the same arguments in favor of indefinite – permanent – detention and against meaningful judicial review, undeterred by the fact that, at its core, the case they prosecute is based on slender reeds.

The President can say "I'll close Guantanamo within a year" all he likes. General Colin Powell has said that Guantanamo can be closed very, very quickly-- literally with a pen stroke, or perhaps as a matter of excising a budgetary column. But "closing Guantanamo" or not closing Guantanamo is not the basic question. In fact, it is now, years later, an irrelevant question. The basic question is whether this Administration has the will to have decided the fates of the men it is holding in Constitutional [Article III] courts... and it has shown no will to do so thusly so far. The fate of detainees are largely being decided by the executive branch, by use of commissions or tribunals that are creations of the executive, and not Constitutionally valid fora.

In similar fashion, there appears to have been no change in how this new Administration answers the core question, "what is the source of human rights?" This Administration has taken its cue from the prior Administration, and has determined that fundamental human rights are creations of the government, and as such, they can be taken away by the government.

The Talking Dog: Can you tell us briefly (my understanding is that your sister happened to work for a law firm that was representing some Guantanamo detainees) how you came to give the now famous Declaration attached to the motion to reconsider the Supreme Court's denial of certiorari review in the Al-Odah and Boumediene case that many credit for convincing the Court to grant the extremely rare reargument (and later, the Boumediene decision)?

Stephen Abraham:My sister did indeed work for a law firm that represented detainees. I was asked to listen to a presentation at the Pillsbury law firm regarding the individuals who were subjected to CSRTs. It became clear from their presentation that they had never actually spoken to anyone who was actually familiar with the process itself, or who was involved in the process... they had made that fundamental lawyer's mistake of taking the other side at its own word! To win in litigation, I often find that the evidence, and even the law, are irrelevant. The legal terrain will be sloped in one's favor if one can capture the definitions and vocabulary. Under such circumstances, you can control the discussion of what the relevant standard "ought to be".

And so, in this context, it was clear that no one had previously addressed the rather basic question of whether the material presented in the CSRT process passed any threshold of validity or reliability at all. Certainly, no one ever questioned if it met any standard that would survive appellate review.

So, when Admiral McGarrah's declaration said, rather artfully and in vague language, that all formalities associated with due process were respected, I responded "NO IT WAS NOT." No witnesses were called no opportunity to appear was provided to the detainees, despite requests to have such an opportunity. And so, when Admiral McGarrah concluded that the process given to detainees conformed to the applicable Supreme Court decisions, I responded "NO THEY DIDN'T".

The implication was that a process of determining whether or not the men the military was holding were being lawfully held by the military was created, and it was a meaningful process. Well, if there is such a process, there are aspects that we would expect to see associated with such a process weren't there; Justice O'Connor said to do this a certain way. Words were recited that such a process existed, and that it conformed to the law and the Constitution, and Admiral McGarrah said it, albeit vaguely without specific details. Except, of course, that they didn't do that; the process conformed to no standard of fairness or reliability at all.

The Talking Dog: I join all my readers in thanking Stephen Abraham for that enlightening and fascinating interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with former Guantanamo military commissions prosecutor Darrel Vandeveld, with attorneys Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo's First 100 Days, and with Charles Gittings of the Project to Enforce the Geneva Conventions to be of interest.

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September 25, 2009, Would be funny if funny department

Via digby, we learn from this HuffPo piece about the thoughts of Neil Barofsky, the Treasury Department's man in charge of the Troubled Assets Recovery Program (TARP). You all remember TARP, the much vaunted program by which quite literally all the money in the world was sucked out of possible productive uses to prop up our successful financial system, so that necessary reforms wouldn't be implemented, we could have "business as usual," and so that the banking sector, whose problem was the concentration of insanely high market share in a few institutions, would end up being consolidated into even fewer, larger institutions, even more too big to fail. As Mr.Barofsky, our TARP chief tells it, just a year after the collapse of Lehman Bros. presaged a systemic meltdown... which was duly temporarily staved off by a massive injection of trillions of dollars that will have to eventually be siphoned from somewhere (that's us, folks... "the rubes")... anyway, Mr. Barofsky tells us that the banking system is actually shakier than it was a year ago.


