No Intent, No Torture

Andy McCarthy points out that Eric Holder's Justice Department is using the same "no intent, no torture" argument accepted by a Federal Court (Pierre v. Attorney General) and employed in the infamous OLC 'torture' memos.

Hmm.  I doubt Holder will be pursuing his own indictment or disbarment.

Background on the Pierre case is here.

Comments

[Ouch!]

Now, I also think you can take 'no intent, no torture' too far. It can sure excuse a lot of 'accidents'.

[Cecil Turner]

Sweet. This one from yesterday afternoon is even better:

As Jan Crawford Greenburg reports at her ABC News blog, Legalities, the Justice Department's Office of Professional Responsibility — by playing partisan politics — has blown the critical filing deadline for referring Prof. Yoo for professional sanctions.

After all the foofraw about "politicizing" Justice (by trying to hire half righties in the incoming group), it's hilarious to see the resident lefties backstabbing themselves through incompetence.

It can sure excuse a lot of 'accidents'.

But, as Greenburg pointed out in the link above, it's more than a bit difficult to blame the lawyers for such an "accident" . . . and of course, "The Won" has promised no prosecution of the actual "hands-on" bubbas. Which is yet another illustration that the faux outrage is driven by politics, not principle.

[Jane]

They really are stunningly incompetent. That of course makes them even more dangerous.

[Pofarmer]

They really are stunningly incompetent. That of course makes them even more dangerous.

Sometimes it's fun to watch incompetent people doing dangerous things----from a distance.

[Pofarmer]

From Bloomberg.

"U.S. Home Prices May Be Lost for a Generation: John F. Wasik"

LUN

[Thomas Collins]

I think clarice's analysis on a prior thread is being confirmed. With her permission (actually, I guess it is before having asked for her permission), I am reprinting an extract.

"[T]here will be no referral to any bar associations for discipline..If there is , how convenient, that this brief by the DoJ is so on point and compels a rejection of any complaint."

Expiration of the period for bar association action just helps along the desire by Obama to let this kerfuffle wither. After all, Obama by now has obtained whatever political benefit he can obtain by trashing the Bush folks on this issue.

[Appalled]

A few alternate thoughts. (Which I am proposing with the full knowledge that folks will be taking aim at them.)

1. With reaspect to Cecil Turner's comment, the inability to prosecute disbarrment cases could be an intentional "oops" on somebody's part. There seems no great desire on the administration's part to prosecute these charges, but there is a fairly significant desire for folks to get their "it's torture!" opinions out there. What is see with Obama is a desire to pacify the parts of his coalition that wants Bush, et al charged with war crimes, while at the same time not generating the huge political food fight such an undertaking would create. A recommendation of "really bad stuff should happen" to the writers of the memos, coupled with a "but, alas, the statute of limitations has expired -- darn that W!" would be consistant with the administration's apparent desires.

2. McCarthy's article is interesting, but I wonder whether the Yoo memos are distinguishable from the cases decribed in it. The memos themselves were designed to give legal cover to certain interrogation techniques. If there are e-mails or other documentation in the files indicating "we really want to test the limits here" or "we have to get this information -- make it right", then one could construe that there was an intention to inflict pain on Al Qaeda sorts.

Nevertheless, it's nice to see the Justice Department advance arguments that look to be a nifty defense of rendition.

3. OK, how do I feel about this? Obama changed the policy back in January. Things were different in 2002 -- it looked like another spectacular attack was a matter of days or weeks. The folks who are now being scrutinized had a job of keeping the country safe, which they had to balance against other demands. They may have streched the law.

But -- holding people "accountable" for something you are not going to seriously prosecute, or allow to be defended appropriately violates our system of justice more significantly than what the enhanced interrogation techniques may have done.

[bad]

Great link Cecil. What a bunch of courageous troof speakers. I'm sure they'll get around to it.

[Appalled]

Um -- I see my point 1 could have been stated as 'what Thomas Collins and clarice said"

[Pofarmer]

After all, Obama by now has obtained whatever political benefit he can obtain by trashing the Bush folks on this issue.

Actually not, this keeps the issue brewing forever, politically speaking. I fully expect it to be brought up again, and again, and again.

[clarice]

Great link, Cecil.
I knew the Civil Rights Division was left wing. Heck they had a direct line to the front page of the WaPo where they treated every change in focus as a return of slavery, but didn't know about OPR which after all is the office to whom I had to file my ethics complaint against Fitzgerald.

[Joan]

Besides being stunningly and/or appallingly incompetent, the left is vicious and clings like slime to evil. They will use any weapon to destroy an oppponent. They wallow in cynicism and hypocrisy. They lie with twisted smiles on their faces and a dagger in honest men's hearts.

