Well, I'm not sure I want to dive into the whole debate about African-Americans and gay rights - especially as a straight white male liberal....

BUT, I do think it's worth noting that lots and lots of African-Americans consider themselves VERY conservative when it comes to issues like abortion, gay rights, etc. But they vote solidly Democratic based on economic issues.

In short, while we get annoyed over and over with working class whites voting for Republicans based on social issue (see "What's the Matter with Kansas?"); working-class African-Americans do exactly what Democrats want them to do -- set aside the culture-war stuff and vote their pocketbooks.

But then, we shouldn't really be all that surprised when there's a social issue on the ballot on a straight up or down that they'd vote conservatively. The biggest mistake that Prop 8 opponents made was assuming that all Democratic voters were socially liberal voters.

None of this is to excuse away the absurdity of one group of voters who've fought for their civil rights obstructing the civil rights of others --- merely an explanation, and a recognition that their votes shouldn't be taken for granted.

(Oh, and all of this is also true for many Latino voters, especially in California - where post-Prop-187, they're typically solid Democrats, but also typically solid Catholics in their social mindset.)

And now, this straight white male is going to shut the hell up before I get in trouble.

Wyden has been one of the two most consistently liberal members of the Intelligence Committee

May be true, but regarding the constitution and bill of rights, support is not liberal or conservative, it's Civil Libertarian, something that every danged American politician claims to be and few are.

I know it's a minor point but I think it's harmful to frame it as left/right rather than law abiding/criminal, which is the actual situation, and I do agree with the rest of RW's comment.

I do agree with the rest of RW's comment. Oops. Should read "I agree with the rest of Bradley's comment."

The torture regs under Bush aren't approved legislation from Congress. That's stuff that's come down from the Executive Branch. In order to STOP torture, Congress has to PASS A BILL--not put one on hold.

Wyden has been very good on warrantless wiretapping and FISA too, btw.

I have no problem beating up on him when he doesn't do the right thing--but in this case, he clearly has been. Its not smart for the netroots to go after a legislator because they think he might possibly do something wrong based on a 4-word quote in the NYT--especially when the history of that legislator is good.

Its the worst kind of crying "wolf"..and it does us no good.

This is from Pam's House Blend:

There are so many other groups in the exit polling that voted for Prop 8 overwhelmingly (as in, more than 60%): * The elderly (65+) * Republicans * Conservatives * People who decided for whom to vote in October (but not within the week before the election) * People who were contacted by the McCain campaign * Protestants * Catholics * White Protestants * Those who attend church weekly * Married people * People with children under 18 * Gun owners * Bush voters * Offshore drilling supporters * People who are afraid of a terrorist attack * People who thought their family finances were better now than 4 years ago * Supporters of the war against Iraq * People who didn't care about the age of the candidates * Anti-choicers * People who are from the "Inland/Valley" region of California * McCain voters

Some of these groups supported Prop 8 far more than African Americans did, which makes me wonder why we're focused so much on race instead of any of these factors. In terms of predictive value, religion, political ideology, and being married with children tell us much more about how someone voted on Prop 8 than race does.

Black voters under the age of 45 voted against Prop 8 by sybstantial margins, as did White and Hispanic voters in those age groups. More voters over 45 (and especially over 55) in ALL of those groups voted FOR Prop 8.

The "typical" Black or Latino voter does a very strong 360 when you factor in age. The Black vote did not CAUSE Prop 8 to pass, and, just like with any other conservative, blown-out-of-proportion talking point, the more often we repeat these fallacies, the harder they will be to combat.

Carla,

"So civil rights are cool and neato if you're black, but not if you're gay? Lovely."

That line is not the thing a person of color reading Blue Oregon wants to see. I take personal umbrage at that statement because the over generalization is not fair. Black people are not republicans, they aren't haters, they don't want civil rights for themselves and no one else. That doesn't get to the heart of what is really going on.

1. The GLBT movement has never made a serious, long standing effort to reach out to communities of color. The reason so many white people are "accepting" of gay marriage? The movement has consisted of White gays for White gays. There needs to be consistent and dedicated outreach to the communities of color - like there has been for white, "mainstream folks - and headway will be made.

2. The overwhelming number of people coming of the closet are White people. Their community has had more time and frankly, more people to get used to seeing as homosexual and they've had time to get to know that it's OK to be gay. Even the dirge of gay characters on TV are White. How many out and proud Blacks have met? A very few, I'm sure.

3. Black people are protective of themselves and their community because life has been hard and unfair to them. I've heard many a conversation about homosexuality that goes like this: "Why would you want to be gay? You are Black and that is hard enough." That is the reality, that is what that community says. So if a Black person is afraid to come out of the closet because that's how their family and friends feel, how are they ever going to be able to come out and feel accepted? Again, people get comfortable because they start to know gay people and realize its OK. That has not happened overwhelmingly in communities of color.

