Questions and Observations

Free Markets, Free People

Torture Memos: Prosecute who? For what?

Patterico WLS, posting at Petterico’s “Jury” blog points out that, despite all the calls for prosecuting “former Bush officials” over the torture memos and the actions taken under their aegis, he wonders, as an actual prosecutor, who would be charged with a crime, and what, exactly, the crime would be.

In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton [sic] of the “Torture” memos.

It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations…[b]ut they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (”guilty mind) necessary to establish knowing criminal conduct.  When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice…

Prosecuting the officials who offered the advice is a different question.  But what would be the charge?  It can’t be “Torture” under the statute — they didn’t do anything.  They simply responded in their official capacity to a question raised by another governmental entity… Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong?

Fair questions indeed.

The officials who wrote the memos were acting as lawyers providing legal advice over the meaning of a statute.  Perhaps that advice was wrong.  But is providing an erroneous legal opinion a crime?  If so, what, exactly, would the crime be?  You would have to prove that the advice was completely and knowingly concocted from whole cloth and/or that the concocted legal advice was part of conspiracy to commit torture.  In that case, you’d have to find evidence of specific collusion between the CIA and DOJ to knowingly concoct  spurious justifications.

Absent such evidence, all you have is lawyers providing legal advice that the current administration doesn’t like.  In that case, I don’t see what the prosecutable offense is.

Taking it further, the CIA officials who actually conducted the torture have a very good defense, namely, that the formal legal advice they received from the government’s top lawyers at the DOJ was that the specific techniques they used fell outside the meaning of §2340.  In that case, they cannot have known they were committing a crime, but rather, they believed they were, on the advice of counsel, acting entirely within the law. So, unless there’s evidence that the interrogators went off half-cocked and began using non-approved techniques in the questioning, it’s difficult to see what the crime would be on the part of the interrogators themselves.

With the above in mind, it’s difficult to construct any other scenarios in which any of these of officials are prosecuted without it becoming, in effect, a criminal prosecution for partisan policy differences.

Whatever else that might be, it is not the Rule of Law as it is commonly understood.

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Obama’s First 100 Days

USA Today says the public sees Obama’s first 100 days as a “strong opening”.

But when you get in the number of the USA TODAY/Gallup Poll, it’s not quite as strong an opening as you might expect:

Now, 56% say he has done an “excellent” or “good” job as president vs. 20% who rate him as “poor” or “terrible.” An additional 23% say he has done “just OK.”

His excellent/good rating on national security is 53%. On the economy, it is 48%.

“He is seen as someone who was handed a large array of challenges and is dealing with them in a sensible way,” adviser David Axelrod says.

Those are lower numbers than I expected. And certainly very interesting numbers on the most pressing interest of the day – the economy. Those numbers also signal to me that this is now considered the “Obama economy” now, whether deserved or not.

As for national security, I’m not sure what rates the number – he’s really not done anything concerning national security except do a little talking about the subject. And, despite claims to the contrary, SEALs taking out three rag-bag pirates who botched a highjacking was not a victory on the national security front.

~McQ

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Economy: No Longer In “Free Fall”

While I appreciate the fact that we’re hearing a more positive spin from the Obama administration concerning the economy, the so-called “glimmers of hope” aren’t really anything but outliers.

Worse-than-expected news on unemployment and home sales Thursday dampened optimism that a broad economic recovery might be near.

Jobs losses aren’t expected to bottom out until the middle of 2010 and the housing market hasn’t bottomed out yet either:

Meanwhile, the National Association of Realtors said sales of existing homes fell 3 percent in March to a seasonally adjusted annual rate of 4.57 million units, with February revised down to 4.71 million units. Sales had been expected to fall to an annual rate of 4.7 million units, according to Thomson Reuters.

Per the analysis, the best reading of these economic indicators is that perhaps the “free fall” is coming to an end.

“The economic downturn remains intense, but it is no longer intensifying,” said Mark Zandi, chief economist at Moody’s Economy.com. “We are still falling, but we are no longer crashing.”

So, while we may have passed what some are terming the “crisis stage”, the economy is still contracting. I’m coming to believe that we may not see any real and meaningful “glimmers of hope” until mid 2010.

~McQ

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Couldn’t Happen To A Nicer Guy

Patterico brings us some good news about Ted Rall:

I don’t normally gloat when someone loses their job, but for this tool, I’m willing to make an exception. Especially given that his “job” consists of comparing U.S. soldiers to suicide bombers; mocking widows of terror victims; profiting from Pat Tillman’s death; assuming the voice of Iraqi soldiers talking about killing American soldiers; making leftist political hay out of the Nick Berg beheading; lying about lefty blogger vitriol; and suing a guy for making him appear to be a “rude, petty, self-absorbed writer/cartoonist” (which is what he is).

