Monday, April 27, 2009

The reason for torture?

Excellent, if disturbing, article by Frank Rich of the New York Times ( I know I've posted a lot about the torture story, but I have because I think it's such a big deal. What happened under an American flag and American authority is the absolute antithesis of everything this country is supposed to stand for, and the more I think about it, the more convinced I become that every last dirty little detail has to come out.

And that's what makes Rich's article so disturbing. It's the first time I've seen in a mainstream publication the premise that the torture of Gitmo detainees was done in an attempt to get a justification for the invasion of Iraq.

Think about it. There's plenty of evidence out there that members of the Bush White House had decided to invade Iraq early on in the administration, perhaps even before the 2000 election. There's evidence that all of the valuable information from these detainees came BEFORE the torture started. So, what would the point of the torture be?

It's a hypothesis that fits the facts. There's not nearly enough evidence to make the allegation stick, at least at this point. But I certainly think there's enough evidence to make sure we get ALL the facts about this dark period of our nation's history.

And if it turns out to be true, that the torture of the Gitmo detainees was done to generate false evidence to justify the Iraq invasion ...


We don't like our evil to be banal. Ten years after Columbine, it only now may be sinking in that the psychopathic killers were not jock-hating dorks from a "Trench Coat Mafia," or, as ABC News maintained at the time, "part of a dark, underground national phenomenon known as the Gothic movement." In the new best seller "Columbine," the journalist Dave Cullen reaffirms that Dylan Klebold and Eric Harris were instead ordinary American teenagers who worked at the local pizza joint, loved their parents and were popular among their classmates.

On Tuesday, it will be five years since Americans first confronted the photographs from Abu Ghraib on "60 Minutes II." Here, too, we want to cling to myths that quarantine the evil. If our country committed torture, surely it did so to prevent Armageddon, in a patriotic ticking-time-bomb scenario out of "24." If anyone deserves blame, it was only those identified by President Bush as "a few American troops who dishonored our country and disregarded our values": promiscuous, sinister-looking lowlifes like Lynddie England, Charles Graner and the other grunts who were held accountable while the top command got a pass.

We've learned much, much more about America and torture in the past five years. But as Mark Danner recently wrote in The New York Review of Books, for all the revelations, one essential fact remains unchanged: "By no later than the summer of 2004, the American people had before them the basic narrative of how the elected and appointed officials of their government decided to torture prisoners and how they went about it." When the Obama administration said it declassified four new torture memos 10 days ago in part because their contents were already largely public, it was right.

Yet we still shrink from the hardest truths and the bigger picture: that torture was a premeditated policy approved at our government's highest levels; that it was carried out in scenarios that had no resemblance to "24"; that psychologists and physicians were enlisted as collaborators in inflicting pain; and that, in the assessment of reliable sources like the F.B.I. director Robert Mueller, it did not help disrupt any terrorist attacks.

The newly released Justice Department memos, like those before them, were not written by barely schooled misfits like England and Graner. John Yoo, Steven Bradbury and Jay Bybee graduated from the likes of Harvard, Yale, Stanford, Michigan and Brigham Young. They have passed through white-shoe law firms like Covington & Burling, and Sidley Austin.

Judge Bybee's rsum tells us that he has four children and is both a Cubmaster for the Boy Scouts and a youth baseball and basketball coach. He currently occupies a tenured seat on the United States Court of Appeals. As an assistant attorney general, he was the author of the Aug. 1, 2002, memo endorsing in lengthy, prurient detail interrogation "techniques" like "facial slap (insult slap)" and "insects placed in a confinement box."

He proposed using 10 such techniques "in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique." Waterboarding, the near-drowning favored by Pol Pot and the Spanish Inquisition, was prosecuted by the United States in war-crimes trials after World War II. But Bybee concluded that it "does not, in our view, inflict 'severe pain or suffering.' "

Still, it's not Bybee's perverted lawyering and pornographic amorality that make his memo worthy of special attention. It merits a closer look because it actually does add something new -- and, even after all we've heard, something shocking -- to the five-year-old torture narrative. When placed in full context, it's the kind of smoking gun that might free us from the myths and denial that prevent us from reckoning with this ugly chapter in our history.

Bybee's memo was aimed at one particular detainee, Abu Zubaydah, who had been captured some four months earlier, in late March 2002. Zubaydah is portrayed in the memo (as he was publicly by Bush after his capture) as one of the top men in Al Qaeda. But by August this had been proven false. As Ron Suskind reported in his book "The One Percent Doctrine," Zubaydah was identified soon after his capture as a logistics guy, who, in the words of the F.B.I.'s top-ranking Qaeda analyst at the time, Dan Coleman, served as the terrorist group's flight booker and "greeter," like "Joe Louis in the lobby of Caesar's Palace." Zubaydah "knew very little about real operations, or strategy." He showed clinical symptoms of schizophrenia.

By the time Bybee wrote his memo, Zubaydah had been questioned by the F.B.I. and C.I.A. for months and had given what limited information he had. His most valuable contribution was to finger Khalid Shaikh Mohammed as the 9/11 mastermind. But, as Jane Mayer wrote in her book "The Dark Side," even that contribution may have been old news: according to the 9/11 commission, the C.I.A. had already learned about Mohammed during the summer of 2001. In any event, as one of Zubaydah's own F.B.I. questioners, Ali Soufan, wrote in a Times Op-Ed article last Thursday, traditional interrogation methods had worked. Yet Bybee's memo purported that an "increased pressure phase" was required to force Zubaydah to talk.

As soon as Bybee gave the green light, torture followed: Zubaydah was waterboarded at least 83 times in August 2002, according to another of the newly released memos. Unsurprisingly, it appears that no significant intelligence was gained by torturing this mentally ill Qaeda functionary. So why the overkill? Bybee's memo invoked a ticking time bomb: "There is currently a level of 'chatter' equal to that which preceded the September 11 attacks."

We don't know if there was such unusual "chatter" then, but it's unlikely Zubaydah could have added information if there were. Perhaps some new facts may yet emerge if Dick Cheney succeeds in his unexpected and welcome crusade to declassify documents that he says will exonerate administration interrogation policies. Meanwhile, we do have evidence for an alternative explanation of what motivated Bybee to write his memo that August, thanks to the comprehensive Senate Armed Services Committee report on detainees released last week.

The report found that Maj. Paul Burney, a United States Army psychiatrist assigned to interrogations in Guantnamo Bay that summer of 2002, told Army investigators of another White House imperative: "A large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful." As higher-ups got more "frustrated" at the inability to prove this connection, the major said, "there was more and more pressure to resort to measures" that might produce that intelligence.

In other words, the ticking time bomb was not another potential Qaeda attack on America but the Bush administration's ticking timetable for selling a war in Iraq; it wanted to pressure Congress to pass a war resolution before the 2002 midterm elections. Bybee's memo was written the week after the then-secret (and subsequently leaked) "Downing Street memo," in which the head of British intelligence informed Tony Blair that the Bush White House was so determined to go to war in Iraq that "the intelligence and facts were being fixed around the policy." A month after Bybee's memo, on Sept. 8, 2002, Cheney would make his infamous appearance on "Meet the Press," hyping both Saddam's W.M.D.s and the "number of contacts over the years" between Al Qaeda and Iraq. If only 9/11 could somehow be pinned on Iraq, the case for war would be a slamdunk.

But there were no links between 9/11 and Iraq, and the White House knew it. Torture may have been the last hope for coercing such bogus "intelligence" from detainees who would be tempted to say anything to stop the waterboarding.

Last week Bush-Cheney defenders, true to form, dismissed the Senate Armed Services Committee report as "partisan." But as the committee chairman, Carl Levin, told me, the report received unanimous support from its members -- John McCain, Lindsey Graham and Joe Lieberman included.

Levin also emphasized the report's accounts of military lawyers who dissented from White House doctrine -- only to be disregarded. The Bush administration was "driven," Levin said. By what? "They'd say it was to get more information. But they were desperate to find a link between Al Qaeda and Iraq."

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to "protect" us but also to promote an unnecessary and catastrophic war. Instead of saving us from "another 9/11," torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House's illegality.