4. There are Black people that are gay for who this whole process has been hard on and unfair for. Dan Savage is not the ultimate authority on this one. I think for worse, he's inflamed this idea that being Black for Obama but being Black and anti-gay. It's irresponsible and removes the mirror from the modern day gay movement. I urge you to seek out Jasmine Cannick (lesbian, Black blogger) who says more clearly that I ever could what it's like to live in South Central Los Angeles as a Black lesbian and how Prop 8 is affecting her life and other people of color.

5. Civil rights for Blacks and civil rights for the GLBT community are fundamentally different. I never, ever have to go home and say to my parents, "Mom, Dad, I'm black." I don't have to say that to friends, strangers, store owners or co-workers. People see it when they look at me and I have to take the good and the bad that come with this skin. I'm not saying that I want gays in the closet, I'm saying the opposite. But that is what is different about the two movements and that is why the approach must be different. The oppression has been different. To say Gay is the new Black is to be disrespectful to folks who actually know what it meant as still means to be black.

Phew! That was a mouthful. Ok, see you in the morning!

Geez. Really? We're debating what it is to be a good progressive legislator vs. an excellent one? Have we run out of real problems to solve?

Welcome to progressiveworld, Teddy. Where you just can't be quite good enough.

So, Congress passed a law that says the US can't torture, unless the President says we should, which makes torture in the US legal. It also immunizes the actors against war crimes - bonus!

Interesting if not erroneous interpretation, RW. I looked this over with a lawyer friend of mine--and his conclusion on the legislation was about the same as what I wrote about it in comments above.

You continue to insist that somehow Wyden isn't excellent on the issue of torture because he didn't stop it from happening--based on a bill that wouldn't have stopped it from happening.

Black people are protective of themselves and their community because life has been hard and unfair to them. I've heard many a conversation about homosexuality that goes like this: "Why would you want to be gay? You are Black and that is hard enough." That is the reality, that is what that community says. So if a Black person is afraid to come out of the closet because that's how their family and friends feel, how are they ever going to be able to come out and feel accepted? Again, people get comfortable because they start to know gay people and realize its OK. That has not happened overwhelmingly in communities of color.

Okay..so how do we fix this?

Isn't there a cultural/demographic issue? Aren't (and forgive me if it's inaccurate) African Americans disproportionately churched in conservative sects, and in fact more churched overall than their white brethren? And wouldn't this lead to a significant subsection of the black community--like that of the white community--being naturally disposed against same sex marriage?

I find myself returning to Larry David being accused of being a self-hating Jew. His response was, "Oh, I hate myself, but it has nothing to do with being Jewish." I think the danger is in ascribing skin color to the tendency to disfavor same sex marriage, when there are far better ways to group people on this issue that have nothing to do with pigment.

By the way, I think a prime opportunity exists for President Obama to set an early example of reaching across the aisle on the issue of torture. Some very serious conservative minds--including a bunch of generals and intelligence professionals (mostly former in both cases, sadly)--are every bit as frustrated and worried about torture as progressives. There is much common cause that the TRUE far right and far left can get together on fixing. It will have the political benefit of exposing the frauds who now occupy the the power centers of the GOP, and divide them and hopefully isolate them.

Torture is wrong, and it is counterproductive. Period. Parsing what constitutes torture is pathetic, and I think it is absolutely incumbent upon people like those at Blue Oregon to hold their representatives accountable when they begin to parse on torture. I would like Senator Wyden to clarify and reaffirm his previous statements on the matter.

MCA Torture : Finally, by amending the War Crimes Act, it allows the president to authorize interrogation techniques that may nonetheless violate the Geneva Conventions -VanBergen at Tompain.com -http://www.tompaine.com/articles/2006/10/27/damage_control.php

Bush had already authorized torture months before that in an Executive Order via his "interpretation" of Article 3 of the Geneva Conventions:

http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html

But quite clearly Bush gave the green light on it well before the EO--so there must be some other order that came down from the Executive in a less public way:

http://www.projectcensored.org/top-stories/articles/7-us-operatives-torture-detainees-to-death-in-afghanistan-and-iraq/

http://www.cbc.ca/news/background/iraq/abughraib_timeline.html

You keep confusing the idea of stopping the act of torture (which I don't expect Wyden to do) with stopping the legalizing of torture - where Wyden could tried harder.

Not at all. I'm noting that Bush had already made the regulations and legalized it. I read you to say that the MCA was the law that legalized torture. The MCA is what pulled the biscuits out of the fire for those in the upper echelon that order it.

"If it were about civil rights then you wouldn’t have gay groups getting their backs up when the issue of multiple partner marriages get mentioned along with marriage equality."

They get their backs up because the person who makes that comparison is usually making a negative comparison, trying to conflate homosexuality with the equally (in their view) amoral construct of polyamory.

I think you'd be hard pressed to find a significant number of LGBT community who are against people in loving triads or whatever, to cohabitate in peace. But polyamorous marriage raises important legal and economic issues, particularly with things like power of attorney and succession. It requires an entirely new structure to accomodate it. Same sex marriage simply requires making gender irrelevant. Boom, done, everything else in the whole socio-civil marriage process is exactly the same.

