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The Political Argument for Pardoning Torture

By Stormy

Michael Dorf argues that President Obama should pardon those who approved and fashioned the policy of torture as well as those who employed it. He does not really point a finger at those who sanctioned the policy: Cheney, Rumsfeld, and Bush, as well as many others.

Michael’s argument is a well-traveled one:

Prosecution of political opponents threatens to raise the stakes of politics … of democracy. Lengthy trials of Bush Administration officials for authorizing torture would inevitably be perceived as partisan, and would likely lead to a further cycle of recriminations.

In short, we cannot allow politics to become too bitter. Hence, there is a tacit agreement between the political parties–like tacit agreements between two groups of mobsters. Occasionally, someone will be killed (prosecuted), but the killings (prosecutions) must not get out of control. We would see nothing but flurries of prosecutions as soon as one party gained power.

The most direct counter to Michael’s argument is that more than just Bush appointees are to blame. We have Congressional Intelligence Committees–comprising both Democrats and Republicans, to say nothing of military commanders. If an elected Senator or Congressman knew and had the responsibility for oversight, are not they, too, culpable?

Michael focuses on the careers of the lawyers involved:

Still, much of the publicity itself has been harmful to the careers of some of the Bush lawyers. Alberto Gonzales has had difficulty finding a job, a truly remarkable predicament for a former U.S. Attorney General, even in a severe recession. John Yoo finds himself a virtual pariah in legal academia. Judge Jay Bybee hears repeated calls for his impeachment. And none of the Bush officials involved in detainee abuse is likely to use his passport again.

Will Rumsfeld use his passport? Passports? Careers? Michael is a lawyer, one I respect highly. But he sees the issue in terms of his profession, of his class. Those who are already doing or have done time for torture–or those tortured–have suffered far more than the loss of a passport or a career.

I find Michael’s argument a bit meandering, focusing more on the lawyers involved than on those in the chain of command, from Bush down through senators and congressmen.

The crux of his argument is below:

By pardoning, rather than merely not prosecuting, the architects of and participants in the Bush policy of detainee abuse, the Obama Administration could send a signal that offenses were, in fact, committed. Of course, pardons will not satisfy those who believe–with considerable justification–that prosecutions would be the better course. But pardons would formalize what appears to be the best explanation for the potential Obama policy of simultaneously repudiating the conduct and seeking to reconcile the country.

He does not really say if prosecutions should precede the pardons; nor does he address the chain of command that was involved in the policy. At the very least, I would like to see prosecutions precede pardons. If Obama is to pardon those culpable, then he should also make a public apology, on behalf of the nation, to all those who were tortured. Whether they were guilty or not is irrelevant. He should pardon also those now in jail for torture.

Michael does not address the problem of those still in jail serving lengthy jail sentences for detainee abuse, sexual, physical, and psychological–or those like Lynndie England, for example, who served a lengthy jail sentence. . If she and others like her are not pardoned, then we know there is one law for those in power; another law for those who are powerless.

Setting all this aside…and setting aside the culpability of Bush lawyers, Bush, Cheney, Rumsfeld, et al, I would like to return to that other group of participants: Those that had oversight and knew, i.e., the Senate and Congressional Intelligence Committee members, both Republican and Democratic. How do we shame them? How do we tell everyone–not just the little people like Lynndie–that there is a price to pay for not following the law, not enforcing it, not standing up in its defense if you are responsible for its defense?

If you are responsible for upholding law, are you, too, not culpable if the law is not upheld? Must we look the other way if you are too big or too important to punish?

Why has no one stood up, taken responsibility? How I would like to hear someone in that vast chain of command, stand willingly, and take responsibility. How I would admire such a person who said without being asked, “I failed my country and my office; I did not hold true to what it means to be an American.” Would Pelosi do this? Would Shelby? or any of the others? Are all, all bereft of honor?

Imagine how we would now respect any Committee member if he or she had openly rejected the policy when it was brought before the Committee, told us about it, and accepted the punishment that other senators or congressman would then have heaped upon them for being “treasonous,” for revealing important national security secrets. He or she would have then been disgraced, but disgraced with honor.

