Government of Sadists

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They may not be much use in a hurricane and they’re a tad sloppy with intelligence, but when it comes to torture the Bush Administration will not be held back.

In today’s Washington Post Dana Priest writes that Porter Goss’s CIA is holding and “questioning” prisoners in secret prisons.

The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.

I like the part about the “Soviet-era compound.” Are we filling a niche vacated by the fall of the Soviet Union? And do we want to think real hard about what that niche might be?

Priest continues,

The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.

The hidden global internment network is a central element in the CIA’s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA’s covert actions.

And if that pesky Red Cross is kept out also, so much the better.

The existence and locations of the facilities — referred to as “black sites” in classified White House, CIA, Justice Department and congressional documents — are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.

It doesn’t say if our president knows the locations, notice. But I bet he has a secret stash of really good torture videos stuffed in some White House closet.

The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.

Stalin would have been proud.

The prisons must be kept overseas because secret prisons are illegal in the U.S. However, they are also illegal in several of the “host” countries. And Parliaments in Canada, Italy, France, Sweden and the Netherlands are looking into allegations that the CIA secretly captured their citizens or legal residents and shipped them to who knows where.

The secret detention system was thrown together hastily after September 11. One senior intelligence official said the system is entirely reactive; no one ever sat down and worked out a “grand strategy” for dealing with prisoners of the War on Terror.

The idea of holding terrorists outside the U.S. legal system was not under consideration before Sept. 11, 2001, not even for Osama bin Laden, according to former government officials. The plan was to bring bin Laden and his top associates into the U.S. justice system for trial or to send them to foreign countries where they would be tried.

“The issue of detaining and interrogating people was never, ever discussed,” said a former senior intelligence officer who worked in the CIA’s Counterterrorist Center, or CTC, during that period. “It was against the culture and they believed information was best gleaned by other means.” …

… The agency set up prisons under its covert action authority. Under U.S. law, only the president can authorize a covert action, by signing a document called a presidential finding. Findings must not break U.S. law and are reviewed and approved by CIA, Justice Department and White House legal advisers.

Six days after the Sept. 11 attacks, President Bush signed a sweeping finding that gave the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain members of al Qaeda anywhere in the world.

Tim Golden and Eric Schmitt write in the New York Times that some people in Washington want to adopt language from the Geneva Conventions for Defense Department guidelines.

The document under discussion, known as Department of Defense Directive 23.10, would provide broad guidance from Defense Secretary Donald H. Rumsfeld; while it would not spell out specific detention and interrogation techniques, officials said, those procedures would have to conform to its standards. It would not cover the treatment of detainees held by the Central Intelligence Agency.

Enter the allegedly “maverick” do-gooder, John McCain:

The behind-the-scenes debate over the Pentagon directive comes more than three years after President Bush decided that the Geneva Conventions did not apply to the fight against terrorism. It mirrors a public battle between the Bush administration and Senator John McCain, Republican of Arizona, who is pressing a separate legislative effort to ban the “cruel, inhuman or degrading treatment” of any detainee in United States custody.

After a 90-to-9 vote in the Senate last month in favor of Mr. McCain’s amendment to a $445 billion defense spending bill, the White House moved to exempt clandestine C.I.A. activities from the provision. A House-Senate conference committee is expected to consider the issue this week.

And in the other corner–Dick “the Dick” Cheney:

Mr. Cheney and some of his aides have spearheaded the administration’s opposition to Senator McCain’s amendment; they were also quick to oppose a draft of the detention directive, which began to circulate in the Pentagon in mid-September, officials said.

I really like this part:

A central player in the fight over the directive is David S. Addington, who was the vice president’s counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney’s chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions.

“He left bruised and bloody,” one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld’s chief adviser on detainee issues. “He tried to champion Article 3, and Addington just ate him for lunch.”

I assume the official was speaking figuratively.

An editorial in yesterday’s USA Today argues that torture is wrong

Forget, for a moment, the legal and moral questions surrounding government-sanctioned torture and consider the practical one: Does it produce useful information?

Sen. John McCain, R-Ariz., who was tortured repeatedly during his 5½ years of solitary confinement in North Vietnam, answers no: The tortured will say anything to stop the pain.

McCain’s insight offers lessons for U.S. conduct in the war on terror: Abusing prisoners elicits intelligence of questionable worth. It also unquestionably undercuts American values and produces international revulsion.

McCain and a majority of senators from both parties understand this. The Bush administration still doesn’t get it.

To clear up confusion about the treatment of prisoners and what the United States stands for, McCain is pushing an amendment to a military-spending bill that would ban “cruel, inhuman and degrading” interrogations. The Republican-controlled Senate passed the amendment, 90-9. The version of the bill in the House of Representatives contains no such amendment.

