The court scholar serving Hermann of Thuringia.

The court scholar serving Hermann of Thuringia.
The scholar


Institutional privilege

On the balancing act between institutional privilege and credibility with the public. Is a "win-win" solution possible or is it a "zero-sum" or "win-loss" kind of "game"?

In a piece in the Inky, we learn of the Roman Catholic Church's response to Americans seeking to hold the Vatican, and specifically the current Pope, accountable for pedophile priests.

Court documents obtained yesterday show that Vatican lawyers plan to argue that the pope has immunity as head of state, that U.S. bishops who oversaw abusive priests weren't employees of the Vatican, and that a 1962 document is not the "smoking gun" that shows proof of a cover-up.

Would that the Vatican would concentrate only upon the last defense! That's the only part of their legal strategy that bears directly upon the Pope's guilt or innocence. The other two defenses are purely ones of institutional privilege. I can understand institutional privilege and can see why people defend it, but that's at direct cross-purposes with giving a credible explanation that would, in turn, build trust.

Wonkette reproduces a press briefing wherein the Press Secretary Tony Snow discusses the balancing act between institutional privilege and openness, transparency and credibility. Snow tries to convince the press corps that golly-gee willikers guys, we'd be open and honest and transparent, but hey y'know, Congress is seeking to impinge upon the institutional prerogatives of the President and associated subordinates.

MR. SNOW: What you’re saying is that every time somebody wants to try to mount a charge you ought to be able to get hauled up and testify under oath, with a presumption of criminality, rather than a presumption of goodwill. I’m not going to buy that.
Of course, as makes clear, the people who wanted haul up Bush & Cheney upon "a presumption of criminality," were actually on very solid ground to make that presumption. About a year after Snow's scolding of the press corps, Secretary of Transportation Norman Mineta confessed that there were several war games that were being conducted on 11Sep01, at the same time that the 9/11 attacks were taking place. The question this raises is:

...did the NORAD war games (Vigilant Guardian, Vigilant Warrior, Northern Vigilance) being run on 9/11 impact in any way, positively or negatively, the response by the military that morning?


[Richard Clarke] denied that there were multiple exercises.

The concludes that:

...the dedicated rank-and-file personnel at Norad were misled, intentionally, by the planners of 9/11. Specifically, the good and dedicated lower-level military people were confused by the events of 9/11 because 9/11 occurred at the same time as the multiple war games with their live fly exercises, plane into building scenarios, false radar inserts, and apparent interference by Cheney. [emphasis in original]

Were there any such war games taking place? That's hard to say because institutional privilege allowed Bush & Cheney to testify under the following conditions:

The two leaders were not under oath and no recording was made of the private session at the White House.


It was eventually agreed that the meeting would be held in the Oval Office, alongside Mr Cheney. There were no television cameras and also no photographs or transcripts of answers given by the two men.
Democrats had suggested the president's joint appearance with Mr Cheney might be an attempt to eliminate the possibility of providing contradictory testimony over whether the White House did all it could to head off the attacks.
But Mr Bush laughed off the suggestion.
It's very difficult to have any confidence that candid answers were given at the 2004 meeting considering that the record, even years later, still has so many troubling holes in it. By the same token, how are either Catholics or non-Catholics supposed to have any confidence that the problem of pedophile priests was properly or will ever be appropriately dealt with? The current, decades-old problem first came to the attention of the public in 2002:

Ultimately, it became clear that, over several decades in the 20th century, priests and lay members of religious orders in the Catholic Church had sexually abused minors on a scale such that the accusations reached into the thousands. Although the majority of cases were reported to have occurred in the United States, victims have come forward in other nations such as Ireland, Canada and Australia. A major aggravating factor was the actions of Catholic bishops to keep these crimes secret and to reassign the accused to other parishes in positions where they had continued unsupervised contact with youth, thus allowing the abusers to continue their crime. [emphasis added]

The real damage to the Church's credibility wasn't simply that it was embroiled in a scandal about adults abusing their positions of authority for their own sexual pleasure, it was in the fact that these crimes were enabled by a hierarchy that should have put the interests of the young people first. So, while I fully understand why the Church puts its institutional privileges first and acts to protect its "chain of command," the price of such protection is their credibility with the public.

The author is a Congregationalist Protestant, a New England denomination that is a direct theological descendant of English Puritanism. As such, he's mildly suspicious of the Roman Catholic Church in general, but only as an institution. He doesn't go so far as to hold Catholicism against anyone in a personal manner.


