Prosecuting Torture

Barack Obama has said pretty clearly that he doesn't plan to prosecute the CIA agents who tortured prisoners during the Bush era.  But what about the policymakers?  Here's what he said at a press conference a few hours ago:

Q: You were clear about not wanting to prosecute those who carried out the instructions under [the OLC's] legal advice. Can you be that clear about those who devised the policy?

THE PRESIDENT: [...] With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there.

The way this question is worded, it sounds as though Obama's answer applies to the legal team that wrote the OLC memos.  But of course that's absurd.  There's no way you could prosecute the OLC lawyers without also prosecuting the guys who accepted their memos and ordered the torture carried out.  That means people like John Ashcroft, George Tenet, Dick Cheney, David Addington, and George W. Bush.

Would Eric Holder do that without Obama's approval?  It's hard to believe that he would.  Might he appoint a special prosecutor instead?  I doubt it.  That might delay things a bit, but the conclusion would still be foreordained: anyone with even a modest bit of integrity would conclude very quickly that President Bush and his staff did indeed authorize illegal torture of prisoners under U.S. control.

So what happens next?  I don't know for sure, but my guess is that after a suitable waiting period an internal DOJ report of some kind will conclude that successful prosecution is unlikely and no further action should be taken.  End of story.  We'll see.

Aging Behind Bars

Among the grotesque realities of modern American life is the exponential rise of geriatric prisoners–men and women in their 60s, 70s, 80s, and even 90s, who committed crimes decades ago, are feeble and ill, yet remain incarcerated not only as a punitive measure, but on the premise that they are a threat to society. Many of these inmates want to get out of prison only so they can die in what many call the “free world.”

People age faster behind bars than they do on the outside: Studies have shown that prisoners in their 50s are on average physiologically 10 to 15 years older than their chronological age, so 55 is old in prison. And even by conventional standards, the United States is experiencing an exponential jump in the number of old people in prison. The causes of this increase go beyond the graying of the population at large: Long mandatory sentences without parole mean that offenders who enter prison while still in their teens or twenties may remain there until they are old–if they don’t die first.

The problem is most acute in states like California, Texas, and Florida, which have large prison systems and strict and harsh sentencing laws. In California, the population of prisoners over 55 doubled in the ten years from 1997 to 2006. This contributes to the overcrowding that has reached crisis proportions. It also yields a sense of utter hopelessness within prison walls. At the Louisiana State Penitentiary in Angola, some 85 to 90 percent of the men who pass through the prison gates will never leave. Angola has its own hospice, mortuary, and graveyard.

A Desi's Lament

Indian Americans have been appointed as the United States' Chief Technology Officer and Chief Information Officer, and were offered (but turned down) the gig as Surgeon General, butttt it turns out they can't get the ambassadorship to India. That goes to former Indiana Congressman Tim Roemer. I'm starting to think we've been typecast.

But as unfortunate as this pigeon-holing is, it makes sense that the first Indian Americans in national-level public service would work in fields Indians are most associated with. Others will follow behind them, and won't be similarly limited. It's just a matter of time until there is an Indian American ambassador, an Indian American senator, and eventually, an Indian American president.

Quote of the Day - 4.21.09

From Dan Drezner, after right-wing activist Ed Whelan described Harold Koh, Obama's nominee to be the State Department's top legal advisor, as "kooky":

We're enduring revelation after revelation about how much of the Bush administration's legal team gave a giant "f*** you" to treaties that had been signed and ratified by the United States, and Harold Koh is supposed to be the guy who's outside the mainstream because of arguments he made while out of power?  Am I missing something?

No, I think that's about it.  Harold Koh is a menace to the republic.  Jay Bybee and John Yoo, by contrast, are patriotic, hardworking Americans.  What's so hard to understand?

Harman's Big Gambit

Rep. Jane Harman is fighting back with one helluva gambit.

Late Sunday CQ broke the story--subsequently confirmed by the New York Times--that Harman, a California Democrat, was caught by NSA eavesdroppers telling a suspected Israeli agent that she would do what she could to reduce espionage-related charges filed against AIPAC officials and that this suspected agent promised in return to help her become chair of the House intelligence committee. A Harman spokesperson told CQ, "These claims are an outrageous and recycled canard, and have no basis in fact." Harman herself refused to say anything.

But on Tuesday afternoon, Harman went on the offensive. She sent a letter to Attorney General Eric Holder asking--make that, demanding--that the Justice Department "release all transcripts and other investigative material involving me in an unredacted form." She noted, "It is my intention to make this material available to the public."

In other words, let's have those NSA tapes, and let's play them for the world. (CQ and the Times both reported that after Harman's conversation was intercepted, the FBI began a preliminary investigation, but then-Attorney General Alberto Gonzales shut it down because Harman could help the Bush administration defend its warantless wiretapping program.)

