Superior Orders

Over at TPM Muckraker, I was reading the comments to the post about Mukasey and waterboarding. On the subject of wether CIA operatives who actually performed water boarding would be in legal jeorpordy , a reader by the name of phred asked:

I was under the impression that the argument that one was "only following orders" did not fly at Nuremburg. Why is it tolerated here?

I referred him to the judgement in the Einsatzgruppen Case where the superior orders defense is dealt with. Briefly, the superior orders defense is an allowable defense, but the tribunal rejected it. In the judgement, the tribunal lays out that in order for a superior orders defense to succeed, the defendents must show that they had excusable ignorance that the acts were illegal, or that the act was committed under duress. That is, in failing to act the perpetrator will incur serious consequences that will be "immient, real and inevitable." The second is easier to dispose of: there was no evidence that any Einsatzkommandos would have been threatened with death if they failed to act. The first part, excusable ignorance, is a little more complicated. The tribunal allows for the fact that by the time the acts had occurred, there had been nearly 20 years of Nazi propaganda on how the Jews were sub-human and there elimination was necessary. After all that, would it be possible that rank and file Einsatazkommandos actually belive it was perfectly legal to kill Jews? The tribunal rejected that. The order to exterminate Jews was not absolute. Many German Jews were allowed to live out the war (see for example Viktor Klemperer, a WWI veteran and married to a non-Jew). Aryan looking Jewish children were adopted by German families. Thus the Einsatzkommandos should have know the order to exterminate was not absolute.

Would a defense of superior orders be available to CIA operatives who performed the water boarding? I find extremely unlikely they could say it was done under duress. There is no way the consequences of refusing to torture would be any thing like the torture itself. On the "excusalbe ignorance" part, I think they might have a possible defense. My belief is that water boarding is self evidently torture and thus illegal. But there is certainly enough chaff being thrown around, by the vice president and attroney general nominee among others, that a reasonable person may believe it's not. And I don't mean a reasonable person who reads liberal blogs, I mean a reasonable person who works for the CIA. For arguments sake, let's assume that such people exist. According to this post by Jack Balkin, the Detainee Treatment Act and Military Commissions Act effectively immunize operatives who perform torture. The actual text in the Detainee Treatment Act says:

[... I]t shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

So if the operatives acted in good faith based on Office of Legal Counsel's opinion that water boarding is not torture, they could use that as a defense. Although I find it highly unlikely that any operative will go on trial, I believe that this would give them enough reasonable doubt to escape conviction.

Disclaimer: I'm not a lawyer, and have no legal training. Take my legal opinions for what they're worth.

Mukasey and Waterboarding

I heard this quote from Senator Specter the other day:

The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened.

The NPR reportor then helpfully explained it meant that CIA employees who have been using waterboarding would be liable for prosecution. That works for me.

Kennedy '80!

From an undisclosed location in upstate New York, I came across this classic:


We were at an inn that at one time passed itself off as a Catskill's resort. This was in the "barn" which was a long abandoned bar (one whole side was missing, I don't know if that was on purpose or just poor maintenance). Also, there was this:


I had completely forgotten about him. How many states would he have lost to Reagan?

L'Affaire Beauchamp

I'm late to the party on this, too, but here goes.

Let me get this straight

• The New Republic: Maybe when Michael Kinsley edited it, you could call it liberal, but that was a while ago. After Michael Kelly and Andrew Sullivan (who pushed The Bell Curve in its pages), not so much. Add in the publisher and new owners absolute backing of the Iraq war even less so. It's certainly independent, it's no administration apologist like so magazines I could name (see below).
• The Beachamp articles: He wrote two articles that no one seemed to notice. Then he writes one about young men acting like assholes and the whole right side of the blogosphere goes nuts.
  