Levin suggests -- and I agree -- that as additional fact-finding plays out, it's time for the Justice Department to enlist a panel of two or three apolitical outsiders, perhaps retired federal judges, "to review the mass of material" we already have. The fundamental truth is there, as it long has been. The panel can recommend a legal path that will insure accountability for this wholesale betrayal of American values.

President Obama can talk all he wants about not looking back, but this grotesque past is bigger than even he is. It won't vanish into a memory hole any more than Andersonville, World War II internment camps or My Lai. The White House, Congress and politicians of both parties should get out of the way. We don't need another commission. We don't need any Capitol Hill witch hunts. What we must have are fair trials that at long last uphold and reclaim our nation's commitment to the rule of law.

© 2008 The New York Times

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Wednesday, April 22, 2009

The origins of torture

Shocking, but not surprising, article by Scott Shane and Mark Mazzetti of the New York Times ( detailing how the "enhanced interrogation program" came in to being during the first term of the Bush administration. It's jaw-droppingly alarming to think that a program so violative of both American law and American ideals - let's drop the pretense and just call it evil - could come into being with so little consideration. The article refers to a "perfect storm of ignorance," which might as well have been the subtitle to the Bush presidency.

Let's be clear. There's a big kerfuffel now about how torture produced valuable information, and Dick Cheney and Co. have been playing the "see, I told you so," card ever since. First of all, most of the evidence points to the contrary in terms of the effectiveness of torture - and I doubt there's anyone willing to go on the record to say torture was the ONLY way to get information out of the detainees. Second, torture is clearly a violation of American law. It's a felony, and one that the American government has prosecuted people for in the past. Finally, as the point was made with the release of the knowledge that the torture produced valuable information was made, whatever value that information may have provided was not worth the damage done to the moral standing, values, and soul of the nation.

I've been pretty accepting of Obama's clear reluctance to go after those who authorized the torture in the past, simply because the firestorm it would generate would render this country functionally incapable of accomplishing anything else. But the more I learn, and the more I think about what has been done in my name, the more persuaded I am that some form of criminal investigation is necessary.

NYT: Origins of 'torture' tactics overlooked
Officials failed to probe the history, efficacy of brutal interrogation methods
By Scott Shane and Mark Mazzetti
The New York Times
updated 10:27 a.m. CT, Wed., April 22, 2009

WASHINGTON - The program began with Central Intelligence Agency leaders in the grip of an alluring idea: They could get tough in terrorist interrogations without risking legal trouble by adopting a set of methods used on Americans during military training. How could that be torture?

In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned.

This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved — not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush , not the leaders of the Senate and House Intelligence Committees — investigated the gruesome origins of the techniques they were approving with little debate.

According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans.

Even George J. Tenet , the C.I.A. director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding .

'Perfect storm of ignorance'
The top officials he briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia.

They did not know that some veteran trainers from the SERE program itself had warned in internal memorandums that, morality aside, the methods were ineffective. Nor were most of the officials aware that the former military psychologist who played a central role in persuading C.I.A. officials to use the harsh methods had never conducted a real interrogation, or that the Justice Department lawyer most responsible for declaring the methods legal had idiosyncratic ideas that even the Bush Justice Department would later renounce.

The process was "a perfect storm of ignorance and enthusiasm," a former C.I.A. official said.

Today, asked how it happened, Bush administration officials are finger-pointing. Some blame the C.I.A., while some former agency officials blame the Justice Department or the White House.

Philip D. Zelikow , who worked on interrogation issues as counselor to Secretary of State Condoleezza Rice in 2005 and 2006, said the flawed decision-making badly served Mr. Bush and the country.

"Competent staff work could have quickly canvassed relevant history, insights from the best law enforcement and military interrogators, and lessons from the painful British and Israeli experience," Mr. Zelikow said. "Especially in a time of great stress, walking into this minefield, the president was entitled to get the most thoughtful and searching analysis our government could muster."

After years of recriminations about torture and American values, Bush administration officials say it is easy to second-guess the decisions of 2002, when they feared that a new attack from Al Qaeda could come any moment.

If they shunned interrogation methods some thought might work, and an undetected bomb or bioweapon cost thousands of lives, where would the moral compass point today? It is a question that still haunts some officials. Others say that if they had known the full history of the interrogation methods or been able to anticipate how the issue would explode, they would have advised against using them.

Torture accusations
This account is based on interviews with more than two dozen current and former senior officials of the C.I.A., White House, Justice Department and Congress. Nearly all, citing the possibility of future investigations, shared their recollections of the internal discussions of a classified program only on condition of anonymity.

Leaked to the news media months after they were first used, the C.I.A.’s interrogation methods would darken the country’s reputation, blur the moral distinction between terrorists and the Americans who hunted them, bring broad condemnation from Western allies and become a ready-made defense for governments accused of torture. The response has only intensified since Justice Department legal memos released last week showed that two prisoners were waterboarded 266 times and that C.I.A. interrogators were ordered to waterboard one of the captives despite their belief that he had no more information to divulge.

But according to many Bush administration officials, including former Vice President Dick Cheney and some intelligence officers who are critics of the coercive methods, the C.I.A. program would also produce an invaluable trove of information on Al Qaeda, including leads on the whereabouts of important operatives and on terror schemes discussed by Al Qaeda. Whether the same information could have been acquired using the traditional, noncoercive methods that the Federal Bureau of Investigation and the military have long used is impossible to say, and former Bush administration officials say they did not have the luxury of time to develop a more patient approach, given that they had intelligence warnings of further attacks.

Michael V. Hayden , who served as C.I.A. director for the last two years of the Bush administration, devoted part of his last press briefing in January to defending the C.I.A. program. "It worked," Mr. Hayden insisted.

"I have said to all who will listen that the agency did none of this out of enthusiasm," he said. "It did it out of duty. It did it with the best legal advice it had."

When Mr. Bush assigned the C.I.A. with the task of questioning high-level Qaeda captives in late 2001, the agency had almost no experience interrogating the kind of hostile prisoners it soon expected to hold.

It had dozens of psychiatrists, psychologists, polygraphists and operations officers who had practiced the arts of eliciting information and assessing truthfulness. Their targets, however, were not usually terrorists, but foreigners offering to spy for the United States or C.I.A. employees suspected of misdeeds.

Agency officials, led by Mr. Tenet, sought interrogation advice from other countries. And, fatefully, they contacted the military unit that runs the SERE training program, the Joint Personnel Recovery Agency, which gives American pilots, special operations troops and others a sample of the brutal interrogation methods they might face as prisoners of war. Mr. Tenet declined to be interviewed.

By late 2001, the agency had contracted with James E. Mitchell, a psychologist with the SERE program who had monitored many mock interrogations but had never conducted any real ones, according to colleagues. He was known for his belief that a psychological concept called "learned helplessness" was crucial to successful interrogation.

Martin Seligman, a prominent professor of psychology at the University of Pennsylvania who had developed the concept, said in an interview that he was puzzled by Dr. Mitchell’s notion that learned helplessness was relevant to interrogation.

"I think helplessness would make someone more dependent, less defiant and more compliant," Dr. Seligman said, "but I do not think it would lead reliably to more truth-telling."

Still, forceful and brainy, Dr. Mitchell, who declined to comment for this article, became a persuasive player in high-level agency discussions about the best way to interrogate Qaeda prisoners. Eventually, along with another former SERE psychologist, Bruce Jessen, Dr. Mitchell helped persuade C.I.A. officials that Qaeda members were fundamentally different from the myriad personalities the agency routinely dealt with.

"Jim believed that people of this ilk would confess for only one reason: sheer terror," said one C.I.A. official who had discussed the matter with Dr. Mitchell.

Overwhelmed with reports of potential threats and anguished that the agency had failed to stop the Sept. 11 attacks, Mr. Tenet and his top aides did not probe deeply into the prescription Dr. Mitchell so confidently presented: using the SERE tactics on Qaeda prisoners.

Sinister 'brainwashing'
A little research on the origin of those methods would have given reason for doubt. Government studies in the 1950s found that Chinese Communist interrogators had produced false confessions from captured American pilots not with some kind of sinister "brainwashing" but with crude tactics: shackling the Americans to force them to stand for hours, keeping them in cold cells, disrupting their sleep and limiting access to food and hygiene.

