Tom Paxton’s We Didn’t Know


(The first time I  heard this, the Vietnam War was raging.  It was sung either by The Kingston Trio or The Chad Mitchell Trio.  It requires no imagination to substitute words like, “I guess we’ve  gotta’  drop those bombs if we wanna’  keep Iraqis and Afghanis  free.”  Or,  “Torturing prisoners is an Al Qaeda game and you can bet they’re doing the same.”    Citizens and policy makers  who stand in the way of  a just reckoning for those who ordered torture  are writing   verses for all our children, grandchildren and theirs.)

We didn’t know said the Burgomeister,
About the camps on the edge of town.
It was Hitler and his crew,
That tore the German nation down.
We saw the cattle cars it’s true,
And maybe they carried a Jew or two.
They woke us up as they rattled through,
But what did you expect me to do?

[Cho:]
We didn’t know at all,
We didn’t see a thing.
You can’t hold us to blame,
What could we do?
It was a terrible shame,
But we can’t bear the blame.
Oh no, not us, we didn’t know.

We didn’t know said the congregation,
Singing a hymn in a church of white.
The Press was full lf lies about us,
Preacher told us we were right.
The outside agitators came.
They burned some churches and put the blame,
On decent southern people’s names,
To set our colored people aflame.
And maybe some of our boys got hot,
And a couple of niggers and reds got shot,
They should have stayed where they belong,
And preacher would’ve told us if we’d done wrong.

[Cho:]

We didn’t know said the puzzled voter,
Watching the President on TV.
I guess we’ve got to drop those bombs,
If we’re gonna keep South Asia free.
The President’s such a peaceful man,
I guess he’s got some kind of plan.
They say we’re torturing prisoners of war,
But I don’t believe that stuff no more.
Torturing prisoners is a communist game,
And You can bet they’re doing the same.
I wish this war was over and through,
But what do you expect me to do?

Words and Music by Tom Paxton

Torture Photos: Is a public release necessary?


It depends on our purpose.

In October 2003,  The American Civil Liberties Union (ACLU)  sent  a Freedom of Information Act (FOIA)  request to the Departments of Defense,   Homeland Security,  Justice  and several  other Bush Administration agencies.  The request was for  documents related to the US Government’s role in the torture and/or rendition of individuals in its custody.  The ACLU claimed,  “[The  Government has] failed to address the numerous credible reports recounting the torture and rendition of Detainees.  Nor have they explained what measures, if any, the United States has taken  to ensure compliance with its legal obligations with respect to the use of torture and the infliction of cruel, inhuman or degrading treatment or  punishment.  [And] to determine whether the United States is honoring its obligations under domestic and international law….”

Bush Administration officials refused to release the “torture photos” because, according to them,  the photos would inflame the Middle East, put unidentified individuals, groups and in-theater military personnel at risk and would run afoul of  international laws  prohibiting the public parade and humiliation of war prisoners.

In September 2004,  the US District Court in the Southern District of New York (SDNY) stated,  “Congress enacted FOIA to illuminate government activities.  The law was intended to provide a means of accountability, to allow Americans to know what their government is doing….  Yet, the glacial pace at which defendant agencies have been responding… shows an indifference  to the commands of FOIA.”  The judge also noted,  “As of today, eleven months later, with small exception, no documents have been produced by [the Department of Defense, et al].”

The District Court ordered the public release of  the photos after viewing a representative sample in camera (e.g. in the privacy of the Judge’s chambers).  Since then, the Federal judiciary has consistently ordered that the photos and other pertinent  documents be  redacted and released in compliance with national and international laws that prohibit the public humiliation of prisoners.

In August 2006,  the United States Court of Appeals for the Second Circuit upheld the SDNY’s order to release the photos after  noting that the Bush Administration had interpreted certain legislative amendments to FOIA as “a diffuse and nebulous authority for keeping inflammatory information secret (though, curiously, only inflammatory information in law enforcement files).”  The Court continued, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”

On April 23, 2009,  the Obama Justice Department informed the Court that the Department of Defense would release its photos by May 28, 2009.

On May 13, 2009, nearly six years after the ACLU issued its first FOIA request, President Obama’s Justice Department informed the Court that the President had changed his mind,  “…upon further reflection at the highest levels of Government, the Government has decided to pursue further options regarding that decision…”  including a possible appeal to the US Supreme Court by June 9, 2009.

