Lat Sighting

Fosco's college roommate, blog impresario David Lat, makes an appearance in a Gawker story today: because he's hella clever (it's true). And the best part of the whole story is that a lawyer having a loud conversation on his cell phone (while riding the subway!) gets his comeuppance. It's the kind of story that makes you feel like there is a tiny bit of justice in this world. We must band together to enforce proper social etiquette!

Jonathan Turley Says Smart Things

With a couple of exceptions, Fosco doesn't care much for lawyers. But he is having an intellectual love affair with Professor Jonathan Turley of George Washington University School of Law. This guy is one of the smarter talking heads that Fosco has ever seen on television. Here he is on last night's Countdown, talking about Bush's war crimes:

Visit msnbc.com for Breaking News, World News, and News about the Economy

You know why I like him? Because he says stuff like this:

We need to be honest. There is great love for President Obama and I have great respect for him. But you cannot say that you believe that no one is above the law and block the investigation of the war crimes by your predecessor. It is a position without principle; it is because you believe it's politically inconvenient. And by simply saying that you will do a special commission--it's like you have special justice. But at the end of the day, no one believes that people will be prosecuted for a known war crime. And what do we do when we do that? When we do that, then we will become accessories. Those crimes by President Bush will become our crimes; his shame will become our collective shame. That's what happens when you protect someone accused of war crimes from even an investigation.

He says lots of other good stuff in the clip above--this is just the highlight. I think he's exactly right: we cannot let Bush/Cheney go uninvestigated. Sorry, Obama: "looking forward" just isn't an option here.

Hey, I just learned that Jonathan Turley has a blog! Bonus!

Fosco's Torture Memo (Hint: Bush is going to jail.)

Fosco wishes to thank The BeeMaster again for his recent guest post here at Fosco Lives!, even though it made this blog an (unlikely) stop on the Bush legacy tour. But, after all, when you read that twenty percent of Americans still approve of George W. Bush, don't you ever wonder who those people are and what they're thinking? Well, now we know.

Fosco would like to note that guest posts are always welcome here. On any topic. However, with that being said, I suspect that Fosco Lives! is going to become a little less political for a while (at least until the next Prop 8 flare-up--most likely around June when the California Supreme Court releases its decision). On the one hand, Fosco doesn't want to get complacent now that Obama is in power. On the other hand, there are so many things that Fosco likes more than politics. Many, many things. Not only will this de-emphasis on politics thrill Fosco's boyfriend Oz, it will also allow Fosco to concentrate on some recently-neglected topics (like music and literature). And, to be honest, Fosco is looking forward to feeling a bit less angry on a daily basis... At the very least, this will be good for Fosco's health.

I hope you'll still feel comfortable commenting on The BeeMaster's defense of Bush (especially as more and more of it is proven by history to be untrue). While some of the things that The BeeMaster wrote can be considered legitimate differences in opinion, there are several things that are more problematic. And there is one thing that Fosco just cannot let slide.

The BeeMaster claims that

When water-boarding is brought up, we will see that it was used on only three suspects, one of whom was Khalid Sheikh Mohammed, Al Qaida's chief of operational planning, who divulged vast amounts of information that saved hundreds of innocent lives. Whether this tactic--it creates a drowning sensation--is torture is a matter of debate. John McCain and many Democrats say it is. Bush and Vice President Cheney insist it isn't. In any case, it was necessary.

Fosco may have a bee in his bonnet about torture lately, but there are several things wrong in this statement.

First, the "debate" on whether water-boarding is torture is really only a debate in the same way that there is a debate about whether smoking causes lung cancer. Aside from a few people who are motivated to believe otherwise, the answer is clear. There is a long trail of legal precedent that identifies simulated drowning as torture under American law. The legal precedent has been traced by Judge Evan Wallach in a recent article in the Columbia Journal of Transnational Law. You can download the full text of Judge Wallach's paper from this URL. Judge Wallach's article also presents the clear historical record that the United States has regularly punished simulated drowning as torture:

Indeed, despite increasing discussion of variations of [water-boarding], and their application on a global scale, nobody seems to remember that, not so very long ago, the United States, acting alone before domestic courts, commissions and courts martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.