"The Communists do not look upon these assaults as ‘torture,’ " one 1956 study concluded. "But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture."

Worse, the study found that under such abusive treatment, a prisoner became "malleable and suggestible, and in some instances he may confabulate."

In late 2001, about a half-dozen SERE trainers, according to a report released Tuesday night by the Senate Armed Services Committee, began raising stark warning about plans by both the military and the C.I.A. to use the SERE methods in interrogations.

In December 2001, Lt. Col. Daniel J. Baumgartner of the Air Force, who oversaw SERE training, cautioned in one memo that physical pressure was "less reliable" than other interrogation methods, could backfire by increasing a prisoner’s resistance and would have an "intolerable public and political backlash when discovered." But his memo went to the Defense Department, not the C.I.A.

One former senior intelligence official who played an important role in approving the interrogation methods said he had no idea of the origins and history of the SERE program when the C.I.A. started it in 2002.

"The agency was counting on the Justice Department to fully explore all the factors contributing to a judgment about legality, including the surrounding history and context," the official said.

But it was the C.I.A. that was proposing the methods, and John Yoo , the Justice Department official who was the principal author of a secret August 2002 memorandum that authorized the interrogation program, was mostly interested in making a case that the president’s wartime powers allowed for the harsh tactics.

A persuasive case
After the March 28, 2002, capture in Pakistan of the Qaeda operative Abu Zubaydah — the C.I.A.’s first big catch after Sept. 11 — Mr. Tenet told Ms. Rice, then the national security adviser, he wanted to discuss interrogation, several former officials said. At a series of small-group and individual briefings attended by Mr. Bush, Mr. Cheney, Ms. Rice and Attorney General John Ashcroft , Mr. Tenet and his deputy, John McLaughlin, laid out their case.

They made a persuasive duo, former officials who heard their pitch recalled. Mr. Tenet, an extroverted former Congressional staff member, was given to forceful language about the threat from Al Qaeda, which he said might well have had operations under way involving biological, radiological or even nuclear weapons. Mr. McLaughlin, a career intelligence analyst, was low-key and cerebral, and some White House officials said they found his support for the methods reassuring.

In the briefings, Mr. Tenet said that after extensive research, the agency believed that only the methods he described — which he said had been used on thousands of American trainees — could extract the details of plots from hardened Qaeda fanatics.

"It was described as a program that was safe and necessary, that would be closely monitored by medical personnel," a former senior official recalled. "And it was very much in the context of the threat streams that were just eye-popping at the time."

Mr. Tenet’s descriptions of each proposed interrogation method was so clinical and specific that at one briefing Mr. Ashcroft objected, saying that cabinet officials should approve broad outlines of important policies, not the fine details, according to someone present. The attorney general later complained that he thought Mr. Tenet was looking for cover in case controversy erupted, the person said.

Ms. Rice insisted that Mr. Ashcroft not just pass along the conclusions of his Office of Legal Counsel, where Mr. Yoo worked, but give his personal assurance that the methods were legal under domestic and international law. He did.

The C.I.A. then gave individual briefings to the secretary of defense, Donald H. Rumsfeld , and the secretary of state, Colin L. Powell . Neither objected, several former officials said.

Mr. Cheney, whose top legal adviser, David S. Addington , was closely consulting with Mr. Yoo about legal justification, strongly endorsed the program. Mr. Bush also gave his approval, though what details were shared with him is not known.

With that, the C.I.A. had the full support of the White House to begin its harshest interrogations. Mr. Bush and Mr. Cheney have never publicly second-guessed their decision. Though some former officials expressed regret that such a momentous decision was made so quickly without vital information or robust debate, none were willing to be quoted by name.

One more check
There was one more check on intelligence programs, one designed in the 1970s to make sure independent observers kept an eye on spy agencies: Congress. The Senate and House Intelligence Committees had been created in the mid-1970s to prevent any repeat of the C.I.A. abuses unearthed by the Senate’s Church Committee.

As was common with the most secret programs, the C.I.A. chose not to brief the entire committees about the interrogation methods but only the so-called Gang of Four — the top Republican and Democrat on the Senate and House committees. The rest of the committee members would be fully briefed only in 2006.

The 2002 Gang of Four briefings left a hodgepodge of contradictory recollections that, to some Congressional staff members, reveal a dysfunctional oversight system. Without full staff support, few lawmakers are equipped to make difficult legal and policy judgments about secret programs, critics say.

Representative Nancy Pelosi of California, who in 2002 was the ranking Democrat on the House committee, has said in public statements that she recalls being briefed on the methods, including waterboarding. She insists, however, that the lawmakers were told only that the C.I.A. believed the methods were legal — not that they were going to be used.

By contrast, the ranking Republican on the House committee at the time, Porter J. Goss of Florida, who later served as C.I.A. director, recalls a clear message that the methods would be used.

"We were briefed, and we certainly understood what C.I.A. was doing," Mr. Goss said in an interview. "Not only was there no objection, there was actually concern about whether the agency was doing enough."

Senator Bob Graham, Democrat of Florida, who was committee chairman in 2002, said in an interview that he did not recall ever being briefed on the methods, though government officials with access to records say all four committee leaders received multiple briefings.

Senator Richard C. Shelby of Alabama, the senior Republican on the committee, declined to discuss the briefings.

Lawyer not briefed
Vicki Divoll, general counsel of the Senate Intelligence Committee in 2002 and a former C.I.A. lawyer, would have been a logical choice to advise senators on the legal status of the interrogation methods. But because of the restricted briefings, Ms. Divoll learned about them only years later from news media accounts.

Ms. Divoll, who now teaches government at the United States Naval Academy , said the interrogation issue revealed the perils of such restricted briefings.

"The very programs that are among the most risky and controversial, and that therefore should get the greatest congressional oversight," she said, "in fact get the least."

This article, "In Adopting Harsh Tactics, No Inquiry Into Their Past Use," first appeared in The New York Times.

Copyright © 2009 The New York Times

Monday, April 20, 2009

NU Re-View: Red 31, White 17

- TIGHT END DEPTH: Looks pretty clear that the '09 version of the 'Huskers will be a physical, run-first team with tight ends sopping up a lot of the catches. That works well, given that NU's tight end depth looks about as good as its' ever been. Between Ben Cotton, Mike McNeil and Dreu Young, Nebraska has three guys that can start right away and be an offensive threat. Now, if they can block, NU will be in good shape.
- POSSIBLE PLAYMAKERS: One thing than made Nebraska's offense work harder than they would have otherwise was a lack of a home run threat. NU was content to plod their way down the field and eat up clock, but that was primarily because they didn't have a lot of options. With a speed guy like Marcus Mendoza moving to wide receiver (and forget LaTravis Washington, Mendoza's move might be the biggest position shift Pelini made) and Antonio Bell coming into his own, NU might have to make opposing safeties play a little more honestly next year.
- THE BIG BRIGHT ORB: Yeah, it's cheesy, but I swear it's true. The forecast was for rain the whole game, to the point where I wore rain clothes (the only way I would wear red pants in public) and had my camera all rain-geared-out. The moment, however, NU took the field to start the game, the sun came out and it was a beautiful spring day. Just coincidence, or is the Bobfather smiling down on the '09 crew?

- DISCOMBOBULATION: Sure, it's a practice, but it's always disturbing to see penalties. Particularly odd were some of the pass interference calls. Menelik Holt (more on him later) got all but mugged in the end zone, and got an offensive pass interference call. Strange all the way around.
- THE INCREDIBLE INVISIBLE EIGHTEEN: That's probably a little harsh, but we've been waiting for Holt to be the next coming of Maurice Purify. It didn't happen last year, and Holt looks like he's been passed by a whole bunch of receivers on the depth chart. And that's WITHOUT Niles Paul on the field!
- LESS THAN SPECIAL TEAMS: Kickoff returns and kick coverage were huge weaknesses for the 'Huskers last year, and it doesn't look like things have improved much. There was a significant stretch where it seemed like every return had yellow laundry on the field. Given the huge struggles Nebraska had last year, it's hard to imagine how this hasn't improved.
- GREEN THE SUBMARINE: Cody Green did not have a good spring game, that's to be sure. He's coming off injury, and he's a freshman, so there's lots of room to give him. But he's got one of the oddest sidearm deliveries I've seen in a long time. I honestly can't figure out how he can throw the ball straight, and it resulted in one tipped pass, even as tall as Green is. I am hopeful that Green is the future of Nebraska football, but based on what I saw on Saturday, former linebacker LaTravis Washington should be the #2 quarterback and Green should redshirt the '09 season.