Press Secretary, Robert Gibbs expressed President Obama’s concern that release of the photographs would inflame the Middle East and increase the threat to US personnel serving in Iraq and Afghanistan.  The Obama team does not believe the Bush Administration adequately portrayed those risks in its Court filings and appeals.

Yesterday, The Huffington Post carried this ACLU response, “These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib….  Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

The U.S.  Federal Rules of Evidence state, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice… or needless presentation of cumulative evidence.”  In short,  not all relevant evidence is equal or admissible. A judge must determine whether its value as evidence substantially outweighs its potential harm.

There’s also a notion in civil societies  that an inflamed person is unlikely to be judicious.

Is it reasonable to believe that “The Amorphous Middle East” would be inflamed by a 24-7  media blitz of photos in which an occupying military force tortures citizens of  foreign lands?  Will “The Amorphous Middle East” see the photos as evidence  of the  Bush Foreign Policy, distinct from Obama’s?  And,  will that Middle East view efforts to hide the photos as a continuation of Bush policies?

One friend I spoke with said she wants the photos disseminated publicly. “Maybe pictures will  make Americans feel shame.  Maybe pictures will provoke an American conversation about who we really are and what ethics we really believe in.  Maybe it’ll force the politicians to really do something.”

Maybe;  but I doubt  the photos will stimulate the American public to a greater outrage.   Many of the people I know have been outrage- saturated by a plethora of criminal actions and a dearth of incarcerations.  Thankfully, the ACLU has a ton of arrows in its quiver.

Germany was shamed after World War I and a handful of years later we fought World War II.   We fire-bombed Germany during World War II and held them to account at Nuremburg. Germany is now home to one of the world’s fastest growing populations of Skinheads and other xenophobes.  Whether or not  cause and effect can be proved  in those examples,  they tell us  that shame is not a cure-all.

Our purpose, as opined by  the United States Court of Appeals for the Second Circuit, should be to deter “future abuse of prisoners”  and to ensure, as the ACLU demands,  that  “the United States is honoring its obligations under domestic and international law….”

We have a system of justice intended to do just that.  We place the accused on trial.  We hear the evidence against and for  them.  We release or punish them.  As a matter of course,  we  parade our convicted felons publicly.  We hope that their shame will deter others – will demonstrate our adherence to the rule of law.

With that in mind, whether the photos are released publicly or viewed in camera or by a jury,  the real issue is not which evidence will be presented (there’s tons) but rather, will Donald Rumsfeld, George Bush, Dick Cheney, et al stand in the dock.  Will they be paraded publicly to cleanse rather than inflict shame?

A public trial of those who conceived and implemented the torture policy would stimulate a discussion about the American ethic and reassure the world of our honorable intention to uphold our ideals. Without that,  publishing the photos is just more Bread & Circuses and I fear, provocation.

******

Legal documents at ACLU website

Obama Picks: Holder & Geithner


Attorney General Nominee  Eric Holder, Separation of Powers and  The Citizen’s Advocate. The United States Constitution establishes three independent branches of  government which balance and check each other’s power.  The Executive Branch (The President and his appointees) is charged with executing  and enforcing laws enacted  by Congress or   adjudicated  by  the  U.S. Supreme Court.

The U.S. Attorney General (AG) is  “The People’s Attorney,”   a watchdog  charged with ensuring that  the Executive Branch functions  consistent with Federal law  and within the framework of  The U.S. Constitution.  In the past, when the  AG   abdicated this obligation, Writs of Mandamus or the  Administrative Procedures Act (APA) have been used to force the AG to  (1) investigate the Executive’s actions or inactions or, alternatively,  (2)  to appoint an independent investigator.  In  recent years,  as the “Imperial/Unitarian Presidency” grew, these tools  of citizen redress have  been more frequently denied by  courts and Administrative  Law Judges.  There’s an underlying assumption that it’s better to countenance questionable Executive actions than it is to risk overstepping  the Separation of Powers.

