The University of California will form a special committee to study whether it should take over inmate health care for the state’s troubled prison system, the chairman of the university system’s Board of Regents said this week.
Regents Chairman Russell Gould announced the committee, which university officials said will study issues including the cost, effect on labor relations, and the university’s liability in inmate lawsuits. Health care has been so bad in the state’s 33 adult prisons that a federal judge appointed a receiver in 2006 to make improvements.
A study by a company affiliated with the University of Texas has criticized the receiver for running up costs as part of the improvement effort. It projected California could save more than $4 billion over five years and $12 billion over 10 years by shifting control to the University of California…..
The last ‘graph of Mayer’s review is clearly what she means to be the takeaway:
Thiessen’s effort to rewrite the history of the C.I.A.’s interrogation program comes not long after a Presidential race in which both the Republican and the Democratic nominees agreed that state-sponsored cruelty had damaged and dishonored America. The publication of “Courting Disaster” suggests that Obama’s avowed determination “to look forward, not back” has laid the recent past open to partisan reinterpretation. By holding no one accountable for past abuse, and by convening no commission on what did and didn’t protect the country, President Obama has left the telling of this dark chapter in American history to those who most want to whitewash it.
MEANWHILE, THE OBAMA ADMINISTRATION IS DIVIDED ABOUT HOW TO HANDLE DETAINEES
Charlie Savage reports in the NY Times on Monday about the dueling secret memos dealing with how the US is—and isn’t—legally empowered to handle detainees who are deemed to be terrorism-related.
Here are the relevant 2 ‘graphs:
….behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia â€” far from the active combat zone â€” and was being held without trial by the United States at GuantÃ¡namo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.
The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.
THE CHURCH CHILD ABUSE SCANDAL AND SHOOTING THE MESSENGER
More than just a few Catholic church higher-ups have suggested in the last few days that the criticism leveled at the church and at Pope Benedict XVI for actions not taken to protect kids from pedophile priests—here and in Europe—amounts to Catholic bashing, or things even more conspiratorial
The pope may have plausible deniability in the cases reported by the New York Times. But the best defense for the Vatican and its supporters is to contest the accuracy of these and other reports, not to accuse journalists (or activists) of selective criticism, let alone an ignoble conspiracy. Playing the anti-Catholic card just won’t work. The sex-abuse scandal in the United States should have demonstrated that.
The photo above doesn’t have a thing to do with the stories in this post. I took it on Friday afternoon when I stopped to talk to police at the scene of an attempted robbery of a West Los Angeles marijuana physician’s office on Pico Blvd., just west of Sawtelle, in which two people were shot, one of them critically. (The guy in the snazzy hat is the detective.) The shooting, which took place just after 4:30 p.m., was an odd and scary one according to the two witnesses with whom I spoke. (The witnesses were two young men in their early 20s.) They told me that a couple of guys walked into the doctor’s office, one dressed unaccountably in a yellow reflective traffic vest, the other dressed normally but with a back back strapped to his chest. The yellow vest guy signed in as if he was a patient, then the backpack guy reached into his pack, pulled out a pistol and shot the doctor’s receptionist and another office employee, a single shot fired at each. Just like that. No demand. No warning. A few seconds later, the shooter and friend ran out. It is not clear if they attempted to steal anything, or not.
STATE EDUCATION CUTS = 48 OR 50 KIDS IN A CLASSROOM
It is no shock to find out that this fall many LAUSD classes are absurdly large and crowded due to teacher cuts. On Sunday, the LA Times had a look into some of those classes and schools that are faring the worst.
As it was, every seat was taken. One young woman plopped on the floor, next to a microwave oven. A young man stood in the corner, shifting from one foot to the other. Three teens scrunched on top of a desk. Everyone’s attention was riveted on the slight, soft-spoken man pacing the small patch of bare linoleum in front of them….
But, hey, at least the state legislature avoided letting those prisoners out a few months early (and putting them on house arrest) Whew! .
OBAMA AND NEWSPAPERS
During his Sunday media blitz, Barack Obama said that he would be open to giving tax breaks to newspapers that restructured as nonprofits.
….“I haven’t seen detailed proposals yet, but I’ll be happy to look at them,” Obama told the editors of the Pittsburgh Post-Gazette and Toledo Blade in an interview.