Can't stand them.

[Rick Ballard]

Appalled,

I'm glad you commented. I believe your statement:

But -- holding people "accountable" for something you are not going to seriously prosecute, or allow to be defended appropriately violates our system of justice more significantly than what the enhanced interrogation techniques may have done.

to be entirely correct.

I have no expectations regarding the consistency or consonance of word and deed on the part of any of the (D)irty Fascists but I'm rather pleased to see "moderates" tasting vomit as they watch these curs in action. It's a start.

[Danube of Thought]

Well, I have a confession to make. I read Prof. Volokh's poll question, and after a lot of thought I voted "my politics are center-right and I would allow him to stay."

Maybe if I'd thought about it longer I'd have come out a different way. I dunno...

[Cecil Turner]

If there are e-mails or other documentation in the files indicating "we really want to test the limits here" or "we have to get this information -- make it right", then one could construe that there was an intention to inflict pain on Al Qaeda sorts.

An intent by a lawyer to inflict pain through somebody else? The only thing being tortured here (beyond my sensibilities) is logic. And again, we're back to the hands-on folks at CIA, who are apparently above this particular law in any event.

Obama changed the policy back in January.

Well, sort of. He's basically said we won't waterboard, which isn't new . . . and from what Panetta said on the subject, it looks more like a case of doing whatever on an ad hoc basis:

"If I had a ticking bomb situation and obviously whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need," Panetta told the senators.

There's a lot of change in the form, but the substance . . .

[Danube of Thought]

I'm not sure that the requirement of specific intent can be met without a showing that the defendant intended that the alleged torture be inflicted on a particular individual. Simply writing a legal opinion saying that (for example) "I think the law permits our guys to use thumbscrews" might not make it.

What do you folks think?

[fdcol63]

Despots and tyrants never just suddenly materialize out of thin air, from nothing.

They are usually elected as "saviors" or seize power with the good intentions of "saving" their country and people from their problems, but then incrementally gain and usurp power as the people fail to stop them at each step along the way.

Obama's cult of personality and the adolation he enjoys among the Democratic-controlled Congress and liberal media - the institutions that we should be able to rely on to challenge and check any president's power - are especially frightening in this regard.

[Appalled]

Cecil:

I am not an expert in the law in this area. But, if the idea for the memos was simply to provide cover for the intentional inflciting of pain in violation of the law, then it is a different situation than simply deporting someone to a country where they might suffer pain.

Note -- I'm not saying that was the intent of the memos. I am simply speculating because we do not have the reports -- just the leaks.

As for your second point, I'm not going to argue it. If 9-11 were to repeat, any Al Qaeda sorts we caught would receive the same (or worse) treatment as KSM.

[Appalled]

To clarify, I am speculating on the arguments in the reports. I am NOT imputing those motives to Woo, et al.

[RichatUF]

Appalled-

Obama is going to outsource it because they are far too cowardly to make the yes or no decision themselves. Leadership is alot more than caving to radical elements of his political coalition in a weaselly, faux Solomonic decision, which satisfies no one, but hurts the country plenty.

Madness! Madness! Ridiculous! For the last couple of weeks, they puffed it up to the moral and existential crisis of our time and Obama and Holder are voting present and above their paygrade.

[Cecil Turner]

But, if the idea for the memos was simply to provide cover for the intentional inflciting of pain . . .

But the intent surely has to be from the person inflicting the pain . . . not the lawyer writing the memo. So again, this just doesn't answer the mail . . . unless there's some move afoot to investigate CIA interrogators (which everyone seems to agree there isn't).

[Ignatz]

-If 9-11 were to repeat, any Al Qaeda sorts we caught would receive the same (or worse) treatment as KSM.-

The difference of course being that no succeeding Republican administration would go about threatening prosecutions, publicly smearing and ridiculing or compromising national security to conduct the threats and smears against their political opponents.

[Danube of Thought]

What's the statute of limitations on what the CIA guys did? I'd be surprised if it hadn't run out a while back, if it's true that none of this stuff went on after 2003. (Of course, there' no limitation period for "investigations," but I suspect prosecutions are off the table by now no matter what Obama or Holder ultimately decides.

[bad]

I keep assuring the lefties at Tapper that the administration is gonna do whatever it takes to get info in the ticking bomb scenario. But I do wonder if now they have more incentive to do so, because if they don't and something happens, the CIA will leak that info.

[Original MikeS]

When lawyers are consulted prior to bombing certain targets, the lawyers aren't accused of trying to "give cover" to the military.

When battle field rules of engagement are authored, the assumption is not that the purpose is to "give cover", but rather to inform the rank and file of what they can or cannot do.

