The mystery of the non-flushing electronic toilet

Drawing to an Inside Flush: a tale of two toilets – by Steve Mirsky

In early August a short item crossed my desk about troubles on a movie set in Mumbai, formerly known as Bombay. Actors and crew were trying to film a scene in a public restroom for the Bollywood blockbuster Keep at It, Munnabhai. But when the actors walked past the autoflush urinals, they inadvertently set off the sensors. The water would noisily flow, and the scene would go down the drain. "At one point, with so many unit members inside the loo, all the flush sensors went berserk and started flushing simultaneously," recounted Raju Hirani, the film's director, according to the Associated Press. "We actually had to vacate the loo briefly to stop the urinals from flushing."

The flushing toilets of Mumbai (officially ranked as the 14,287th Wonder of the World, by the way, just behind the Hanging Gardens of Piscataway but before the Colossus of Killiecrankie by the A9 road) took me back to my own misadventure with automatically flushing toilets. This escapade took place at personal computing's headwaters, the headquarters of Microsoft.

The year was 1997: Researchers publicly announced the existence of Dolly the cloned sheep, The Simpsons passed The Flintstones as the longest-running animated television series ever, and newfangled autoflush toilets were helping America stay hygienic. It was a heady time.

I was at the annual meeting of the American Association for the Advancement of Science, held that February in Seattle. Journalists attending the conference were also invited to visit Microsoft near Redmond. So I went and inevitably had to go. I left a lecture (which I recall was about the ongoing efforts to create reliable voice-recognition software, just to give you an idea of the scope of that still unsolved problem) and wandered until I found a bathroom. I entered, put the seat up and proceeded as usual. After which, being committed to the commonweal of my fellow fellows, I tried to flush. And was thwarted at every turn.

While searching in vain for a handle or button or even dangling chain, I noticed a small, dark rectangle in the middle of which was a luminous red dot. I knew then that I was in the presence of electronic technology.

Clearly, this object was a sensor designed to automatically flush the toilet once the end user zipped away. And yet no flush would gush, no surge would purge, no swirl unfurled. I refused to leave the room before disposing of all the evidence, so I began a meticulous debugging analysis. And through a careful consideration of the geometries, relative positions and functions of all the objects in the setup, I concluded that the sensor had been located in a place where it could be blocked by only one thing--the upraised seat. With the seat up, the system was convinced that a request was still being processed. So I put the seat down.

That simple act, the savior of millions of marriages, solved the problem. What we used to call "the electric eye" suddenly was alerted to the fact that the task was complete. Water began its flow to the sea, and another wee aliquot of processed caffeine started its journey to Puget Sound.

As I washed up, I reflected that the situation at Microsoft was probably explicable in one of two ways. One possibility was that whoever installed the componentry had used state-of-the-art motion-sensor technology along with deep ergonomic theory and application to trick men into putting down the toilet seat. The other option was that they had accidentally cobbled together a Rube Goldbergian arrangement that in effect replaced the old-fashioned toilet-seat handle with the seat itself. As a Windows user who has to click "Start" to turn my computer off, and as a man who knows that most men wouldn't try all that hard to flush in the first place, I'm betting on the latter.

If only Israelis could treat Palestinians like they were human beings, and vice versa, maybe there'd be no more big problems on earth

Why Hamas Resists Recognizing Israel
Viewpoint: The West is betting that continued Palestinian misery will force Hamas leaders to recognize Israel. But the strategy is as misguided as it is cruel
By TONY KARON (from Time Magazine)

Palestinian Muslims are currently joining the faithful the world over in denying themselves food between sunrise and sundown. But while most Muslims elsewhere break their Ramadan fast with sumptuous iftar meals, those unfortunate enough to live in the West Bank and Gaza are finding that they have less and less to put on the table come nightfall. That's because they remain under a financial siege imposed by Israel, the U.S. and Europe, in the hope of forcing Hamas, the Palestinian ruling party, to recognize Israel. The premise of the siege strategy appears to be that by increasing Palestinian misery, domestic pressure will mount on Hamas to submit or quit.

But such collective punishment may be as misguided as it is cruel; even if it did work, any "recognition" achieved this way would mean little in the pursuit of peace. An authoritative Palestinian polling organization last week released telling findings on Palestinian public opinion in the West Bank and Gaza . It found 54% of voters dissatisfied with Hamas's performance in government, the figure rising to 69% when it came to financial matters such as payment of salaries. Only 38% would vote for Hamas in an election now. But when asked whether Hamas should submit to the Western demand that it recognize Israel, 67% said no.

Clearly, it's not simply some extreme Islamist fringe that favors withholding recognition — it's a majority consensus that includes many of the voters of President Mahmoud Abbas's own Fatah party. In part, as Israeli commentator Danny Rubinstein notes , that reflects a widely held belief among Palestinians that "Yasser Arafat and the PLO recognized the State of Israel in the Oslo agreement and what did they gain from that? Only suffering and misfortune." In fact, as Rubinstein notes, the settler population in the West Bank actually doubled during the Oslo years.

Even the Arab League proposal that Abbas is demanding Hamas accept as the basis for a unity government offers only conditional recognition — the Arab states would normalize relations with Israel if it agrees to withdraw to its 1967 borders. Hamas likes to dodge the issue by pointing out that Israel has no intention of doing that.

The question of recognizing Israel is difficult for Hamas or any other Palestinian organization, ultimately, because of the meaning of Israel in the Palestinian national story. In the Western and Israeli narrative, Israel's creation is seen as redress for centuries of Jewish suffering in Europe culminating in the Holocaust. In the Palestinian and Arab narrative, Israel's creation meant the violent displacement of hundreds of thousands of people from their homes and another Arab humiliation at Western hands. So, while May 15 is celebrated by Israelis as Yom Haatzmaut (independence day), the Palestinians mark the same day as the somber anniversary of Al-Nakbah (the catastrophe), the moment when hundreds of thousands of Palestinians lost everything.

The idea of the triumph of one people being the tragedy of another is eloquently captured in Sandy Tolan's book, The Lemon Tree — essential reading for anyone seeking to understand the difficulty in resolving the Israeli-Palestinian conflict. Tolan chronicles the true story of Dalia Eshkenazi, whose family flees post-Holocaust Bulgaria in 1948 to live the Zionist dream of building a Jewish state in the Holy Land. The new Israeli government provides them with an abandoned Arab house in the town of Ramla, in which she grows up. One summer morning in 1967, she's sitting in the garden near the old lemon tree, when Bashir Khairi knocks on the gate. Khairi is the son of the man who planted the lemon tree; he was born in the house and lived there until age 4, when he and his family, and hundreds of others, were forced onto buses by Israeli soldiers and driven to the West Bank, where they have lived as refugees ever since. The fraught and complex friendship that ensues between Dalia — a committed Zionist who wants justice for the Palestinians — and Bashir, a Palestinian militant who insists on his right of return to his home, allows for a rare frank dialogue based on mutual respect and an honest acknowledgment of the past, and of the difficulty of resolving the present. There's no happy ending or resolution, but their mutual recognition offers some sort of hope.

It's the clash of narratives described by Tolan that ultimately fuels the controversy over Hamas recognizing Israel. Hamas's dramatic election victory came precisely because the Palestinian electorate judged Fatah to have failed. To simply demand, as Israel and the Western powers are doing, that Hamas now echo Fatah's symbolic recognition of Israel and renunciation of violence is pointless. Fatah recognized the State of Israel only because it had become clear to them that Israel was an irreversible historical fact. But that certainly did not stop Fatah's rank and file from taking up arms during the intifada that began in September 2000. Ask Mahmoud Abbas or any other moderate Palestinian leader whether they would rather Israel had not come into being in 1948, and there can be no doubt of the honest answer.

Many intelligence professionals eschew torture because they know that it tends to yield the answers that the suspect thinks his interrogators want to hear — not necessarily the truth. In some respects, there may be a similar effect in trying to throttle the Palestinians into submission. It's not inconceivable that at some point Hamas might find a formula for recognizing Israel in order to put food on Palestinian tables. But such a recognition would speak more to the boot on their necks than to any change in their hearts.


2. Avoiding the essential issues in Palestine -- by Rami G. Khouri (from Beirut’s Daily Star

Sometimes wishful thinking dominates rational hard work. This is probably what is going on with the expectation that a Palestinian national unity government will be formed any day now, comprising Hamas, Fatah and some technocrats and respected independents. This has already generated speculation about the possibility of breaking the diplomatic stalemate with Israel, and ending the American-European-Israeli boycott and economic sanctions against the present Hamas-led government. We should be clear about what this process is all about. It is emphatically not a self-generated Palestinian national step forward on the road to a coherent, consensus policy on domestic governance or relations with Israel. That is unfortunate, because the Palestinians need, and are capable of, defining their national priorities, agreeing on policies to achieve their goals, and mobilizing public opinion to either negotiate peace with Israel or resist it effectively. This is not what is happening.

Rather, the national unity government being contemplated is a show of Palestinian weakness, vulnerability and irresoluteness. It is largely a desperate response to the Israeli-American-European financial embargo that is slowly starving the Palestinians. To avoid death by strangulation and malnutrition, the Palestinians must practice diplomatic submission and subservience to Israeli-American positions. In return for a resumption of aid and normal diplomatic contacts, the Palestinians must meet the three conditions that were set after the Hamas election victory in January. The Middle East "Quartet" established those conditions as: recognition of Israel's right to exist, renunciation of violence, and recognition of previous peace accords with the Israelis.

These are reasonable and logical demands; but they are made unreasonable and illogical by being unilaterally imposed on the Palestinians in a context of siege and starvation warfare. The Palestinians are responding in a way that will not work. They are trying to meet the three demands indirectly, by implication and insinuation, while not meeting them explicitly. The Palestinian government's agreed national political platform affirms the 2002 Arab summit peace plan. This plan offers recognition and coexistence to Israel, if it returns all lands occupied in 1967 and resolves the Palestine refugee issue on the basis of UN resolutions. Israel has always ignored and disdained the 2002 Arab offer, and the US never took serious action to advance it, yet the Palestinians suddenly expect it to open doors. Starvation-induced desperation is an ugly sight.

This waste of time and massive deception deceives nobody. It neither responds to the Quartet demands nor offers any hope of a diplomatic breakthrough to a negotiated peace. It is not even certain of resuming financial aid to the Palestinians, as the ongoing US-Israel-Europe debate reveals. As a forced response to inhuman strangulation by the US and Israel, the Palestinian national unity government only perpetuates a low quality American-Israeli-Palestinian tradition of dancing around the tough decisions that need to be made, without grasping them. This always turns into a dance of death on both sides, as we witness today.
http://www.dailystar.com.lb

The main problem with this process is that it remains a unilateral one - with Israel imposing its position on the Palestinians by force, and the US and Europe siding with Israel. The three reasonable demands made of the Palestinians are one-way dictates, which become divisive rather than constructive. The Palestinians have a right to know what they get in return for meeting these three demands, such as parallel Israeli compliance with international norms of reasonable conduct. This includes Israel's uprooting rogue colonies and settlements, ending expansion of official colonial-settler communities, stopping land expropriations, releasing jailed officials, and ending assassinations of Palestinian militants and civilians. Now that's a deal worth considering, were it ever to be offered.

Instead, the Palestinians are offered only a possible resumption of some financial aid, and a meeting between Palestinian President Mahmoud Abbas and Israeli Prime Minister Ehud Olmert. It's hard to think of a more dysfunctional and unpromising diplomatic process than this. Olmert and Abbas are among the world's least credible political leaders. If there were a Nobel Prize for missed historic political opportunities, they would share it. They and all that they represent have had countless opportunities in the past decade to make progress, and they have consistently, spectacularly failed to do so.

Adding forced capitulation and new levels of ambiguity to the already limp legacy of Palestinian national leadership behavior will only generate new forms of political frustration and tension; these will ultimately express themselves in unpredictable manifestations of contestation, resistance and perhaps violence. Israeli-American attempts to punish, strangle, starve, boycott, jail, kill, bankrupt and generally humiliate the Palestinians into submission and surrender will fail, as surely as the sun will rise in the east tomorrow. Bringing the elected Hamas leadership into this cycle of false hopes and slightly delusional expectations will only add Hamas to the list of discredited political amateurs.

The only diplomatic process that will succeed has never been seriously attempted: demanding equal and simultaneous concessions from Israelis and Palestinians, on key issues of statehood, recognition, coexistence, and renunciation of violence. Trying to circumvent this moral, historical and political imperative of addressing Palestinian and Israeli national rights equally, and in parallel, is a colossal waste of time, and painful to watch - yet again.

(Rami G. Khouri writes a regular commentary for THE DAILY STAR.)

The surprising success of a highbrowish magazine like The New Yorker - editor David Remnick talks

The quiet American
It's a magazine that runs 10,000-word articles on African states and the pension system, has almost no pictures and is published in black and white. So how does the New Yorker sell more than a million copies a week?
By Gaby Wood

'Everybody has a cartoon of themselves,' suggests David Remnick, the editor of a magazine famous for them. 'Mine is: I write very fast, and I'm ruthlessly efficient with my time.'

As New Yorker cartoons go, the image wouldn't appear to hold much promise of a punch line, but Remnick doesn't mind it, and it contains, after all, a certain amount of truth. 'I'm not the slowest writer that you know,' he admits, adding with characteristic wryness: 'For better or for worse, by the way. AJ Liebling, one of my heroes, used to say that he could write better than anyone who wrote faster, and faster than anyone who could write better. I'm one nine-hundredth as good as Liebling, but that principle may slightly apply.'

Remnick, who was for many years the New Yorker's star reporter, covering - in the tradition of AJ Liebling - an almost alarming range of subjects with grace and dexterity, has edited the magazine for the past eight years and quietly, seriously, changed its fortunes. He is the fifth editor in the New Yorker's 81-year history and, by reputation - as his thumbnail self-portrait implies - its least eccentric.

So many memoirs have now been written about the distinguished publication that Harold Ross, its founder and first editor, has gone down in history as a maddening, well-connected workaholic who sacrificed three marriages to his literary invention. It is widely known that his successor, William Shawn, was neurotic, nuanced, almost pathologically shy, and that Robert Gottlieb, a gifted interloper, possessed a museum-worthy collection of plastic purses. In more recent memory, Tina Brown hired big-name writers at vast expense, threw celebrity-strewn bashes to promote the magazine (all of which resulted in a rumoured loss of up to $20m annually) and was supposed to have rejected any story that couldn't hold her attention on the StairMaster.

It could be said that Brown's methods were not eccentric but merely attuned to the demands of Eighties and Nineties culture. Equally, Remnick's non-partying ethic and commitment to world affairs might be thought the only appropriate way forward for a post-9/11 magazine. Remnick, who was hired by Brown, has never been critical of her tenure, and is inviolably modest about his own contribution. 'My background is as a reporter and foreign correspondent, but it's hard to separate what one's natural inclinations are from the times,' he tells me. 'My time as editor has been overlapped by a crisis - a prolonged, labyrinthine, tragic, seemingly non-ending crisis - that involves the prehistory of 9/11, 9/11, Iraq, Afghanistan, fraught histories between the United States and almost everyone.' Remnick's colleague Malcolm Gladwell, author of the bestselling books The Tipping Point and Blink, says, similarly, that 'we live in a suddenly serious time, where people have an appetite for intelligent, thoughtful explanations of consequential topics'.