Sen. Ben Cardin (D-Md.) has introduced S. 673, the so-called “Newspaper Revitalization Act,” that would give outlets tax deals if they were to restructure as 501(c)(3) corporations. That bill has so far attracted one cosponsor, Cardin’s Maryland colleague Sen. Barbara Mikulski (D).
“I am concerned that if the direction of the news is all blogosphere, all opinions, with no serious fact-checking, no serious attempts to put stories in context, that what you will end up getting is people shouting at each other across the void but not a lot of mutual understanding,” he said
A congressional push to enact a federal shield law for journalists is being held up by disagreement with the Justice Department on how to deal with cases that involve leaked national security information, congressional and media sources say.
OPEN LETTER TO THE TEACHERS’ UNION….FROM A UNION REP
(The link was in one of last night’s tweets by another LAUSD teacher/union activist, Jose del Barrio.)
In the letter, Henry suggest that the union rethink its knee-jerk condemnation of the charter school movement—for its own benefit.
Here’s a clip:
At this critical juncture in our union’s history, with at least one third of our union at stake, it is imperative we learn from past mistakes with haste. In particular, we must undo the misunderstanding, mischaracterization, and underestimation of the charter movement in Los Angeles which has marked your term and fueled the coalition of forces behind the School Choice Motion.
47-YEAR OLD ESCAPE FROM THE ROCK, NOT YET A COLD CASE
Okay, well if the 1962 infamous escape from Alcatraz isn’t a cold case, it’s mighty chilly. But according to Monday’s NPR story, U.S. Marshall’s are still actively working the case.
The U.S. Marshals Service is still actively pursuing the case on the chance that the three men pulled off one of the most daring prison escapes in U.S. history.
“Leads still come in. I just got one a couple weeks ago,” U.S. Marshal Michael Dyke said recently in his office in Oakland, Calif., as he poured over a stack of old file folders from the case.
There are now more than thirty million American citizens who cannot get coverage. In just a two year period, one in every three Americans goes without health care coverage at some point. And every day, 14,000 Americans lose their coverage. In other words, it can happen to anyone.
But the problem that plagues the health care system is not just a problem of the uninsured. Those who do have insurance have never had less security and stability than they do today. More and more Americans worry that if you move, lose your job, or change your job, you’ll lose your health insurance too. More and more Americans pay their premiums, only to discover that their insurance company has dropped their coverage when they get sick, or won’t pay the full cost of care. It happens every day.
Barack Obama, September 9, 2009
I will return to local issues tomorrow, but the undeniable story of moment-is President Obama’s Wednesday night address to the joint session of Congress.
There are plenty of other people who are commenting well—and poorly—on Obama’s speech (which, for the record, I thought was a game changer), so instead, I want to say something personal here.
Like many Americans, I pay a fortune for health insurance.
It doesn’t matter that I have never (knock on wood) been ill, other than occasional colds and rare bouts of the flu—for which I never, I mean never-— go to the doctor.
My only trip to the hospital in my adult life was to have my wonderful son, Will, nearly 24 years ago.
I pretty much show up in medical offices solely for my single yearly check-up and about once every ten years when I get a nasty case of poison oak (and that only when the dog strays into the stuff without my knowing it).
Furthermore, my weight is on the low side of normal, I exercise regularly, have great cholesterol, perfect blood pressure and no chronic conditions.
Yet, although I have good health, and a gazillion dollar deductible, I pay through the nose every month. Why? Because I’m self employed—which means that my insurance is two or three times the cost of what one pays through an employer. And I am middle-aged. Late middle aged, if I am to be honest.
But that isn’t the most vexing part. Not only is my health insurance—which happens to be Blue Shield—absurdly expensive, it pays for almost zero, unless something truly hideous happens to me. Then, once my deductible is used up, it is supposed to pay most of the bills.
(Operative phrase “supposed to.” We have all heard the horror stories. Many of us know somebody or several somebodies who have lived through the horror stories.)
Moreover, even things that Blue Shield, used to pay for, like yearly mammograms, they have found new ways to get out of. And certainly my insurance doesn’t cover common sense preventative care. For instance, although as a small-boned, slender woman I am the potential poster girl for osteoporosis, my insurance company wouldn’t dream of paying for a baseline bone density scan—although, as a preventative measure, it is likely to save long term costs, not to mention heartache. (I just had one and was thankfully informed I have the spine of a 25-year old. For now, anyway.)