Senate and House negotiators are scheduled to meet this week to try to resolve the differences, and the White House is working behind the scenes to scuttle McCain’s amendment or, at a minimum, carve out an exception for the CIA. President Bush has even threatened to cast his first veto if the administration doesn’t get its way.

You’d think that after the abuse cases in Iraq and Afghanistan and at the military detention facility at Guantanamo Bay, Cuba, Bush would recognize the damage to the United States’ moral standing, particularly in the Muslim world. But the White House continues to hew closely to the dubious “few bad apples” theory to explain the abuses at Iraq’s Abu Ghraib prison and elsewhere.

The theory doesn’t hold up to even minimal scrutiny. Early last month, Capt. Ian Fishback of the Army’s 82nd Airborne Division came forward with evidence of routine abuse that occurred in Iraq in 2003 and 2004. Superior officers in Iraq repeatedly told soldiers that the Geneva Conventions governing prisoner treatment do not apply in Iraq, Fishback reported.

The editorial argues that the United States “should not sink to the level of its enemies.”

Now, considering that it is widely believed torture is not the best way to gain intelligence, and the secret prisons and torture practices are not exactly helping us with international diplomacy, you’ve got to wonder why secret prisons and torture are so important to Bushies like Dick Cheney, not to mention David Addington, who rhetorically assaulted and cannibalized the unfortunate Mr. Waxman. The only explanation that makes sense to me is that these people are sadists. Torture is something they want to do. They get off on it.

Update: See also Eric Alterman.

Cross-posted on The American Street.

A Bigger Agenda?

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While I’m posting transcripts … this was on last night’s Countdown, which was guest hosted by Lisa Daniels:

DANIELS: Many thanks for joining us tonight. We appreciate it. Your article is so detailed, I‘m going to start off with a hard one. Can you sort of give us an abridged version of how the forged documents made it all the way into the president‘s speech without anybody throwing them out? Just boil it down for us.

PHILIP GIRALDI, FORMER CIA OFFICER: Well, basically, what happened was that the normal procedures whereby intelligence that comes into the United States government is checked over before it goes to the policymakers, this procedure was called vetting, was circumvented. And it was essentially circumvented as you described it by the Office of Special Plans in the Pentagon, which had been set up basically to circumvent that it felt was not answering the needs of the policymakers.

So it was kind of a circular process whereby the fabricated information was introduced into the system from the bottom, up to the top, without being checked out along the way.

DANIELS: Now, you make a very important allegation, a big allegation in your article that the Niger documents might have been forged in collusion with the Pentagon‘s Office of Special Plans which you in your article say would explain why the administration went after Ambassador Joe Wilson. What evidence do you have supporting that?

GIRALDI: Well, there‘s not a whole lot of solid evidence. But the fact is that if you consider people at the top level of the administration going after somebody who ostensibly was just a critic, it doesn‘t really make sense unless there was a much bigger agenda that was being hidden. And that‘s what I‘m suggesting.

And it is also true that the Italian who actually passed the documents that wound up in Washington, a guy named Rocco Martino, he later said to The Financial Times in London that he was engaged in what was a much bigger scheme that was a disinformation operation being carried out by the Italian government and also the American government.

DANIELS: But maybe it isn‘t bigger. Perhaps your critics would say, it is actually simple. I mean, are you sure that this isn‘t just one huge conspiracy theory that your article is sort of perpetuating?

GIRALDI: I don‘t think so. There‘s certainly considerable evidence that this was going on, that the intelligence was circumventing the system to create a case for war against Iraq which otherwise might not have been made.

And also, the whole question comes down to, was this bad intelligence?

I think everybody would agree that there was a lot of bad intelligence. Was it done through stupidity or through maliciousness? And this is really the question. Were people conscious that they were providing false and misleading intelligence or was it just a process that was something that was handled very clumsily?

DANIELS: Let me ask you this, Philip, do you think it is possible, feasible that the administration actually believed on some level that the documents were real?

GIRALDI: No. I don‘t think so. Because these documents went through several steps before they wound up at the administration and analysts at both CIA and NASA and the State Department pronounced them to be dubious.

The thing to bear in mind here is that unless accountability is established in this case, this kind of thing could happen again.

DANIELS: You know, we all remember when the former CIA Director George Tenet accepted responsibility for the uranium reference getting into the president‘s State of the Union Address. But from your research from your article, it almost appears that the CIA had very little to do with getting that faulty intelligence into the country, let alone into the speech.

GIRALDI: They were in fact completely out of the loop. That‘s a correct assessment, yes.

DANIELS: And why do you say that?