Concerning the treatment and interrogation of enemy combatants it seems appropriate for lay people to ask for legal advice. How is it fair to refer to the advice as giving legal cover?

[RichatUF]

bad-

The Obama Administration won't and they'll discover that getting the information through an Egyptian Mukhabarat filter might turn out to not be all that useful, much like the 98 or 01 PDB.

[Charlie (Colorado)]

The memos themselves were designed to give legal cover to certain interrogation techniques. If there are e-mails or other documentation in the files indicating "we really want to test the limits here" or "we have to get this information -- make it right", then one could construe that there was an intention to inflict pain on Al Qaeda sorts.

Okay, I'm puzzled. How exactly do you intend to distinguish between "we need to know what the exact legal limits are so we can interrogate people as firmly as possible without going over those limits" and "we need to know what the exact legal limits are so we have an opinion on which to be able to say we didn't exceed the limits"?

As others have pointed out, if we start disbarring lawyers for writing opinions estabishing how far a client can pursue a particular course of action while remaining within the law, neither of the remaining lawyers in the US will be able to handle the caseload. And the judgeships, top to bottom, will be empty, since directly after issuing their first opinion the judges will be disbarred too.

Also, I'm sure it was unintentional, but you lowered the bar a good bit there: The definition in the UN Conventino is "severe pain or suffering, whether physical or mental". Take out "severe" and you have a whole new ball game.

[Appalled]

Cecil:

Imagine this fictional scenario.

DICK CHENEY: Dammit, Woo, this memo won't do! We've got to have that information, and the only way to get it is through waterboarding.

WOO: Sir, there is clear precedent...

DICK CHENEY: You're a lawyer! Figure it out! I'm not going to have patriotic people tying to keep this country safe at risk! We need a memo. You write it, like you know how to do.

Now I realize this reads like the script to a bad TV movie, and I can't imagine anything like this happened.I just want to illustrate, in bald terms, the likely theory being persued. Which is that the lawyers wrote the memos to authorize techniques they knew to be illegal in order to provide cover to CIA interrogatoras who were acting under orders from political officials.

That theory, however inaccurate it may or may not be, seems different than a perfectly legal deportation, where the infliction of pain is merely the incidental result of an expulsion that is mandated under US law.

[verner]

Bad, of course they'll do whatever it takes. Only from now on, they won't bother with an OLC memo, they won't stop at waterbording, and when they're done, they'll cremate what's left and throw the ashes into the pacific.

Unintended consequences are a b word.

[Cecil Turner]

How is it fair to refer to the advice as giving legal cover?

Especially whilst simultaneously asserting the actual implementers are blameless. It's reminiscent of BG Karpinski's argument that the Abu Ghraib abuse was somehow ordered from above, skipped her in the chain of command, and was then carried out by her subordinates. Or John Kerry's allegations of free fire zones causing wartime atrocities that somehow weren't the fault of the people carrying them out. It's farcical.

There are plausible scenarios in which both the interrogators and lawyers could be guilty of torture, or where the interrogators were guilty and the lawyers blameless . . . but there is simply no way the laywers can be guilty of torture if the interrogators are not.

[Charlie (Colorado)]

"U.S. Home Prices May Be Lost for a Generation: John F. Wasik"

Translation: "Now that the bubble has burst, it will take time before home prices return to mid-bubble levels."

Of course, if you said it that way, people wouldn't be linking the story.

[Charlie (Colorado)]

I'm seriously thinking of extending the idea I did in my PJM piece on the flu panic into a book or long essay, working title "Panic Pays".

What do you all think?

[Charlie (Colorado)]

That theory, however inaccurate it may or may not be, seems different than a perfectly legal deportation, where the infliction of pain is merely the incidental result of an expulsion that is mandated under US law.

But call it "rendition" and do it in a Republican administration, and it's a war crime and the subjuct of extensive angst and a Hollywood movie.

[Appalled]

Charlie:

Fair point on "severe". I was not trying to lower the bar. And I think you raise the whole problem with the line of inquiry being persued. The only way I think sanctions would be justified was if there were proof that the memo did not reflect the actual beliefs of the attorney writing them. For that, you'd need an earlier draft reaching a different conclusion, or e-mails from others dictating a conclusion to be reached.

[RichatUF]

ION-The Obama Administration is pointing at an ant while the elephant is standing on your foot. Yep, he'll go "line by line" in the budget for about 17 billion in cuts (wonder if the $8 billion for ACORN will come under scrunity) and "worry" over the deficit. I'll see if I can find the transcript of his remarks.

But he has found a program he wants to cut, just like he said and the idiots in the state didn't believe-NASA's Constellation to replace the shuttle.