Yet how can Remnick's editorial strategy be considered inevitable when no one else is doing what he does? However frequently Graydon Carter may address the bungles of the Bush administration in his letters from the editor in Vanity Fair, he feels compelled, more often than not, to feature a cover star in a bikini. Meanwhile, on another floor of the Conde Nast building, the New Yorker puts Seymour Hersh's investigations of national security on the cover and has the highest subscription renewal rate of any magazine in the country. It has a circulation of over 1m, and although it is privately owned and such figures are not publicly available, it is thought to be turning a profit of around $10m.

Celebrity culture is far from over; if you wrote a plan for a magazine and said you thought you could make a profit by publishing 8,000-word pieces on the future of various African nations, hefty analyses of the pension system and a three-part series on global warming, hordes of people would laugh in your face. So how has Remnick done it? Before I met him, I asked this of an acclaimed New York journalist, who said: 'If you can work that out, you will have the scoop of the century. No one knows.'

Remnick is well aware of the apparent mystery, which is why no focus group is ever involved in an editorial decision. As he puts it, it doesn't take a genius to work out that one hundred per cent of his readers are not going to get home from work, put their keys down and say: You know, honey, what I need to do now is read 10,000 words on Congo. 'So you throw it out there, and you hope that there are some things that people will immediately read - cartoons, shorter things, Anthony Lane, Talk of the Town. And then, eventually, the next morning on the train, somebody sees this piece, and despite its seeming formidableness, they read it.'

You might say that what looks at first like common sense is David Remnick's most winning eccentricity.

We meet at the New Yorker offices in Times Square on an obscenely hot day in August. Remnick extends a courtly, ironic offer of rehydration: 'Coffee? Water? Drip?' His glass box of an office is decorated with original cover art and scattered photographs - a portrait of AJ Liebling sitting under an apple tree; Dean Rohrer's wonderful image of Monica Lewinsky as the Mona Lisa. On his desk is a rare book about Jean-Luc Godard, in French.

He has just returned from Arkansas, where he met Bill Clinton for a long profile he is writing, and he spent the end of last week editing a cover story on Hizbollah by John Lee Anderson with an exceptionally fast turnaround. Another reporter calls from the Middle East as I arrive. Yet here is Remnick, blithe and witty as anything, behaving more or less as Fred Astaire would, if only a role had been scripted for him by Philip Roth.

Reporting, a new collection of Remnick's writing from the New Yorker, has just been published. It reveals not only the scope of his interests - he is as lucid about the PLO as he is touching about Solzhenitsyn, as excruciatingly accurate about Tony Blair as he is compelling on the subject of Mike Tyson's trainer - but also the deceptive straightforwardness of his style.

Remnick won a Pulitzer Prize for his first book, Lenin's Tomb, in 1994, and the great pleasure of that book, which gives a kaleidoscopic account of the fall of the Soviet Union, was that you felt party to the open mind of a reporter (originally at the Washington Post) who followed his instincts at every turn. He didn't mind telling you, for instance, that his wife's family had been interned in camps in the country to which they were now returning; if he saw someone handing out flyers in the street, he would delve deeply into their purposes; he was not shy of doorstepping ancient members of the KGB. In that first book, as in his others - a follow-up about Russia called Resurrection; a collection of pieces entitled The Devil Problem; a story about Muhammad Ali called King of the World; and Reporting - simply turned sentences open up vistas of complication. Yet the quality that Remnick shows most in conversation is his capacity for self-deprecation. He opens a profile of Katharine Graham, the imperious proprietor of the Washington Post and his sometime boss, with a story about his own involvement in the Post's historic interview with Mikhail Gorbachev, the General Secretary of the Communist Party of the Soviet Union, in 1988:

'As the junior man in the bureau, I was given the task of finding the hairdresser. I would not insist that Moscow was short on luxury in those days, except to note that I did not so much find a hairdresser as create one. At one of the embassies, I found a young woman who was said to own a blow-dryer and a brush. I rang her up and explained the situation. Gravely, as if we were negotiating the Treaty of Ghent, I gave her an annotated copy of Vogue, a mug shot of Mrs Graham, and a hundred dollars.

"You're on," she said.

'Apparently, the interview went well. It was featured, with a photograph, in the next day's edition of Pravda. Mrs Graham looked quite handsome, I thought. A nice full head of hair, and well combed. I felt close to history.'

In a piece about Tony Blair written just before the last election, Remnick witnesses, behind the scenes, the Prime Minister's utter humiliation at the hands of Little Ant and Little Dec. In a profile of Al Gore he reveals that Gore employs a private chef who still addresses him, years after his presidential defeat, as 'Mr Vice-President'. He gets to hang out with the famously publicity-shy Philip Roth in his most feverishly creative period; he visits Solzhenitsyn and his wife as they prepare to return to Russia. Yet in a preface to the book, Remnick alerts the reader to the fact that most of his subjects are public figures who do their best not to let their guard down. Why offer the warning? To suggest we'll never find out about them?

'No,' he replies, 'so that you'll find out about them in a different way.' With politicians, 'you've got press secretaries, and you've got a very, very self-conscious actor, who's performing in public and the course of whose career is dependent on how he's going to appear to some degree. And he's very experienced at it. And any question you ask him, he's heard, and he has a little tape loop in his head. So when something like Ant and Dec comes along,' - Remnick grins broadly and looks up to the skies in gratitude - 'Happy birthday. The gods of non-fiction have provided an unscripted scripted moment!'

Remnick pauses for a moment to tell a story about the glorious predictability of journalism. 'There was a wonderful thing Slate did years ago, when it was just getting started, called the Hackathlon. It was Michael Specter, Malcolm Gladwell and I forget who else.' (Specter and Gladwell are both old friends of Remnick's from the Washington Post, and both now colleagues at the New Yorker.) 'Each day there would be an event. You had to write a 500-word lede [an American term for an article's opening paragraph] in the Vanity Fair style to a Richard Gere profile: Ready, begin. Then you had to do an Economist situationer on Tanzania - first 400 words. Then maybe a Rolling Stone lede to a ... you know: Mick Jagger is angry. Period. Paragraph. Very Angry. Period. The limo is late. You know, one of those. And then maybe a New Yorker thing on the history of sand. I don't remember the specifics.'

Remnick leans in with a smile of utter glee, and goes on: 'Specter beat Gladwell. He came from behind, but his lede on the Richard Gere, comparing the colour of his hair to his grey cashmere sweater, was just so brilliant that he overwhelmed him in the Hackathlon. I mean, he could do nothing else in his career and his New York Times obituary would read: "Michael Specter, winner of the 1997 Slate Hackathlon, died today of complications of a hernia operation. He was 98."'

David Remnick was born in 1958 and grew up in Hillsdale, New Jersey, where his father was a dentist and his mother an art teacher. The extent of his early gifts, to hear others tell it, borders on the embarrassing. Richard Brody, a close friend Remnick met at Princeton, remembers a story Remnick told him at the time about his activities in high school.

'He was interested in journalism already, and in literature and poetry,' Brody tells me. 'So he interviewed poets, and put together a collection of those interviews for a small literary magazine, and I think some of them were collected in a book. So even in high school he had not only the idea, but let's say the lack of false modesty to go ahead and do something which many people much older would not have dared to do. '

Brody and Remnick found that they shared a love of Bob Dylan, a Jewish upbringing in the suburbs, and 'a literary school of sorts'. As Brody puts it: 'There was a whole generation of Jewish American writers - when Saul Bellow won his Nobel Prize, I guess when we were all freshmen or about to enter school. There were people like Philip Roth and Norman Mailer and Bernard Malamud and Joseph Heller. We sort of had a canon of fathers. I think we weren't postmodernists, temperamentally. We had read our Thomas Pynchon and our John Barth, but that wasn't what excited us. We were excited by the late flowering, among the children of Jewish immigrants, of the late 19th-century novel.'

(Remnick, still an enduring fan of Roth, tells me that he would have published Roth's latest novel, Everyman, in its entirety in the magazine, but Roth's agent wouldn't allow it.)

When he left Princeton with a degree in Comparative Literature, Remnick got a job at the Washington Post, where his early days were occupied by covering the night-cop beat, or doing celebrity interviews for the Style section, or writing about sport. In 1987, the Post decided it needed a second person in Moscow, and, as Remnick now recalls, 'Nobody else wanted to go. It's cold, in those days if you wanted a box of coffee, you had to order it from Denmark. Nowadays there are rich people and stores and all kinds of stuff. (It's still cold - pace global warming.) So I got to go - I was 28, 29 - and it was the best kind of foreign story: really exciting, constantly changing, intellectually fascinating, ethnically various. It was heaven for a reporter.' Before he left he married Esther B Fein, a reporter for the New York Times, who also filed stories from Russia.

'When we were at the Post he was a kind of legendary figure and I was a little underling,' remembers Malcolm Gladwell. 'People have forgotten that - and this is not by any means an exaggeration - David was the great newspaper reporter of his generation. And had he never been anything but a newspaper reporter he would be, right now, the best. At the Washington Post there was one day when he had three stories on the front page, which I don't think has ever been repeated. He was in a league by himself. So the idea that he would have a second act where he would outperform his first act is kind of unbelievable.'

When Remnick was offered the editorship of the New Yorker, he had never edited anything before - with the exception, as he likes to remind people, of his school magazine. The decision to abandon writing - which, for the most part, he has (he now only writes two long pieces a year, plus commentary in the magazine) - was made on the basis of 'a very simple calculation': 'I had about two days - a day - I had seconds to decide, actually. Where could I make the bigger contribution? The ability to affect this magazine and its place in the culture - now, I may cock it up as an editor, I don't know, but the capacity for potential was greater doing this.'

Tina Brown left on a Wednesday in 1998. Remnick, who had written over 100 pieces for the magazine in the six years he'd been there, and who was, as Brown put it, 'a key member of my dream team', consulted on all kinds of editorial matters, was offered the job the following Monday, and took over straightaway, rallied by a five-minute ovation from his colleagues. 'And then Tina was gone and the magazine had to come out the next week - and the week after that, and on and on,' says Remnick now, looking amusingly baffled. 'And I was an absolute novice. And the only saving grace is that there were these people around who were so good.'

It wasn't easy. There have been times, even recently, when his instinct has failed him. He came out in favour of the war in Iraq, for instance, on the grounds of concern about weapons of mass destruction, and says now that 'I was wrong about that, totally wrong, as events proved very quickly.' The job, as Robert Gottlieb once memorably described it, is 'like sticking your head into a pencil sharpener'. To make matters worse, in some quarters Schadenfreude kicked in early; a profile of Remnick in the New York Times took offence at his choice of interview venue - a formica-topped table in a coffee shop, which was seen to suggest that the 'buzz' of the Tina years had fizzled out on the spot.

Michael Specter, Remnick's close friend of 20 years, tells me that a couple of months after Remnick took over, they went to Paris. 'We took a walk and he said, "The worst thing is, everybody comes up to me and says: 'Oh my God! You must be enjoying it so much!' And I just want to say: 'Yeah, it's like enjoying cancer!'" Because it was really scary, and I think it was a lot to take on that job, never having been an editor, when the magazine was financially in trouble. '

In a profile he wrote many years ago of the legendary Post editor Ben Bradlee, Remnick remarked: 'Generalship is not about fighting the battle; it's about inspiring the enlisted.' It's a notion Remnick has clearly kept in mind in his own work as General. Asked to illustrate his editorial methods, Remnick reaches for a baseball analogy: Joe Torre, the manager of the Yankees, 'gives players the confidence they need to play their best, then he gets the hell out'. He adds: 'I don't believe in swagger. I think it's infantile.'

The magazine's editorial director, Henry Finder, says drily that Remnick 'has something very scarce in this city: an aura of sanity. He exudes a sort of calm that most New Yorkers get to experience only with prescription medication. As an editor, I think that aura of equipoise turns out to be very helpful, because you have so many people here who are professional neurotics, always acting out, drama queens, who have one form of craziness or another. And I think he sees it as his job to be... sane.

When I ask Malcolm Gladwell what he thinks the legend of Remnick's tenure will be, he says: 'How exactly things got so effortless.'

Specter says he'd like some sort of atomic clock so he could 'divide 24 by Remnick time' and work out how he fits everything in. (Remnick himself has minted the immortal dictum: 'There are only 30 hours in the day - and that's if you're lucky enough to change time zones.') It's not just the work: he has a family too. Remnick and Esther Fein have two teenage sons and a seven-year-old daughter. He does his fair share of ferrying to music lessons and little league games. Asked to explain how he manages to balance these things, Remnick shrugs and says he doesn't do anything other than spend time with his family and work. 'It's not like I build toy ships, or travel to Tahiti. I don't go surfing. I don't know: what do people do?'

He admits that certain pleasures have largely fallen by the wayside. 'My son said to me - we were reading one night, he his book for school and I a stack of manuscripts - and he said: "You don't read anything with covers any more."' Remnick cringes. 'Dombey and Son immediately came down from the shelf!'

Yet there are other things he seems to make time for, somehow. Specter says the only person he knows who watches more television than Remnick is his own ex-wife, Alessandra Stanley, the TV critic for the New York Times. He remembers calling Remnick when one of their old favourites, the BBC version of John le Carre's Smiley's People, came out on DVD. 'I said, "Are you watching it?" He said, "Yes." He was writing a piece. He said: "I'm giving myself three hours of writing, one hour of Smiley." And I just thought, Jesus Christ. I watch three hours of Smiley, then I have lunch, then I write for a couple of minutes.'

I tell Specter how proudly Remnick told me of his triumph in the Hackathlon, and that I wondered afterwards what he meant by extolling such bare-faced bad writing. 'If you do it to change the world, you can get really bummed out,' replies Specter. 'The Hackathlon was a celebration of the fact that it's a day job.' He thinks for a second and laughs. 'I think he's happy when we do well. But he was much more excited about the Hackathlon than he was about any science writing or global health award I've ever received.'

'The things about him that I wish ...' Specter goes on, a little awkwardly. 'He's an incredibly good friend. I mean, he's a better friend than he is an editor. And he's very funny. My daughter thinks he's hilarious. She said: "You know, David's the coolest of your friends, Dad." Then she said: "Actually, he's not cool, but he's the best of them."'

Bookplanet: they finally made a movie of Suskind's perversely great novel Perfume

PERFUME THE FILM: Worth the Wait? -- by Urs Jenny

Over the next months Perfume, a film based on the internationally acclaimed novel by German author Patrick Süskind, will be shown in cinemas around the world. Already sparking controversial debate as it premieres in German theaters, its €50 million budget makes it one of the most expensive German films ever made. Was it worth the effort?