Kudos for Kurtz

Howard Kurtz gets slammed a lot for being a lousy, lazy journalist but I noticed one of the final paragraphs in his report on Glenn Beck and Fox News:

In a recent online interview, CBS's Katie Couric asked Beck about critics who say he "resorts to inflammatory, unfair, despicable, hateful rhetoric." Beck's response: "Did they say that when I was saying the same things about George W. Bush, or is this new?" (Beck has criticized Bush, but not with the harsh language he employs against Obama.)

Y'see, Kurtz's last sentence in parentheses is what we call real, live, actual journalism!!! This is where a reporter supplies meaningful context to what his subject says and doesn't just engage in "he-said, she-said" stenography.

Asked if he regretted saying the president has a "deep-seated hatred for white people or the white culture," Beck said: "I'm sorry the way it was phrased."

Kurtz makes it clear that Beck was given a chance to, but refused to, clarify said remarks. So what Beck means by "sorry" is far from clear.

Also, FAIR points out that Beck is hardly an historian. Beck hates Woodrow Wilson and there is indeed quite a bit worth hating. But Beck's assertion that Wilson promoted Prohibition is simply inaccurate. Wilson vetoed the 1919 Volstead Act, which was the enabling legislation for the 18th Amendment which had put Prohibition into place.

And that said, it was also quite interesting to see that, according to Kurtz, Beck is fast becoming the face of Fox News. That's far from being a good thing as many advertisers have abandoned the network, precisely because of Beck's influence.

More than 200 companies have joined a boycott of Beck's program, making it difficult for Fox to sell ads. The time has instead been sold to smaller firms offering such products as Kaopectate, Carbonite, 1-800-PetMeds and Goldline International. A handful of advertisers, such as Apple, have abandoned Fox altogether.

I had to chuckle when I read this bit:

Television analyst Andrew Tyndall calls Beck an "activist" and "comedian" whose incendiary style has created "a real crossroads for Fox News."
"They're right on the cusp of losing their image as a news organization," he declares. "Do they want to be the go-to place for conservative populist ideas on television, or do they want to be a news organization? Ailes has done a good job of doing both."

Good job?!?!? Uh, no he hasn't. Among informed audiences, Fox has long since lost any image of being even remotely in even the general vicinity of being a real news organization.


Religion in the news - round-up

Texas State Board of Education (Dominated by 10 Republicans with only five Democrats in opposition) decides, without using any testimony from historians, sociologists, or economists, that Senator Joe McCarthy's suspicions were confirmed, that Milton Friedman and Frederick Hayek should be added to the textbooks as economists to study and that Thomas Jefferson is to be tossed out and St. Thomas Aquinas and John Calvin brought in as influences on the Founding Fathers. Worthy people, of course, but Jefferson was staunchly secular and the two named replacements were religious people.

"Glenn Beck has repeatedly attacked the concept of social justice and churches that promote it, asserting that it is 'code language for Marxism' and warning that 'when you see those words, run.'"
Beck: " justice and economic justice are code words. Look for those code words, and then ask your church, 'What do you mean by that? What is that?' Because they're code words..."
The piece doesn't mention Methodism or any other type of non-Evangelical Protestantism, but I think we can safely assume that the First United Methodist Church of Germantown (FUMCOG) would be on Beck's target list.

The religious right appears to be unhappy sharing the same party with the teabaggers and corporate enablers.

And no, the teabaggers of the right wing have nothing in common with liberals. There's simply not much prospect of all of us ever working together to solve common problems. Representative Paul Ryan (R-WI), the ranking Republican on the House Budget Committee, is a devoted follower of Ayn Rand and has a considerable following in the Republican Party. Unfortunately, that means he doesn't see the Bush years as disastrous (Speaking here in an economics sense). He sees them as bright, happy days where the right philosophy was applied.

Here's a dose of reality to counter Ryan's notion:

Jane Hamsher, the proprietress of, has long had a real problem with both the National Abortion Rights Action League (NARAL) and Planned Parenthood for being in the tank for abortion opponents. They were both caught off-guard and completely flat-footed when Representative Bart Stupak (D-MI) sprang his antiabortion-rights health care provisions on the House right before their bill was passed. The good news is that NARAL and Planned Parenthood have both denounced the Stupak provisions, but "...neither NARAL nor Planned Parenthood scored either the House or the Senate bill — making a complete mockery of their entire scorecard system."

Thankfully, Stupak and his provisions have run into problems, even though none of those problems can be traced to either NARAL or Planned Parenthood.