Most notably, this happened with the Japanese water torture of American servicemen during World War II, when a number of Japanese interrogators were convicted by the US of torture for using water-boarding techniques. Historically, there is no question that the United States law has considered water-boarding to be torture. I look forward to George W. Bush's prosecution for war crimes. Seriously.

Of course, many conservatives are willing to admit that water-boarding is torture while maintaining that it is unavoidable or necessary to save innocent American lives (and this will presumably be Bush's public defense if/when we get to his war crimes trial). But, even if this is true (and, in a moment, we'll see why it's not), it's a claim that follows from a pretty unpleasant system of moral reasoning. Neither Christianity nor the traditional secular Kantian model of moral reasoning would agree that one can engage in a grossly immoral act in order to do some moral good. Rather, if you want to believe this, you're stuck in the troublesome realm of utilitarianism, where you have to calculate the sums of goods and evils and so on. Sometimes that seems easy; sometimes it's clearly not. But when it comes down to it, I think most people aren't too comfortable basing their ultimate morality on that kind of utilitarian calculus.

As far as the question of whether torture saves lives, I think the problem here is that too many people have been watching that televised propaganda film called "24." Maybe Jack Bauer saved lives by torturing someone (I don't know--I watched Triumph of the Will instead), but very few people who know things about torture are willing to vouch for the realism of "24." Since The BeeMaster is so keen on the information we got out of Khalid Sheikh Mohammed (KSM), let's talk about his case.

I recommend this article from Vanity Fair, December 2008. In it, the respected investigative journalist David Rose speaks to CIA, FBI, and military sources about the results of prisoner torture. Here's what he learned about KSM:

As for K.S.M. himself, who (as Jane Mayer writes) was waterboarded, reportedly hung for hours on end from his wrists, beaten, and subjected to other agonies for weeks, Bush said he provided “many details of other plots to kill innocent Americans.” K.S.M. was certainly knowledgeable. It would be surprising if he gave up nothing of value. But according to a former senior C.I.A. official, who read all the interrogation reports on K.S.M., “90 percent of it was total fucking bullshit.” A former Pentagon analyst adds: “K.S.M. produced no actionable intelligence. He was trying to tell us how stupid we were.”

Hmmm. That doesn't sound promising. But KSM must have said something useful when he was tortured, right? Not so much:

Several of those I interviewed point out the dearth of specific claims the administration has proffered. “The proponents of torture say, ‘Look at the body of information that has been obtained by these methods.’ But if K.S.M. and Abu Zubaydah did give up stuff, we would have heard the details,” says [former FBI terrorist interrogator Jack] Cloonan. “What we got was pabulum.” A former C.I.A. officer adds: “Why can’t they say what the good stuff from Abu Zubaydah or K.S.M. is? It’s not as if this is sensitive material from a secret, vulnerable source. You’re not blowing your source but validating your program. They say they can’t do this, even though five or six years have passed, because it’s a ‘continuing operation.’ But has it really taken so long to check it all out?”

But, you say, these are low-level interrogators and anonymous sources. They must be out-of-the-loop. Or secret liberals (you find a lot of secret liberals among FBI terrorist interrogators).

But what if the Director of the FBI (reluctantly) went on the record about the fruits of torture?

I ask [FBI Director Robert] Mueller: So far as he is aware, have any attacks on America been disrupted thanks to intelligence obtained through what the administration still calls “enhanced techniques”?

“I’m really reluctant to answer that,” Mueller says. He pauses, looks at an aide, and then says quietly, declining to elaborate: “I don’t believe that has been the case.”

Hmmm. I'll take "torture does not save lives" ftw.

In fact, according to this editorial by a former CIA interrogator, torture may actually be responsible for American deaths:

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me--unless you don't count American soldiers as Americans.

You can believe this or not. But if you want me not to believe it, I need to see a source that is at least as experienced and as knowledgeable as this man about the situation on the ground in Iraq (and neither Bill O'Reilly nor TrAnn Coulter count).

