LFTC - Letter From The Capitol

LFTC - Index 5/29/09

2 posts: (1) Palestinian Gratitude--Us v. Them; (2) Denmark & Islam: An Observer's Account--Wobble Watch.

LFTC - Palestinian Gratitude

Here is a 2008 interview with an Israeli doctor that merits a full read.  But let me extract one tale that tells volumes about the people with whom President 44 wants Israel to sign a peace accord:

Gordon: There was an incident at a Beersheba Hospital involving a Palestinian woman terrorist who had received skin transplant treatments authorized by you. Could you describe that incident and what it illustrates about Israeli humanitarianism versus fanatic Islamic Jihadism?
 
Eldad: I was instrumental in establishing the Israeli National Skin Bank, which is the largest in the world. The National Skin Bank stores skin for every day needs as well as for war time or mass casualty situations. This skin bank is hosted at the Hadassah Ein Kerem University hospital in Jerusalem where I was the chairman of plastic surgery. This is how I was asked to supply skin for an Arab woman from Gaza, who was hospitalized in Soroka Hospital in Beersheba after her family burned her. Usually, such atrocities happen among Arab families when the women are suspected of having an affair. We supplied all the needed Homografts for her treatment. She was successfully treated by my friend and colleague Prof. Lior Rosenberg, and discharged to return to Gaza. She was invited for regular follow up visits to the outpatient clinic in Beersheba. One day she was caught at a border crossing wearing a suicide belt. She meant to explode herself in the outpatient clinic of the hospital where they saved her life. It seems that her family promised her that if she did that, they would forgive her.

LFTC - Denmark & Islam: An Observer's Account

Susan MacAllen lived in Denmark, and details how militant Islam has encroached upon Danish life, and the Danes are fighting back.

LFTC - Index 5/28/09

2 posts: (1) Housing's Charlie Brown Syndrome--The Home Front; (2) Economic Ill Auguries--The Home Front.

LFTC: Economic Ill Auguries

NY Post columnist John Crudele sees China as "bond vigilante" watching US debt mushroom.  Robert Samuelson adds his assessment of US debt risks.  National Journal's Clive Crook sees a spending cut/tax hike squeeze play on the way for America.  Author Amity Shlaes warns of the imminent pension crisis.  Another ill augury is that among the secured creditors Team Obama shafted in favor of its UAW pals were several state pension funds.

Had enough?  Try this 7-minute video clip titled "The Worst is Yet to Come" featuring a financial guy that tells us the banks are still leveraged 25:1 and that all auto companies are going bankrupt and Team 44 will bail out every union.  Add in that we have 8,000 banks and need perhaps 5,000.  Commercial real estate will crash 70 percent, with $27B debt worth $8B.  He sees a ten-year funk with a permanent drop in living standards for America.  Now try to sleep tonight.

LFTC - Housing's Charlie Brown Syndrome

Manhattan Institute scholar Steven Malanga calls "Obsessive Housing Disorder" the penchant for government to serially subsidize low-income housing ownership, leading to repeated bubbles and repeated crashes.  He offers an astonishing history dating back to Herbert Hoover and continuing today.  Basically, we subsidize home ownership as a part of the American Dream, and believe that people who are owners will be more likely to manage their property competently.  Politicians then push lending institutions to relax lending standards deemed unfair, r worse, in alter years, racist, etc.  Down-payments plummet, interest rates follow and, in worst case, as in 2004 - 2007, NINJA loans (No Income, No Job or Assets) are tossed out.  The Housing House of Cards then collapses, taking homeowners, lenders, owners of loan (mortgage) paper with it.  Read this brilliant historical exposition and analysis and weep.

LFTC - Index 5/27/09

2 posts: (1) Detainee Photos: 44 Can Stop It; Lincoln Would Have--The Home Front; (2) President Palin's First 100 Days!--The Home Front.

