John Snyder's Errant Thoughts

Enhanced Interrogation Techniques

Read this.

Apparently the phrase "enhanced interrogation techniques" as a euphemism for torture isn't new, but in fact originated in 1937 when it was coined by the Nazis. The techniques are the same, and Nazis were sentenced to death for using some of the same techniques that the Bush administration has approved.

One of my colleagues is fond of reminding people that "Hitler didn't think he was Hitler." Obviously Bush isn't Hitler, either. He probably doesn't think he's Bush. But what does it say when our current regime independently comes up with a verbatim identical phrase to defend the unconscionable as the Nazis used?

Two further points here:

(1) Bush and the neo-Cons like to think that they are so smart for coming up with all of these clever artifices and schemes to put one over on everyone else -- politicizing the US Attorneys, redefining torture, rigging the election process, etc, etc, etc -- as if they have hit on something that no one else has ever thought of. On the contrary, these are all very old tactics that most leaders have probably considered in the dark of night, then rejected after a moment's thought, on human decency grounds. Those who are drawn to this way of ruling tend to be grotesque monsters.

(2) I am constantly amazed that people are not more alarmed. People seem to think that dictators and thugs and authoritarians take over erstwhile peaceful and civilized societies by announcing, "hey, it's a beautiful day, everything's wonderful, how would you like to live under totalitarianism now?" And the people say, "Sure, that sound terrific!"

As I write this, I am suddenly conscious that the government is logging what I do and, very likely, putting me in a database for future use. Probably nothing will come of it because, by sheer numbers, it is unlikely that anyone will consider it worth the while to do anything about a blog that no one reads. But the fact that this thought crosses my mind is exactly what we should be worried about.

The Assault on Reason

In 1956, Nikita Khrushchev addressed the 20th Congress of the Soviet Union and gave his famous "Secret Speech" denouncing the atrocities of the Stalin era. After decades of iron-fisted, totalitarian rule, Khrushchev repudiated Stalin:

We have to consider seriously and analyze correctly this matter in order that we may preclude any possibility of a repetition in any form whatever of what took place during the life of Stalin, who absolutely did not tolerate collegiality in leadership and in work, and who practiced brutal violence, not only toward everything which opposed him, but also toward that which seemed, to his capricious and despotic character, contrary to his concepts.

Stalin acted not through persuasion, explanation and patient cooperation with people, but by imposing his concepts and demanding absolute submission to his opinion. Whoever opposed these concepts or tried to prove his [own] viewpoint and the correctness of his [own] position was doomed to removal from the leadership collective and to subsequent moral and physical annihilation.

Reading Al Gore's recent book, "The Assault On Reason," I could not help but think of Khrushchev's Secret Speech. None of the individual facts contained in this sweeping indictment of the present administration will be new revelations to those of us who have been paying attention: the lies about WMD leading up to the Iraq War, the illegal wire tapping, the rampant cronyism, the failure to take seriously the warnings prior to 9/11, the assault on science, etc....

What makes Gore's book remarkable is, first of all, the way Gore pulls together the various outrages over the past six years and conveys how complete the Bush assaults on our democratic institutions have been. (It is a sad commentary that the revelation of Bush administration abuses now comes at such a rapid-fire rate that any book attempting to catalog them is out of date before the ink is dry.)

This is not just a political attack. It is a wake-up call for Americans who think that Bush's conduct over the last six years has been "just politics." Ask yourself, if someone was going to subvert American democracy and institute totalitarian rule, how would they go about doing it?

Obviously, no one is going to run for president on the platform of ending democracy. A would-be dictator would to wrap himself in the flag of patriotism, create a culture of fear and hysteria, and methodically weaken the checks on executive power until what is left is an arrangement that bears no resemblance to the system we understood to represent the American system.

And that, Gore demonstrates, is precisely what has happened.

Making this all the more remarkable is the fact that the author is not Michael Moore or MoveOn.org; this is the former Vice President, a man who was a handful of stolen votes in Florida away from becoming President. When Al Gore says this about a sitting President, it means something:

The lie about a connection between al-Qaeda and Iraq was also the key to justifying the constitutional power grab by the president. And in the end, for this administration, it is all about power. As long as their big, flamboyant lie remained an established fact in the public's mind, President Bush was seen by the majority as justified in taking for himself the power to make war on his whim. He was seen as justified in suspending many civil liberties at his personal discretion. And he could continue to distort the political reality experienced by the American people.... If Bush and Cheney actually believed in the linkage that they asserted -- in spite of all the evidence to the contrary presented to them contemporaneously -- that would by itself, in light of the available evidence, make them genuinely unfit to lead our nation. On the other hand, if they knew the truth and lied, massively and repeatedly, isn't that worse? Are they too gullible or too dishonest. (Pg. 112-113.)

