Quote of the day: Orhan Pamuk - "Snow"

Just finished Snow (2001), by the Turkish novelist Orhan Pamuk, and it's a suitable read for our gloomy winter nights here in Oregon — in fact, very reminiscent of Dostoyevsky at his darkest and most philosophical. In one chapter, set in the remote border town of Kars, the narrator invites a group of young people to give Westerners a message. One of them responds:

"Mankind's greatest error," continued the young Kurd, "the biggest deception in the past thousand years is this: to confuse poverty with stupidity...People might feel sorry for a man who's fallen on hard times, but when the entire nation is poor, the rest of the world assumes all of its people must be brainless, lazy, dirty, clumsy fools. Instead of pity, the people provoke laughter. It's all a joke: their culture, their customs, their practices."

PHOTO: Orhan Pamuk (Wikipedia Commons)

Blues Break: Cohen & Robinson - "Boogie Street"

Boogie Street - Lyrics

O Crown of Light, O Darkened One,
I never thought we'd meet.
You kiss my lips, and then it's done:
I'm back on Boogie Street.

A sip of wine, a cigarette,
And then it's time to go.
I tidied up the kitchenette;
I tuned the old banjo.
I'm wanted at the traffic-jam.
They're saving me a seat.
I'm what I am, and what I am,
Is back on Boogie Street.

And O my love, I still recall
The pleasures that we knew;
The rivers and the waterfall,
Wherein I bathed with you.
Bewildered by your beauty there,
I'd kneel to dry your feet.
By such instructions you prepare
A man for Boogie Street.

O Crown of Light, O Darkened One...

So come, my friends, be not afraid.
We are so lightly here.
It is in love that we are made;
In love we disappear.
Tho' all the maps of blood and flesh
Are posted on the door,
There's no one who has told us yet
What Boogie Street is for.

O Crown of Light, O Darkened One,
I never thought we'd meet.
You kiss my lips, and then it's done:
I'm back on Boogie Street.

A sip of wine, a cigarette,
And then it's time to go . . .

* * * * * * * * * * * * * *

An animation backs up this fine performance of "Boogie Street" by Leonard Cohen and Sharon Robinson, who co-wrote the lyrics.

"Boogie Street" was composed for the "Ten New Songs" album, released in 2001. Another song from the album, "A Thousand Kisses Deep," picks up the Boogie Street motif.

"Ten New Songs" contains some of Cohen's best work and reflects his emergence from a deep depression. For years he lived in a zen monastery with Roshi, his master, on Mt. Baldy in California. During that time his business manager embezzled nearly all his savings . The whole sad story is revealed in interviews with Cohen in the 2006 film "I'm Your Man" (which includes a musical tribute performed in Australia by Nick Cave, U2 and various other musicians). He admits, at one point, that all those years in a zen monastery contributed little to his mental health. He says that other people commented on how calm and "centered" he seemed, yet it was all a facade devised to conceal a prolonged rage that he couldn't escape.

Even though he's now 74, Cohen has been touring in Europe, North America and Australia so he can recover his financial footing.

2,192 days later

On the sad occasion of the 6th anniversary of the invasion of Iraq, this observation by Fareed Zacharia in Newsweek is worth repeating:

"The problem with American foreign policy goes beyond George Bush. It includes a Washington establishment that has gotten comfortable with the exercise of American hegemony and treats compromise as treason and negotiations as appeasement. Other countries can have no legitimate interests of their own—Russian demands are by definition unacceptable. The only way to deal with countries is by issuing a series of maximalist demands. This is not foreign policy; it's imperial policy. And it isn't likely to work in today's world."

To date, at least 4,260 U.S. troops have been killed in Iraq, and another 31,103 wounded. Estimates of Iraqi civilian casualties vary wildly, from a conservative estimate of 44,645 deaths to the high six figures. (The meticulous compilers of this data at icasualties.org note the following: "This is simply a compilation of deaths reported by news agencies. Actual totals for Iraqi deaths are much higher than the numbers recorded on this site.") An estimated 8,958 members of the Iraqi security forces have also been killed since the beginning of the Bush/Cheney war of aggression.

The situation for most Iraqis remains appalling despite recent improvements in security. AFP reports:

"Millions of civilians are still facing hardship every day," ICRC [Red Cross] president Jakob Kellenberger said in a statement after a five-day visit to the country.

"Indiscriminate attacks continue to leave dozens of people killed or injured on a daily basis despite improvements in the security situation in many parts of Iraq."

In 2007, 17,430 Iraqis died in violence. In 2008, 6,772 people were killed and the first two months of 2009 saw 449 die, the lowest official death toll since the invasion on March 20, 2003.

Basic services like public water supplies are still deficient, as described by Matthew Schofield of McClatchy Newspapers:

The stench of human waste is enough to tell Falah abu Hasan that his drinking water is bad. His infant daughter Fatma's continuous illnesses and his own constant nausea confirm it.