Eh... I wouldn't worry too much... it's all just money. Hey, you have your health, right?

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September 23, 2009, Law and the Long War... intro

My friend and colleague Thomas Nephew leads off the substantive discussion of Benjamin Wittes' "Law and the Long War" with this dead-on discussion of the opening introductory section. [Thomas's introductory post is here; mine can be found here.]

Mr. Wittes's bio makes no indication that he has a law degree or legal training. In that sense, then, he may not quite understand just what he did wrong in the "opening statement" part of his "introduction," specifically why it's so disturbing to those of us whose lives are devoted to "the law as it is" on the ground in the courts of this nation, rather than as we might fantasize it from our think-tanks. Both Thomas and his first commentator grasped it immediately. I'll tell you what it is in a moment.

First, though, it's important to note that Mr. Wittes's book proposes to be a lengthy polemic in support of the not particularly controversial proposition that Congress has largely defaulted in its traditional structural role of developing legal frameworks associated with the war on terror, followed by the somewhat more controversial suggestion that Congress impose such legal frameworks (including, of course, "preventive detention.") Congress's default is not that surprising, as the executive, which must fight the wars, is often out front in developing such frameworks, and Congress often trails behind in "making the rules". Further, the Bush Administration's unusual degree of contempt for Constitutional government in general, as well as its coordinate branches, certainly put this particular "problem" front and center.

But here's the thing. The opening sequence of Law and the Long War gives us the hypothetical example of Special Forces soldiers who have captured a terrorist kingpin in Afghanistan, but then let him slip away. They then pick up his wife and three sons, and trick her into giving up his location through the ruse of threatening to send her sons to an Arab country's secret police for torture and execution. Before quite letting this scenario sink in, Mr. Wittes tells us that it's a real story, only the year is 1946, the place is Germany, the soldiers are British and the terrorist kingpin is, in fact, Auschwitz death camp commandant Rudolf Hoess.

What's wrong with this picture? I'll just give a top five. (1) Any trial lawyer knows that the opening statement represents 80-90% of the best opportunity to sway the jury; leading with a bait and switch of this kind immediately jeopardizes the lawyer's most important asset: his own credibility. (2) The currently operative Geneva Conventions date from 1949; Wittes offers no discussion of this legal development onthis scenario. (3) Wittes presents the scenario in the context of Hoess's habeas corpus petition, claiming his apprehension was unlawful, when, of course, even in 2009, in the United States, a prisoner apprehended illegally in another jurisdiction can nonetheless stand trial here (see e.g. U.S. v. Alvarez-Machain), (4) as Thomas points out, the premise of the Special Forces hypothetical is the prospective danger of the dangerous terrorist on the loose; Hoess, while one of the worst mass murders in history, nonetheless no longer presented "an imminent threat" in 1946, thereby resulting in a mixed metaphor and missed point, and (5) as Thomas's first commenter notes, the hijacking of reasoned thoughts from the hyper-emotional reference to Nazis, and indeed, the following sequence where Wittes discusses two particular Guantanamo detainees (one of whom, of course, is designed to fuel our worst fears) result in the effect of hijacking reasoned thought in favor of emotions, which is not the appropriate manner in which this kind of policy discussion should be conducted, though sadly, has been thus far.

The thing is, the substance of Mr. Wittes's book, critical for example of the Bush Administration's "go-it-alone" approach to everything led by Cheney and Addington which led directly to the Supreme Court's ultimate intervention(s) into the national security area vacuum left by Congress, or noting historical antecedents in the Clinton Administration and earlier and other interesting observations, seems on far more solid ground analytically than with the rhetorical sleight of hand presented in the opening statement.