On the even-more-positive side for news on health care, serious issue is taken with Representative Dennis Kucinich's (D-OH) position that if we can't get the public option into the health care bill right now, that it's doomed never to go in.

Had to shake my head when I saw this: Iran is prosecuting people who tortured dissidents while the US feels free to lecture other countries, including Iran, on human rights.


Torture and the meanings of words

Karl Rove writes in his memoir:

"[T]he president never authorized torture. He did just the opposite by making sure the EITs [enhanced interrogation techniques on high-value terrorist detainees] did not cross the legal line into torture."

Of course, this immediately reminded me of Bill Clinton's famous line:

It depends on what the meaning of the word "is" is.

I don't think Rove is precisely lying in his sentence. Not precisely, anyway. But it seems to me that the sentence is very, very fuzzy. And deliberately so. What precisely does Rove mean by "EITs did not cross the legal line into torture"? Who exactly drew that line? How was the word "legal" defined? Using exactly what authority and which precise laws? "Torture?" Who defined torture for the purpose of this sentence?

As we read President G. W. Bush's order of 7Feb2002, it's very clear that Bush is not using the Geneva Conventions as his guide.

Our nation recognizes that this new paradigm - ushered in not by us, but by terrorists - requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.
2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter...

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world...
And Bush's qualification as to why we don't simply brutalize captured personnel:

3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.
What's not at all clear from this description is why the order was written in the first place. If US forces are going to deal with captives "in a manner consistent with the principles of Geneva," why not just keep the Conventions in force? Why go to all the trouble of saying what the US was and wasn't legally permitted to do if al Qaeda and/or Taliban personnel were in US custody? The Torture Memo Analysis (TMA) has numerous links to what it considers relevant documents and it doesn't contain anything that answers this question.

BTW, an analysis written on 30Jan2003 disputes the logic in the Bush order of 7Feb2002:

If asked, most states would point to numerous provisions of Hague and Geneva Law as still binding on this conflict [The US vs al Qaeda & the Taliban], even though it does not meet the definition of armed conflict in those instruments.
This is not to suggest that every scenario in the "war on terrorism" is addressed by customary international law.
The question, however, is whether those ambiguities can and should be resolved through a new round of codification, or whether other methods are open to decisionmakers.
The burden needs to be on those calling for revision to demonstrate exactly what needs to be improved.

As we know, of course, the Bush Administration never applied to any international bodies to resolve any such disputes. Bush relied instead on memos written by subordinates. As the aforementioned TMA makes clear, the 22Jan2002 memo from Jay Bybee is simply making an argument that the Geneva Conventions aren't applicable, the memo is not stating that as a fact.

As the TMA makes clear:

5) That protection is not merely procedural. As long as the Convention protects an individual, grave breaches of its provisions constitute a breach of both U.S. and international law.
6) Article 130 of the Convention provides that grave breaches include "... any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Looking at the photos of how captured personnel were treated at the Iraqi prison known under both the dictator Saddam Hussein and the US occupation of Iraq as Abu Ghraib, I don't believe there can possibly be any serious question that Article 130 of the Convention was very consciously, willfully and deliberately violated.

Bush admitted in 2008 that:

I was the Commander-in-Chief of a military where these disgraceful acts took place

He tried to add lots of qualifications and exceptions, trying to distance himself from those horrific acts, but as a piece by the Center for American Progress makes clear:

We now know that Major General Antonio Taguba produced a 53-page report detailing alleged torture in Abu Ghraib for Lieutenant General Ricardo Sanchez, senior commander in Iraq. Sanchez received this report in February 2004 – two months before the first graphic photos of abuses were shown publicly on 60 Minutes II.
Taguba's report documents numerous instances of "sadistic, blatant, and wanton criminal abuses at Abu Ghraib" dating from October to December 2003.

If the President and his subordinates were not fully aware of these abuses, they most certainly should have been. Also, Sourcewatch details the reaction of an Administration that just didn't really feel much concern over how persons in US custody were treated. 

It says absolutely nothing good about the Office of Professional Responsibility that it cleared Presidential subordinates John Yoo and (now Judge) Jay Bybee of "professional misconduct" meaning they were not referred to a bar association for them to lose their legal licenses, but were merely guilty of exercising "poor judgment." Still, that's not exactly a resounding declaration of good legal analysis.

So, did the President "authorize torture"? Personally, I think he did, but he did so via winks and nods and through, at best, poorly written memorandums that were highly questionable from a legal standpoint. So is Rove being truthful? Perhaps in a very highly technical, very carefully qualified sense, he is.