"We are the poor. No one cares if we get sick and die," he said. "But someone should do something about the water. It is dirty. It brings disease."

Everybody complains about the water in Baghdad , and few are willing to risk drinking it from the tap. Six years after the U.S. invaded Iraq , 36 percent of Baghdad's drinking water is unsafe, according to the Iraqi Environment Ministry — in a good month. In a bad month, it's 90 percent. Cholera broke out last summer, and officials fear another outbreak this year.

"Even if the water is good today, no one would trust it," grocer Hussein Jawad said. He said that about 40 percent of his business was selling bottled drinking water, crates of which he's stacked 7 feet high on the sidewalk. "We've learned to be afraid."

The irony of bad water is lost on few here. When the city was founded 1,200 years ago, it was named Baghdad al Zawhaa, " Baghdad the Garden," because water was plentiful. The Tigris and Euphrates rivers formed the boundaries of Mesopotamia and fed the fields in the cradle of civilization.

Meanwhile, George Bush, during a speaking engagement in Calgary, is already plugging his memoirs, tentatively entitled "Decision Points." On CNN, Dick Cheney declares that "stuff happens" — and we "ended up" with two of the longest wars in U.S. history. For Cheney, it's as if the illegal invasion of Iraq was the result of irresistible natural forces rather than a deliberate policy choice. So far there are no indications that either Bush or Cheney will ever be held accountable for that choice, except by historians.


PHOTO: Antiwar demonstrator in Portland, Oregon - March 19, 2006 [M.J. O'Brien]

[H/T to Hilzoy at Obsidian Wings.]

Werewolves and zombies

The AIG fiasco leads to a few unavoidable conclusions:

1) Tim Geithner and Larry Summers need to join the growing ranks of the unemployed, who already number 10.8% of the workforce here in Oregon. Joblessness would only be temporary for them, no doubt. They're old-school crony capitalists who fundamentally don't get it because they're too embedded in the culture of Wall Street. They should be replaced by advisors who aren't totally clueless — people like Robert Reich and Paul Krugman, for example.

2) The behavior of the werewolves who occupy the AIG corporate leadership may be politically tone-deaf, but it was absolutely predictable. The rage is more suitably directed at politicians: the very people who either saw this coming and accepted it, or should've seen it coming and acted to prevent it. The feigned naïveté of politicians who are "shocked" by the AIG bonuses is a nauseating sight to behold.

3) If U.S. taxpayers own AIG (nearly 80%) and the zombie banks, they should exercise a proportionate amount of control over their management.

4) Legal platitudes about the sanctity of contracts were notably absent when the Big Three abrogated agreements with the United Auto Workers and other unions. Worst case: unilaterally rescind the contracts and let the executives make their arguments to a jury.

5) Scary as it sounds, bankruptcy is a better alternative for AIG and the zombie banks than endless bailouts with no transparency. For one thing, Chapter 11 filings would allow these corporations to avoid pre-existing contractual obligations to provide bonuses and golden parachutes. It would also allow them to dump their most toxic assets.

6) Barack Obama's adaptive skills are impressive enough that he can quickly clean house, learn the necessary lessons and move on to a more populist model for economic recovery (with a little help from Reich and Krugman, among many others).

And not least:

7) The whole cultural obsession with short-term gain needs to be examined at the deepest levels, from politics (with its focus on "short-term outcomes dictated by the electoral cycle") to the economy. Short-term gain often produces long-term pain, as the AIG fiasco again demonstrates. [To start, here's a minor suggestion: amend the Constitution to allow for 4-year terms in the House of Representatives to promote long-term thinking and reduce nonstop campaigning and fundraising.]

GRAPHIC: The werewolves at AIG (Wikimedia).

[Note: versions of this entry were cross-posted at Obsidian Wings and Lawyers, Guns and Money.]

One planet. One people.

As a compulsive collector of quotations, I hereby add the following to the bulging shelves of my archives:

All the world’s stories are America’s stories now, and this is the current glory of our literature; as never before in our lifetimes, so many histories are flooding into America, and so many Americans going out to claim the world as an extension of their homes, that our imaginations are being stretched (one hopes), along with the words we use, the wisdoms we inhabit, the sounds and philosophies we can begin to reinvent. What Barack Obama represents on the global stage, those of his generation and younger (from Ken­ya, from the Dominican Republic, from Korea) are bringing to life on the planetary page.

—Pico Iyer (from a review of Yiyun Li's The Vagrants in the March 6th edition of the New York Times Book Review)

Iyer's essay for Salon on "Why We Travel" is also worth a look. Though Iyer was born in the U.K., his parents were Indians who taught philosophy at Oxford. For many years, he commuted back and forth from schools in England to California, where his parents moved to accept other teaching positions. Iyer has written a biography — which some critics might describe as a hagiography — of the Dalai Lama.

