Monday, April 20, 2009

Newsweek on Harold Koh

Newsweek on Harold Koh, by Ed Whelan
Bench Memos/NRO, Monday, April 20, 2009

In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser. As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect. And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.” That said, I have a correction and a broader comment.

First, the correction: Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.” In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore. That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.” And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee.

That correction feeds into a broader comment: I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are. They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.” But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post). The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.

Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.” I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office. I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are. But the more I explored, the more extreme Koh turned out to be.

In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character. Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing.

More by this author on Mr Koh here

Libertarian Comments on Gun Control in Mexico

Cato Scholar Comments on Gun Control in Mexico. By David Rittgers
Cato, Friday, April 17, 2009

An unfortunate aspect of President Obama's trip to Mexico is the false—but virtually unopposed—assertion that the vast majority of weapons being used in the Mexican drug war come south from the U.S.

Yes, there is a major problem with drug-related gun violence along the border. No, U.S. gun laws are not the main culprit—and to lay all the rhetorical blame on them is to ignore serious weaknesses in numerous other policy areas.

The claim that that 90 percent of the guns involved in Mexico's drug war come from the United States has already been debunked. The reality is that out of 29,000 firearms picked up in Mexico, 5,114 of the 6,000 guns successfully traced came from the United States. While that is 90 percent of traced guns, it means that only 17 percent of recovered guns come from the U.S. civilian market.

Where did the rest come from? A number of places. To begin with, over 150,000 Mexican soldiers have deserted in the last six years for the better pay and benefits of cartel life, some taking their issued M-16 rifles with them.

What the Obama administration should look at is the Direct Commercial Sales, the legal export of military-grade weapons monitored by the State Department. The FY 2007 report shows a record number of investigations and a record number of fraudulent sales. Unsurprisingly, the majority of "unfavorable" findings in the Americas are in small arms and ammunition. Cutting down the number of military weapons sold through front companies to the cartels will do more to combat the violence than restricting the Second Amendment rights of all Americans.

And, of course, sadly absent from this debate is the issue of enriching and empowering violent black marketeers through the U.S.'s empirically failed prohibition on drugs.

Zuma: South Africa's likely next president is no Mandela-like godhead

Judging Zuma. By Mark Gevisser
South Africa's likely next president is no Mandela-like godhead.
WSJ, Apr 20. 2009

Campaigning in his kwaZulu-Natal heartland this past week, Jacob Zuma took aim at one of his sharpest critics, the Nobel laureate Archbishop Desmond Tutu. The cleric had "strayed" from his pastoral responsibilities by criticizing him, said Mr. Zuma, who has been fighting charges of fraud and racketeering for much of the past decade: "As far as I know, the role of priests is to pray for the souls of sinners, not condemn them."

The comment, coming from the man destined to be South Africa's next president, marks a watershed in the country's politics. For it is an admission by Mr. Zuma himself that South Africa's leaders are no longer the liberating godheads in the mold of Nelson Mandela. No: They are flawed and even errant human beings, "sinners" making do in an imperfect and often hostile world.

Mr. Zuma, the ruling African National Congress's candidate for president in Wednesday's general elections, was responding to comments by Mr. Tutu that he was unsuitable for the presidency. Like many other South Africans, Mr. Tutu believes the ANC leader is irrevocably compromised by the charges against him, even though they were dropped earlier this month amid findings that the chief investigator had abused the prosecutorial process.

Mr. Zuma insists that he was the victim of a political conspiracy masterminded by his predecessor and rival, former South African president Thabo Mbeki. But at the very least, Mr. Zuma was shown to have lived for a decade off the largesse of a benefactor who actually served time in jail for having solicited a bribe on his behalf.

The National Prosecuting Authority (NPA) insists that despite the "collusion" of the chief investigator with Mr. Zuma's political enemies, the "substantive merits" of the case remain. It would have been far preferable for the matter to have been tested in court rather than prejudged by the NPA, which now stands accused of having been manipulated politically by Mr. Zuma, just as it once was by Mr. Mbeki. What makes this accusation even stronger is that the evidence of prosecutorial abuse -- a series of covert recordings -- was submitted to the authorities by Mr. Zuma himself, who could have only acquired them from the intelligence services.