When 'Perfume. The Story of a Murderer' has its debut in 700 German theaters next week, millions of devoted readers will finally get what they have supposedly been eagerly awaiting for the last 10 or even 20 years. Produced by Bernd Eichinger and directed by Tom Tykwer, the film is then scheduled to premier in rapid succession in almost a dozen other European countries. It will quickly become apparent whether the readers of the novel, published in 1985 and the most successful German novel, among both German and international readers, since Erich Maria Remarque's "All Quiet on the Western Front" - 15 million copies published worldwide -- will rush out in droves to see the film and whether Süskind's loyal readers, many with only a fading memory of the book, will in fact appreciate the film version.

When the almost two-hour film, which is certainly entertaining but by no means light-hearted, reaches its climax, viewers experience how the young protagonist mounts a platform on the small town market square to be executed, but instead the crowd, high on an erotically imbued narcotic (the "perfume"), erupts into a frenzy of uninhibited embraces.

The tabloids would call it an "orgy" while the classically trained prefer to see it as a "bacchanal." As the camera pans deliriously and dizzyingly over the crowd, a euphoric rain shower bursts from the sky and slow motion film techniques distort a mob scene into something deliciously festive. The camera zooms in on the boy who instigated the whole thing, his face revealing three emotions in rapid succession: astonishment, delight and, finally, disgust. Some might see this performance as messianic; others as satanic or perhaps Dionysian. Most of all, however, it reveals the filmmaker's eagerness and to obtain a PG rating and yet still go down in cinematic history.

"Perfume" is the partly real, partly imaginary life story of a puny, unpleasant character who has been kicked around by fate but who, as a result of an entirely paranormal ability, suddenly becomes a sensation. With its protagonist an amoral and both brilliantly and dangerously obstinate outsider, the novel bears some similarity to two other German bestsellers published in the last two decades that were also made into films: Günter Grass's "The Tin Drum" (whose message may have encouraged Süskind) and ''Brother of Sleep" by Robert Schneider (who clearly drew some of his inspiration from "Perfume"). The film versions of these two novels also highlighted the difficulty convincing viewers to empathize and even like an unlikable protagonist, a task "Perfume" attempts to accomplish to the point of exhaustion. Although the film version of "Perfume" will never measure up to director Volker Schlöndorff's "The Tin Drum," which triumphed precisely because of its sheer lack of respect, it certainly holds its own with director Joseph Vilsmaier's "Brother of Sleep."

The Education of a Murderer

In a magnificent novel that's plainly bursting with life, Süskind tells the story -- in the manner of the classics but with an entirely contemporary sense of irony -- of a bastard who is born in the mid-18th century on the filthiest street corner of a stinking metropolis, Paris, and is literally left in the gutter by his mother. The boy ends up in an orphanage, where he is baptized Jean-Baptiste Grenouille and discovers that his lack of body odor makes him an object of hatred for the other children (who cannot smell him, which in Süskind's original German is a play on words, meaning they cannot stand him). But he also discovers that he has an unusually strong sense of smell and memory for odors -- a gift not unlike photographic memory or the ability of the autistic to remember pieces of music or mathematical problems.

Although the reader is unlikely to treat any of the anomalous traits of this clumsy, shy little fellow as "believable" in a realistic sense, Süskind, a seductive and virtuosic storyteller, develops his protagonist into a character who, in his disconcerting oddness, has managed to irresistibly capture the hearts of millions of readers. The story follows Grenouille, who not only lacks a sense of smell but is also apparently asexual, as he works his way through a training position in Paris and, almost self-taught, becomes a gifted creator of perfumes. Years later in Grasse, the French perfume capital in Provence, he carries out his dastardly and secret project.

With childlike innocence Grenouille murders 25 beautiful virgins without spilling a drop of their blood and then, like some alchemist of aroma, uses the artificially preserved smell of the corpses (reduced to 13 in the film) to distill a perfume that will delight and intoxicate whoever smells it, transporting them into erotic ecstasy. In his triumphant moment, Grenouille unleashes the "greatest bacchanal the world has seen since the second century B.C." on a crowd of 10,000 people.

Süskind's Subplot

If ambitious producer Bernd Eichinger had had his way, the world would have been able to marvel at his film version of the novel almost 20 years ago. But in 1985, when "Perfume" was at the top of SPIEGEL's bestseller list, the author was apparently utterly uninterested in a film project, despite the fact that Süskind and Eichinger were acquaintances and regulars at the same Italian restaurant in Munich's swank Schwabing district. Süskind appeared to refuse on principal. It had nothing to do with any aversion to film -- after all, Süskind, 36 at the time, first made a name for himself as a screenwriter (for Helmut Dietl's TV series titled "Monaco Franze") -- nor was it a result of the book's speedy and phenomenal success, which enabled its author to achieve financial independence.

The real reason behind Süskind's refusal to sell the film rights to his novel was that he was completely averse to the kind of publicity other successful young authors normally crave, publicity that entails being photographed and interviewed, giving readings, appearing on TV talk shows and commenting on current events. In a sense, all Süskind really wanted was to disappear, unnoticed, into the shadow of his work, an artist who would shun rather than seek the public eye, much like the legendary Bartleby. None of his subsequently published works could even remotely measure up to "Perfume," and his only public comment on a political controversy of any nature happened in 2003, when he wrote a letter of protest against Germany's spelling reform.

More than a decade after the publication of "Perfume," Süskind's resistance to a film project was made the subject of a comedy whose undercurrent of self-parody is neither proclaimed nor disputed by the film's characters. In Helmut Dietl's "Rossini," for which Süskind co-wrote the screenplay, the protagonist is an eccentric, notoriously publicity-shy author of a global bestseller who is even unimpressed by the prospect of a seven-figure Hollywood movie deal. The character's name is Jakob Windisch, and a producer named Reiter, a dead ringer for Eichinger when it comes to ambition, is determined, come hell or high water, to convince the reluctant author to sign a film contract.

Reiter has plans to make a "mega-blockbuster" out of Windisch's bestseller, which a jealous rival calls a "perfumed, pseudo-literary bit of fluff." But for Reiter the novel is "practically a license to print money! The film couldn't possibly be so bad that every asshole wouldn't want to see it!" But in the film Windisch, who normally never gives interviews, is quoted in the New York Times as saying: "As long as I am alive, my book will never be filmed."

One should never say never. No one knows why, but in 2000 Süskind abandoned his resistance to a filming of his novel, as if suddenly nothing mattered anymore. Some say that he had secretly been holding out for an offer from director Stanley Kubrick, who died in March 1999. Of course, Eichinger was eventually the one who seized the opportunity. The producer hasn't denied rumors that he spent €10 million of his own money for the film rights (a sensational amount that demonstrates his enthusiasm for the work), nor would anyone dispute that he cut no corners in the production, which, at an official price tag of €50 million, was filmed mainly in and around Barcelona.

Souvenirs, Kitsch and Kubrick

A special edition of the novel is being published in time to coincide with the film's release, along with an audio book version, two books about the film itself and, finally, a CD of the film's bombastic score, performed by none less than the Berlin Philharmonic under the direction of Sir Simon Rattle. But the real piece de resistance has to be an item that couldn't possibly be interpreted as anything but a parody of the usual marketing paraphernalia. It's an exclusive "Thierry Mugler toiletry bag of the finest red velour," which contains 15 delicate little bottles of an "olfactory interpretation of the film." Unfortunately, the item isn't available at movie theaters, but only in "authorized perfumeries." The filming of the book, apparently, has led to its theme being used to market perfume.

Bernd Eichinger can't stand the term "filming," because he, mistakenly so, sees it as disparaging. Where would film history be without the filming of great literary works? They can be as glittering as "Gone With the Wind" or as paltry as "The Da Vinci Code," which has nonetheless proved to be nothing short of a license to make money. Of course, there are rarer cases of films that are such unique and compelling works of art in their own right that their literary precursors are only of interest to specialists. One such work (to remain within the genre of films set in the 18th century) is Stanley Kubrick's "Barry Lyndon."

Bernd Eichinger has earned his reputation as an important European producer mainly through his solidly crafted film versions of sophisticated bestsellers, including "The Name of the Rose" by Umberto Eco, "The House of the Spirits," by Isabelle Allende, Danish author Peter Hoeg's "Smilla's Sense of Snow" and, most recently "Elementary Particles," based on the novel by Michel Houellebecq. "Perfume" fits easily within this genre. But in choosing as his director the brooding and difficult Tom Tykwer, whose only hit to date has been "Run Lola Run", Eichinger demonstrated a willingness to take risks, as well as a sense of sophistication and consistency.

An Impossible Task

Tykwer's fondness for expressive images gives the film energy and style and a sort of ornamental bravura, but the fact that Tykwer has to struggle with its weightiness is a result of the constraints imposed by the need to remain true to the original literary work. There are too many instances where images parading past in a succession of fireworks illustrates piecemeal what the booming voice of the narrator (Otto Sander) then brings into context. As a result, the production rarely manages to liberate itself from the constraints of someone else's fantasy.

In its most dramatic and spectacular moments the film is gripping, inventive, richly detailed, consistently lives up to its high standards and is almost lovingly indulgent in portraying the craft and milieu of perfume production. Dustin Hoffman delivers a theatrical, tragicomic and thoroughly brilliant performance in the role of the aging, worn-out perfumer Baldini, Grenouille's teacher during his apprenticeship in Paris. During Grenouille's period as a journeyman in Grasse, Alan Rickman plays the protagonist's most dangerous adversary and the delicate, porcelain-like Rachel Hurd-Wood the most intimate target of his murderous intentions.

The problem that the film's three screenwriters (Eichinger, Tykwer and Briton Andrew Birkin) are simply unable to solve lies in the fundamental nature of the protagonist who, of course, can only be portrayed on the screen as the world sees him. His obsession with himself makes Grenouille come across as the most radical of loners, a man who remains taciturn even in the face of the most gruesome torture. To clarify the problem, Eichinger calls him "a protagonist whose soul is inaccessible because he has no feelings."

No feelings? For heaven's sake! Although this characterization is more or less true in the film, it's completely off the mark when it comes to the novel. In his work, Süskind uses page after intoxicating page of lyrical, vibrating language to describe the process in which the protagonist, after inhaling the tiniest molecule of aroma, experiences the immeasurable wonders of a garden or the curls of a young girl. But the camera has no access to this enormous inner universe beyond Grenouille's constantly sniffing nostrils. We only get the occasional glimpse into his inner world through the voice of the narrator and the heavy, tumultuous and symphonic score (composed by Tom Tykwer).

As he follows his nose southward on his journey from Paris to Grasse, Grenouille pauses on a peak in the French Massif Central mountains, the "magnetic pole of the greatest possible loneliness," to escape from himself. The film, understandably so, takes little time to pause in places where there is no significant action, but in doing so it glosses over key elements of the book.

In the novel this interlude, the story's ironic core, spans a period of seven years in which Grenouille lives in a cave in the mountains and, like another version of Oblomov, the protagonist of the eponymous novel by Russian writer Ivan Goncharov, often spends "upwards of twenty hours a day dreaming into space, in complete darkness, complete stillness and complete immobility." His dreams run the gamut from sweet visions of paradise to dizzying fantasies of omnipotence to horrible fears, a true bacchanal of the imagination. These are the years in which Grenouille matures into an artist, and in which he realizes that he must use his art to "relinquish his inner life, which he believed was more wonderful than anything the outside world had to offer." Perfume is his message.

Now that this film exists, Süskind's Grenouille has a face, a rustically coarse, big-nosed, big-eared and expressive face -- a face that is not easy to love. Who knows what young British actor Ben Whishaw would have been able to do with the role of Grenouille if the film had deliberately opened itself up to the dimension of fantasy? Instead, the protagonist, who is meant to exude an air of seduction and fascination, remains distant. The viewer is left to imagine -- but not experience -- his satanic, messianic or Dionysian side.

Never Say Never

There are readers who adore the cinema and yet make a wide berth around the filming of their favorite works of literature. There are writers (from Thomas Mann and Max Frisch to Heinrich Böll and Günter Grass) who have accepted troubling compromises in the filming of their works. And then there are those who reject the very notion of their novels being committed to celluloid as a "coarse, narcissistic insult."

One of these writers once explained, expressing his own feelings and perhaps also those of his readers, that he was simply against the whole thing. In his words, he was "fundamentally opposed to the idea that imagined characters can be transformed into roles, that roles must be played, that actors will play these roles, essentially occupying them and making them their own, the end result being something else that is occupied and possessed once and for all, and that one's own imagination is embodied by the clearly delineated figure of a real person."

Those were the words of Patrick Süskind -- ten years ago.

(Translated from German by Christopher Sultan.)

Deep Thoughts: what comes after the oil runs out?

The End of the Oil Era Looms
Oil, uranium, gold and platinum are more sought after than ever today. The search for natural resources is becoming increasingly difficult and prices are soaring. But future growth of the world economy depends on these natural resources -- and some will soon disappear forever.
By Alexander Jung (from Der Spiegel)

Five minutes before he was scheduled to speak, leading geologist Marion King Hubbert was summoned to the phone. His employer was speaking, someone from the headquarters of the Shell corporation.

He was urged not to present his forecast, Hubbert later revealed. But the scientist with his little Clark-Gable-style beard stuck to his guns, as he has often been known to do. When he appeared at the spring 1956 meeting of the American Petroleum Institute in San Antonio, he presented exactly what he had prepared -- a theory as simple as its implications are dramatic.

Hubbert claimed that the exploitation of oil resources always follows the pattern of a bell curve: first it rises, then it flattens out, and finally it declines -- irreversibly. According to his calculations, the United States would soon reach the peak of the curve -- around about 1970, according to his estimate.

His prediction could hardly have been more accurate: In fact, it was in 1971 that the US's oil extraction reached its maximum level. Ever since then, oil production in the US has declined.

Hubbert's curve was discovered exactly 50 years ago and is still considered part of the basic knowledge of every geologist. The rise and fall of the curve presents a scientifically precise description of something everyone knows, just as everyone wants to deny it. Petroleum is a finite resource. The supply shrinks every day, every hour, every minute. Once the supply is used up, it's gone for good.

Other important energy sources -- natural gas, coal and uranium -- are subject to the same relentless process. They are constantly consumed, but never replaced.

The supply of metals and minerals isn't unlimited either, just as it isn't replaceable. Iron ore doesn't reproduce itself, and neither does gold -- none of these resources replace themselves. But how many people really think about how unique these resources are?

Enormous quantities are consumed, processed or often simply burned up by citizens and by industry. Every second, an average of about a thousand barrels of oil turns into smoke across the world. The average German consumes about 225 tons of coal in his life, along with 116 tons of petroleum, 40 tons of steel, 1.1 tons of copper and 200 kilograms (440 pounds) of sulphur. It's clear this can't go on forever -- even though it has already been going on for what seems like an eternity.

Human beings have made use of natural resources since prehistoric times. They produce tools from iron and copper, heat their living quarters with coal and natural waste, build houses from sand, plaster and stone. But it was only industrialization that caused demand to increase dramatically -- trade in metals, minerals and fuels became a global business phenomenon. Humanity has consumed more resources since the end of the Second World War than during its entire previous history.

Now China has entered the international market -- a country with an unusually rich supply of natural resources. But it consumes even more than it has, as the price changes of recent years reveal: gold now costs almost twice as much as it did four years ago, and platinum is more expensive than it has ever been. Even junk metal has now become a good source of revenue.

