submandave

In case anyone is reading this, I will be away for a few weeks. Will return in late July.

For some time, now, there has been something about the "left"'s response to Fahrenheit 9/11 that has bothered me but I just couldn't put my finger on it until I read a quote by Jason Kottke in Jeff Jarvis’ blog:

"The film, while entertaining -- very funny in parts and at times powerfully moving -- was ultimately disappointing for me...."

This is a film that is supposed to be exposing deception and malfeasance of the government at the highest levels and Imperialism at a scale that exceeds the expansionist heyday of the Spanish-American War. A film that asserts that the President willfully misused his power, sent hundreds of young Americans to their death, instigated the deaths of thousands of Iraqis and endangered the entire country by enraging terrorist organizations throughout the Middle East, and that he did so for the sake of personal gain and cronyism and as a result of wonton negligence and incompetence. That so many who seemingly agree with the premise of the film see it as "entertaining" or "funny" is a completely foreign and frankly disturbing concept to me.

In the course of the comments, the questions of truth and perception were raised and someone opined that most of Moore’s supporters believe his version of events represent the truth. But the almost celebratory response and cheering don’t seem to match. If these allegations were really true we would not only be talking undoubtedly about the single most corrupt and, dare I say it, evil President in the history of our country but the possibility of a long and horrible struggle ahead to purge our country of this influence. As a corollary, I believe whole heartedly the Nazis were one of the clearest incarnations of evil in the 20th century, but when I see the French documentary Night and Fog and witness evidence of this I feel neither entertained nor am I inclined to cheer for the film. It is a harsh, sobering experience. Likewise, if I believed half of what Michael Moore purports I could not imagine having a lighter reaction to a similar visual representation of evidence. Therein lies what I see as contradiction.

I rather believe, as I say, that Moore’s ardent supporters don’t care if it is true or not, as long as it serves the purpose of helping to achieve their common goal (in this case, removing President Bush from office). If one makes this assumption, then the "gotcha" gamesmanship, the idea of entertainment or humor in the film begins to make some sense, as it really becomes a "mockumentary" or a satire of itself to a degree. But is it? Moore’s work seems to have neither the subtlety nor style of Swift’s Modest Proposal nor the gonzo panache of Spinal Tap. It rather resounds with the frantic sincerity and fury of the corner judgment day street preacher. And while I will leave aside the question of Moore’s motivation (Mad Hatter or snake oil salesman), I can’t help but think that not everyone who cheers the message and messenger has really drunk the Kool-Aid.

In thinking of this, I am reminded of the single definitive event that poisoned my attitude against Hillary Clinton. Early in the first term I remember a televised pity-party she was hosting to drum up support for her health care plan. Complete with children afflicted with rare terminal illnesses, I watched as she, with a tear in her eye, bemoaned how she just didn’t understand why the insurance companies only want to insure those who will never need their service. Now, say what you want, but she’s no dummy. As such, no one will ever be able to convince me that as an intelligent woman and a lawyer she doesn’t know how the business model for the insurance industry works. But the thing is, she was talking to some who honestly did not. In using her intelligence to blatantly manipulate the emotions of those either less knowledgeable or less capable she lost, probably forever, any chance of respect from me. And in this movie I see the same pattern.

The deceptive editing, the half-truths, the subliminal cuts and juxtaposition of images, all designed with one goal in mind. To manipulate the fears of the less informed. The pleasure derived from slamming your opponent, a stinging slap that is all sound and fury but really signifies nothing. That there are people who would willfully take the most important issues of the day and turn them into little more than the bluster and bluff of a WWE pay-per-view is from where my discomfort comes. And, frankly, it sickens me.