Many also believe that even though Mr. Zuma was acquitted of rape charges in 2006, he showed appalling judgment by admitting to having had unprotected sex with an HIV-positive woman who regarded him as a "father"; by claiming that he inoculated himself against infection with a postcoital shower; and by allowing a mob of misogynist supporters to wreak havoc outside the court.

With all of the above, not to mention the fact that his finances and personal life are in perpetual shambles (he is a polygamist with several wives and around 20 children) and that he has no formal education, Mr. Zuma would seem ill-suited to the presidency of Africa's most sophisticated state and its flagship democracy.

And yet the ANC leader is likely to win Wednesday's elections with a significant majority (probably more than 60%), and has become a figure of cult popularity, particularly among the poor.

His popularity rests on several foundations. First, the century-old ANC remains "home" to most black South Africans; moving away from it would be tantamount to abandoning one's family. Second, Mr. Zuma's flawed humanity appeals greatly to ordinary people. A man of humble rural origin, he has struggled through life, and many of his supporters identify with his appetites and indiscretions. He styles himself as the purveyor of common home truths rather than the high-minded intellectualisms of his aloof predecessor. Such homeboy populism offers the impression that he is accessible and responsive, in sharp contrast to Mr. Mbeki.

Despite a significant increase in service delivery in the 15 years since the ANC came to power, most South Africans remain desperately poor and feel excluded from the banquet of victory at which a small but ostentatious new black elite now sups. Mr. Zuma himself is perceived to have been ejected from this elite by Mr. Mbeki and his cronies, because he was not sophisticated, educated or slick enough. He is the first ANC leader who does not hail from the small black professional elite. Ordinary people identify with his seeming alienation from this elite and sense, in his extraordinary ascendancy, the possibilities for their own redemption. They relate most of all to his victimhood, and they admire his ability to overcome it.

Mr. Zuma has certainly proven himself a remarkably resilient politician, even if he has earned the reputation of being all things to all people, telling shopfloor audiences one thing and their bosses another, with little indication of a coherent vision. His candidacy was dependent on the active sponsorship of the left, particularly South Africa's powerful labor movement. It remains to be seen whether he will be able to steer the middle ground between his supporters' socialist agendas and the imperatives of the market.

But there are indications that while he will not tamper much with the economic orthodoxies established by his predecessor, he might provoke a return to conservative patriarchy at odds with the liberal democratic values of the Mandela-era ANC. He has often articulated a social conservatism about matters such as teen pregnancy and homosexuality and urged faith communities to challenge those interpretations of the constitution -- such as the right to abortion -- with which they are uncomfortable.

In crime-ridden South Africa he talks tough, but in a way that suggests the easy solutions of vigilantism: He once suggested that murder and rape suspects should forfeit their rights. Recently, he indicated that he would overlook the highly regarded deputy chief justice, Dikgang Moseneke, for a promotion, because Mr. Moseneke once made a statement that he owed his allegiance to the people rather than to the ANC.

Even if he is the victim of a conspiracy, there are troubling signs in the way Mr. Zuma has handled his legal travails and appears to have manipulated the organs of state to have the charges against him dropped. Under Mr. Mbeki and now Mr. Zuma, the ANC has confused party and state to such an extent that South Africa has become a de facto one-party state. The ruling party has become seduced by its own liberation mythologies and has developed an unduly proprietary sense of ownership over South Africa's destiny (Mr. Zuma likes to talk about how it will rule until the messiah's coming). Flowing out of this is a system of patronage and kickback politics that undermines the very "developmental state" it promises to establish. For this reason, many lifelong ANC supporters, myself included, will be voting for the opposition for the first time when we go to the polls on Wednesday.

Mr. Gevisser is Writer in Residence at the University of Pretoria and the author of "A Legacy of Liberation: Thabo Mbeki and the Future of the South African Dream," just out from Palgrave Macmillan.

Americas Summit: Missed Opportunity

Americas Summit: Missed Opportunity. By Mary Anastasia O'Grady
WSJ, Apr 20, 2009

If President Barack Obama's goal at the fifth Summit of the Americas in Trinidad and Tobago this weekend was to be better liked by the region's dictators and left-wing populists than his predecessor George W. Bush, the White House can chalk up a win.