Obama Administration facing crisis

The WaPo puts out a truly subservient, hero-worshiping, fanboy-type piece on President Obama's Chief of Staff, Rahm Emanuel. Emanuel is clearly meant to be viewed as having a halo around his head, he's described as being the "White House voice of reason." What, pray tell, is this awesome "reason" based on? The first one given (The same point was made earlier by another WaPo reporter) is:

In December 2008, Obama, Emanuel and Republican Sens. John McCain (Ariz.) and Lindsey O. Graham (S.C.) met in Obama's transition headquarters in Chicago to discuss detainee policy. According to Graham, Obama turned to him at one point and said, " 'I'm going to need your help closing Guantanamo Bay. . . . I want you and Rahm to start talking.' " They did, and as the discussions progressed, Emanuel grew wary that closing the U.S. military prison in Cuba was possible without opening a slew of other politically sensitive national security problems " 'This stuff is like flypaper,' " Graham recalled Emanuel saying. " 'It will stick to you.' "
Graham said Emanuel was well aware that his and any other Republican support for closing Guantanamo Bay hinged on keeping alleged Sept. 11 mastermind Khalid Sheik Mohammed out of civilian court.

A blogger asks:

Lindsey Graham is one of 41 Republican senators. He has the capacity to be reasonable. And yet when he’s faced with people who know more than he does, he acts like a baby, as with his petulant treatment of longtime FBI counterterrorist Ali Soufan last year. He is not the chairman of anything. He is not the ranking member of anything. He controls no money. If you believe he has the power to rally along GOP votes, ask how that climate change bill is coming. There is absolutely no legal or procedural way that the road to shutting Guantanamo down runs inexorably through Graham’s office. That’s a political choice.

The WaPo piece makes no attempt to explain the blogger's question as to why Senator Graham is so important. Keep in mind that the blogger's piece came out on February 15th whereas the WaPo piece came out on March 2nd. It's not like the WaPo stenographer/reporter didn't have time to ponder the question.

Nor is there any legitimate, established reason as to why Republicans want to avoid a civilian trial for Khalid Sheik Mohammed. If Emanuel were trading in legitimate concerns and balancing them off against one another, that'd be one thing. He's instead, balancing off a reason that Graham and McCain more or less just plucked out of thin air versus a legitimate legal reason based on legal tradition and the Constitution.

There is simply no requirement for an accused terrorist to be tried outside of America's judicial system.

The position staked out by Lindsay Graham et al. favoring military commissions over federal criminal trials for the Gitmo detainees we plan to charge with wrongdoing as the “best way to render justice, win this war and protect our nation from a vicious enemy,” is not especially more coherent. Among other things, after 8 years, the commissions have convicted 3 defendants, 2 of whom are already back on the streets. In the same time, according to NYU, the criminal justice system has pursued 800 terrorism prosecutions with a conviction rate of 90%. The new and improved commission process is certain to generate just as much litigation as the last one – and commission defendants will enjoy a host of potentially powerful defenses to their prosecution they won’t have in criminal trials.

The piece goes on to point out that the Rahm Emanuel-induced moral and political compromises that the Obama Administration is now making are absolutely killing the Administration's credibility on the whole issue of how to deal with terrorism suspects.

But it’s hard to have a coherent much less dominating message when talking out of all sides of the mouth. It is not news that the Obama Administration seems to have been struggling for some time with internal divisions on these issues.

It's not as though the rest of the world hasn't noticed either, that the US policy on terrorist suspects is morally bankrupt. A blogger points out that Pakistan, a country far more on the front lines of terrorism than the US ever will be, is nevertheless applying due process.

Yet what happens when they want to imprison foreign Terrorism suspects? They indict them and charge them with crimes, put them in their real court system, guarantee them access to lawyers, and can punish them only upon a finding of guilt.

The US stands with an inferior, scotch-tape-and-band-aids, carelessly-constructed system that doesn't even deliver convictions. I have to say, I'm completely baffled as to why Emanuel thinks this case shows him as anything other than a hopeless clown. He's constructed a lose-lose scenario whereupon Democrats surrender upon matters of deep and serious principle, end up looking completely without morality and gain absolutely nothing in return. McCain and Graham continue to filibuster along with their fellow Republican Senators each and every single time they possibly can. Where and how they're doing anything to help the Administration is a complete mystery.