GIRALDI: Well, because the documents were not seen by people at CIA until very late in the process, after they were already in the hands of the policymakers at the National Security Council and in the vice president‘s office.

DANIELS: OK. So it‘s been nearly three years since it took for this truth, if it is the truth, to come out about the Niger documents. Why did it take so long?

GIRALDI: Well, I think there‘s a considerable reluctance on the part of both the media and the politicians to deal with issues that come out of Iraq. Essentially, the media did not fulfill its own responsibilities to be skeptical in the beginning. And the Democratic Party got on board of the Iraq war very quickly for its own reasons.

And as a result, I think that people in all areas are embarrassed now and are unwilling to confront the quite bad reality of what is Iraq.

DANIELS: Philip Giraldi, a contributing editor with The American Conservative magazine, also a former CIA agent. Thanks for your time. I‘m curious to see what the reaction will be to the article.

GIRALDI: Thank you very much.

Here is the article Giraldi wrote for The American Conservative, “Forging the Case for War.” Concluding paragraphs:

At this point, any American connection to the actual forgeries remains unsubstantiated, though the OSP at a minimum connived to circumvent established procedures to present the information directly to receptive policy makers in the White House. But if the OSP is more deeply involved, Michael Ledeen, who denies any connection with the Niger documents, would have been a logical intermediary in co-ordinating the falsification of the documents and their surfacing, as he was both a Pentagon contractor and was frequently in Italy. He could have easily been assisted by ex-CIA friends from Iran-Contra days, including a former Chief of Station from Rome, who, like Ledeen, was also a consultant for the Pentagon and the Iraqi National Congress.

It would have been extremely convenient for the administration, struggling to explain why Iraq was a threat, to be able to produce information from an unimpeachable “foreign intelligence source” to confirm the Iraqi worst-case.

The possible forgery of the information by Defense Department employees would explain the viciousness of the attack on Valerie Plame and her husband. Wilson, when he denounced the forgeries in the New York Times in July 2003, turned an issue in which there was little public interest into something much bigger. The investigation continues, but the campaign against this lone detractor suggests that the administration was concerned about something far weightier than his critical op-ed.

“Betrayed by the White House”

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I don’t usually watch Rita Cosby, but I happened to catch this last night:

COSBY: And joining me now is Jim Marcinkowsky, who trained with Valerie Plame, and also Melissa Boyle Mahle. She‘s a former CIA spy, and she‘s the author of a book called “Denial and Deception: An Insider‘s View of the CIA From Iran-Contra to 9/11.”

Jim, let me start with you. How betrayed do you feel, as a former agent, about this leak?

JIM MARCINKOWSKY, FORMER CIA AGENT WHO TRAINED WITH PLAME: We‘re outraged. Betrayal—I mean, that‘s the—that‘s the lowest description I can put on it. We held this secret for 18 years until betrayed by the White House, whether we were inside the agency or outside the agency. It‘s is simply outrageous.

COSBY: You know, Melissa, do you find it sort of ironic that here you go—I know when you go for your job and your training, you‘re told, Keep these things covert. You don‘t expect the government to be the one doing the outing.

MELISSA BOYLE MAHLE, FORMER CIA SPY: No, you certainly don‘t because you know your cover is what allows to you do your job. And so since the government presumably wants you to do your job, that they‘ll also protect it.

COSBY: You know, Jim, let‘s talk about this company, I found this fascinating, a company called Brewster Jennings and Associates. It‘s been outed now by others, so we can talk about it. But explain (INAUDIBLE) sort of it was sort of a mock company under a cover.

MARCINKOWSKY: Well, that‘s exactly right. There‘s commercial covers. You‘re not protected overseas by governmental immunity, diplomatic immunity. And if you get caught under one of those kinds of covers, non-official cover, you‘re going to suffer the consequences of any other body that may be operating and conducting the espionage in a foreign country.

COSBY: But Jim, with this Brewster-Jennings, it was a business card. It was sort of a pseudo-company that folks who worked for the CIA could pretend that they worked for this company, right?

MARCINKOWSKY: Correct. And it doesn‘t matter whether it‘s just a telephone or a business card. The fact of the matter was, it was sufficient to get in and out of a country safely, and that‘s all that matters in the eyes of an agent.

COSBY: You know, and how detrimental, Melissa, when something like a Brewster Jennings is let out? Because I would imagine a lot of agents use that as their cover.

MAHLE: Well, I tell you, when you start exposing how—what kinds of covers that the CIA uses in whether business or whatever, you start setting a trail that bad guys can follow and say, Hey, let‘s look at these kind of companies and see what—you know, Maybe we can find some more agents.