If, on the other hand, the commander in chief sought to advance American ideals, things didn't go well. As the mainstream press reported, Mr. Obama seemed well received. But the freest country in the region took a beating from Venezuela's Hugo Chávez, Bolivia's Evo Morales, and Nicaragua's Danny Ortega.

Ever since Bill Clinton organized the first Summit of the Americas in 1994 in Miami, this regional gathering has been in decline. It seemed to hit its nadir in 2005 in Mar del Plata, Argentina, when President Nestór Kirchner allowed Mr. Chávez and his revolutionary allies from around the region to hold a massive, American-flag burning hate-fest in a nearby stadium with the goal of humiliating Mr. Bush. This year things got even worse with the region's bullies hogging the limelight and Mr. Obama passing up a priceless opportunity to defend freedom.

Mr. Obama had to know that the meeting is used by the region's politicians to rally the base back home by showing that they can put Uncle Sam in his place. Realizing this, the American president might have arrived at the Port of Spain prepared to return their volley. They have, after all, tolerated and even encouraged for decades one of the most repressive regimes of the 20th century. In recent years, that repression has spread from Cuba to Venezuela, and today millions of Latin Americans live under tyranny. As the leader of the free world, Mr. Obama had the duty to speak out for these voiceless souls. In this he failed.

The subject of Cuba was a softball that the American president could have hit out of the park. He knew well in advance that his counterparts would pressure him to end the U.S. embargo. He even prepared for that fact a few days ahead of the summit by unconditionally lifting U.S. restrictions on travel and remittances to the island, and offering to allow U.S. telecom companies to bring technology to the backward island.The Americas in the News

Think that helped cast the U.S. in a better light in the region? Fat chance. Raúl Castro responded on Friday from Venezuela with a long diatribe against the Yankee oppressor and a cool offer to negotiate on "equal" terms. In case you don't speak Cuban, I'll translate: The Castro brothers want credit from U.S. banks because they have defaulted on the rest of the world, and no one will lend to them anymore. They also want foreign aid from the World Bank.

Anyone who thinks that Raúl is ruminating over free elections is dreaming. Nevertheless, the Cuba suggestion to put "everything" on the table became the "news" of the summit. And while it is true that Mr. Obama mentioned political prisoners in his list of items that U.S. wants to negotiate, he could have done much more. Indeed, he could have called Raúl's bluff by putting the spotlight on the prisoners of conscience, by naming names. He could have talked about men like Afro-Cuban pacifist Oscar Elias Biscet, who has written eloquently about his admiration for Martin Luther King Jr., and today sits in jail for the crime of dissent.

The first black U.S. president could have named hundreds of others being held in inhumane conditions by the white dictator. He could have also asked Brazil's President Lula da Silva, Chile's President Michelle Bachelet and Mexico's Felipe Calderón where they stand on human rights for all Cubans. Imagine if Mr. Obama asked for a show of hands to find out who believes Cubans are less deserving of freedom than, say, the black majority in South Africa under apartheid or Chileans during the Pinochet dictatorship. Then again, that would be no way to win a popularity contest or to ingratiate yourself with American supporters who are lining up to do business in Cuba.

Instead the U.S. president simply floated down the summit river passively bouncing off whatever obstacles he encountered. The Chávez "gift" of the 1971 leftist revolutionary handbook "Open Veins of Latin America" followed by a suggestion of renewing ambassadorial relations was an insult to the American people. Granted, giving the Venezuelan attention would have been counterproductive. But Mr. Obama ought to have complained loudly about that country's aggression. It has supported Colombian terrorists, drug trafficking and Iran's nuclear ambitions. As former CIA director Michael Hayden told Fox News Sunday, "the behavior of President Chávez over the past years has been downright horrendous -- both internationally and with regard to what he's done internally inside Venezuela."

Too bad Mr. Obama didn't have a copy of the late 1990s bestseller "The Perfect Latin American Idiot" as a gift for Mr. Chávez. Another way Mr. Obama could have neutralized the left would have been to announce a White House push for ratification of the U.S.-Colombia Free Trade Agreement. That didn't happen either. He only promised to talk some more, a strategy that will offend no one and accomplish nothing. It is a strategy that sums up, to date, Mr. Obama's foreign policy for the region.