Except for part of one yearly check-up I pay for all doctor visits, plus any of my preventative tests, the diagnostic sonograms that my mammographer rightly advises, my eye exams to make sure that nothing creepy like glaucoma is lurking, whatever—all entirely out of pocket. As I said, my insurance will pay for (most) of one yearly doctor visit. But, if every other year I think it wise to be checked by both an internist and a gynecologist—fuggedaboudit. And any kind of specialist? You must be joking.
If, heaven forbid, I ever do get actually, even marginally sick, or find some suspicious spot on my arm that needs to be removed and biopsied, or maybe get some test for some recently acquired allergy, I fear that my insurance will really go sky high. Or if something worse than that happens, they’ll try to drop me.
So quite frankly I notice that put off having some of the exams, or tests, or check-ups that I know I should have—because there is that niggling, back-of-the-mind worry about my insurance doubling or worse, like my close friend’s did, just because she got a prescription for an inhaler for those occasional moments when she’s at someone’s house and has a mild allergic reaction to cat dander.
Yet, I know I’m churlish to complain at all. I am, after all, one of the incredibly lucky ones. I have health insurance. And I make a respectable amount of money doing work I love— teaching, book writing, and nattering journalistically about issues of social justice— so I can afford my ever-rising premiums and the mortgage on my canyon house, and life’s other necessities.
Millions of other Americans work long hours at one or more jobs, but don’t make enough to afford to pay insurance premiums. This means if they can scrape together the money to take their kids, or themselves, to the doctor, they go. When they can’t, they put it off. Sometimes with disastrous consequences.
Still other Americans—some of them my close friends and family members,—have fought cancer or some other serious illness. Now they are uninsurable on the open market because they once had the bad sense to get sick. If they don’t have jobs that force insurers into carrying them, or spouses with similar jobs—or if they lose their jobs, God forbid—they are screwed.
So, yes, I want health care reform that would make it illegal to deny coverage for preexisting conditions.And I also want the public option.
I’d like to buy into some kind of insurance that doesn’t charge usurious rates, or jump in price by 30 percent or more per year, and doesn’t have a zillion dollar deductible. I would like that insurance to pay—with a non-stratospheric co-pay—for my ordinary doctor visits, and for whatever sensible preventative treatments or tests my test-conservative doctor thinks necessary.
I also want to be able to go to a physician without always having to weigh the larger, long-term fiscal consequences, when going would be the wise and healthful thing to do.
I want that for me, for my son, my nephew, and many of their friends, and for a pile of my own best friends, all of whom also work their butts off, pay their taxes, and either run small business or are also self-employed. And I want it too for the 30 million fellow Americans who cannot get coverage at all, and the many million more who are under insured.
I don’t think it’s too much to ask. I really don’t.
UPDATE: Two USC/Annenberg grad students—Len Ly and Hillel Aron— watched Obama’s health care address along with patients waiting for care at two different LA emergency rooms. Clever idea.
*Note: I managed to insert some strange moment in coding that erased nearly a fully paragraph from an earlier version of this post, making that section of it confusing to read. Obviously it’s corrected now.
Anyone with a trace of commonsense and compassion would have supported William G. Osborne’s request for a post-conviction DNA test.
That would leave out five empathy-void robes on the U.S. Supreme Court denied him. Ironically, so too the Obama administration, which filed papers opposing Osborne’s request. Osborne wanted the chance to conduct a more sophisticated DNA test on evidence than was available when he was convicted in a 1994 kidnap, rape and assault of a prostitute in Anchorage, Alaska. A three-judge panel from the Ninth Circuit Court of Appeals ruled in April 2008 that he should be able to test semen found in a condom and two hairs. Heck, Osborne even offered to pay the $1,000 tab himself. But before you get all weepy about Osborne or jump down my throat for coming to the aid of a possibly guilty rapist, consider a few facts about the case and Osborne’s troubled background. It’s a tough case. If you were either Peter J. Neufeld or Colin Starger, his lawyers at the Innocence Project at New York’s Benjamin N. Cardozo School of Law, you probably would have preferred a more sympathetic client. But due process and the Bill of Rights don’t discriminate by zip code or storyline.
The assorted and sordid facts.