[Cecil Turner]

Which is that the lawyers wrote the memos to authorize techniques they knew to be illegal in order to provide cover to CIA interrogatoras who were acting under orders from political officials.

It could be plausible if we first assume the CIA interrogators were intentionally torturing their victims (and the memos were crafted on "how to get away with it"). Otherwise not. But a casual read of the memos suggests that's not the case, as they rather explicitly link their approval to various conditions (e.g., about the veracity of the assumptions they've been given, the descriptions of the techniques, etc.). Moreover, their analysis appears to me to be correct, at least for the most part. One could argue whether waterboarding went over the line--especially if used for prolonged periods--but the lawyers' contention that the line was in that general vicinity seems pretty hard to dispute. (And I find it vastly amusing that the main outcome of this hand-wringing appears to be the termination of waterboarding at SERE school.)

[Danube of Thought]

Seems to me that even if the D.C. bar rules allow it to proceed against Yoo, it doesn't have any significant remedies available to it. It can't disbar a guy who's not admitted there in the first place.

[clarice]

Charlie, What an interesting notion. Go for it! Alicia Colon had a piece with a similar theme in yesterday's AT. With your background you could do the subject well.

[Appalled]

Cecil:

I don't think Obama has argued that the CIA foks did not possibly commit crimes. He just said he was not going to prosecute them for it. (Lovely distinction, that)

[Pofarmer]

"U.S. Home Prices May Be Lost for a Generation: John F. Wasik"

Translation: "Now that the bubble has burst, it will take time before home prices return to mid-bubble levels."

Of course, if you said it that way, people wouldn't be linking the story.

Except, the tenor of the story is that home prices haven't quit going down yet, let alone started to recover.

[RichatUF]

Here's a link for my ION comment.

Now back to the regularly scheduled "torture" thread.

[bad]

I'd buy it Chaco...if it were written. So get to work.

[Original MikeS]

In a country where the accused is presumed innocent, it seems inappropriate to fantasize that someone wanted to break the law, so they sought legal advice from attorneys who also wanted them to break the law. Especially, since a great many people seems to believe that the advice given was the correct advice.

These fictional accounts about ways that innocent people might be prosecuted for fictional crimes are something we ought to be confronting rather than creating.

[RichatUF]

I lied-more torture-Bernanke's speech in Chicago today.

Now I'll stop torturing the thread.

[clarice]

I think it's time this administration start investigating itself--the leaks about the draft of this teport and the stress test have got to violate some bigtime laws themselves.

[fdcol63]

I just find it scary that the same people who support and allow this - http://www.nrlc.org/ABORTION/pba/diagram.html - can get so incensed at waterboarding.

Bizarro World, indeed.

[bad]

Investigate themselves.....

Ha! Those jokers are already so delusionally into themselves that more self observation would just yield more satisfaction with themselves.

[Charlie (Colorado)]

Heh. Today's NYT has an Introduction to Manure.

Boy, do those guys need to get out of town more.

[Rick Ballard]

"Except, the tenor of the story is that home prices haven't quit going down yet, let alone started to recover."

True, but the "tenor" is crap. Note that both Case-Shiller and Radar don't have a single MSA in the strongest housing market - The Republic of Texas. California turned up back in September and hasn't stopped.

The author of that piece is peddling the "empty houses" meme, the "factual basis" for the coming 3BR 2BA reparations grab. There really are a lot of vacant houses in the Blue Hell cesspools. No surprise there.

[Cecil Turner]

I don't think Obama has argued that the CIA foks did not possibly commit crimes. He just said he was not going to prosecute them for it.

Those going after the lawyers must first admit the CIA interrogators tortured--or admit they're flaming hypocrites. Won't hold my breath on either.

[Charlie (Colorado)]

By golly, here's another one.

Drudge headline: "NUMBER OF UNEMPLOYED GETTING BENEFITS CLIMBS TO RECORD..."

Story hed: "New US jobless claims plunge, retail sales improve"

Reality: biggest population ever × middling-bad employment = biggest number of unemployed ever.

[pagar]

Could be O/T. But it sure sounds like torture to me.

On the morning of the murder, Daczewitz spent almost three hours "kicking and beating on the cell door, crying, begging, pleading to be taken out,"

[clarice]

While you were there charlie, did you notice Mass. is giving cars and AAA cards to welfare recipients?

[Old Lurker]

"What do you all think?"

Sure it pays, Charlie. Then we can help you get a job co-hosting on Fox with Shep Smith. Do you do storms? Car chases? Kidnappings? Can you learn?

[Jane]

While you were there charlie, did you notice Mass. is giving cars and AAA cards to welfare recipients?

I gotta find that story!

