Let Us Now Praise Gentle Men, To Wit, Life-Tenured Federal Judge Jay Bybee

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Dear Colleagues:

Jay Bybee’s former colleagues say, in the words of The New York Times, that he is a “serious, soft-spoken, reflective man.” One says “‘He is a pretty gentle soul.”’ His personality, this colleague says, would not be like that of Donald Rumsfeld. No. “‘He would be quieter, more reflective, quite temperate.’” And he plays the kazoo. In fact, he has a whole collection of Kazoos.

But not to worry. If you want torture, Jay Bybee is your man. If you want to destroy one of the bases of American democracy by making the commander-in-chief a dictator superior to the laws of Congress, Jay Bybee is your man. For, you see, Gentle Jay, along with his sidekick John Yoo, is the author of memos saying that torture of prisoners is permissible -- isn’t even torture -- and that the President as commander-in-chief can ignore Congress’ law against torture (not to mention ignoring those effete international law rules against it).

The work of Gentle Jay and his sidekick has been assailed as vigorously as any I’ve seen in 40 plus years of being a lawyer. Prominent legal academics have called it “‘embarrassing,’” “‘abominable,’” “‘very low level . . . embarrassingly weak.’” The work’s failure to cite the Youngstown Street & Tube case of 1951 -- the famous Steel Seizure case of the Korean War -- was called “‘not legitimate,’” has been said to be “‘not just poor judgment,’” but “‘incompetence.’” Even the White House has been forced to disown the conclusions of Gentle Jay and John Yoo.

The academic critics don’t get it, though. Not only are some of them, maybe even all of them, liberals, but they are saying the work is legally incompetent. Maybe that makes Jay and John feel bad (though I doubt it) because they too were and/or are legal academics themselves. (Gentle Jay taught at Louisiana State and Nevada, and Gentleman John teaches at Berkeley.) Still, legal competence was never what those memos were about. What they were about was that Bush, Gonzalez, Rumsfeld, the CIA and others needed cover. They wanted to get information out of Al Qaeda, Taliban and other prisoners, and they felt that harsh methods were desirable for this purpose. But they wanted to be immune from punishment. How to obtain this immunity? It’s simple. Get some supportive legal memos from the Justice Department’s ultra prestigious Office of Legal Counsel, headed by Jay and including John. Those memos will have all the outward trappings of quality: they will have extensive lawspeak and legalese, citations to statutes and cases, the lot of it. Then, if torture ever comes to light, at least Rummy, George and others can say they relied on the prestigious Office of Legal Counsel. How can they be faulted for that? How can they be faulted when the prestigious Office of Legal Counsel shows that under the law torture is not torture, and that the commander-in-chief can be a dictator? All they did was to act in accordance with what the Legal Counsel said is permissible.

You answer that the Legal Counsel memos that people like George and Rummy relied on are legally inept? Well, you must be an effete liberal. Anyway, do you expect George to be able to read page after page of legalese from the Office of Legal Counsel and pronounce it inept? The man can hardly talk, for God’s sake. Rummy can talk, of course. He’ll give you 15 minutes of monologue sturm und drang on why the memos were right, were in fact the second coming of Christ.

One thing, though. Unless and until the torture of prisoners ever (God forbid) came to light, the memos had to be kept secret. For if they ever became known, people would start to ask whether torture was in fact being used. And the Administration knew that Congress and the American public would never stand for torture (some military lawyers who were against it said the public would react very badly), even if George and Don and Alberto and Dick and Paul and the CIA and that whole lot claimed torture was necessary to save us from attacks. Maybe torture is necessary for this purpose, though lots of experts say little of value is gained from it and that it is counterproductive, not productive. The point, though, is that the Bushies figured they could not win a fight over torture and so, as they commonly do, they chose secrecy.

Secrecy was only the more important for another, intimately related reason as well. You see, in Iraq the Bushies screwed up from the get-go, from the first thus-far-still-phony claim of weapons of mass destruction (as everyone now knows). One of their major screw ups was the truly stupid belief that you can change a country -- and a whole area of the world, no less -- on the cheap (let alone at all). You can do it with only about 125,000 men they said, and for “only” about 50 or 60 billion dollars. Does General Shinseki say the aftermath will require a force of 200,000 men or more? Get rid of him. Does Larry Lindsey say the cost will be 100 billion or 200 billion dollars? Get rid of him too.

But then came the reality of a long planned insurgency, with the Bushies’ stupid plans all falling apart. The Bushies were, of course, desperate to stop the insurgency in Iraq, and to thereby stop the encouragement the insurgency was providing to the more general growth of terrorism elsewhere. To stop this insurgency produced by the Bushies’ dumb policies, and to do so without admitting that the policies were stupid, torture was thought necessary in order to get information. So torture there would be. But not to talk about it and not to release memos about it. God forbid. Because once the torture became known, Congress and the public would demand an end to it. And when it ended, there would be even less hope of redeeming the Bushies’ stupid policies in Iraq, which would continue to career along a path that was becoming ever more disastrous for both Iraq and the U.S. So mum was the word. Until Abu Ghraib broke.

But Gentle Jay Bybee got his reward for playing along with the Bushies. He was nominated to be a federal judge on the Ninth Circuit Court of Appeals, a prestigious, life tenured job. True, when he was nominated, effete liberals objected because he had said that Congress had no power to stop violence against women, that election of Senators by the people rather than by State legislatures was a mistake, that the first amendment should not have been used to limit states’ infringements on liberty, that Congress’ power to limit the President is itself limited. He appeared hostile to gays, and had supported Bob Jones University’s right to engage in religious discrimination. But not to worry. His nomination ultimately managed to overcome all this.