You know what would be so funny if it weren't so sad? The FBI and CIA have known for a long time how to get good information out of detainees. FBI interrogator Jack Cloonan did it (see the Vanity Fair article) with the conspirators in the Kenya and Tanzania US Embassy bombings. The former CIA interrogator mentioned above relates (in his Washington Post editorial and subsequent book) that,

We turned several hard cases, including some foreign fighters, by using our new techniques. A few of them never abandoned the jihadist cause but still gave up critical information. One actually told me, "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."

What was this secret method of interrogation?

I taught the members of my unit a new methodology--one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they're listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of "ruses and trickery"). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.

I see. Wait--it's almost as if someone had discovered a way to interrogate successfully! Did anyone Cc. Bush?

So why do so many people want to torture detainees? I can't help but think that a very ugly type of vengeance is at work here. Do not think that Fosco is above anger at those who perpetrated 9/11 or those who do/would kill American troops (or civilians). I want those people to get what they deserve. However, I believe that "just deserts" are morally meaningful only when they are just. Vigilante justice is not justice. No matter what Bush et al. claim, it is possible for us to punish evildoers under our system of laws. It might take more work (although it may not), and it will definitely require more restraint. And in calling for this restraint, I am not particularly interested in protecting terrorists; rather, I am interested in protecting our American moral character.

Pictures of 2008: Society Wedding

Fosco recently realized that, by only blogging for three months last year, he never got to share tons of pictures with you from the rest of the year. So, for the next week or so, Fosco will offer a series of brief posts with some of his favorite pictures from his adventures in 2008. Check out the whole series here.

Last June, Fosco and Oz flew to Washington DC for the wedding of Fosco's college roommate Derek Ho to the lovely and talented Maria Glover (read the New York Times wedding announcement here). This was the nicest wedding Fosco has ever seen (black tie for the guests!) and it was a wonderful opportunity to catch up with most of his college roommates (except this no-show).

The reception was at the exquisite National Museum of Women in the Arts. Here are two photos from the reception:


Swanky!

The best part of the wedding (besides Derek and Maria's beautiful love, of course) was before the ceremony when Fosco and Oz were sitting in the pew at the church and Fosco turned around to find that Supreme Court Justice David Souter (one of the good Justices, btw) had been seated immediately behind him. For most of the rest of the ceremony, Fosco and his former roommate Dr. Steve scammed to get good candid pix of Souter without being too overt about it. Sadly, Fosco's best attempt is really too blurry; however, it's also the best he's got. And so he includes it here.

That's Souter in the foreground, being charmed by the Mother-of-the-Groom. On the right is the gorgeous Dr. Gloria, wife of Dr. Steve. Do you now see how Fosco got this shot? He was pretending to be taking a picture of Steve and Gloria. Pathetic, I know. A college rooming group with more cojones would have just asked Souter if he would be willing to pose with all of them; but then again, Fosco and his college roommates were always a bunch of eunuchs.

A Model of Reasonable Debate

You may have noticed that there are occasional disagreements in the Comments between Fosco and his good friend The BeeMaster (not pictured at right). Fosco and The BeeMaster go way back--in fact, The BeeMaster is one of the kindest people that Fosco knows. This may surprise you, as Fosco is pretty leftish and The BeeMaster is a fire-breathing conservative. But, stranger things have happened. In all honesty, Fosco likes to think that his ongoing discussion with The BeeMaster is a pretty nice example of Obama's dictum about "disagreeing without being disagreeable."

Most recently, Fosco and The BeeMaster have been sparring over Rick Warren and Obama. The BeeMaster has taken issue with this Fosco post on Warren and has responded in the comments section to that post. As Fosco was in the middle of a very long response to The BeeMaster's response, he realized that he should just make the whole exchange into a post on the front page of Fosco Lives!. And so here is The BeeMaster's original comment, followed by Fosco's reply. And yes, Fosco will happily append any additional response by The BeeMaster into this post.