It's a false construct to say that anyone who has an objection to polyamorous marriage is a hypocrite on others' objection to gay marriage. The objections aren't grounded in the same complaint...except for claims of immorality. Mainstream society has rejected immorality as a label for gay relationships, flatly. So to raise polyamory as a defense against gay marriage is off base and weak.

Re the Gay---Ethnic thingy.

It's at least worth noticing that the hardcore evangelical Right comprises about 25 to 30% of the nation and it follows that about 25 to 30% of gays and lesbians come from the community that I grew up in.

Many are as virulently anti gay as anyone in the black community, so this really does look like more of divisiveness that progressives always bring to the table when they start arguing about who is the most oppressed.

At the end, it's as old as the original American Revolution: Hang together or hang separately.

Excuses, and everyone else who's commented towards me:

1. I'm not making excuses for anyone; Blacks or otherwise. I am, for my own people, explaining some history that could attribute to why the vote went the way it did.

2. It also pays to look at the vote overall. Blacks constitute only 6% of California's population. So even if the vote swung the other way in the community, it would not have made a dent in the White people who voted against Prop 8. It also pays to look at age. Black people under the age of 40 voted overwhelmnly against Prop 8. To make a blanket statement about Blacks - Pro civil rights for them but not anyone else - is unfair and unbased in reality.

3. There is no blaming the victim because we are all victims of government intrusion in the lives of many people. I do still know that Black issues and gay issues are different. It would heed all of us to treat them seperately so we can attack the roots of both forms of discrimination. I do feel more headway would be made with people of color if we didn't treat EVERYTHING as a blanket issue.

4. I'm not the best, but I'm a pretty big champion for GLBT rights in Oregon. Having worked at BRO, served on it's PAC board and currently sitting on the board at the Q Center, I'm a straight ally working my ass off for rights for all, not just Blacks. Being involved in the movement lets me know that there are people that are not being pulled into the process. I didn't get recruited; I sought out ways to help.

5. (I really like making points this post) Let us not ever forget that people of color are also gay. To make blanket statements against Blacks ignores that there are Black gays who aren't not part of your statement. There are Black straight allies who aren't part of your statement. Gross generalizations help no one. GLBT organizations know they need to outreach to people of color. This isn't a secret. Prop 8 folks acknowlegde they could have done better to outreach to communities of color. My statement isn't original.

Moving this movement forward involves straight people of color opening their mouths (as I do constantly) and EVERYONE reaching out to all communities sharing our message of acceptance and tolerance.

Peace.

RRW has much the best of this argument IMO. I'm not sure about the "hold" thing, which as RRW mentions at one point is a Senate convention, that may not apply to some kinds of legislation -- one would guess national security legislation being among those. Does anyone really doubt that if Robert Byrd could have put a "hold" on the Iraq Authorization of Military Force, he would have, given his expressed views regarding constitutionality?

But in the press, there is a distinction to be made between a lapdog press (no challenges) and a guide dog press, which actually leads the way in creating public memes. Something similar applies to politicians and various degrees of complicity and opposition. I think Glen Greenwald raises an entirely legitimate question here about Wyden and Feinstein, who are going out of their way to signal (to Barack Obama but maybe more importantly to securocrats in his forming administration who might put pressure on him ) that they are willing not to hold him to his campaign pledge that Greenwald documents to base interrogation policy on the Army Field Manual. Why are they raising this question when Obama hasn't? It is troubling.

The fact that Obama has a moral compass is no reason or excuse unless we want a government of men, not laws, in the old phrase. If, heaven forfend, something should happen to Obama after he becomes president, I wouldn't trust Joe Biden on this, and there are plenty worse.

I agree with RRW that Bush's executive order that purported to make torture legal (while denying it was torture) did not in fact make it legal. I'd go further and say that even if the MCA purports to give the president the authority to interpret the Geneva Conventions, if the president's interpretation in fact authorizes acts that violate those solemn treaties that the Constitution makes the highest law of the land, the MCA does not make torture legal either (nor other illegal actions, as subsequent Supreme Court rulings on Guantanamo detainee rights show).

But what the quoted passages of the MCA do is give the president cover. They falsely legitimize the illegitimate.

And it does matter that Wyden has not made a bigger stink about this -- not only him, but especially him in two senses, one being his greater potential influence sitting on the Intelligence Committee, and the other being that he is supposed to be such a progressive on this stuff. If even a supposedly strong progressive doesn't do more, that gives cover to others.

George Bush created what ought to have been a fucking constitutional crisis in open politics, and the Congress (both parties) instead let it go with barely a whimper, when they didn't actually try to legitimize his creeping coup. Wyden should have done more. They all should have done more.

So now Barack Obama is coming in. What signals is Congress sending him about trying to undo the executive powers coup, and about his own expressions of intent to do at least some of that? Well, two of the supposedly most progressive on these matters, according to some commenters here, aren't saying "come on, let's go, let's fix it the way we all said we would." No, instead they are saying, in effect, "go ahead, listen to the securocrats, we'll give you wiggle room." It's rotten.