It also managed to overcome another point. Democratic senators wanted to know what advice he had given for the war on terrorism. Gentle Jay refused to tell them -- he wouldn’t even tell them whether he had given advice. And the Government would not provide the memos his office had written. The reason for all this secrecy? -- the alleged need to be able to give the president confidential advice. So, once again, secrecy -- the first refuge of all tyrants -- was used to hide misconduct, and Gentle Jay got himself a lifetime job as a federal judge. Today, Democratic Senator Leahy says important information was withheld, and some Democratic types are threatening various actions, perhaps even actions involving Bush. And at least one lawyer for an Abu Ghraib defendant has said he wants to show the whole abuse scandal goes right up to Bush -- as it surely does. But Gentle Jay is still not talking. As for his sidekick, John Yoo, he did not land a lifetime federal job, but is only back teaching at Berkeley, amidst a gang of effete liberals. But like Gentle Jay, he too is not talking because, he says, ethics preclude it.

One can only hope that Leahy and company do something about all this. An investigation, a special counsel, anything that is legal, that is ethical and that works. Impeachable criminality has occurred, it goes to the very highest levels, and it should not be gotten away with. Gentle Jay should be forced to resign or face impeachment -- imagine, we presently have a federal court of appeals judge who blithely, and, as his once-fellow academics say, incompetently justified torture and the commander-in-chief’s right to be a dictator. And then withheld this (incriminating?) information from the Senate so that he could become a judge. As for John Yoo, Berkeley should be ashamed of itself for having him on its law faculty. Would that there was such an animal as academic impeachment --of a non-purely intellectual kind.

Of Criminals, Stupidity and The Face Of Evil. And Of The Free Pass Given By The Mainstream Media

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Dear Colleagues:

The Washington Post recently ran a terrific cartoon. It showed a man standing in the doorway of what must be the oval office. (Is the man Karl Rove?) Bush (or a figure who stands for Bush) is sitting at his desk, which is covered with sheets of paper. On each sheet is the name of one of Bush’s disasters or problems, e.g., Chalabi, WMD, Tenet, Valerie Plame, Iraq, Debt, etc., etc. His desk covered with this litany of disasters, Bush looks at the man standing in the doorway and asks, “Are we at the part yet where I stop reporting for service or one of my dad’s friends buys me out?”

There is more. In the lower right hand corner of the cartoon is a truly tiny figure who seems to be drawing (or perhaps writing). (I would guess the figure may stand for the cartoonist.) Next to the figure, in a sort of counterpoint to the caption, is “One can only hope.”

The whole cartoon is, among other possible things, a commentary on the fact that failure to attend to one’s duty, plus serial incompetence and failure in business, are not the finest possible preparation to be president. Nor, for that matter, is alcoholism replaced by right wing religious zealotry.

Bush’s policies, plus the demonstrated ineptitude of Bush and his colleagues in deciding upon and implementing them, create certain conclusions as to the nature of the man. Indeed, existing failures and “ineptitudes” lead almost ineluctably to the conclusions, as harsh as the conclusions may be. Most of the bases for the conclusions are regularly in the media, at least if one reads the serious media instead of getting one’s news strictly from the shouting boob tube or strictly from the vast portion of the print media which is lacking in depth, seriousness or intelligence. The facts or ideas that one regularly gets from the serious media, I shall not take the time or space to mention before discussing the conclusions. Points which are ignored or mentioned only rarely even by the serious media, I shall discuss before speaking of conclusions. Sometimes, however, certain devastating conclusions are inherent in the discussion of such rarely or never mentioned points.

*As said here before, it is clear beyond dispute that Bush and his cohorts were completely outsmarted by the Saddam regime, if not by Saddam himself, when it came to the crucial matter of guerrilla war. Despite our own experiences in the Philippines and Viet Nam, despite warnings from many people of post war chaos in Iraq, despite Saddam saying there would be surprises and his fourth rate army then melting away rather than be destroyed in conventional battles with a first rate army, despite the dispersal of huge centralized caches of weapons into innumerable small caches around the country (which Bush and his people might or might not have known about in advance) -- despite all this Bush and his colleagues launched a war that killed thousands or tens of thousands (often civilians) in pursuit of the chimera of being greeted with rose petals and changing not only Iraq but the whole middle east. They thought they could do this despite the region’s thousand years of autocracy, tribalism, religious zealotry, and fanatic warfare and murder. If this does not ineluctably lead to the conclusion of stupidity, I would like to know what does.

The Pentagon knows that the Iraqis planned in advance for a serious guerrilla war. Twice in about the last six months The Times has carried stories about an internal Pentagon report saying that the Iraqis planned a guerilla war in advance. But there has been little if anything else written about this -- I, at least, have never seen anything else, and the Pentagon’s report apparently has never been released. Why hasn’t it been released and why hasn’t the media, including The Times itself, followed up on the two Times articles? One possible, even probable, reason for the Pentagon’s non-release is that release would let everyone know how badly Bush, Cheney, Rumsfeld, Wolfowitz, et. al were outsmarted by the Iraqis, and how dumb they were in their planning. We put in 125,000 or 150,000 men when the job perhaps could not have been done even by 250,000 or 400,000 -- remember the 550,000 in Nam? As for the media’s failure to follow up, who knows. All one can hazard is that this is typical media ineptitude and sloth.

*Now let us turn to the matter of war crimes, and the demonstrated willingness of the Bushies to destroy constitutional government in order to commit war crimes if they think such crimes are necessary. A number of points are already perfectly clear, and are liable to become only more and more clear as more and more is learned. Bush’s civilian lawyers in the Justice Department, the Pentagon, the White House and, I gather, the CIA, wrote legally and ethically reprehensible memoranda claiming that torture is not torture -- claiming that things we would be outraged by if done to our soldiers are not torture when done to other people. (The all time classic in this regard is the memos’ claim that torture is not torture if done for an objective other than to inflict pain -- a line of reasoning under which torture is almost never torture because the objective of torture is usually to gain information, not to inflict pain.) By despicable twisting of facts, logic and truth in order to pretend that torture is not torture, the civilian lawyers enabled Bush to say that he had not ordered or approved violations of law. (Both international law and U.S. law ban torture.)