—It’s not like Osborne is languishing in prison because he may have been wrongly convicted. He served 14 years and was paroled in 2007. Six months later, he was back in prison as part of a plea deal in a home invasion case. He and a group of masked men stood accused of raiding a home in search of drugs and money and pistol-whipping residents, bound in duct tape.
–Osborne’s own lawyer in the 1994 case sold him out. She told an employee of the Alaska state crime lab that she thought her client was guilty. Here’s the quote as it appears in the writeup by the three-member panel of the Ninth Circuit Court of Appeals. “Counsel disbelieved Osborne’s statement that he did not commit the crime.”
–Osborne gave the parole board a written confession of the kidnap/rape. The Ninth Circuit considered that seeming nail-in-the-coffin when it ruled in his favor. The panel wrote:
“Either the confessions will be proven accurate by test results, proving Osborne was in fact the passenger-rapist and his case will proceed no further, or the test results will exclude him as the source of the biological material, in which case serious questions will be raised about the validity of his confession as and whether, as Osborne now claims, he was motivated to confess falsely as the most expeditious means available to obtain release from prison.
Osborne comes across as calm and articulate. He seems resigned to whatever happens. His head is shaved and he has a graying beard. Last year while in prison, he married a woman he knew from long ago. She has young twins and they all visit him in jail.
Asked why he wants the test, he said: “It’s going to resolve this case for once and for all as to whether or not I’ll be able to prove my innocence or my guilt.”
What would the test show? Osborne leaned back to think about it. “Can’t really answer that question,” he finally said.
Osborne was born and raised in South Carolina, graduated high school there. He said he was accepted into The Citadel but it was too expensive, so he joined the Army.
He was just 20 when he was arrested, had his 21st birthday in jail a few days later.
In the years since he’s been gone, his mother, grandmother, aunt and three first cousins all died. A daughter he fathered as a teenager now is a teen herself.
In June 2007, after serving 14 years of a 21-year sentence for rape, kidnapping and assault, he was paroled. Six months later, he was accused of being part of a group of masked men who stormed a home looking for drugs and money, who duct-taped and pistol-whipped hostages.
On Jan. 30, he agreed to a plea bargain that requires him to serve 10 years for the robbery and another six years still hanging over him on the old case.
“Even if I was to be found innocent, I can’t get back the time I’ve already done. It’s time lost,” he said. “So on a certain level, I don’t even care about the case anymore because it’s just gotten to the point where it’s basically something from my past.”
But he recognizes the issue is bigger than he is. He wants to win, he said, “so that the next person doesn’t have to go through this for the next 12 years.”
Daily Journal â€˜s Supreme Court reporter Lawrence Hurley explained in his story why the new president came down on the side of the right-leaning justices:
The Obama administration and a number of states, including California, favored reversal because a decision to affirm the 9th Circuit would likely have required the federal government and states to revisit their procedural rules, even if they already allowed inmates access to the evidence.
California Deputy Attorney General Michael Chamberlain described the high court ruling as a “well-reasoned decision” that recognizes how the states have already been active on the issue.
“In California, we have a very comprehensive and effective mechanism,” he said.
Passed in 2000, California’s law, which applies to anyone convicted of a felony, requires the state to maintain DNA evidence for the duration of an inmate’s sentence and allows for retesting regardless of the plea. Indigent inmates can also get legal assistance to pursue such claims.
Peter Neufeld of the Innocence Project told the Daily Journal the ruling was “deeply flawed and disappointing.” He said he would try to persuade the three states that don’t allow at least some limited post-conviction access – Alaska, Massachusetts and Oklahoma – to pass laws similar to those in other states.
I’m personally fond of the story about how—in addition to her single mom—one of Judge Sotomayor’s inspirations was….Nancy Drew. (Me too, girlfriend. Me too.)
(A reread of those 1930′s and 1940′s-written novels reveals some very creepy Jim Crow moments, but despite the downsides, for thinking girls of certain generations, they provided one of the few available models.)
THE ROSEN FACTOR
The big buzz around the blogosphere right now has less to do with the choice of Sonia Sotomayor, and more to do with the very negative take on Sotomayor and her intellect by the New Republic’s Jeff Rosen, who used a string of anonymous sources to question Sotomayor’s braininess or lack thereof.
[Rosen's] was an ugly little pieceâ€”it suggested that she was shrill and not so smart, never mind the summa from Princeton and the editorship on the Yale Law Journal. Its flaws, tonal and reportorial, are obvious even to the lay person, just as its conclusions are attractive to a certain political set: “So she’s dumb and obnoxious. Got it,” a National Review blog said.