Go ahead, start your countdown clocks for September 05 against Florida Atlantic. Even as much as I love baseball, the spring game is always a devastating tease of Nebraska football, enough to whet your appetite and be sad to realize how far away the real stuff is. Still, with the gorgeous weather, the band, the stadium, and 77,000 other Nebraska fans in place, you got enough of a taste to hold you through the summer.

Spring games are just about impossible to take anything away from, as you have no real idea of what you're looking at. I think most Nebraska fans learned that lesson after the first Callahan-era spring game. To borrow a theme from my friend Sean Brennan, who previewed the spring game for the Omaha CityWeekly, there's a lot we know and a lot we don't know. In general, though, I think we can say that defensively NU will have lots more athletes in the secondary, a dominant set of defensive tackles, and questions to answer at defensive end and linebacker. Offensively, Zac Lee will without question be the man to lead NU, and will be leading a power running team with the ability to throw out of the option. Expectations still need to be tempered, especially with the schedule Nebraska has drawn this year and the return of Sam Bradford and Colt McCoy to Oklahoma and Texas, respectively. Still, there's plenty of reason for optimism, as the Bobfather's sunshine settles on the plain white helmets of the players as they finish spring football.

GBR, baby.

LTG 04-15-09: On contempt

Published in the Omaha CityWeekly for the week of April 15, 2009


If there’s one thing I’ve learned in all the time I’ve practiced law, it’s that you don’t want to make a judge mad at you.

Douglas County Juvenile Court Judge Christopher Kelly held the Nebraska Department of Health and Human Services (HHS) in contempt for failing to provide court-ordered services for a mentally-ill youth. Judge Kelly threatened to fine HHS up to $10,000 if it did not find an appropriate treatment facility for the child.
Now that will get your attention, believe me.

The contempt power Kelly used is part of the inherent authority a judge has to make sure the judge’s orders are obeyed. Contempt can be confusing, of course, because there are three different types of contempt that a person can face.

The first, and most common, type of contempt is called a civil contempt, and is used to “encourage” a person to do what a judge has ordered them to do. To find someone in civil contempt a judge must find that a person knowingly and willfully failed to abide by a judge’s order. If the judge makes that finding, the person is held in contempt.

The next step is called a “purge plan,” where the person found in contempt (technically called a “contemnor,” although I’m still not entirely sure how to pronounce that) is given an opportunity to come into compliance with the order. If the person doesn’t, the judge can add some additional “encouragement” by fining the person or ultimately putting them in jail.

I think the guy trying to teach me how to swing a golf club would like to be able to use that kind of encouragement.

The legal cliché about civil contempt is that the person in contempt is supposed to “have the keys to his own jail cell,” meaning that the sanctions are meant not to punish, but to ensure compliance with the order. The basic premise is true, although it’s not quite as easy as it sounds. For example, if someone goes to jail on contempt for behind on child support, that person may have the keys to his own cell, but he’ll have to fork over some cash before he gets to put the key in the lock.

The second, far less common, type of contempt is called criminal contempt. The purpose of criminal contempt is to punish past behavior regardless of current compliance – the exact opposite of civil contempt. Criminal contempt is an actual charge, filed by a prosecutor and worked through the courts just like any other criminal case.

The third and final type of contempt is called direct contempt. This is the authority of a judge to control what happens in his or her courtroom. If something happens in the courtroom, in the direct presence of a judge, that holds the court itself in contempt, the judge can find that person in direct contempt immediately. Generally, direct contempt is used if a person either directly defies a judge, or attacks a judge verbally or physically.

The sanctions for a direct contempt are the same as for a civil contempt, meaning that a person could be fined or go to jail. But direct contempt is immediate, with no hearing or appeal. It’s the ultimate go to jail, go directly to jail, do not pass Go, do not collect $200.

Direct contempt is also fairly unusual, as most people are insufficiently dim to misbehave directly in front of a judge to such a degree that the judge drops the hammer in open court. But it does happen – and more importantly, the judge has the authority at any time to do so if necessary.

Going back to the HHS case where Kelly made the contempt finding, it appears that the application of contempt was successful. HHS was able to find a placement for the youth that met his needs, and the judge didn’t have to enter the fines that he promised. But he’s keeping his options open, not declaring that HHS has purged itself of contempt until a hearing right around the youth’s nineteenth birthday in a few months.

I’ve had the good fortune to work with Judge Kelly on an Indian Child Welfare Act conference a few months ago. He’s a smart, tough, and fair-minded judge who is relentless in looking out for the welfare of the kids that come in front of him. More importantly, he’s a huge Creighton basketball fan who understands the importance of not allowing P’Allen Stinnett to bring the ball up court with under a minute to go in a tight ballgame.

But I can tell you one thing. I wouldn’t want Judge Kelly upset with me. A little word of advice to HHS – make sure you’ve got that kid’s treatment lined up before your next hearing.

Tea party aftermath

Interesting article by Tana Ganeva of AlterNet (, summarizing the message-board posts pro and con of the April 15 "tea party" protests (note, I will not join in with the left's giggly insistence to refer to the event by another verb).

I always think that a good way to gauge the underlying fervor of a group is by reading message board posts and comments. Sure, you're going to get a good dose of crazy, but if you take it as a whole you can get a feel for where a group is coming from.

Admittedly, these are cherry-picked comments, and likely among the worst. But from what I've read, a lot of the pro-tea party comments pretty accurately reflect the thoughts of the people who are REALLY into this stuff.

The bottom line, to me, is this. The GOP is really desperate for an identity, and whatever you may think of the crazies on the right, at least they know what they believe. The danger for the GOP is to latch on to it's hard right element as a means to go forward. If they do that, the GOP may very well create Karl Rove's much-discussed permanent majority - but not quite the way he intended.

Last Wednesday, angry conservatives took to the streets to protest taxes by draping themselves in tea bags and wielding a variety of terrifying (some borderline racist) signs.

The so-called tea parties were packaged as an outpouring of populist rage. But, as many liberal writers delighted in pointing out (almost as much as they enjoyed making teabagging jokes), the ostensibly grassroots, spontanous demonstrations were in fact launched by the conservative advocacy group FreedomWorks, nurtured by Republican operatives, then blasted out through the Fox News propaganda machine.

In an article recently published on AlterNet, Mark Ames, Yasha Levine and Alexander Zaitchik note that the tea parties are mere Astroturf -- fake grassroots. They go on to highlight the real movement growing against corporate greed and government malfeasance.

Not so, argued a bunch of conservative trolls who came onto AlterNet’s comment boards to argue about the article.

Sports Warrior Casey Jones starts the comment boards troll party on a violent note:

... gun control must be ABOLISHED COMPLETELY! Because you see, Big Brother is gonna be fucking with us all. Better to have a shotgun ready to shoot those motherfucking drones down.

Further proving that they should be heavily armed, Sports Warrior goes on to argue:

What's wrong with a TeaBag Party? Better yet, us NRA members would be happy to join the crowds! Because you know what? We're gonna need our guns when we're done getting our asses robbed by the fuckers in Washington!

only_me also has some alarming findings to share:

The same people that are for Obama have no idea what the real agenda is. I'm sure half the people have no idea that mass graves are being dug up, FEMA camps are being built and a "bird flu" epidemic is on the horizon.

snowhound, though not going so far as to accuse the Obama administration of digging mass graves, is also concerned about the so-called attack on American liberties represented by our government's sinister plan to continue our system of taxation:

The main role of the federal government is to preserve liberty. The current liberal ideology of social programs is unsustainable. The current conservative ideology of the imperial empire is unsustainable. This will all end in the economic collapse of our nation because we didn't follow our founders written document, the Constitution.

But AlterNet commentor Bliss Doubt responded:

"... no idea of the definition of Liberty."

I've been reading about the protest movement that will take place today.

