Berkeley's Professor of Torture

I've never read any of the Anne Rice novels, or even much of Stephen King, but I can say I've read one horror classic cover to cover: Boalt Hall law professor John Yoo's 81 page memorandum on torture written while he was with the Office of Legal Counsel in March, 2003. I will not undertake any sort of in-depth analysis of this repugnant piece of rationalization; the legal heavyweights at Balkinization.com, linked to the right, deconstruct it brick by slimy brick. Everything about the memo is wrong. It is wrong in its most basic premises (the War Crimes Act and the Convention Against Torture do not apply to "stateless actors" such as al-Qaeda, for example). It's morally wrong. It's ethically wrong. It's disgusting. It's beneath contempt. It's a piece of shitty scholarship.

The Regents of the University of California keep this guy Yoo on the payroll. Well, I was in or near the Berkeley campus during the great controversies over Herbert Marcuse and Angela Davis. In their situations, the case of academic freedom was framed in terms of the right of faculty members to espouse frankly Marxist or radical theories or tactics. So the issue is now framed the other way: shouldn't the Academic Senate go to bat for a guy who looks for ways to introduce the ideas of the Spanish Inquisition into a modern American administration? Who argues for the creation of a presidential dictatorship in a "time of war?" Who argues that in a time of (perpetual) war, the Fourth Amendment does not stop U.S. soldiers from entering American households and tossing the place? I guess they should. John Yoo's a big name now. He belongs in that starting lineup with the Four Lawyers of the Apocalypse, alongside Gonzales, Jay Bybee and David Addington. Yoo was probably the star because it was he who wrote the brief, this 81-page instruction manual on how to beat a federal rap for "maiming" by pouring acid on the correct part of the prisoner's body. That's just barely a mischaracterization. That's what the memo is about. How can the CIA and the military get around all these inconvenient laws against war crimes and torture? Where should you do it? Just how far can you push it? If you cause severe pain, if the prisoner screams and cries and begs for mercy (like al-Qahtani at Guantanamo) but he doesn't die and no "organ fails;" and even if he goes insane, what if the defense can prove that the torturer lacked "specific intent" to bring about insanity? It's all there in Yoo's memo. How to torture and get away with it.

Jack Balkin calls the memo and its conclusions "outrageous." Many other legal scholars have much stronger words for this piece of dreck. A lot of Yoo's memo went by the boards when the Supreme Court took up the issue of Geneva Convention protections for war-on-terror detainees. As a result, Congress was asked to provide (and of course complied) a pair of exonerations in the Detainee Treatment Act and the Military Commissions Act for U.S. personnel who thought they were torturing prisoners the way the President and his lawyer told them they could. That must have been kind of embarrassing for Yoo. Most lawyers who commit malpractice pay money damages; they don't require an Act of Congress to clean it up.

Not that such a consideration bothers anyone at Berkeley. Yoo's a celebrity; now that his March, 2003 Memo has been declassified, all American citizens (and the world community) can see his work in detail. Maybe his star has risen; maybe the Academic Senate feels constrained because they sense any action against Yoo would be seen as the result of professional envy. Wow, they think; Yoo was in on the ground floor of Abu Ghraib and Guantanamo, and all that stuff that went on in the CIA's black sites. How cool to be that influential!

I remember a remark from George W. Bush when he was asked what he would do when he gained access to the Oval Office. "Give it a good cleaning," he said, in a prissy put-down of Bill Clinton's shenanigans. I think after Bush that won't be good enough. No amount of Comet or Lemon Pledge or carpet cleaner is going to fix what this guy has done to the office. They should declare it a toxic site under the Superfund law, tear it down and build a new one.

American Economy at the Crossroads

There was one arresting moment at the conclusion of Ben Bernanke's testimony today before a joint Congressional economic committee where he was asked to comment on Senator Charles Schumer's non-question about the state of the U.S. economy. Schumer likened the USA to a giant which had become "overweight," now importing more than it exports and spending more than it saves. In Schumer's view, it could not be predicted that the latest financial crisis in the country would arise from "mortgages," but that such an underlying, unhealthy situation would eventually produce big problems of some kind was inevitable. Bernanke simply said that he agreed with the points Schumer was making.