THE BEEMASTER'S COMMENT:
When watching the Rick Warren interview in question:

http://www.beliefnet.com/Video/Beliefnet-Interviews/Rick-Warren/Rick-Warren-Interview-On-Gay-Marriage-And-Divorce.aspx

it's a stretch to say he likens gay marriage to incest and pedophilia. In the same interview, he says divorce is a greater threat to the family than gay marriage. So following the same logic would bring us to the dubious conclusion that Rick Warren thinks divorce is worse than incest and pedophilia. Since this is nonsense, one of two things must be untrue. Either Warren doesn't think divorce is worse than gay marriage, OR he doesn't consider gay marriage the same as incest and pedophilia. Watching the interview, it's clear the latter and not the former is the case.

So what's the big problem with Rick Warren praying at the inaugeration? That he opposes gay marriage? Big deal - so does Obama.

The largest group opposed to gay marriage is evangelical Christians. Vilifying Rick Warren hurts, not helps, the cause of gay marriage. It casts its supporters as harsh and (ironically) intolerant. It makes evangelicals fear that, should gay marriage become legal, their churches could be forced to perform such ceremonies or that pastors speaking out against the practice would be accused of hate crimes. Rick Warren specifically mentions this fear as the reason he supported proposition 8. Being smeared for his view makes the point more profoundly than he could ever have.

The BeeMaster


FOSCO'S RESPONSE:
It's true that I feel some ambivalence on this topic. For one thing, I don't think Rick Warren is the worst thing ever. For the most part, he seems like a pretty likable and reasonable guy (and strangely enough, Fosco looks a little like him--although Fosco has more hair). I can see why he's built such a large and successful church. Sure, I'm having a little fun with his hair plugs and the title of his book, but I even do that with people that I like.

And yes, I do recognize that Obama is opposed to gay marriage as well (as the numerous robocalls on my answering machine on November 4 reminded me). I'm not thrilled about that either.

As for the Warren interview in question, I recognize that he views divorce as a much greater threat to marriage than gay unions. Good for him! I wish that point were made more frequently.

However, that interview still includes this exchange:

WARREN: The issue to me, I'm not opposed to that as much as I'm opposed to redefinition of a 5,000 year definition of marriage. I'm opposed to having a brother and sister being together and calling that marriage. I'm opposed to an older guy marrying a child and calling that marriage. I'm opposed to one guy having multiple wives and calling that marriage.

BELIEFNET: Do you think those are equivalent to gays getting married?

WARREN: Oh , I do.

Now Warren is too savvy to use the normally-accepted words for his three examples, but he is clearly talking about
1. incest
2. pedophilia
3. polygamy
And then he explicitly agrees that these three examples are "equivalent to gay getting married." Now none of these may be as threatening to marriage as divorce (presumably because they are all much rarer), but he still makes this comparison (and has had ample opportunity to retract/clarify--especially in this transcript which includes several retrospective Warren clarifications.

So, while Warren's rhetoric may not be as inflammatory as some of the opponents of Prop 8, it's pretty clear that he wants to equate gay marriage with incest, pedophilia, and polygamy.

As for the question of whether Prop 8 would require churches to marry gay couples, I just can't understand how this keeps getting cited. As far as I can tell, every church can determine who they want to marry. Churches can set rules about marriage that go beyond (or even contradict) civil laws about marriage. The one I know best is the Catholic Church, which reserves the right to set all kinds of conditions on marriage. You can't just walk into a Catholic Church and get married. I believe the Mormons are the same. In fact, I suspect that there of plenty of churches in the South that would refuse an interracial marriage (and could legally do so).

Of course, civil authorities are not amused when rogue Mormons try to marry young girls to old men, but that's more of a case of certain child protection laws trumping religious freedom (something that, btw, pretty much all Americans agree on). And besides, that's a case of the State invalidating a religious marriage, not of the State requiring a religion to perform a specific type of marriage.

This is different, I also want to note, from recent cases in Connecticut where justices of the peace are required to conform to the law and marry gay couples. In those cases, justices of the peace are civil, not religious, authorities (although they may also have their personal religious beliefs). Civil marriage is an entirely different thing from religious marriage, and civil officials are required by law to perform any marriage that is legal. Religious officials are NOT required to perform any legal marriage, nor will they ever be.