* * *

Gore attempts to put the Bush experience into historical context and make the case that Bush's ability to achieve such a massive incursion into previously settled Constitutional limitations, with what Gore sees as relatively little outcry, demonstrates that something has gone wrong with the electorate's ability and willingness to engage in reasoned discourse on public issues.

My quibble with the book is that Gore often forgets a very true statement that he makes in the introduction: "We often tend to romanticize the past, of course, and there was never a golden age when reason reigned supreme, banishing falsehood and demagoguery from the deliberations of American self-government."

Although I would have hoped for a quicker recognition of Bush's smoke and mirrors, which have seemed so painfully obvious, history teaches that every 30 years or so, things get very bad. Civil rights and liberties are violated, our democratic traditions are trashed, and eventually (agonizingly slowly, but surely nonetheless), the voters reach the end of their long rope and set things right. But again, it takes time.

Let's review the two most recent cycles. The Red Scare after World War II began in 1947 with the implementation of the federal employee loyalty program, House Un-American Activities Committee investigations, blacklisting, and so forth. It took seven years of this process running amok for Joseph McCarthy to finally overplay his hand. During that time, gross constitutional abuses took place.

More recently, there was Watergate and Vietnam. I mention these together because they were really part of the same story. We should not forget that, with Vietnam, our troop levels were over 500,000 in 1968 and remained over 300,000 from 1966-1970. The big escalation happened in 1965, and it wasn't until 1973 that the Paris Peace Accord effectively ended the war. Nixon ran roughshod over the Constitution essentially from day one, and it was not until 1974 that he was forced out of office.

Taking note of the fact that the really gross Bush administration abuses started in 2002, after the initial shock of September 11 provided an opening, and further noting that the Bush Administration enjoyed a window of time after September 11 where it was essentially immune from criticism (and a similar window after the Iraq War began), the 2006 election defeat for the Republicans and the firestorm of scandals, Congressional scrutiny, and disillusionment that has driven Bush's ratings into the low 30s seems to be about right on schedule, historically.

* * *

Let's agree, then, that there have been other times in history that demagogues have played to Americans worst instincts in an attempt to expand their power. I still think that Gore may be onto something in concluding that this particular adminstration has been unusually aggressive and grandiose and serious about subverting our Constitution and bringing about what Karl Rove described as a "permanent Republican majority," a phrase that too many of us shrugged at, not realizing that Rove was really talking about a dictatorship. (There is a truly disturbing reference in Gore's book to a time when Tom Delay enlisted the anti-terrorism people in the FBI and Homeland Security to track down Texas legislators, who had left the state in order to prevent a quorum for Delay's Texas congressional redistricting vote.)

When Bush is gone, we will need a president who understands our democratic institutions to fix the damage. I happen to think the Gore is the person to do it, and with this book, he seems to be signaling that he is going to step in.

The Democrats Are Cowards

I can't put it much better than Keith Olbermann, who lays out the Democrats for lacking the spine to stand up to a discredited president with a 32% approval rating. Here it is, if you care to watch. It's about seven minutes, and worth watching.

I really have nothing to say that has not been said by others. Politics is not like sports. If you're a Red Sox fan, you support the Sox because you want to see your team (i.e., the guys who happen to be wearing your favorite team's uniform) beat the other team.

With politics, you support the candidates on your team because, one supposes, you actually believe that when an important moment comes, they will do the right thing, or at least come closer to doing the right thing than the other team. That is why I was so irritated after 9/11 when I heard someone -- a rabid Bush hater -- say that she hoped that Bush would "really screw this up." Her reasoning was that if Bush screwed things up, the Republicans would suffer in future elections and more members of the Blue Team would get elected.

That misses the whole point. We wanted Gore to be elected in 2000 because we believed (correctly) that, when it mattered, Gore would do a better job than Bush. But the end goal, or the ultimate hope, was that we would have someone in the White House who would handle the situation wisely and well. Gore did not win, so we got Bush, and from my standpoint, I hoped for the best.