Schumer's question was a kind of "aha!" moment for me; it was clear that the garrulous, collegial senator from Brooklyn was another card-carrying member of the "Big Picture" club. When you think about it, what was the point of Schumer's "question?" Did he think Bernanke could shake out of his sleeve, or pull from the recesses of his heavy beard, some nostrum that would reverse economic trends which have been underway in the U.S. for decades? Yet everything before that question had concerned the short term. Bernanke gamely predicted that prosperity was just around the corner; we might have to weather a technical recession for this first part of the year, but after Bush's Bribes were issued starting next month, America would go on another mindless shopping spree for imported goods which would get the economy humming again.

There is an inherent contradiction between these two visions of the future. If the economy "recovers" along the lines Bernanke predicts, then it will simply worsen the situation which Schumer described.

Roger Cohen's column about Asia in Monday's New York Times described the "end of the white man" as the world economic leader. He was in Hong Kong when he wrote his column, apparently, and under the influence of the usual hysteria which sets in while you're traveling, he talked about the astonishing growth rates of the Chinese and Indian economies. The Asians now speak of "decoupling" their economies from the West and developing their own domestic markets to replace the fading American and European powerhouses. Cohen talked about all the high speed rail being built, the feverish construction of commercial buildings, and sadly lamented that America's day (and the day of the dominant Caucasian) had come and gone.

I suppose that one problem America has is in coming up with a new identity for itself. We can't compete with these giant Asian economies, of course, nor should we have the slightest desire to do so. They work for tiny wages in anthill societies using ruinous amounts of carbon-based fuels and depleting their water supplies at a completely unsustainable rate. The entire world is in a state of 40% overshoot of natural resources, and China and India will soon displace America as the greatest wastrel nations on Earth.

Long, long ago (like 30 years ago), homegrown environmentalists and deep ecologists like Barry Commoner and Wendell Berry and other writers described the need for a "zero-growth" economy. For a "steady state." For a sustainable economy based upon natural replenishment rates of renewable energy. Instead of moving coherently in this direction, of course, the U.S. went on a growth binge, moving recklessly toward the condition which Schumer briefly described in his closing remarks. The game actually petered out about a decade ago. I at last found some corroboration among Big Shot pundits a few days back for one of my pet theories, that there has been no increase in the Dow Jones for about ten years, in a column written by Kevin Phillips, author of American Theocracy (which despite its title is really about the American economy). Phillips went me one better, noting:

"In fact, phony Washington statistics and warped market measurements make it doubly hard to tell. The federal Consumer Price Index is already regarded by many Americans as a con job, and the press periodically quotes investors who state their belief that current U.S. inflation is really 6 to 9 percent a year, not the 2-4 percent the government alleges. I agree. On top of which, because the value of the dollar has dropped so far, the Dow Jones Industrial Average at the end of March was not really 12,200, a number barely up from its 11,700 peak in 2000. If you measure the Dow in Swiss francs or euros, two strong currencies, it has already lost some forty percent of its 2000 value. Too many Americans live in a dream-world of economic misinformation."

People who make money in the present American stock market, by and large, do it by playing Wall Street like a casino: shorting the market, hedge funds, betting against the dollar, buying gold, and so forth. Not by buying equities and waiting for sustained growth. Sadly, America's transition to a sustainable economy, if it ever happens, will not occur through orderly processes. That ain't the way humans do stuff. It will be a train wreck, and the economy will be put together again out of parts scavenged from the still smoking machinery. And even as the American economic locomotive approaches the point of lift-off, Congress folks like Chuck Schumer will still be posing those Big Questions for their own amusement and self-aggrandizement.

What is the authorization for remaining in Iraq?