Equally bad, even worse perhaps, Bush’s civilian lawyers showed themselves willing to destroy the Constitution by using his commander-in-chief power to override statutory law by authorizing torture if he claims it’s necessary. Such a claim, if successful, is literally the end of constitutional government. Not even Lincoln in a civil war claimed he could flout the law. Harry Truman did not claim he could flout the law when the Supreme Court ruled against his seizure of the steel mills in the Youngstown Sheet and Tube case -- a seizure the Executive claimed essential to national defense during the Korean war. Not even Lyndon Johnson or Richard Nixon claimed they could violate the law if Congress passed a law ordering the Viet Nam War to stop, and Nixon did indeed stop fighting when Congress finally ordered this in 1973. Only the Bush Administration claims that the military power, represented by Bush as commander-in-chief, can override the law of Congress. That way lies dictatorship -- if torture is permissible when authorized by the commander-in-chief in the name of alleged security, then why not the rounding up of citizens when he says this is necessary for national security, why not jailing them indefinitely and keeping them incommunicado for years, why not beating them, why not killing them? Exactly these kinds of things, we are all aware, have been occurring in Iraq, at Guantanamo, and in undisclosed holding places abroad.

Moreover, no serious person can any longer believe that Bush, Gonzalez, Rumsfeld, Wolfowitz and the rest of that crew were unaware of what was happening to prisoners. Enough has already come out to make clear that they were very aware of it, and they wanted it to occur in order to try to get information from prisoners. That is why they needed the disgraceful memos from political hack lawyers in order to give them cover, in order to enable them to say they were not ordering or approving violations of law.

It also is a virtual certainty that they knew they could not possibly go to Congress to obtain a change in the law against torture. Imagine the uproar if Congress were asked to approve torture. Maybe some benighted Southern Senators and some right wing citizens might have gone along with authorizing torture, especially because of administrations claims that torture is necessary for safety. But most people would likely have been appalled, and would have said Americans don’t do that kind of thing. As well, it would have come out that there is a huge dispute over whether valuable information can be obtained by torture, and that there are lots of knowledgeable insiders who claim little such information has in fact been gained by it in the current wars. It would also have come out that military lawyers were against it (including military lawyers in Iraq?) even though the military will supposedly suffer fewer loses if torture is used to gain information. No, Bush, Rumsfeld, etc. knew they couldn’t get Congress to change the law. So, since they wanted to use torture to try to get information, they got political hack lawyers to write despicable legal memos, pretending to authorize the non-authorizable, for an administration that did not stickle at arguments that would create dictatorship via claims that the commander-in-chief power overrides Congress.

All of this is just another lesson, along with the many others we have had in the last half century, that executive officers will never stickle at violating the law unless they are personally subject to criminal penalties which are enforced against them. Bush, Cheney, Rumsfeld – the lot of them have been violating laws against torture and, in so doing, have been committing plainly impeachable offenses. But because neither international law nor domestic law will be applied against them personally, nor are any members of their families in combat, they care no more for the consequences of their illegal, even evil, actions than did Johnson, Rush, McNamara, Nixon or Kissinger. And none of this will ever change until the criminal law is applied against American leaders no less than against the Milosevics of the world. The disaster of Viet Nam did not in itself prevent the disaster of Iraq less than 30 years later, did it? Only criminal penalties will work.

But how much of this does one read or hear in the media, even the serious print media? Little of it, would be my estimate. The media does talk about the political lawyers’ memos. But it doesn’t discuss that those memos were obvious bad faith dodges to give cover to Bush, Rumsfeld, et. al for allowing torture to try to get information. It doesn’t discuss that Bush, Rumsfeld, et. al were committing crimes and impeachable offenses. It doesn’t discuss that the administration was willing to destroy the constitution by making the military commander-in-chief supreme over the civilian authority, or that wars may never end so long as Executive officials are not subjected to criminal penalties. It is a fair question to ask, “Why doesn’t the media discuss these things?”

*Much of what we now know occurred raises yet again the question of whether the Bush administration demands the use of military tribunals because it knows that its own conduct makes it impossible to get convictions in civilian courts. Evidence gained from defendants who have been held incommunicado, who have not been allowed to see lawyers for two years, who have been beaten and/or water boarded, who have been tortured in other ways, cannot be used to convict them in federal courts. The administration knows this -- its lawyers may be evil, but they are not wholly stupid. The only way to get convictions, then, is to use military tribunals which are ordered not to consider how evidence was obtained. And to likewise order what has been called Rumsfeld’s handpicked group of four appellate reviewers -- at least three of whom are prominent -- to likewise not consider how evidence was obtained. Is this what the administration has done? Has it thereby shown itself willing, once again, to destroy the Constitution -- here by destroying rights in court -- in order to get what it wants -- here convictions? Will the four handpicked reviewers go along with this? One does not know the answers to these questions. But one thing can be said with certainty. The press has never discussed them. When such questions were raised previously here, one prominent journalist emailed that he was confident the press would ultimately deal with certain of them. Let us hope so. But it hasn’t yet. Why not?

Enough, then, of points antecedent to ineluctable conclusions as to what kind of person Bush is. Several traits are obvious, both from what has been said above and from numerous other matters so familiar that they need no reiteration. Notwithstanding wide disagreement with my conclusion, it is hard to see how Bush is anything but dumb. After all, Iraq has been a world class eff-up in so many avoidable ways, including in its planning, implementation, and handling of prisoners. Not to mention Bush’s well known trait, stressed by his handlers in attempting to laud him, of not inquiring into the (all important) details -- now that is really dumb for any leader.

It is also pretty plain, both from what has been discussed here and other things, that Bush is a zealot, obstinate, a man who regularly falsifies, and a right wing fundamentalist who believes that he has the greater word of God and anyone who disagrees with him is wrong and/or malevolent. Nor does he stickle at giving orders that ineluctably will lead to the deaths of thousands or tens of thousands of soldiers and civilians, including many women and children, for no sustainable prior purpose worthy of the phrase (we have found no WMDs, we were not welcomed with rose petals, only a fool would think we would change the middle east by invading Iraq), at giving such orders on the basis of intelligence which was obviously shaky if not altogether trumped-up, and at giving them without even a ghost of competent post war planning. And not only did he give orders that unjustifiably led to so many deaths in Iraq, but let us not forget that, possessing the greater word of God, he has been willing to very possibly condemn untold thousands to death by seriously limiting (since he cannot totally stop) stem cell research.