• Whether or not some young men act like assholes has nothing to do with whether the Iraq war was a good idea. Or whether we are actually succeeded (whatever that means) in the war. Or whether Americans are committing war crimes (nothing in the article could be considered a war crime.)
• The New Republic's sad history of getting snookered: You'd think if you got snowed as badly as they did over the Stephen Glass affair, they'd be careful. TNR's first response was that they did fact check the article. Then they went back and fact checked again and found one discrepancy. I read some where a contrast between Glass and Beauchamp was that Glass wrote what people wanted to believe. He fed into there own prejudices. Not so with Beauchamp.
• The Army's response: The Army pretty much silences Beauchamp by taking away his intenet and telephone access. He's in the Army, so they do have a right to control his communication however they see fit.
  
• The Army's Alleged response: A report comes out saying that the Army's investigation proved everything to be false and Beauchamp recanted. And where to we read about this report? Why, in The Weekly Standard. When asked, an Army spokesman says he has no knowledge of a report. As Josh Marhall said: if "you've got the goods, you take it to a real press outlet. When you're blowing smoke, you take it to the Standard."

So, where's the beef in all this?

Scooter

I'm a little late on this, and too lazy to look it up, but why hasn't the press and in particular the White House gaggle picked up on this?

All through the Plame investigation and Libby trial, the White House has avoided saying much about it because they say they don't want to affect the wheels of justice. Well, fine. If I was less cynical and this was any other administration I'd give it a pass. If the White House thought they could get some sort of political advantage about talking about Plame or Libby, they would. Once the Libby trial was over, they still avoided talking about it since there was an appeal pending. There is a theoretical possibility that the appeals court could grant a new trial. But the commutation of the sentence lets Bush have it both ways: a loyal aide stays out of jail and the appeal is still pending so they have a paper thin excuse to not talk about it.

Here's my point: Bush said he wasn't questioning the jury's decision (with good reason, apparently), he merely thought the sentence was unfair. Does the president really think perjurers shouldn't do time? No, of course not. He just thinks people who commit crimes on his behalf shouldn't suffer the consequences. He has made a statement on the case and the press should hold him to it.

The Golden Ticket

I was just reminded of this the other day:

A couple of years ago, the now nine-year-old was bored, so I gave her a copy of Charlie and the Chocolate Factory. After some protest that it, too, was boring, she went away to read it. After about an hour she came running downstairs to say: "Mom, Dad, Charlie got the last golden ticket!" I don't think I actually said this to her at the time, but my thought was: "Well, yes, of course he got the last ticket. The book would be considerably shorter if he didn't." She gets a little worked up over the suspenseful parts of the Harry Potter. But I tell her Harry will make it through book 3, since J.K. Rowling wouldn't have bothered with books 4 through 6 if he didn't.

Death of Marat

On one of my favorite blogs, alicublog, the topic often comes up of how some people evaluate art only in terms of its political content. That is, they see all art as propaganda (either for their views or againts). The proprietor, Roy, believes, in which I'm in full agreement, that art should be evaluated in terms of its artistic merit. Art can be appreciated regardless of its propaganda value, if there even is any, and whether or not you agree with the view it's trying to push. For example, I think the Jim Fitzpatrick portrait of Che Guevara is both good art and good propaganda, although I find Guevara's politics and methods repellent.

On this day in 1793, "friend of the people" Jean-Paul Marat was murdered while soaking in his bathtub. It was captured in what I believe is one of the greatest combinations of art and propaganda: Jacques-Louis David's The Death of Marat. Again, Marat is no one I would have any sympathy for. He was associated with the Jacobins and the Reign of Terror and compiled death lists of enemies (and supposed enemies) of the revolution. Still, Death is a stunning piece of work. Nothing else David did compares, except perhaps Napoleon Crossing the Alps.

My Harry Potter Predictions

Here are two predictions for Harry Potter and the Deathly Hallows:

J.K. Rowling has said that major characters will die in the final book. I also read somewhere, I thought it was the Wikipedia page for Deathly Hallows, but I couldn't find it there today, someone unexpected will do something dramatic. So here's the prediction: Neville Longbottom will die. He's not exactly a major character, but he's had a prominent place in all six books so far. I also don't think Rowling will kill off one of the big three (but she did kill off Dumbledore, so that could be wrong). Neville's parents were powerful aurors and he has shown occasional flashes of brilliance and he has shown bravery. After all, the sorting hat did put him in Gryffindor. He's also initmately connected to Voldemort through the prophecy, although clearly it refers to Harry, since only Harry was able to retrieve it from the Department of Mysteries. To extend my prediction, Neville will be involved in the death of Voldemort, but he won't survive.