Resources, of all things -- commodities that investors paid little attention to not so long ago. The word "resources" evoked images of mine workers, dust and sweat. It sounded like the 19th century -- economically irrelevant and anything but glamorous. Bits and bytes were considered the modern resource -- immaterial and in abundant supply.

It's only since the "classic" resources have become so expensive that people are becoming aware of their importance again. No computer chip can be produced without silicon, no plastic product without petroleum, no catalytic converter without platinum or palladium. Digital technology and the information economy are both well and good -- but the economy still fundamentally depends on steel and cement, and it's driven by oil, gas and coal. But for how much longer?

The future of many industries depends on the answer to this question, as does the development of the world economy itself. Rising prices are usually an indicator that a commodity is growing scarce and that demand for it is rising. So does the rise of resource prices mean that supplies are running out? And if the answer is yes, then how much time remains before the supply will run out?

If the predictions made by Dennis Meadows in his 1972 report for the Club of Rome think tank had been correct, then humanity ought to have reached the limits of growth by now. Meadows was a young scientist at the time, not yet 30. He and his colleagues at the Massachusetts Institute of Technology fed a supercomputer with vast amounts of data. The results shocked the world.

The resources contained in the earth's crust would soon be used up and the scarcity of resources and foodstuffs would paralyze global economic growth -- that was the conclusion the scientists arrived at, and it was a bitter pill to swallow. An economy constantly oriented towards growth was bound to collapse as a result of natural resource supplies being exhausted, the scientists argued. Their report, published in book-form, sold more than 10 million copies and was translated into 29 languages -- but the economic collapse they predicted never happened. Nonetheless, there is an audience for apocalyptic predictions again. According to American journalist James Howard Kunstler, a fierce struggle over resources and foodstuffs will break out and the leading industrial nations will whither away. Kunstler paints a panorama of horrors whose dimension are almost Malthusian, predicting that the entire world faces a historical era of negative growth, unrest and conflict.

Then there are the notorious optimists. They claim that the world's resources are still far from exhausted and that enormous reserves still exist -- around the North Pole, for example. What's more, they argue, industry has always succeeded in extracting more than expected thanks to innovative methods.

The calculation presented by these optimists is simple. They divide the quantity of known resources by the annual consumption of resources. According to this calculation, conventional petroleum will last another 40 years. Natural gas will last for more than 60 years, and coal will last for a full two centuries.

The figures sound reassuring. The only thing strange about them is that they've hardly changed during the past 50 years.

The reason is that the calculation has more to do with economic logic than with geology. When the price of gold rises, the extraction of smaller or less easily accessed deposits becomes profitable. Resource deposits that were previously ignored suddenly enter into the calculation and the quantity of resources automatically rises.

There is another variable in the calculation: New technologies such as those of multidimensional seismology, which allow for locating even small pockets of petroleum or minor ore deposits, and changes in consumer habits. For example, the demand for copper has declined substantially in the field of transmission technology, since copper has largely been replaced by fiber glass. Now the demand for quartz is declining, because fiber glass technology is being displaced by satellite technology. Such unpredictable influences strongly qualify the validity of the consumption-supply relation; the formula is inadequate as an instrument for predicting future developments.

And yet there are serious answers to the central question: "How much longer?" They aren't easy or simple answers - they vary from one resource to another -- and they are far from conclusive. How long a resource will last isn't decided by fate. It depends on human action.

The most reliable predictions are those about petroleum supplies -- thanks to the discoveries of geologist Hubbert. The picture that is emerging is worrying even to the sober-minded observers at Germany's Federal Institute for Geosciences and Natural Resources (BGR), which is based in Hanover. "We're closer to the peak of resource extraction than we would like," warns geologists Peter Gerling, an expert on fossil fuels.

The so-called "depletion mid-point" will be reached within the next 10 to 20 years, according to Gerling's most recent study. The depletion mid-point is the point at which half of the total quantity of petroleum has been used up.

Gerling is confident the results of his research are accurate. "The Earth has been explored in detail," he says, adding that the layer of the planet's crust that contains its roughly 600 petroleum sediments is known in some detail: "There won't be any major surprises." Gerling's matter-of-fact statement has dramatic implications. Once the depletion mid-point has been reached, the end of the petroleum age will begin.

From that point on, when global resource extraction reaches its maximum, a physical supply gap opens up for the first time in history. From then on, petroleum production declines, whereas demand is likely to continue to rise. There's no return to yesterday's heights, and what's worse: The peak is reached without warning.

A FULL 33 of the 48 largest petroleum-extracting nations have already reached or passed the peak. They include Great Britain and Norway, since the North Sea has seen its best days. During the past five years, petroleum extraction has declined there by some 20 percent. Indonesia, a member of OPEC, and Oman have fallen behind the production rates of previous years as well.

There first signs have emerged of a decline in production even in Kuwait. The state-run company Kuwait Oil is no longer able to deliver the usual 2 million barrels a day in the Burgan oil field, the head of the company recently announced. Burgan is the second-largest petroleum deposit in the world; it contains more than half of all known petroleum reserves in Kuwait. Petroleum extraction has gone on in Burgan for more than 50 years. And it used to be known as a place where oil simply flowed from the ground. Those days are over.

The world's largest petroleum deposit, the Ghawar oil field in Saudi Arabia, has been in use for almost as long, since 1951; its daily production rate is 5 million barrels. All giant oil fields (the so-called "super giants") have been in use for between 40 and 60 years; they are the source of about half of the world's oil production. They're all approaching the point at which production declines, according Matthew Simmons, the head of Texas-based bank that specializes on energy projects.

Simmons has grave doubts about whether the Gulf states really dispose of as many resources as they claim. But he hasn't been able to produce conclusive evidence for his hypothesis. If many in the oil business share his skepticism, that's because Saudi Arabia promotes speculation about the extent of its reserves: Ever since the oil industry was nationalized 25 years ago, the government has denied foreign inspectors access to the oil fields.

The only thing that is certain is that Saudi Arabian production -- some 10 million barrels a day -- is currently close to capacity; there is little or no room for expansion. This means that the kingdom is no longer capable of regulating prices. It can stop supplying oil, but it can't supply more -- at least not in the short term.

Saudi Arabia would have to double its production by 2025 in order to satisfy expected demand. Even the former production chief of the state-owned oil company Saudi Aramco, Sadad al-Husseini, recently declared this goal to be unrealistic. "The expectations are beyond what is achievable," he told the New York Times in 2005.

Regardless of whether he's right or not, what is certain is that it is becoming more and more difficult, on a global level, to discover new sources of oil. For years now, oil consumption has exceeded the discovery of new oil sources. The last major oil field was discovered in 2000, in the Caspian Sea. Most new discoveries are minor, and the search for them now takes place in increasingly out-of-the-way regions such as the Arctic and the deep sea.

"Exploration isn't just becoming more expensive," says Andrew Latham of the Edinburgh oil consulting firm Wood MacKenzie. "It's also become more difficult to achieve success, since the easily accessed oil fields have already been discovered."

Latham points out that oil extraction is becoming more difficult even in the Arab region. Sometimes oil companies have to resort to tricks. They inject water or steam into the ground so that pressure levels don't decline. Without such measures, many an oil source in the Middle East would already have been used up.

Dramatic changes are no doubt ahead for consumers and for the oil industry; corporations are already openly admitting as much. For years now, "BP" has officially been short for "Beyond Petroleum." Chevron's new advertizing slogan announces that "the era of easy oil is over." And even Exxon's oil barons, normally known for their brash attitude, now reply that there are "no simple answers" when they are asked about future energy supplies.

Natural gas is sure to be one of the answers. The volatile substance is becoming increasingly important in the mix of energy sources. Exxon's new chief executive, Rex Tillerson, describes natural gas as "economically and ecologically attractive." Only 18 percent of the suspected overall supply has been tapped. As with oil, the largest reserves lie in areas with a varying degrees of political instability: in Russia, Iran and Qatar. The three states dispose of 56 percent of the world's supply -- probably enough to last for several decades.

Though physical scarcity is not to be expected, political factors could certainly lead to a bottleneck. Russia recently demonstrated how acute that problem could become when it used natural gas as a weapon in its dispute over gas prices with Ukraine.

Such actions are all the more disconcerting to states that import natural gas, such as Germany, to the extent that their own natural gas reserves are dwindling. Roughly a fifth of the methanol consumed in Germany still comes from within the national territory, but as consumption rises, these supplies will be used up. And while the extraction curve for oil is a bell curve, that for natural gas ends much more abruptly.

There is more leeway with coal, the most abundant fossil fuel. Coal supplies are more dispersed than oil or natural gas reserves. Large supplies can be found in the US, Russia, China and Australia. Scientists are certain that the supplies of black coal and brown coal (which provides less energy) could last for at least 100 years.

On the other hand, the consumption rate of uranium, the fourth of the great energy resources, has been almost twice as high as the extraction rate for several years. Electricity suppliers can still make use of back supplies in order to close the gap; in some cases, they also resort to uranium that has been reprocessed or taken from warheads left from the Cold War. But these reserves are dwindling faster than expected as a result of nuclear energy's return to popularity. China alone wants to build 25 to 30 new nuclear energy plants by 2020.

That's why firms that specialize in searching for energy resources are focusing on finding new reserves of "yellow cake," as uranium (which has a golden color) is also called. Years can go by before a new uranium mine goes into operation. The extraction costs will probably be much higher in the future; until now, production was limited to a few sites in Australia, Kazakhstan and Canada.

So it's relatively half-way clear how long supplies of oil, gas, coal and uranium -- the four raw materials of the energy industry -- will last. Metals and minerals are another story. They seem to be available in virtually endless supply.

NO ONE who has looked inside the crater that machines have cut inside the earth's crust on the elevated plateau of northern Chile's Atacama Desert will be concerned about the supply of metals and minerals running out. The crater is three kilometers (1.86 miles) wide and almost 500 meters (1,640 feet) deep. It gets larger every day -- just as the company at work there, BHP Billiton, gets richer.

The copper mine at the edge of the Andes, where rain never falls, is called Escondida, the "Hidden One." The reason for the name is that geologists only discovered the reserves buried there by accident in 1979.

Today, Escondida is the world's largest copper mine -- it supplies 8 percent of global copper demand. The bucket excavators work their way through solid rock with buckets as large as bungalows, loading raw ore onto giant trucks (each of them can carry more than 200 tons).

The corporation extracted some 1.2 million tons of copper here last year, and this year's extraction rate is likely to be similar. In order to achieve such output, BHP has invested more than $400 million in Escondida Norte, a new giant excavation area five kilometers (3 miles) further north that should ensure a plentiful supply for decades to come.

"There's no scarcity when it comes to metals," says Markus Wagner, BGR's expert on metallic raw materials. "We're still a long way from discovering all the reserves in the world."

Vast regions haven't been explored yet, including the entire continent of Antarctica. And unlike oil, with its Hubbert curve, the reserves of iron, nickel, silver and copper are so large that the overall quantity cannot be estimated even approximately.

And yet there is a bottleneck even here. It only came about during the past few years, and it has serious consequences for consumers. A handful of mining corporations now dominates the entire world market. They are dividing up the Earth between themselves and fixing the conditions of trade.

The mightiest iron producers -- Brazil's Companhia Vale do Rio Doce and the Anglo-Australian corporations BHP Billiton and Rio Tinto -- raised the price of copper by between 70 and 90 percent this past spring. They are only able to do this because these three corporations control about three-fourths of the world's supply of iron ore. This oligopoly makes even steel giants like Mittal Steel and Acelor look like dwarves. The market power of the ore suppliers is "virtually crushing," analysts from Dresdner Bank have noted.

In the gold business, things have changed especially radically and in a short time. Canadian businessman Peter Munk, who was born in Hungary and is now 78, first founded the mining company Barrick in 1983. He reports with some amusement that the company's management consisted of a "handful of hicks" back then.

Since then, Munk has been following quite an ambitious strategy; he's been buying up one company after the other across the globe. Recently he even bought up his old rival Placer Dome for more than $10 billion. In this way, Munk has catapulted himself to the top of the gold trade in little more than two decades.

The mining corporations are becoming more and more powerful, and they're organizing their business with increasing efficiency. A mine now works like a giant logistics company. Giant trucks are directed to the bucket excavators by computer. If a bucket gets stuck, the next trucks are immediately directed to the next excavation site. The trucks, which can cost up to $2 million, mustn't ever stand around idly. Even when the trucks are refueled, their engines keep running. One truck consumes about 10,000 liters (2,642 gallons) of fuel a day.

For such an operation to be profitable, mining companies need to invest almost exclusively in large sites. The resources have to be easily accessible and the ground has to contain significantly above-average quantities of ore. In the case of copper, for example, daily extraction only makes sense when a ton of ore contains more than five kilograms (11 lbs.) of copper. And a ton of ore needs to contain at least two grams (0.07 ounces) of gold.

Such abundant supplies can only be found in a few regions of the world, and excavation is focused on the so-called "three A's": Australia, Africa and, more recently, the Andes. For example, some 30 percent of the world's known copper reserves are in Chile, and about half of all iron ore comes from Brazil. Developed industrial nations are hardly extracting anything at this point: The last iron ore site in Germany was shut down in 1995.

The market for precious metals is even more narrow. Niobium is an especially heat-resistant metal -- its melting point is 2,468 degrees Celsius (4,474 degrees Fahrenheit). It's an alloy used in pipelines and turbines; about 75 percent of the niobium supply comes from a single Brazilian mine called Araxá. Platinum is another example: 98 percent of global production takes place at four sites; the South African Bushveld complex alone supplies 66 percent of global demand.

The entire world is dependent on a handful of mining corporations. In the past, when the prices of raw materials were low, these corporations made little effort to expand their capacity. They didn't invest in new extraction technologies, refineries or pipelines. Now they can hardly keep up with demand.

In the meantime, reserve supplies in the storage facilities of the London Metal Exchange have shrunk considerably. The prices for ships that can transport ore have risen drastically, and even the special trucks used are in short supply. David Hottman, the CEO of the small mining company Nevada Pacific Gold, paid about $110,000 for one of the trucks in early 2005. "Today I could sell it for $200,000," he says.

How much effort mining corporations put into the search for new reserves is ultimately a question of prices. The South African mines are only profitable when the price of gold is as high as it is now (about $600 per ounce): Some of the mining shafts are a full 4,000 meters (2.5 miles) deep. At the bottom of the shafts, ore is extracted in temperatures as high as 40 degrees centigrade (104 degrees Fahrenheit). The average extraction cost is $350 per ounce of gold.

That's why large mines are not immediately abandoned even when they don't make their owners a profit. Instead, production is reduced until prices rise and extraction becomes profitable again.

Such mechanisms are characteristic of how things work in the world of raw materials. When copper, coal or crude oil become cheaper, the producers curb production until the quantities available on the market are so low that prices begin to rise again. The producers wait and then raise their capacity again. The supply expands, until it exceeds demand again -- and the cycle begins over again. It's a cycle that can last years, sometimes even decades.