It's not like the policy on terrorism suspects is isolated, either.

We’ve already seen the Administration’s energy/climate change initiative so watered down in the House that it caused deep splits in the alternative energy/environmental community. Those who pleaded for pragmatic patience on the House Bill are now tearing their hair out watching the Senate become a bastion of delay and denialism, with little effective push back from the Administration.

Again, we're seeing a complete lack of principle and coherency from the Administration. Again, we're seeing a lose-lose situation from people who are allegedly smart. Obviously, President Obama is a grown-up and obviously, Emanuel was appointed by Obama and has Obama's full confidence. But Emanuel's fingerprints are apparent.

The head man of "The Village," David Broder, got very snippy and aggravated about Emanuel's obvious disloyalty being on display with all the planted stories about President Obama being to blame for the poor performance of his Administration (Not that Broder would actually accuse Emanuel of doing the leaking, o-o-oh no-o-o!!!) and made a very interesting charge:

The underlying problem, in their eyes, is a badly damaged economy that has sunk Obama's poll numbers and emboldened Republicans to blockade his legislative program.

Okay, let's take Broder's word for this. It's not like the economy was considered to be in good shape when Obama took the oath of office. But what happened? The stimulus package passed in February 2009 was too small. And why was it too small? "...Obama and the U.S. Congress - driven by centrist senators from both parties - have decided..." (emphasis added). And who is the great champion of "centrism"? Yup, his name is Rahm Emanuel.

I don't see Emanuel as exercising some mysterious, nefarious, Rasputin-like influence. I think it's far more likely that Emanuel sincerely believes that centrism and compromising principles in return for fleeting, evanescent advantage is the way to go. I believe Obama trusts that Emanuel knows what he's doing. What's also obvious to us DFH's, the dirty hippie bloggers, is that Emanuel's strategy simply isn't working. It never was working and it never will work. I'm not sure whether Emanuel should be fired or simply overruled, but either way, the Obama Administration has to do something and has to do it soon.


Democratic leadership and primaries

Y'know, I've felt this way for a long time anyway, but I think it needs to be re-stated upon the President's endorsement of Senator Blanche Lincoln (D-AR) to be re-elected. The Democratic National Committee (DNC), the House and Senate Democratic Campaign Committees (DCCC & DSCC) need to stay out of primary races. They should never express any sort of opinion and they should never chip in as much as a nickel to any primary campaign.

First off, it's not the slightest bit surprising that in each and every single, solitary case that the White House and the rest of the Democratic leadership group will habitually support the incumbent in their primary battles. I mean, that's just a given. Obviously, these groups want to continue working with people that they've gotten to know. Obviously, they feel that "our buddy" has contributed to "the fight" and will continue to do so, whether or not they've actually contributed very much or, in the case of Ben Nelson (D-NE), they've actively worked against the better interests of the Democratic Party as a whole and used up money that could have been put to more worthwhile purposes.

I have nothing but good things to say about how MoveOn has responded to the Blanche Lincoln-Bill Halter primary. MoveOn appears to understand why primaries exist.

Arkansas Senator Blanche Lincoln is one of the worst Democrats in Washington, siding with corporate interests to obstruct progress.
Bill Halter is the progressive lieutenant governor of Arkansas. Halter has fought to make sure every child in Arkansas can afford to go to college, has helped organize free clinics to offer health care to people without insurance, and opposed vicious anti-gay ballot measures.

The Nation finds Lincoln very uninspiring:

Senator Blanche Lincoln, the exceptionally uninspired (and uninspiring) Arkansas Democrat who has dragged her heals [sic] on health-care reform, labor-law reform and just about every other major issue that matters to grassroots Democrats while at the same time backing bank bailouts and trade policies that batter Arkansas workers and farmers, will face a serious primary challenge from the state's lieutenant governor.
Bill Halter, who was elected to Arkansas' No. 2 job with 57 percent of the vote in 2006, has positioned himself as a far more progressive player on education, health care and, above all, economic issues than Senator Lincoln.

The Nation feels that "old-fashioned populism is the only message that will keep Democrats competitive in states such as Arkansas" and clearly, if the Democratic leadership group is not going to be part of that populist initiative, they'd better get out of the way and let the more progressive, energetic people take charge.

Rachel Maddow agrees and questions DNC Chairman Tim Kaine about this. The piece with that video also runs a quote from Steve Rosenthal, a veteran Democratic strategist and former top AFL-CIO official: "People voted for change in ’08 and feel like they’re not getting the change they voted for.”