As demonstrated by  Bush’s   Presidency,   an independent AG and Justice Department are   essential reins on  a run-away Executive.  The AG is often The People’s last recourse for achieving  administrative and judicial intervention.  In that light,  citizens should welcome Senator  Arlen Specter’s questioning (R-Pa.)  of  Attorney General-nominee Eric Holder about his  involvement in the Marc Rich pardon scandal.  Was Holder so dependent on President Clinton’s good graces that he abdicated  due diligence and independence for personal ambition?  In our current situation (an extraordinarily popular President-Elect and  a Democratic-controlled Congress)  it is especially important that the People’s watchdogs are  motivated by law and ethics not by personal aggrandizement.  According to Holder,  “The duty of the AG is to defend statutes…  unless there are compelling reasons [not to].”

In today’s  hearing, Senator  Orrin Hatch asked Holder (who has expressed opposition to  rendition, torture and warrantless wiretapping)  if  Holder would pursue  prosecutions of officials who approved extraordinary rendition and warrantless wiretapping of U.S. citizens.  In reply,  Holder stated,  “No one’s above the law  We will follow the evidence, the facts, the law and  let that take us where it  should.   We don’t want to criminalize policy differences…between the outgoing administration and the incoming Obama administration.  I want to know more about what lead to these decisions.”

In a loose citation of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Holder further stated, “[The President’s power is] weakest … where Congress has indicated something contrary to what  the President wants to do.”  In other words,  where Congress has expressed its will in legislation,  the President is obliged to act within the parameters established.  (Of course, Congress cannot usurp powers granted the Executive by The Constitution.)

It seems clear Holder understands his Constitutional obligations to uphold the law and to prosecute its corruption.  We should listen carefully to  Senator Specter’s questions and to  designee-Holder’s answers.  They may be the only additional clues we get to the stamina of  designee-Holder’s  ethics and independence.

Timothy Geithner, Citigroup & the global economic crisis. See  “Note 4”  below.  The Alternet-Politico article provides a good overview of Geithner’s involvement in the creation of our current global economic crisis and should be read in its entirety.

Several experts on finance,  mortgage-backed securities, hedge funds, bankruptcy, SEC regulations and lack of enforcement, arcane investment tools and the  TARP  have testified before Congress concerning our global economic crisis.  (See CSPAN archives.) Their grasp of the  factors affecting  an economic recovery was comprehensive.

As  the former president of the New York Federal Reserve Bank, Timothy Geithner reduced  regulations and consequent oversight of Citigroup, et al.

Is he   the best person to develop the architecture of  our economic recovery?  Has he demonstrated a capacity for  predicting the effect of government interventions/pullbacks on financial  markets?   What  unique expertise does he possess beyond having overseen the building and crashing of an economic  house of cards?  What was the nature of his relationship with Citigroup and Robert Rubin? (Rubin is a past-Treasury Secretary, Geithner’s former boss and  was a  “special consultant” to Citigroup during its implosion.  He is also one of  President-elect Obama’s economic advisors.)

NOTES  &  CITATIONS

1.    Administrative Procedures Act:    http://usgovinfo.about.com/library/bills/blapa.htm

2.    U.S. Supreme Court and Writs of Mandamus which I’m including because it’s a tool too few of us know about:   (Per Justice Ginsberg in 2004,  No. 03-475″…an applicant seeking a §1361 mandamus writ must show that “the [federal] defendant owes him a clear, nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (emphasis added). No §1361 writ may issue, in other words, when federal law grants discretion to the federal officer, rather than imposing a duty on him. When federal law imposes an obligation, however, suit under §1361 is not precluded simply because facts must be developed to ascertain whether a federal command has been dishonored. Congress enacted §1361 to “mak[e] it more convenient for aggrieved persons to file actions in the nature of mandamus,” Stafford v. Briggs, 444 U.S. 527, 535 (1980), not to address the rare instance in which a federal defendant, upon whom the law unequivocally places an obligation, concedes his failure to measure up to that obligation. http://www.law.cornell.edu/supct/search/display.html?terms=mandamus%20attorney%20general&url=/supct/html/03-475.ZD.html

3.   Bloomberg has a good overview of  the concerns raised by Holder’s nomination:  http://www.bloomberg.com/apps/news?pid=20601103&sid=afLrs7qPiu2o&refer=us

4.   Alternet & Politico have this overview of Citigroup, Timothy Geithner, Robert Rubin  & the global economic  meltdown:  http://www.alternet.org/workplace/119871/how_citigroup_unraveled_under_geithner%27s_watch/?page=1