We seem to live in a country where systems are the only things that are flawed. Meanwhile Lynndie England served her time, punished by a system that is deeply flawed and profoundly biased. At some point, everyone–in any political party–has to understand that adherence to the law is primary.

Every senator congressman swears they he or she will defend the Constitution. That oath has to mean something.

To those who say that we have more important business to do, I reply, “Yes, we do have an economy in shambles. But self-serving power has run amuck for too long. Rarely is it ever brought before the bar. The torture scandal is simply another lock of the hydra.”

We watch, for example, the revolving lobby door spin ever faster. Even Bill Clinton has stepped into that door, an ex-president, husband of the Secretary of State. Where does it end?

We see greed take ever-deeper bites, passing laws like the Financial Modernization Act of 1999, the act that made possible many of the problems we now have. Those who were party to its passing still comfortably walk the halls of power. Which one of them has stood and taken responsibility? It is not a question of Democrat or Republican. That law was passed during the Clinton years.

Most citizens can understand torture; few have any idea of the FMA. But there is a link between the two. Citizens will complain about the lobby gravy chain; but few understand just how deeply it hurts us all, how profoundly it compromises the writing and passage of legislation. Citizens were shocked when bonuses where paid where TARP money landed; citizens do not understand how that money was passed among the recipients in order to clear credit default swaps.

As I pointed out in an earlier piece, there is a line connecting those who were tortured and we who were fleeced. Their fate, however, is far worse: They lost their sanity; we lost our wealth.

Dumb Private Lynndie England, who enjoyed romping through the sadistic ethos her superiors had fashioned, paid a heavy price. In going to Iraq, she was not only being patriotic but also trying to escape the poverty of her upbringing.

And what do we do now with those who were tortured beyond reason? What country would take them, trust them to act responsibly? Their rage must be beyond belief.

Meanwhile, Bush appointees cannot use their passports.

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A Civil Libertarian is a Congressperson who got Wiretapped

Greenwald on Harman. Read the whole thing.


when the U.S. Government eavesdropped for years on American citizens with no warrants and in violation of the law, that was “both legal and necessary” as well as “essential to U.S. national security,” and it was the “despicable” whistle-blowers (such as Thomas Tamm) who disclosed that crime and the newspapers which reported it who should have been criminally investigated, but not the lawbreaking government officials. But when the U.S. Government legally and with warrants eavesdrops on Jane Harman, that is an outrageous invasion of privacy and a violent assault on her rights as an American citizen, and full-scale investigations must be commenced immediately to get to the bottom of this abuse of power. [links in original omitted; emphasis his]

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Cap-and-Trade Proposals…and truth in spending


Lots has been said about costs and this study. Please notice the cost includes insulating the house as well.

Here is a Letter to Nation Republican Congressional Committee regarding cap and trade costs to households. About $340 per household in the MIT study versus about $3000 claimed by the Republicans? And so easily checked…yet quoted and linked as if fact from the study.

It has come to my attention that an analysis we conducted examining proposals to reduce greenhouse gas emissions, Report No., 146, Assessment of U.S. Cap-and-Trade Proposals, has been misrepresented in recent press releases distributed by the National Republican Congressional Committee. The press release claims our report estimates an average cost per family of a carbon cap and trade program that would meet targets now being discussed in Congress to be over $3,000, but that is nearly 10 times the correct estimate which is approximately $340. Since the issue of legislation to control greenhouse gases is now under consideration, I wanted to take an opportunity to clear up any misunderstanding created by this press release and to avoid further confusion.