When the raw material becomes scarce and too expensive, consumers and corporations know how to help themselves. Home-owners acquire wood stoves in order to be a little less dependent on oil and natural gas. Industrialists begin using palladium instead of platinum when producing catalytic converters or fuel cells.

At the same time, new materials are put to use -- materials which displace traditional raw materials. The fuselage of the new Boeing 787 airplane is no longer produced from aluminum, but from carbon fiber composite and fiber glass.

Most importantly, the recycling of precious metals becomes more important when prices rise. In the cases of iron, steel, copper, aluminum and zinc, a regular recycling economy has developed. In Germany, almost half the steel is already produced from secondary raw materials and junk. Some 240 of the average 535 kilograms (529 of 1,179 pounds) of steel that go into a car are already obtained through recycling.

That's good for the environment and saves energy. It saves money too: The production costs are lower than when steel is produced directly from ore. Eighty percent of the copper that has been extracted until today is still in use.

Fossil fuels, unfortunately, will never benefit from recycling. And they are being burned up as quickly as ever. However, following the oil shocks of the 1970s, oil corporations and countries that import oil have made great efforts to at least slow the depletion of oil reserves. Influential US oil expert Daniel Yergin believes that vast amounts can still be extracted from the ground. His strategy: "Technology is the key."

To see those technologies in action one need only visit Shell's research center in Rijswijk, The Netherlands. There, engineers and geophysicists gather in a darkened room in order to watch how the exploration of the deep sea is proceeding 10,000 kilometers (6,214 miles) away, in the Gulf of Mexico. Seismographic and electromagnetic data about the ocean floor is converted to three-dimensional images on a screen in front of the scientists. In this way, they're able to direct ocean drills through salt domes and layers of granite with precision.

The simulation of extraction work on "digital oil fields" is only one example of the remarkable progress that oil and gas corporations have made. Remote-controlled drills equipped with sensors are driven through kilometers of sand and rock; during the drilling itself, the porosity, temperature and solidity of the rock is analyzed. Corporations pump water, steam, chemicals and even microbes into oil fields -- using techniques that enable them to extract even the last liters of oil from sites that would previously have been considered used up. Or they use high-pressure technology to force liquids into the depths, creating cracks (so-called "fracs") in the rock. In this way, natural gas contained in closed pockets can escape and stream towards the drill hole.

Such sophisticated techniques dramatically raise the costs of resource exploration. Billions are invested when consortiums build platforms 2,000 meters (1.2 miles) above the ocean floor. From these platforms, engineers direct countless little satellite pumps below; the curved drills of these pumps snake through the earth's crust like spaghetti. Thanks to such technology, it's now possible to extract not just 20 percent of the oil in an oil field, but between 35 and 40 percent, in some cases more.

BP CEO Lord Browne recounts that when he was still responsible for the North Sea oil field "Forties" 25 years ago, the exptectation was that no more oil would be available there by the mid-1990s, when 45 percent of the oil would have been extracted. Now more than 60 percent has been extracted, and the oil field is still in use. According to Browne, "the history of the North Sea reflects the overall development of the oil industry."

Nevertheless, the end is in sight. After oil extraction in the region peaked in 2000, exploration costs in the North Sea rose by almost half. The drilling sites will never extract the quantities they used to.

The Canadian province of Alberta, on the other hand, still has its best years ahead of it. Enormous amounts of oil have been found there, mixed with sand, clay and bitumen. The discovery of oil sands could prolong the pre-peak era for years, some believe. All major oil corporations have a presence in Alberta; even the Chinese are there.

The dramatic rise in oil prices has finally made extraction of oil from the sticky mixture economically viable. First the bitumen has to be separated out; then it is liquified with condensate so that it can be transported through the pipelines; and finally it is converted to light oil -- a complicated process that requires enormous quantities of water and energy. In the end, two tons of sand yield a barrel of oil.

Now doubts are being raised as to whether the potential of Canada's oil sands is really as great as many think. And given that no other industry emits as much carbon dioxide as extracting oil from oil sands, popular resistance is growing.

That's why the world's hopes are ultimately pinned to renewable energy sources -- biomass (organic materials from gall to hay that can be converted into synthetic fuels), water power (which already plays the most significant role in the production of renewable energy) and geothermal energy (the use of the vast heat reserves at the Earth's core). Presently, these are merely potential alternatives. And they will probably continue to represent a mere potential for as long as consumers choose fossil fuels.

High prices for raw materials aren't always indicators of physical scarcity. Metals and minerals will probably be abundantly available for several generations. And although regional dependence is increasing, there is no shortage of coal and natural gas yet either. It's only with regard to crude oil that things look different: The era of abundance could soon end.

Maybe it will really take as long as a generation until worldwide extraction peaks, as oil corporations insist. Or maybe the geologists at the Hanover-based BGR are right when they speak of 10 to 20 years. Or perhaps humanity has almost reached the point where we reach the plateau, as the skeptics warn. Of course, they have been saying this for years.

But regardless of who is right, crude oil will soon no longer be able to play the central role in the global energy mix that it plays today. BGR scientist Gerling says there are no doubts about that.

"We should have started taking this into account a long time ago," he says regretfully.

Adam's blogbox: secret prisons, torture, no habeas corpus - are we living in Cheney's asshole instead of in America?

Jesus Christ, it’s weird being alive in America today. I don’t know if I’m living in the most technological advanced, richest country on earth (with 5% of world population, we have 30% of its wealth) … or inside the stinky Darth Vader asshole of Dickhead Cheney.

First, the good news. iPods. Google. eBay. All manner of free expression on the net, like porn (mothers who love to fuck, anyone?). Videogames. Noam Chomsky, the world’s most popular intellectual. And the juicy prospect of having a woman as the main man of the world in 2008.

Now for the bad news.

I won’t go into the Iraq War -- bad idea, bad execution, over a 100,000 dead, including countless women and children, a whole country in an orgy of killing, and for what? Nor will I discuss our humiliating status as the world’s #1 debtor nation, or the fact that we have to suck up to Saudi Arabia for their oil, even though their citizens fucked us big-time on 9/11.

What’s more fundamentally bad, is the state of the soul of our nation. We’ve moved into some dubious moral waters. We’re beginning to look like a poor cousin of Stalinist Russia. Fascism Lite, complete with our own mini-Gulag, is a pretty good description.

A bill is moving through Congress at this moment that will not only excuse the torture we’ve done, but legalize its continuation. Senator McCain registered some protest, but it has now become totally symbolic. You can be sure that somewhere in a secret CIA prison, some suspected terrorist, who may not be one at all, is being water-boarded, or made to stand for 48 hours, or put into a stress position, or frozen naked with water making icicles on him, or getting rubber truncheoned, or being snarled at by a vicious dog. You can be sure the CIA, in what they call extraordinary rendition, has kidnapped some guy with the wrong name and sent him to another torture-happy nation to have his gonads hitched to a generator, as has now happened to a German and a Canadian, both totally innocent. And now it’s all going to become legal -- in the US at least. Maybe one day the International Court at the Hague will decide to do something about Cheney & Co. so that they, like Henry Kissinger, have to be careful which countries they visit, in case they get hauled off to jail to appear in front of a War Crimes tribunal.

Worst of all is our suspension of habeas corpus. This is an absolute foundation of Western jurisprudence. It means this: when you lock me up, you’ve got to charge me or release me. If you don't, I have the right to challenge your detention of me in court. You can’t keep me in jail indefinitely, without putting me in front of a court of law for trial.

Today we’ve got 14,000 people in jail in Guantanamo, Iraq, Afghanistan and secret CIA prisons (probably in one of those Eastern Europe Dictatorstans), whom we keep there without bringing them to justice. Some of them have been in jail for five years without seeing a lawyer, and have no idea what the fuck they’re guilty of.

Cheney/Bush have created a special legal status of human, the so-called “enemy combatant,” who is outside the reach of legal jurisprudence. These guys can be tortured, isolated and locked up for life without seeing the inside of a court, or even talking to their families.

Let’s be clear what “enemy combatant” means. It means a legal non-person. The Italian philosopher Giorgio Agamben likens them to the first humans to be so designated, under Roman law a few millennia ago. They didn’t call them “enemy combatants” then, they called them “homo sacer”. This was a human being who could be killed by anyone, without the killer ever being guilty of homicide.

In our time, another example of being a non-person was being a Jew in Nazi Germany. They were unter-menschen, sub-humans, who could be locked up and exterminated without anyone being guilty of homicide.

Now I don’t know whether we mean to exterminate “enemy combatants,” although keeping them locked up forever is tantamount to some kind of death.

But I do know we’ve suspended a basic law of our Western human tradition, one of the foundations of what makes us a democracy.

Since not many Americans have been declared “enemy combatants,” most of us don’t give a fuck. But we should. As far as I know, the only time habeas corpus was ever suspended in America before this, was when Abraham Lincoln did it during the Civil War, and when Roosevelt locked up Japanese Americans in concentration camps during WW2. But when those wars were over, we went back to democracy as usual. And afterwards, these actions were mightily criticized.

But Dickhead Cheney and Fratfuck Bush have said we’re in a long war, a war without end, the so-called Global War on Terror. That’s their excuse for keeping the special category of non-human “enemy combatant” in jail forever.

Let's also be clear who these "enemy combatants" are. A great many of them were produced by bounty hunters in Afghanistan, because we were offering $5,000 a pop for suspected terrorists. Heck, it was a good way for a warlord to make some quick dough. That brother-in-law I never liked, I'll sell the motherfucker to the stupid Americans as a terrorist. An "enemy combatant" can be anybody. The best guess is that maybe a hundred dudes out of the 14,000 we've got in jail actually belong there, and maybe 20 of them are real terrorists. The other guys are just twiddling their thumbs in jail and reading the Koran in between being waterboarded or rubber-truncheoned. The luckiest "enemy combatants" have been those who were British citizens; they've been released after some obligatory torture because Blair is Bush's poodle and Bush is nice enough to stop short of shitting on Blair's head by keeping innocent UK citizens in jail. Some of their hair-raising stories have been told. Four of them were in a documentary. Other guys, like the poor German and the Canadian, spent a year being tortured before they were released. The Canadian is suing Canada and America.

Who knows when this loose category of "enemy combatant" gets extended to, say, illegal immigrants, or some other demonized human form? We voted for Bush -- who says we can’t vote for someone worse than him, who’d lock up protesters, dissidents, activists, pot smokers, abortion doctors, feminists, gays, lesbians, libertarians, pinkos, Republicans or Democrats, without benefit of a trial?

The famous words of Pastor Martin Niemöller, about creeping Nazi persecution, springs to mind:

“First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.”


2. Rushing Off a Cliff (NY Times editorial)

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.

We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.
y to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.


3. Habeas Corpus, R.I.P. (1215 - 2006)
With a smug stroke of his pen, President Bush is set to wipe out a safeguard against illegal imprisonment that has endured as a cornerstone of legal justice since the Magna Carta.
By Molly Ivins

AUSTIN, Texas—Oh dear. I’m sure he didn’t mean it. In Illinois’ Sixth Congressional District, long represented by Henry Hyde, Republican candidate Peter Roskam accused his Democratic opponent, Tammy Duckworth, of planning to “cut and run” on Iraq.

Duckworth is a former Army major and chopper pilot who lost both legs in Iraq after her helicopter got hit by an RPG. “I just could not believe he would say that to me,” said Duckworth, who walks on artificial legs and uses a cane. Every election cycle produces some wincers, but how do you apologize for that one?

The legislative equivalent of that remark is the detainee bill now being passed by Congress. Beloveds, this is so much worse than even that pathetic deal reached last Thursday between the White House and Republican Sens. John Warner, John McCain and Lindsey Graham. The White House has since reinserted a number of “technical fixes” that were the point of the putative “compromise.” It leaves the president with the power to decide who is an enemy combatant.

This bill is not a national security issue—this is about torturing helpless human beings without any proof they are our enemies. Perhaps this could be considered if we knew the administration would use the power with enormous care and thoughtfulness. But of the over 700 prisoners sent to Gitmo, only 10 have ever been formally charged with anything. Among other things, this bill is a CYA for torture of the innocent that has already taken place.

Death by torture by Americans was first reported in 2003 in a New York Times article by Carlotta Gall. The military had announced the prisoner died of a heart attack, but when Gall saw the death certificate, written in English and issued by the military, it said the cause of death was homicide. The “heart attack” came after he had been beaten so often on this legs that they had “basically been pulpified,” according to the coroner.

The story of why and how it took the Times so long to print this information is in the current edition of the Columbia Journalism Review. The press in general has been late and slow in reporting torture, so very few Americans have any idea how far it has spread. As is often true in hierarchical, top-down institutions, the orders get passed on in what I call the downward communications exaggeration spiral.

For example, on a newspaper, a top editor may remark casually, “Let’s give the new mayor a chance to see what he can do before we start attacking him.”

This gets passed on as “Don’t touch the mayor unless he really screws up.”

And it ultimately arrives at the reporter level as “We can’t say anything negative about the mayor.”

The version of the detainee bill now in the Senate not only undoes much of the McCain-Warner-Graham work, but it is actually much worse than the administration’s first proposal. In one change, the original compromise language said a suspect had the right to “examine and respond to” all evidence used against him. The three senators said the clause was necessary to avoid secret trials. The bill has now dropped the word “examine” and left only “respond to.”

In another change, a clause said that evidence obtained outside the United States could be admitted in court even if it had been gathered without a search warrant. But the bill now drops the words “outside the United States,” which means prosecutors can ignore American legal standards on warrants.

The bill also expands the definition of an unlawful enemy combatant to cover anyone who has “has purposefully and materially supported hostilities against the United States.” Quick, define “purposefully and materially.” One person has already been charged with aiding terrorists because he sold a satellite TV package that includes the Hezbollah network.

The bill simply removes a suspect’s right to challenge his detention in court. This is a rule of law that goes back to the Magna Carta in 1215. That pretty much leaves the barn door open.

As Vladimir Bukovsky, the Soviet dissident, wrote, an intelligence service free to torture soon “degenerates into a playground for sadists.” But not unbridled sadism—you will be relieved that the compromise took out the words permitting interrogation involving “severe pain” and substituted “serious pain,” which is defined as “bodily injury that involves extreme physical pain.”

In July 2003, George Bush said in a speech: “The United States is committed to worldwide elimination of torture, and we are leading this fight by example. Freedom from torture is an inalienable human right. Yet torture continues to be practiced around the world by rogue regimes, whose cruel methods match their determination to crush the human spirit.”

Fellow citizens, this bill throws out legal and moral restraints as the president deems it necessary—these are fundamental principles of basic decency, as well as law.

I’d like those supporting this evil bill to spare me one affliction: Do not, please, pretend to be shocked by the consequences of this legislation. And do not pretend to be shocked when the world begins comparing us to the Nazis.

(To find out more about Molly Ivins and see works by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.)


4. Forget Nuremberg
How Bush's new torture bill eviscerates the promise of Nuremberg.
By David J. Luban (from Slate.com)

The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn't do it?