And let us also not forget that he and his cohorts have shown themselves willing to destroy the bases of our Constitution, and of democratic government, in order to get what they want.

To me this all adds up to one word: evil. Thus, when one looks at Bush, one is looking, I fear, at the face of evil. One need not, after all, be as bad as, say, Stalin and his gang of fellow genocidal murderers, or the maniacal Saddam and his maniac sons and colleagues, to be evil.

One reads that Bush himself divides leaders into those who are good people and have vision, and those who are not or do not. Dividing the world into people who are good and those who are not, is, strangely enough, one point on which I largely agree with Bush. But to me a good person is one who works hard, is honest, is competent at what he or she does, cares about others as well as about himself or herself, and is modest. Bush flunks most of these tests. (So do most of our top political leaders, as well as lots of top business people.)

Most people, I venture, probably even including a majority who revile Bush’s policies, would not agree with me that Bush is evil. They would say, as one hears all the time, that it is seriously mistaken, indeed horribly simpleminded or worse, to think that someone is evil just because you disagree with his policies. Sixty-five years on earth have persuaded me that this less simple, more sophisticated, conventional view is often wrong, and it is wrong with regard to Bush. There are people who are evil if judged by decent standards listed above such as honesty, diligence, competence, concern for others (versus willingness to harm or kill them for reasons that are unjustifiable or worse) and modesty. Bush fails nearly every one of these tests, maybe all of them. Withal he is a combination of swaggering arrogance and stupidity -- one of the worst possible combinations in a human being.

Is Kerry better? Should one vote for him? I hold no brief for John Kerry, and think he is no great shakes. But he does have one advantage: he is not Bush. It is commonly remarked that one of the great features of our system is that we get to elect a president every four years. (An election was held even in the middle of the Civil War.) But though realism would counsel saying it, it is not usually remarked that quite often the real and only advantage of this is that every four years we get to throw the bums out. Are they then replaced by a new crop of bums? Often. Perhaps usually. But then they can be thrown out four years later. This is good, because there is nothing that is ultimately more dangerous to a well functioning, true democracy than long entrenched bums and their ever increasing misuse of power for venal and/or evil purposes. (I leave the subject of Congressmen and Senators for another day.)

It is interesting, is it not, that lots of these points usually are not mentioned by the press, especially points like Bush is dumb, or that he does not stickle at destroying the Constitution to get what he wants, or that he might be considered evil. Why doesn’t the press mention them? Why does it generally give Bush a free pass on them? Nor do the Democrats speak of them, despite a nearly uncontrollable desire to defeat Bush. Again, why not? Why the free pass? The general silence on them seems to be the converse or obverse of the media’s rush to “hallowize” Nixon when he died, or the electronic media’s recent rush to deify Reagan. There are certain conventions which are followed by the media and politicians and all their fellow travelers, even if such conventions have little or nothing in common with the truth. Conversely, the truth -- plain honesty -- is not a convention that is followed. “Oh, too bad. Too, too bad,” as I think Lee said (or something like it) after Pickett’s charge at Gettysburg. As proven by Lyndon Johnson, Richard Nixon, Bill Clinton, George W. Bush, and a host of lying and defrauding businessmen, our society is going to continue to be in real trouble, constant real trouble, until there is a higher respect for truth and less respect for lies and demonstrated incompetence.

A Needed Reversion In Cultural Values

Dear Colleagues:

Sixty-five years of life have caused me to think that what can be called a people’s culture is the most determinative aspect of a society. (Others might call it a people’s philosophy, or habits of mind, but what you call it is not the important point.) Huge industries, technological innovation, powerful armies, standards of living -- all these, and all else, are but the material reflection of a society’s cultural (or philosophical) ideas.

Today, very bad cultural aspects hold major sway in geographical and professional areas that I am familiar with: in large coastal and interior cities, in law, in business, in politics, in academia. In these areas, we have, to major extents, a culture of getting ahead by dishonesty, lying and spin, a culture of not having to live up to one’s responsibilities or to perform them competently, a culture of celebrification, self-celebrification and immodesty, a culture of caring about oneself alone and not at all about others. So we get the Enrons, World Coms and Tycos, the grammar schools, high schools and universities that fail to teach, the Lyndon Johnsons, Richard Nixons, Bill Clintons and George W. Bushes who lie and spin.

I don’t think our culture was always this way, at least not to anything like the same degree. It is hard to hold an overall brief for the 1950s, the time when those of us who are in our mid 60s were growing up. Minorities, women and gays were treated badly then, everyone had to conform to a single norm in thought, speech, action and dress, there was no environmental movement, and other problems abounded. Yet there was another side to the ’50s, a side stemming from many previous generations in America. There was in those days an American Dream which was to be achieved by talent and competence, by hard unremitting work, by honesty, by fulfilling one’s responsibilities, by caring, to some extent at least, about others as well as oneself, by maintaining an appropriate modesty instead of seeking self glorification and celebrification at every turn. I did not know it until decades later when I became an avid reader of history, but many of these cultural desiderata of the ’50s were most strikingly illustrated, historically, in the life of Lincoln. Today our society still worships Lincoln, but largely does not follow his traits. Presidents feel the political need, especially in wartime, “to get right with Lincoln,” but merely engage in propaganda, without a clue about Lincolnesque thought, speech or actions.

If we are to escape avoidable future debacles -- wars, ever greater plutocracy, ever increasing economic divisions between haves and have nots, continuing failures of education, etc. -- it is imperative that there be a cultural reversion. There must be a reversion to the prior cultural values of honesty, competence, hard work, fulfilling one’s responsibilities, concern for others, modesty. Correlatively, there must be revulsion against lying, spinning, cheating, bragging, celebrifying, not caring about others, not performing one’s duties, and letting the phonies, the non-competents and the lazy get ahead by using the now prevailing cultural values. It is cultural values, not the intricacies or pros and cons of this or that military, economic or foreign policy that will determine the future, and the future happiness, of our country.