I confess to a bias toward structured thinking, legalistic in character, which has taken shape over the years as the result of a native preference for logical analysis as reinforced by professional experience. I guess I'm saying I just like things to make sense. As one example, it seems absolutely clear to me that Article 1 of the United States Constitution confers upon Congress, and only Congress, the power to declare war. The Constitution was drafted by men who were far more wise and educated, both practically and classically, than any of the blow-dried, teeth-bleached, Botoxed specimens currently infesting the Capitol Building. The last time Congress declared a war was in December, 1941, and I suppose they did so then because there was no avoiding it. You can't just let the Japanese sink your navy and do nothing; had there been a way to skip the vote, I'm sure they would have. Nevertheless, despite any Congressional declaration of war, since 1945 it doesn't seem there have ever been two months together when the U.S. hasn't been involved in some international armed conflict. Congress, just to institutionalize its buck-passing, finally passed in 1970s the War Powers Act, which gives them a "supervisory" power over the President's war-making. If he's fighting a war, he has to sort of clear it with them, you know, if it looks like it might take awhile. This is only a mild exaggeration.

So instead of simply declaring war, which is just too scary, Congress "authorizes" war. It's okay with us, they're saying, if you think that's what you really need to do. They did so most recently and famously in October, 2002 with the "Authorization for Use of Military Force" against Iraq. This little exercise in casuistry contains something like 21 preamble "whereas" clauses, which is suspicious right there. Generally, if you have a valid and sufficient reason for doing something, a couple of sentences ought to do it. "Japan bombed Pearl Harbor. To defend ourselves, we declare war on Japan." You don't need a lot of shit like "Whereas, Japan looks like they really mean it;" and "whereas, Japan's a pretty scary country right now;" and "whereas, they really shouldn't be doing stuff like that." Everybody gets it. Japan bombed us. We're at war.

Of course, Iraq was nothing like that. George W. Bush wanted the war so badly, but really there was no compelling reason at all. Iraq had not bombed us, and they didn't really look scary. The weapons inspectors couldn't find anything. So on and on the Resolution went, clearing its throat, trying to work itself into a lather about Iraq. The U.N. Resolutions Saddam had ignored! Their possession of weapons of mass destruction! The oppression of their own people! Playing hide-and-seek with the inspectors! The threats they pose to the "stability" [sic] of the Persian Gulf! The presence of al-Qaeda in Iraq! My favorite was a reference to the 1998 "regime change" resolution of Congress, making it the "policy" of the U.S. to get rid of Saddam (also making it Bill Clinton's policy to get everyone to think about something other than Monica Lewinsky). In other words, Congress was referring to its own "decision" to get rid of Saddam as evidence that we needed to get rid of Saddam. It's a neat circularity of the kind Congress engages in routinely without thinking how, um, stupid it looks. "We must get rid of Saddam because as we stated in 1998, it's our policy to get rid of Saddam! Harruummmmppphhhh!"

But after all the endless whereas clauses, Congress zeroed in on why L'il George was given this permission slip:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

At this point, does "Iraq" pose any continuing threat to the United States? And are there any "relevant" UN resolutions which haven't been enforced? The answer to both questions is no. I would assume that "Iraq" must mean the duly elected government of Iraq. We can't mean just anyone who happens to be in Iraq -- that would put us at odds with any country where there are anti-U.S. sentiments, and in the Bush era especially, that means the whole world. The governing coalition of Iraq led by Maliki doesn't pose any continuing threat, does he? If he does, why do we fight alongside Nouri? When we said "Iraq" before, we meant Saddam; by a parity of reasoning, we must now mean "Maliki & Co." Are Maliki and his government violating any UN Resolutions? Which ones?

Bush has admitted that Iraq had nothing to do with 9-11 (it was probably his single biggest slip-up in terms of inadvertently telling the truth). So he's admitted that whatever we call "al-Qaeda" in Iraq is not the al-Qaeda who attacked us. Everyone who has studied the issue objectively (other than Dick Cheney, in other words) has concluded that Iraq had nothing to do with the planning or execution of 9-11.

So what the hell are we still doing there, from a legal, logical and Constitutional standpoint? What part of the Authorization said anything about a perpetual, open-ended commitment of the military to aid in nation building? Okay, Congress has wimped out under Article 1 and refuses to take charge of war declarations. But if it's going to use "authorizations," shouldn't Congress at least insist that the President is operating under such authority? Is that too much to ask?