The participants' definition of liberty includes privatizing Social Security and privatizing the Internet. It includes nothing about repealing the Patriot Act, you know, that law that turned our Constitution into toilet paper and turned the great legacy of our nation's founders into an antiquated notion. To me it just looks like more support of corporate welfare at the expense of the working class.

It would seem that the word liberty is open to wide ranging interpretation.

Ky Lake Dave also presents a strange version of "liberty":

Finally, at the age of 47, I am getting to do the hippie thing and protest against our unfair government and President Obama. Obama is attempting to toss out the Constitution. He is firing private citizens. Taking over the banking industry. Taking over the auto industry. He wants to take over the health care. The Democrats are pursuing a "Fairness Doctrine" to censor the press and opposing views. President Obama and this unfair government attempting to toss aside capitalism in favor of socialism. He is spending my great-grandchildren's money! This presidency after less than 100 days is inching closer and closer to a dictatorship.


I wonder what we should wear?

I don't fit in my bell bottoms anymore.

2010 we will rein him in. I like that. Maybe that will be on my sign.

Anyone else like the ring of that?

Isnamther responds, pointing to the hypocrisy of conservative anti-government sentiment:

I am also 47 years old, and if this is the first time you've found something to protest your government about, with all of the shit that has gone down in this country over the past 30 years, it speaks volumes about where your head is. Endless wars, no problem; U.S. Empire, no problem; racial inequalities, no problem; gender inequalities, no problem; ruination of the environment, no problem; But a stimulus package trying to bail out this country's economic crisis, thoroughly caused by right-wing policies (including Clinton's right-wing policies); BIG PROBLEM .. for right-wingers who are NO LONGER IN POWER.

Derek Maddox argues that the tea parties do in fact have a populist feel, regardless of their origins:

There may have been a few "rich goons" in the crowd, but they were far outnumbered by the ordinary, middle class, working men and women. Regular citizens who are sick and tired of government taking over private industry by throwing them a few dollars and then making up silly rules.

While Derek Maddox's point did not have the fevered, paranoid feel of other conservative trolls' posts, AlterNet commenters nevertheless stripped down his assumption -- and that of other conservatives in the comments -- that taxation is an infringement of liberty.

Seazen takes on all teabaggers, pointing out that few would willingly give up the services paid for by taxes:

While you are out there with your self-righteous, narrow-minded, "Patriots," why don't you get them to really stand up for what they believe. Print the following Teabaggers Pledge and have them all sign it!!

Because Obama is turning the country into a Socialist State with the most recent Stimulus package, I hereby pledge that neither I, nor any member of my family, will ever accept any of the money or benefits contained within the stimulus package to include, but not limited to:

1. Extended unemployment benefits

2. Tuition benefits

3. Jobs associated with the package

4. Tax reductions or other benefits included therein

5. Other Socialist programs, including public school education, police and fire protection, Social Security, Medicare, food stamps, VA benefits, etc.

6. Any other benefits not listed

Purple Girl agrees:

What are you willing to do or give up to avoid taxes? Chase down armed bank robbers? Go into burning buildings to look for trapped people? Serve in the mandatory military? Repair roads and bridges on weekends? Learn advanced physics and calculus so your kids can be taught?

What part of civilization are you willing to give up? Because one way or another -- you will be paying for it ... No such Thing as a Free Lunch.

Tax cuts is the mantra of the self-aborbed and greedy. Let's be honest, given a tax cut most will not be buying books for the schools -- they'll be out buying a big-screen TV -- hell of an investment in your children's ability to compete in the future (long after that flat screen goes black).

So, all those screaming about tax cuts are actually the ones committing generational theft. They've been doing this for decades -- reason why gym and music is no longer taught in schools (unless you pay privately). Reason the Minnesota bridge collapsed & [New Orleans] levies broke (no $$ for inspectors or refortification).

Instead of screaming about tax cuts, scream about profit margins. Why not be yelling about the skyrocketing cost of food? Why not be outraged by Exxon's $45 BILLION profits when we were paying $4 a gallon? Taxes aren't killing us or robbing us blind -- it's profit margins, which don't save or create jobs, invest in innovation or safety, or contribute to the community in any real way. What corporation is paying your police department? Oh they'll kick down for a ballpark -- but not for a school.

rare points out that the teabaggers -- concerned as they are with personal liberty -- were oddly missing the past eight years:

So your protest is about "the steady encroachment of the federal government into our daily lives?"

Did you protest over the last eight years? You know, when the previous administration decided to illegally spy on us?

How about when he [President Bush] lied us into a war? Didn't that encroach on us by spending our tax dollars and killing our troops?

How about when they said Bush was above the Constitution? Did you march in the streets then?

How about when Bush pushed through the first TARP and refused to allow any legislation that would have called for the corporations to be held accountable and that it all had to be done transparently? Did you protest then?

Did you protest when Bush gave corporations HUGE tax breaks by allowing them to bring in all their offshore money at a 5 percent tax rate? Did you go to D.C. and tell him that you were tired of the corporations paying a lower tax rate than you do?

Did you organize the masses when BushCo continued to give HUGE tax breaks to the oil companies all while they were making record-setting profits?

You people are so disengenuous. This has nothing to do with what is going on at this moment and everything to do with your party not being in power. You're afraid of Democrats for irrational reasons and are afraid of trying anything new (look up the definition of conservative), so you feel helpless and now see bogeymen around every corner. That, and being you're so uninformed that you think that the big corporations behind your "teabagging" parties actually give a crap about you.

They don't, and you are being used.

Wednesday, April 15, 2009

So, when is charity a good thing

GREAT article by Daniel Gross of Slate ( discussing conservatives being very upset about Obama's proposal to limit tax deductions on charitable giving because it will mean less people giving money to charity, when conservatives support a repeal of the estate tax which will result in even less money being given to charity.

In the wake of all the "tea party" hypocrisy (I still refuse to succumb to the juvenile insistence of MSNBC to refer to it as teabagging) of the GOP trying to whip up public criticism of deficit spending after they just spend eight years in power spending like drunken sailors, I'm just a little cranky today. I absolutely love how Gross ends the piece. Well done.

Taxes, Widows, and Orphans
Conservative hypocrisy about Obama's proposal to limit charitable tax deductions for the rich.
By Daniel Gross
Posted Wednesday, April 15, 2009, at 11:52 AM ET
Should we use the tax code to encourage virtuous behavior, such as, say, charitable giving? And should we avoid making changes in the tax code that would discourage charitable giving at this time of charitable stress? These questions would seem to be a matter of principle: It's either a good idea or a bad idea. But it all depends on how you're using the tax code. If the change involves a moderate tax hike on merely rich people, some think it's a bad idea that would be the equivalent of kicking widows and orphans in the face. But if the change is a massive tax cut for a few really, really rich people that would reduce charitable giving much more, the very same people think it's a great idea.

President Obama has proposed limiting the deductions people in the top tax brackets can take for charitable donations. Here's how he described it in a news conference in March. "It just means, if you give $100 and you're in this tax bracket, at a certain point, instead of being able to write off 36 percent or 39 percent, you're writing off 28 percent." Donors still get a decent deduction, just not quite as big as they used to get.

Now, the rich do account for a disproportionate share of charitable donations. And they are motivated, in part—but by no means entirely—by a desire to shave their tax bill. The Center on Philanthropy at Indiana University has concluded that limiting the deductions and increasing the top income tax rate, as Obama wants to do, would lower charitable giving only a little bit. "Our estimates suggests that if these proposals had been in place in 2006, total itemized charitable giving by households would have dropped by 2.1 percent," says Patrick M. Rooney, interim executive director of the Center on Philanthropy. That wouldn't be good, especially in this time of economic stress. But it, alone, wouldn't be catastrophic. And, as Rooney notes, "changes in personal income and wealth, both of which have declined in the past year, have a greater impact on charitable giving than do tax rate changes."

Of course, some people disagree. Ryan Messmore of the Heritage Foundation argues that this is no time to be doing anything to discourage charitable giving, even if only at the margin. "The President claims that his tax plan will only have a small negative effect on charitable giving," he writes. "Percentage-wise, this may be true, but the estimated reduction in giving means billions of dollars less each year for charities, especially if weak economic conditions continue." He notes that even the small reduction in donations "represents more than the annual operating budgets of the American Cancer Society, World Vision, St. Jude's Children's Hospital, Habitat for Humanity, and the American Heart Association combined." Sen. John Thune, R-S.D., similarly opposes capping the deductions, because it would hurt charities in this difficult time. Thune sponsored a "sense of the Senate" amendment to a bill that says Congress, rather than slashing the deduction, should "look for additional ways to encourage charitable giving, rather than to discourage it." And here's a typical right-wing blog post on the subject.