LFTC - Detainee Photos: 44 Can Stop It; Lincoln Would Have

Andy McCarthy offers a way out for President 44 re the detainee photos: issue an Executive Order classifying them as essential to national security.  Rich Lowry sees a hidden GOP mentor for 44 on the photos issue.

Here is official Lincolniana from the Civil War decisions he took to preserve the Union: (1) Executive Order dated April 27, 1861, suspending habeas corpus; (2) Executive Order No. 1 Relating to Political Prisoners, Feb. 14, 1862, listing extra-legal actions taken and reasons why; (3) Proclamation Suspending the Writ of Habeas Corpus, Sept. 24, 1862, also authorizing arrest and detention of draft-dodgers, and those suspected of treason or "other disloyalty."

Lincoln, as LFTC noted recently, also jailed Copperhead leader Cornelius Vallandigham in 1863, telling Congress, "Shall I shoot the simple soldier boy who deserts, while leaving untouched the hair of the wily agitator who induces him to desert?"

LFTC - President Palin's First 100 Days!

Victor Davis Hanson takes actual quotes & events from 44's first 100 and shows how the media likely would have portrayed them had Sarah Palin been sitting in the Oval Office.  Enjoy a few chuckles.

LFTC - Index 5/26/09

One post: The Law of Torture: Inconvenient Truths--The Home Front.

LFTC - The Law of Torture: Inconvenient Truths

Begin with Title 12 Code of Federal Regulations sec. 1208.18, the administrative rules governing implementation of the UN Convention against Torture, which are applied in proceedings deciding whether to deport those illegally here, who can stay here if they can show they will be tortured upon arrival in the destination country.  This sub-section of rules enacted pursuant to Congressional statute, is the fundamental legal source to which both the Bush and Obama Justice Departments turned in reaching their interpretation of "torture" under US law.

The first five elements of the Code section are key (underscores are mine):

(1) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

(2) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.

(3) Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.

(4) In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:

(i) The intentional infliction or threatened infliction of severe physical pain or suffering;

(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(iii) The threat of imminent death; or

(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.

(5) In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.

As the reader will discover below, Team Bush had one position, but Team Obama has two positions, inconsistently held: one for public consumption (broad & visceral) and one for filing briefs in court (narrow & clinical).  The latter must be considered their true legal--as distinguished from political--position.

Ex-Reagan Justice Dept. official Victoria Toensing explains exactly what defines torture under US law.  Her op-ed merits a careful read. but let me extract two key points:

1.  An interrogator must not merely knowingly inflict pain--he must intend to do so; intending to elicit information--even knowing pain is a by-product--does not suffice to qualify as torture:

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.

2  In ratifying the UN Convention against Torture, the US excepted war exigencies, something the convention itself doesn't recognize as an exception:

The treaty had a specific provision stating that nothing, not even war, justifies torture. Congress removed that provision when drafting the 1994 law against torture, thereby permitting someone accused of violating the statute to invoke the long-established defense of necessity.

Media coverage has ignored these points--to the detriment of public understanding.  What constitutes torture is not a personal sensitivity exercise; it is a carefully defined--narrowly defined--set of acts.  Andy McCarthy further refines VT's analysis, of what lawyers call mens rea (legalese for "guilty mind"), and notes that the Justice Department took the same position as Team Bush, in a recent brief it filed.  McCarthy quotes the relevant passage:

[T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.”  Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”) [my bold italics and brackets]. . . . 

McCarthy adds that a ruling cited above, the Pierre case, decided by the Third Circuit (the federal appeals court from which Justice Samuel Alito was plucked by President Bush), was based upon the identical view of specific intent taken by Team Bush--and written with full knowledge that Team Obama has officially retracted the Justice Department memos setting forth that view:

It is, moreover, highly significant that the Justice Department, in its Demjanjuk brief, so heavily relied on the Third Circuit’s Pierre case. Pierre was a decision of the entire Third Circuit federal appeals court sitting en banc (i.e., all 13 judges). The case involved a refugee under an order for deportation to his native Haiti for imprisonment. He fought removal under the CAT, claiming that, due to various maladies, he would suffer excruciating pain and die if sent to a Haitian jail, where he would unquestionably be denied necessary medical care. The Justice Department did not seriously dispute Pierre’s allegations. But it countered that, even assuming their validity, there could be no torture because a government official’s knowledge that an action, such as denying treatment, “might cause severe pain and suffering” is insufficient under governing law. To establish torture as a matter of law — as opposed to a matter of demagoguery — an additional showing of a deliberate purpose to cause severe pain and suffering is required.