Disobeying a traffic control device, Oregon-style

Deschutes National Forest - Oregon Cascades
[Photo by M.J. O'Brien, 2002]

Rachel Maddow interviews Michael Isikoff on the torture lawyers

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Rachel interviews Michael Isikoff at the end of this segment (February 16th) on the latest revelations about the Bush Justice Department. Isikoff makes a compelling, if somewhat obvious, argument:

1) IF the Yoo/Bybee memo was intended to gave Bush officials legal cover for waterboarding and other forms of torture, AND
2) Those same officials pressured Bybee, Yoo and or AG Gonzales to produce exactly that justification, THEN
3) The whole legal cover evaporates, taking with it the "good faith" defense.

"Good faith reliance" on a legal opinion still has some political credence as a barrier to prosecutions, as Barack Obama himself has declared. But, legally speaking, acting in "good faith" is not, and has never been, a defense to a federal torture charge.

Morally speaking, we can hope that a person instructed to waterboard a detainee would hesitate and refuse — even if a "legal opinion" said it was okay.

Slapping a few wrists

In the February 14th issue of Newsweek, Michael Isikoff writes:

"An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys."

[snip]

"If [Attorney General] Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action."

Jay Bybee and John Yoo, authors of the infamous torture memo, must be quaking in horror at the prospect of disciplinary action that could range from a reprimand to suspension to disbarment.

As a practical matter, any disciplinary proceedings against Yoo would have little effect since he teaches law as a tenured member of the faculty at Berkeley. Jay Bybee sits on the 9th Circuit, and it's no small matter to discipline or remove a sitting federal judge. However, it seems highly unlikely that either Yoo or Bybee would face grave sanctions for "'deeply flawed' and 'sloppily reasoned' legal analysis." If they had been in the private sector when their opinions had been offered, a lawsuit for malpractice might prove more productive.

While professional discipline wouldn't be much of a sanction, given the war crimes these officials directly facilitated, at least it would be a start.

Under the Nuremberg principles, there's ample ground to launch a criminal investigation of Bybee and Yoo, along with former AG Alberto Gonzales. The true purpose of their "advice" was to give legal cover to practices that were blatantly in violation of U.S. and international laws prohibiting torture. Reliance on that advice is no excuse whatsoever. This hasn't been a gray area of the law for at least 63 years.

Nazi lawyers and judges were successfully prosecuted at Nuremberg — by U.S. prosecutors — for making the kinds of technical, bureaucratic arguments that Bybee, Yoo and Gonzales devised.

Obama needs to reconsider his apparent reluctance to investigate the Bush years and his inexplicable statement that officials who relied on legal opinions shouldn't be prosecuted. As a lawyer who has taught constitutional law, he surely realizes that there's no "good faith" defense to torture, and any reliance on legal opinions must be "reasonable." Moreover, the "good faith" argument is all too evocative of the discredited Nuremberg Defense ("I was only following orders").

Disciplinary proceedings would send a "signal," but not a very strong one — unless they provide a legal and political foundation for actual prosecutions of Bybee, Yoo and the rest of the Bush/Cheney cabal. A stronger move would be the creation of a "truth and reconciliation commission" along the lines proposed last week by Senator Patrick Leahy (D-VT).

Unfortunately, Leahy qualified his proposal by stating that "he was only offering the idea to see how much support it had:"

"We need to see whether the American people are ready to take this path," he said, adding that he did not have anyone in particular in mind to lead the commission, but wanted "people with real credibility."

Why should the "level of support" really matter if war crimes were committed? (No doubt there was little support for the Nuremberg prosecutions in Germany in 1945 [1].) As Obama stated last week:

"Nobody's above the law and if there are clear instances of wrongdoing then people should be prosecuted just like any ordinary citizen, but that generally speaking, I'm more interested in looking forward than I am in looking back," said Obama. "I will take a look at Senator Leahy's proposal but my general orientation is to say, let's get it right moving forward."

In the face of such headwinds, it will require someone with raw political courage to pursue this issue, and that's traditionally been a scarce commodity in Washington (with some notable exceptions). But without an investigation, there's simply no way to evaluate whether any "wrongdoing" has occurred.

Finally, the least serious crimes committed by the Bush/Cheney administration are the ones that seem to be getting the most attention: torture and "abusive interrogations," detentions without due process, warrantless wiretaps, improper hirings and firings in the Justice Department. Sadly, the most serious offenses get little attention: crimes against peace, including such crimes against humanity as waging an aggressive war in Iraq and "the wanton destruction of cities, towns, or villages, or devastation not justified by military necessity" [Nuremberg Principle VI (b)].

Unless these questions are thoroughly addressed by an investigation, we — like the rest of the world — will be left to wonder what kind of people we are.


NOTES:

[1] This is not meant to suggest that the war crimes of the Bush administration are comparable, qualitatively or quantitatively, to those of the Nazis. But some of the same legal considerations apply to prosecutions under the Nuremberg principles and other provisions of international law. This topic has gotten a lot of attention on these pages, including (most recently) here and here.