And yet, Thune and Messmore's colleagues at the Heritage Foundation—and plenty of other people in Washington—are also enthusiastic supporters of a change in the tax code that would likely have the effect of reducing charitable giving by three to six times the amount that Obama's deduction cap would. Back in 2004, the Congressional Budget Office, then run by (former McCain adviser) Douglas Holtz-Eakin, issued a report noting that while boosting the size of estates exempt from taxes from $750,000 to $2 million or $3.5 million would cut charitable giving by less than 3 percent, "permanently repealing the estate tax would cause a larger decline in charitable giving—of 6 percent to 12 percent." Why? It turns out the existence of the estate tax gives a powerful incentive to people to contribute to charity during their lifetime, and after they've gone.

But some of the same folks who express so much concern for the impact of the deduction cap on charitable giving don't seem to care much about the philanthropic impact of getting rid of the estate tax. You can search the steady stream of anti-estate tax literature churned out by the Heritage Foundation and not find too many mentions of the St. Jude's Children Hospital. Thune, in fact, has repeatedly argued for killing the estate tax without regard for the impact it would have on charitable giving. And in early April he was one of those who voted to approve, by a 51-48 margin, a Senate amendment sponsored by Sens. John Kyl, R-Ariz., and Blanche Lambert-Lincoln, D-Ark., that would boost the size of estates exempt from taxes to $10 million.

The uncharitable way to describe the variable attitudes toward the tax changes would be to brand Heritage and Thune as hypocritical. The more charitable way? These folks just care a lot more about tax cuts than they do about helping charities and will marshal the most effective arguments they can for their position. Even if it means trotting out the widows and orphans.

Daniel Gross is the Moneybox columnist for Slate and the business columnist for Newsweek. You can e-mail him at His latest book, Dumb Money: How Our Greatest Financial Minds Bankrupted the Nation, has just been published as an e-book
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Tuesday, April 14, 2009

America isn't a Christian nation?

It was quite predictable when President Obama said that America isn't a "Christian nation" that the hard Right went into apoplectic shock. But this article from by Michael Lind ( gives a great historical perspective on how right Obama was with his statement.

America at it's best stands for true freedom - meaning that no matter your background or religious beliefs, you stand equal in this country. Amazingly enough, there are so many people who call themselves Americans who cannot rest unless everyone with a different religious faith than themselves is not free to claim this country as home. I have no idea where such insecurity comes from, and I can't imagine how terrifying a world this must be if that's the prism through which you see it.


America is not a Christian nation

Religious conservatives argue the Founding Fathers intended the United States to be a Judeo-Christian country. But President Obama is right when he says it isn't.
By Michael Lind

Apr. 14, 2009 |

Is America a Christian nation, as many conservatives claim it is? One American doesn't think so. In his press conference on April 6 in Turkey, President Obama explained: "One of the great strengths of the United States is … we have a very large Christian population -- we do not consider ourselves a Christian nation or a Jewish nation or a Muslim nation. We consider ourselves a nation of citizens who are bound by ideals and a set of values."

Predictably, Obama's remarks have enraged conservative talking heads. But Obama's observations have ample precedent in American diplomacy and constitutional thought. The most striking is the Treaty of Tripoli, ratified by the U.S. Senate in 1797. Article 11 states: "As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility [sic], of Mussulmen [Muslims]; and, as the said States never have entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries."

Conservatives who claim that the U.S. is a "Christian nation" sometimes dismiss the Treaty of Tripoli because it was authored by the U.S. diplomat Joel Barlow, an Enlightenment freethinker. Well, then, how about the tenth president, John Tyler, in an 1843 letter: "The United States have adventured upon a great and noble experiment, which is believed to have been hazarded in the absence of all previous precedent -- that of total separation of Church and State. No religious establishment by law exists among us. The conscience is left free from all restraint and each is permitted to worship his Maker after his own judgment. The offices of the Government are open alike to all. No tithes are levied to support an established Hierarchy, nor is the fallible judgment of man set up as the sure and infallible creed of faith. The Mohammedan, if he will to come among us would have the privilege guaranteed to him by the constitution to worship according to the Koran; and the East Indian might erect a shrine to Brahma, if it so pleased him. Such is the spirit of toleration inculcated by our political Institutions."

Was Tyler too minor a president to be considered an authority on whether the U.S. is a Christian republic or not? Here's George Washington in a letter to the Hebrew Congregation of Newport, Rhode Island in 1790: "The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy -- a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support ... May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants -- while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid."

Eloquent as he is, Barack Obama could not have put it better.

Contrast this with John McCain's interview with Beliefnet during the 2008 presidential campaign: "But I think the number one issue people should make [in the] selection of the President of the United States is, 'Will this person carry on in the Judeo Christian principled tradition that has made this nation the greatest experiment in the history of mankind?'" Asked whether this would rule out a Muslim candidate for the presidency, McCain answered, "But, no, I just have to say in all candor that since this nation was founded primarily on Christian principles ... personally, I prefer someone who I know has a solid grounding in my faith. But that doesn't mean that I'm sure that someone who is a Muslim would not make a good president. I don't say that we would rule out under any circumstances someone of a different faith. I just would -- I just feel that that's an important part of our qualifications to lead."

Conservatives who, like McCain, assert that the U.S. is in some sense a Christian or Judeo-Christian nation tend to make one of four arguments. The first is anthropological: The majority of Americans describe themselves as Christians, even though the number of voters who describe themselves as religiously unaffiliated has grown from 5.3 percent in 1988 to 12 percent in 2008. But the ratio of Christians to non-Christians in American society as a whole is irrelevant to the question of whether American government is Christian.

The second argument is that the constitution itself is somehow Christian in character. On that point, candidate McCain said: "I would probably have to say yes, that the Constitution established the United States as a Christian nation." Is McCain right? Is the U.S. a Christian republic in the sense that according to their constitutions Iran, Iraq and Afghanistan are all now officially Islamic republics? What does the Constitution say? Article VI states that "no religious test shall ever be required as a qualification to any office or public trust in the United States." Then there is the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... "

True, over the years since the founding, Christian nationalists have won a few victories -- inserting "In God We Trust" on our money during the Civil War in 1863, adding "under God" to the Pledge of Allegiance during the Cold War in 1954. And there are legislative and military chaplains and ceremonial days of thanksgiving. But these are pretty feeble foundations on which to claim that the U.S. is a Christian republic. ("Judeo-Christian" is a weaselly term used by Christian nationalists to avoid offending Jews; it should be translated as "Christian.")

The third argument holds that while the U.S. government itself may not be formally Christian, the Lockean natural rights theory on which American republicanism rests is supported, in its turn, by Christian theology. Jefferson summarized Lockean natural rights liberalism in the Preamble to the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights … that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed …" Many conservatives assert that to be a good Lockean natural nights liberal, one must believe that the Creator who is endowing these rights is the personal God of the Abrahamic religions.

This conflation of Christianity and natural rights liberalism helps to explain one of John McCain's more muddled answers in his Beliefnet interview: "[The] United States of America was founded on the values of Judeo-Christian values [sic], which were translated by our founding fathers which is basically the rights of human dignity and human rights." The same idea lies behind then-Attorney General John Ashcroft's statement to religious broadcasters: "Civilized individuals, Christians, Jews and Muslims" -- sorry, Hindus and Buddhists! -- "all understand that the source of freedom and human dignity is the Creator."

In reality, neither Jewish nor Christian traditions know anything of the ideas of natural rights and social contract found in Hobbes, Gassendi and Locke. That's because those ideas were inspired by themes found in non-Christian Greek and Roman philosophy. Ideas of the social contract were anticipated in the fourth and fifth centuries BC by the sophists Glaucon and Lycophron, according to Plato and Aristotle, and by Epicurus, who banished divine activity from a universe explained by natural forces and taught that justice is an agreement among people neither to harm nor be harmed. The idea that all human beings are equal by nature also comes from the Greek sophists and was planted by the Roman jurist Ulpian in Roman law: "quod ad ius naturale attinet, omnes homines aequales sunt" -- according to the law of nature, all human beings are equal.