The critics smell blood. A headline only need mention the words "torture" and "memo" together and a natural Pavlovian response can be relied upon. Throughout news sites and blogs, statements that range from the simplistic "no wonder Abu-Ghraib happened" to the jejune and bias-informed "Bush authorized torture!" have begun taking root and sprouting with such vitality that any self-respecting dandelion would be envious. In reading them, however, I can’t help but wonder if they actually read the source document. Now, I’m not a lawyer (as if that really needs saying), but to me this document reads more like a critical analysis of legal issues than a recommendation or policy paper. There are several points in the paper, but chief among these seem to be the concept a difference between "specific intent" and "general intent", an examinations of what does and does not meet definition of torture and the effect the Constitutional separation of powers between the Executive and Legislative branches may have in the applicability of Federal statutes in this matter.

While in normal daily life we do not regularly make a distinction, in the eyes of the law the difference between "specific" and "general" intent can, quite literally, be life and death. An example cited in the memo illustrates the legal difference between a person who kills another with the "specific intent" of killing them (i.e. the death was the goal of the action) and a person killing another as a result of activities that should have reasonably been known to result in death but when that death is not the actual goal of the activities ("I knew he was in the building, but I set it on fire anyway because I wanted the fire insurance money"), known legally as "general intent". This is important because federal law prohibiting torture (18 USC 2340) defines torture as being manifested by "specific [intent] to inflict [pain and suffering] ". There is, therefore, legal basis to present a defense on the basis that one’s goal was not the pain and suffering but rather the extraction of information. As such, while there may have been "general intent" to cause harm to teh detainee, there was no "specific intent" and therefore, legally, no torture. I don’t know the impact on other potentially applicable laws (assault etc.), but this is a very interesting and important reading and the possible effects should be carefully studied.

Along with the question of intent, the memo addresses the specific terminology used in applicable statutes and looks to their definition. By law, "severe pain or suffering" must be inflicted to constitute physical torture. In light of the wording of the law, therefore, it is quite logical to conclude that regardless of the propriety of the acts much of what happened at Abu-Ghraib would not technically qualify as "physical torture". Likewise, the law requires "severe mental pain and suffering" to be evidenced by prolonged mental harm. In the examples in the memo, a differentiation is made between actions that impose stress, such as traditional police interrogation techniques, and acts that result in long-term or permanent mental disorder (PTSD, clinical depression, paranoia). Also the law enumerates only four specific actions that are prohibited, and, again, only if they result in prolonged mental harm: the application or threat of severe physical pain and suffering; application of drugs that "disrupt profoundly the senses or the personality"; threat of death, and; threats of the other three against another person. This, again, is a worthwhile study of the legal readings of the prohibitions against torture and could prove instrumental in determining if the text suffices.

The stickiest issue is the one that prompted the memo in the first place. As Commander-in-Chief, the President is changed by the Constitution with directing the Armed Forces in protecting nation security. In taday's environment, with even renown liberals such as Alan Dershowitz openly opining when torture may be justified, the Administration did the only prudent thing and asked for a review of the applicable laws and a reading of just where the line between interrogation ends and torture begins. In the course of this review, they concluded the law might not matter. This is because of issues that arise concerning Legislative Branch influence upon and limitation of the Executive Branch in the execution of its prescribed constitutional duties. Just as the President has no grounds to interfere in how the Congress executes its duties, Congress has no grounds, outside of those explicitly provided in the Constitution, to interfere in how the President executes his. This separation of powers is fundamental to the checks and balances in the Constitution and is the basis for the "executive privilege" we hear about and the exact reason the President and Vice President did not testify under oath before the 9/11 Commission. Bottom line: except as prescribed in the Constitution, the President does not answer to Congress, and rightfully so. In fact, it has been Supreme Court practice, when presented with cases where an act of Congress could be read to encroach upon another branch’s constitutional powers, to intentionally seek a reading that avoids such questions. The memo cited cases as recently as 1992 that explicitly demonstrated this canon. This has been especially true in the case of foreign affairs and war powers, including, interestingly enough, an 1862 ruling where the Supreme Court refused to question if the President had "appropriately responded to the rebellion", saying it was a matter "to be decided by him".