Which kind of takes me to my most basic criticism: maybe we really didn't need a "new framework" at all; maybe terrorism really isn't more dangerous than the Third Reich, the Soviet Union, the Klingons and Romulans combined... maybe the ad hocapproach adopted by the Clinton Administration in response to al Qaeda was actually the way to go after all, and "a war" on private, albeit well-organized group of international criminals was the mistake. Maybe the fact that we have given OBL and A.Q. their street creds by insisting that this is "a war" in the first place has been what needs changing-- and what we should reconsider is not the law or the legal paradigm, but the metaphor.

Maybe the President and executive and the military and the intelligence community and law enforcement already have all the power and authority they need to combat al Qaeda and the terrorist threat. Indeed, maybe it is "the long war" part of "Law and the Long War" that we should take a good hard look at, rather than "the law." I commend Mr. Wittes on taking on this discussion, from at least some angle. But I am constrained to note the fundamental problem with his opening rhetorical device: another "bait and switch" like the Hoess opening, and Mr. Wittes the polemicist will have no credibiility left as far as I'm concerned, and this critical discussion will have to take place in another context. Which would be too bad.

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September 20, 2009, Brother Dmitri explains it all for you

Check out this brilliant exigesis from Club Orlov for unconventional (and hence accurate) observations of the recent Overweight Middle-aged White People's March on Washington.

Dmitri, man, all I can say is "We are not worthy..."

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September 18, 2009, Law and the long war

Well, one could argue that those are the twin themes of this blog, which celebrates its eighth anniversary, today. It's also the title of a tome by legal commentator Benjamin Wittes, a tome suggesting the controversial premise that our current laws aren't sufficient for the "all new unique to the history of the world conflict against terrorism" we are facing... and so, new ones are needed.

Well, I'm delighted to report that my colleague and friend Thomas Nephew of the great Newsrack blog and I will be taking on the task of analyzing Mr. Wittes's book, chapter by chapter, more or less in the order Thomas suggests in his announcement post here.

I'll try to control my own quite set-in-defense-of-the-rule-of-law viewpoint (yes, I am one of those irritating legal absolutists who believe that the powerful don't get to make up the law as they go along, and existing law really does have an answer to all situations... whether it is "the right answer" notwithstanding) and I promise to be somewhat objective... or at least explain my own "biases," which include (but are not limited to) the results of my experiences as a practicing attorney for 23 years, including one who started his career with the United States Department of Justice, and these days among other things, tries to help out another attorney and friend who represents two GTMO detainees, and an adult life spent in America's premier terrorist targets (I was, inter alia, across the street from WTC on 9-11, and my college education here in New York included spending two years in the same graduating class (and major) as the President of the United States). I'm also someone who has read much of the literature in the English language associated with the law of the "war on terror", and I've explored this area as a citizen journalist, and otherwise... as an all around pain in the ass.

Well... there we have it. Happy blogiversary to this blog... and we'll all look forward to this great project... Kudos to Thomas for suggesting it. And to my landsmen, I wish you all a "L'Shanah Tovah;" indeed, the very first blog post here also occurred on Rosh HaShanah, the Jewish New Year... it seems what's old is new again... best wishes to all.

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September 17, 2009, Truth or consequences

A new study has concluded that an average of 45,000 Americans die prematurely each year from a lack of health insurance coverage. Given that there are 45 million Americans who are uninsured (plus or minus illegal aliens... Congressman Joe Wilson wants you to know that it's a.o.k. with him if they die in the streets like animals, even if not treating them results in infectious diseases spreading to, you know, White people... and other catastrophes, just so long as you-know-who continues to be screwed by the system)... that means it would take around 1,000 years to do God's work and kill 'em all... fortunately, actuarial tables say it won't take quite that long to clean out them uninsureds.

For point of comparsion, we should note that there are also two to three great white shark attacks on average each year in the US of A, most of those non-fatal, btw... but which do you think gets the prime coverage, not to mention the big-time hysteria when it's reported? You get the idea.