Could it have been " ego up "? I'm told ego up is not possible with a U.S. senator. That probably also rules out ego down. Fear up harsh? McCain doesn't have the reputation of someone who scares easily. False flag? Did he think they were sending him to the vice president's office? No, he already knew he was in the vice president's office. Wait, I think I know the answer: futility— which the Army's old field manual on interrogation defined as explaining rationally to the prisoner why holding out is hopeless . Yes, the explanation must be that the Bush lawyers would have successfully loopholed any law McCain might write, so why bother? Futility might have done the trick.

How else can we explain McCain's surrender this week on the torture issue, one on which he has been as passionate in the past as Lindsey Graham was on secret evidence?

Marty Lederman at Balkinization explains here and here some of the worst bits of the proposed " compromise legislation " on detainee treatment. But the fact is, virtually every word of the proposed bill is a capitulation, including "and" and "the." And yesterday's draft is even worse than last week's. It unexpectedly broadens the already broad definition of "unlawful enemy combatant" to include those who fight against the United States as well as those who give them "material support"—a legal term of art that appears to include anyone who has ever provided lodging or given a cell phone to a Taliban foot soldier out of sympathy with his cause. Now, not only the foot soldier but also his mom can be detained indefinitely at Guantanamo.

But the real tragedy of the so-called compromise is what it does to the legacy of Nuremberg—a legacy we would have been celebrating next week at the 60 th anniversary of the judgment.

What does the bill do to Nuremberg? Section 8(a)(2) holds that when it comes to applying the War Crimes Act, "No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d)." That means the customary international law of war is henceforth expelled from U.S. war-crime law—ironic, to say the least, because it was the U.S. Army's Lieber Code that formed the basis for the Law of Armed Conflict and that launched the entire worldwide enterprise of codifying genuinely international humanitarian law.

Ironic also because our own military takes customary LOAC as its guide and uses it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. That means goodbye, International Committee of the Red Cross; the Swiss can go back to their fondue and cuckoo clocks. It also means goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming.

And also goodbye, Nuremberg.

Sept. 30 and Oct. 1 mark the 60 th anniversary of the tribunal's judgment . If the opening chapters of Telford Taylor's superb The Anatomy of the Nuremberg Trials make one thing crystal clear, it's the burning desire of the United States to create international law using those trials. Great Britain initially opposed the Nuremberg trials and urged simply shooting top Nazis, out of fear they would use the trials for propaganda. Stalin favored conducting trials, but only to establish punishments, not guilt. Like Great Britain, he thought punishing the top Nazis should be a political, and not a legal, decision. The trials happened as they did only because the United States insisted on them for purposes of establishing future law—a task that summary justice at executive say-so could never have done.

At the London conference that wrote the Nuremberg Charter, France and Russia both objected to criminalizing aggressive war for anybody but the Axis countries. But Supreme Court Justice Robert Jackson, the American representative, insisted that creating universally binding international law was the prime purpose of the tribunal.

A compromise left the international status of Nuremberg law ambiguous—the tribunal's jurisdiction covered only the Axis countries, but nowhere does the charter suggest that the crimes it was trying were only crimes if committed by the Axis powers. Because of this ambiguity, the status of the Nuremberg principles as international law was not established until 1950, when the U.N. General Assembly proclaimed seven Nuremberg Principles to be international law. The American agenda had finally prevailed.

Well, forget all that as well. The Nuremberg Principles, like the entire body of international humanitarian law, will now have no purchase in the war-crimes law of the United States. Who cares whether they were our idea in the first place? Principle VI of the Nuremberg seven defines war crimes as "violations of the laws or customs of war, which include, but are not limited to ... ill-treatment of prisoners of war." Forget "customs of war"—that sounds like customary international law, which has no place in our courts anymore. Forget "ill-treatment"—it's too vague. Take this one: Principle II, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." Section 8(a)(2) sneers at responsibility under international law. Or Principle IV: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." Moral, shmoral. The question is, do you want the program or don't you?

The Nuremberg trials presupposed something about the human conscience: that moral choice doesn't take its cues solely from narrow legalisms and technicalities. The new detainee bill takes precisely the opposite stance: Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain . It systematically distinguishes "severe pain"—the hallmark of torture—from (mere) "serious" pain—the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as "bodily injury that involves ... extreme physical pain." To untutored ears, "extreme" sounds very similar to "severe"; indeed, it sounds even worse than "severe." But in any case, it certainly sounds worse than "serious." Administration lawyers can have a field day rating painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.

And then there is section 8(3), which says that "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions." Section (B) makes it clear that his interpretation "shall be authoritative (as to non-grave breach provisions)."

On Aug. 1, 2006, The Onion ran a story headlined " Bush Grants Self Permission To Grant More Power to Self ." It began: "In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers." It ended thusly: "Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power." How life imitates art! In the end, the three courageous Republican holdouts didn't want the president unilaterally trashing Geneva. Now it turns out that the principle they were fighting for was simply Congress' prerogative to grant him the unreviewable power to do so.

(This article is based on an earlier posting at Balkinization.)


5. The Blind Leading the Willing
A compromise between those who don't care and those who don't want to know.
By Dahlia Lithwick (from Slate.com)

Is it still called a compromise when the president gets everything he wanted?

Amajor detainee bill hurtling down the HOV lane in Congress today would determine the extent to which the president can define and authorize torture. The urgency to pass this legislation has nothing to do with a new need to interrogate alleged enemy combatants. The urgency is about an election.

Last time Congress rubber-stamped a major terrorism-related law no one had bothered to read in the first place, we got the Patriot Act . That alone should lead us to wonder whether there shouldn't be a mandatory three-month cooling-off period whenever Congress enacts broad laws that rewrite the Constitution.

The White House version of the detainee bill met with some resistance among ranking GOP members of Congress last week, but not enough to matter . And now, with a "compromise" at hand, nobody seems to agree on the meaning of the bargain we've struck. Sen. John McCain still believes that he's won on the bedrock principle of U.S. adherence to the Geneva Conventions. The Bush administration sees it as granting the president the authority to decide what Geneva really means.

That led to all the confusion last Sunday, when, appearing on Face the Nation , McCain claimed that the current bill "could mean that … extreme measures such as extreme deprivation—sleep deprivation, hypothermia, and others would be not allowed." This, on the same weekend that the editors at the Wall Street Journal crowed: "It's a fair bet that waterboarding—or simulated drowning, the most controversial of the CIA's reported interrogation techniques—will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster." So, what did we agree to? Is hypothermia in or out? What about sexual degradation or forcing prisoners to bark like dogs? Stress positions?

I'd wager that any tie goes to the White House. One hardly needs a law degree to understand that in a controversy over detainee treatment between the executive and legislative branches, the trump will go to the guy who's holding the unnamed detainees in secret prisons.

That brings us to a second stunning aspect of the so-called compromise: Not only do our elected officials have no idea what deal they've just struck, but they also have no idea what they were even bargaining about . In his Face the Nation interview, McCain revealed that he was in fact quite clueless as to what these "alternative interrogation measures"—the ones the president insists the CIA must use—actually include. "It's hard for me to get into these techniques," McCain said. "First of all, I'm not privy to them, but I only know what I've seen in public reporting."

Asked whether he had "access to more information about this than any of us because you've been in the negotiations," the senator was not reassuring. He knows "only what the president talked about in his speech." To clarify: McCain, the Geneva Conventions' great defender, is signing off on interrogation limits he knows nothing about. And so, it appears, will the most of the rest of Congress.

But that's not all. Congress doesn't want to know what it's bargaining away this week. In the Boston Globe this weekend, Rick Klein revealed that only "10 percent of the members of Congress have been told which interrogation techniques have been used in the past, and none of them know which ones would be permissible under proposed changes to the War Crimes Act." More troubling still, this congressional ignorance seems to be by choice. Klein quotes Sen. Jeff Sessions, the Alabama Republican, as saying, "I don't know what the CIA has been doing, nor should I know." Evidently, "widely distributing such information could result in leaks."

We've reached a defining moment in our democracy when our elected officials are celebrating their own blind ignorance as a means of keeping the rest of us blindly ignorant as well.

Over at the National Review Online they exult that the CIA torture program isn't just the president's project anymore. "Now it is just as much the program of Congress and of John McCain." Not quite right. Now it's the president's program that John McCain chooses not to know about.

And just to be completely certain, Congress is taking the courts down with it. No serious reader of the detainee-compromise bill can dispute that the whole point here is to sideline the courts . This bill immunizes some forms of detainee abuse and ignores others. It strips courts of habeas-corpus jurisdiction and denies so-called unlawful enemy combatants (a term that sweeps in citizens and noncitizens, Swiss grandmothers and Don Rumsfeld's neighbor if-that-bastard-doesn't-trim-his-hedge) the right to assert Geneva Convention claims in courts. Many detainees may never stand trial on the most basic question of whether they have done anything wrong. And courts will apparently now be powerless to do anything about any of this.

For the five years since 9/11, we have been in the dark in this country. This president has held detainees in secret prisons and had them secretly tortured using secret legal justifications . Those held in secret at Guantanamo Bay include innocent men , as do those who have been secretly shipped off to foreign countries and brutally tortured there. That was a shame on this president.

But passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we'll never hear about. Instead of detainees we didn't care about, we are authorizing detentions we'll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all.


6. Gray Is Beautiful
Why Congress shouldn't write interrogation rules.
By Emily Bazelon (from Slate.com)

Last week, President Bush said that the country would be at risk unless the CIA can continue using certain harsh interrogation methods. Waterboarding has apparently fallen off the list, but on it are seven methods that include hypothermia, sleep deprivation, and stress positions such as prolonged periods of standing (40-plus hours' worth). Whether you consider these methods torture or torture-lite or just an "alternative set of procedures," they're out of bounds according to international understanding of the Geneva Conventions, in particular the provision known as Common Article Three. So, to keep the CIA interrogation program going, Bush wants to define away our Geneva obligations—either Common Article Three goes, or the interrogators close up shop.

But how real is his threat? Bush keeps saying that he's seeking clarity on the CIA's behalf. His version of clarity, however, would encourage the executive branch to stretch its powers. Leaving room for a grey area is better policy and more morally sound.

Maybe I've watched too many episodes of 24 , but it's hard for me to believe that in the event that Bush's interrogation bill fails to pass, no interrogator can be found who would turn up the music, turn down the heat, and take the risk if such methods were deemed most likely to wring information out of a high-value suspect (always a questionable assumption). True, in Hamdan v. Rumsfeld the Supreme Court did reaffirm the United States' obligation, under Common Article Three, to bar "outrages upon personal dignity, in particular, humiliating and degrading treatment." But that doesn't necessarily mean that all harsh interrogation will cease unless Congress dodges that ruling by giving the CIA a free pass ahead of time. It just means that interrogators would have to take a chance and hope the courts will see it their way afterward. If that's good enough—and it must have been on some past occasions—then there's no reason to rush through Bush's bill on interrogation and the legal rights of the detainees. Or any other bill, for that matter.

Granted, this after-the-fact solution—lawyers call it the "necessity defense"—sounds weasely. It asks a few interrogators to take a risk on behalf of the rest of us. And it doesn't exactly strengthen the rule of law. (The one heartening thing about Bush's position is that it takes the Supreme Court so seriously.) But the benefits of the necessity defense are worth its unseemliness. Making use of it would allow us to reaffirm our commitment to the Geneva Conventions and help ensure that harsh methods of interrogation become the exception rather than the rule.

Nor does the potential risk to CIA interrogators seem unsupportable. According to the administration, in the five years since 9/11 only 14 detainees have been subjected to harsh interrogation treatment. That's a small number. Nor is there a lot of reason to think the interrogator who takes on the next 14 would be prosecuted. Nothing in the Supreme Court's decision in Hamdan v. Rumsfeld bars the administration from continuing to hold detainees overseas, beyond the reach of American courts or public knowledge, and the president has made it clear that he will continue to do so. And imagine the uproar if the attorney general in a Democratic administration later tried to hold an interrogator liable for doing his best to protect the country. Agency culture also factors in here: The CIA isn't exactly in the habit of giving up its own. Has there been a single prosecution against anyone in an intelligence agency or the military under the War Crimes Act for violation of Common Article Three—or anything else—since the war on terror began? I can't think of one.

Now imagine that the unlikely happens, and an interrogator is brought up on charges. He can argue that he had no moral choice but to put on the squeeze because of the value of the information he was thought to hold. If he had good reason to believe in the information's value, his chances in court look pretty good.

Bush is undoubtedly right that there would be more harsh interrogations, and more CIA agents willing to conduct them, if his bill were to become law. And much of the time, interrogators don't know in advance whether the sullen suspect in the room with them is Khalid Sheikh Mohammed II or a nobody. Still, no less a security-minded conservative than Judge Richard Posner of the 7 th U.S. Circuit Court of Appeals chooses the necessity defense over legislation that codifies "highly coercive" methods in his new book, Not A Suicide Pact: The Constitution in a Time of National Emergency . Considering whether to give a green light for torture ahead of time to ward off evil, he writes, "The question arises whether we should relax the prohibition against torture in such a case or trust public officers to perceive and act on a moral duty that is higher than their legal duty. I favor the latter course."

Posner argues that it is better for courts to determine liability after the fact because the alternative "would amount to authorizing executive officials to suspend all rights." This is a bad idea, he says, in part because officials who are given a free pass to interrogate upfront are encouraged to test—and expand—the limit of their authority. John Yoo's views about the poor weakened presidency to the contrary , most historians and law professors would probably agree with Posner that "presidents want to expand their power." Give them and the executive branch a green light ahead of time, and they'll speed through it. Make them assume the risks of breaking the law, and they'll proceed with greater caution. Posner may be talking about a narrower definition of torture here that does not extend to the CIA's seven contested methods. Still, his reasoning is the opposite of Bush's.

In standing up to the president, Sens. John McCain, Lindsey Graham, and John Warner have talked not about the necessity defense but about the importance of keeping the Geneva Conventions sacrosanct. And if the senators reach a compromise with the president, they may try to paper over their differences by appearing to leave Common Article Three intact without specifying what interrogators can and can't do. They would take the president at his word that the CIA techniques are not torture. That's the route McCain took last year in advocating for his anti-torture law. Maybe this will be an improvement on Bush's current proposal. Even better, though, would be for Congress to do nothing at all.


7. The Plain Meaning of Torture?
Literary deconstruction and the Bush administration's legal reasoning.
By Peter Brooks (from Slate.com)

Has newly minted Attorney General Alberto Gonzales studied the opinion handed down by the Supreme Court last November in Leocal v. Ashcroft ? There, Chief Justice William H. Rehnquist issued a ringing reaffirmation of "plain meaning." "Our analysis begins with the language of the statute," Rehnquist wrote. "When interpreting a statute, we must give words their 'ordinary or natural' meaning."

Leocal concerned whether a drunk-driving offense—in which injury to others occurred—could be construed by the immigration authorities as a "crime of violence" meriting deportation of the offender. No, said Rehnquist—interpreting an automobile accident as a "use of physical force" violates our common sense understanding of "use." Rehnquist reasonably re-emphasized a cardinal rule of legal analysis: that interpretation must proceed by what is often called the "plain meaning rule," affectionately known to lawyers as the PMR.