Wyden's four words: "legal, humane and non-coercive." Today Greenwald wrote this about stuff Feinstein has said (which is worse than what Wyden has said, but Wyden is collaborating with her rather than challenging her):

"A professed belief in ending torture and complying with all laws is a perfectly nice aspiration, but that's all it is. There's nobody involved in these debates who expressly rejects those concepts. Even George Bush repeatedly insisted that he finds torture to be contrary to American values, that the U.S. absolutely does not torture, and that his interrogation policies comply with all treaties and laws ("Bush said his administration sticks to 'U.S. law and our international obligations'").

I.e. Bush claims to be living up to the standard Wyden has set for President Obama and the next Congress. It is too low.

I think Glen Greenwald raises an entirely legitimate question here about Wyden and Feinstein, who are going out of their way to signal (to Barack Obama but maybe more importantly to securocrats in his forming administration who might put pressure on him ) that they are willing not to hold him to his campaign pledge that Greenwald documents to base interrogation policy on the Army Field Manual. Why are they raising this question when Obama hasn't? It is troubling.

That may be what Feinstein is signaling...but I don't know how you can possibly reach that conclusion on Wyden, Chris.

Neither the NYT piece or the statement from Wyden's communication person offer such an indication. In fact, I would say that Wyden is hoping that Obama will have BETTER than the AFM on this issue--and lists very distinct and unyielding parameters for interrogation.

Given Wyden's excellent record on this, I sincerely think he's should be cut some slack here. I think Senator Wyden can be frustratingly moderate sometimes and I'm happy to call him out when I see that going on. But on this issue, that's simply not been the case.

It frustrates me to see progressives go after a guy whose been (and is being) progressive on an issue..because he's not Code Pink, or some semblance thereof.

But there has to be some provision of law and policy that permits agents of the government to extract information from a terrorist that can save the lives of innocent people.

There is a provision. If you're all up in a Jack Bauer moment, the option is to break the law and be willing to go to prison for it, because it's so damned important to break the law that you're willing to suffer the consequences for the "greater good".

The Line has to stay bright and uncompromising. We don't torture and we abide by our treaty obligations as outlined in the US Constitution. Period.

Somehow this gets lost in a bunch of cowardly line blurring around the idea of "American Exceptionalism for Needed Torture Moments."

Coercive interrogations certainly aren't pleasant, and they shouldn't be permitted in the normal criminal justice system.

Why?

But there has to be some provision of law and policy that permits agents of the government to extract information from a terrorist that can save the lives of innocent people.

Why should someone suspected of aiding Eric Rudolph while he was on the lam in the Ozarks be held to a different standard than someone suspected of aiding an Iraqi "terrorist"?

Carla,

I disagree with you. That Wyden is even indicating a standard different than the one he has demanded consistently and that Obama promised, prior to the issue coming up in any other way, is creating more space for the thin edge of the wedge. The timing in conjunction with Feinstein his Intell committee chair is troubling.

He's being a guide-dog to weaker stance, to not restraining unconstitutional executive power because his own guy is in now, and not holding Obama to his promises.

The whole framework of standards is too low. Wyden is the way he is on this stuff for the same reasons Blumenauer is the way he is: both at the end of the day care more about getting on with their pet domestic issues (Wyden, his health insurance plan, Blumenauer, transportation issues related to urban planning & environment). Both are unwilling to make the constitutional pillaging more important if they think it will cost them in promoting other issues.

Now if you want to argue that it's just pragmatism for Jeff Merkley to say that if single payer ever got to the Senate floor he'd vote for it, but meanwhile he'll be cosponsoring Wyden's plan, rather than working actively for single payer, it's not what I'd wish, but it would be comprehensible and defensible at a certain level.

But the constitutional pillaging is a whole different order of seriousness to which that kind of reasoning SHOULD NOT APPLY. Not by Wyden, & not by you.

And NOBODY IS DOING ENOUGH in the Congress (either house). Individual senators and reps occasionally make stands on one thing or another. Feingold is pretty good, Leahy on a number of occasions has gotten out and said some good stuff, then backed down, Dodd did good stuff on FISA, I'm sure there are other cases.

But:

WHY ISN'T RON WYDEN ORGANIZING A BI-PARTISAN CONSTITUTIONAL DEFENSE AND RESTORATION CAUCUS?

I won't apologize for shouting. It's shout-worthy.

Until he does things like that and is out there every day on this stuff, he like all the rest isn't doing enough.

Sometimes the relatively good ones seem to cooperate a little, mostly they seem to act on their own. They need to organize and advocate persistently and vocally.

Why isn't anybody? Byrd? Feingold? Leahy? Sanders? Hagel? Spector? Snowe? Kennedy? Add anyone else you want to credit with being a strong progressive or strong civil libertarian. Why aren't they getting together, making this a priority, making it something over which the refuse to cooperate with other stuff until it gets dealt with.

If Wyden isn't doing that, he isn't doing enough. No one else is. But his good votes only get him a C at most, not anywhere near an A.

We need (in the other direction relative to militarism) Wyden and others to be senators who will be like Cato the Elder in the Roman Senate, who began every speech he made "Carathago delenda est!" ("Carthage must be destroyed.") To be as dogged about it as John Quincy Adams was about the Congressional gag rule that tried to suppress petitions about slavery in the 1830s and 1840s. Out there every single day.