My second prediction is that Snape will turn out to be a good guy. I think Dumbledore's judgement is good, and he was right to trust in Snape.

Foul Mouthed Bloggers

I tried this blog rating tool (via Slacktivist) and all I got was this:


I think I have to work on my invective level if I really want to make it in the blogging world.

No More Vacations

Great. I go on vacation and Scooter Libby gets his sentence commuted. I guess I'll have to stay at work until January 2009.

Crime and Punishment

Some people are saying are saying Scooter Libby shouldn't perjury conviction is unjust since there was no underlying crime. Well, that's not strictly true. Certainly no one has been prosecuted for an underlying crime. And it's also true that Patrick Fitzgerald doesn't know if any criminal act actually occurred with regard to the Plame leak. There's a good reason for that: Libby obstructed the investigation.

No Exit

From a comment at the Washington Monthly blog:

Apparently, Libbey and Rove despise each other.

Great. Now I know who I'm going to spend eternity with.

Book Review: Eragon

Eragon by Christopher Paolini

A teenage boy (Eragon) is living with his uncle, until the evil emperor's minions kills his uncle and destroys their farm. The boy journeys to avenge his uncle's death, accompanied by an older man who seems to know more about the boy than he lets on. The man gives Eragon an ancient sword. On their journey, they are rescued from a precarious situation by a stranger, and rescue a mysterious woman from prison. Wait, haven't I heard this story before? I swear, if it's revealed at the end of the second book that Eragon is actually the lost son of the emperor, I'm going to burn every copy I can find.

Reading it, I kept a count of the writer's Paolini ripped off: Lucas, Tolkein, McCafery, LeGuin. Those are only the one's I'm familiar, I'm sure there are more. The book is competently, but not artfully written. He's descriptive enough, and the characterizations are fairly good especially for the main characters. The plot moves along nicely enough. It seems to be edited pretty well. The fact that it was written by a teenager is a little less impressive when you find out the Paolini family owns a publishing house.

My favorite bad part is the language guide in the back. This is such a transparent ripoff of Tolkein. Now, Tolkein was a accomplished linguist who knew the structure and development of languages. Paolini clearly has little or no experience with any language than English. Instead of doing something clever with noun inflection or verb tenses, he just basically copies English with its degenerate tenses and cases. For example, future tense is just a participle plus the helper verb will. Pathetic.

The Scottish Connection

In an op ed in the Boston Globe about Scottish Separatism, H.D.S Greeway says:

Scots often ran England, too. Half of the last 20 British prime
ministers have either represented Scottish constituencies at one time
or another, or were Scots themselves. Gordon Brown, almost certain to
be the next prime minister, is a Scot.

Ten out of twenty seemed a little high to me, so I checked it out.

Tony Blair
Born in Edinburgh. His father was of English ancestry although he grew up in Glasgow. His was of Scotch-Irish descent. After living in Scotland and Australia, his family moved to Durham where he went to school. Sat for Sedgefield in Durham.

John Major
Born in Carshalton, part of a London borough. Sat for Hutingdonshire and Hutingdon.

Margaret Thatcher Born in Grantham, Lincolnshire. Sat for Finchley, part of London

James Callaghan Born in Portsmouth. His father was of Irish ancestry. Sat for Cardiff South and subsequent reconfigurations.

Harold Wilson Born in Huddersfield, Yorkshire. Sat for Ormskirk and Huyton, both in Lancashire.

Edward Heath Born in Broadstairs, Kent. Sat for Bexley, Sidcup and Old Bexley and Sidcup, all part of London.

Sir Alec Douglas-Home Finally, a real Scotsman. Although he was born in the Mayfair section of London, his father's family is of ancient Scottish lineage. He eventually succeeded to the Scottish Earldom of Home, but disclaimed it when he became Prime Minister. He was recognized as chief of Clan Home (purists will say you can't be a clan chief and have a double barrelled surname). Sat for Lanark and for Kinross and Western Perthshire.