Obviously, Bush has been a disaster. People finally came around to recognizing this in November 2006, voting the Republicans out and sending the Democrats to do one thing: end the war. I worked the polls as a volunteer lawyer in Cleveland to help make sure voters were not disenfranchised. Lots of folks did as well, and helped in many other ways. But part of the deal was that the Democrats, if put in power, would give their best effort to stop the war.

The Democrats, under the weak and deplorable leadership of Harry Reid and Nancy Pelosi, seem to be afraid of their own shadows. They are terrified that if they stand up and actually do what they were sent to do, they will lose some popularity. Well guess what? Game day is today, not tomorrow. If you lose popularity, so be it. After all, what did you spend all these years building popularity for, if not to spend it when it matters?

That's not a rhetorical question, because I believe that among many Democrats, the answer to that question is not all that obvious. One problem with Democrats is that they tend to be more public-sector oriented, which means that you see fewer Democratic politicians who feel they have viable rewarding options outside the warm embrace of public life. That makes the Democrats particularly terrified of losing an election (and losing the best job they'll ever have). Thus, unlike Republicans, who are more likely to have other non-government options if they lose an election, Democrats tend to be more panicky and more risk averse.

There are plenty of left-leaning people out there who have succeeded in other walks of life, and who could run for Congress, serve, and actually contemplate a meaningful life even if defeated in the next election. Democrats need to recruit more of them. For now, I'm sick of these cowardly Democratic hacks who consider a lost election to be the end of the world.

Stunning Testimony from James B. Comey

James B. Comey, who was acting Attorney General in March 2004, gave absolutely remarkable testimony today concerning a very ugly incident that apparently took place in mid-March 2004 concerning disgraceful conduct of Alberto Gonzalez and Andy Card.  The incident is recounted in its full glory on DailyKos and TalkingPointsMemo.

The long and short of it was that Attorney General John Ashcroft was very sick at that time, and had been in the hospital for about a week.  Due to his condition, the powers of the Attorney General had been transferred to Comey.  At that time, Comey and Ashcroft had concluded that they could not certify the legality of the warrantless wiretapping program.  Gonzalez and Card (apparently with the knowledge and assistance of President Bush) tried to make an end-run around Comey, visiting Ashcroft in his hospital bed in an effort to take advantage of Mr. Ashcroft's incapacitated state and obtain his signature.

This incident nearly led to the resignation of Ashcroft, Comey, Robert Mueller (FBI Director) and others.

If this doesn't indicate something about the calibre of human being that Bush has working for him, I'm not sure what does.  These people are utterly ruthless.  They cannabalize their own.  January 20, 2009 (or impeachment) cannot come soon enough. 

What Does Tony "Get"?

On this week's episode of "The Sopranos" (May 13, 2007:  "Kennedy and Heidi"), Tony Soprano is high on peyote when he gazes across the desert and shouts, cryptically, "I get it!"  Peyote, the drug of the Indians, leads to Tony's epiphany.  I wonder if what Tony finally "gets" is the Ojibwe saying that Janice posted in Tony's hospital room early in Season Six (which was given an amount of airtime that seemed, at the time, out of proportion with its significance to the storyline):

"Sometimes I go about in pity for myself and all the while a great wind carries me across the sky."  -- Ojibwe Saying

On first glance, the Ojibwe saying seems to mean that our short-sighted self-pity blinds us to life's blessings.  (That's how Tony seemed to take it:  "every day is a gift.") 

But on a moment's reflection, what is so great about being carried across the sky by a great wind?  Being carried across the sky by a great wind means having no control over where one is going.  On the other hand, implicit in self-pity is the belief that things could have turned out differently and better.  It is mourning the loss of some happier fate that one at least reasonably believed was possible.  If we are all carried by a great wind that is beyond our control, self-pity makes no sense, because wherever that wind takes us (good or bad), it was destined to be so, and it could not been otherwise.

Which brings us back to Tony Soprano.  The death (murder) of Christopher Moltisanti at the fingertips of Tony has obviously led to introspection and questioning on Tony's part concerning whether he did the right thing, or whether there even is such thing as "right" and "wrong."  It has also led to an oppressive bout of depression, which even Christopher's Vegas girlfriend picked up.  "You are a sad person," she says.  So intense is the depression that it seems to have run through Tony's "rotten, putrid" genes and simultaneously affected A.J.

How appropriate, then, for Tony to find the darker, more depressing meaning in the Ojibwe saying.  And how convenient.  I don't know what Tony is going to do in the final three episodes, but I foresee Tony taking solace in the belief that his actions are not attributable to him, but rather the great wind carrying him across the sky.