RRW:

There is no legislation sanctioning torture. I realize posting two links from internet sites might seem better than talking to a practicing attorney, but I'm going to go with my attorney source. Sorry.

You can feel free to not "listen to a word I say" and embrace Code Pink with gusto. Neither is any skin off my nose--and says at least as much about you as it does about me.

Carry on. :)

Carla, did you ask your lawyer friend if the passages of the MCA quoted above might function somewhat like the "retroactive immunity" given to the telecoms over warrantless wiretapping?

I completely agree with you about the "thicket of legality" or legalism that surrounds Bush's unconstitutional or illegal executive orders and signing statements, but it seems to me that the MCA adds another ring to the thicket by creating at least plausible grounds for arguing Congressional approval. Could be a wrong legal argument, just like Bush's own wrong arguments, and still be part of the the thicket.

And the metaphor is a good one for why what Ron Wyden, though not him alone, should be criticized for not doing enough to clear away the thicket, at minimum, and perhaps for sometimes contributing to it, if say the MCA does in fact contribute to the thicket of legallity/legalism.

There are much more egregiously active collaborators than Wyden. I'm glad he's not one of them. But that's a low standard, not a standard of excellence.

Carla, with regard to whether the Military Commissions Act permits torture...

The relevant sections are 5, which asserts that the US cannot look to foreign or international courts for intepreting the Geneva Convention; 6(a)(2) which asserts that it brings US law into full compliance with article 1, section 129 of the third Geneva Convention; and 6(a)3 which gives the President authority to interpret and apply the Geneva Conventions, and to issue executive orders outlining policy for conduct that does not constitute a "grave breach" as described in the third Geneva Convention.

Here's how the Geneva Convention defines a "grave breach"...

Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

At the risk of relying on a poor source like "the internet", rather than a strong source like an anonymous lawyer, I call your attention to this article, by Professor Michael Dorf of the Columbia University School of Law which describes why the MCA does, in fact, authorize torture. Here's the money quote from that piece:

The MCA makes applicable to U.S. personnel accused of violating Common Article 3 between September 11, 2001 and December 30, 2005, a defense established by the Detainee Treatment Act of 2005 (DTA), which was enacted on the latter date. Such personnel may escape criminal conviction for waterboarding and like practices if they believed in good faith that what they were doing was lawful. The relevant provision of the DTA in turn makes reliance on memos of the sort produced by the Justice Department "an important factor" in determining knowledge and good faith. Indeed, the Administration and many of its allies in Congress refuse even to say whether they think that the MCA prohibits future waterboarding. They argue that stating what specific practices are forbidden would give our enemies an advantage, because these enemies could then focus their training on methods of resisting only those harsh interrogation methods that are permitted;

Also, please refer to this article by Yale University Law Professor, Jack Balkin, which asserts that "The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations."

YMMV.

As to Chris' question...

There is no question that the MCA grants immunity from prosecution for anyone who engaged in torture prior to January, 2006, nor that under the terms of the act, courts may accept testimony derived through coercion.

At issue is whether an act that grants the president the authority to define what constitutes torture essentially gives the United States a loophole to continue engaging in things such as waterboarding, etc. Joe Lieberman, the Bush DOJ, and apparently Carla's attorney friend say no. The ACLU, both law professors I quoted, Hillary Clinton, Russ Feingold, and many who opposed the measure say yes.

As I said, YMMV.

Sal:

As has been pointed out numerous times, torture was already permitted under the Bush Administration before the MCA was passed. The citations you linked appear to agree with what I've said previously in this thread: the MCA basically tries to pull out of the fire those who engaged in the activity.

We can play dueling internet sources here...for what good it will do.

EO authorizes torture:

http://www.slate.com/id/2170983/

Bush tells people they can torture if they are acting in "good faith": AP at Common Dreams: http://www.commondreams.org/archive/2008/07/24/10586

Bush 2004 EO authorized torture:

http://www.onlinejournal.com/artman/publish/article_3187.shtml

As I said, there is sufficient precedent that Executive Orders have the force of law. These orders took place prior to the MCA.

Does this mean it was legal? It hasn't been tested, that I know of. And neither has the MCA, in terms of attempting to prosecute those who engaged in torture (I have read that Section 7 was found unconstitutional).

Its clear that its reasonable to conclude (based on internet sources) that Bush's EOs already made torture legal well before the MCA was a twinkle in Bush's eye.

But again..YMMV.

FYI: For those that still carry the "Wyden isn't "excellent" on torture" torch:

Wyden blocks CIA lawyer from becoming CIA chief counsel because of torture:

http://tpmmuckraker.talkingpointsmemo.com/archives/003936.php

Wyden pushes CIA to drop internal inquiry of of the agency's inspector general (the IG had been investigating CIA counterterrorism programs)

http://www.nytimes.com/2007/10/12/washington/12cnd-cia.html?_r=2&oref=slogin

Wyden pushed the DOJ to interpret Bush's EO on the Geneva Conventions:

http://www.nytimes.com/2008/04/27/washington/27intel.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1209384261-yLSR6p/PCM3c4HFC3n01jg

http://graphics8.nytimes.com/packages/pdf/washington/20080427-INTEL/letter1.pdf

http://graphics8.nytimes.com/packages/pdf/washington/20080427-INTEL/letter3.pdf

Its clear that its reasonable to conclude (based on internet sources) that Bush's EOs already made torture legal well before the MCA was a twinkle in Bush's eye.