COSBY: Well, that‘s what I was going to say. There‘s a huge rippling effect, right, Melissa?

MAHLE: Yes, and I think that‘s one of the things that really concerns the CIA because we need to protect our agents and our officers if we‘re going to be able to achieve our mission.

COSBY: You know, Melissa, you worked as a female spy in the Middle East. What was that like? And how dangerous was it?

MAHLE: Listen, I was a counterterrorism officer. I worked in the Middle East. My cover was extremely important to me because I depended on it for hiding my identity so I could protect myself, my family and my agents.

COSBY: And we‘re, in fact, looking at one of the pictures here. This is of you a couple of—how many years ago was this, Melissa, as we‘re looking at…

(CROSSTALK)

COSBY: … because you‘re holding a big gun.

MAHLE: More than a few!

(LAUGHTER)

COSBY: You look like you know how to use that weapon. I‘m a little scared of you now. And here you are with Arafat. I remember reading one of the stories that you actually brought your baby to Arafat because you couldn‘t find a nanny, right?

MAHLE: Well, yes, that was one of those times. You know, everybody has child care issues.

COSBY: Yes, I think that‘s a great story.

Hey, Jim, how has—how has this affected Valerie Plame‘s career, this whole ordeal?

MARCINKOWSKY: Well, her career is essentially over. If you have a career as an undercover officer, you‘re traveling from one country to the other, obviously, the one time you‘re exposed, you can‘t take that back. The toothpaste is out of the tube. You can‘t put it back in. Her career is ended.

COSBY: And Melissa, real quick, how‘s this affected her career, in your opinion?

MAHLE: Well, I agree with Jim that her career is over, and that means that we have lost a very important officer that has experience in weapons of mass destruction.

COSBY: Both of you, thank you very much for talking about this important issue. We appreciate it.

MAHLE: Thank you.

MARCINKOWSKY: You‘re welcome..

Democrats Do Something

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Here’s a shocker–Liz Sidoti of the Associated Press says Senate Dems are actually throwing their weight around.

Democrats forced the Republican-controlled Senate into an unusual closed session Tuesday, questioning intelligence that President Bush used in the run-up to the war in Iraq and accusing Republicans of ignoring the issue.

“They have repeatedly chosen to protect the Republican administration rather than get to the bottom of what happened and why,” Democratic leader Harry Reid said.

Republicans had no relevant talking points ready and had to fall back on boilerplate.

Taken by surprise, Republicans derided the move as a political stunt.

“The United States Senate has been hijacked by the Democratic leadership,” said Majority Leader Bill Frist. “They have no convictions, they have no principles, they have no ideas,” the Republican leader said.

Sounds like convictions, principles, and ideas are exactly what they do have. Rewrite?

John Aravosis explains closed sessions:

SENATE RULES ON SECRET SESSIONS

· During a secret session, the doors of the chamber are closed, and the chamber and its galleries are cleared of all individuals except Members and those officers and employees specified in the rules or essential to the session.

· Standing Senate Rules 21, 29, and 31 cover secret sessions for legislative and executive business. Rule 21 calls for the Senate to close its doors once a motion is made and seconded. The motion is not debatable, and its disposition is made behind closed doors.

John says “Since 1929, the Senate has held 53 secret sessions, generally for reasons of national security.” However, six of the most recent secret sessions were to discuss Bill Clinton’s impeachment, which was in fact a political stunt. That may be why Frist was confused.

Pandagon has Harry Reid’s speech.

Sidoti continues,

As Reid spoke, Majority Leader Bill Frist met in the back of the chamber with a half-dozen senior GOP senators, including Intelligence Committee Chairman Pat Roberts, who bore the brunt of Reid’s criticism. Reid said Roberts reneged on a promise to fully investigate whether the administration exaggerated and manipulated intelligence leading up to the war.

Frist: “We need some new talking points, fast.”

In typical rightie style, Byron York at NRO waxes disengenuous to bash the Dems:

Perhaps the best explanation for the Democrats’ decision to virtually shut down the Senate today can be found in one passage from CIA leak prosecutor Patrick Fitzgerald’s news conference last Friday:

    This indictment is not about the war. This indictment’s not about the propriety of the war. And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment for any resolution of how they feel or any vindication of how they feel….The indictment will not seek to prove that the war was justified or unjustified. This is stripped of that debate, and this is focused on a narrow transaction. And I think anyone who’s concerned about the war and has feelings for or against shouldn’t look to this criminal process for any answers or resolution of that.

Fitzgerald’s statement, and his decision to confine the indictment of Lewis Libby to charges of lying and obstruction, threatened to dash the Democrats’ hope of using the CIA leak case as an opportunity to re-debate the reasons for going to war in Iraq. So the party, or at least its leaders in the Senate, has decided to use another route, the shutdown of the Senate, as a way to achieve that goal.