Congress and the Brinks Job on Social Security

I confess that, as weird and wonky as it might seem, I have always been fascinated by the looming bankruptcy of Social Security and all of the moral and actuarial drama which surrounds it. There is something deliciously insightful about this tale -- the ideas of institutional irresponsibility, of blame aimed at a moving target, of the essential and ineradicable short-sightedness of human behavior. If you pay enough attention to it, you can learn everything you need to know about the political process.

Social Security began under FDR. It is, to its core, a socialist program. The idea, spawned during the Great Depression, was that Social Security would provide an old-age benefit to ensure the dignified retirement of America's citizens - not really a luxurious stipend, of course, but a means to avoid living under a bridge and eating food from discarded cat food tins. That it has survived all these years owes to the genius of its money-in, money-out format. Current workers pay in, retired workers are paid out. While we have a Social Security number, this "account" is solely for computing our eventual benefit; the SS Administration does not actually maintain bank accounts for individual citizens.

Conservatives have always hated Social Security, of course, because of its aura of European Socialist decadence. The government should not help people. The government should run the prison system and wage war. Nevertheless, the plutocrats tolerated Social Security because (a) they had to, because of its popularity, and (b) because its funding was a stand-alone system powered by the FICA tax. This tax, a regressive, off-the-top levy which hits the lower classes much harder than the rich, allowed the government simply to act as a paymaster. Money in, money out, and all of the precious revenues not attributable to FICA could be spent for the wet-dream fantasies of the military-industrial complex.

Actually, it was better than that. The Baby Boom generation, which accounts for so much in the history of the United States over the last 60 years, foresaw a problem with their own retirement beginning...around...now. This foresight motivated Congress in the early 1980's to "fix" Social Security by increasing the FICA tax to create a surplus for the years between 1983 and 2008 so that the system would remain solvent. The Baby Boom Bolus, pushed by pythonesque peristalsis down the alimentary canal of snake-time (don't try this language at home), would one day reach the asshole of retirement. Plans must be laid or that turd would stink to high heaven.

It was curious, in a way, that the increase would occur during the first Reagan term, when the federal government was developing its hate-itself self-image and doing everything it could to reduce taxes. What made it palatable was that the surplus (which was supposed to be saved) could be swiped by Congress and invested in the military-industrial complex. More money for lobbyists! We like this FICA increase! The stolen money was replaced by an IOU, a special intra-governmental Treasury note with an interest rate and everything.

As an analogy, suppose you were funding your own retirement by putting money in a bank. Each year you put away $1,000. However, you like shiny cars and flat-screen TVs so you "borrow" the money each year, spend it and replace it with a promissory note to yourself plus 5% interest. At the end of forty years, you have $40,000 in notes, plus all that accrued and compounded interest, and you take your notes down to the bank so you can retire. The bank says that's fine, but the payor of the notes will have to pay up before the withdrawal can be honored. The payor of the notes is you. In order to honor your promise to yourself, you get a job. After a few months at your new job, you realize something was wrong with your retirement plan.

This is, without any serious difference, the current situation with Congress. Congress currently has about $80 billion in yearly surplus it can steal from Social Security, an amount which will decline precipitously between now and 2017, when the fund will "go negative." At that point, Congress will look exactly like the shlub with his clutch of promissory notes. We call that pile of worthless stationery the "Social Security Trust Fund." As David Walker of the GAO says, it is "without accounting significance."

Conservatives (such as W) attempted to "reform" Social Security a few years ago by "privatizing" the system. They needed to do so to avoid a fate worse than death; if Social Security isn't abolished, the "general fund" is going to have to "pay back" the money it stole. To do that, those precious non-FICA revenue sources will have to be tapped and misdirected from God's intended beneficiaries, the fat cats of the Military-Industrial Complex. America will become simply another Socialist Republic.

Whom does one blame for this fiasco? A sleepwalking American electorate? All those Congresspeople who have come and gone in the last generation? At what object does one focus his impotent rage? That's what makes the situation so subtle and insidious. So ripe for self-laceration. Lying deep within the mystery of the Social Security crisis are the very clues to the untenability of mass, impersonal democracy. The human frailities of cupidity and irresponsibility play out in a system of such complexity and unaccountability that while the whole system crashes, we cannot find a single person on whom to vent our wrath.