Those likely to be attacked by sharks are probably hip, upscale good-looking people, surfing or doing some cool triathlon or something, who live in expensive beachfront property and are probably White and have good jobs and sh*t. Many of the prematurely dying uninsured are probably overweight and not very attractive and maybe live in unfashionable neighborhoods and well... we'd rather not think about them, if that's o.k. (and lemme tell you: it's o.k.)

And so we continue to make public policy based on sensible criteria like those above: the fact that we get a 9-11 size death toll every 24 days as a result of our mean-spirited refusal to either require the government to insure everyone (or at least all children, if nothing else) or at least to require every employer above a certain size to insure their workers might seem somewhat troubling. But doing something about that would cost hip, upscale people money, and that's just not how we do things here in capitalist Amurka. WOLVERINES!

And it's not how we're going to do things, as those 45,000 people die to show everyone else the consequences of not buying in to the program... and the business of America is business, and we're, as you can see, deadly serious about that.

And the best part (IMHO) is that Medicare recipients, the old-geezer beneficiaries of socialized medicine paid for in large part by uninsured workers (and quite frequently not paid for by the geezer-beneficiaries themselves) are a natural constituency for the status quo, joining over vested interests like big pharma and big insurance. It is frequently older people who are often the biggest loud-mouths themselves when it comes opposing expansion of either their own program (and many even scream about "Obama that damned socialist!) or any other to expand health coverage. And politicians listen, because the geezer-class punches above its weight in voter turnout. And so, the geezer-class often opposes expansion of health care to the uninsured, even though its members benefit from the Medicare program which is of no current benefit to the sub-65 workers who are actually paying for it, figuring that in a world of scarce resources, we might start making actual rational decisions, like, oh, taking a look at outrageously expensive coverage at public expense for them...

But since we don't do anything else rationally or justly or even remotely fairly... I wouldn't worry too much if I were a Medicare bonus-geezer. It's hard to see why we shouldn't just keep letting 45,000 Americans a year needlessly die from lack of insurance (most of whom, let's face it, are probably fat and poor and not very attractive as it is), because, well, f*ck 'em.

This has been... "truth or consequences."

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September 13, 2009, It's about the racism, stupid

In works of Shakespeare and in other "sensitive" human contexts (such as... dictatorships) the only character permitted to speak the actual truth is the fool or the jester. In keeping with that tradition, the Grey Lady permits us to hear an uncomfortable truth (or perhaps tells itself, since we have known for quite a while) through the vehicle of the usually "lighthearted" Maureen Dowd. That unpleasant truth is that the binding and driving motivation of extremists from Joe Wilson to the Scaife/Coors, et al. sponsored "teabaggers"... is... wait for it... racism. Shocking, I know. But millions of Americans just want to scream (in company beyond their own walls, that is) "Hey, everybody, the President's a N-word"... MoDo tells us that Joe Wilson's outburst of "You lie!" had an implicit "You lie, BOY!" in it. [Technically, it was "You lie, N-word! but we all get the idea.]

It just upsets the core of their being for a significant share of the American populace that "one of them" has risen to the position of President; this simply cannot be allowed to happen in their view, and on the "health care debate," simply put, there are millions of people who would rather die in the street of an otherwise curable illness than have that N-word get a political victory. In that sense, this companion piece in the Grey Lady by Frank Rich both hits and misses the mark... yes, the summer was wasted on sideshows when President Obama should have taken charge, but no... no matter what he does... see above.

Well, it's good that at least someone at the Grey Lady's priviliged "inner-circle of geniuses" has finally woken the f*** up enough to just out and say what's really going on out there. Maybe we can have a real "national debate" out in the open now... the subject of "the debate won't matter too much (i.e., "it's about the racism, stupid"), but at least we can out and say that rather than hiding behind code-words and surrogate issues and pretending that anything other than race matters to so many people. Because it doesn't.