For the necessary reversion in values to occur would require constant attention in the media, in our educational system, and among our citizens. It would also be useful if a political movement arose whose platform, and whose governing, were based on these verities, instead of depending on the hourly, weekly, monthly and yearly fluctuations of issues and opinions that have marked our politics for the last 30 to 35 years or so. For years the extremist, often religious fundamentalist, political right seems to have been the only people in political life talking about values, although not the values discussed here, but rather supposed “values’ such as unrestricted personal economic selfishness, unregulated devil - take-the-hindmost capitalism, imposing our views on the rest of the world by use of economic and/or military force, and imposing fundamentalist religious views and practices on other citizens by the force of laws and social pressure. It escapes one as to why nobody from the middle or the left has arisen to counter the right by promoting the kinds of values which used to prevail and should prevail again.

To urge a reversion to better cultural values is not hopeless idealism, although many will see it as that. Indeed, there are institutions in this society that are dedicated to doing things the right way and that are successful; they are examples to be followed. In any event, I believe Eugene McCarthy once said that sometimes idealism is the only practicality. So if what is espoused here is idealism, then so be it. For only a renaissance of better cultural ideas can protect us from avoidable future debacles of the kinds we have already experienced because of the bad cultural values which now prevail.

The Bearing Of Bush’s Management Style On His Intelligence

Dear Colleagues:

It has been suggested here -- to the strong disagreement of many or perhaps even most others -- that George Bush is not a smart man, that he in fact is fairly dumb, which has hurt this country beyond measure. An article by Mike Allen in the June 2nd Washington Post bears on this matter, although the precise bearing is in some ways a little murky. Allen’s article is entitled Management Style Shows Weaknesses, and for present purposes its second paragraph is a key one. Here is what it says:

Bush’s aides say the graphic images documenting the abuse of detainees took him by surprise. But as they tell it, the president and his staff received many clues over the past year that there might be a problem -- for example, periodic reports from the International Committee of the Red Cross -- and did nothing because they had been assured the Pentagon was on the case.

Other paragraphs quote equally key points made by a variety of presidential advisers and scholars, some named, some not, who say that Bush “‘doesn’t turn over the rock,’” that he doesn’t and shouldn’t “‘micromanage,’”that he instead relies heavily on subordinates to do what they should, and that these traits may have led to the inadequate planning with regard to Iraq. Still other paragraphs say -- in a way that creates murkiness and confusion -- that the Administration cannot yet say when Bush knew this or that about prisoner issues, or, conversely, that Powell kept him fully informed about them for about a year now.

So exactly what Bush knew and when is not perfectly clear. But it is perfectly clear, often from the statements of his own colleagues and supporters, that he knew a lot fairly early on, but didn’t ask questions or engage in follow-up to insure that needed corrections were being made, since this is not his style.

This lack of questioning or follow-up fits my definition of dumb -- truly, truly dumb. I think that almost any sensible person who has ever run a company or an institution of any type whatever will tell you that, if there is one function that every leader must perform, it is making sure that subordinates are doing what they are supposed to do. If they are not doing what they are supposed to do, the chance of them accomplishing what they are supposed to accomplish is pretty close to zero. Any leader who does not realize that it is his or her function to be sure subordinates are doing what they are supposed to do is, realistically speaking, simply stupid.

One is therefore tempted to end merely by saying QED. But equally amazing as Bush’s lack of questioning or follow-up is that his supporters use this so-called “management style” as an exonerating excuse for the terrible things he has presided over. Can you imagine that? -- his own supporters and advisers seem to think that a stupid style is a justification. How dumb are they?

As said before here, Bush’s own intelligence or lack thereof is a question which the press should pursue, lest we reelect a person whose lack of acumen will get this country into ever more trouble. But now, it seems, perhaps the press also ought to inquire into and discuss the acumen, or lack of acumen, of his advisers, of people who appear to be dumb enough to think that a dumb management style is a smart excuse.

America Itself, Not Iraq, Is Now At Stake

Dear Colleagues:

It has been urged here on several occasions -- most recently, just yesterday -- that the press should consider whether George Bush and his colleagues are guilty of war crimes because they condoned torture in order to obtain information from prisoners. But revelations in the Monday Wall Street Journal and today’s New York Times make it clear that what is at stake goes far beyond “mere” war crimes. It goes to the very existence of the United States as a democracy under law -- which is at the very heart of our national existence.

As must be known by almost any reader of [this blog], it has now been disclosed that, in (truly disgraceful) memoranda, administration lawyers have advised that the President is not bound by the law. Please read this attentively -- they have said that he is not bound by the law and can do virtually anything he wants to obtain information from prisoners. Therefore, he can order torture in violation of any domestic and/or international law. Any soldier or civilian official engaging in torture is not subject to the law and cannot be prosecuted. Congress has no power to change any of this.

This claim of nearly unlimited power to violate the law was designed and signed off on by top administration legal officials, including ones in the White House, the Vice President’s office, the Pentagon and the Department of Justice. The main basis of the claim is that, as commander-in-chief of the armed forces, the President can override any and all laws to advance a war effort. A secondary basis is the so-called law of necessity, which one Supreme Court Justice (I think it was Robert Jackson) once described as necessity knows no law.

As far out as it may seem to say so, it is possible that never before has the United States faced such a serious internal threat from the Executive or Congress - - not in the Alien & Sedition Acts, not in Lincoln’s suspension of habeas corpus to put down a rebellion, not in the Palmer raids which occurred due to the red scare after World War I, not in the McCarthy era. For here the inevitable bottom line is that the Administration is saying that, primarily because of the President’s role as commander-in-chief, he can override any and all laws if he feels like it, so long as he claims, as he will, that this is necessary to further a war effort.