This is heady stuff, and emphasizes the grave importance in choosing a President one trusts to act honorably and with the best interest of the country at heart during times of dire emergency. These are, indeed, very important matters that need to be openly and candidly discussed. To instead find some all too willing to ignore the gravity of the questions by attempting to play political "gotcha" is supremely disappointing and tells more, I feel, about them than the ones who initially raised the questions.

"Uranium no threat" trumpets the AP headline. "Its radioactivity deemed harmless compared with other materials" is the sub-header. What are they talking about?

Well, it seems some are trying to give the DOJ a hard time about its charges against Jose Padilla, the man arrested in 2002 returning from Afghanistan and Pakistan following receiving instructions from al-Queda leaders. He is a poster boy among some, because the DOJ picked him up outside the US and has been holding him as an enemy combatant without access to legal counsel. In support of the case that Ashcroft and the DOJ are abusing their authority there are certainly those who are trying to make hay while the sun shines by demonstrating how this poor fellow, who really was no threat, is being mistreated. Let us ignore that he posesses nefarious intentions and was a victim of his own incompetence and failure to do a five minute web search to determine a suitable radioisotope, after all, this is a chance to show the DOJ at their most duplicitous and misleading.

"I used a 20-pound brick of uranium as a doorstop in my office"

"There is just no significant radiation hazard"

"It’s the equivalent of blowing up lead"

Let's just see if they remember these quotes the next time somone tries to roll out a DU = WMD story.

" This year's presidential election so far offers a choice in foreign policy, between a neo-Wilsonian who has made the promotion of democracy and human rights a central tenet and an old-school realist who believes it more sensible to focus on managing concrete threats to U.S. security"

This is the contrast made by columnist Jackson Diehl in the Washington Post between Bush and Kerry. He goes further in comparing Bush's policy and thinking not only to Wilson but Carter "on a rhetorical scale." This view, however, fails to recognize the key difference between Bush and both Wilson and Carter, this difference being that under Bush’s guidance there are about 50 million people who now breath the air of freedom and stand poised to enjoy the blessings of democracy. In this regard, one would be more accurate to compare the rhetoric of Bush with that of Reagan, another president whose action in tandem with rhetoric was essential in the freedoms now enjoyed throughout Eastern Europe and the former Soviet republics. Of course, it is easy to understand how Mr. Diehl fails to see this, as he demonstrates his detachment from reality in bemoaning the "stunning incompetence of [democracy promotion] in Iraq." That he makes this pronouncement on the heels of the ahead of schedule sovereignty turn over and in the face of planned elections later this year is evidence of either a blind departure from the conventions of logic or blantant denial. If this is an example of "stunning incompetence" I invite Mr. Diehl to provide a counter example of competence.

To contend with the piece's characterization of Kerry's position again stretches logic and evades a key point of the so-called Bush doctrine. Fundamental to the doctrine is teh commitment to not wait for threats to metastasize before dealing with them. I am reminded of an experience in my youth, when we were living in a less educated rural area. My mother was having lunch in a small diner when a fire erupted in the kitchen. They evacuated all the patrons and, before long, the volunteer fire department showed up. Their first priority, of course, was to pose in front of their engines so the local paper could get some good shots. One patron pointed at the diner, thick black smoke billowing from every opening, and asked the chief why they weren’t fighting the fire. "That's not fire," he answered, "that's smoke, and you can't fight smoke." Soon thereafter the roof collapsed, and as the flames shot into the sky the chief cheerfully said, "Now there's a fire! We can fight that," and so they did. While I fully recognize the danger of a preemptive policy, I would still rather have a nation policy of aggressively defeating emerging threats rather the just managing concrete threats.