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September 12, 2009, Hope and change: business edition

The Grey Lady treats us to "a year later view of Wall Street." And the picture looks... surprisingly similar to what it did a year ago. Except now everyone is more convinced that the government will step in to bail them out of bad decisions (from which the "haves" such as Goldman Sachs may continue to benefit from the upside) than they were during "the crisis" when there was, at least, the possibility that the government would not.

Which just means that many economists, including some who have been right about the dot-com and housing bubbles, see the next inevitable crisis (which will be coming in a matter of at most a few years, rather than centuries or decades) will be worse, as we have largely tapped out the government's credit-worthiness as it is just to get us to this point.

Obviously, the initial counter-measures to last year's financial crisis were taken in the Bush Administration, and, alas, as in so many areas, the Obama Administration simply continued existing policy. And in the sense of short-term stability, this was understandable.

But the Grey Lady piece notes the obvious road-block to real reform, even seemingly minor reform like transparent trading of derivatives (and they are still being traded, notwithstanding the systemic damage they are believed to have caused), let alone significant reforms like compensation caps or limitations on the size of financial institutions... Reforms are held up because, of course, such things are counter to the interests of the financial uber-klass that owns Congress. Which is... a problem. Because anything that requires Congressional action counter to the interests of big money... isn't going to happen. Not "probably" isn't going to happen. Just "isn't."

Which is too bad.

My advice to my individual readers remains the same (and keep up with Club Orlov for more great advice!): try to have a place to live that's not likely to be taken away from you, have some means at hand of growing and raising your own food, try to get in (or stay in) pretty good shape so you can walk and ride a bicycle (and keep your bike in good shape), and hone up those basic skills like sewing and basic carpentry and bicycle mechanics and all. Maybe make friends with some current or ex- law enforcement or military personnel... good friends. And don't worry too much about the vagaries and complexities of our society, because, thanks to our friends on Wall Street and their friends in Congress, unless we actually do see some dramatic "change" (and folks, my college classmate President Obama, though neither corrupt nor dysfunctional himself, still comes out of the same corrupt and dysfucntional system as the turkeys in Congress... and he has largely surrounded himself with still more of those same turkeys)... this party is likely going to end... not merely in our lifetimes, but in our relatively near futures. And it will likely end with the power off, the plumbing not working, the cops raiding the place, and most of the guests suffering unpleasant hangovers...

I hope I'm wrong, but it's not really how you bet. This has been... "Hope and change: business edition."

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September 11, 2009, Patriot Day Thoughts

And so we arrive at the eighth anniversary of "The-Day-Before-Which-The-Thinking-Was-All-Different." Back when we thought accused wrongdoers should have things like due process, attorneys, charges, trials... before we decided to lock them up and throw away the key. Back when we might have "trusted our government" to bring us goodies like health care, but probably wouldn't accept "trust us" when it came to reading our mail and e-mail, listening to our phone calls, and reserving the right to "preventively detain" any of us for, you know, "our own safety."

Regular readers know that on "the day" I happened to be at work one city block north of the WTC, and, given that proximity, a few degrees alteration of a terrorist-pilot's flight path, and I'm not sitting here typing this. (Given that proximity, my reward for bearing such proximate witness was to lose my job when the office building became uninhabitable). Oh... and as a Brooklynite, I and my family got to live downwind of the burning Ground Zero site, with God knows what long term consequences. So, that said, I take all of this quite seriously... I just don't think most of my countrymen really do. Many of us, lo these years later, still see the world as some kind of sporting event... the metaphor (like the fakery of Jack Bauer knowing who he is torturing and that he will always "get results") seems so much better than the unpleasant reality (we have no idea who we have oin custody-- and the fact that over 80% of Guantanamo detainees have won their court cases should be as clear a reminder of this as anything-- and hence, we are probably going to torture someone who knows absolutely nothing who will send us on a wild goose chase just to stop the torture)...