Why is this amount so different? As far as I can tell the $3,000+ is based on the potential auction revenue the government could collect by auctioning the allowances over the period through 2050 where a simple average over all years from 2015 to 2050 was computed. The tax revenue collected through such an auction, the costs of reducing greenhouse gas emissions, and the average impact on a household are very different concepts. Thus, there are several things wrong with this calculation. First, the auction revenue is determined by the CO2 price and how many allowances are issued—allowances tell us how many tons of CO2 (or more broadly greenhouse gases) will continue to be emitted. The cost of reducing emissions depends on how much emissions are reduced not on how much continues to be emitted. Second, the CO2 price reflects the cost of the last ton of emissions reduced but there are many options that cost much less than avoiding the last ton and so using the CO2 price multiplied by the number of tons (either reduced or emitted) is also wrong. Third, the average cost to a household depends on how allowances or the allowance revenues are distributed. Fourth, the costs are borne over time and it is wrong to produce a simple average of such costs as that does not take account of the time value of money.
We assumed in the analysis we did that the revenue is returned to households. From data in the report we can calculate the economic cost in each year (percentage loss times the base welfare level in each year), and divide this by the US population, and then multiply this amount by four to estimate the cost for a representative family of four. We further apply an economic discount rate of 4% to get the Net Present Value (NPV) cost in each year in the future. Doing this we find that the NPV cost per family of four starts at about $75 in 2015, rises to nearly $510 by 2025, and then falls to $205 by 2050. We can calculate the average annual NPV cost per family by summing over all years and dividing by the number of years, and this shows the average annual net present value cost to be about $340 – only a part of which would be actual energy bill increases. This $340 includes the direct effects of higher energy prices, the cost of measures to reduce energy use such as adding insulation to homes, the higher price of goods that are produced
using energy, and impacts on wages and returns on capital. The cost per household will vary from our hypothetical average family of four depending on the household’s circumstances. Those households with large heating and cooling bills because of the climate in which they live or who drive more than average will face higher costs. Those with smaller homes who live in benign climates will have lower costs. The higher energy prices encourage reductions in energy use by increasing the payback on improvements in energy efficiency, and through such investments households can avoid paying more for energy. Jobs and wages in fossil fuel industries are likely to decline but job opportunities will increase in industries that produce alternative energy sources or that provide ways to save energy.
While the $340 average annual cost we estimate for a family is just one tenth of the $3000+ cited in the misleading press release, Congress should address the costs of this transition for middle and lower income families while developing Cap-and-Trade legislation. In another paper (Report 160, Analysis of U.S. Greenhouse Gas Tax Proposals) we make some calculations on the burdens of a GHG tax on families at different income levels. Our Report 160 shows that the costs on lower and middle income households can be completely offset by returning allowance revenue to these households.
Climate change poses severe risks for the US and the world. It will take efforts in the US and abroad to reduce emissions substantially to avoid the most serious risks of climate change. One of the perplexing aspects of the problem is that the solution involves using cleaner energy sources that are more costly then conventional fossil fuels. And the higher energy prices needed to cover the higher costs will fall disproportionately on the poorer members of society in the US and in the world. However, the less wealthy members of our economy also stand to suffer most from climate change—whether it is through the risks of increased food prices if climate change disrupts crops, the lack of access to air conditioning under extreme heat, or vulnerability to other extreme weather and storm events such as hurricanes which may increase with climate change. Many of the proposals currently being considered by Congress and as proposed by the Administration have been designed to offset the energy cost impacts on middle and lower income households and so it is simplistic and misleading to only look at the impact on energy prices of these proposals as a measure of their impact on the average household. Concern about the cost impacts on middle and low income families needs to be focused on making sure allowance or tax revenue is used to offset cost impacts on these households rather than as an excuse for not proceeding with measures that would help avert dangerous climate change.

The full reports cited above are available on our WEB site.

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SIGTARP Quarterly Report to Congress


Special Inspector General Barofsky and his team make particular note of the lack of oversight in TARP, and also worry that hedge funds are even more opaque in other trillion dollar programs.

The SIGTARP team did its own survey and received reasonable, but uneven, reporting by banks eventhough Treasury said it would be too cumbersome.

Will Treasury and Congress respond in a positive manner?