That's not clear at all. Frankly, I am surprised that you appear to be accepting the Bush administration's arguments at face value.

If those arguments had merit there would have been no need to indemnify people who acted on Bush's orders prior to to 2006, nor would there have been a need to codify that the administration has the sole authority to determine what does and does not comply with the Geneva Convention as it relates to torture.

What the MCA did was assert, ex post facto, that if illegal "harsh interrogation" techniques were used prior to 2006, there would be no penalty for those techniques and that any evidence gathered using those methods could be used in a court of law.

Moreover, it places into the hands of the executive branch the sole legal authority to define what it means for the United States to comply with the Geneva Convention as it relates to torture.

At best, your expert anonymous attorney friend can make the case that the MCA does not authorize torture because what it really does is allows an administration to define what torture is. If the administration asserts that water boarding or any other technique is not torture, then that's just the way it is.

As to the question regarding Senator Wyden...

I think it's clear that he was a strong voice against torture when President Bush was running the country. However, I would hope that any person of good faith would be troubled if, as Chris Lowe asserts, that he and Feinstein appear willing to accept a lesser standard on the issue now that Barack Obama will be President.

I would hope that any person of good faith would be troubled if, as Chris Lowe asserts, that he and Feinstein appear willing to accept a lesser standard on the issue now that Barack Obama will be President.

I think where the obvious parting of ways here is the assertion, at least as far as Wyden goes.

If those arguments had merit there would have been no need to indemnify people who acted on Bush's orders prior to to 2006, nor would there have been a need to codify that the administration has the sole authority to determine what does and does not comply with the Geneva Convention as it relates to torture.

Given that this has yet to be tested in court on a number of levels--I don't see how you can be so unequivocal here.

I'm not necessarily accepting or rejecting Bush's argument here in this thread, Sal. But I am saying that EO's been known to have the force of law. It's not unreasonable at all to assume this one does as well.

At best, your expert anonymous attorney friend can make the case that the MCA does not authorize torture because what it really does is allows an administration to define what torture is. If the administration asserts that water boarding or any other technique is not torture, then that's just the way it is.

I'm pretty sure that's exactly what Bush/Cheney have been trying to do all along, Sal. At least that's how they've been putting the pieces on the chessboard.

I would hope that any person of good faith would be troubled if, as Chris Lowe asserts, that he and Feinstein appear willing to accept a lesser standard on the issue now that Barack Obama will be President.

I think where the obvious parting of ways here is the assertion, at least as far as Wyden goes.

Well, we'll know for sure in a few months. In the meantime, I see absolutely nothing but benefit in people who care about this issue sending a clear and unequivocal message that we do not want Democratic leaders to hold the White House held to a different standard on this issue just because a Democrat will soon be occupying the Oval Office. This is not an issue on which the American people should accept a partisan double-standard.

What Sal said. Thanks Sal.

Obviously I wasn't persuasive to you Carla, & apparently in a different way not to Sal, but I did offer an argument for my interpretation, so it's more than just an assertion.

Sal's agnosticism / time will tell approach certainly is reasonable and I agree with him about sending a clear & unequivocal message.

Carla, let me turn it around from a different angle or more positive terms and ask you this: supposing I go along with you and focus on the various good positions Ron Wyden has taken that you document. How do we persuade Wyden to take that further and agree to be an amplifier of the view that there should be no change of standard just because there is a D president? How do we persuade him to step up and take a more visible and vigorous leadership role in organizing coordinated bi-partisan action on restoration of constitutionality?

Or do you think those things don't need doing?

Carla, let me turn it around from a different angle or more positive terms and ask you this: supposing I go along with you and focus on the various good positions Ron Wyden has taken that you document. How do we persuade Wyden to take that further and agree to be an amplifier of the view that there should be no change of standard just because there is a D president? How do we persuade him to step up and take a more visible and vigorous leadership role in organizing coordinated bi-partisan action on restoration of constitutionality?

Chris: You're running with the assumption that the change in the standard is less-stringent on torture. I think that's a false assumption, and based on Wyden's history on the issue an unfair one.

The reason that the AFM was brought into the discussion was to hold Bush to a standard. Bush and his folks have consistently demonstrated absolutely zero moral boundaries here..and so the Senate Dems used the AFM as a way to bring Bush into check. Now that we have Obama, Wyden says he is open to listening to the policy that Obama wants to create here, with the belief that it might be an even better policy than the AFM.

That would seem to me to be Wyden "taking that further". I don't think we should hold Obama to the AFM, IF HE IS WILLING to have an even higher standard on interrogations. If he's not, then the AFM should be the base standard, IMO.