The final departure from fundamental logic is in the author’s confidence that Kerry would actually be successful in "managing concrete threats to U.S. security." The main basis for this confidence was that his "smart focus" on repairing the damage done to U.S. alliances will somehow be a panacea to inoculate all our national security concerns. Not only does this completely ignore the strong, continuing and uninterrupted cooperation the U.S. has had in Iraq with both its strongest military (U.K.) and economic (Japan) allies, but extrapolates conflicts chiefly with four countries (Germany, France, China and Russia) as indicative of the entire world. But let's look at what these damaged alliances really mean to our national security. In no case has the alleged disruption been reflected in trade, so there has been no economic repercussions that may, indirectly, affect national security. As such, we must look at the military effect for the most part. In the case of both Russia and China, with whom we have never had close military ties, this is completely a non-issue. Likewise for Germany, as one would not expect military support in times of external crisis given the restrictions imposed by their Constitution. This then leaves us considering France who, while not militarily insignificant, is still not a showstopper to anything we may need to do. Of course, there are the intangibles, such as international respect, support and cooperation, but considering the back-room dealing that was being done with our enemies while these countries ostensibly were our allies, one is very tempted to say good riddance to bad rubbish.

Despite the token admissions of a lack of post-Sept. 11 vision, this is largely dismissed by Mr. Diehl as seemingly being more significant for the perception of threat than a realization of actual threat. This and his faithful intoning of the "Iraq is a failure" mantra in the face of all contradictory evidence leads me to conclude that while we may disagree if Kerry is a realist, I have no problem asserting that Mr. Diehl certainly is not.

In case you were wondering, the diner burnt to the ground.

Although not in my normal reading cycle, I recently came across a post titled Common Sense Comes to Visit at Feministe, wherein the author praised the common sense exhibited by U.S. District Judge Phyllis Hamilton’s ruling that the Partial-Birth Abortion Ban Act was unconstitutional, prompting me to comment:

For Congress to declare that a late term abortion is "never medically necessary" demonstrates just how far up their collective butts their heads are. And for the Court to decide that necessity is irrelevant doesn't do the same? The title of this post is ironic, in that it has often been a lack of applying common sense to what is meant by "medically necessary" that requires laws to be so strongly worded. The same "common sense" that should tell one not to use a lawn mower to trim the hedge is the same "common sense" that should inform one that emotional suffering and stress are not sufficient medical cause to justify destroying a full-term baby. Unfortunately, in today's society we have abrogated our responsibility to exercise common sense and judgment in our lives to the legalistic wording of the court. After all, vesting all sense of right and wrong in what can or cannot be justified legally absolves us of having to make the hard decisions for ourselves.

While many others also questioned the evaluation of what constituted common sense, one commenter, Rad Geek, took exception to my use of the phrase "full-term baby" in reference to a procedure (more technically called an intact dilation and extraction (D&X)) most commonly performed between 20 and 24 weeks gestation, by saying:

"’Full-term’ babies are not aborted; they are delivered. (That's what ‘full-term’ means.)"

More accurately, "full-term" refers to anything past about 36 weeks gestation, the point at which one may reasonably expect a normal delivery without complications. That said, however, one could also convincingly use "full-term" to refer to the point at which any child is delivered, because, to bastardize a favorite line by Yossarian, "you don’t any more ‘full-term’ than that". But chief to many people’s objection to that specific procedure, and contrary to Rad Geek's implication, the child is delivered, the exception being that the delivery is briefly paused just long enough to suck the brains out.

Rad Geek followed with:

One of the problems that anti-abortionists seem to have is a complete lack of understanding as to the moral psychology of abortion--that is, why people who seek, or provide, abortions, do what they do and the reasons they have for their actions. (It isn't just a matter of disagreement: you can understand someone's reasons without endorsing them.) One example of this tendency is submandave's curious belief that doctors who make their living providing abortions apparently perform intact D&X not because it is, medically, the best procedure in a given circumstance, but just for the hell of it. Why does submandave believe this? Or if he does not, then why does he believe that abortion providers choose to use intact D&X when they do, and why does he think that Congress, of all people, has a better grip than the doctors and their patients on the appropriate medical decisions to make in that situation?

I will try to leave aside the rapid, off-handed categorization and condescension in this passage, as well as side-stepping that he completely missed my point concerning "common sense" and speak only to the merits (or lack thereof) of his argument.