Is "Entourage" Referencing "The Sopranos"?

Spoiler Alert -- Don't read if you haven't seen this week's episodes. Duh.

Watching "The Sopranos" and "Entourage" last night, I have to ask, was it just coincidence, or are the shows now referencing each other? Both episodes end with someone (Tony, Johnny Drama) wasted in the western desert, standing outside their cars, sun rising, shouting into the vast, orange, echoing expanse.

"Victory!" Hey, "I got it."

I would have written it off to a weird coincidence, but there was also the earlier scene in "Entourage" where a bird suddenly and unexpectedly crashes through the window while Drama is making eggs. Very out of character for Entourage, where there are generally no sudden moments of unexpected "action." I have to wonder if this was a nod to Christopher.

Recall a few seasons ago, when Christopher is being "made," there is a bird sitting perched on the window sill. Christopher interprets that as a bad omen, and in the seasons that follow, that haunting bird is occasionally mentioned. (I remember at least once Christopher mentions his bird to Adriana.) Now today, the day Christopher dies, suddenly Christopher's fateful bird makes a cameo (and itself dies) as a bad omen for Johnny Drama.

Okay, okay. I know what you're saying. A bird is a common literary device foreshadowing bad news. But since when does "Entourage" incorporate subtle literary devices? Entourage is all about hip cultural references, bling, snappy dialogue, and predictable, light, fun plot twists. A BIRD FLYING THROUGH THE WINDOW?

You can take the analogy even further if you like. Drama becomes infected with the bird's bad luck, which leads to absolutely abominable reviews for his TV show, which is premeiring. However, despite the bad reviews, Drama's show turns out to be a popular hit. Upon learning that his run of bad luck has apparently ended (perhaps the bird's power waned in its death), Drama unleashes his scream of triumph in the desert. Likewise, it seems the bird fully infected Christopher, and as a result, about three episodes ago, Tony could not win a bet. With the death of Christopher, Tony's personal ill-fated bird, Tony also gets his groove back, visiting the roulette table at the Bellagio, where he can't lose. "The Sopranos" being nothing if not ambiguous, it is less clear what Tony means when he screams, "I got it," there in the desert -- and I suspect it means several things at once -- but at least on the surface it seems also to be a scream of triumph at the rediscovery of good luck.

All of this means that I'm going to be watching much more closely for other cross-references. Sure, it is possible that it was a coincidence, but if not, the creators of "The Sopranos" and "Entourage" were comparing notes during the writing process and are strangely synched. That would be too weird, and too good to be true.

Musings About Privilege

Attorney-client privilege is the bedrock of what a litigation attorney does.

Currently sitting in the archives in the basement of my law firm are briefs, letters, memos, analysis, all of which I sweated over, agonized about, often at three in the morning. The clients I wrote for have paid handsomely for these writings. Some of them are pretty much run-of-the-mill. Others represent truly incisive and insightful work.

You will never see them. They are privileged and will never see the light of day. In truth, even if I were able to share them, they are mostly uninteresting to anyone but those who were in the midst of the case and appreciate the context. Indeed, some of this work represents effort dedicated to covering "just in case" contingencies that never came to pass, or exploring what turned out to be blind alleys. This work was probably never seen even by the client (though the client no doubt paid for it).

I mention this because of an experience I had recently, an experience that, due to privilege, I have to describe only very generally. I completed a litigation concerning a dispute among partners in a certain real estate development. The upshot was that my client bought out its partner and, now, is free to continue developing the project with full autonomy. I was touched by the enthusiasm of my client when he was talking about his plans for the development. No doubt it will make money, but more than that, my client's hard work will result in a tangible thing -- a finished property -- that represents his vision.

Part of the special satisfaction that I have about this case is the feeling that, in a small way, I contributed to this tangible project. Next time I am visiting the town where this project is located, I will make a special trip to see the project. I will look on the project as a physical manifestation of my work, not in the sense that my contribution was particularly significant in the larger scheme of things, but in the sense that I made a contribution nonetheless.

It is rare for a litigator practicing my kind of law to have something tangible to point to as a physical manifestation of his labors. It occurs to me that this is one of the hardest things about lawyering. Think about newspaper reporters; they have their portfolio of articles they can point to. Developers have buildings. Screenwriters have movies. Lawyers, on the other hand, have boxes of memos and forgotten letters, draft briefs, none of which is to see the light of day under penalty of disbarment.