Sorry, Carla, I'm trying to ask something different.

Let me accept for the sake of the argument that Wyden has not changed the substance of his position on torture, and that whatever standard he's talking about would be a) as bright line and b) as strong or stronger than the AFM -- given what you or someone else pointed out about the president's ability to revise the AFM on his own.

I still think that the entire collection of Representatives and Senators have failed miserably to act in a persistent, organized, collective way to oppose the administration's assaults on the Constitution and on international law. Some don't oppose the assaults, some dodge the issues. Some, to greater or lesser degrees, act individually or in small temporary alliances in reaction to specific issues, often overly narrowly framed (e.g. the FISA debates got focused on retrospective immunity, which had its point because suits might have been a tool to peel away some of the secrecy, but there are more fundamental problems with the changes in the FISA law, already weak, to allow warrantless wiretapping going forward).

Ron Wyden falls into the last-named group.

I say that to be really excellent on these issues, he and anyone else needs to be more than reactive, needs to be taking leadership to put the issue before the public, and organizing with other legislators and elected officials and civil society leaders, not just acting individually or in ad hoc small groups.

Neither Wyden nor anyone else seems to be taking up that role. I'm critical of them all for what seems to me a serious failure to stand up to a threat adequately to its scale. I sort of see the point that beating up on him in words when he's better than a lot might be counterproductive. But on the other hand, I really do think that the no one is addressing the problem with the seriousness it needs. It's hard to see how "giving credit" for being "excellent" on the issue compared to people who are part of the problem or evading it avoids the trap of saying what Wyden & the others are doing is sufficient to the problem. "Excellent" generally includes "good enough." But no one is doing well enough.

So if I grant that Wyden is doing comparatively well by low standards, how do we persuade him to step up to the next level of leadership that we really need from him?

Chris Lowe: I still think that the entire collection of Representatives and Senators have failed miserably to act in a persistent, organized, collective way to oppose the administration's assaults on the Constitution and on international law.

Given that Constitution gives the President the portfolio of foreign policy, Chris, I think there is a limit to what you can expect our representatives to do. This contributes to the low expectations.

Insofar as the attacks on the Constitution, I wonder why you let the Courts off the hook. That's their specific Constitutional portfolio, again - not Congresses.

And finally, I think you forget just how divided the public still is on many of these issues. Bush didn't become unpopular because he tortured foreigners. He was plenty popular while the worst of the excesses were going on. He's unpopular largely because of the economic crisis that he made. We both know that's a direct consequence of his policies, but the public isn't quite as discerning - or at least not the swing voters who went for Bush in 2000 and 2004 and Obama in 2008.

Again, my thesis is that there is a lot of displaced political anger in the US. We get mad at our representatives for all too correctly reflecting our own venal, hypocritical, nature.

He was plenty popular while the worst of the excesses were going on.

He lost a lot of popularity once those excesses began to be exposed (although not necessarily as a result of their exposure).

According to Slate.com, by the beginning of 2004, Bush's approval rating had dropped to the same level (in the mid-50s) it had been just after the 2000 election. The "60 minutes" Abu Ghraib story didn't hit until that April, a little over a year after the invasion of Iraq. He permanently sank below the 50% approval line by the beginning of 2005, long before most people noticed that there were problems in the economy.

The Constitution doesn't give the president an untrammeled portfolio of foreign policy. Last I checked, Congress had the sole power to declare war, for instance. And, at least in theory, Congress has the Constitutional power to remove presidents and other federal officers who misuse their power, in any field.

I think Chris's point is that representatives who reflect "our own venal, hypocritical" natures -- while they may be the best we can expect -- should hardly be considered "excellent".

Chris:

The first thing I would do is go to watchdog groups on torture and talk with them. ACLU, Amnesty International, etc....and find out who the strongest Senators and House members are on the issue. See who they consider "excellent" both in the public and the private sphere. Bring them together, form a coalition, and then have them work together to take it to the next level.

That...and you can call his office. :)

RRW: Are they "internet sources" when you call them up and actually speak to the legislative liason? Or just when you decide to use them as source citations to back up a shaky argument?

Inquiring minds want to know.

The "strongest" of a weak bunch still doesn't necessarily mean excellent unless you're grading on a curve.

Wyden On Gitmo [July 6th, 2005] Oregon's senior U.S. senator, Ron Wyden, returned from his recent visit to Guantánamo Bay recommending the U.S. detention center in Cuba stay open. That stance differs sharply from some Democratic colleagues in Congress like Delaware Sen. Joe Biden, who says the U.S. should eventually shut down the prison housing suspected terrorists down because it has morphed into a propaganda tool for terrorist recruiters. Wyden's recommendation also runs contrary to Amnesty International (which labeled Guantánamo "the gulag of our times'') and other critics who believe indefinite detention of prisoners without legal charges violates both U.S. and international law. But Wyden rejects any analysis that he's fallen in with the Bush administration's apologists. He said after his seven-hour visit June 26 that critics aren't focused on how conditions have improved for the 500-plus terrorism suspects. "Most of the reports that have been put out dealt with problems that were early on,'' says Wyden, who spent three days in Cuba on congressional business that included a pitch to sell more Oregon cherries and pears. Wyden says the alternatives to imprisonment at Guantánamo are much worse.