But there's more. Harman also wrote Holder:

I also urge you to take appropriate steps to investigate possible wiretapping of other Members of Congress and selective leaks of investigative material which can be used for political purposes.  As you know, it is entirely appropriate to converse with advocacy organizations and constituent groups, and I am concerned about a chilling effect on other elected officials who may find themselves in my situation.

That is, she's requesting an investigation of all wiretapping that might have captured a conversation including a lawmaker. Harman wants to widen the circle of victims.

She must know that there is no way that Holder can release all the information she is seeking in unredacted form, for that would entail identifying the supposed Israeli agent with whom she talked. The Justice Department would at least have to blank out that person's name. But in general such wiretaps are not disclosed for they can reveal what's known in the intelligence world as "sources and methods." A longtime member of the intelligence committee, Harman, as a Democrat, is fully aware of this. After all, she was an ardent defender of the Bush administration's warantless wiretapping program and was one of several lawmakers who tried to persuade The New York Times not to reveal the existence of that program.

Now, she has become a transparency advocate. Does she believe that the full transcripts of these tapes would show she had said nothing improper? (What if the conversations match the descriptions reported by CQ and the Times?) Or is she counting on Holder to turn down her request, so she can then position herself as the wronged lawmaker who was the target of sneaky and inappropriate snooping and become a champion of openness and accountability?

In either case, this is a bold move. This scandal is significant--especially the portion involving Gonzales. And Harman is trying to up the ante.

UPDATE: Harman went on MSNBC on Tuesday afternoon. She noted she had been "wiretapped" and that this had been "a gross abuse of power." She reiterated her demand that the Justice Department release any secret recordings of her: "If there are tapes out there, bring it on." And, she added, "with nothing crossed out." The lawmaker who had supported the Bush administration's warantless wiretapping program declared that she now was "very disappointed my country could've permitted a gross abuse of power." She said she was worried that other "innocent" Americans had been eavesdropped upon, adding, "I have a bully pulpit, and I can fight back."

UPDATE II: As the daily White House press briefing was ending on Tuesday afternoon, I asked press secretary Robert Gibbs if he would take a question on the Harman-AIPAC-Gonzales story. "No, thank you," he replied."

UPDATE III: CQ's Tim Starks and Edward Epstein report that Silvestre Reyes (D-Texas), who got the intelligence committee chairmanship Harman wanted, has asked the committee's staff to investigate the Harman incident.

Fraud? On Wall Street?

When it comes to lobbying and campaign finance, the old saw is that the real scandal is what's legal.  That's pretty much the way I feel about Wall Street too these days.  Still, there's also the good old-fashioned illegal stuff:

In the first major disclosure of corruption in the $750-billion financial bailout program, federal investigators said Monday they have opened 20 criminal probes into possible securities fraud, tax violations, insider trading and other crimes.

....The report said little about who is under investigation and how the fraudulent schemes work, but investigators are already on alert for a long list of potential scams. Such schemes could include obtaining bailout money under false pretenses, bilking the government with phony mortgage modifications, and cheating on taxes with fraudulent filings.

Neil Barofsky, the special inspector general overseeing the bailout program, says fraud is likely to get even worse in the newest stage of the bailout since it allows investors to get in on the action with only a small bit of their own money at trisk.  The Treasury, in response to Barofsky's report, said his recommendations would be "considered."  How heartening.

Looking for a distraction? Here's a quick guide to what we read, watched, and listened to in our March/April 2009 issue:

In this age of Google maps (Street View, Earth, et al), it's easy to think that we live in a transparent world. Not quite: In Blank Spots on the Map: The Dark Geography of the Pentagon's Secret World, geographer Trevor Paglen exposes the secret airstrips, extralegal prisons, and bases that the government claims don't exist. Moving from the world of stuff the government doesn't want you to see to stuff you don't want to see, there's the documentary Food, Inc., an eye-opening tour of all the myriad gross things that could happen to your meat—from farm (chickens with breasts so big their legs can't support them) to slaughterhouse (sick cows being tortured before slaughter) to meatpacking plant (a variety of stomach-churning germs)—before it gets to your plate.

Once you've learned about the backstory of your food, check out Brush Cat: On Trees, the Wood Economy, and the Most Dangerous Job in America for the inside scoop on the dying breed of lumberjacks who bring you your furniture, books, Starbucks cup, and even your McDonald's milkshake (for reals).

 

Mutual Fund Madness

Ezra Klein points to the latest year-end report on mutual funds from Standard & Poors.  The highlight is pretty much the same as it is every year:

Over the five year market cycle from 2004 to 2008, S&P 500 outperformed 71.9% of actively managed large cap funds, S&P MidCap 400 outperformed 79.1% of mid cap funds and S&P SmallCap 600 outperformed 85.5% of small cap funds. These results are similar to that of the previous five year cycle from 1999 to 2003.

The belief that bear markets favor active management is a myth. A majority of active funds in eight of the nine domestic equity style boxes were outperformed by indices in the negative markets of 2008. The bear market of 2000 to 2002 showed similar outcomes.