WSJ Editorial Page on the immigration bottom line: We need more legal avenues

Obama and the 'Amnesty' Trap. By Jason L Riley
The immigration bottom line: We need more legal avenues.
WSJ, Apr 20, 2009

When President Barack Obama turns his attention to immigration reform later this year, he will be pressured by advocacy groups and fellow Democrats to focus on a legalization program for the 12 million or so undocumented immigrants already living in the U.S. Obviously, the plight of this illegal population must be part of any policy discussion. But if Mr. Obama wants to be more successful than the previous administration when it tried to reform immigration, he should avoid getting bogged down in a debate over "amnesty."

Critics of comprehensive immigration reform, which ideally combines legalization with more visas and more enforcement measures, say that the last amnesty enacted -- the Immigration Reform and Control Act (IRCA) of 1986 -- didn't solve the illegal alien problem. This is true but misleading. After all, border enforcement enhancements over the past two decades haven't stanched the illegal flow, either, but that hasn't stopped immigration restrictionists from calling for still more security measures.

The reality is that the 1986 amnesty was never going to solve the problem, because it didn't address the root cause. Illegal immigration to the U.S. is primarily a function of too many foreigners chasing too few visas. Some 400,000 people enter the country illegally each year -- a direct consequence of the fact that our current policy is to make available only 5,000 visas annually for low-skilled workers. If policy makers want to reduce the number of illegal entries, the most sensible and humane course is to provide more legal ways for people to come.

This could be done by creating viable guest-worker programs or increasing green-card quotas or both. The means matter less than the end, which should be to give U.S. businesses legal access to foreign workers going forward. The 1986 amnesty legislation didn't do that, which is why it didn't solve the problem.

The three million illegal aliens who were brought into legal status under IRCA had already been absorbed by the U.S. labor market. The fundamental problem with the bill was that its architects ignored the future labor needs of U.S. employers. After the amnesty took effect, our economy continued to grow and attract more foreign workers. But since the legal channels available were not sufficiently expanded, migrants once again began coming illegally, which is how today's undocumented population grew to its current size. Another amnesty, by itself, will do no more to "solve" the problem in the long run than the first one did.

It's unfortunate that the "no amnesty" crowd has been able to suck up so much oxygen in this debate. Immigration hysterics on talk radio and cable news have used the term effectively to end conversations. And restrictionists in Congress have used it as a political slogan to block reform. But from a public-policy perspective, the fate of the 12 million illegals already here is largely a side issue, a problem that will solve itself over time if we get the other reforms right.

As in 1986, our economy and society have already absorbed most of these illegal workers. Many have married Americans, started families, bought homes, laid down roots. If their presence here is a problem, it is a self-correcting one. In time, they will grow old and pass on with the rest of us. The Obama administration would do better to focus less on whether to grant amnesty or to deport them and more on how to stop feeding their numbers going forward.

Unfortunately, the president will be pressed to do the opposite. The nation's two largest labor groups, the AFL-CIO and Change to Win, have already announced that they will oppose any new guest-worker initiatives and any significant expansion of temporary work programs already in place. Democrats and advocacy groups, who tend to see immigration as a humanitarian issue more than an economic one, will likely side with labor. But history suggests that such programs are effective in reducing illegal entries. Past experience shows that economic migrants have no desire to be here illegally. They will use the front door if it's available to them, which reduces pressure on the border and frees up homeland security resources to target drug dealers, gang members, potential terrorists, and other real threats.

Nearly seven decades ago, the U.S. faced labor shortages in agriculture stemming from World War II, and growers turned to the Roosevelt administration for help. The result was the Bracero program, which allowed hundreds of thousands of Mexican farm workers to enter the country legally as seasonal laborers. In place from 1942 to 1964, the program was jointly operated by the departments of Justice, State and Labor. As the program was expanded after World War II to meet the labor needs of a growing U.S. economy, illegal border crossings fell by 95%. A 1980 Congressional Research Service report concluded that, "without question," the program was "instrumental in ending the illegal alien problem of the mid-1940s and 1950s." Apparently, the law of supply and demand doesn't stop at the Rio Grande.