I normally don’t celebrate anyone being laid off – but in Rall’s case I’ll make an exception.

Rall will reemerge, unfortunately, but for the time being, he hasn’t the well funded platform from which to spread his crap. I personally find that to be a net positive.

~McQ

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The Price Of Appeasement

We’re known here at this blog for being adamant about denouncing plans which appease terrorists.  It’s a absolute no-win situation for the appeaser.  Pakistan is now in the middle of learning that hard lesson:

Pakistan’s strategy of trying to appease Taliban militants is showing signs of backfiring, as extremists move within 60 miles of the capital and threaten to spread their influence throughout the country.

Really? What a surprise. They caved to the Taliban demands and allowed them to impose Sharia law in the Swat valley in return for promises the Taliban would lay down their arms.

And, unsurprisingly, the Taliban have reneged on the promise. That, of course, has Hillary Clinton huffing and puffing at Pakistan:

Secretary of State Hillary Rodham Clinton warned Wednesday that Pakistan’s government is “basically abdicating to the Taliban” by agreeing to let them implement Islamic law in the Swat region last week. Instead of putting down their weapons, as the government had hoped, the insurgents have since moved fighters into the neighboring Buner region, local lawmaker Istiqbal Khan said.

Of course that’s precisely what appeasement buys with zealots. Absolutely nothing except an even weaker position for the appeasers.

Additionally, the Taliban have turned the Swat valley into a theocratic hell while the Pakistani government stands by and tut-tuts:

President Asif Ali Zardari has blamed the Taliban for a wave of assassinations in Swat in recent months, and he condemned a recent video that showed militants flogging a young woman they accused of having an improper relationship.

There is a glimmer of good news however. There seems to be a public backlash building among Pakistanis with even conservative members of the Pakistani parliament distancing themselves from the militants. However in the complicated world of Pakistani politics, that may end up meaning nothing in a real sense as the Taliban, who recognizes no authority and certainly no obligation to live up to any promises, relentlessly pushes to expand its hold on northern Pakistan.

~McQ

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Anti-Americanism Is Still Dead

Or so claims David Axelrod.

Apparently Fidel Castro didn’t get the memo:

…At the press conference, as well as in the final meetings of the Summit, Obama looked conceited.

It’s an interesting little diatribe from Casto, and most of it is the usual nonsense, but what it easily demonstrates is Axelrod is as clueless as I asserted a couple of days ago.

Castro saw through most of the Obama rhetoric and unlike a vast number of Americans, figured it out:

When the US President said, in answering to Jake [Tapper], that thousands of years had elapsed since 2004 until the present, he was superficial. Should we wait for so many years before his blockade is lifted? He did not invent it, but he embraced it just as much as the previous ten US presidents did.

That’s the Cuban version of “meet the old boss, same as the new boss …”.

And my favorite:

Leaders just pass through; peoples prevail. There would be no need to wait for thousands of years to pass by; only eight years will be enough so that a new US President — who will no doubt be less intelligent, promising and admired in the world than Barack Obama- riding on a better armored car, or on a more modern helicopter, or on a more sophisticated plane, occupies that inglorious position”

Yup – completely charmed and impressed by our new leader, no?

Castro picks up on and states what he saw – conceit and superficiality. My guess is he wasn’t the only Latin American leader who came away with that impression.

Interesting.

~McQ

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Paid ‘Volunteerism’ – An Oxymoron

Nick Gillespie at Reason is none too impressed with the new Edward M. Kennedy Serve America Act just signed into law.

At a mere 5.7 billion dollars +200 mil in “stimulus” funds – and yes I’m being facetious (and don’t worry, they’re saving 100 mil among the administration cabinet) – we get legislation that:

reauthorizes and expands national service programs administered by the Corporation for National and Community Service, a federal agency created in 1993. The Corporation engages four million Americans in result-driven service each year, including 75,000 AmeriCorps members, 492,000 Senior Corps volunteers, 1.1 million Learn and Serve America students, and 2.2 million additional community volunteers mobilized and managed through the agency’s programs.

Or an expansion of the Community Organizer’s Full Employment Act if you really want to come clean about it.

Paid “volunteerism”. Is that government’s job?