Many aspects of PPIP could make it inherently vulnerable to fraud, waste, and abuse. First, PPIP deals with assets that have recently been illiquid, making valuation difficult, therefore raising the danger that the Government will overpay for the assets. Second, many of the participants in these markets, such as hedge funds, are substantially unregulated and the internal oversight and compliance capability at those institutions vary widely. Next, the interrelationships between the market participants can be extremely complex and difficult to anticipate: the same entity might buy and sell toxic assets for its own benefit and manage portfolios of toxic assets for others, all while holding or managing equity or debt securities of the banks and other institutions that have large positions in the same toxic assets. Finally, the sheer size of the program — up to a trillion dollars for the PPIFs and up to another trillion dollars for the expansion of TALF — is so large and the leverage being provided to the private equity participants so beneficial, that the taxpayer risk is many times that of the private parties, thereby potentially skewing the economic incentives.

After receiving initial briefi ngs from Treasury on PPIP and discussing the issue with law enforcement partners, SIGTARP has identifi ed three of the most significant areas of potential vulnerability to fraud and abuse applicable across the program. Because SIGTARP has not been provided with many of the specifi c details of the mechanics of the various programs, SIGTARP’s observations and recommendations are necessarily at a high level.

Conflicts of Interest

The first area of vulnerability is that the private parties managing the PPIFs might have a powerful incentive to make investment decisions that benefi t themselves at the expense of the taxpayer. By their nature and design, including the availability of significant leverage, the PPIF transactions in these frozen markets will have a significant impact on how any particular asset is priced in the market. As a result, the increase in the price of such an asset will greatly benefi t anyone who owns or manages the same asset, including the PPIF manager who is making the investment decisions.

As an extremely simplified example from the Legacy Securities Program, assume that the fund manager of the PPIF owns 1 million bonds of MBS X in its own account. MBS X is currently valued on the fund manager’s books at 20% of its original value, or $20 per bond, for a total of $20 million. The fund manager does an estimate and believes that, in a fully functioning market, MBS X is actually worth 30% of face value, or $30 per bond.

In the absence of a conflict of interest, the fund manager, using PPIF funds, might be willing to pay up to $30 per bond in the market. However, the fund manager realizes that it can make more money for itself if it drives the price even higher. It thus uses the funds it controls in the PPIF to buy 1 million MBS X bonds from someone else at $40 per bond, or $40 million. This transaction has the potential, in the current illiquid market, of setting the market price for that MBS X at $40, even though that price is far above what the MBS is actually worth.

As a result, the fund manager could sell the MBS on its own books and recognize a profit of $20 million. Over time, however, the price of MBS X declines to its actual value, $30 per bond, and results in a $10 million loss to the PPIF fund. This loss has no negative impact to the fund manager, however, because it did not have any of its own money invested in the fund. Indeed, the fund manager has made money on the PPIF, because it has received fees from both Treasury and the private investors based only on the total size of the PPIF. In other words, the confl ict results in an enormous profit for the fund manager at the expense of the taxpayer.

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A brand name that pays back…?


24/7 Wallstreet suggests AIG might pay back much of the money lent to it by Uncle Sam (#11). Is this notion really in the cards for the taxpayer??

AIG (AIG) may be the only large company in America that both the management and federal government want torn apart. If AIG succeeds in selling most of its divisions it will be able to repay more than $100 billion in government loans and investments. The figure may be closer to $150 billion depending on how the federal money is accounted for. Uncle Sam also owns 80% of AIG’s shares.

There are two reasons that the AIG brand, once the premier insurance brand in the world, will disappear. The first is that most of the companies owned by AIG do not bear its name. AIG owns ten general insurance companies with names such as New Hampshire Insurance Company and The Hartford Steam Boiler Inspection and Insurance Company. Several of AIG’s life insurance companies do not have AIG in their titles. AIG’s most valuable financial services company is probably the aircraft leasing operation, International Lease Finance Corporation. AIG is now a “toxic” brand. Its operating groups will do their best to distance themselves from the company even while they are owned by AIG. Once they become independent or part of other companies, these operations will end whatever attachment they have had with AIG even if it means changing their names. AIG may be the one large brand in America which almost everyone would like to see disappear.

