Wednesday, May 27, 2009

GOP petard, meet hoist

The article, by Brian Buetler of Talking Points Memo (http://tpmdc.talkingpointsmemo.com/2009/05/flashback-george-hw-bush-on-clarence-thomas-great-empathy.php), speaks for itself. Apparently many in the GOP hierarchy have not figured out how to use the Google machine.

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Flashback: George H.W. Bush On Clarence Thomas' 'Great Empathy'
By Brian Beutler - May 27, 2009, 9:49AM
Conservatives have curiously decided that one of the best ways to battle Obama's first Supreme Court nominee is by declaring a war on empathy. When he described his criteria for selecting a replacement for Justice David Souter, Obama said, "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook, it is also about how are laws effect the daily realities of peoples lives.... I view that quality of empathy, of understanding and identifying with peoples' hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

This is, apparently, a bridge too far for conservatives, and, at least in the minds of some on the right, political gold. But while they continue to mock the idea--and while the media by and large passes their objections along uncritically--they seem to have forgotten that one conservative Justice was also sold to the public as a man of great empathy.

"I have followed this man's career for some time," said President George H.W. Bush of Clarence Thomas in July 1991. "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

The Thomas confirmations ultimately became the stuff of legend--but not because Democrats decided to go all in on attacking Thomas' "empathy."

Tuesday, May 26, 2009

The point of interrogation

Great article from Huffington Post (http://www.huffingtonpost.com/matthew-alexander/whats-not-said-is-more-im_b_207151.html) by Matthew Alexander, a former interrogator who actually, you know, was involved in the interrogations of the detainees in Guantanamo. Why this guy doesn't get more attention than he does is beyond me, because it seems a debate with him on one side and a torture proponent like - apparently - the entire Cheney family is beyond me.

ADDENDUM - Over the weekend, Liz Cheney has been on the tee-vee machine trying to make the case that waterboarding isn't torture, because people who were prosecuted for torture did "other things" besides waterboarding. I came across an excellent article by Judge Evan Wallach, a federal judge and professor at the Brooklyn Law School and New York Law School. His article details the history of waterboarding prosecutions, and exactly why waterboarding has been SPECIFICALLY found to violate United States law. Meaning, of course, that Liz Cheney is either horribly misinformed or is a bald-faced liar. Apple doesn't fall far from the tree, does it?

http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf

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As a senior interrogator in Iraq (and a former criminal investigator), there was a lesson I learned that served me well: there's more to be learned from what someone doesn't say than from what they do say. Let me dissect former Vice President Dick Cheney's speech on National Security using this model and my interrogation skills.

First, VP Cheney said, "This recruitment-tool theory has become something of a mantra lately... it excuses the violent and blames America for the evil that others do." He further stated, "It is much closer to the truth that terrorists hate this country precisely because of the values we profess and seek to live by, not by some alleged failure to do so." That is simply untrue. Anyone who served in Iraq, and veterans on both sides of the aisle have made this argument, knows that the foreign fighters did not come to Iraq en masse until after the revelations of torture and abuse at Abu Ghraib and Guantanamo Bay. I heard this from captured foreign fighters day in and day out when I was supervising interrogations in Iraq. What the former vice president didn't say is the fact that the dislike of our policies in the Middle East were not enough to make thousands of Muslim men pick up arms against us before these revelations. Torture and abuse became Al Qaida's number one recruiting tool and cost us American lives.

Secondly, the former vice president, in saying that waterboarding is not torture, never mentions the fact that it was the United States and its Allies, during the Tokyo Trials, that helped convict a Japanese soldier for war crimes for waterboarding one of Jimmie Doolittle's Raiders. Have our morals and values changed in fifty years? He also did not mention that George Washington and Abraham Lincoln both prohibited their troops from torturing prisoners of war. Washington specifically used the term "injure" -- no mention of severe mental or physical pain.

Thirdly, the former vice president never mentioned the Senate testimony of Ali Soufan, the FBI interrogator who successfully interrogated Abu Zubaydah and learned the identity of Jose Padilla, the dirty bomber, and the fact that Khalid Sheikh Mohammad (KSM) was the mastermind behind 9/11. We'll never know what more we could have discovered from Abu Zubaydah had not CIA contractors taken over the interrogations and used waterboarding and other harsh techniques. Also, glaringly absent from the former vice president's speech was any mention of the fact that the former administration never brought Osama bin Laden to justice and that our best chance to locate him would have been through KSM or Abu Zubaydah had they not been waterboarded.