Beginning in 1960, the program was phased out after it faced opposition from labor unions. And since nothing comparable emerged to replace it, illegal entries began to rise again. The point isn't that we need to resurrect the Bracero program, or that guest-worker programs alone will stop illegal immigration from Mexico. But a Bracero-like program with the proper worker protections ought to be the template. And expanding legal immigration ought to be where the Obama administration channels its energies.

Granted, this will be a hard sell at a time when growing numbers of Americans are out of work. Even in good times, zero-sum thinking -- the notion that what is gained by some must be lost by others -- dominates discussions about immigrants and jobs. But the schooling and skills that the typical Mexican immigrant brings to the U.S. labor market differ markedly from the typical American's, which is why the two don't tend to compete with each other for employment. Labor economists like Richard Vedder have documented that, historically, higher levels of immigration to the U.S. are associated with lower levels of unemployment. Immigrants are catalysts for economic growth, not job-stealers.

There are plenty of ways and plenty of time to deal with the country's undocumented millions in a fair and humane manner. But we'd do better to focus first on not adding to their numbers. If the fate of this group instead drives the policy discussion, we're more likely to end up with the status quo or faux reforms like amnesty that dodge the real problem. By all means, Mr. Obama, lead the fight for immigration reform. But don't lead with your chin.

Mr. Riley, a member of The Wall Street Journal's editorial board, is the author of "Let Them In: The Case for Open Borders" (Gotham), which has just been released in paperback.

WSJ Editorial Page: Susan Rice is confused about international law and North Korea

Spinning a U.N. Failure. WSJ Editorial
Susan Rice is confused about international law and North Korea.
WSJ, Apr 20, 2009

It's strange enough that the Obama Administration is hyping last week's toothless statement by the United Nations Security Council condemning North Korea's recent rocket launch. Even more amazing, it says the U.N. move is "legally binding" on member states.

Those were the words used by Susan Rice, U.S. ambassador to the U.N., and repeated by a State Department spokesman. Ms. Rice is badly misinformed. As she ought to know, a "presidential statement" issued by the Security Council is legally binding on no one.

A presidential statement is agreed to by all 15 members of the Security Council and issued by the rotating president. Invented in 1994, such statements aren't even mentioned in the Security Council's procedural rules and impose zero obligations on members. They are a last resort when the Security Council can't summon the will or agreement to pass a resolution.

That's what happened after North Korea's April 5 missile launch, when neither China nor Russia would agree to the U.S. wish for a resolution. Legal experts -- including the Permanent Five's attorneys in a 2005 memo -- agree that the only U.N. pronouncement that is legally binding is a Security Council resolution issued under Chapter VII of the U.N. Charter, which sets out the Council's powers to maintain peace. Such resolutions can be enforced with sanctions or military action. Resolution 1718, passed in 2006 after North Korea's nuclear and missile tests, falls in this category.

The distinction between "Chapter VII resolutions" and other U.N. utterances is important -- as the example of Israel illustrates. Since the Jewish state has never been subject to a Chapter VII resolution, no Israeli "violation" of a U.N. pronouncement can give rise to sanctions. Even the famous Resolution 242, issued at the end of the 1967 Yom Kippur War, was not issued under Chapter VII. If the Obama Administration considers even U.N. presidential statements "legally binding," it's an invitation to the U.N. to ramp up its attacks on Israel.

Last week's statement on North Korea is binding only in the sense that it calls on member states "to comply fully" with their obligations under Resolution 1718, which bans sales of weapons, weapons parts and luxury goods to North Korea. Resolution 1718 is legally binding, but it has never been enforced. This speaks volumes about the sincerity of promises made at the U.N., and about the failure of the Obama Administration to win Security Council support for a serious response to North Korea's missile launch.

WSJ Editorial Page: Prostate Cancer and FDA Politics - Dendreon's Provenge

Prostate Cancer and FDA Politics. WSJ Editorial
Their first priority should be to save patients.
WSJ, Apr 20, 2009

Last week brought hopeful news for prostate cancer patients, with the biotech company Dendreon announcing that its cancer treatment Provenge improved survival and prolonged life in an important study. That may finally be enough for Provenge to win Food and Drug Administration approval, but the tragedy is that it wasn't approved years ago.