PHOTO: Speaking of political courage, where's the great Telford Taylor (1908-98), a chief U.S. prosecutor at Nuremberg, when we really need him? [Wikimedia Commons]

[H/T to Lawyers, Guns and Money and Obsidian Wings, where
versions of the above were cross-posted as comments.]

"Snowday" fetch blogging

Holding the digicam in one hand, tossing a stick with another.

Blues Break x 2: Toumani Diabate - 'Cantalowes' and Bassekou Kouyate with Ngoni Ba

Toumani Diabate in a solo kora performance described as follows:

This performance of 'Cantelowes' is from the recent live World Premiere of "The Mandé Variations" at the prestigious El Real Alcazar de Sevilla in Spain which left the audience spellbound and was described by the The Independent as "a performance that surpasses anything....for sheer scale of ambition and technical achievement."

This is my favorite piece on Mandé Variations, Diabate's most recent album.

Toumani Diabate will perform in Portland on May 1, 2009, at 8:00 p.m. at the Performing Arts Center.

[For more online performances by Diabate,
visit here and here (includes an interview).]

As further proof, if it were necessary, that Mali is producing some of the world's finest musicians, we offer a second piece for this week's Blues Break. I was planning to save this amazing performance by Bassekou Kouyate on the ngoni (West African lute) for a future installment, but I can't resist embedding it now. He is accompanied by Amy Sacko, his spouse, and Ngoni ba, his new band (Rostock, Germany - June, 2007).

Kouyate and Diabate have been frequent collaborators throughout their careers. Many ethnomusicologists are convinced that the origins of the blues can be traced back to Segu, the region where Kouyate was born. The blues as you may not have heard it before...

Obama priorities: Round two

Not a bad start. In one week, Barack Obama has signed executive orders that are calculated, at long last, to ban torture by the U.S. government, close Guantanamo, and shut down the CIA's secret "black site" prisons around the world. Eric Holder, his nominee for Attorney General, has declared waterboarding to be torture, opening the way to possible (but unlikely) prosecutions of those officials in the Bush administration who authorized or approved its use.

Obama has also acted quickly on environmental issues. As of today, California will be allowed to develop more aggressive pollution-control standards for cars. He has also rescinded the Bush administration's notorious gag order on discussing abortion at overseas birth-control clinics that receive funding from the U.S. government. By freezing a Bush delisting order, Obama has restored the protection of wolves under the Endangered Species Act.

To pursue his economic program, Obama will descend into the ninth circle of political hell by meeting with congressional Republicans tomorrow. Good luck with that, as the Democrats are reduced to courting Maine's two Senators to get the 60 votes they need to stop a filibuster.

So the agenda has moved along nicely in just 168 hours. (Still, you've got to wonder: will the Democrat's economic rescue package go down the tubes in the name of "bipartisanship?")

Now I doubt that the following list would be totally overlooked by the Obama administration, but these are four items also deserve high priority in any effort to reintegrate the U.S. into the global legal framework.

1. Join the International Criminal Court (ICC) in The Hague

The ICC has recruited 108 member nations since it was founded in 2002. The membership includes nearly all countries in western Europe and South America, Japan, Canada, Mexico and Australia. Bill Clinton signed the treaty at the end of his second term, but George W. Bush "ordered the signature withdrawn." By joining the ICC, the U.S. would send a strong message that it has again embraced the rule of law after an eight-year lapse. The Obama administration and current ICC members should strongly encourage China, India and Russia to join.

2. Sign the treaty banning antipersonnel mines

The treaty is formally known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction -- or more briefly, the Ottawa Treaty. The treaty was adopted following a vigorous campaign by Jody Williams, a U.S. citizen, that won the early support of the Canadian government. Williams was awarded the Nobel Peace Prize for her efforts. There are 155 signatories to the treaty, including the ones mentioned above. But not the U.S., which claims that the heavily-mined DMZ in Korea should be exempted from its provisions. Meanwhile, South Korea, the supposed beneficiary of U.S. protection, states that it has produced no antipersonnel mines since 2000. Like the U.S., most current manufacturers of antipersonnel mines have refused to sign the Ottawa treaty.

3. Sign the convention banning cluster bombs

After the Convention on Cluster Munitions was approved in Dublin in May of 2008, it was quickly accepted by 107 nations. Last month, 97 of those nations went on to formally endorse the Convention in Oslo. The usual suspects have refused to participate, including the U.S., China, Russia, India and others who either manufacture cluster bombs or have large stockpiles. Unexploded cluster bombs can remain hazardous to civilians for many years.