And as Gillespie points out, the language under which this is organized – and I use the term loosely – is rife with opportunities for urban entrepreneurs to “benefit” mightily from things which will be extremely hard to measure (even though it claims, in the language, to have it covered):

The Serve America Act, which goes into effect on October 1, would increase and enhance opportunities for Americans of all ages to serve by increasing AmeriCorps from 75,000 to 250,000 positions over the next eight years, while increasing opportunities for students and older Americans to serve. It will strengthen America’s civic infrastructure through social innovation, volunteer mobilization, and building nonprofit capacity. The new law is also designed to strengthen the management, cost-effectiveness and accountability of national service programs by increasing flexibility, consolidating funding streams, and introducing more competition.

Ye gods – what could go wrong with that?

And this, as Gillespie points out, in the face of attempts to limit charitable tax breaks for the income class which makes most of those donations and are the engine for much of the charitable giving. Make sense?

Well, it does if your entire focus is to see how dependent on government you can make the population, certainly. This is another example of a liberal wet dream.

But what you should keep in mind is it was begun under Clinton and survived 8 years of a Republican administration.

Tell me – whose fault is that?

~McQ

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About Those Torture Memos…

Well, this is an unexpected revelation.  In all the imbroglio about the “torture memos” and the possibility that the justice department may look into torture indictments of various officials, Rep Pete Hoekstra (R-MI) writes that it’s a bit hypocritical for Congress to escape scrutiny.  Apparently, they knew all about it.

It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses…

Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can’t be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.

Hmmm.  That actually might be interesting to see.  Very interesting.

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Cap & Trade: Even More Expensive Than Thought

Sometimes math is actually pretty easy. For example, when someone, say some MIT professors, writes a report claiming that a tax on certain businesses will raise a specific amount of revenue for the government ($366 Billion to be exact), and that revenue is divided by an estimated number of American households (117 Million), there isn’t any doubt about how much money per household that tax represents ($366 b./117 m. = $3,128.21). Unless, that is, there are politics involved. Then the math becomes Bistromathic, which allows one of the progenitors of the original numbers to declare “you’re doing it wrong!” and almost everyone will believe him. Unfortunately for them, real math operates on real facts, and thus reality is destined to intrude upon their fantasy.

That, in a nutshell, is basically how the argument over costs of the Obama Administration’s cap and trade policy has unfolded. MIT’s John Reilly co-authored the original study, Republicans used the numbers to derive a cost per taxpayer, Reilly balked, and the media/leftosphere went into paroxysms of outrage about how the GOP were all a bunch of liars. But that was just the main course. For dessert, there will be crow (my emphasis):

During a lengthy email exchange last week with THE WEEKLY STANDARD, MIT professor John Reilly admitted that his original estimate of cap and trade’s cost was inaccurate. The annual cost would be “$800 per household”, he wrote. “I made a boneheaded mistake in an excel spread sheet. I have sent a new letter to Republicans correcting my error (and to others).”

While $800 is significantly more than Reilly’s original estimate of $215 (not to mention more than Obama’s middle-class tax cut), it turns out that Reilly is still low-balling the cost of cap and trade by using some fuzzy logic. In reality, cap and trade could cost the average household more than $3,900 per year.

The $800 paid annually per household is merely the “cost to the economy [that] involves all those actions people have to take to reduce their use of fossil fuels or find ways to use them without releasing [Green House Gases],” Reilly wrote. “So that might involve spending money on insulating your home, or buying a more expensive hybrid vehicle to drive, or electric utilities substituting gas (or wind, nuclear, or solar) instead of coal in power generation, or industry investing in more efficient motors or production processes, etc. with all of these things ending up reflected in the costs of good and services in the economy.”

In other words, Reilly estimates that “the amount of tax collected” through companies would equal $3,128 per household–and “Those costs do get passed to consumers and income earners in one way or another”–but those costs have “nothing to do with the real cost” to the economy. Reilly assumes that the $3,128 will be “returned” to each household. Without that assumption, Reilly wrote, “the cost would then be the Republican estimate [$3,128] plus the cost I estimate [$800].”

In Reilly’s view, the $3,128 taken through taxes will be “returned” to each household whether or not the government cuts a $3,128 rebate check to each household.

In short, Reilly’s claim of “you’re doing it wrong!” amounts to parsing of direct vs. indirect costs. Yes, the cap and trade taxes will be passed onto the consumers in some way, but those aren’t the “real costs” to the economy. Only those direct expenditures made necessary by the policy (the “but for” costs) are “real costs.” As long as the federal government provides a benefit to the taxpayers with the cap and trade taxes, then those higher utility bills are a wash:

In Reilly’s view, the $3,128 taken through taxes will be “returned” to each household whether or not the government cuts a $3,128 rebate check to each household.

