As I previously reported, Stephen Yagman’s sentencing was supposed to be yesterday, November 5. I didn’t see a word about it in the local rag, so I wrote Patrick Range McDonald, who has been following the matter closely. He told me the sentencing has been delayed again, until November 19.

Mark your calendars.

[Guest post by DRJ]

The Times of India reports that President George W. Bush forced Pakistan’s President Pervez Musharraf to back down from earlier statements delaying January’s democratic elections:

“US President George Bush on Monday turned the heat on his “tight” buddy Pervez Musharraf to force the Pakistani dictator to back down from his confrontation with the country’s civil society and restore the modicum of democracy he had allowed.

The political pressure, backed by a financial heft that saw the feeble Pakistani economy shudder at the first sign of American muscle, appeared to yield some immediate results. Musharraf signaled through his factotums that he would stick to January election timetable, but he left the uniform issue unaddressed.

Bush stepped into the picture more than 48 hours after the turbulent events began to unfold in Pakistan, using a White House photo-op with the visiting Turkish prime minister to address the issue that’s leapt to the front and center of US foreign policy concerns.

He told reporters, who were alarted [sic] hours ahead that he would speak on Pakistan, that he “expected Musharraf to hold elections as soon as possible and also remove his military uniform.”

Accompanying President Bush’s public entreaties, representatives were busily working the back channels to make the consequences clear if Musharraf refused:

“While the US President was making these remarks, various administration spokespersons fanned out to warn Musharraf about the consequences of his actions, especially on the economic and military stability of Pakistan, which survives largely on US dole.

A State Department spokesman disclosed that Pakistan had received nearly $11 billion in US aid since 9/11 and said an inter-agency and inter-departmental assessment was underway to examine possible aid cuts in keeping with US legislative obligations.
***
Such financial pressure appeared sufficient to spook the military strongman presiding over a dodgy $120 billion economy heavily dependent on foreign aid. The morning had already seen the Karachi stock market plunge by 5 per cent, its biggest fall in 17 years.

By late afternoon US time, while Musharraf wasn’t exactly on his knees, there were some signs of a roll back. Musharraf’s mouthpiece Prime Minister Shaukat Aziz, who had said the previous day that elections could be deferred for as long as a year, reversed course and said they would be held as scheduled.”

Sounds like the old carrot and stick routine. Sometimes the old ways work. I hope they do this time but I doubt President Bush will get credit for supporting democracy.

Update: This report claims Musharraf will end emergency rule in 2-3 weeks.

— DRJ

[Guest post by DRJ]

Utah voters cast ballots today on Referendum 1 to decide if Utah HB 148 and HB 174 will be implemented as planned. HB 148, as amended by HB 174, was passed last Spring and it authorizes universal vouchers – in the form of state-wide scholarships ranging from $500 to $3000 each – to all Utah public school students.

A lengthy analysis of the legislation by the Utah Senate staff is posted here.

The Utah ACLU and teacher/public interest groups oppose the voucher program as a poor use of public funds that would be better spent on public schools. Conservative groups like the Heritage Foundation hailed Utah’s voucher program as revolutionary. Clayne L. Pope, a BYU economics professor, also endorsed Referendum 1 and the voucher program in last week’s Utah Daily Herald that concluded with this paragraph:

“Referendum 1 is the most important vote of recent memory. Our decision should be based on rational, fair arguments. If you doubt the ability of parents to act in the best interest of their children, you may want to vote against vouchers. If you believe the increase in private schools will further fragment Utah society, you may consider a negative vote. But if you do vote against Referendum 1, you should be aware that you are voting for the status quo in Utah education as well as a somewhat higher future tax burden. But please ignore the bogus arguments that educational resources will decline with vouchers or that increased competition will harm Utah education. Even in a political campaign, educators have a moral duty to educate rather than brainwash.”

Pre-election polls indicated the referendum would not pass and the very early returns bear that out.

— DRJ

Posted by WLS

Maybe Its Hillary?

Maybe its not with a man?

It would go along ways towards explaining a lot of things.

Not that there’s anything wrong with that.

Link

Hey — the source dimes out Michael Musto of the Village Voice as the original source and rumor monger.  If he’s good enough for Olbermann, how can the Dimocrits complain?

POSTED BY WLS 

There are several related discussions going on across various threads connected to this question.  So, lets just bring them all together here.

But, lets give ourselves some context.  Here is how “torture” is defined in 18 USC Sec. 2340:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

       (A) the intentional infliction or threatened infliction of severe physical pain or suffering;

       (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

      (C) the threat of imminent death; or

      (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality….

Now, lets elevate the discussion by taking a lot at two articles over the last couple days that both portend to answer this question — Stuart Taylor’s piece out yesterday in the National Journal, and an Op-Ed today in the WaPo from the former General Counsel of the Navy and a former State Dept. lawyer.  You tell me who gets the better of the debate:

From Taylor — 

But, one might reasonably ask, isn’t torture by CIA interrogators already a crime? And isn’t waterboarding a form of torture? The answer to the first question is yes, under a 1994 criminal law implementing the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The answer to the second question is more debatable.

Of course, being strapped to a board with a cloth over one’s face and enough water running over one’s nose and mouth to create the sensation of drowning sounds horrible and has been deemed illegal in various contexts by past administrations. But not every interrogation practice that sounds horrible or has been deemed illegal in some contexts clearly meets, in all contexts, the vague but narrow definitions embedded in the 1994 ban on “torture,” or in the December 2005 McCain amendment’s ban on “cruel, inhuman, or degrading treatment or punishment.”