4. Ratify the Kyoto Protocol on climate change and its successor

The Kyoto agreement is, technically speaking, a Protocol to the U.N Framework Convention on Climate Change (UNFCCC). While the U.S. is a signatory to the Protocol, it has never been ratified by the necessary two-thirds of the Senate. That leaves the U.S. among a handful of countries that have defied international opinion and the overwhelming weight of empirical data on climate change. On their own initiative, an impressive number of U.S. states and cities have adopted many of the Protocol's goals. Over the next couple years, the UNFCCC will be developing a successor to the Kyoto Protocol that will likely include a "cap and trade" system for carbon emissions. While ratification of the Kyoto Protocol might be of little practical importance at this late date, the Obama administration could make up for lost time by playing a major role in developing the next set of goals for stabilizing the climate.

These four steps would require the approval of the U.S. Senate, and therefore the recruitment of a single Republican to overcome a filibuster, not to mention other obstructionist tactics that could (and will) be used. But it's not too early to start the process of gaining approval for these essential treaties.


TOP PHOTO: Barack Obama poses with one of his peers. (Wikimedia)

MIDDLE PHOTO: A U.S. M18A1 claymore antipersonnel mine, ready for deployment. (Wikimedia)

BOTTOM PHOTO: A USAF B-1 bomber dropping 30 CBU's (cluster bombs) (Wikimedia)

Inaugural quartet: " Air and Simple Gifts," by John Williams

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A powerful performance from today's inauguration by Yo-Yo Ma, Itzhak Perlman, Gabriela Montero and Anthony McGill. The piece incorporates themes from Appalachian Spring by Aaron Copland, one of President Obama's favorite composers.

Inaugural poem: Elizabeth Alexander

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Praise song for the day.

Each day we go about our business, walking past each other, catching each others' eyes or not, about to speak or speaking. All about us is noise. All about us is noise and bramble, thorn and din, each one of our ancestors on our tongues. Someone is stitching up a hem, darning a hole in a uniform, patching a tire, repairing the things in need of repair.

Someone is trying to make music somewhere with a pair of wooden spoons on an oil drum with cello, boom box, harmonica, voice.

A woman and her son wait for the bus.

A farmer considers the changing sky; A teacher says, "Take out your pencils. Begin."

We encounter each other in words, words spiny or smooth, whispered or declaimed; words to consider, reconsider.

We cross dirt roads and highways that mark the will of someone and then others who said, "I need to see what's on the other side; I know there's something better down the road."

We need to find a place where we are safe; We walk into that which we cannot yet see.

Say it plain, that many have died for this day. Sing the names of the dead who brought us here, who laid the train tracks, raised the bridges, picked the cotton and the lettuce, built brick by brick the glittering edifices they would then keep clean and work inside of.

Praise song for struggle; praise song for the day. Praise song for every hand-lettered sign; The figuring it out at kitchen tables.

Some live by "Love thy neighbor as thy self."

Others by first do no harm, or take no more than you need.

What if the mightiest word is love, love beyond marital, filial, national. Love that casts a widening pool of light. Love with no need to preempt grievance.

In today's sharp sparkle, this winter air, anything can be made, any sentence begun.

On the brink, on the brim, on the cusp -- praise song for walking forward in that light.

[The transcript of the inaugural poem recited by Elizabeth Alexander, as
provided to the New York Times by CQ transcriptions (January 20, 2009).]

UPDATE: The Bush challenge

The White House announced today that George W. Bush will not be granting any additional pardons or commutations during the final hours of his presidency. Apparently he has selected Option II of the legal endgame outlined in his counsel's memo, as quoted here on January 17th:

"Grant no pardons, and obtain none yourself, thereby taking the risk that you and other administration officials may be prosecuted for federal crimes allegedly committed during your two terms.

"This 'in-your-face' option will dare the new administration and its Department of Justice to initiate "partisan" and "divisive" prosecutions that, as President-elect Obama has already made clear, he would be very reluctant to pursue."

So, legally speaking, the way is clear for the Obama administration or Congress to call Bush's bluff. To help get things started, here's my partial list of the crimes for which various Bush officials, and Bush himself, must be indicted and prosecuted:

1. Crimes against peace, including waging a war of aggression, in clear violation of the Nuremberg Principles (see below);
2. Conspiracy to torture and abuse prisoners and detainees at Guantanamo, Abu Ghraib, Bagram airbase in Kabul and various CIA "black sites" around the world;
3. Extraordinary rendition of detainees to countries where administration officials knew, or should have known, that they would be tortured;
4. Illegal wiretaps and other unlawful electronic surveillance of U.S. citizens and others in violation of the 4th Amendment;
5. Etc., etc.

In a further effort to jumpstart the process, which seems to be stalled at the moment, let me specify the relevant provisions of the Nuremberg Principles:

Principle VI: The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:
Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

The relevant federal laws, including laws related to torture, have already been addressed in previous entries.

So where to begin?

Not with Barack Obama, who has offered the following high opinion of George Bush as a person:

“If you look at my statements throughout the campaign, I always thought he was a good guy,” the Democratic president-elect said on CNN about the Republican president whom he replaces Tuesday.