Provenge is an advanced cancer "vaccine," which stimulates the body's immune system to attack tumor cells and thereby fight off cancer on its own, instead of using chemotherapy or surgery. In an earlier placebo-controlled Phase III trial (the most rigorous kind), men with late-stage cancer who received Provenge lived a median of 25.9 months, compared with 21.4 months otherwise. After three years, 34% were alive, compared to only 11% for the control group. In March 2007, an FDA advisory panel voted 13 to 4 that there was "substantial evidence" the drug worked, and 17-0 that it was safe.

But later that year, the FDA delayed approval, ruling that the trial did not meet its criteria for statistical significance and that the patient sample was too small. So Dendreon agreed to complete another double-blind trial to FDA specifications, and Dendreon officials say the results have now met those benchmarks. The detailed results will be presented later this month.

The larger question is why Provenge wasn't made available sooner to the 30,000 American men who die each year from prostate cancer. The FDA regularly -- and pointlessly -- slow-walks potentially revolutionary therapies, relying on overly simplistic and unscientific statistical models that don't take into account the fact that some drugs may work better in certain subgroups than in others. Its regulatory blockade is especially cruel to terminally ill patients for whom drugs like Provenge may mean extra months or years of life.

These corroborating data should lead to a shift in the way the FDA evaluates innovative oncology medicines. But they almost surely won't, since the demands of bureaucratic politics to play it safe nearly always trump the needs of patients.

The Red Cross was completely wrong about 'walling' - The Memos Prove We Didn't Torture

The Memos Prove We Didn't Torture. By David B Rivkin Jr and Lee A Casey
The Red Cross was completely wrong about 'walling.'
WSJ, Apr 20, 2009

The four memos on CIA interrogation released by the White House last week reveal a cautious and conservative Justice Department advising a CIA that cared deeply about staying within the law. Far from "green lighting" torture -- or cruel, inhuman or degrading treatment of detainees -- the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation.

Interrogations were to be "continuously monitored" and "the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological conditions indicates that the detainee might suffer significant physical or mental harm."

An Aug. 1, 2002, memo describes the practice of "walling" -- recently revealed in a report by the International Committee of the Red Cross, which suggested that detainees wore a "collar" used to "forcefully bang the head and body against the wall" before and during interrogation. In fact, detainees were placed with their backs to a "flexible false wall," designed to avoid inflicting painful injury. Their shoulder blades -- not head -- were the point of contact, and the "collar" was used not to give additional force to a blow, but further to protect the neck.

The memo says the point was to inflict psychological uncertainty, not physical pain: "the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action."

Shackling and confinement in a small space (generally used to create discomfort and muscle fatigue) were also part of the CIA program, but they were subject to stringent time and manner limitations. Abu Zubaydah (a top bin Laden lieutenant) had a fear of insects. He was, therefore, to be put in a "cramped confinement box" and told a stinging insect would be put in the box with him. In fact, the CIA proposed to use a harmless caterpillar. Confinement was limited to two hours.

The memos are also revealing about the practice of "waterboarding," about which there has been so much speculative rage from the program's opponents. The practice, used on only three individuals, involved covering the nose and mouth with a cloth and pouring water over the cloth to create a drowning sensation.

This technique could be used for up to 40 seconds -- although the CIA orally informed Justice Department lawyers that it would likely not be used for more than 20 seconds at a time. Unlike the exaggerated claims of so many Bush critics, the memos make clear that water was not actually expected to enter the detainee's lungs, and that measures were put in place to prevent complications if this did happen and to ensure that the individual did not develop respiratory distress.

All of these interrogation methods have been adapted from the U.S. military's own Survival Evasion Resistance Escape (or SERE) training program, and have been used for years on thousands of American service members with the full knowledge of Congress. This has created a large body of information about the effect of these techniques, on which the CIA was able to draw in assessing the likely impact on the detainees and ensuring that no severe pain or long term psychological impact would result.