Anyway, in prior years, I've honored 9-11 heroes like Richie Pearlman, the selfless volunteer paramedic, or Rick Rescorla, the Morgan Stanley security chief, each of whom gave their lives trying to save others, and of course, I mention them again. But at some point, we do have to, as the President says, "look forward"... although, not, of course, to "forgive" the terrorists, or the evil (some were just misguided or overzealous; most were just evil) government officials who took us down the road of torture and totalitarianism, and we have to hold them accountable... but as a psychic matter, realize that we are hardly passive victims... we are still members of the most powerful society that has ever existed, and can, if nothing else, publicly express our outrage at what has been done in our names. Well, some of us can, anyway.

We can, for example, express our outrage that purported Constitutional Law teacher Barack Obama proposes to be the first President to introduce a bill providing for "preventive detention" to Congress (the arch-reactionaries Coburn and Graham love it). OK: I expressed mine.

And I'd like to say a word in favor of Congressman Joe Wilson. Yeah, Joe was out of line with that "you lie" thing, but let's cut him some slack. Sure, Bob Novak's death gave him a little bit of closure, but poor Joe really hasn't been right since his wife Valerie Plame's covert CIA status was "outed" thanks to Rove, Libby, et al. A little "looking forward" there too, maybe...

Happy Patriot Day everyone.

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September 7, 2009, The year of the pig flying

Well, the actual UK Telegraph story, about a Chinese official expressing "concern" about likely U.S. inflationary measures (i.e. "monetizing debt," a/k/a gearing up those printing presses) seems mundane enough. China is the holder of the largest international U.S. dollar reserves (some $2 trillion) and is concerned both the ongoing viability of its investment, and of its own export-based economy amidst the new economic reality.

No, the part of the article that amused me is the quoting of CPC official Cheng Siwei (now "head of the green energy drive" and "former vice-hairman of the Standing Committee"... whatever they are... it's not clear that he actually is a key Communist Party of China figure, or even a CPC official at all... but what the heck, right?)... Anyway, he quotes Ben Franklin, of all people, and says "He who goes borrowing goes sorrowing." The money quote, however (literal) is:

"The US spends tomorrow's money today," he said. "We Chinese spend today's money tomorrow. That's why we have this financial crisis."

It didn't used to be this way, of course. The reality is, the U.S. of A. used to be the world's export leader, back in the days when we (1) were actually a net exporter of oil... it's true, we were! and (2) we actually manufactured products that other people actually wanted to buy!

To be fair, we still do, it's just that by permitting the Walmarts, Targets, Lowes, Home Depots, etc., of the world to dictate that only the cheapest crap imaginable can hit their shelves, which dominate the market, regardless of how short-lived the product is because of its low quality, this has greatly accelerated the impact of imports, particularly from China, whose sole attribute is that they can be delivered to Walmart, Target, et als., cheaper. It seems that the death of the "mom and pop" store did more than damage communities; it damaged every single (once) durable good in every community... including "the community good."

The only true meaning of happiness I can yet glean from my 46 plus years on the planet is that the only source of real happiness is the quality and satisfaction one gets from one's relationships, be they family, friendships, romance, employment, community involvement, or even our relationships with our surroundings. This movement toward mass-marketing based solely on marginal price has, in the name of getting us "more stuff"... cheapened just about every aspect of our lives, both from the goods themselves, with which we might have had long term relationships (including, for example, once thriving relationships with local repair people, who by and large no longer exist because there is usually little point in paying more to repair a product than to replace it anymore... even if over the course of our lives, repairing a good product might still be cheaper than constantly replacing a bad one...), and unsurprisingly, our ultimate relationship, that with everything... is despoiled. Our rather strange fetish for an endless supply of cheap crap to compensate for unsatisfactory relationships (and hence, unhappiness) has led directly to the "consume, consume" mindset, with its not particularly "happy" environmental consequences, or human consequences (especially if one considers the reality of the conditions under which the cheap crap we import is manufactured.)