First, the distinction between understanding and endorsing is totally irrelevant. This implies that the understanding of one’s motives confers some degree of legitimacy or validity. This addresses a bigger question of "right" and "wrong", and while some may feel any degree of absolute morality is passé, I believe most Americans do not. Just as my ability to understand why the Japanese attacked Pearl Harbor does not imply an endorsement, neither does it imply it was a just or moral act. As to why specific doctors choose this specific procedure, I don’t know, and neither is there any clear indication. What I do know is the AMA policy on Late-Term Pregnancy Termination Techniques (H-5.982) advises against intact D&X and states that "there appears to be no identified situation where intact D&X is the only appropriate procedure". I also know that the American College of Obstetricians and Gynecologists (ACOG) issued a statement saying they "could identify no circumstances under which this procedure...would be the only option to save the life or preserve the health of the woman". Although the ACOG did add the caveat that it "may be the best or most appropriate procedure" depending upon circumstances, they failed to provide any example of such a case. The bottom line is that any expression of why this specific procedure is used in any specific case is pure conjecture, as the abortion data collected by the CDC is notoriously incomplete and makes no distinction between dilation and evacuation (D&E) and intact D&X. What is known, based upon sworn testimony by abortion providers, is that the vast majority of intact D&X procedures reported on are performed for elective reasons.

Which brings me back to the real point of my original comment. If I remember, there were attempts to include provisions for the "life of the mother", but strident abortion supporters wanted nothing less that something along the lines of "health of the mother". This euphemism though has long been used as a legal loophole to account for any sort of circumstance the doctor wishes, effectively making the law pointless. In fact, one doctor specifically testified to Congress that depression was the most common "health indication" provided for the more than 2000 procedures he had performed. The lack of applying common sense to what constitutes a "health risk" in previous cases has necessitated the strong language in the existing law with which the original author of the post took exception. With what logic can a person, on the one hand, cite postpartum depression (a very real and sometimes severe condition exacerbated by the rapid chemical changes following delivery) as a leading cause of infanticide and yet, on the other, recognize depression during pregnancy (again, a not uncommon condition during a time of rapid and wild changes in body chemistry) as being a valid basis for elective termination of pregnancy? The entire interest in preserving life on the one case and ignoring it in the other seems to be entirely based upon the presence or absence of respiration. Given premature birth survival rates of up to 83% in the case of some intact D&X subjects, I fail to see how this is not recognized as completely devoid of logical basis and patentedly obscene.

Finally, the standard argument about letting doctors and their patients instead of Congress make their own health care decisions ignores the fact that there are many procedures that doctors can perform that are either illegal or controlled by the courts. May a doctor help in the administration of lethal doses of sedatives? May a doctor perform sterilization on a retarded minor solely in consultation with the parents? May a doctor remove, at a patient’s request, a limb, genitalia or other body parts? Besides, contrary to the impression given by the post author and Rad Geek, Congress did not draft this law in a vacuum, but rather with the guidance of testimony by several doctors and closely matching the policy of the AMA and expressed oppinion of the ACOG.

What we really have is the pro-choice fear of a "slippery slope", a situation not unlike the one that lead to the proposed Marriage Amendment to the Constitution. Doctors falling over themselves to say "I would never do this, but..." and activists trotting out all the familiar slogans, all the while failing to see that it is not really Congress that has rejected the intact D&X, but Americans for the most part. To induce labor, to partially deliver the child, to take a fetus that is, literally, inches from gaining all the protections of the law and full recognition of its rights to "life, liberty and the pursuit of happiness" and to then end its existence blurs the line between medical procedure and infanticide just too much for most of us.

(A great help for information, with many references well documented, was a paper written by M. LeRoy Sprang, MD and Mark G. Neerhof, DO, originally published in the Journal of the American Medical Association, Vol. 280, pp. 744-747, Aug. 26, 1998)