That claim -- as the framers of the Constitution knew and tried to guard against -- is the end of democracy, the end of freedom, and the end of government under law, and is the herald of despotism. Knowing from British and other history that freedom cannot survive if the military is free to break the law in alleged pursuit of what today we call “national security,” the framers made the President commander-in-chief so that a civilian official could control the military, could require it to obey the law. What the Bush administration is claiming is the exact opposite of this: they are saying that, in his military role as commander-in-chief, the President can himself break all laws and can authorize the military to do so. The Bushies, in other word, have turned the commander-in-chief power upside down, from a method of insuring obedience to law, to a method of authorizing violations of law.

The Bushies, I note, are not the first administration to misuse the commander-in-chief power. The Johnson and Nixon administrations misused it previously. They claimed that, even though the war in Viet Nam had not been authorized by the body to which the Constitution gives the decision on war, i.e., by the Congress, nevertheless the President could fight a war there because he is commander-in-chief. Subsequent presidents have likewise misused the commander-in-chief power as alleged justification for military actions not authorized by Congress. But as far as I recollect, neither in Viet Nam nor at any other time did the President act contrary to specific laws passed by Congress forbidding what he was doing (here forbidding torture) and contrary to specific international agreements which the U.S. has joined (here the Geneva Conventions). On the contrary, even Richard Nixon conceded he had to stop fighting in Cambodia when congress passed a law cutting off funds for this fighting. So far as I can remember, no administration before this one has ever said the commander-in-chief power authorizes the President to act contrary to specific laws of Congress and specific international agreements. To put the matter in plain language, no administration before this one has used the commander-in-chief power to claim dictatorial authority.

As discussed previously on this blogsite, it seems virtually a sure thing that Bush, Rumsfeld, et. al knew what was going on in the prisons, but condoned it to get information -- the recent news reports, by the way, say the memoranda claiming power to violate law were written because of a claimed need to do better at getting information from prisoners. The press really must continue to pursue the question of, in Watergate terms, “what did the President know, and when did he know it.” For what we have here is, beyond any question, an impeachable offense. To argue that Rumsfeld, Bush or other officials are not subject to almost any law the President cares to break, and to then have laws broken by torture and interminable incarcerations on the claim that the President is not subject to law, must inevitably be a high crime destructive of the constitution and of the very basis of our nation if the impeachment clause is to have any meaning worthy of its name. What we have here is not “merely sex” in the oval office, which was disgraceful enough. Here we have a threat to one of the very bases of our country -- a threat to the idea that the President is subject to law. Both for the sake of history and to show that the country will not tolerate dictatorial claims of the President being above the law, it is important that bills of impeachment be filed even though the impeachment process cannot be concluded before the election and probably cannot even be advanced very far by the beginning of November. The Democrats should not shirk this duty -- it is a duty.

(In addition to the fact that bills of impeachment should be filed, as one expert consulted about these developments said was possible, the lawyers who participated in writing these memos should be brought up on ethics charges and disbarred for facilitating violations of law consisting of torture and, apparently, even murder.)

One last point. The Administration apparently claims that violations of domestic and foreign law are necessary to get information about Iraqi insurgents, Al Qaeda, etc. Putting aside the truth or falsity of this claim -- and many experts think it’s false because, they say, torture usually is not effective at getting true or useful information -- if the Administration wanted to use torture, what it should have done is ask Congress to repeal the law against torture, and withdraw the country from international agreements forbidding torture. It is obvious, however, that the administration did not want to do this. Obviously it feared -- I would say it knew -- that most members of Congress, even if not the Trent Lotts and Zell Millers, would be aghast at a request to repeal laws so we can torture people, and the international reaction to America withdrawing from international conventions forbidding torture would have been an incredible uproar. To the Administration, it obviously was therefore far easier not to go to Congress or withdraw from conventions, and instead to claim for the President dictatorial powers that lay the basis for a militarily run police state instead of a democracy under law.

Harvard’s Endowment Is A Symbol Of Much That Is Wrong With Higher Education

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Dear Colleagues:

It has been revealed that the head of the group which “runs” Harvard’s endowment was paid 6.9 million dollars for 2003. But he was a piker in the compensation department. One of his subordinates, who “runs” domestic bonds, was paid 36.8 million. Another subordinate, who “runs” Harvard’s international bonds, was paid 35.6 million. This is nice work if you can get it, especially since payments of this type have been occurring for many years now.

If memory serves, Harvard has claimed for years, and plainly seems to be claiming now, that payments like this are needed to get money managers skilled enough to obtain the high returns that Harvard’s 19 plus billion dollar endowment has earned. It now appears, however, that this is pretty fallacious. According to what I’ve read, Harvard’s endowment has made an average annual return of 14.3 percent for the last ten years. But Yale’s endowment, which is a not exactly poverty stricken 11 billion dollars, has earned an average annual amount of 16 percent over the last 10 years, while last year the head manager of that endowment was paid “only” a fraction over one million dollars ($1,027,685, to be exact). The head manager for the University of Texas’ funds of 14.8 billion dollars earned a paltry $743,316 last year, and, while complete figures for Texas apparently are not available on a 10 year basis, last year Texas earned 12.8 percent on its 14.8 billion while Harvard earned the lesser percentage of 12.5.

It seems that a relatively small number of Harvard’s 300,000 graduates are finally beginning to complain about what some people might see as a gigantic ripoff worthy of our Wall Street sharks. Thus, one Harvard alumnus points out that the two bond managers together took home about the same amounts as will be raised by the 5.1 percent tuition increase which Harvard is socking to its students (whose tuitions are going up to $27,448, no less). This same alumnus has the nerve -- the nerve! -- to in effect level an accusation of hypocrisy at Harvard officials up to and including President Sommers because the officials lament the fact that students do not go into low paying public interest careers of one type or another, while at the same time they are socking students with huge tuitions, which require huge loans, which leave the students with huge debts, which make it impossible for them to do anything other than try to make gobs of money in non-public service jobs. Another alumnus, a historian, has the nerve -- the nerve! -- to say the outlandish compensation levels of the money managers is a question of values, as evidenced by the fact that Harvard, citing budgetary cutbacks, has cut 10 librarians while paying a total of over 100 million dollars to the investment types. (I’ll bet that cutting 10 librarians might have saved Harvard as much as 300 to 500 thousand dollars. Whew! What a relief!)