York cleverly tries to distract us from the central point of Fitzgerald’s statement:

Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community.

Valerie Wilson’s friends, neighbors, college classmates had no idea she had another life.

The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It’s important that a CIA officer’s identity be protected, that it be protected not just for the officer, but for the nation’s security.

Valerie Wilson’s cover was blown in July 2003….

… And the damage wasn’t to one person. It wasn’t just Valerie Wilson. It was done to all of us.

In other words, about how the White House is handling, or mishandling, intelligence, not about the war itself. But you can always trust a rightie like York to miss the point. Here is what Reid said:

What has been the response of this Republican-controlled Congress to the Administration’s manipulation of intelligence that led to this protracted war in Iraq? Basically nothing. Did the Republican-controlled Congress carry out its constitutional obligations to conduct oversight? No. Did it support our troops and their families by providing them the answers to many important questions? No. Did it even attempt to force this Administration to answer the most basic questions about its behavior? No.

Unfortunately the unwillingness of the Republican-controlled Congress to exercise its oversight responsibilities is not limited to just Iraq. We see it with respect to the prisoner abuse scandal. We see it with respect to Katrina. And we see it with respect to the cronyism and corruption that permeates this Administration.

Time and time again, this Republican-controlled Congress has consistently chosen to put its political interests ahead of our national security. They have repeatedly chosen to protect the Republican Administration rather than get to the bottom of what happened and why.

There is also another disturbing pattern here, namely about how the Administration responded to those who challenged its assertions. Time and again this Administration has actively sought to attack and undercut those who dared to raise questions about its preferred course.

For example, when General Shinseki indicated several hundred thousand troops would be needed in Iraq, his military career came to an end. When then OMB Director Larry Lindsay suggested the cost of this war would approach $200 billion, his career in the Administration came to an end. When U.N. Chief Weapons Inspector Hans Blix challenged conclusions about Saddam’s WMD capabilities, the Administration pulled out his inspectors. When Nobel Prize winner and IAEA head Mohammed el-Baridei raised questions about the Administration’s claims of Saddam’s nuclear capabilities, the Administration attempted to remove him from his post. When Joe Wilson stated that there was no attempt by Saddam to acquire uranium from Niger, the Administration launched a vicious and coordinated campaign to demean and discredit him, going so far as to expose the fact that his wife worked as a CIA agent.

Given this Administration’s pattern of squashing those who challenge its misstatements, what has been the response of this Republican-controlled Congress? Again, absolutely nothing. And with their inactions, they provide political cover for this Administration at the same time they keep the truth from our troops who continue to make large sacrifices in Iraq.

This behavior is unacceptable. The toll in Iraq is as staggering as it is solemn. More than 2,000 Americans have lost their lives. Over 90 Americans have paid the ultimate sacrifice this month alone – the fourth deadliest month since the war began. More than 15,000 have been wounded. More than 150,000 remain in harm’s way. Enormous sacrifices have been and continue to be made.

The troops and the American people have a right to expect answers and accountability worthy of that sacrifice.

In other words, the question being examined is not the war, but whether the Bush White House can be trusted to handle intelligence responsibily, and the Senate’s role in seeing to it that it does.

Alito Backgrounder

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Jeralyn Merrit of TalkLeft has a post up at Altercation that provides lots of links to documentation of Judge Alito’s “proven track record of hostility to pro-choice issues and civil rights.” Clip & save.

Jeralyn writes,

Take this example from PFAW’s summary of Judge Alito’s views on racial discrimination in a death penalty case, in which he was reversed by the full panel of judges in his own circuit. An African American was sentenced to die by an all-white jury. It was found that blacks had been improperly struck from the jury. On appeal, Alito wrote the opinion deciding against the defendant.

    The full Third Circuit, in a split decision, reversed Alito’s ruling, and the majority specifically criticized him for having compared statistical evidence about the prosecution’s exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, “[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants…”

This is frightening.

It’s important to remember that the political Right currently running our country are way to the right of the American mainstream. They have to pack the court to permanently impose their so-called “values.”

Security Blankets

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In recent days there’s been much talk of President Bush making changes in White House staff.

Well, forget it. Bush says he doesn’t wanna. Nyah nyah nyah. Terence Hunt reports for the Associated Press:

The White House on Monday rebuffed calls for a staff shakeup, the firing of Karl Rove and an apology by President Bush for the role of senior administration officials in the unmasking of CIA operative Valerie Plame. …

… Republicans and Democrats alike have urged Bush to begin remaking his presidency by bringing in fresh advisers with new energy to replace members of a team worn down by years of campaigning and governing. But administration officials said that was not in the works. …

… “There’s no discussion of staff changes beyond the usual vacancies that occur or beyond filling the vacancy that the vice president did as well,” McClellan said.