The actual intelligence benefits of the CIA program are also detailed in these memos. The CIA believed, evidently with good reason, that the enhanced interrogation program had indeed produced actionable intelligence about al Qaeda's plans. First among the resulting successes was the prevention of a "second wave" of al Qaeda attacks, to be carried out by an "east Asian" affiliate, which would have involved the crashing of another airplane into a building in Los Angeles.

The interrogation techniques described in these memos are indisputably harsh, but they fall well short of "torture." They were developed and deployed at a time of supreme peril, as a means of preventing future attacks on innocent civilians both in the U.S. and abroad.

The dedicated public servants at the CIA and Justice Department -- who even the Obama administration has concluded should not be prosecuted -- clearly cared intensely about staying within the law as well as protecting the American homeland. These memos suggest that they achieved both goals in a manner fully consistent with American values.

Messrs. Rivkin and Casey, who served in the Justice Department under George H.W. Bush, were U.S. delegates to the U.N. Subcommission on the Promotion and Protection of Human Rights.

Executive nominees shouldn't be filibustered - Presidential Picks Deserve a Vote

Presidential Picks Deserve a Vote. By Walter Dellinger
Executive nominees shouldn't be filibustered.
WSJ, Apr 20, 2009

On the eve of George W. Bush's inauguration in 2001, I cautioned fellow Democrats against "delaying or denying confirmation of nominees to cabinet and subcabinet posts." I argued on these pages that blocking executive nominees would weaken the presidency and be counterproductive for the opposition: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration."

In the past few years, many Republican senators have agreed, saying that it is unacceptable to filibuster a nominee submitted to the Senate for its "advice and consent." Some Republicans have gone further than I would, asserting that filibusters of presidential nominations are unconstitutional.

I was therefore taken aback by recent speculation that Republicans might filibuster two of President Barack Obama's key nominees: Dawn Johnsen, to head the Justice Department's Office of Legal Counsel; and Harold Koh, to be legal adviser to the State Department.

In the past, Republican senators have publicly asserted that it is either "unacceptable" or "unconstitutional" to filibuster an up-or-down vote of a nominee submitted by the president for Senate "advice and consent." I cannot believe they would now abandon that principle.

Just last year, Sen. John Cornyn (Texas) made this point clearly: "Far too many judicial and executive nominees have been delayed. . . . Senators have a right to vote for or against any nominee -- but blocking votes on nominations is unacceptable." Other senatorial statements also are starkly unequivocal. Lamar Alexander (Tennessee) said, "I pledged, then and there, I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote."

Although the Senate is free to filibuster legislation, a number of senators argued that the Constitution requires it to vote on nominations. Thus Orrin Hatch (Utah) said, "The advice and consent clause is clearly an up-or-down vote -- a majority vote -- on the floor of the Senate." Bob Bennett (Utah) added, "In my view, the Founding Fathers clearly intended the Senate to consent to the president's choices on a majority vote." Kay Bailey Hutchinson of Texas said that "advice and consent as it is called in the Constitution . . . has always meant a majority vote."

For a time it appeared that Republicans might enact a "nuclear option" -- sustaining on a majority vote a ruling that filibusters of presidential nominations are unconstitutional. (The "gang of 14" compromise in 2005, confirming some judges and not others, ended that threat.)

Many Democrats have in the past defended filibustering executive-branch nominees. Democrats filibustered Mr. Bush's nomination of John Bolton to the United Nations post, and blocked his nominations of Eugene Scalia and Otto Reich by delaying votes. Some judicial candidates, like Miguel Estrada, were also subject to actual or threatened filibusters. Judicial candidates, however, present different considerations. Unlike judges, executive-branch nominees work for the president, and he should have greater discretion in deciding who serves in his administration.

I have disagreed with filibusters of executive-branch nominees whether done by Democrats or Republicans. But Democrats have at least been consistent in maintaining, under presidents of both parties, that filibusters were permissible. Those who would now filibuster the nominations of Mr. Koh and Ms. Johnsen would engage in activity that they recently condemned in stark terms.