“I mean, I think personally he is a good man who loves his family and loves his country. And I think he made the best decisions that he could at times under some very difficult circumstances.”

It seems unlikely that Obama would agitate for the prosecution of a "good guy" who made "the best decisions that he could." Obama has also stated:

"I don't believe that anybody is above the law," Obama said in a recent television interview. "On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards."

Obama, a former professor of constitutional law, should know that acting in "good faith" is not a defense to a torture charge.

So that leaves Congress, which on its own could start moving toward the appointment a special prosecutor. Despite the list of war crimes that should be given the highest priority for investigation and prosecution, Nancy Pelosi has a much narrower focus:

...Pelosi said she wants an investigation into whether the Bush administration broke the law when it fired a group of federal prosecutors. [My emphasis.]

"I think that we have to learn from the past, and we cannot let the politicizing of, for example, the Justice Department, go unreviewed," she said. "Past is prologue."

That's it? Considering the gravity of the administration's other offenses, the illegal firing of prosecutors should appear somewhere near the bottom of a very long indictment.

But maybe there's a small glimmer of hope:

House Democrats last week recommended a criminal investigation to determine whether administration officials broke the law in the name of national security. Along with the fired prosecutors, the report cited interrogation of foreign detainees, warrantless wiretaps, retribution against critics and manipulation of intelligence.

Prosecutors ordinarily have a great deal of discretion in determining whom to prosecute, and for what crimes. But Hilzoy of Obsidian Wings and Glenn Greenwald of Salon, among others, argue that crimes like torture are so horrific that prosecution is mandatory under federal and international law. As Hilzoy (Hilary Bok), a law professor at Johns Hopkins, writes:

It seems to me that these facts imply that if Barack Obama, or his administration, believe that there are reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution, if the officials who committed or sanctioned those acts are found on US territory. If they are on the territory of some other party to the Convention, then it has that obligation. Under the Convention, as I read it, this is not discretionary. And under the Constitution, obeying the laws, which include treaties, is not discretionary either.

In declining to pardon Cheney, Rumsfeld, Addington and the rest of the cabal, Bush has demonstrated his total confidence that he and his colleages will never be held accountable for their actions. In fact, Bush has only been held to account personally on one occasion: when an Iraqi journalist tossed shoes at him in a Baghdad press conference. (An act that is being repeated, as I write this, by protesters outside the White House.)

Bottom line: Bush walks, as do his co-conspirators.

Amidst all the appropriate jubilation surrounding tomorrow's inauguration, there's every reason to be depressed about the fading commitment of the United States government to the rule of law.

[NOTE: I write this as an enthusiastic supporter of Obama who voted for him and made a small contribution to his campaign. But he and most other Democrats have been seriously wrong on this issue.]

PHOTOS: Scenes from a huge antiwar demonstration (35,000 people) in Portland, Oregon, on March 19, 2006 (M.J. O'Brien).

EXCLUSIVE: Pardon me, quick...

In a Runes exclusive, a confidential informant has provided us with a copy of a "highly confidential" memorandum to George W. Bush from his personal attorney in the Office of White House Counsel. After reviewing the background of the presidential pardon power, the author presents two options for the administration's legal endgame:

MEMORANDUM OF LAW

January 16, 2009

TO: President George W. Bush
FROM: Wetherby P. Thwaitebottom III
RE: Presidential Pardons

In response to your inquiry during our telephone conversation of January 15th, my research indicates the following:

1. There appear to be no limits of the president's power to pardon under Article II, Section 2, of the Constitution, which provides that the president "shall have power to grant reprieves and pardons for offenses against the United States." As Alexander Hamilton wrote in the Federalist No. 74:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

...one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

2. The pardon power applies to all crimes, from actual convictions to cases where no indictment has yet been issued. It does not apply to future crimes, nor does it preclude impeachment.

3. Pardons have been routinely granted since George Washington, on his last day in office, pardoned the leaders of the Whiskey Rebellion of 1794. Other examples include: Gerald Ford's pardon of Richard Nixon in 1974; George H.W. Bush's pardon of 75 people, including Reagan officials who were involved in the Iran-Contra scandal; Bill Clinton's controversial pardon of billionaire Marc Rich and others at the end of his term; and George W. Bush's award of clemency to Scooter Libby.

4. The pardon power applies only to "offenses against the United States" — that is, for crimes defined by federal, and not state, law. By implication, individual states can try and convict, under their own laws, those who are immune from prosecution for federal crimes. Under various state constitutions, governors also have the power to pardon and grant clemency.

Based on the above, I recommend that you consider the following options to insulate yourself and other administration officials from potential liability for war-crimes and other prosecutions after your term ends on January 20th:

OPTION I:

1. At 11:30 p.m. on January 19th, you should grant blanket pardons to all administration officials who may be subject to prosecution, including: Dick Cheney, Donald Rumsfeld, David Addington, Alberto Gonzales, Jay Bybee, John Yoo and anyone else who has been, or may be, implicated.