The Iraq Folly, Reexamined

In the latest decisive moment in the never-ending saga, "Iraq: Birth of a Democracy," the United States is providing guns, blood and money to assist the ruling coalition of Iraq, the Supreme Islamic Council of Iraq (renamed from the previous, market-unfriendly "Supreme Council for the Islamic Revolution in Iraq (SCIRI)" because it sounded, you know, too much like the Islamic Revolution in Iran circa 1979). The Supreme Council is in league with the Dawa ("The Call") Party of Prime Minister Nouri al-Maliki, former anti-Saddam resistance organizer who spent much of Saddam's last decades in power in Tehran and Damascus, two countries which we consider so evil that we punish them by denying them conversations with George W. Bush. Second prize on the punishment list is a world cruise aboard Princess Lines.

President Bush, naturally, prefers to call the coalition government simply that, "the government," so as to avoid the uncomfortable vibe that accompanies calling any ally the "Supreme Council for the Islamic" anything. The U.S. is flying close air support and will probably introduce ground troops, if necessary, so that the Iraqi military and the Badr Brigade, the militia of the good guys, overcomes the Basra rebellion led by Muqtada al-Sadr and his Mahdi Army, who are the designated bad guys. Sadr attracts a lot of support from disaffected Shiite Iraqis because of his anti-U.S. positions, referring to us invariably as the "occupying army." He also has a lot of ties to Iran and has sought and been granted asylum there during periods where Maliki or the U.S. has decided it's too risky to have him on the loose. On the other hand, it's probably also too risky to arrest and prosecute him because of his widespread popularity among Iraq's poor, which is fairly congruent with the group called "Iraqis."

Of course, the Supreme Islamic Council of Iraq, as a predominantly Shiite organization, also has a close relationship to Iran, so that it's accurate to say that what George W. Bush calls the "Iraqi government" has close ties to Iran. Iran, of course, calls itself an "Islamic republic." The Iraq Constitution provides that our newly-hatched democracy is the same thing:

Article 2:
First: Islam is the official religion of the State and it is a fundamental source of legislation: A. No law that contradicts the established provisions of Islam may be established...

Thus, one of the first provisions of the Iraq Constitution provides that there is not only no separation of church and state, but any attempt to pass a law inconsistent with Sharia is forbidden. Since our own Constitution proscribes in the First Amendment of the Bill of Rights the establishment of a state religion (a clause which so vexed Mike Huckabee), you could say that what we've succeeded in establishing in Iraq is a pro-Iran, theocratic Bizarro-America in the "heart of the Middle East," which is not only not a bulwark against Iran (as Saddam was), but is more logically seen as an extension of Iran's influence in the Persian Gulf.

This is actually pretty obvious, of course, and even George W. Bush, who comprehended before the war only that Muslims lived in Iraq without grasping the sectarian divide, is obviously aware of the embarrassing implications of putting the American military at the disposal of an outfit called the Supreme Islamic Council of Iraq. Thus, government = "good guys," Sadr = "evildoers," and let's break for lunch, shall we?

It's amazing that the Democrats in Congress don't make more of this absurdity. Another result of the general contempt of the nation's solons for the collective intelligence of the American people, I suppose. But as I wrote a long time ago, Iraq war analysis has degenerated into an empty debate about whether violence is "up or down," without considering what's left after all the violence is gone, if it ever is. Let's say it's down, for the sake of argument, although it's currently up. What has the war accomplished that is actually in American interests, or that could possibly be worth 4,000 lives, $3 trillion, mountains of foreign debt, and a squandering of resources needed at home? Even if we're cynical and lay it all off on the quest for oil -- if we're serious about dealing with global warming, and the need to reduce greenhouse emissions effectively to zero by the year 2050, the best place for Iraq's oil is in the ground.

Bush's best case is that we've midwifed the birth of a second Shiite theocracy in the Persian Gulf, the constitution of which is directly antithetical to our own secular principles. Assuming arguendo, as one says in law, that it will get quieter in Iraq -- quieter for what?