[Cecil Turner]

OT, but this is priceless:

President Obama has said for weeks that his staff is scouring the federal budget, "line by line," for savings. Today, they will release the results: a plan to trim 121 programs by $17 billion, a tiny fraction of next year's $3.4 trillion budget.

Okay, a little bit of apples and oranges, but by his Administration's own (under)estimate, the current year's deficit will be $1.75 trillion. He's going to save less than 1% of that by disproportionately cutting defense spending (big surprise there, eh?).

[PD]

Reminder: Mark Steyn guest hosting on Rush today.

[Jane]

Okay, I'm going on welfare. I can't afford not to.

[Old Lurker]

So Obama submits the details of his $3.6T budget, and ALL the press coverage (even WSJ) spends their ink on how he proposes to cut $17B of existing programs. And how his words say "we have to stop living beyond our means"...so the muddle will absolutely get the message that he has fixed things!

Disgusting (both what he's doing, and what the media is not doing).

More notable, breathtaking actually, is how this budget represents 26% of even his optimistic GDP, a quite significant increase in the baseline. (Add off budget spending by the feds to the other spending by State & Local governments, and the good old days of having our govt(s) cost about 33% of GDP are long gone. And the reports are equally silent on the amount of this that will have to be borrowed, and what the implications of that are.

Welcome to France.

[Mark]

The premise of 2002 Bybee 1 memo was that it was not torture if harmless, and because waterboarding (as described to Yoo) was harmless, therefore it was not torture.

I think the issue they were faced with was the reality of waterboarding as employed on the terrorists. It may have been "painless" or "harmless" in SERE school, but the Bradbury 2005 memo makes it clear that there were safety issues- Bradbury notes that the CIA docs (OMS) got involved by December 2004 (after all the waterboarding completed) and said a doctor and tracheotomy kit had to be available in the room with waterboarding.

Also, Bradbury 2005 has a footnote that came from the CIA IG report as such:

"In our limited experience, extensive use of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness. An unresponsive subject should be righted immediately and the interrogator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required. Any subject who has reached this degree of compromise is not [redacted]."

Their "limited experience" of "extensive waterboarding" was Zubaydah, al Nashiri and KSM.

Since KSM had a pulse oximeter on his finger during waterboarding, my guess is the Zubaydah or al-Nashiri waterboarding ended up with one of them needing medical intervention.

Near death by waterboard would make everyone in the CIA realize they were technically outside the OLC permission for "harmless" waterboarding.

Just speculation.
But the focus for the lefties is whether there were emails or memos that advised Yoo waterboarding was not safe before August 2002, a potential "good faith" liability. Because it apparently was not as harmless as initially described.

[Jane]

I wonder if Obama's aunt, living illegally in Boston, got an Escalade or a Volvo.

[bad]

Well, what incentive is there for someone with a free car to change a tire?

They got no skin in the game...

[Pofarmer]

Uhmmm, would we be talking THIS California?

You tube vid

LUN

[clarice]

pagar, what an awful story and unfortunately it's not unique. Whenever people joke about prison rape or having an inmate share a cell with a 400 pound sadist named Bubba I get furious.
Oddly, the lessening of restrictions in prisons and overcrowding put inmates at greater risk of harm from their fellow inmates.

[Pofarmer]

Drudge headline: "NUMBER OF UNEMPLOYED GETTING BENEFITS CLIMBS TO RECORD..."

Story hed: "New US jobless claims plunge, retail sales improve"

Reality: biggest population ever × middling-bad employment = biggest number of unemployed ever.

Yer lookin hard for them "Green Shoots".

"The advance number for seasonally adjusted insured unemployment during the week ending April 18 was 6,271,000, an increase of 133,000 from the preceding week's revised level of 6,138,000. "

So the RISE in the RISE in unemployment is varying.

Let the good times roll.

[Pofarmer]

From the Yahoo article

"More than 5 million jobs have vanished in the recession, and Federal Reserve Chairman Ben Bernanke on Tuesday predicted "further sizable job losses" in the coming months."

Ya think?

[cathyf]

Except, the tenor of the story is that home prices haven't quit going down yet, let alone started to recover. I've been trying to track down a link to a front-page USA Today story from a month or two back that had a graph which illustrated the housing bubble just perfectly. They should the median house price over a very long period (since WWII I think) corrected for inflation. It is basically a flat line with minor jiggles up and down until the beginning of the bubble when it spikes up sharply, then back down, and then the last year or so we are back along the same basically horizontal trend that we were pre-bubble.

What that graph shows is that we are only going back to the top of the bubble in two ways:

1) for real, if temporarily, through another housing bubble, which will be devastating for the economy; or,

2) nominally, through inflation, which will be the least part of the catastrophe if it's hyperinflation, but pretty trivial if it's over some long period of time, and proportionally more or less serious depending upon the time frame.