The 1994 law defines torture as including only practices “specifically intended” to inflict “severe physical … pain or suffering” and certain other practices that cause “prolonged mental harm” (emphasis added). Under this definition, deliberately inflicting pain that is not quite “severe,” or mental harm that is not quite “prolonged,” is no crime.

To be sure… the definition is certainly narrow enough to leave room for doubt whether it would be torture to waterboard a high-level terrorist for, say, 15 seconds….

Nor is it clear that all forms of waterboarding violate the McCain amendment’s provision specifying that the ban on CIA use of “cruel, inhuman, or degrading” treatment (called “CID”) extends worldwide. The amendment, passed amid much discussion of waterboarding, limited military interrogators to the list of relatively mild, traditionally approved interrogation methods in the new Army Field Manual, which prohibits all physical coercion.

But Congress quite deliberately chose not to limit the CIA to those methods, and thus tacitly gave the CIA approval to use unspecified forms of physical coercion. Moreover, Congress defined CID as limited to forms of coercion that would violate certain provisions of the Constitution, which the Supreme Court has held to prohibit only practices that “shock the conscience.” The case law suggests that whether various interrogation practices shock the conscience depends on the importance and urgency of the information likely to be obtained and “exact analysis of [the specific] circumstances.”

Note that Taylor takes care to look at the specific language of the LAW to determine if particular conduct might be considered to be in contravention of the LAW, and comes up with very little of substance thanks to the failure of the legislature to allow itself to be pinned down.  And Taylor says that’s exactly the way Congress wanted to leave it — it had no interest in clarifying the point:

The technique, called “waterboarding,” involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress’s penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

 Lets now consider the Mora and Shattuck Op-Ed washington post today: 

The question of whether waterboarding constitutes torture is a no-brainer. Our nation and many others have recognized for decades that it does. One doesn’t have to have been “read into” the details of a classified program, as President Bush has suggested, to reach a judgment about this interrogation technique. Common sense is the only tool needed to understand that inducing the sensation of drowning — i.e., of dying — is torture.

That’s the first paragraph, and looking as hard as I could to find some, this is as close as these two lawyers get to even mentioning a statute or statutory language.  Frankly, I’d be embarassed to put my name on an Op Ed dealing with an important legal subject with such meaningless and shallow “reasoning.” 

What the overlook is the fact that many statutes, state and federal, define crimes which can be descriptively captioned with a single word.  Homicide.  Rape.  Robbery.  Racketeering.  Fraud.  Treason.

But those words are meaningless in the absence of the statutory definitions in the statutes which describe what ACTIONS constitute the elements of each crime.

“Torture” 

Saying some act is “torture” is useless unless the nature of the act is compared to the prohibitions in the statute. 

Since Mora and Shattuck made no effort to do that, we in the business of real lawyering refer to such an event as a substantive default.  The could have tried, but they didn’t.  We’d at least have something to argue about had they tried.  Rather, they rely on “its a no-brainer” requiring only the application of “common sense.”

I going to write that down so I remember it the next time I’m asked to explain in the Ninth Circuit why there was sufficient evidence that the defendant had committed the crime for which I had won a conviction.

[Guest post by DRJ]

It looks like there will be a new Governor in Kentucky and a change of party. As of 8:30 EST, unofficial election results show incumbent Governor Ernie Fletcher (R) trailing former Lt. Governor Steven Beshear (D) with well over half the precincts reporting:

“County Statistics
Total Counties: 120
Counties Reporting: 91
Counties Complete: 71

Precinct Statistics
Total Precincts: 3,543
Precincts Reporting: 2,524
Precincts Complete: 71.2%

Voter Statistics
Total Registered: 2,840,898
Total Voted: 736,224
% Voted: 25.9%

GOVERNOR/LT.GOV ELECTION RESULTS
Candidate Party Votes Overall %
Beshear & Mongiardo D 442,649 60.1%
Fletcher & Rudolph R 293,575 39.9%”

Beshear held a significant lead in pre-election polling, probably due in part to Fletcher’s indictment last year:

“Fletcher, elected in 2003 on a promise to “clean up the mess in Frankfort”, was indicted a year ago in an alleged scheme to reward political supporters with protected state jobs. Fletcher called the indictment a political witch hunt and the indictment was dismissed in a negotiated settlement with prosecutors.”

It looks like the GOP needs some ethics lessons.

Update 1: The AP has called this for Beshear. He leads Fletcher 58.9% to 41.1% with over 90% of the precincts reporting.

Update 2: Unofficial results from the Kentucky Secretary of State’s website with 99.9% of the precincts reporting –

GOVERNOR/LT.GOV ELECTION RESULTS
Candidate Party Votes Overall %
Beshear & Mongiardo D 619,654 58.7%
Fletcher & Rudolph R 435,857 41.3%

By the way, Haley Barbour is expected to win re-election as Mississippi’s Governor.

— DRJ

[post by Justin Levine] 

From page 1, section 1 of the L.A. Examiner dated September 1, 1952:

Las Vegas Rules Faisal Too Young to Gamble, Drink

LAS VEGAS, Nev., Aug. 31, – (INS) – Monarch or no monarch, King Faisal II of Iraq is only 17 years old and, under Nevada law, will not be able to drink or gamble while in Las Vegas.

King Faisal is due in the Nevada city Tuesday for a tour of Hoover Dam.

In connection with his stay, a Las Vegas hotel owner asked Dist. Atty. Roger B. Foley whether the young ruler, traveling under diplomatic immunity, would not be bound by Nevada law.

Foley gave a short and conclusive answer: “King or no King, he can’t gamble or get a drink because he’s under age!“

My…how the times have changed.

[Though admittedly, Vegas casino clubs have generally been stricter in enforcing drinking laws than the Hollywood club scene today.]