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Colbert, Torture, Responsibility, Banks, and String

By Stormy

Last night, April 21, 2009, Colbert brilliant summarized the issue of responsibility for torture. In three sentences and with impeccable logic, Colbert said it all.

To paraphrase:

  1. We cannot hold those who did the torture because they were simply following orders.
  2. We cannot hold those who allowed and directed the policy because did not know what they were doing.
  3. The only people who will be made to suffer for those horrendous acts are those who did the screaming.

President Obama has covered the first point.

The second point is now being established in an article in today’s New York Times.

With little debate and less understanding,

top U.S. officials involved in the adoption of brutal interrogation methods did not investigate the origins of the techniques they approved…

In short, they were stupid, uninformed. No one, apparently, either in the administration or in the Senate and House Intelligence Committees had any inkling of the origins of the program upon which we were embarking.

This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved — not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush not the leaders of the Senate and House Intelligence Committees — investigated the gruesome origins of the techniques they were approving with little debate.

Well, you might reply, did they have to know the history of torture to act responsibly?

I, too, found this kind approach a bit strange. The logic seems to be that if they were not historically up to snuff, then clearly they are innocent. With their busy schedules, they never had the opportunity to visit the Pol Pot museum in Cambodia where waterboarding was on display.

Closer to home, they did not realize that waterboarding had been prosecuted by the United States after World War II.

The process was “a perfect storm of ignorance and enthusiasm,” a former C.I.A. official said.

Such innocence–such eager babes in the woods. And, of course, they were totally misled by evil psychiatrists, particularly one James E. Mitchell.

Dr. Mitchell, who declined to comment for this article, became a persuasive player in high-level agency discussions about the best way to interrogate Qaeda prisoners. Eventually, along with another former SERE psychologist, Bruce Jessen, Dr. Mitchell helped persuade C.I.A. officials that Qaeda members were fundamentally different from the myriad personalities the agency routinely dealt with.

Ah, yes, we now have personalities fundamentally different, personalities that demand new, harsher techniques, like those Pol Pot used, or those the Spanish Inquisition used, or those the Nazi’s used. We now cozily nested in a grand historic tradition.
And how does this remarkable argument conclude?

Ms. Divoll, who now teaches government at the United States Naval Academy, said the interrogation issue revealed the perils of such restricted briefings.
“The very programs that are among the most risky and controversial, and that therefore should get the greatest congressional oversight,” she said, “in fact get the least.”

So there you have it; problem solved: No oversight. Ignorance and cruelty find their last refuge: No oversight, no one responsible.

Move on folks, not much more to talk about.

Of course there is the banking problem. Oops, no oversight there either. You and I are the ones do the screaming on this one.

I wonder if this argument is running out of string?

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More than favoritism?

(response to cactus, lifted from comments, by juan. Slightly edited for readability))

‘Favoritism’ seems too kind while also continuing to assume legal-political institutions [‘the state’] to be dominant rather than dominated, which is then to avoid the question of which class or class segment dominates through the mediation of ‘the state’.

Willem Buiter put it rather nicely in a recent FT article:

The banking establishment and the financial establishment representing the beneficial owners of the institutions exposed to the banks as unsecured creditors – pension funds, insurance companies, other banks, foreign investors including sovereign wealth funds – have captured the key governments, their central banks, their regulators, supervisors and accounting standard setters to a degree never seen before.

I used to believe this state capture took the form of cognitive capture, rather than financial capture. I still believe this to be the case for many, perhaps even most of the policy makers and officials involved, but it is becoming increasingly hard to deny the possibility that the extraordinary reluctance of our governments to force the unsecured creditors (and any remaining non-government shareholders) of the zombie banks to absorb the losses made by these banks, may be due to rather more primal forms of state capture.

How about President Obama, what did he have to say while still a lowly Senator back in September, 2007:

Turning a blind eye to the cronyism in our midst can put us all in jeopardy… We will not tolerate a market that is rigged by lobbyists who don’t represent the interests of real Americans or most businesses…we are going to have to adapt our institutions to a new world…”

by juan

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