That was back in the days before they had to release a bunch of the detainees because they'd picked up the wrong people.

Let me get this straight. If I use a phone to call the ACLU or Amnesty International I will be talking to a respected torture watchdog group, but if I visit their website they become shiftless purveyors of "internet" nonsense?

No. But it occurs to me that actually having to explain the difference between posting internet citations and talking to real staff/employees is assinine, and should be obvious.

<i8>Carla, you are a nut job.

RRW--if you liked and admired me, then I would be worried. So I appreciate the compliment.

Please, Carl, explain how talking on the phone makes something respectable, but posting it on the web makes it worthless.

I never said it was "worthless". In fact, I don't recall ever thinking it was worthless. I do recall thinking that it was equivalent.

And yes, its different. When you speak to someone, you can ask follow up questions and/or get clarification. You can extend the conversation for deeper meaning. You can make sure that what you understand their words to be what you believe them to be.

You assumed lots of stuff that isn't in existence on my end. Had you SPOKEN with me and asked, you'd know that. Instead, you went by words you saw on the internet and inferred ideas and meaning that are incorrect.

And thus by your own exercise, you prove my point.

Of course, the difference between speaking with someone and using the web, particularly in this instance, is that you can refer to the text itself, to scholarly writings about the work, and to media characterizations.

I remain baffled at why you would have shrugged off public positions of the ACLU, Amnesty, et al, as nothing more than anonymous web pieces. Coming back now and suggesting that what you clearly implied isn't really what you meant, and that the real problem is the nature of the written word versus ad hoc verbal communication.

"No. But it occurs to me that actually having to explain the difference between posting internet citations and talking to real staff/employees is assinine"

I only WISH that there was some kind of "internet fairy" that placed information on the tubes all by itself. Typically however, and I bet it's that way at ACLU for instance, they have "real staff/employees" put things on the web. They might even be the same "real person" who one talks to on the phone!

I think it's overwhelmingly clear that if you put:

*published at official ACLU website

next to

*elucidated in non-rehearable conversation with unnamed lawyer

even people who turn out to know and trust that lawyer, would prefer the ACLU information's innate credibility.

Point being, "I talked to someone, trust me" may be true and worthy of trust, but it's no match for verifiable information from a source whose credibility can readily be judged. I don't know that the skepticism of Carla's lawyer is well-founded, but it's certainly well-placed IMO.

"And they're free to do that, Mark. I haven't suggested otherwise."

Well, they'd be free to do so, regardless of what you suggest, C. That's not really the point; it's that you expect others to take your second-hand assertions as prima facie valid, or at minimum you can't seem to understand why they wouldn't. For one thing, we can't call up and verify with your lawyer. For another, the NYT does not represent Ron Wyden. The ACLU, however, does in fact represent the ACLU. Big difference.

Seems to me that this is one of those "the cup is half full/empty" things. The cup has a given amount of liquid in it and the only difference is one of perspective, colored by projections.

Was Carla expecting others to accept her source as prima vacia valid or was she challenging their presentation of their own sources as prima facia valid? After all, updating web content is pretty standard for both organizations and individuals. And why update something that was already in a state of perfection unless it was either imperfect or based on old data?

How would one go about getting the most current data if not to call and ask someone in the know? I mean, all of the best jobs I've ever had were the result of phone work before the job was even posted anywhere. Once it was my phone call that caused the job to become open.

Bottom lines for me on this conversation...

• The US Congress should not have abdicated any and all role in defining torture to the administration, as it did when it passed the MCA in 2006.
• Ron Wyden is among the best of a bad bunch when it comes to protecting both our civil liberties and the nation's integrity when it comes to torture -- but it is a very low bar.
• Democrats should not find it acceptable if Wyden or Obama set a lower standard for the White House as it relates to torture just because a Democrat will be in the Oval Office.
• "The Internet" is a better source than phone conversations with anonymous friends, even if those friends are qualified, particularly if by "the internet" you mean the text of a measure in question, text of the relevant Geneva conventions, scholarly journal articles or newspaper articles that pertain to the matter at hand.
• Chris Lowe tends to be more than mostly right on most of the matters he discusses.

But upon taking the time to further discuss the issue with Wyden's folks in a non-internet source way, things weren't quite the way it was made to seem.

That wasn't what Greenwald thought. As was pointed out far upthread from here, he talked to Jennifer Hoelzer at Wyden's offices by phone for 15 minutes before the statement was released and:

...rather than concluding that I misunderstood his position, I became even more convinced that my principal point is completely accurate: namely, Sen. Wyden spent all year advocating that the CIA be compelled to comply with the Army Field Manual, but now -- due to a change in administrations -- is quite open to authorizing interrogation techniques beyond that. In other words, his position has clearly changed, in a rather significant way.

As I pointed out above, Wyden was on record more than three years ago as being opposed to the closure of Guantanamo, contra Amnesty International and colleagues like Joe Biden.