Desperate to obscure the actual intellectual roots of the Declaration of Independence in Greek philosophy and Roman law, Christian apologists have sought to identify the "Creator" who endows everyone with unalienable rights with the revealed, personal God of Moses and Jesus. But a few sentences earlier, the Declaration refers to "the Laws of Nature and of Nature's God." Adherents of natural rights liberalism often have dropped "Nature's God" and relied solely on "Nature" as the source of natural rights.

In any event, in order to be a good American citizen one need not subscribe to Lockean liberalism. Jefferson, a Lockean liberal himself, did not impose any philosophical or religious test on good citizenship. In his "Notes on the State of Virginia," he wrote: "The legitimate powers of government extend to such acts as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

The fourth and final argument made in favor of a "Christian America" by religious conservatives is the best-grounded in history but also the weakest. They point out that American leaders from the founders to the present have seen a role for otherwise privatized and personal religion in turning out moral, law-abiding citizens. As George Washington wrote in his 1796 Farewell Address:

"Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them."

In Washington's day, it may have been reasonable for the elite to worry that only fear of hellfire kept the masses from running amok, but in the 21st century it is clear that democracy as a form of government does not require citizens who believe in supernatural religion. Most of the world's stable democracies are in Europe, where the population is largely post-Christian and secular, and in East Asian countries like Japan where the "Judeo-Christian tradition" has never been part of the majority culture.

The idea that religion is important because it educates democratic citizens in morality is actually quite demeaning to religion. It imposes a political test on religion, as it were -- religions are not true or false, but merely useful or dangerous, when it comes to encouraging the civic virtues that are desirable in citizens of a constitutional, democratic republic. Washington's instrumental view of religion as a kind of prop was agreeable to another two-term American president more than a century and a half later. "[O]ur form of government has no sense unless it is founded on a deeply felt religious faith," said Dwight Eisenhower, "and I don't care what it is." And it's indistinguishable from Edward Gibbon's description of Roman religion in his famous multi-volume "Decline and Fall": "The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. And thus toleration produced not only mutual indulgence, but even religious concord."

President Obama, then, is right. The American republic, as distinct from the American population, is not post-Christian because it was never Christian. In the president's words: "We consider ourselves a nation of citizens who are bound by ideals and a set of values." And for that we should thank the gods. All 20 of them.

Monday, April 13, 2009

LTG 04-05-09 - Iowa legalizes same-sex marriage

As posted in the Omaha CityWeekly for the week of April 04-08-09, and at

No, that thunder you heard from Des Moines last week wasn’t an actual earthquake. But in terms of its’ effect on the nation, it might as well have been.

Last Wednesday, the Iowa Supreme Court ruled that Iowa’s Defense of Marriage Act (DOMA) , passed in 1998 to require marriages be only between a man and a woman, violated the Iowa Constitution’s equal protection clause. The Court went further, however, instructing in its’ opinion that all other Iowa statutes be interpreted to permit homosexual couples to enjoy the same rights to marry as heterosexual couples.


Before we get too deep into the ramifications of the case, it’s important to understand the rationale behind the Court’s decision. Opponents of gay marriage have already gone into overdrive in branding the decision as “evil,” “illogical,” and (come on, you know it’s coming) “activist.”

The equal protection clause of the United States Constitution, as well as state constitutions, basically means that you have to treat people in similar situations the same. When a government wants to have a different set of rules for one group of people and another rule for a different group, there’s going to be an equal protection problem.

The first argument raised was that homosexual and heterosexual couples are not similarly situated, because homosexual couples cannot “procreate naturally.” The purpose of marriage, as argued in an attempt to maintain DOMA, is procreation, and therefore the government can rationally distinguish between gay and straight couples.

The Iowa Supreme Court, in far more polite and legal terms, called bull on that argument. The Court found that the purpose of marriage in law is to create stable, loving relationships upon which society can be based. With that as a purpose for marriage, the Court found gay and straight couples to be similarly situated.

That’s a big deal for the final outcome. In determining whether a law is constitutional, the Court has to decide first what standard to apply. The lowest standard, called a “rational basis” standard, allows a statute to be constitutional so long as it bears a rational relationship to a legitimate government interest. That standard applies when the persons being affected by the law are not persons who need additional protection in equal protection cases. The highest level, called “strict scrutiny,” means that a statute is constitutional only when the statute is narrowly tailored to satisfy a compelling government interest. This standard applies when the persons being affected need the most protection.

There is also an “intermediate scrutiny” for classes of people that fall between the two extremes. That level of scrutiny requires a statute to be substantially related to an important governmental interest. There’s a four-part test to determine which level of scrutiny is appropriate. I would go into the details with you, but apparently the CityWeekly actually needs some space to print advertisements to keep this fine publication free of charge.

So, you’ll have to trust your Law-Talking Guy when I tell you that the Court applied that test and determined that intermediate scrutiny was the most appropriate test to apply. And the Court, finding the “can’t procreate naturally” argument could not survive intermediate scrutiny, struck DOMA down as violating the equal protection clause.

On that small part of the case, I have a personal stake. I’m straight, but I also can’t have children of my own due to a childhood illness. And I get very angry when someone tells me that my marriage to Mrs. Law-Talking Guy is without a legitimate purpose because the chemotherapy that saved my life robbed me of my ability to have children of my own. I get even angrier when I hear that argument used to cover up someone’s desire to enshrine a particular religious interpretation into law.

Because, let’s not kid ourselves. The opposition to gay marriage is fueled almost entirely by a socially-conservative interpretation of the Bible. Conservative religious groups from across the country filed briefs in support of the DOMA ban. And you can be sure that, much like in California during the Proposition 8 debate, conservative religious money and operatives will descend on Iowa in an attempt to overturn the Court’s decision.

The Court was very clear in making the distinction between a religious marriage and a civil marriage. The Court was in no way requiring any church to change its’ doctrines or beliefs to accept gay marriages. But the Court did rule that state law – the law that is supposed to apply to everyone equally – could not deny gay couples the same benefits that straight couples receive.

Of course, there has been much weeping and gnashing of teeth as a result of this decision. Prepare for a chorus of discussion on how the fabric of society is being assaulted, children are in peril, and marriage is doomed.

Perhaps I’m just dense, but I’m struggling to see how my marriage to Mrs. Law-Talking Guy is threatened in any way by a gay couple getting married – even though gay-marriage opponents apparently think my marriage isn’t all that legitimate anyway. And let’s think for a minute about the whole “sanctity of marriage” thing.

One of the most popular shows – meaning the one that straight people watch more than about any other – on television now is ABC’s “The Bachelor.” We’re all obsessed with a show where one guy gets to canoodle on camera with 25 gorgeous women in an attempt to “find the love of his life” and have a fairy-tale wedding. I struggle to see how that doesn’t denigrate the sanctity of marriage more than a committed gay couple.

I do have some concerns about the edges of the legal analysis for cases of bigamy and other types of relationships. But ultimately, I believe the Iowa Supreme Court is on the right side of history. A generation ago, we had a very similar debate about interracial marriages. Many of the same arguments against gay marriages were used against interracial marriages. Most of us now couldn’t imagine a world where it would be illegal to marry someone of a different race. I suspect a generation from now we will look back on gay marriage prohibition in the same light.

Thursday, April 09, 2009

Obama - Bush on steroids?

Disturbing piece from John Byrne of RawStory ('s_legal_defense_of_warrantless_wiretapping/) summarizing the story of the Obama Justice Department's most recent position not only defending the use of the "State Secrets" doctrine to defeat any lawsuits trying to recover damages for illegal spying, but taking it a step further. The Obama Justice Department has claimed that a portion of the PATRIOT Act gives broad sovereign immunity to the government, immunizing it from liability for illegal spying unless the actions were "willful." That means a court has no authority to hold illegal wiretappers accountable unless a Plaintiff can prove those wiretappers "willfully" used the information gained outside of the purposes of the PATRIOT Act.