This doesn’t surprise me at all. Bush’s White House staff is not so much a staff as it is a coccoon of co-dependency, a team dedicated to the care and maintenance of Bush’s mighty persona. New people might actually try to follow their job descriptions and be staff, rather than enablers. That would not do at all.

Bush needs his old gang around him, because they are extensions of himself.

We Don’t Need No Steenkin’ Paternalism

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There was much arguing yesterday about the Casey decision, which struck down a provision requiring husbands to be informed of their wives’ plan to abort. SCOTUS nominee Alito didn’t have a problem with this. Several righties yesterday claimed we lefties were being hysterical when we said such a provision amounted to giving husbands a veto.

Here is an explanation of Casey by Ed Whelan of the very rightie National Review Online:

Subject to several exceptions, that provision required that a physician performing an abortion on a married woman obtain from her a signed statement that she had notified her spouse that she was about to undergo an abortion. Such notice was not required where the woman states that (a) her spouse is not the father of the child; (b) her spouse cannot be located; (c) the pregnancy resulted from spousal sexual assault that had been reported; or (d) that she has reason to believe that furnishing notice would likely result in the infliction of bodily injury on her (by her spouse or by any other person). Notice was also not required in the event of a medical emergency.

As I’ve written earlier, one of the most common qualities of rightiness is an inability to make a distinction between rhetoric and reality. In this situation, righties take the rhetoric at face value (See? She doesn’t have to get permission; she doesn’t have to provide a document if the husband might hurt her) and fail to comprehend how these little requirements might actually function in the real world, in real lives, in real marriages.

It’s not crystal clear to me whose signature would have been required. If she has to get her husband’s signature then we’re essentially looking at a permission slip; a husband who disagrees with the decision is likely not going to sign it. If the wife merely has to sign an affadavit stating that she informed her husband, then most wives who are afraid to speak to their husbands are simply going to lie and say they informed him when they didn’t. And that fear may not be that he will break her teeth; it’s just as likely she fears he will hate her if he found out, and the marriage would be damaged. And an emotionally abusive husband may not strike her but would find other creative ways to make her life hell.

Whelan continues,

All members of the panel agreed that the relevant question was whether the spousal-notice provision constituted an “undue burden” under the analysis that had been set forth in O’Connor’s opinions (which all agreed provided the governing legal standard). … Alito explained at length why the analysis that O’Connor had offered in her opinions established that the spousal-notice provision did not constitue an “undue burden”. … It is of course true that, in the subsequent Supreme Court appeal, O’Connor ruled that the spousal-notice provision did constitute an undue burden. But Alito’s opinion compellingly demonstrates that the body of O’Connor’s writings that was then available to him supported the opposite conclusion.

So a fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden. No one should present the case as having anything to do with spousal consent rather than notice, no one should misrepresent the scope of the exceptions, and no one should read the case as expressing Alito’s own constitutional or policy views (as opposed to his reading of Supreme Court precedent) on any aspect of abortion.

Let it not be forgot that O’Connor is more conservative than anything else; just because she expressed a more liberal view in some opinions doesn’t erase the fact that her worldview is more rightie than leftie. In essence O’Connor tends to veer left in those cases in which she might have had some personal experience (such as sex discrimination) and therefore “gets it.” But like most righties, when she wanders outside the realm of her personal experiences the real world becomes a foreign place for her, a place she can’t even imagine. And the fact that Alito couldn’t see the burden is prima facie evidence that he can’t think outside a rightie box.

The only way the notification provision wouldn’t be burdensome to many women is if it wasn’t enforced. If the women could simply swear they spoke to their husband even if they didn’t, without fear of repurcussion, then perhaps it wouldn’t be all that burdensome. But the only purpose of such a law would be to cause the woman seeking an abortion more stress and grief. In other words, the essential point of such legislation is to be burdensome.

Righties tend to fall into the argument that the provision wasn’t burdensome because it was toothless, which ought to be a clue to them that the intent of the law was burdensome, indeed.

And if the lie was something that could come back to bite the wife someday, then it would be very burdensome. And it’s not clear to me if the wife or the medical facility that performed the abortion could face litigation from an angry husband who found out. Can of worms, people?