In addition, in his continued defense of harsh interrogation techniques (aka torture and abuse), VP Cheney forgets that harsh techniques have ensured that future detainees will be less likely to cooperate because they see us as hypocrites. They are less willing to trust us when we fail to live up to our principles. I experienced this firsthand in Iraq when interrogating high-ranking members of Al Qaida, some of whom decided to cooperate simply because I treated them with respect and civility.

The former vice president is confusing harshness with effectiveness. An effective interrogation is one that yields useful, accurate intelligence, not one that is harsh. It speaks to a fundamental misunderstanding of interrogations, the goal of which is not to coerce information from a prisoner, but to convince a prisoner to cooperate.

Finally, the point that is most absent is that our greatest success in this conflict was achieved without torture or abuse. My interrogation team found Abu Musab Al Zarqawi, the former leader of Al Qaida in Iraq and murderer of tens of thousands. We did this using relationship-building approaches and non-coercive law enforcement techniques. These worked to great effect on the most hardened members of Al Qaida -- spiritual leaders who had been behind the waves of suicide bombers and, hence, the sectarian violence that swept across Iraq. We convinced them to cooperate by applying our intellect. In essence, we worked smarter, not harsher.

Monday, May 25, 2009

Bush's end-times influences?

Interesting story by Clive Anderson of CounterPunch (http://www.alternet.org/politics/140221/bush%27s_shocking_biblical_prophecy_emerges%3A_god_wants_to_%22erase%22_mid-east_enemies_%22before_a_new_age_begins%22/), alleging that much of former President George W. Bush's decision-making with regards to the invasion of Iraq was motivated by a hard-right Christian biblical interpretation. I tend to take stories like this with a grain of salt, as lots of lefty 'blog posts will work pretty hard to reduce Bush to a cartoon character.

Having said that, between the story's verification from French President Jacques Chirac, and the story of the Bible verses on the cover of the daily briefings from the Secretary of Defense as a means to appeal to the President, there may be some fire associated with this particlar smoke. Worth reading, to be sure.

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The revelation this month in GQ Magazine that Donald Rumsfeld as Defense Secretary embellished top-secret wartime memos with quotations from the Bible prompts a question. Why did he believe he could influence President Bush by that means?

The answer may lie in an alarming story about George Bush's Christian millenarian beliefs that has yet to come to light.

In 2003 while lobbying leaders to put together the Coalition of the Willing, President Bush spoke to France's President Jacques Chirac. Bush wove a story about how the Biblical creatures Gog and Magog were at work in the Middle East and how they must be defeated.

In Genesis and Ezekiel Gog and Magog are forces of the Apocalypse who are prophesied to come out of the north and destroy Israel unless stopped. The Book of Revelation took up the Old Testament prophesy:

"And when the thousand years are expired, Satan shall be loosed out of his prison, And shall go out to deceive the nations which are in the four quarters of the earth, Gog and Magog, to gather them together to battle and fire came down from God out of heaven, and devoured them."

Bush believed the time had now come for that battle, telling Chirac:

"This confrontation is willed by God, who wants to use this conflict to erase his people's enemies before a New Age begins".

The story of the conversation emerged only because the Elyse Palace, baffled by Bush's words, sought advice from Thomas Romer, a professor of theology at the University of Lausanne. Four years later, Romer gave an account in the September 2007 issue of the university's review, Allez savoir. The article apparently went unnoticed, although it was referred to in a French newspaper.

The story has now been confirmed by Chirac himself in a new book, published in France in March, by journalist Jean Claude Maurice. Chirac is said to have been stupefied and disturbed by Bush's invocation of Biblical prophesy to justify the war in Iraq and "wondered how someone could be so superficial and fanatical in their beliefs".

In the same year he spoke to Chirac, Bush had reportedly said to the Palestinian foreign minister that he was on "a mission from God" in launching the invasions of Iraq and Afghanistan and was receiving commands from the Lord.

There can be little doubt now that President Bush's reason for launching the war in Iraq was, for him, fundamentally religious. He was driven by his belief that the attack on Saddam's Iraq was the fulfilment of a Biblical prophesy in which he had been chosen to serve as the instrument of the Lord.

Many thousands of Americans and Iraqis have died in the campaign to defeat Gog and Magog. That the US President saw himself as the vehicle of God whose duty was to prevent the Apocalypse can only inflame suspicions across the Middle East that the United States is on a crusade against Islam.

There is a curious coda to this story. While a senior at Yale University George W. Bush was a member of the exclusive and secretive Skull & Bones society. His father, George H.W. Bush had also been a "Bonesman", as indeed had his father. Skull & Bones' initiates are assigned or take on nicknames. And what was George Bush Senior's nickname? "Magog".