But, more importantly, what it shows is that the post-bubble valuations are right in line with the decades of pre-bubble valuations, and that, on average, the losses have not exceeded the gains. For people who did not buy or sell during the bubble, and also for people who sold and bought comparable properties at the same time during the bubble, they are basically in the same place that they would have been if the bubble had never happened.

The only really insane thing to do right now is to try to re-inflate the bubble. We need to find some way to shut up the idjits like Wasik who want to start with the assumption that there is something wrong with house prices being right on the same trend line that they have been for virtually all of the last 60 years.

[cathyf]

Whenever people joke about prison rape or having an inmate share a cell with a 400 pound sadist named Bubba I get furious.

Right -- they somehow never think that there is a problem with the notion that supplying Bubba with victims is "punishment" for Bubba's crimes.

[cathyf]

So Obama submits the details of his $3.6T budget, and ALL the press coverage (even WSJ) spends their ink on how he proposes to cut $17B of existing programs.

Hey, I think that's a bit of an exaggeration of the WSJ coverage. Right now on the front page it's:

New Initiatives Swamp Savings

Obama delivered Congress details of his $3.6 trillion budget, eliminating or cutting back 121 programs but swamping the $17 billion in savings with new efforts...

At a time when state and local governments are slashing services remorselessly, the Obama budget for 2010 shows little real sign of belt-tightening.

I think that qualifies as "damning with faint praise." Ok, it wasn't ignoring the trivial $17 billion entirely, which is what I would have wanted, but it's still pretty much a slam down.

[Charlie (Colorado)]

Yer lookin hard for them "Green Shoots".

Po, you're being an idiot again.

[Charlie (Colorado)]

We need to find some way to shut up the idjits like Wasik who want to start with the assumption that there is something wrong with house prices being right on the same trend line that they have been for virtually all of the last 60 years.

Exactly.

[bad]

Mark Steyn and I have been meandering in the fresh air and enjoying the intoxicating scent of gardenia and Madison jasmine, and of course, the joy of being together.

The Steyn flu goes straight to ones head.

sigh

[Charlie (Colorado)]

Po, that was basically a red herring since I was talking about the desire to write panicky headlines as a fault of media coverage, but just for completeness sake, you might see if you can explain how you think unemployment can go down without the rate of new unemplyment applications being reduced at some point.

[Charlie (Colorado)]

The Steyn flu goes straight to ones head.

I noticed the same thing with stein flu in Germany, during Oktoberfest and Fasnet.

[bad]

Mark could care less that my shoes cost less than $775 and best of all, he can't smell me. We've had a lot of rain and we're supposed to hit 90 degrees today so he really is blessed.

My protecter must have had a wild hunting night 'cause she is totally sacked out. No help today...

[Cecil Turner]

But the focus for the lefties is whether there were emails or memos that advised Yoo waterboarding was not safe before August 2002, a potential "good faith" liability.

How could they possibly know something before it happened? If the contention is that SERE waterboarding was safe but this was different, it's hard to see how they'd have evidence in advance of the application.

Because it apparently was not as harmless as initially described.

Seems to me there might be a little room between "harmless" and "not torture." Absent some evidence on the predicated near-death experience, the fact that CIA decided to take more medical precautions suggests more care, rather than intent to infict severe pain or suffering.

[fdcol63]

Personally, I hope the jihadists who were waterboarded at least THOUGHT they were going to die ... and were afraid, finally, of what the US would do to them.

Despite the hand-wringing of the Leftists about this, I have absolutely no worries that I am becoming as evil as KSM or the rest of his fellow travelers.

[fdcol63]

Ah! Fashing, Oktoberfest and New Year's in Munich.

Never walk into the Frauenkirche with a hangover just as the pipe organ starts to blow! LOL

[Pofarmer]

you might see if you can explain how you think unemployment can go down without the rate of new unemplyment applications being reduced at some point.

Exactly, and they ain't.

Cathyf

You're right about pre-bubble vs post bubble valuations and folks who set tight. The ones who may really be screwed are the ones who took out home equity lines at the height of the bubble. There's gonna be a whole lot of suburban subdivisions right now with negative valuations that won't come out of it for quite some time.

[Pofarmer]

Yer lookin hard for them "Green Shoots".

Po, you're being an idiot again.

The ones being idiots are the ones trying to bottom pick.

[Charlie (Colorado)]

"Exactly, and they ain't."

Earth to Po: 601,000 < 635,000

More from the AP:

The four-week moving average of initial jobless claims, which smooths out volatility, totaled 623,500 last week, a decrease of more than 30,000 from the high in early April. Goldman Sachs economists have said a decline of 30,000 to 40,000 in the four-week average is needed to signal a peak.