He wrote in an email:

It is not really a matter of returning it or not, no matter what happens this revenue gets recycled into the economy some way. In that regard, whether the money is specifically returned to households with a check that says “your share of GHG auction revenue”, used to cut someone’s taxes, used to pay for some government services that provide benefit to the public, or simply used to offset the deficit (therefore meaning lower Government debt and lower taxes sometime in the future when that debt comes due) is largely irrelevant in the calculation of the “average” household. Each of those ways of using the revenue has different implications for specific households but the “average” affect is still the same. [...] The only way that money does not get recycled to the “average” household is if it is spent on something that provides no useful service for anyone–that it is true government waste.

He added later: “I am simply saying that once [the tax funds are] collected they are not worthless, they have value.”

Essentially, Reilly is making the pernicious claim that a dollar in the taxpayer’s hand is the same as one in the government treasury. But we all know that’s not true, including (I’ll bet) Mr. Reilly.

No matter how efficient the government is, it will never be able to take $X from me and return exactly $X of benefit. Indeed, at least some portion of that $X will be needed just to support the system of taking the money and providing the benefit. Already the taxpayer is at a loss.

Moreover, there is an implicit assumption in Reilly’s explanation that, in exchange for this de facto tax, the government benefits provided would be returned in proportion to their costs. But that would defy all historical precedence when it comes to the federal government which, once the money is received, tends to dole it back out to suit its own purposes. As Merv aptly states:

I really doubt the government will return any cost of cap and trade dollar for dollar. If they did it would be just an expensive money swap. To the extent the government does return any money you can bet that it will be based on conduct they want from people and not unconditionally. They will be imposing their choices on American families and their lifestyles.

To be fair, Reilly tacitly acknowledges this fact when he explains what use of his numbers would be acceptable to him:

“If the Republicans were to focus on that revenue, and their message was to rally the public to make sure all this money was returned in a check to each household rather than spent on other public services then I would have no problem with their use of our number.”

The fact is, cap and trade is going to cost taxpayers significantly more than the measly $13/week tax cut that the Democrats and the left are so excited about. While the $3,900 cost cited by John McCormack above is an accurate accounting of what Reilly’s study portends, even that is probably an unrealistically low estimate. Consider how the same policy has affected Europe:

Europe’s experiment with cap and trade has turned into a bureaucratic mess that has failed to live up to its initial expectations. A report by the GAO reveals that the supply of carbon permits has exceeded the demand causing allowance prices to fall substantially. This policy failure has caused the European economy to suffer and expectations to reduce CO2 emissions have been lowered.

Additionally, Europe’s cap and trade experiment has led to decreased employment opportunities and higher energy prices across the continent. In France manufacturers have packed up and left for Morocco. In the Netherlands factories are forced to close early to meet emissions standards. In Germany energy prices have risen 5% each year sparking widespread outrage. All across Europe evidence shows that cap and trade has hurt the economy. If the United States implements a European style cap and trade system, estimates show that it could wipe out between 1.2-1.8 million American jobs by 2020.

So the 95% of you who received a “tax cut” from Obama had better start saving that extra money up. You’re going to need every penny to service the debt required to pay for your costs of cap and trade.

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Trip Report

Great day yesterday – drove up Skyline Drive which borders the Shenendoah Valley and did the scenery tour.  Absolutely beautiful (we’re staying in Charlottesville, VA).  Then came back through some of the most beautiful countryside I’ve seen in a while to Montpelier – James Madison’s home.

This was particularly interesting to me because of Madison’s role in writing the Federalist papersand the Constitution and Bill of Rights.  The house itself is a work in progress.  They only finally restored it to its original dimensions in September of last year (subsequent owners had added on – they took all the additions off of the house and only kept the parts that were there when the Madison’s owned it).

Anyway, probably the most memorable moment for me was standing in Madison’s study, where he penned much of the Constitution and many of the Federalist papers and staring at the ink stains on the wooden floor where his desk had been.  It’s little things like that which can bring history alive for a person.  That and staring out of the window at the beautiful scenery he looked at as he worked on those incredible documents.

If you get a chance, go see the place.  Web site: www.montpelier.org.

Today Monticello, Ash Lawn-Highland (home of James Monroe) and Michie Tavern (of course). Hopefully the Chancellorsville and Fredericksburg battlefields as well.

Ta ta …

~McQ

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