The list of senators who have virtually ruled out advice-and-consent filibusters also includes Mitch McConnell (Kentucky), Kit Bond (Missouri), Sam Brownback and Pat Roberts (Kansas), Tom Coburn and James Inhofe (Oklahoma), Mike Crapo (Idaho), Lindsey Graham (South Carolina), Chuck Grassley (Iowa), Judd Gregg (New Hampshire), Jon Kyl (Arizona), Jeff Sessions (Alabama), Arlen Specter (Pennsylvania) and George Voinovich (Ohio).

Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.

Mr. Dellinger was head of the Office of Legal Counsel from 1993 to 1996.

What happens when the president can no longer blame Bush for international strife?

A World Of Trouble For Obama. By Jackson Diehl
WaPo, Monday, April 20, 2009

New American presidents typically begin by behaving as if most of the world's problems are the fault of their predecessors -- and Barack Obama has been no exception. In his first three months he has quickly taken steps to correct the errors in George W. Bush's foreign policy, as seen by Democrats. He has collected easy dividends from his base, U.S. allies in Europe and a global following for not being "unilateralist" or war-mongering or scornful of dialogue with enemies.

Now comes the interesting part: when it starts to become evident that Bush did not create rogue states, terrorist movements, Middle Eastern blood feuds or Russian belligerence -- and that shake-ups in U.S. diplomacy, however enlightened, might not have much impact on them.

The first wake-up call has come from North Korea -- a state that, according to established Democratic wisdom, would have given up its nuclear weapons years ago if it had not been labeled "evil" by Bush, denied bilateral talks with Washington and punished with sanctions. Stephen Bosworth, the administration's new special envoy, duly tried to head off Pyongyang's latest illegal missile test by promising bilateral negotiations and offering "incentives" for good behavior.

North Korea fired the missile anyway. After a week of U.N. Security Council negotiations by the new, multilateralist U.S. administration produced the same weak statement that the Bush administration would have gotten, the Stalinist regime expelled U.N. inspectors and announced that it was returning to plutonium production.

When the inspectors were ousted in 2002, Democrats blamed Bush. Now Republicans blame Obama -- but North Korea's strategy hasn't changed in 15 years. It provokes a crisis, then demands bribes from the United States and South Korea in exchange for restoring the status quo. The Obama team now faces the same dilemma that bedeviled the past two administrations: It must judge whether to respond to the bad behavior by paying the bribe or by trying to squeeze the regime.

A second cold shower rained down last week on George Mitchell, Obama's special envoy to the Middle East. For eight years Democrats insisted that the absence of progress toward peace between Israel and its neighbors was due to the Bush administration's failure at "engagement." Mitchell embodies the correction. But during last week's tour of the region he encountered a divided Palestinian movement seemingly incapable of agreeing on a stance toward Israel and a new Israeli government that doesn't accept the goal of Palestinian statehood. Neither appeared at all impressed by the new American intervention -- or willing to offer even token concessions.

Those aren't the only signs that the new medicine isn't taking. Europeans commonly blamed Bush for Russia's aggressiveness -- they said he ignored Moscow's interests and pressed too hard for European missile defense and NATO membership for Georgia and Ukraine. So Hillary Clinton made a show of pushing a "reset" button, and Obama offered the Kremlin a new arms control agreement while putting missile defense and NATO expansion on a back burner. Yet in recent weeks Russia has deployed thousands of additional troops as well as tanks and warplanes to the two breakaway Georgian republics it has recognized, in blatant violation of the cease-fire agreement that ended last year's war. The threat of another Russian attack on Georgia seems to be going up rather than down.

Obama sent a conciliatory public message to Iranians, and the United States joined in a multilateral proposal for new negotiations on its nuclear program. The regime responded by announcing another expansion of its uranium enrichment facility and placing an American journalist on trial for espionage. Obama told Iraqis that he would, as long promised, use troop withdrawals to pressure the government to take over responsibility for the country. Since he made that announcement, violence in Iraq has steadily increased.

Obama is not the first president to discover that facile changes in U.S. policy don't crack long-standing problems. Some of his new strategies may produce results with time. Yet the real test of an administration is what it does once it realizes that the quick fixes aren't working -- that, say, North Korea and Iran have no intention of giving up their nuclear programs, with or without dialogue, while Russia remains determined to restore its dominion over Georgia. In other words, what happens when it's no longer George W. Bush's fault? That's what the next 100 days will tell us.