The interesting question, of course, is the underlying point of the PATRIOT Act. If the act itself violated the Fourth Amendment, and therefore the acts themselves were constitutional violations, then how can an act of immunity protect someone from engaging in those extra-constitutional actions?


In a stunning defense of President George W. Bush's warrantless wiretapping program, President Barack Obama has broadened the government's legal argument for immunizing his Administration and government agencies from lawsuits surrounding the National Security Agency's eavesdropping efforts.

In fact, a close read of a government filing last Friday reveals that the Obama Administration has gone beyond any previous legal claims put forth by former President Bush.

Responding to a lawsuit filed by a civil liberties group, the Justice Department argued that the government was protected by "sovereign immunity" from lawsuits because of a little-noticed clause in the Patriot Act. The government's legal filing can be read here (PDF).

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of U.S. law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

"A 'willful violation' in Section 223(c(1) refers to the 'willful disclosure' of intelligence information by government agents, as described in Section 223(a)(3) and (b)(3), and such disclosures by the Government are the only actions that create liability against the United States," Obama Assistant Attorney General Michael Hertz wrote (page 5).

Senior Staff Attorney Kevin Bankston at the Electronic Frontier Foundation, which is suing the government over the warrantless wiretapping program, notes that the government has previously argued that changes to the Patriot Act protected the government from lawsuits surrounding eavesdropping. But he says that this is the first time that they've made the case that the Patriot Act protects the government from all surveillance statutes.

"They are arguing this based on changes to the law made by the USA PATRIOT Act, Section 223," Bankston said in an email to Raw Story. "We've never been fans of 223 -- it made it much harder to sue the U.S. for illegal spying, see an old write-up of mine at: --but no one's ever suggested before that it wholly immunized the U.S. government against suits under all the surveillance statutes."

Salon columnist and constitutional scholar Glenn Greenwald -- who is generally supportive of progressive interpretations of the law -- says the Obama Administration has "invented a brand new claim" of immunity from spying litigation.

"In other words, beyond even the outrageously broad 'state secrets' privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they 'willfully disclose' to the public what they have learned," Greenwald wrote Monday.

He also argues that the Justice Department's response is exclusively a product of the new Administration, noting that three months have elapsed since President Bush left office.

"This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials," Greenwald wrote. "Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance."

"Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of 'state secrets' to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself," he adds.

Both the Electronic Frontier Foundation and the American Civil Liberties Union say the "sovereign immunity" claim in the context of the case goes farther than any previous Bush Administration claims of wiretap immunity.

Writing about the changes to the Patriot Act last year, the EFF asserted that revisions to the Act involved troubling new developments for U.S. law.

"Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping," the Foundation wrote. "That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court."

Moreover, they said, "Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 significantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!"

The Obama Administration has not publicly commented on stories that revealed their filing on Monday.

Friday, April 03, 2009

Iowa stunner - gay marriage legalized

How about that. The Iowa Supreme Court ruled today that a prohibition on gay marriage is unconstitutional, violating the equal protection clause of the Iowa Constitution. That's a BIG deal, especially for it to happen in a state in the middle of the country like Iowa.

I haven't had a chance to read the opinion yet, but I am going to be fascinated to see how this plays out on the national political scene. States like Massachusetts that have made similar rulings were easier for social conservatives to marginalize as "east coast liberals." I'm not sure how that's going to work with a heartland state like Iowa.

There's no question this is the cutting-edge social and civil rights question of our generation. When a state like California can pass Proposition 8 banning gay marriage, and less than six months later Iowa's Supreme Court can find such a ban unconstitution - by a unanimous vote, nonetheless - then you know the issue is up for grabs.

It is pretty amazing to me, as a Nebraskan, to think that the state next door is now in the forefront of such a huge social battle. It's going to be fascinating to see what comes next.

Thursday, April 02, 2009

LTG 04-02-09: Whoops, we shouldn't have jailed you!

From the Omaha CityWeekly, week of April 02, 2009

So, how much is a year of your life worth?

The Unicameral is debating legislation that would authorize payments to people who have been wrongly imprisoned by Nebraska courts. If the bill passes, Nebraska would join the Federal government and twenty-five other states to have a specific mechanism in place for people wrongly convicted.

The impetus for the bill was the “Beatrice Six,” a group of people who were convicted in 1985 for the rape and murder of an elderly woman. Through the Innocence Project, a group formed to use DNA evidence to prove people were wrongly convicted of crimes, the “Beatrice Six” were exonerated and declared by the Attorney General as “100 percent innocent.”

(As a quick aside, does anyone else struggle with hearing nicknames like “Beatrice Six” and not envisioning all of them in pinstripe zoot suits with fedoras and tommy guns racing around in Model T’s trying to avoid the revenue boys? Maybe I’m just a little too excited for the upcoming Johnny Depp flick about John Dillinger.)

Now, keep in mind, this is still Nebraska, so it’s not like the Unicameral would be just giving the money away. People who want to ask for compensation for wrongful imprisonment would have to go through the State Tort Claims Act, meaning they would have to file a claim with the State Claims Board. If that claim is denied, they would have to file an action in district court.

Additionally, the person making the claim will have to prove their innocence, to have received a pardon, and that they made no false statements that lead to convictions of other persons. They will also have to prove the amount of damage they suffered and are due compensation for, and will be limited to a total award of $500,000.

No word as to whether a claimant will also be required to solve a Rubik’s Cube in under 10 minutes to be eligible for an award, but watch this space for any updates.

If the bill passes, many of the “Beatrice Six” prisoners will have an additional complication. Some of them entered guilty pleas to reduced charges, and will have to prove that such pleas were coerced.

And that could prove challenging. Pleading to lesser charges provides a huge moral dilemma for people accused of a crime who are in fact innocent. Keep in mind that the “Beatrice Six” were originally charges with capital offenses, meaning they could face the death penalty if convicted.

That’s a lot riding on the decisions of twelve people. It is not at all an unreasonable position to accept a lesser plea to remove the possibility of a date with Ol’ Sparky. After all, the Innocence Project has demonstrated that innocent people are convicted of crimes at a disturbingly high rate – 234 people to date, according to their website.

So, from a practical standpoint, it’s not unusual for someone to enter a plea to a lesser charge even if they were innocent. If that plea then blocks their ability to claim compensation for wrongful imprisonment later on, the possibility for a huge injustice to be perpetrated still exists.

Now, I expect there will be some significant opposition to this bill. By compensating people for being wrongly imprisoned, the argument will go, it will make prosecutors more cautious in filing charges and will mean more criminals will go free.

Which ultimately brings this debate down to its’ philosophical core – is it worse to imprison an innocent person, or to free a guilty person?

In a free society, the answer to this question should be obvious. In a free society, we presume innocence and require the state to prove guilt beyond a reasonable doubt before we can imprison someone. By definition, that means that some guilty people will go free to protect the freedom of the innocent.

Consider how historical thinkers have answered that philosophical question. Luminaries like William Blackstone, one of the fathers of English common law, and Benjamin Franklin believed it better for tens or hundreds of guilty people to escape punishment to ensure the freedom of one innocent person. Conversely, Otto von Bismark and Pol Pot thought it better to let innocent people suffer to ensure the punishment of the guilty. You decide on whose historical team you’d rather be playing.

The consideration of this bill, therefore, is a huge step forward for Nebraska. In an era where we’ve declared wars on crime, drugs, terror, and every other scourge, it’s very easy to lose track of the humanity of those behind bars. Many – hopefully most – people behind bars are there because of their own actions, and society is a safer place as a result.

But we can never forget that our criminal justice system is not perfect. Mistakes are made, and innocent people are sent to jail. In our zeal to be “tough on crime,” we must never forget the fallibility of the system and the innocent people that get caught up in it.

We’ve just come through a Presidential administration that thought it was perfectly acceptable to throw people in jail for years without any charges, access to lawyers, or anything else that a free society demands. As a nation, we are finally beginning to realize how wrong that is, and taking steps to change it.

Apparently that spirit is catching. By providing compensation for people wrongly imprisoned, we as a state would be acknowledging the damage wrongfully locking someone in a small concrete box does. And if it makes prosecutors more cautious in charges they file – meaning we’re even more sure that innocent people aren’t being sent to jail – then I’d call that mission accomplished.