But something odd happened to the PMR in the memorandum on torture that Attorney General Gonzales, as White House Counsel, solicited from the Office of Legal Counsel in the Justice Department he now heads. That memo (signed by Assistant Attorney General Jay S. Bybee, and hence known as the "Bybee Memo"), dated Aug. 1, 2002, offers the OLC's interpretation of "standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code." It offers a remarkable example of textual interpretation run amok—less "lawyering as usual" than the work of some bizarre literary deconstructionist. And it's virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.

Bybee's analysis starts from an apparent commitment to the "plain meaning" rule. "The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause 'severe physical or mental pain or suffering.' In examining the meaning of a statute, its text must be the starting point." But, says Bybee, the statute doesn't define "severe." Absent such a definition, he continues, "we construe a statutory term in accordance with its ordinary or natural meaning." To find that ordinary and natural meaning, he turns to Webster's New International Dictionary (the 1935 edition, for some reason), then to the American Heritage Dictionary , and the Oxford English Dictionary , to discover that severe "conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure."

But this definition, however ordinary and natural, doesn't quite meet his purposes. So Bybee searches for other possible uses of the phrase "severe pain" in the U.S. Code, and discovers, as he puts it: "Significantly, the phrase 'severe pain' appears in statutes defining an emergency medical condition." "Significantly" is Bybee's transition word here—and one might ask whether the use of "severe pain" in the context of medical emergency is in fact more "significant" than any number of other uses of severe, in statutes and in ordinary usage. But this slide into medical usage allows Bybee to come up with his interpretation of choice: that the "severe pain" that defines torture must involve damage that rises "to the level of death, organ failure, or the permanent impairment of a significant body function." He's by now got us well out of common English usage and into the emergency room.

Next, Bybee interprets the language used to define "severe mental pain or suffering" in the torture statute, which includes "the prolonged mental harm caused by or resulting from A) the intentional infliction or threatened infliction of severe physical pain or suffering." To prolong, his Webster's (the 1988 edition this time) tells him, is to "lengthen in time," and this permits Bybee to segue into: "Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage." This transition suggests to him that "prolonged mental harm" (words not used elsewhere in the U.S. Code) might resemble post-traumatic stress disorder, lasting months or even years, noticed in torture victims.

This is thoroughly circular. It leads, over the next three paragraphs, to his claim that for torture to in fact be torture requires a specific intent to cause prolonged mental harm by one of the acts listed in the statute, and a defendant's good-faith belief that the acts he or she committed would not amount to the acts forbidden by the statute would conveniently constitute a "complete defense to such a charge." We may uneasily sense that we are witnessing a kind of free play of the signifier of the sort that literary critics and philosophers are sometimes accused of sponsoring.

The truly "deconstructive" cast of Bybee's interpretation of the torture statute comes in the next section, which takes up "Harm caused by or resulting from predicate acts." These acts include, "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." Since these "substances" are not further defined, Bybee sets out to make some distinctions. Here a longer quotation is necessary:

This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality." To be sure, one could argue that this phrase applies only to "other procedures," not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340 (2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances." The word "other" modifies "procedures calculated to disrupt profoundly the senses." As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster's Third New International Dictionary 1598 (1986) (defining "other" as "the one that remains of two or more") Webster's Ninth New Collegiate Dictionary 835 (1985) (defining "other" as "being the one (as of two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it "denotes an intention that they should be understood in the same general sense."

To use the "or" of "or other procedures"—which are of course supposed to be of the same sort—to argue that "disrupt profoundly" somehow controls and limits the meaning of "mind-altering" seems to me far from commonsensical, a parsing of vocabulary and syntax that appears arbitrary and even a bit demonic.

Whether or not this meaning was intended by Congress, the way Bybee claims to find the meaning derives from an ungoverned and unscrupulous reading that uses—very selectively—dictionary definitions to produce arcane and obfuscating interpretations. It's like a parody of a deconstructive reading written by a hostile critic.

I will refrain from citing the next paragraph, which takes us into the meaning of "disrupt," as "to break asunder; to part forcibly; to rend." (Here we are back with his 1935 Webster's , and a definition my 1975 American Heritage declares "obsolete." What about a more usual definition, such as "to upset the order of"?) But Bybee needs to come out, at the end of his paragraph, with: "Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality."

Even Abu Ghraib doesn't make it to torture under this definition.

Bybee gives us Humpty Dumpty literary interpretation, styled as careful legal reasoning. In Through the Looking-Glass , Humpty Dumpty says to Alice:

"There's glory for you!"

"I don't know what you mean by 'glory,' " Alice said.

Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "

"But 'glory' doesn't mean a 'nice knock-down argument,' " Alice objected.

"When Iuse a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master—that's all."

As Gonzales explained to Patrick Leahy during his confirmation hearing, "Ultimately, it is the responsibility of the department [of Justice] to tell us what the law means, Senator." To be sure.


8. Tainted Fruit
How can al-Qaida's 14 worst terrorists stand trial?
By David Cole (from Slate.com)

Torture and disappearances work. That was the essential message in an extraordinary speech by President George W. Bush on Sept. 6 . In the speech, the president acknowledged for the first time the existence of secret detention centers administered by the CIA, admitted that detainees held there had been harshly interrogated, and argued that it was all worth it because the tactics had produced valuable intelligence that had "saved American lives." Now, the president claimed, he was transferring 14 detainees from their "disappeared" states in these CIA "black sites" to Guantanamo Bay, so that they could be "brought to justice."

It seems highly unlikely that these men—who include Khalid Sheikh Mohammed, the alleged mastermind of 9/11, as well as several other high-level al-Qaida leaders—can actually be brought to justice, precisely because of the way the CIA treated them. Here, as in so many of its other national security initiatives, the Bush strategy has backfired, leaving the government fatally hamstrung in holding real terrorists accountable. Just as in Iraq, the administration violated basic principles of the rule of law in the name of "preventing terrorism," and we are all now paying the consequences.

No one looks forward to a trip to Guantanamo, the administration's would-be law-free zone. But it may prove a relative oasis for its 14 latest arrivals. They have already been subject to an officially authorized, secret practice that literally "disappeared" them for years at a time, held them incommunicado without any sort of legal process, protection, or oversight, and then subjected them to such interrogation tactics as water-boarding, in which suspects are made to think that they are drowning in order to encourage them to talk. After all that, Guantanamo may be a relief.

In defense of these so called "alternative" practices—which Bush made clear he was not ceasing, but holding in reserve for future high-level detainees—the president asserted that the administration had gained valuable information. He then cataloged cases in which such information had purportedly identified other terrorists, facilitated their capture, and foiled a number of unspecified terrorist plots.

The president gave insufficient details to test his claims. We can't know, for example, whether these men might have been captured without resort to disappearance and torture, nor can we know how central the information they provided was to the capture of others. Bush essentially asked the world to trust him on this.

But his track record provides little reason for trust. Whether it be the missing weapons of mass destruction in Iraq, the notion that Guantanamo held only the "worst of the worst," the denial that torture has been a central part of administration policy, or the claim that Americans would be wiretapped pursuant only to court order, few of the administration's claims in the "war on terror" have sustained careful analysis.

There is already evidence that President Bush either exaggerated or misspoke with respect to that torture evidence. He claimed that harsh interrogation of one of the CIA's detainees led to the identification and capture of Khalid Sheikh Mohammed, in part by revealing that his nickname was "Mukhtar." But according to intelligence officials, the government paid an informant $25 million for the tip that led to Mohammed's arrest, and the CIA knew Mohammed's nickname even before 9/11. He also claimed that harsh interrogation of Abu Zubaydah led to the identification of Ramzi Bin al-Shibh, but as Spencer Ackerman has pointed out :

A Nexis search for "Ramzi Binalshibh" between September 11, 2001 and March 1, 2002—the U.S. captured Abu Zubaydah in March 2002—turns up 26 hits for The Washington Post alone. Everyone involved in counterterrorism knew who bin Al Shibh was. Now-retired FBI Al Qaeda hunter Dennis Lormel told Congress who Ramzi bin Al Shibh was in February 2002.

Even if it were true that the disappearance and torture of CIA detainees led to the capture of other men, that very fact will very likely preclude any effort at bringing them to justice now. The Supreme Court has ruled that using coerced testimony to convict a defendant violates the most basic principles of fairness and thus violates the Constitution's guarantee of due process. It does so, the court has ruled, not only because coerced confessions are inherently unreliable, but also because the tactic of coercing testimony is itself normatively unacceptable—even where it results in a true confession. The court has also held that evidence obtained by way of leads gained from such coerced testimony must also be excluded from trial as "fruit of the poisonous tree."

As a result, defense lawyers for the 14 CIA detainees need only file President Bush's speech at their trials; a speech in which he claims that the detainees were identified and captured through information gleaned largely from the CIA's mistreatment of other detainees, and their prosecutions would almost certainly have to be dismissed as "tainted fruit." Thus, President Bush has effectively immunized those who may actually be the "worst of the worst" from being held accountable for their wrongs.

The president has a solution, though. He simply won't give the detainees a fair trial. Instead, he proposed in that same speech that Congress adopt procedures for special military tribunals to permit the admission of coerced testimony (and therefore, by extension, the fruits of such coerced testimony). Tortured testimony would be inadmissible, his proposed rules say, but not testimony coerced through measures short of torture. And this administration has long defined "torture" so narrowly that it does not include such tactics as water-boarding or threats of death.

One might dismiss this provision of the new rules as irrelevant, because surely the introduction of coerced testimony would violate the Constitution, the Geneva Conventions, or the McCain Amendment—which makes explicit that the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment protects everyone in U.S. custody, wherever they are held.

The administration has responses to each of these objections as well. It argues that the U.S. Constitution simply does not protect foreign nationals outside our borders—even when we have locked them up and are threatening to put them to death. The Supreme Court hinted that it disagreed with that position in Rasul and Al Odah , the Guantanamo detention cases of 2004, but it remains an open question.

As for the Geneva Conventions, the administration's military tribunal bill would expressly bar any detainee from asserting in any court any rights under the conventions. That would render Geneva legally irrelevant even if its provisions are blatantly violated. And while the administration lost its fight to defeat the McCain Amendment altogether, it did succeed in ensuring that it lacked any means of enforcement.

If it gets its way now, the Bush administration will have rigged the military trial rules so that it can send detainees it has disappeared and tortured to their deaths, without being bothered by the fact that it abused their fundamental human rights.

In the long run, the court that must ultimately be satisfied is the court of world opinion. What will the world think if the United States is willing to throw aside the Constitution, the Geneva Conventions, and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, in order to achieve the convictions President Bush has now promised the families of 9/11 victims? One thing is certain—they will not be celebrating that justice has been done.

If the president truly wanted to bring these most culpable terrorists to justice, he should have treated them fairly from the outset. Having chosen to violate two of the most fundamental principles of international law—the prohibitions against "disappearances" and torture and cruel, inhuman, and degrading treatment—he has painted himself, and the American people, into a corner. His latest speech suggests that as with Iraq, he has no idea how to find a credible way out.


9. Does Torture Work?
Seymour Hersh evades the question.
By Fred Kaplan (from Slate.com)

Seymour Hersh's new book, Chain of Command: The Road From 9/11 to Abu Ghraib , reveals our most intrepid investigative reporter working near the top of his game. Basically a compilation of the pieces that Hersh wrote for The New Yorker over the past few years—expanded, updated, and re-edited, in some cases significantly so—the book holds up as a cohesive tale and a searing indictment of the Bush administration: its chicanery with intelligence in the months leading up to the Iraq war, its inadequate planning for the war's aftermath, and its muffing of all the wars—in Iraq, Afghanistan, and the broader war against terrorism—ever since.

There is, however, one gnawing equivocation in Hersh's otherwise forthright account. It comes in the first section, called "Torture at Abu Ghraib," which takes up over 70 pages of this 370-page book. Hersh blew the lid off the Abu Ghraib scandal last spring—the photographs, the Taguba report, the cover-ups, the links up the chain of command (which, in his book, he extends all the way up to the Oval Office). But he has always skirted a vital question: Does torture work ?

Hersh is not alone in his evasiveness. Liberals have a tendency to accept, all too eagerly, the argument that torture is ineffective, that it doesn't yield useful information, that a tortured detainee will tell his inquisitors whatever they want to hear. This is an appealing argument. If it's true, we don't have to wrestle with any moral or legal dilemmas. If torture simply doesn't work, all those difficult questions are moot.

But it is, in fact, very likely that, under some circumstances, with some detainees, torture does produce, in the parlance of the trade, "actionable intelligence." Torture to produce a confession ("Yes, I am a terrorist") almost certainly is useless; at some point of pain, many people would confess to anything. But torture to elicit specific information (Who told you to do this? Where did the meeting take place? Who else is in your cell? What are they planning to blow up tomorrow?) sometimes will do—clearly, has done—the job. If it hasn't, many times over the centuries, then why do so many regimes engage in it? Some no doubt do it for the kicks, but they're not all purely sadists.

I do not mean to advocate torture. I mean only to suggest that it's time to start wrestling with those moral and legal dilemmas, to face them straightforwardly. If al-Qaida strikes the United States again, our leaders—whoever they are—will be tempted to resort to torture as a method of getting vital intelligence quickly, and we or they or someone should have mapped out crucial distinctions ahead of time: What is acceptable, what isn't; who should engage in it, who shouldn't; for what purposes is it legitimate, for what purposes isn't it; or whether we should decide, after an honest appraisal of its costs and benefits, that the whole business of torture—however you define it—is irredeemably beyond the pale.

It should be noted that the torture at Abu Ghraib appears to be utterly unjustified by any standards. Hersh clearly shows—and the Schlesinger report has confirmed—that the vast majority of the inmates at Abu Ghraib were common criminals or total innocents rounded up in random sweeps who were subjected to no screening before their horrendous ordeals began.

But what about the inmates elsewhere, many of whom really were, and are, al-Qaida operatives? Hersh refers to a highly classified "special-access program"—approved by President Bush and carried out by Secretary of Defense Donald Rumsfeld—that involved, as he puts it, "snatching or strong-arming suspected terrorists and questioning them in secret prison facilities in Singapore, Thailand, and Pakistan, among other sites." What about the torture—presumably there's torture of one sort or another—that went on there? For the moment, forget about whether such techniques are proper. That's a separate though no less important matter, to be dealt with after this question is answered: Did they produce useful intelligence?

At one point, Hersh suggests that they did. He writes that, early on in the Iraqi insurgency, detainees weren't giving their American interrogators any substantive information. Hersh quotes a "former intelligence official" on what Stephen Cambone, the assistant secretary of defense in charge of the operation, did in response in mid-2003:

Cambone says, I've got to crack this thing and I'm tired of working through the normal chain of command. I've got this apparatus set up—the black special-access program—and I'm going in hot. So he pulls the switch, and the electricity begins flowing last summer. And it's working. We're getting a picture of the insurgency in Iraq and the intelligence is flowing into the white world. We're getting good stuff.