Though a small number of alumni are objecting to these outlandish pay packages, Harvard vigorously defends them. Its spokesman for the defense is a vice president whose last name is Rapier. As Dave Barry says, I’m not making this up. But whether the joke relates to the act or the blade is not entirely clear. (The vice president is a woman, however.)

It is reported that President Summers did not respond to requests for interviews on the money mangers’ compensation, does not answer correspondence from angry alumni about it, and his office refers inquiries about it to the Rapier. As Jim Nabors used to say as Gomer Pyle, “Supriise, supriise, supriise.”

But enough of this comedy. It’s time to get serious. As some people have been saying and writing -- Harvard’s former President Derek Bok among them -- the universities of this country have ever more been adopting commercial values rather than academic ones. Some university presidents are now making in the neighborhood of a million dollars per year, lots of them are making 300 to 700 thousand dollars, star professors are being paid fortunes, coaches -- coaches, for God’s sake -- are being paid in the millions, and money is in the forefront of the academic mind. Learning, honesty, setting a moral example and all the rest of this old fashioned stuff takes a back seat -- in fact, the seat is so far back that it is hardly even in the car or bus anymore. Students are socked with ever increasing tuition bills, to the point where college -- let alone graduate schools -- are financially out of reach for working class and lower middle class persons who otherwise would go to university. In general, selfishness reigns unmitigated.

The Harvard endowment and its compensation practices symbolize the extent to which greed has taken over the academy. Think of it this way: if you assume that Harvard has 15,000 students in its various undergraduate and graduate schools (15,000 is probably too high an estimate), and if you further assume it costs a student about $50,000 per year in tuition, room, board, etc. to go to Harvard (which is probably pretty close give or take a few thousand dollars one way or another), then the total bill of all Harvard students for tuition and expenses is 750 million dollars per year. But the average earnings of 14.3 percent on Harvard’s endowment, which is now about 19 billion dollars, are $2.71 billion per year. The average amount of earnings on Harvard’s endowment, in other words, is nearly four times the total tuition and other expenses of all of Harvard’s students put together. So Harvard could pay every nickel needed by every student, and charge them nothing, while retaining nearly three-fourths of the average annual earnings on its endowment and all of the principal. But neither Summers nor the Rapier nor anyone else in authority at Harvard is likely to ever even consider anything that is within 100 country miles of this. Harvard is a part of the American plutocracy and damn well intends to stay that way, regardless of its contrary protestations about educating the disadvantaged. And what is true of Harvard is true in general of lots of other American universities too, albeit they are not as wealthy as Harvard (though often they are very wealthy) and the kinds of figures I set forth above regarding the ratio of tuitions to average annual earnings may not be quite as favorable at these other schools as at Harvard.

Nor is Congress worth a damn in this equation. Congress’ only response for many years has been to make more money available in loans and loan guarantees, which enables universities to jack up their tuitions ever more so that students can pay ever more and graduate with ever higher debts. My own profession, legal academia, is an area where Congress may have reached the nadir of do nothingness. To a vastly disproportionate extent lawyers run this country. Vastly disproportionate percentages of senators, congressmen, governors, state legislators and virtually all judges and prosecutors are lawyers. Lots of university presidents, corporate officers and major real estate people are lawyers. Community leaders are often lawyers. But the law schools, spurred on by the American Bar Association’s accreditors, have put law school and therefore the legal profession out of the financial reach of the poor, the lower middle class and, increasingly, even the middle class; they have put a major avenue of social mobility and accomplishment out of the reach of these groups. (The average tuition of ABA law schools in New England is now approaching $30,000 per year.)

The law schools and the accreditors get away with this because, lawyers and judges in effect being one huge national cartel, the ABA has persuaded almost every state supreme court not to let law graduates take the bar exam unless they graduate from a school approved by the ABA, which sees to it that law schools have high costs which necessitate high tuitions. Congress could put an end to the success of this high cost, high tuition cartel by a simple expedient that it has used in other areas. Congress gives the law schools and the states money -- billions upon billions every year - - for higher education. It therefore could say that graduates of any school approved by any federally recognized accrediting body -- not just by the high-cost-demanding ABA -- must be permitted to take a state’s bar exam, or it will cut off lots of the federal money going to that state’s law schools and/or other higher educational institutions. Since there are completely competent accrediting bodies other than the ABA which do not measure a school by its costs but by its quality, this simple congressional expedient would allow competent low cost schools to develop and flourish in order to serve the economically deprived working class and lower middle class. (In other fields, incidentally, allowing competent low cost suppliers to exist is called competition.)

But will Congress do this? Don’t hold your breath. It has been unwilling to do it previously, is in thrall to both the high cost educational establishment and the high cost ABA, and, in reality, doesn’t give a damn about people who cannot approach it with huge open wallets for the legalized bribery called campaign contributions. It is in thrall to the overarching credo symbolized by Harvard’s endowment and its compensation practices: money uber alles.

Political Dynamite: The Opening Sign In The Media

Dear Colleagues:

On prior occasions it has been suggested here that the media should investigate and discuss the possibility that Bush, Rumsfeld and others may be guilty of war crimes because they were aware of what was being done to prisoners and condone it in order to get information. It has also been suggested that, if war crimes have been committed, the existence of these violations cannot be evaded by the transparent expedient of giving prisoners one label rather than another. Another finally it has been suggested that the possibility of high-level culpability for war crimes is potential political dynamite. Can we really have, and reelect a President who was guilty of war crimes, if such crimes were committed by him? Or indeed, and both conveniently and perversely, might Americans perhaps flock to reelect a President accused of war crimes because of citizens’ possible anger that an American President could be accused of such acts by foreign officials or members of our own media?