By a whopping 10–3 margin, the Third Circuit judges agreed with that argument. The “knowledge that pain and suffering will be the certain outcome of conduct,” the Pierre majority held, was “not enough for a finding of specific intent” to torture — the exactingly high mental state prescribed in the CAT and the torture statute. To prove torture, it would be necessary for a prosecutor to show “the additional deliberate and conscious purpose of accomplishing” severe pain and suffering. Without an evil motive to torture the victim, there is no torture even if great pain and suffering result.

That this was the controversial Bybee/Yoo theory was not lost on the Pierre Court. The three minority judges pointed out that the majority was adopting it even though the Justice Department’s OLC, under new management in 2004, had withdrawn the 2002 Bybee/Yoo guidance. That point, however, only underscores the persuasiveness of the Bybee/Yoo position. The 2004 OLC’s retraction declined to condemn the Bybee/Yoo guidance — it just refused to stand behind it and opined, after some hemming and hawing, that it was not “useful to try to define the precise meaning of ‘specific intent’ ” for torture. To the contrary, the Pierre court determined — as had Bybee and Yoo — that this was exactly the difficult question that needed answering. Looking at much of the same law and ratification history that Bybee and Yoo had studied, the ten judges in the Pierre majority came to precisely the same conclusion: essentially, preferring the controversial 2002 OLC guidance to the 2004 OLC retraction. Furthermore, even the three judges who preferred to 2004 OLC analysis agreed that there could be no torture without proof that a government agent acted with the “knowledge or desire” that severe pain or suffering would result.

McCarthy wryly notes that the Justice Department, having seen McCarthy's piece linking to its brief, promptly removed the brief from its website!!!!  But McCarthy has saved the file to his disk as a .pdf file, and the brief can be accessed in his article.

A second McCarthy NRO piece adds more.  A-G Holder conceded in testimony before Congress that the torture rules require specific intent to inflict extreme, prolonged pain; the lack of same is why subjecting military personnel to waterboarding does not meet the legal definition of torture.  Re Holder's citation of the Spanish Inquisition and the Japanese in WW-II, McC writes:

Let’s put aside that it’s unlikely the Spanish Inquisition had a torture statute — after all, the United States managed to get along without one until 1994. Let’s even ignore the fact that the regimes Holder cited are not known to have rigorously limited their practitioners to no more than six applications of water (none longer than 40 seconds long) during any interrogation session (none longer than two hours long) on any day (during which there could be no more than two sessions) in any month (during which there could be no more than five days on which waterboarding occurred). Let’s just stick with intent. Holder’s exemplars involve the sadistic, programmatic infliction of severe, lasting, and often lethal pain — “water treatment” nowhere near as benign as the CIA’s, frequently coupled with atrocities like beating, rape, burning, and other unspeakable abuses. The practices of those regimes were designed exactly to torture, whether out of vengeance, the desire to intimidate a population, or the coercion of false confessions for show-trials — not to collect true, life-saving intelligence for the protection of civilian populations.

A Common Sense Torture Test.  If normal people (not masochists) volunteer for a procedure to see how its feels, it is not reasonably considered torture.  Waterboarding has been applied to journalists curious to experience its physical effects.  True, the temporary terror of imminent drowning they are spared,as they know that friendlies are administering the procedure.  They are back to normal in as little as 20 minutes (so reported y Fox's Steve Harrigan, who underwent the procedure).