The provision represents another rightie tendency, which is that righties essentially distrust human beings to make their own decisions. We saw that during the Terri Schiavo flap, when all manner of legislation was proposed that would have allowed government to intrude in a family’s end-of-life decisions. To a rightie, human beings are mindless beasts who need to be controlled by Big Brother so they don’t make “bad” decisions; i.e., decisions with which the rightie disagrees. And righties always assume that people who make these “bad” decisions have done so because they don’t think. Notice all the legislation imposed by states intended to make women reflect on a decision to abort, as if women can’t think for themselves. It’s beyond their comprehension that most women who decide to abort do understand exactly what a pregnancy is and realize that abortion is a serious matter.

Their whole attitude is insulting to women and reeks of the vilest kind of paternalism. Which, frankly, pushes a lot of buttons. So some of us do find righties and their twisted idea that they should have the power to control the rest of us more than infuriating. This is not “hysteria.” This is anger. Righteous anger.

I suspect that most married couples discuss a decision to abort without having the law tell them to do so. I also believe that any woman who fears her husband needs to either get over her fear or get a divorce; that’s not the way any human being should go through her life. But these are matters people need to work out for themselves. Big Gubmint need not be involved.

Update: Emily Bazelon has an excellent explanation of the Casey decision at Slate.

…the [Supreme] court rejected Alito’s narrow reading of what sort of regulation constitutes an undue burden. O’Connor, Kennedy, and Souter wrote: “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The definition of an undue burden on the right to abortion as a “substantial obstacle” wasn’t exactly what the pro-choice crowd wanted to hear. But it was a lot better than the “severe limitation” prohibition, or veto, that Alito had propose–definitions that would have allowed much more extreme restrictions.

The triumvirate also parted company with Alito entirely over his vision of the rights of husbands. The Constitution did not permit states to require wives to tell their husbands before getting an abortion, the Supreme Court majority found. The O’Connor-Souter-Kennedy opinion cited a lot of trial testimony about the prevalence and danger of domestic violence. Pennsylvania’s law exempted wives who’d been raped by their husbands, but not those who’d been coerced into “sexual behavior other than penetration,” the three justices noted. They continued:

In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from [Pennsylvania’s] notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends.The dissenters, by contrast, adopted Alito’s sunnier, husband-centered version of marriage. Then Chief Justice William Rehnquist (joined by Antonin Scalia, Clarence Thomas, and Byron White), emphasized “a husband’s interests in procreation within marriage and in the potential life of his unborn child.” Rehnquist paid Alito the high compliment of directly quoting his words about the good that could come from requiring women to talk to their husbands. “This participation might in some cases result in a decision to proceed with the pregnancy,” Rehnquist concluded.

Righties keep claiming that we who oppose the notification requirement are hopelessly ignorant when we say it might cause women to suffer harm. I guess three members of the Supreme Court are hopelessly ignorant. The justices, of course, assumed that women who fear their husbands would have complied with the law.

Better Middle Than Late

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I’ve been reading and listening to comments on nominee Sam Alito, including mention of the Planned Parenthood v. Farmer decision mentioned below. And I’ve noticed that rightie commenters and most “journalists” persistently make a mistake when they talk about this decision. That mistake is to say that the case in question was about a ban on late-term abortion. It was not. It most definitely was not.

The law in question banned “partial-birth” abortion. Anti-privacy forces confuse the issue by insisting that “partial birth” and “late term” mean the same thing. To me “late-term” implies that the pregnancy is almost full term. But the procedure that righties call “partial birth”–intact dilation and extraction (D&X) and dilation and evacuation (D&E)–are procedures performed mostly (if not entirely) in the second trimester, which reasonably would be considered MID term.

According to the written decision, 80 to 90 percent of abortions performed after the first trimester are D&E abortions. These are commonly done between 13 and 20 weeks’ gestation. The D&X is a less common variation of the D&E that involves collapsing the skull and removing the fetal body intact, as opposed to retrieving it in several pieces via a D&E. The D&X variation reduces the risk of cervical laceration and also provides an intact body, which might be required for diagnostic purposes.

These are not the only procedures available for second-trimester abortion. After 16 weeks’ gestation, the most common procedure used is induction, which involves injecting a lethal substance into the uturus and then inducing labor. The fetus might also be removed by hysterotomy, which is like a C-section, and sometimes by hysterectomy–removal of the uturus.

For reference: The second trimester is from weeks 13 to 26. The third trimester is weeks 27 to 42. A fetus is potentially viable only after the 23rd week, and that’s iffy. Babies born after at least 27 weeks’ gestation usually survive. According to the Alan Guttmacher Institute, only 1.4 percent of abortions in the U.S. are performed after 21 weeks’ gestation. I haven’t been able to find reliable data on third trimester abortions.