In any event, on Saturday the media showed the first sign that I have seen of that it is beginning to dip a toe into the political dynamite that these matters raise. Warren Hoge of The New York Times wrote a page five article saying that the UN’s top human rights official, Bertrand Ramcharan, wrote in a 45-page report [linking to actual doc at www.unhchr.ch] that the abuses at Abu Ghraib could be war crimes and grave breaches of international law. With an apparent bar to certain political realities, Ramcharan also said that “Everyone accepts the good intentions of coalition governments.” But many of us would regard the latter comment as only a dubious bow to the international power of the United States.

Hoge also pointed out something I had previously missed: that last month Newsweek uncovered a January 2002 memo by Bush’s White House counsel, Albert Gonzales, urging that captives be “declared exempt” from the Geneva Conventions lest Americans be the subject of “unwarranted charges” of war crimes. This is further evidence of the Administration’s notion -- apparently furthered as well by disgraceful Department of Justice memoranda -- that one can escape criminality by calling an act or a person by a new word or name. One can just imagine the response if we who are mere everyday citizens were to say we had not committed murder because the killing was not murder but the “desirable dispatch of a bad person.”

Hoge having discussed the subject of war crimes in the media, one desperately hopes the media -- and some Democrats too, for God’s sake -- will pursue this trail to find out whether it leads to guilt or innocence in high places, and to make this determination long before November. We do not, after all, want to wake up after November, do we, to find out, as we did months after reelecting Nixon, that a criminal has been reelected President? Lots of us think Kerry is no great shakes, and that once again, as so often before, we are faced with an awful choice. But the idea that we may reelect a President who is guilty of war crimes is just too much. So let’s have this question be largely determined before November: at least in the public mind (albeit a judicial decision would be impossible in so short a time). The media, and the Democrats, and Ralph Nader too, should take special cognizance of the need for a determination of the question.

There are at least three factors that are truly terrible in this country, because they lead to war after war. One is that our leaders are never punished for their violations of international criminal law. The second is that it is never the leaders nor their children who fight wars -- it is the poor and the lower middle class. The third is that we put into office war hawks who have never or almost never been in combat -- Johnson, McNamara, Nixon, Kissinger, Reagan, Clinton, Bush II, Cheney, etc. -- and who, never having seen combat, are all to ready to send other people’s children off to die. Until these factors change, we are likely to keep getting into wars. The truth, harsh as it is, and unpalatable as it is to the American ear, is that we still should put to likely war criminals like Kissinger and McNamara no matter how old they are, and, if Bush, Cheney, Rumsfeld, Wolfowitz and the rest of that crowd appear, after ample investigation and discussion, to be guilty of war crimes because they knew of, condemned and did nothing to stop war crimes, then they too should be put in the dock international peace will likely be a chimera until leaders are punished for their transgression against international criminal law. That was certainly our theory in the mid 1940s, wasn’t it? That theory underlies current prosecutions like that of Malosevic, doesn’t it?

The Media’s Continuing Failure To Inquire Into Why The Government Vigorously Urges That Civilian Courts Have No Jurisdiction Over Detainees

Dear Colleagues:

It has previously been said here that the media should be inquiring into and discussing the following question: whether one reason the government seeks to avoid civilian trials of alleged terrorist “detainees” is that, because of the use of abuses, torture and long periods of incommunicado detention in order to obtain evidence, it will be unable to obtain convictions in civilian trials. Rather, its prosecutions would be thrown out, perhaps even with dispatch, because of the equivalent of “police misconduct” to obtain evidence. This question, as has been said here, is relevant to the Government’s position in Supreme Court cases, where it vigorously urges that civilian federal courts can have no jurisdiction. Yet the media, as far as I know, have not inquired into or discussed this question. That is a culpable failure.

The culpability of this failure is highlighted by the fact that on Tuesday the Government released documents showing what Jose Padilla allegedly did, and said he had cooperated with interrogators since being captured in May 2002. Padilla was apparently held incommunicado for nearly two years, until March of 2004, when his lawyers were finally allowed to meet with him.

It seems obvious that evidence the government would use against Padilla would come from statements he made during nearly two years of being held incommunicado. It seems equally likely that such evidence, obtained during such a lengthy period of not allowing Padilla to see his lawyers, cannot be used against him in civil courts under current standards. Perhaps we need new standards in civil courts for these kinds of cases -- perhaps some reasonable period of incommunicado but non-abusive, non-torturous detention, monitored regularly by federal magistrates, could be a reasonable exception to current rules (although it is plain that nearly two years of incommunicado detention is way, way out of bounds). But whatever resolution one might arrive at, holding Padilla for two years makes it seem pretty clear that one reason the Government wants to try people before military tribunals, not in civil courts, must be that its evidence cannot currently stand up in civil courts because it has been obtained illegally under the existing rules. Yet the press has not inquired into and discussed this important subject. Why not? It should start doing so immediately, especially because, as the people who founded this nation knew, what the Government chooses to do to one person today, it may choose to start doing to others tomorrow.

Re: Paul Krugman’s May 28th Article On The Free Pass The Media Gave To Bush

Dear Colleagues:

This weblog regularly berates the media for its failure to inquire into and discuss crucial problems, especially with regard to war. So it is only fair to say that, in an op-ed article on page A23 of The New York Times on May 28th, Paul Krugman wrote an excellent piece discussing the media’s long failure to tell the truth about G.W. Bush and his policies, and discussing the reasons for that long failure. Some of the reasons given by Krugman are the media’s fault, and some are the Administration’s fault. But as one who sometimes thinks that Krugman’s work reads like a leftist screed, I am moved to say that his article of May 28th has a constant ring of truth. As well, some of the reasons Krugman discusses doubtlessly bear on the incompetent pre-war reporting about which The New York Times has recently been beating its breast after vivid criticisms of The Times by others. Krugman’s column really should be read by persons interested in the free pass long given Bush by the press and the reasons for this abysmal journalistic performance.