Wednesday, May 20, 2009

Cheney's third term

Ordinarly, I wouldn't reprint something from Maureen Dowd of the New York Times (http://www.nytimes.com/2009/05/20/opinion/20dowd.html?_r=1&partner=rss&emc=rss), but this piece does such a good job of capturing my current frustration with Obama and the Democrats in Congress that I couldn't help myself. Some of the conclusions are a little sweeping and unfair, but the basic premise is sound. Obama and the Democrats are caving (some more than others) to the naked fear-mongering from former Vice President Dick Cheney and company.

The vote to deny funding to close Guantanamo is the worst example. It's being done out of fear of "releasing terrorists onto American soil," as if the idea wasn't to house them in prisons. And as if these Gitmo detainees are some supervillains whose evil powers can only be restrained by the magic of the warm tropical breezes and waterboards at Guantanamo.

Obama's capitulation on the torture photos isn't as bad, but its' close. It is frustrating - but highlights the need for the left side of the political spectrum to keep the pressure up in opposition to Fox and Friends.

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OP-ED COLUMNIST
Cheney Grabs a Third Term
By MAUREEN DOWD
Published: May 19, 2009
WASHINGTON

It isn’t so much that Dick and Rummy are back. It’s that they never left.

They had no intention of turning America’s national security over to the Boy Wonder. The two best infighters in Washington history weren’t yielding turf to a bunch of peach-fuzz pinkos who side with terrorists.

Let W. work out at the S.M.U. gym in Dallas, waiting for history to redeem him; Dick and Rummy are leaning forward into history, as they always do. Cheney is tawny with TV makeup; there’s no point taking it off. The gigs are nonstop, and he has a big Obama-bashing speech Thursday at the American Enterprise Institute.

“That was funny when you were on Fox and Neil Cavuto called you Obama’s ‘ball and Cheney,’ ” Rummy grins, taking a gulp of his brunello.

Dick grunts, raising a fork of his Risotto Gucci with roasted free-range quail.

“The punks thought they could roll over us,” Vice mutters. “Nobody puts Baby in a corner.”

Eyeing the quail, Rummy shakes his head. “Can you believe the nerve of that dadburn whippersnapper at the press dinner, saying your memoir would be called ‘How to Shoot Friends and Interrogate People?’ Whatever happened to the great White House tradition of giving respect to your predecessors?”

Dick is looking over at himself on the TV behind the bar, where Fox is doing a segment about how Republicans on the Sunday talk shows praised him for his shock-and-awe campaign against Obama.

“I can’t believe how easy it was to bring Obama into line,” Rummy says, gnawing on Gorgonzola. “We wouldn’t have needed waterboarding if everybody cracked like a peanut. It was even easier than getting the bit into Junior’s mouth. Way simpler than if we’d had to contend with McCain. In the end, the right guy won.”

Dick is surprised, too, but who can tell?

“You’re running national security now and everyone knows it,” Rummy says. “You got Obama to do an about-face on the torture photos. He’s using our old line about how it would endanger the troops. He’s keeping our military tribunals. His Justice Department invoked our state secrets privilege to try to get that lawsuit on torture and rendition dismissed. He’s trying to stop any sort of truth commission, thank goodness. He’s got his own surge going in Afghanistan. He’s withdrawing from Iraq more slowly. He’s extended our secret incursions over the Afghan border into Pakistan.”

Dick smiles on one side of his face.

“Transparency bites,” he snarls.

“By golly, yes,” Rummy says. “We controlled Junior by playing on his fear of looking like a wimp just as his dad did. And now we’re controlling Boy Wonder by playing on his eagerness to show that the Democrats are tough on national security. He’s a sucker for four-star generals, can’t resist anyone in uniform. Petraeus and Odierno speak and he jumps. If we want to roll him, we just send in the military brass flashing their medals.”

Rummy knocks back some more brunello, and shoos away some Japanese tourists after confiscating their cameras.

“I hear Poppy Bush is furious at you,” he says. “He’s telling folks he put Junior in your care and you stole his presidency and destroyed the Bush name and derailed Jeb’s chances to ever be president, and P.S., you wrecked the country and the Atlantic alliance to boot. He has it in for Lynne, too. Thinks she spun you up, like she did in high school with her flaming batons. He thinks you got loopy from all the heart procedures. And Colin’s mad at you.”

“He can go to yoga with Pelosi for all I care,” Dick growls.

The two old connivers clink glasses. “So,” Rummy muses, “what do we make our new White House boy toy do next?”

“Well,” Dick says. “He’s got to keep Gitmo open. It’s rich that his own party won’t give him the money to close it. The NIMBY factor works every time — no terrorists in my backyard. He’s got to stop this pansy diplomacy with Muslim nations. He’s got to let Bibi take out those Iranian centrifuges. He’s got to stop his Kodak moments and Commie book club with Hugo Ch├ívez. He’s got to release those C.I.A. memos proving that we were right to rip up the Constitution. And, of course, he’s got to pardon Scooter.”