And don't forget fees!  Not only do actively managed funds do worse than index funds, they charge you for the privilege of doing worse than index funds.

Hedge funds are no better, by the way.  Research is hazier here because hedge funds are more secretive, but as near as I can tell from the published data, their average return is no better than the broad market either.  The main difference is that instead of simply charging fees for helping you do worse than an index fund, they charge you gargantuan fees for helping you do worse than an index fund.

Isn't Wall Street grand?

Ragging on the Times

The LA Times, that is.  Here is Doyle McManus today:

If it seems arbitrary — even unfair — to take the measure of a new president after just 100 days in office, you can blame Franklin D. Roosevelt.

No!  A thousand times no.  It's the fault of lazy journalists who insist on hauling out this tired trope every few years no matter how inane it is.  McManus even admits a few paragraphs later that "for most leaders since FDR, the first three months have been an unreliable guide to the years that followed."  That's true!  So why perpetuate this nonsense?

Elsewhere, the Times brings its readership up to speed on the news that Rep. Jane Harman was overheard in an NSA wiretap agreeing to intervene in the espionage case of two pro-Israel lobbyists.  This story has been reported in detail by both Congressional Quarterly and the New York Times.  It's been all over the blogosphere and cable news.  Harman's district is in Los Angeles county.  It's maybe 20 miles from the LAT's main office.  So what do LA readers get?  About ten bland column inches buried at the very bottom of A11.  With her name misspelled in the headline.  Jesus.

On the bright side, the Times won a Pulitzer yesterday for a multipart special on wildfires. Congrats to Julie Cart and Bettina Boxall.

If you had been falsely accused of doing something outrageous, wouldn't you declare you had done no such thing?

Everyone is entitled to a presumption of innocence--at least in a courtroom--but it is certainly suspicious that former Attorney General Alberto Gonzales has not denied the most recent allegations against him. My CQ colleague Jeff Stein reported late Sunday night that Gonzales had blocked a preliminary FBI investigation into Democratic Representative Jane Harman, who had been captured by NSA eavesdroppers telling a suspected Israeli agent that she would try to use her clout to lessen espionage-related charges filed against two AIPAC officials. In return for her assistance, the suspected Israeli agent reportedly offered to help Harman become chair of the House intelligence committee. On Tuesday, The New York Times confirmed much of the story--including the piece about Gonzales: that the then-AG killed the inquiry because Harman, then the ranking Democrat on the intelligence committee, could help the Bush administration defend its use of warrantless wiretaps.

So there are two lines of inquiry that official investigators ought to follow. First, whether Harman broke the law by offering to lean on the criminal investigation of AIPAC for help in advancing her career. (The Times reports that the suspected Israeli agent promised that media mogul Haim Saban would threaten to hold back donations to Rep. Nancy Pelosi if she did not award Harman the top slot on the intelligence committee; Saban's spokesperson did not respond to the Times' request for comment.) Second, whether Gonzales stopped a criminal investigation because the target (Harman) could help the Bush administration. Harman has put out a very carefully-worded denial that's full of holes. Gonzales, though, hasn't said anything. That's not very reassuring. Shouldn't a former attorney general be able to declare that he never halted an investigation as a favor to a lawmaker who was doing the administration a favor? If not, there's a problem--and a problem (no matter Barack Obama's penchant for leaving the past behind) deserving a thorough examination by someone with subpoena power.

These are both major scandals--and, alas, they are linked. Democrats on the Hill might welcome another opportunity to pursue Gonzales, but they are not going to be eager to chase after Harman, even though she is not the most popular among House Democrats. Hill Republicans who would love to see a Democrat caught in an ethics investigation may not be eager to give Dems more reason to investigate Gonzales and the Bushies. And FOIs--friends of Israel--on both sides of the aisle will not be enthusiastic about any probe that could depict a lawmaker as a tool of AIPAC and Israel. (On Monday, Pelosi said nothing about the Harman-AIPAC-Gonzales story.)

Justice Department internal investigators certainly have the standing to probe what happened with Gonzales and the Harman investigation. They may not care that much about Harman, but an investigation of Gonzales cannot get too far without a determination of what Harman said (to the suspected Israeli agent) and did (regarding the AIPAC prosecution). Meanwhile, congressional sources tell me that Hill people are wondering how many other members of Congress have held conversations that have been collected by the NSA.

With the Times picking up Stein's story, the whole thing has gone mainstream. (Not that CQ isn't mainstream.) As I noted yesterday, Citizens for Responsibility and Ethics in Washington quickly sent requests to the Office of Congressional Ethics and the Justice Department for investigations. But someone is going to have to raise a fuss on Capitol Hill or within the executive branch for anything to happen. This double quid-pro-quo tale is truly a bipartisan embarrassment--and that's the best protection Harman and Gonzales could have.

This was first posted at CQPolitics.com.