Harold Macmillan Born in the Brixton, part of London. His grandfather was Scottish. Sat for Stockton-on-Tees (in northern England) and Bromley in England

Anthony Eden Born in West Auckland in Durham. Sat for Warwick and Leamington in central England.

Winston Churchill
Born at his grandfather the Duke of Marlborough's country house Blenheim Palace (in Oxfordshire). In his long parliamentary career, he sat for a number of constituencies including Dundee in Scotland.

Clement Atlee Born in Putney, part of London. Sat for Limehouse and Walthamstow West, both parts of London.

Neville Chamberlain Born in Birmignham. Sat for two different seats in irmingham.

Stanley Baldwin Born in Bewdley in Worcesershire. Sat for Bewdley.

Ramsay MacDonald Another real Scotsman. Born in Morrayshire in northeast Scotland. Sat for Leisceter, Aberavon (Wales), Seagan (England) and Combined Scottish Universities.

Andrew Bonar Law Born in New Brunswick, Canada. His family had Scottish and Scots-Irish backgrounds. He went to live in Glasgow in his youth. He sat for a number of constituencies including ones in Glasgow.

David Lloyd George Born in Manchester, but of Welsh ancestry. His family moved back to Wales shortly after he was born. Only Welshman to be PM. Sat for Caernarvon Boroughs.

H. H. Asquith
Born in West Yorkshire. Sat for East Fife and Paisley, both in Scotland.

Henry Campbell-Bannerman
Born in Glasgow. Sat for Stirling in Scotland.

Arthur Balfour Born in Whittingehame, East Lothian, Scotland. His mother was the daughter of the Marquess of Salisbury. Sat for Hertford, Manchester
East and City of London.

Marquess of Salisbury
Born in Hertfordshire, England. Sat for Stamford in Lincolnshire before succeeding the marquisate.

Earl of Rosebery
Born in Berkeley Square, London. Never sat in the Commons. The title is a Scottish one created in 1703.

Of the last 20 prime minister, I count the following
English: 14 (Blair, Major, Thatcher, Callaghan, Wilson, Heath, Macmillan, Eden, Churchill, Atlee, Chamberlain, Baldwin, Balfour, Salisbury)
Scottish: 6 (Douglas-Home, MacDonald, Bonar Law, Campbell-Bannerman, Balfour, Rosebery)
Welsh: 1 (Lloyd George)

So that's 6 of 20. Add in Churchill and Asquith, who sat for Scottish constituencies, and Blair, who was born in Scotland, that makes it 9 out 20. Almost half.

Defining Reasonablness Down

http://www.tpmmuckraker.com/archives/003221.php

What can you say when John Ashcroft and Ted Olson are the reasonable ones?

In fairness to Ashcroft though, he was never really a Bush insider. I think he was actually taking his job seriously.

Executive Power

The post about Tony Blair was originally an email to a friend. We got into the "imperial presidency" and separation of powers, and I came up with this.

The writers of the US consititution were aware of the power of the sovreign in Britain and the whole separation of powers was to prevent a single person or institution to have exclusive power. In the 18th century, the sovereign had enormous power. While parliament had control of the purse strings and even the power to remove the sovereign and set succession, the sovereign had enormous power. He had complete authority to appoint and dismiss ministers, call elections and create new lords. What I find interesiting is that the 200 or so years since the revolution, the British/UK system has evolved to where the sovereign has virtually no power to act on her own initiative. This is likely a major reason that the UK is still a monarchy and France, Germany and Russia are not. My reading of history points to one moment that precipitated the shift of power from sovereign to elected government: the accession of an 18 year old woman as Queen. The men of 1837 couldn't imagine a woman, and such a young woman, as being capable of handling the responsibilities. So began the fiction of acting in the Queen's name.

Great Juxtaposition

I have no idea if this was purposeful, but Iliked the juxtaposition the Globe had its front page Monday:



The Massachusetts National Guard, the descendants of the Minutemen, marching across Concord bridge and below the descendant of George III.