“…I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths.”
I can’t get past that line–mostly because, as Greenwald said yesterday, it drips with unintentional irony–Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, His piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less.
Here is an essay from a former law clerk, Gerard Magliocca, who worked around her for thirteen years.
And here is what Professor Rob Kar, former clerk for Sotomayer said at length—on the record (as opposed to the off-the-record gossip and smearing that Rosen quoted)—about his former boss. Below is one tiny snip:
Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them areâ€”quite franklyâ€”pedantic in comparison.
UPDATE: GLENN GREENWALD at Salonhas the most thorough critique of Rosen’s piece and Rosen’s subsequent defense of his story, which at this point is looking increasingly indefensible. Greenwald’s long rundown is worth reading because it points beyond the Rosen/Sotomayor issue to much of what is maddening about many mainstream media stories. (Greenwald is, by the way, a former constitutional law and civil rights litigator.)
When American Idol creator, Simon Fuller, chose the song for finalist Adam Lambert to sing on the show’s last night of competition, there was a moment of real trepidation after it was announced that Fuller had selected A Change Is Gonna Come, Sam Cooke’s heart-shattering ballad that, after Cooke’s death in 1964, came to so thoroughly embody the pain and the hope of the civil rights era that it has forever lodged itself in the realm of the sacred.
As a consequence of its historic status combined with Cooke’s devastating delivery on that original recording, there are precious few people who have the license to sing that song without making us cringe. Bettye LaVette had the license, when she sang at the Lincoln Memorial. Jon Bon Jovi, who sang with her, despite his solid performance, did not.
So what in the world were the American Idol people thinking by handing a Hollywood-styled white boy this of all songs?
As it turned out, Simon Fuller knew exactly what he was doing. On the resolutely middle-of-the-road mega-hit music show, the gay kid with the black fingernails, the guyliner and the killer voice remade Sam Cooke’s anthem into a reminder of the basic rights that we have yet to grant the segment of our citizenry of which Lambert is a member.
Two-hundred and fifteen have been fired since Obama was sworn in alone, the most recent casualty of Don’t Ask Don’t Tell being experienced Arabic translator, Lt. Dan Choi.
Here are some relevant clips from Rich’s column:
Despite Barack Obama’s pledges as a candidate and president, there is no discernible movement on repealing the military’s “don’t ask, don’t tell” policy or the Defense of Marriage Act. Both seem more cruelly discriminatory by the day.
When yet another Arabic translator was thrown out of the Army this month for being gay, Jon Stewart nailed the self-destructive Catch-22 of “don’t ask”: We allow interrogators to waterboard detainees and then banish a soldier who can tell us what that detainee is saying. The equally egregious Defense of Marriage Act, a k a DOMA, punishes same-sex spouses by voiding their federal marital rights even in states that have legalized gay marriage. As The Wall Street Journal reported, the widower of America’s first openly gay congressman, Gerry Studds of Massachusetts, must mount a long-shot court battle to try to collect the survivor benefits from his federal pension and health insurance plans. (Studds died in 2006.) Nothing short of Congressional repeal of DOMA is likely to rectify that injustice.
Most Congressional Republicans will still vote against gay civil rights. Some may take the politically risky path of demonizing same-sex marriage during the coming debate over the new Supreme Court nominee. Old prejudices and defense mechanisms die hard, after all: there are still many gay men in the party’s hierarchy hiding in fear from what remains of the old religious-right base. In “Outrage,” a new documentary addressing precisely this point, Kirk Fordham, who had been chief of staff to Mark Foley, the former Republican congressman, says, “If they tried to fire gay staff like they do booting people out of the military, the legislative process would screech to a halt.” A closet divided against itself cannot stand.
But when Congressional Republicans try to block gay civil rights â€” last week one cadre introduced a bill to void the recognition of same-sex marriage in the District of Columbia â€” they just don’t have the votes to get their way. The Democrats do have the votes to advance the gay civil rights legislation Obama has promised to sign. And they have a serious responsibility to do so. Let’s not forget that “don’t ask” and DOMA both happened on Bill Clinton’s watch and with his approval. Indeed, in the 2008 campaign, Obama’s promise to repeal DOMA outright was a position meant to outflank Hillary Clinton, who favored only a partial revision.