2. At 11:35 p.m. on January 19th, you should submit your resignation from the presidency, effective immediately.

3. At 11:40 p.m. on January 19th, Dick Cheney should be sworn in as the 44th president of the United States; and,

4. At 11:45 p.m. on January 19th, President Cheney should sign an order pardoning you for any and all crimes that you may have committed during your two terms of office.

While this is legally the most cautious strategy for protecting yourself and your colleagues, there are obvious political and historical risks involved that you are quite capable of assessing. Most notably, wholesale pardons of yourself and others would be widely viewed as an admission of guilt — a concession you may not want to make to your political enemies. Moreover, a self-pardon might be construed as a form of legal masturbation.

Alternately, you could pardon everyone but yourself and assume that the next Attorney General would not be brazen enough to prosecute a former president.

OPTION II:

Grant no pardons, and obtain none yourself, thereby taking the risk that you and other administration officials may be prosecuted for federal crimes allegedly committed during your two terms.

This "in-your-face" option will dare the new administration and its Department of Justice to initiate "partisan" and "divisive" prosecutions that, as President-elect Obama has already made clear, he would be very reluctant to pursue.

Based on the above analysis, I respectfully recommend that you implement Option II.

Will George W. Bush follow these recommendations? We'll find out over the next 72 hours.

NOTES: Our untold thousands of regular readers will recall that the war-crimes question has been a regular topic on Runes. See, for example, here, here, here and here. Always ahead of the curve...

PHOTO: Soulmates — George W. Bush pardons a turkey during the annual ritual, Thanksgiving 2007 (Wikimedia).

Legacy: desecrating the falls

Finally, after years of obstructionism by a single senator (Tom Coburn, R-Okla.), Congress has passed a comprehensive national bill that in Oregon alone will add five new wilderness areas and greatly expand existing areas, including those on Mt. Hood and in the Columbia River Gorge. Even with this bill, the total protected acreage in Oregon is significantly less than in its neighboring states:

Oregon 3.7% in protected wilderness
California 14.0
Washington 11.0
Idaho 7.5

So there's still a lot that remains to be done in Oregon. For example, this state has only one national park (Crater Lake), compared to Washington State's three. Amazingly, not a single national park has been created along Oregon's spectacular coast. While clearcutting has been ravaging privately-owned timberlands across western Oregon in recent years, the BLM has developed, and begun to implement, plans for a massive assault on the state's remaining old-growth forests within its jurisdiction.

In Oregon more than elsewhere on the west coast, there seems to be a lingering premise that forests should be open to clearcutting unless opponents satisfy a heavy burden of proof to the contrary. This premise has a long history. (See here, here, here and here.)

For sixty years, the Angelus Studio in Portland, Oregon, compiled an "extraordinary documentation of the city of Portland, the Lewis & Clark Exposition of 1905, Oregon landmarks, and commercial operations including logging and fish packing." In about 1925, by my estimate, Angelus compiled many photographs of the Columbia River Gorge for the now-defunct Spokane, Portland & Seattle Railway. The one below shows Multnomah Falls, the second-highest waterfall in the continental U.S., not too long after the slopes above it had been clearcut:

In fairness, the land above Multnomah Creek was likely owned by timber baron Simon Benson at the time it was logged. It later became part of the Mt. Hood National Forest.

The existing second- or third-growth forest of even-aged trees above the falls is quite healthy despite modern fires that endangered the historic Multnomah Fall Lodge. The trail to the top of the falls is mobbed year-round, but it's easy to find solitude on the upper trail that leads to the top of Larch Mountain. It's unimaginable that clearcutters could've stripped these steep mountainsides of their trees with impunity, even a century ago.

This legacy may no longer be visible on the slopes above Multnomah Falls, but it lingers in the relationship that many Oregonians still have to their landscape. The central contradiction of land-use planning and development still exists: you can degrade the landscape with clearcutting and urban sprawl but, somehow, still attract the large numbers of tourists needed to nourish local economies. Where the vaunted Urban Growth Boundaries have been established, their effectiveness is undermined by two realities: 1) they can be, and have routinely been, expanded; and, 2) urban sprawl is barely regulated within those boundaries.

A place like Switzerland, of course, is far more dependent on tourism than Oregon. It functions on the opposite premise that a heavy burden must fall on any proponent of altering the pristine alpine landscapes. On my many visits to that country, I've never seen a single clearcut (although mechanized tourism, with its cable cars and skilift towers, has produced blemishes of its own).

The rough Swiss equivalent of Multnomah Falls might be the Staubbach Falls (above) in the Bernese Alps, which at 1,000 feet is twice the height of Oregon's highest waterfall. I seriously doubt that it ever occurred to any Swiss to clearcut the lush conifer forests above the Staubbach.