Not quite sure where I was going with all this (Jeez, TD... I mean, the definition of actual happiness.... what next, the meaning of life? Screw that... what's the Dow going to do tomorrow?... but I digress...) I guess it's just an interesting situation that the richest, most powerful nation in the world insists on living beyond its means (just as most of its people live beyond theirs) and relies on the thrift of a rapidly developing, but still by and large miserably poor country, a country right now that is immensely successful because it has an incredible savings rate, a huge investment in public infrastructure and a rapidly advancing (and increasingly well-educated and skilled) middle class, largely fueled by an export-driven economy... and indeed, it's holding the largest foreign reserves (and is going long in gold)... in short, China sounds to me a great deal like the post-World War II United States, until things got all... different... starting in the 70's and 80's.

We, of course, were the world's political and military leaders, as well as its economic leader; China is a regional power, but isn't where we were, and isn't likely to be. Don't know where we go ultimately; as one of our biggest, if not our biggest, financier, the Chinese will have leverage over our policies, should they wish to exercise it (which, thus far, they have by and large avoided doing.) All I can tell you is that the Communists who turned to capitalism are quoting Ben Franklin back to us. Early to bed, early to rise, makes a man healthy, wealthy and wise. And a penny (or a trillion) saved is a penny (or a trillion) earned. Maybe we should listen to them... while it's still voluntary.

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September 4, 2009, Material whirl

The Ninth Circuit Court of Appeals in San Francisco has permitted a lawsuit against former Attorney General John Ashcroft to proceed, said lawsuit brought by an Muslim-American citizen of this country who contended that his detention on purported "material witness" grounds violated his civil rights; needless to say, the plaintiff, was never charged with a crime, and never asked to testify in anyone else's criminal proceeding, though he was detained, and claims that it resulted in loss of employment and loss of his marriage.

The Ninth Circuit, widely regarded as the nation's most liberal federal appeals court, has often been ahead of most of the country on this issues. Will the government appeal this to the Supreme Court? Would the Supreme Court touch this with a ten foot poll? Does anyone doubt that accusing someone of ties to terrorism for no God damned reason other than that they converted to Islam is an outrageous abuse, redressable by money damages in our courts? Don't answer that... I think a great number of American people do doubt that. To whom I say, either the law applies to everyone, or it applies to no one.

And at least I know that I feel better about living in a country where the law applies to everyone (even those who believe themselves above the law, such as former Attorney General Ashcroft.) I realize we don't live in such a country, but we can at least pretend aspire to live in such a country. It makes me feel better, anyway.

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September 2, 2009, Change, you can be leavin'

I hinted about this in a recent post, and now it has come to pass: the CIA has taken a legal position in Court that its means and methods of Medieval torture chamber management detention will "endanger national security"... and in short, the stonewalling continues. This sums it up:

“There’s really no distance at all between this declaration and the declarations the C.I.A. was filing during the Bush administration,” said Jameel Jaffer, an A.C.L.U. lawyer.

As the Obama Administration ponders why the President's approval rating is on a downdraft, Rahm and the rest of Team Obama might want to wake the f*** up, and realize that Candidate Obama ran against the policies of the Bush Administration. To adopt the Bush Administration's signature program... totalitarianism... as its own, strikes a sane person (i.e. one not maddened by the perpetual noise generated by the Inside-theBeltway-Village-Elders'-Drumbeat) as a guaranteed way to be unpopular, and quickly. And running away from where Candidate Obama stood on healthcare reform seems like a good way to lose that one as well.

Digby puts it best: there's just no point in policy half-measures, thinking that somehow Dick and the Gang (as in "Gangland") won't launch all-out retaliative jihad against Obama and Company, no matter what, first chance they get. Because it's as solid as Halliburton's balance sheet: it's gonna happen.

Well... this has been... "Change, you can be leavin'." I mean it, man.

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