Anyway, now that we’ve got the “late-term abortion” nonsense out of the way– like other such laws, the act nullified in Planned Parenthood v. Farmer did not use medical terms, but instead used the term “partial birth abortion,” and defined that term in such a way that physicians testified they couldn’t tell exactly what was being banned. Further, the act appeared to ban abortion procedures on a “living” fetus, meaning a fetus with a discernible heartbeat, which could be as early as seven weeks’ gestation. Not exactly “late-term.”

And, if in fact the law banned only D&E and D&X procedures, it didn’t ban abortions at all, because other procedures are available. The righties never seem to notice that. It’s also beyond belief that righties can’t manage to write a law banning D&E or D&X procedures that might get approved by a court. I believe all they’d have to do is use actual medical terms and definitions and provide a “life or health of the mother” exception. But state legislatures keep passing essentially the same muddled, sloppily worded mess, and courts keep slapping it down. Makes me wonder if they actually don’t want it to become law; they just like putting on a show for the voters.

Regarding Judge Alito’s decision, provided in the last post, he was being clear that he felt it was his duty as a LOWER court judge to find according to existing case law. However, the law in question was a bare-assed attempt to sneak a total abortion ban on the books by means of bad phraseology. Any judge going along with the gag and approving legislation-by-deceit would seem pretty “activist” to me.

Also: From The Mahablog archives–why a “right to privacy” IS in the Constitution.

Update: Hunter gently explains why he disagrees with a particular conservative talking point. Billmon discusses Alita’s Casey dissent. Digby looks at the “strategy” behind abandoning Roe v. Wade. Fafblog does Hallowe’en. And the Rude One is, well, rude.

Pass This Along to the Righties

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Figure this one out: In July 2000 SCOTUS nominee Samuel Alito, sitting on the U.S. Court of Appeals for the Third Circuit, voted that a law banning “partial birth” abortion was unconstitutional.

This doesn’t mean I trust him not to mess with Roe v. Wade, but please pass this along to the righties. Let it mess with their heads.

The case was Planned Parenthood of Central New Jersey v. Farmer. I just found this and I need to read it through to understand exactly what the problems were with this law, but here is Alito’s concurrence with the decision (note the phrase, “our responsibility as a lower court):

ALITO, Circuit Judge, concurring in the judgment.

I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2nd 478 (D.N.J. 1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.

On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000).

The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman’s ability to choose the method most commonly used for second trimester abortions, the “dilation and evacuation” (D & E) method. See 2000 WL 825889, *14-*18.

Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey state is irreconcilable with Part II-A of Carhart.

Second, the Supreme Court’s holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the “dilation and extraction” or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court’s holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.

In light of this interpretation of the New Jersey statute, the Legislature’s argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature’s argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.

In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States turned down a similar request for certification by the Attorney General of Nebraska. 2000 WL 825889, *18. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling here, both with respect to the Legislature’s request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co. , 312 U.S. 496 (1941).

In conclusion, Carhart compels affirmance of the decision of the Distric Court.

I will comment further once I’ve had a chance to digest this.

Alito? Boo!

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I’m sorry about the page display problem. The site looks fine in Firefox, but is scrambled up in Internet Explorer. I’ll try to get it fixed today. If you can’t wait, though, download Firefox (free).

Anyway–Reuters is reporting that Bush is going to nominate U.S. federal appeals court judge Samuel Alito to replace Sandra Day O’Connor on the Supreme Court. RedState is thrilled. Therefore, be very afraid.

Here’s the scoop from Law.com:

In ACLU v. Schundler, Alito wrote the majority opinion holding that a city’s holiday display that included a créche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.

On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.

Alito argued that the Pennsylvania law’s restrictions should have been upheld, saying “the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.”

In other words, husbands can veto a woman’s decision to terminate a pregnancy. We’re just cows, after all.

The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito’s underlying dissent and said he agreed with his reasoning.

Other Alito rulings have made it easier for employers to practice race and sex discriminate. What a guy. No wonder the Right loves him.

Think Progress has more.

Update: It’s official — Alito is the choice. We could have a fight on our hands, says CNN:

Senate Minority Leader Harry Reid — a Nevada Democrat who had recommended Miers — said Sunday he feared Bush would “try to placate the right wing” with his next nominee, “and that’s a mistake.”

“If he wants to divert attention … he can send us someone who’s going to cause a lot of problems,” Reid told CNN, saying the “radical right wing” was “pushing all his buttons, and he may just go along.”

Reid said the choice of Alito “would create a lot of problems.”

“That is not one of the names that I’ve suggested to the president,” he said. “In fact, I’ve done the opposite.”

At least, if the Dems put up a fight, righties can no longer argue that the president’s nominee automatically deserves a vote in the Senate. Harriet Miers never got one.