“Can we get him to do all that, Dick?”

Dick twinkles. “Yes, we can.”

LTG 05-13-09: Keller v. EA

From the Omaha CityWeekly, week of May 13, 2009.

http://omahacityweekly.com/article/2009/05/13/law-talking-guy

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Sam Keller’s Hail Mary

By: Patrick Runge
Issue: May 13, 2009


Sam Keller, Nebraska’s starting quarterback in the 2007 season, wanted to strike fear in the hearts of opposing defenses. Now, he’s striking fear into the hearts of video game fans throughout the country. Keller has filed suit against Electronic Arts (EA), maker of the wildly popular NCAA Football video game series.

For those of you not familiar, EA makes a series of college football video games, which bill themselves as an authentic college football experience. The names and logos of the teams are licensed from the National Collegiate Athletic Association (NCAA). Further, EA goes to great lengths to simulate the rosters of each team as close as possible to their real-life counterparts without actually using the players’ names.

Keller is claiming, for himself and any other athletes in the same position, that EA is using his likeness without his permission to make money, and therefore Keller should receive a portion of those profits. The legal theory he is pursuing is called a “right of publicity,” meaning basically that you have the right to control how your image is used by other people.

Generally, to be successful in these types of cases, a plaintiff like Keller would have to prove that his “image or likeness” was used to someone else’s advantage, that he did not agree to the use of that image, and what damages he suffered as a result.

This is a unique case, to be sure. It’s been decided already that a replica college football jersey with a player’s number (but not name) on it does not violate that player’s right of publicity. Sure, if you buy a No. 5 Virginia Tech jersey, you know it’s Tyrod Taylor’s number, but that’s not a close enough link to let Taylor win a lawsuit against the jersey’s manufacturers.

You’re also stuck with a God-awful maroon and orange shirt, but that’s your problem.

The simulated players in EA’s games, however, go beyond just the player numbers. While there are no actual pictures of the player’s faces, their height, weight, uniform style, hometown and almost every other identifier other than name are reproduced in the game. Keller is claiming that all these added details mean that the simulation has crossed the line into a “likeness” of the player, and therefore prevent EA from using the image without the player’s permission.

Now, this is the point where I could be snarky and say that EA’s version of Keller couldn’t be a likeness because when I played the game, Keller’s simulated player could complete a pass over 20 yards and actually won a few clutch games, as opposed to the real-life version. But I won’t, because I actually think Keller got a raw deal from then-coach Bill Callahan and I respect how Keller handled himself during that season.

But even though I think his case isn’t the strongest, let’s concede the point that the video game version of Keller is indeed a “likeness” of Keller for purposes of the law. Even if he wins on that ground, I don’t think he’s going to be successful.

The sticking point I see is the last element, the requirement to prove damages. In addition to all the factual questions, Keller is going to have to prove how he was harmed by EA’s “illegal” use of his likeness.

Now, keep in mind, the only reason EA would want to use his likeness is if he was playing for a Division I NCAA football team. NCAA athletes have to maintain their amateur status to remain eligible to compete in NCAA-sanctioned activities, and one thing that could end that eligibility is if a player received money for the use of their likeness.

That puts Keller in a very challenging catch-22. Keller’s status as an NCAA athlete means that he was prohibited from receiving any monetary benefit for the use of his likeness – and the lost monetary benefit for the use of his likeness is exactly what he would have to prove to determine what damages he would receive from EA. On the flip side, if he did sign a contract to receive payment for the use of his likeness, then he wouldn’t be NCAA-eligible, and EA would therefore have no interest in the use of his likeness.

So, even if Keller or any other NCAA athlete is able to prove the other elements of their lawsuit, the athletes by definition could not receive any damages. The best they could hope for would be an injunction, meaning an order from the court prohibiting EA from using their likeness in any future games.

Now, I will admit my bias in this case. I’m an avid player of EA’s NCAA series of games, and I would be really sad if they couldn’t make the game as realistic as they do. But leaving that bias aside as much as possible, I think Keller’s likelihood of success is pretty small.

Or, to make a football analogy, I think this is a hail-mary pass for Keller. If so, rest easy fellow gamers. Watching Keller at Nebraska, you know how well (or not so well) he did with those.

Patrick Runge has practiced law in the Omaha area since earning his degree from Creighton University in 1994. He has also written for the Omaha Pulp, Millard Avenues and UNO’s Gateway. E-mail him at thelawtalkingguy@gmail.com.