So what’s stopping the Democrats from rectifying that legacy now?
Dr. King addressed such dawdling in 1963. “For years now I have heard the word â€˜Wait,’ ” King wrote. “It rings in the ear of every Negro with piercing familiarity. This â€˜Wait’ has almost always meant â€˜Never.’ ”
The gay civil rights movement has fewer obstacles in its path than did Dr. King’s Herculean mission to overthrow the singular legacy of slavery. That makes it all the more shameful that it has fewer courageous allies in Washington than King did. If “American Idol” can sing out for change on Fox in prime time, it ill becomes Obama, of all presidents, to remain mute in the White House.
When I was hiking in the hills with my best friend, Janet, yesterday, we discussed the issue; she was bothered by all that the President had not said, while I took the position of defending Obama’s inaction. “You have to pick your battles. So much is at stake on every front right now,” I said. Blah-blah-blah.
Of course that’s true. A leader facing the challenges of this young president cannot fight everywhere at once. Yet on the issue of gay rights, both Janet and Frank Rich called it correctly: The excuses are wearing thin. Yes, Mr. President. Pick your battles. But this needs to be one of the battles chosen—sooner rather than later.
Monday, as we honor the military’s men and women who have fallen in our name, and our brave sons and daughters who still serve, it is my hope that next year at this time, we can honestly and openly honor all of them.
Cartoon by Chan Lowe, of the Sun-Sentinel in Southern Florida
One of the things I’ve learned in nearly 20 years of writing about street gangs, is that for a man or woman who has been involved in gangs to truly rescue his or her life—and to heal from the scarring that deep involvement in gang life produces—one has to face the bad stuff, the damage that has been done—both by and to oneself. There are no short cuts. A reckoning is needed, a facing of the hard truths, a dark night of the soul, a clear-eyed assessment of whatever wreckage has occurred.
Anybody who’s been through therapy or some 12-step program or other knows that same rule: healing and health require that you take a good look at the wounds—both those caused, and those received.
The same is true for a nation. One cannot just sweep harmful acts under the rug and hope that they will all vanish. They won’t. The poison comes out one way or the other. Sunlight cleanses. A lack of open air merely causes festering.
To paraphrase Al Pacino in “Godfather III,” just when we thought we were out, the Bush mob keeps pulling us back in. And will keep doing so. No matter how hard President Obama tries to turn the page on the previous administration, he can’t. Until there is true transparency and true accountability, revelations of that unresolved eight-year nightmare will keep raining down drip by drip, disrupting the new administration’s high ambitions.
That’s why the president’s flip-flop on the release of detainee abuse photos â€” whatever his motivation â€” is a fool’s errand. The pictures will eventually emerge anyway, either because of leaks (if they haven’t started already) or because the federal appeals court decision upholding their release remains in force. And here’s a bet: These images will not prove the most shocking evidence of Bush administration sins still to come.
There are many dots yet to be connected, and not just on torture. This Sunday, GQ magazine is posting on its Web site an article adding new details to the ample dossier on how Donald Rumsfeld’s corrupt and incompetent Defense Department cost American lives and compromised national security. The piece is not the work of a partisan but the Texan journalist Robert Draper, author of “Dead Certain,” the 2007 Bush biography that had the blessing (and cooperation) of the former president and his top brass. It draws on interviews with more than a dozen high-level Bush loyalists….
(PS: Last night’s opening skit from SNL—embedded above— was pretty funny, and, in it’s own tangential way, relates.)
Ever since Barack Obama identified empathy as one of the qualities essential for his Supreme Court nominee, there has been much hilarity and criticism coming from the right about the president’s use of the E word, which—it was insisted —was code for….well, all sorts of things..
But what of empathy on the Court?
In next week’s issue of America, the National Catholic Weekly, Douglas W. Kmiec, chair and professor of constitutional law at Pepperdine University, explores whether empathy should or should not be important in a jurist. After all, he writes, doesn’t “… empathy require raising the blindfold to see who is before the Court, and if so, doesn’t that in itself subvert impartiality?”
The rest is worth reading. I don’t know that I agree with every single line of it. You probably won’t either. But Kmiec opens the door to a thoughtful discussion. (Unlike the cable news pundits and their idiotic “decoding.”)