I'm not whining. Lawyers know what they are signing up for, and we are paid well for what we do. No one should feel sorry for us. However, it bears mentioning that one of the most significant prices a lawyer pays is sacrificing tangible manifestations of one's life's work. It is something no one talks about, but it is a hidden cost of this line of work.

Julie on the Martha Stewart Show

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Sopranos: "Walk Like A Man"

"The Sopranos" episode of last night, May 6, 2007, entitled "Walk Like A Man" has deservedly gotten raves as the best episode of the second half of this final season.

Up to this point in the finale of the Sopranos, we have had:

• Soprano Home Movies
• Stage 5
• Remember When
• Chasing It

And while I have enjoyed each of these episodes, I was left feeling that the show was frittering away its final precious minutes with lengthy meditations on peripheral story lines.  (An episode dedicated to Vito's kid's many issues?  The Monopoly game up at the lake?)  Again, there was nothing wrong with any of these episodes, except that there were far more pressing questions going unaddressed while tangents were being pursued; questions including:

• Will Phil Leotardo finally avenge his brother?
• Will Christopher become the Boss, a rat, or go down in flames?
• Will Tony die?
• What will become of AJ?
• And most important, what ever happened to that Russian guy Christopher and Paulie left in the woods in South Jersey?

"Walk Like A Man" took some preliminary steps toward a final resolution of the fates of A.J. and Christopher, Tony's two "sons."  On the surface, with Christopher, it was a continuation of his long-running interal battle -- the mob vs. his dream of getting out; booze vs. sobriety; real violence vs. movie violence.  Once again, we watched with ambivalence as Christopher grabbed for the lifeline that was dangling right in front of him, the rope that could pull him out of the "Life" that he knows will destroy him.  And once again, at the last moment, Christopher pulls back and cuts off the lifeline.

We saw it in "Long Term Parking," when Adriana offers Christopher a way out (at the cost of turning rat and destroying Tony).  Christopher goes through an agonzing deliberation, which David Chase, to his credit, does not overplay.  In the end, Christopher rejects the lifeline and in the process signs Adriana's death warrant.

We see it again in "Walk Like A Man," with Christopher reaching out in his moment of crisis to J.T. Dolan, a true friend who seems to genuinely care for Christopher despite the unceasing abuse that J.T. receives for his troubles.  And once again, as he seems to come close to finding a way out, Christopher cuts the lifeline and murders J.T.

Has Christopher burned his final bridge?  Has he passed the point of no return?

As for A.J., the plot from "Walk Like A Man" opened up the possibility, for the first time, of A.J. actually following in Tony's footsteps.  We saw hints of this earlier in Season 6 when A.J. got caught by Paulie and Christopher trying to buy a gun to kill Uncle Junior, then dropped the knife when he visited Uncle Junior planning to kill him.  (Whatever happened with that, anyhow?)  However, A.J. has never been credible as a cold-hearted killer, nor does he have Tony's aggression or charisma.

This leads to an interesting side note.  Robert Iler was picked to play A.J. in 1997 when they shot the pilot.  Iler was 12 years old.  (Although the series premiered in 1999, the pilot was shot two years earlier.)  At that time, they did not know how large Mr. Iler would grow to be or what he would look like as a 22-year-old man (as he is now).  As it turns out, he is considerably smaller in stature and far less inherently fearsome than James Gandolfini.  I wonder if this has created difficulties for the Sopranos creators as they consider a plot that would make A.J. the hier-apparent to Tony.

Not that an A.J.-as-gangster plot is necessarily implausible.  A week ago I would have dismissed the thought out of hand.  However, "Walk Like A Man" was the first episode where we really see the range of Robert Iler as an actor, and it was impressive.  Is it possible that in the next four weeks, we could see A.J. evolve from the spoiled, shiftless, non-threatening character we have seen into a character who turns his inner rage outward?

Obviously, as a Gangster, A.J. would not be able to physically intimidate everyone the way Tony does.  That being said, "The Sopranos" has gotten by with its version of "good guy aim" for years.  Does anyone believe that a 70-year-old Feech LaManna would really win a fist-fight against two young landscapers?  Or that Paulie would win every fight he was in?  What's sauce for Feech and Paulie is sauce for A.J. as well.  Viewers may be willing to suspend disbelief.

After all, lest we forget, the Christopher Moltisanti who strikes fear in the hearts of those who cross him was once "Spider."

Dura v. Broudo

My article about Dura v. Broudo, the Supreme Court case on loss causation.

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