[Charlie (Colorado)]

The ones being idiots are the ones trying to bottom pick.

I'd say people who think 601,000 isn't less than 635,000 because it suits their apocalyptic world view are right up there.

[Charlie (Colorado)]

Personally, I hope the jihadists who were waterboarded at least THOUGHT they were going to die ... and were afraid, finally, of what the US would do to them.

Having a guy handy with a trach kit doesn't prove anything; you can bet that in SERE school there's a medic handy, and they always have a trach kit — which is, after all, nothing more than a sterile utility knife and a soda straw. But there's always the chance when doing this sort of thing of there being a laryngeal spasm. (Ask your dentist: I bet he has one handy as well.)

[Old Lurker]

OK you're right cathyf! A bit of exaggeration of the WSJ's budget coverage...I had started at WaPo, looked at a couple of thw wires and was in a foul mood when I got to WSJ. Still say the coverage is terrible.

Wow. Look at the 10yr Treasury rate today.

[cathyf]

Personally, I hope the jihadists who were waterboarded at least THOUGHT they were going to die ... and were afraid, finally, of what the US would do to them.

If you think about it, that's the whole point. These guys had spent years convincing themselves that all Americans are weak handwringers in awe of their toughness. That all it would take would be a few terrorist attacks and we would fold, face Mecca five times per day, and they would live in everlasting glory at Allah's right hand as the agents who converted 5 billion infidels. Instead they find themselves the guests of honor in a brilliantly conceived simulation of torture, where they know consciously that they are not being tortured, but their subconscious nervous system is still reacting fully as if they are.

And they know that it's all in their heads, and that the interrogators know that it's all in their heads. And that the interrogators are doing something too tough for them to endure, while remaining in full possession of that legendary American "wussiness" and daintily refraining from actually hurting them.

That is the underlying logic to the interrogation: "tell us about the plans you have made so that we can put a stop to them, because you were utter fools to think that the plans you have made will have any of the outcomes that you desire them to have." The core to this tactic is to teach the terrorists that they have been deluding themselves.

The fundamental action here was to teach the terrorists the truth and disabuse them of their delusions.

[Mark]

Cecil and Charlie:
Aside from the question of intent, the point of the Bybee 1 memo was to establish the definition of torture so that the CIA guys could avoid being charged with crimes. The problem is torture is hard to define, but John Yoo defined it anyway based on what he thought waterboarding was.

From Bybee 2:
"As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning -- even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm."
and
"The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain and suffering"."

This framework of "safe" waterboarding was established because John Yoo in Bybee 1 defined torture as based on medical statutes as:
"ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."

See what Yoo did?
He said torture was stuff you did that required medical intervention to keep the subject alive.

So if the terrorists end up getting boarded until they need medical intervention, the legal approval the CIA was working under is holey.

This is why Goldsmith pulled the Memos in 2004- because they did not properly cover the real life activity that took place, and further, if they needed to use the waterboard again, Bybee 1&2 had the practical waterboarding of terrorists sounding like "torture".

See, they were stuck with their own 2002 definition.

Yoo's defense will be that he had no idea waterboarding would be done outside how the SERE did it and how the CIA described it. This is the "Good faith" argument for his own CYA. But there is certainly historical evidence that water treatment can be used to cause death. The CI agents using the board more aggressively that SERE were doing so without legal coverage, but Obama has already said they will not be punished.

Yoo's only exposure, I think, is if someone shows an email from within the CIA or military saying waterboarding could kill. This is surely part of the reason why they did not get the CIA docs to review the enhanced techniques- too many too-smart bleeding hearts who write emails.

[Old Lurker]

Ten Yr Treasury at 3.3%, up more than 50% since the 2.1% December rate. Sounds like investors are reading those budget details.

[Fresh Air]

Mark--

All this stuff is counterfactual. No one in U.S. custody was harmed or killed by waterboarding. It never happened. Only (IIRC) 14 percent of the servicemen who underwent it experienced long-standing effects, all of which were mental. Causing mental anguish in a terrorist should not be high on our list of concerns.

[Mark]

Fresh Air:
SERE waterboarding is harmless. But terrorist waterboarding by the CIA or their contractors apparently is not. See Bradbury 2005 OLC memo, esp Page 15 footnote citing CIA IG report.

"Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness."

But for medical intervention, the terrorist would be dead. This does not bother ME, but Bybee 1 2002 would define this as torture.

See?

[JM Hanes]

Appalled:

"The only way I think sanctions would be justified was if there were proof that the memo did not reflect the actual beliefs of the attorney writing them."

Good grief! That's like saying that if a lawyer doesn't believe his client is innocent, he should be disbarred for defending him.