Logging in the Alps is strictly limited, and clearcutting is forbidden. When logging is done at all, tight restrictions are imposed: for example, horses might be used instead of machinery, and soil compaction can be avoided by removing cut trees in the spring, when the snowpack is still deep.

But I don't think this is merely an economic calculation: the Swiss have a different relationship to the land they've occupied for millennia. It's recognized to be a finite and precious resource, a realization that has been late in coming to Oregon and the rest of the U.S. The latest wilderness bill is an incremental step in the right direction.

Blues Break: Ukulele Orchestra of Great Britain - "Shaft"

The Orchestra performs the theme from Shaft at the Cambridge Folk Festival.

Wishing you peace and happiness in the New Year.

[With a H/T to Obsidian Wings]

Bush's new digs

Abandoning any pretense of being a brush-clearing "rancher" in Crawford, George Bush will be moving into the posh Dallas suburb of Preston Hollow after his term ends in January. The town, possibly the wealthiest in Texas, has a racial history that's apparently of no concern to the Bush family.

A racially-restrictive covenent in Preston Hollow prohibited nonwhites from using and occupying specified properties until 2000, when it was invalidated. The covenant, adopted in 1956, provided a useful exception:

"Said property shall be used and occupied by white persons except these covenants shall not prevent occupancy by domestic servants of different race or nationality in the employ of a tenant."

Though freestanding "servants quarters" were generously permitted, they had to be placed "to the rear of the lot."

Racial covenents have been legally unenforceable since the Supreme Court's decision in Shelley v. Kraemer (1948), but Preston Hollow's was still on the books just eight years ago. Preston Hollow remains exclusive, however: one local realtor boasts that the community has an "average household income of about $1.5 million a year."

Preston Hollow's elementary school was also in the news in 2006 after a federal judge found that the school district had attempted to undermine the desegregation decision in Brown v. Topeka Board of Education (1954) by using discredited "separate but equal" arguments. Not surprisingly, most non-Hispanic white residents of Preston Hollow send their children to private schools.

With little brush to clear, what will ex-president Bush do with all his spare time in Preston Hollow? One clue: the wealthy investor who lives next door has just installed a pond stocked with trout on his 14-acre estate. Much of his time, no doubt, will also be devoted to making speeches for exorbitant fees and raising a half-billion dollars for a presidential "library" at Southern Methodist University. The library's principal function will be to put a positive spin on the worst presidency in modern U.S. history. Meanwhile, good luck with that Bush legacy project, Karl Rove...

PHOTOS: Preston Hollow non-servant housing (top); Bush hosting Angela Merkel at the "Western White House" in Crawford (bottom). (Wikimedia)

[H/T to The Raw Story]

Searching for acorns

Stock intended to eventually earn taxpayers a profit as part of the Bush administration's massive bank bailout has lost a third of its value — about $9 billion — in barely one month, according to an Associated Press analysis. Shares in virtually every bank that received federal money have remained below the prices the government negotiated.

—Associated Press, December 5

This unsurprising report arrived, coincidentally, with similar news (on a somewhat smaller scale) from our latest 401K statement. The reality seems clear enough: markets for exotic financial instruments — especially bundled derivatives traded with minimal disclosure and even less regulation — have become so complex that they're beyond the understanding of those who are trying to set policy and salvage the economy.

The Bush administration is reduced to throwing hundreds of billions of dollars into a black hole in the hope that something will miraculously stimulate a positive response. When the meltdown of mortgage-backed securities began in September, you could easily detect the fear on the faces of congressional leaders, as much as they struggled to project calm to avoid provoking a panic.

Two months later, no one yet seems to have a minimal grasp of what's happening, much less a glimpse of the steps needed to avoid further collapse. The hope seems to be, as an old friend from Nebraska might say: Even a blind hog finds an acorn once in awhile. So far, the hogs are coming up empty.

Blues Break: Ben E. King - 'Stand by Me'

A vast international collaboration filmed and orchestrated by Playing for Change. Here are the lyrics, written by Ben E. King, with Jerry Leiber and Mike Stoller, in 1961:

When the night has come And the land is dark
And the moon is the only light we'll see
No I won't be afraid, no I won't be afraid
Just as long as you stand, stand by me
And darlin', darlin', stand by me, oh now now stand by me
Stand by me, stand by me
If the sky that we look upon
Should tumble and fall
And the mountains should crumble to the sea
I won't cry, I won't cry, no I won't shed a tear
Just as long as you stand, stand by me
And darlin', darlin', stand by me, oh stand by me
Stand by me, stand by me, stand by me-e, yeah
Whenever you're in trouble won't you stand by me, oh now now stand by me
Oh stand by me, stand by me, stand by me
Darlin', darlin', stand by me-e, stand by me
Oh stand by me, stand by me, stand by me

[H/T Bill Moyers Journal and Laura Doty at Firedoglake]