Here are a few clips from Kmiec’s answer to the question at hand:
Empathy is an attractive idea, but it requires some careful unpacking. Judicial officers do, in fact, take an oath to apply the law “without respect to persons.” No one should win or lose in Court because they are rich or poor or black or white. Yet to be evenhanded is not the same as being uncaringly formalistic or concerned only with systematic consequences. Real litigants stand before the Court. No offense to all the highly talented appellate judges on the president’s short list, or even to my fellow academics, but both talent pools give almost exclusive emphasis to the law’s doctrinal development–the “footnotes in a casebook” as the president put it, rather than the impact of those developments on individual citizens. A few theoreticians in the mix makes sense, but the Supreme Court is now entirely their domain. Empathy has a wider, more open-minded nature, asking how law interrelates with the larger culture.
But do we know empathy when we see it? Maybe not….
Empathy yields one additional lesson: law is no substitute for love. Yes, it is wrong when the Court usurps legislative function or when it disregards the structure of the Constitution that reserves appropriate questions to the states. Yet it is empathy that gives insight into where exactly no governmentâ€”federal or stateâ€”should be involved. In times past, it may have been possible to count upon church or competing private institutions to maintain this boundary between what is public and what is private, but these independent sources of moral formation have also come to overly rely on the crutch of law’s coercion.
In the end, however, coerced morality is without meaning or lasting effect. In the words emblazed upon the New Hampshire license plate that will likely soon again adorn David Souter’s car, we are to “live free or die.” A judge with an empathetic understanding of the Constitution would grasp all that means.
If you read between the lines of Barack Obama’s answer to Jake Tapper’s question about waterboarding last night, it is clear that the issue of torture is not going to fade away any time soon. Here’s a clip.
I was struck by an article that I was reading the other day talking about the fact that the British during World War II, when London was being bombed to smithereens, had 200 or so detainees. And Churchill said, “We don’t torture,” when the entire British â€” all of the British people were being subjected to unimaginable risk and threat.
And then the reason was that Churchill understood â€” you start taking shortcuts, over time, that corrodes what’s â€” what’s best in a people. It corrodes the character of a country.
Then in this morning’s LA Times there is an Op Ed by Joseph Margulies, a lawyer for Abu Zubaydah. Abu Zubaydah, if you remember, is one of the handful of enemy combatants who has been used to justify the use of so-called “enhanced interrogation techniques,” a real big fish of terrorism—-and the first person to vanish into a CIA black site.
Or so we were told. Later, however, the WaPo and the NY Times interviewed DOJ officials and former intelligence officers who said that…actually Abu Zubaydah was far from being a leader or an insider; he was “a personnel clerk.” Our bad.
And how did we treat the personnel clerk?
First, they beat him. As authorized by the Justice Department and confirmed by the Red Cross, they wrapped a collar around his neck and smashed him over and over against a wall. They forced his body into a tiny, pitch-dark box and left him for hours. They stripped him naked and suspended him from hooks in the ceiling. They kept him awake for days.
And they strapped him to an inverted board and poured water over his covered nose and mouth to “produce the sensation of suffocation and incipient panic.” Eighty-three times. I leave it to others to debate whether we should call this torture. I am content with the self-evident truth that it was wrong.
Second, his treatment was motivated by the bane of our post-9/11 world: rotten intel. The beat him because they believed he was evil. Not long after his arrest, President Bush described him as “one of the top three leaders” in Al Qaeda and “Al Qaeda’s chief of operations.” In fact, the CIA brass at Langley, Va., ordered his interrogators to keep at it long after the latter warned that he had been wrung dry.
But Abu Zubaydah, we now understand, was nothing like what the president believed. He was never Al Qaeda. The journalist Ron Suskind was the first to ask the right questions. In his 2006 book, “The One Percent Doctrine,” he described Abu Zubaydah as a minor logistics man, a travel agent.
“They tormented a clerk,” writes Margulies. Then he goes on to explain the disintegrative effect that “enhanced interrogation” had on Zubaydah’s psyche.
“Already, he cannot picture his mother’s face or recall his father’s name. Gradually, his past, like his future, eludes him.”
************************************************************************************************************** PS: Remember when Barack Obama talked about things that are corrosive to a nation’s character….? That’s the kind of thing he meant.
PPS: Oh, yeah, and then there’s the Spanish judge who has just expanded his investigation of torture at Guantanamo. Details and more here on NPR’s Fresh Air.