[fdcol63]

Geez, and here I thought the whole thing about playing "Devil's Advocate" - where you don't necessarily believe what you're debating or proposing or advising - was a critical element of the brainstorming / "what if" process where you're trying to cover all possible scenarios?

To hold people legally accountable for this would result in nothing more than rubberstamping whatever the "conventional wisdom" currently existed, as well as advisors too afraid to suggest anything new.

Ludicrous.

[pagar]

he proposes to cut $17B of existing programs

Its actions led to 929 convictions of corrupt union officials and to the recovery of more than $93 million on behalf of union members. Yet the Obama administration has proposed slashing its budget from $45 million in 2009 to $41 million in 2010, citing an insufficient "workload" for the office.

The message to crooked union bosses by the Obama administration is being delivered loudly and clearly: we've got your back.

If the convictions produced by a 45 million dollar budget equals 93 million dollars recovered; wouldn't it be logical to enlarge the program instead of cutting it?

[jimmyk]

Sounds like investors are reading those budget details.

It may be that. But those "green shoots" everyone is talking about could be leading the markets to think that the trough of the recession is in sight, in which case yields would rise, anticipating a return to normalcy. Still another possibility is that the markets are seeing the Fed's insane balance sheet and deducing the possibility of significant inflation down the road.

What we have here is the world ending in fire or in ice, but with some small possibility of escape in the middle.

[Appalled]

JMH:

Good grief! That's like saying that if a lawyer doesn't believe his client is innocent, he should be disbarred for defending him.

That's not the right comparison, for a number of reasons. One is that, if the attorney supported his client in something he knew (as opposed to suspected) to be a lie, he would be committing an ethical breach. The second is that the case you mention involves "facts", whicle the case at issue involves the "law". That's an important distinction.

In this case, I'd pay attention to Mark's posts, as he seems to have a better grip on the actual facts than I do.

[clarice]

Well, Mark, I recall from first year law school torts that there are cases where absolutely benign activities can have fatal consequences for some people with unknown health problems. That doesn't mean we charge with murder those people who go trick or treating as Big Bird at homes of people deathly afraid of birds.
I regard the the back up health provisions as simply good planning, not proof of torture.

[Ignatz]

-I'd pay attention to Mark's posts, as he seems to have a better grip on the actual facts than I do...-

Really. I'd say he has an excellent grasp of absolutist opinions masquerading as facts.

[Mark]

Clarice;
Doctors and trach kits would have been good planning. A dead terrorist on your hands would look bad, even if you could blame him for not disclosing his asthma.

But the Doctors and trach kits were not incorporated til after they were all done with waterboarding. That good planning was present in the 12/04 CIA OMS guidelines and 2005 CYA Bradbury memo.

Bybee 2 2002 specifically did not call for strict medical control because Bybee 1 had defined torture as an activity that could cause organ failure or death in the absence of medical intervention. Get it? Our OLC had stuck the CI guys with an arbitrary definition of torture, so they were compelled to waterboard without doctors as if it were as safe as SERE.

And I can tell you that they figured out pretty quickly that it was nothing like SERE. Ask why they only dunked al-Nashiri twice versus 83 times for AZ and 183 for KSM. al-Nashiri was boarded in December 2002, and the CIA IG inquiry started in Jan 2003. The interrogation taping stopped after al-Nashiri.

The biggest mistake the CIA made was asking for legal permission. The second biggest mistake was bringing whiny FBI agents onto the scene.

[boris]

"so they were compelled to waterboard without doctors as if it were as safe as SERE"

That comment is ridiculous on so many levels that your credibility on this subject is hopelessly shot.

[JM Hanes]

Appalled:

"supported his client in something he knew (as opposed to suspected) to be a lie."

Oh please. That loosey goosey language covers a myriad of sins. When a lawyer knowingly allows his client to commit perjury under oath, or suborns same, that's a serious breach.

Most people, however, call their lawyers because there is something they want to do accomplish, and they what to know how to do so legally, or because they want to make someone else do something, and want to know if they can use the law to compel compliance. If asking your lawyer to go back to the drawing board turns that totally pedestrian exercise into a criminal enterprise, then you can arrest me right now.

Since the Justice Department itself, has now actually taken the argument in question to court themselves, the idea that it even stretched the law at all let alone cynically stretched it to the point of falsification is what's utterly counterfactual here.

[Pofarmer]

I'd say people who think 601,000 isn't less than 635,000 because it suits their apocalyptic world view are right up there.

But, the total jobless numbers are still increasing, just at a decreasing rate, and, and, and, it's spring, unemployment ALWAYS decreases in the spring. We'll see if this follows the housing numbers with a short blip and then a steep downward return.