Real torture is that which no one volunteers to try to see how it feels: think al-Qaeda specialties like eye-gouging, power-drilling into body parts, stabbing with a hot poker, wiring a victim to the electric grid and, yes, that al-Qaeda favorite of all, beheading with a pen-knife (on video, of course, that the victim's family can see it).  Or think of Saddam's rape rooms, where family members were assaulted in front of the torture target.

Bottom Line.  The word "torture" is being tossed around with alarming casualness.  It is narrowly--very narrowly--defined under American law, and the Bush administration procedures do not appear to qualify.  Torture is not what each individual viscerally feels should be considered torture.  Specific intent to cause prolonged physical or mental suffering--which excludes lesser forms of cruel and inhumane treatment--is required to constitute torture.  And even given torture constraints tighter than the criteria above, the "ticking bomb" and other scenarios, plus the Congressional reservation of necessity suggest that the bar is never absolute.

LFTC - Index 5/25/09

3 posts: (1) Memorial Day Remembrance: Our Warriors--The Home Front; (2) Memorial Day Celebration: Hubble Space Repair--The Home Front; (3) 1939: "It Was a Very Good (Film) Year"--Class & Crass.

LFTC - Memorial Day Remembrance: Our Warriors

The nation celebrates Memorial Day today, but those of us of a certain age know that originally, from its 1868 inception to 1971, when Congress passed the National Holiday Act, the holiday was celebrated May 30, and was known as Decoration Day in honor of Confederate ladies decorating the graves of their war dead.  On May , 2000, President Clinton proclaimed 3 PM on Memorial Day has a moment of national remembrance, for either silent prayer, or playing (singing) "Taps" (1862); 5 unofficial verses are vest known; there are no official lyrics).  Apropos of memories, two extra items: (1) Here is an eyewitness account of a funeral ceremony at Arlington; having been to one, I can attest it is a moving, beautiful spectacle.  (2) It was May 12, 1962 that General Douglas MacArthur gave his famous "Duty, Honor, Country" farewell address at West Point.  Here are the MacArthur 1962 audio (31 minutes; full text (5 pages).

Exemplifying the principles embraced by those words are two Army soldiers back from Iraq, saluted in this TAS article: Specialists Eric Moser & Chris Corriveau; for their heroic actions they were awarded the Distinguished Service Cross, the Army's highest decoration (the Medal of Honor is awarded, of course, by Congress); a riveting earlier TAS report (13 printed pages) tells their amazing story, in a rooftop firefight against overwhelming odds, in which two of their comrades perished.  Peggy Noonan profiles two Medal of Honor giants and a hero POW: World War I's Alvin York & World War II's Audie Murphy, plus Vietnam War P.O.W. Chuck Boyd, held 2,488 days in captivity (nearly 7 years) and the only P.O.W. ever to rise to become a 4-star general.

Finally, here is a a closing quotation from George Orwell, that explains the contribution soldiers make to the security of the rest of us: "People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf. "

LFTC - Memorial Day Celebration: Hubble Space Repair

WSJ pundit Dan Henninger offers well-justified praise for the recent spectacular space repair of the Hubble Space Telescope.  He writes:

It becomes easy to forget that most people go to work each day to succeed, not fail. Still, it was startling last week to catch sight on TV of men floating in space. This was Servicing Mission 4, NASA's long-scheduled flight to fix the space-based Hubble telescope.

It was pure success. Anyone able to avert their eyes the past week from Speaker of the House Pelosi swimming in her own marinade of failure could have watched a team of Americans doing miracles in space for days.

NASA's gorgeous website has several articles plus photos on the miraculous performance of Servicing Team 4.

LFTC - 1939: "It Was a Very Good (Film) Year"

The Academy of Motion Picture Arts & Sciences is running a 1939 Film Festival in Los Angeles, celebrating the top ten films of what has been called filmdom's finest year.  Read the list, reflect that even a great picture like Gunga Din did not make the list, and remember grandeur gone on this Memorial Day weekend, as you weep for the poverty of film-making today.