Why the Name?

I figured I needed a snappy name for the blog. It struck me that I tend to say "actually" pretty often. I remember years ago when I must been under ten, another little boy saying to me, "You say actually a lot." I also noticed I string sentences, that perhaps should be better left alone, together with "but." So I put them together and said it a couple times and I figured it would work.

I think it also works well with my more pedantic tendencies. People spreading urban legends and other misinformation really irritates me. I often can't help myself and I have to jump in and correct them. I'm sure not every one appreciates my efforts to make the world less ignorant.

Manny

I read this article in the New Yorker last week. It wasn't much I didn't already know or at least suspect. All I can say it's a good thing he doesn't have to go find a real job.

Ten Years of Blairism

Yesterday was the 10th anniversary of Tony Blair's acension to Prime Minister. Labour had been out of power since 1979 and the Conservatives had won four straight general elections. Margaret Thatcher had been prime minister for over eleven years; longer continuous service than anyone but Lord Liverpool(served from 1812 to 1827). In the runup to the 1992 election is was widely believed that Neil Kinnock had remade Labour enough that they would easily defeat Thatcher's successor John Major. But it was apparently not enough as Major pulled out an upset and led five more years of Tory rule. By 1997 I think several things converged. There was Tory fatigue. Blair was one of the most charismatic British politicians to come around in a long time. His Clintonian triangulation comforted voters that there wouldn't be general strikes and nationalization of industry.

About Thatcher: I used to watch Prime Minister's Question Time on CSPAN, and I will say she was masterful. Considering that she was a research chemist before she went into politics, she held herself very well. I can't imagine any recent Republican president surviving an ordeal like that. Of course Clinton would have been great at it.

Worst President Ever

I tagged my previous post with "worst president ever," but I think this post makes a good argument that James Buchanan, not George W. Bush, was the worst U.S. president ever. Still, we have almost 2 years left and there's no place to go but down.

Why I Hate George W. Bush

I remember when I first noticed him. Maybe I knew that George H. W. Bush had a son named George, but I didn't make much of it at the time. The first time I saw him on TV was during a Red Sox pre-game show. It must have been the early 90's, probably during the Clinton administration. Sean McDonough was interviewing him and they were talking about baseball. I'd like to think I said to myself, "I'm sure glad he's only running a baseball team and the country," but I probably didn't. I don't remember any of the substance of the interview. I just recall I wasn't overly impressed by him.

Flash forward to the late 90's. He was governor of Texas and starting to raise money for a presidential run. I always thought he used his name and his father's contacts to try to vacuum up as much campaign contributions as he could to scare of other potential candidates. The more I heard him talk, the more I came to the conclusion that he was: 1) a fake, 2) and not very bright. I never would have considered voting for any of the Republican candidates over the Deomcratatic contenders, but I do like to limit the damage. The other major candidate, John McCain, seemed at least at the time, the lesser of two evils.

Al Gore wasn't my ideal candidate, but I knew it was a load of crap to say there really wasn't much difference between the candidates. The Florida fiasco should have put that out of any one's mind. The "uniter not a divider" and his ruthless effort to win Florida should have made it obvious what kind of politician he would be.

The first few months of his presidency were pretty uninspiring. The typical Republican calls for tax cuts on the domestic side. On defense, the administration was so interested in a missile defense system that they seemed to be deliberately provoking North Korea in order to justify it.

And then there was September 11. Many people have said this before, but here it is again. He could have used 9/11 as an opportunity to unite the nation and use the sympathy the rest of the world had for us to actually reduce or eliminate the threat of terrorism. Instead, he used it to as a partisan wedge to push every thing on the radical right wish list.

That's really it. Every thing the Bush administration does is for short term political gain. Look at any thing they do, any "policy" they propose. Try to think of the most cynical, nihilist and basest motivation for the action. Then dial it down about two or three notches. You will then find you were giving them the benefit of the doubt. I know that sounds cynical on my part, but it's been a reliable way of understanding the administration.