I think Rick Warren is a smart guy and I just don't believe he is worried that his Saddleback Church will be forced to marry gay couples. He knows the difference between civil marriage laws and religious discretion in the case of marriage. I think he is bringing this up purely as a scare tactic.

As for hate speech argument, I still think Rick Warren is smart enough to know better. He's being cynical here. He knows the difference between hate speech and "politically incorrect" speech. I'm going to use race to make this point. When an old school Southern-fried racist says that Black people are inferior (or that they shouldn't marry white people), that's bigotry but it's not hate speech. Hate speech is speech that is intended to incite violence. So if Warren says that gay people shouldn't get married, he may be wrong (and he may be bigoted), but there is no court in this country that would call that hate speech. Now, if he were to say that his churchmembers should get a baseball bat and "teach gays a lesson," then we'd be in the realm of hate speech.

Now I'll be the first to agree that some gay activists (and, strangely enough, some evangelical conservatives like Huckabee) are trying to elide the distinction between bigotry and hate speech. But even liberal courts know better than to let this distinction slide. For all of the supposed liberal or conservative biases in the federal judiciary in the last twenty years, federal judges are still surprisingly protective of First Amendment rights (for which we can thank the ACLU?). All of this is a long-winded way of saying that, unless Rick Warren plans to call for gay-bashing, he doesn't need to worry about being prosecuted for hate speech. And this is the part that pisses me off: he knows this. He's a smart and sophisticated guy. Or at least, he should know this. Which leads me to the conclusion that Rick Warren is arguing in bad faith.

When it comes down to it, if Rick Warren were just to say "I oppose gay marriage because it goes against my religion," I would have to accept that. I might disagree with him. And I may try to question whether Rick Warren is interpreting the Bible correctly. But I would have to be civil about it. Because, when it comes down to it, Rick Warren would be telling the truth and trying to communicate with me in good faith. And I recognize that Rick Warren does this most of the time. But when he resorts to using scare words and prophesying legal problems that will never materialize, I have to question his honesty.

All that being said, I definitely agree with The BeeMaster's assertion that gay-marriage activists have to deal with evangelical Christians in a constructive way (and Fosco hasn't always done this, I recognize). And I hope this exchange is a step in the right direction.

There are really only two ways to drink Coke...

You have to admire the rhetorical skills of Supreme Court Justice Clarence Clemons Thomas. After all, this is the man who asked that timeless question: "Who has put pubic hair on my Coke?" Truly, that was a question that defined a generation. (N.B.: the answer is her).

Now Justice Thomas has offered new guidance for our troubled times in a lecture helpfully entitled "How to Read the Constitution" (hint: it starts with "We"). You can find Justice Thomas's speech here (if you don't mind the Wall Street Journal cooties on your browser).

For me, the highlight of Justice Thomas's lecture is this remarkable sentence:

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up.

You may not have noticed, but this sentence is an amazing rhetorical construction.

To demonstrate the sleight-of-hand here and its power, allow me remove the specific content of the final two clauses (everything after the "--") and replace that content with general descriptions of each clause:

Let me put it this way; there are really only two ways to interpret the Constitution-- [my way] or [everything else].

Doesn't the choice become painfully clear? And note that this construction becomes even more coercive when [everything else] becomes equated with something as irresponsible-sounding as "make it up." Wow. We are clearly dealing with high-level legal reasoning here.

And it's fun! Behold the magic:

Let me put it this way; there are really only two ways to swim--backstroke or flail your arms and legs (rhythmically or not).

Let me put it this way; there are really only two sexual orientations--heterosexuality or fuck anything. (Wait, this one sounds familiar...)

Let me put it this way; there are really only two choices for dinner--lasagna or some combination of some subset of the rest of the matter in the universe.

But you get the idea... Kids--try your own at home!

From the Annals of Self-Comparison

What did Fosco do today? Blogged a little, read a bit, watered the flowers on on his balcony...

What did Fosco's college roommate David Lat do today? Well, for one thing, he ended up in a New York Times article...

Although, perhaps Fosco prefers his quiet semi-hermetic existence to pissing off powerful law firms.