Things went awry, Hersh's source goes on, because, when the order went out, too few soldiers were trained in what to do, and too many of their commanders looked the other way. But notice what the source said about the initial results: "[I]t's working. … We're getting good stuff." So, is the problem Cambone's orders or the fact that the U.S. military didn't have enough people with the brains or training to carry them out with restraint?

The "former senior intelligence official" seems to suggest the latter. Hersh, summarizing his words, writes:

The SAP [special-access program] was useful as long as it was under the control of "good, well-trained guys. But politics got involved, and decisions were based on speed, and not patience."

Similarly, Hersh quotes a "Pentagon consultant" as saying of the Abu Ghraib torturers:

We don't raise kids to do things like that. When you go after Mullah Omar, that's one thing. But when you give the authority to kids who don't know the rules, that's another.

Again, the question is tacitly raised: What about when "you go after Mullah Omar"? Then is it all right to use extreme measures, if necessary?

In a later chapter, dealing with the failure of U.S. intelligence and especially the collapse of the CIA's clandestine service through the 1980s and '90s, Hersh tells a tantalizing story about the Jordanian security service. In the mid-1980s, Abu Nidal's terrorist organization threatened the life of Jordan's King Hussein. The king told the service, "Go get them." In response, security agents seized close family members. Hersh continues:

The Abu Nidal suspect would be approached, given a telephone, and told to call his mother, who would say, according to one CIA man, "Son, they'll take care of me if you don't do what they ask." (To his knowledge, the official carefully added, all the suspects agreed to talk before any family members were actually harmed.) By the early 1990s, the group was crippled by internal dissent and was no longer a significant terrorist organization. … "Jordan is the one nation that totally succeeded in penetrating a group," the official added. "You have to get their families under control."

Hersh doesn't explicitly endorse this method. But does he implicitly? Should he? Should we? He adds, "Such tactics defy the American rule of law, of course, and the CIA's procedures, and many experts doubt that they are even effective." Who are these doubtful experts, and what's their reasoning? Hersh's CIA source seems to think the tactics were effective. As for law and procedures, should they stand in the way of taking apart al-Qaida? It's a radical proposition for the U.S. government to start acting like the Mafia. Again, I don't have the answers. But it's time that we all began to ask the questions.


10. The Center Cannot Hold: The Bush Regime in Crisis
by Juan Santos (from www.dissidentvoice.org)

The headlines tell the tale:

From the Washington Post :”Torture Is Torture”

From the Boston Globe :”Rebelling against torture and Bush”

From Fox News :”Bush Faces Election Year Revolt in Own Party”

From Legal News Television :”Bush Fears War Crimes Prosecution”

The President is naked: He is no longer a “wartime president”; he’s now the Torture President.

Officials in the Bush White House could be charged with war crimes.

So they were warned by then -- White House Counsel Alberto Gonzalez after they launched their war against Afghanistan, according to documents obtained by Newsweek last Spring. Gonzalez warned that violations of the War Crimes Act can be punished severely -- including by death, and that it was “difficult to predict with confidence” how a future Justice Department might apply the law.

Special focus was placed on language in the Geneva Conventions that condemns "outrages upon personal dignity" and "inhuman treatment" of prisoners. These crimes were "undefined," according to Gonzalez, the same plea we hear today from President Bush.

Warning the administration of its potential culpability, Gonzalez urged the President, to, in effect, bluff it out. He wrote, "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution."

A series of Administration torture memos have been made public, memos vetted by Gonzalez, lawyers at the National Security Council and staffers for Vice President Dick Cheney. They were meant to provide the regime with legal cover for state-approved torture and held that Bush, as Commander-in-Chief, was above the law.

According to a Justice Department memo on August 1, 2002, the administration’s “ban on torture is limited to only the most extreme forms of physical and mental harm" -- actions that might cause "death or organ failure." Anything “less,” the regime defined as mere “abuse.”

“Abuse” would seem to include these techniques used against detainees in Iraq, according to an FBI memo released by the ACLU: “strangulation, beatings, [and] placement of lit cigarettes into the detainees ear openings."

In a February 2002 letter, Bush took the matter of torture on himself: "I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority to suspend Geneva (conventions) as between the United States and Afghanistan. I reserve the right to exercise this authority in this or future conflicts."

That defense evaporated with the recent Supreme Court decision in Hamdan v. Rumsfeld , which held that the US is bound by the letter of the Geneva Conventions.

The administration, facing the reality of potential prosecution as war criminals, is increasingly desperate.

The GOP is a party in revolt against itself, one trying to distance itself from itself, ducking for cover from itself and from the fallout of simultaneously being too fascistic and not fascistic enough.

The Bush regime and the Republicans are in profound danger on other fronts as well. Following the lead of imperialist strategists from Democrat Zbignew Brzezinski to the Project for a New American Century, the regime committed itself to a plan of conquest in the Middle East and Central Asia, and to a fascistic program of political and racial repression at home, all under the rubric of a “war on terror.”

Bush apparently took Brzezinski literally when he warned in The Grand Chessboard , his 1997 call for a US global hegemony: “It is also a fact that America is too democratic at home to be autocratic abroad. This limits the use of America's power, especially its capacity for military intimidation.”

The Bush crew determined, in any case, to make the US less “democratic” at “home,” and to launch a series of pre-planned wars for global dominance abroad.

Deeply hated by people everywhere, on the verge of losing power in the House and Senate, divided over torture, spying, military tribunals, secret prisons, immigration, and plans for war against Iran, mired in loss in Iraq, rocked by scandal and widespread corruption, exposed as mass killers of the innocent in Lebanon and as racists in New Orleans, the Republican regime is finding that its center cannot hold.

The Christian Science Monitor says that 61% of people in the US oppose the war in Iraq.

By a margin of 52% to 43%, respondents to a Zogby poll want Congress to consider impeaching President Bush if he wiretapped American citizens without a judge’s approval -- which, of course, he did.

The Republican Party and the Bush regime are in chaos.

Strategically, the Republicans have pushed things to a breaking point: they’ve overextended the Empire in ways that could lead to its defeat.

At last the mainstream press is on the attack -- they want no imperial defeat -- and would-be “moderate” Republican imperialists like John McCain are in rebellion. Even Colin Powell, who as one pundit noted “helped design and lead” Bush’s policy toward “terrorists,” is on the attack, breaking his public silence on the matter of torture years after the fact. The lifeboat is filled with rats.

Republican operatives have a keen eye on Bush’s military lap dog, Tony Blair, as his engine sputters in mid-flight, as his key supporters demand his resignation, his Labor Party painfully aware that if it “stays the course” its dominance of British politics is lost. Blair has promised to resign by Spring -- just long enough to help Bush launch war against Iran, one assumes.

Even here the Republicans are divided. According to Martin Walker of UPI, Defense Secretary Donald Rumsfeld has cold feet over the regime’s plan for striking Iran while Vice President Dick Cheney is pushing all the harder for war. Walker writes, “This heralds the first important policy breech between the triumvirate of Bush, Vice President Dick Cheney and Rumsfeld, sometimes known in Washington as "the iron triangle," in almost six years of the Bush administration.”

Let no one think the mainstream press or the Republicans suddenly “got religion,” or anything else akin to morality.

The Bush regime is failing miserably -- in Iraq and elsewhere -- at fulfilling the geo-strategic mandate laid out by the “Democrat’s Kissinger,” Brzezinski whose strategic thinking finds striking parallels in the Project for a New American Century cabal that runs the White House.

"The most immediate task,” Brzezinski wrote, “is to make certain that no state or combination of states gains the capacity to expel the United States from Eurasia or even to diminish significantly its decisive arbitration role."

The Bush failure in Iraq sets the stage for just such a scenario to unfold, and the regime’s move on Iran threatens to crystallize an opposing war bloc -- precisely the bloc Brzezinski most openly worried about in The Grand Chessboard, one that might expel the US from Eurasia or severely limit its imperial designs there:

Potentially, the most dangerous scenario would be a grand coalition of China, Russia, and perhaps Iran, an "antihegemonic" coalition united not by ideology but by complementary grievances. It would be reminiscent in scale and scope of the challenge once posed by the Sino-Soviet bloc, though this time China would likely be the leader and Russia the follower.

The Republicans have nothing of the certainty the Labor Party shows. Some think they’ve gone too far, others not far enough down the road to global war and internal repression. Bush faces one “revolt from below” in the Senate over torture and military tribunals, and another from House Republicans who favor a profoundly racist and punitive attack on brown migrants.

Seven leading conservatives, including Richard Viguerie and Christopher Buckley recently issued a call in the Washington Monthly for a Republican defeat.

The Republicans can no longer rule, and the Democrats offer no alternative at all; however you slice it, the US is still the US, and if anything stirs people here it is hatred of Bush and Cheney, not love for the imperialist “B” team called the Democrats.

If there were a mass radical movement in the US, the Bush regime would be toast.

The only force poised to fully capitalize on the Republican crisis is the Democratic Party. It’s a crime. Silent during all the long years of torture and “secret” prisons, silent on the coming war against Iran, silent on Iraq -- except to say that they know how such things should be done -- silent as they played along with developments toward fascism, the Democrats will now pose as upholders of the “real” “American” values.

And it will be a lie.

They will impeach and try Bush if they can and if they have to by resorting to nothing but lies: “America” really doesn’t torture they will say -- while evading the history of the Philippines, Viet Nam, the Indian Wars, and the death squads and torture regimes the Empire has backed from the Shah of Iran to Guatemala, to their ex-puppet Saddam Hussein himself.

But make no mistake, despite the Democrats, the emerging crisis of the Bush regime is of historical importance.

At this moment the Empire’s rulers are vacillating -- they can’t back down and apparently can’t move forward. What we see developing could turn quickly into a vacuum of power, a paralysis of the ruling class.

That means its time for us to stop vacillating.

The regime is not all powerful. The steamroller toward fascism is not unstoppable. It never was .

Their grip is slipping, right now.

This is a chance for us to stop the coming war against Iran and with it the awful risk of a nuclear war; to force a pullout from Iraq, to stop the secret dungeons and torture chambers; to abort fascism in the US -- to see it stillborn. Even, perhaps, to clear the path so we can force drastic action on global warming, to stop the mass death of Life on Earth.

It’s not time to rely on the Republican’s Silent Partner.

It’s time to take it to the streets. It’s our chance to drive out the Bush regime.

It’s the only chance we’ll get.

Juan Santos is a Los Angeles based writer and editor. His essays from 2006 can be found at: http://the-fourth-world.blogspot.com/. He can be reached at: JuanSantos@Mexica.net)


12. Habeas Corpus Must Not be Sacrificed in War on Terror -- by Jared Goldstein

Mohammed Daihani is a Kuwaiti accountant imprisoned by the United States at Guantanamo Bay for almost four years. I was one of the lawyers who brought a suit for habeas corpus on Mr. Daihani's behalf, asking for an explanation of why the government was imprisoning him.

After the court ordered the government to explain its reasons for holding Mr. Daihani, the government released documents showing that military officials had concluded that Mr. Daihani had never taken part in any terrorist activities against the United States, and that he was not a member of al-Qaida, the Taliban, or any other anti-American group. Rather, Mr. Daihani was accused of having given a few hundred dollars to what he believed was a legitimate charity, which had given money to another organization, which, in turn, was alleged to be associated with al-Qaida.

After years of interrogations at Guantanamo, the military interrogators had come to realize that Mr. Daihani had not meant to give money to support terrorism, having had no inkling that his donation could have supported any terrorist groups.

Yet to the U.S. military it did not matter whether Mr. Daihani had intended to support terrorism or even known that he might have supported terrorism. Even if his support for terrorism was entirely accidental, the military designated Mr. Daihani an "enemy combatant," and, on that basis, kept him locked up 24 hours a day for four years, in solitary confinement in a 9- by 6-foot cell, forbidding him to speak to his family or even to read a newspaper.

The absence of any evidence that Mr. Daihani had ever done anything to support terrorism came to light only because the right to seek habeas corpus was available. After the Supreme Court held, in 2004, that Mr. Daihani and the other detainees could seek habeas corpus, Mr. Daihani was allowed to meet with his lawyers, who worked for several years to win his freedom. More than a year after it became public that no evidence supported Mr. Daihani's imprisonment, the government released him to Kuwait, his home country.

Congress is now poised to do something it has never done before: Take away the right of prisoners to seek habeas corpus. Since long before the United States became a nation, the right to seek habeas corpus has guaranteed that anyone imprisoned by the government may ask a judge to determine whether he or she is properly imprisoned. The right to seek habeas corpus has applied to prisoners regardless of whether they are citizens or foreigners, and no matter how dangerous they are accused of being, or how horrible their alleged crimes.

The right to habeas corpus has been a basic part of English common law, and, later, American law, since the adoption of the Magna Carta, in 1215, which established that no one could be imprisoned on the mere say-so of the king.

The founders of the United States considered habeas corpus to be such a fundamental protection against tyranny that they enshrined it in the Constitution. Congress has expanded the right to seek habeas corpus several times, and it has never tried to take the right away. To do so now would turn our backs on our fundamental principles of justice.

The Bush administration has proposed revoking this fundamental right for the 450 or so foreigners held at Guantanamo. If Congress goes along, no limits will remain on the government's power to imprison people without evidence and without trial. Doubtlessly, the United States can and should lock up terrorists posing a threat to the nation -- but it must do so within the bounds of law.

Our strength as a nation is demonstrated when we treat even our worst enemies within the rule of law.

The courts must be available -- as they have been for centuries -- to make sure that the people we imprison really are our enemies. If Congress takes away the right of Guantanamo detainees to go to court, the government will be able to wrongly hold people forever. There will be nothing anyone can do about it.

If Congress eliminates habeas corpus for the Guantnamo detainees has had a trial in which a judge looked at the evidence alleged to justify their imprisonment. If Congress takes away the right to seek habeas corpus, no one will ever know how many more prisoners are completely innocent.

The damage that unlawful imprisonment inflicts on people like Mr. Daihani is immeasurable. What can be known is the damage that eliminating habeas corpus would do to the United States: The United States would no longer be a nation under law but, rather, a nation without law.

(Jared Goldstein is an associate professor at Roger Williams University School of Law, where he teaches constitutional and environmental law.)


12. Even Timothy McVeigh Was Afforded Constitutional Rights
The Flaws in the Military Commissions Act
By Sen. RUSSELL FEINGOLD

Let me be clear: I welcome efforts to bring terrorists to justice. It is about time. This Administration has too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.

But we wouldn't be where we are today, five years after September 11 with not a single Guantanamo Bay detainee having been brought to trial, if the President had come to Congress in the first place, rather than unilaterally creating military commissions that didn't comply with the law. The President wanted to act on his own, and he dared the Supreme Court to stop him. And he lost. The Hamdan decision was an historic rebuke to an Administration that has acted for years as if it were above the law.

Finally, only because he was essentially ordered to do so by the Supreme Court, the President has agreed to consult with Congress. I would have hoped that we would take this opportunity to pass legislation that allows us to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, have the potential to demonstrate to the world that our democratic, constitutional system of government is our greatest strength in fighting those who attacked us.

And that is why I am saddened that I must oppose this legislation. Because the trials conducted under this legislation will send a very different signal to the world, one that I fear will put our own troops and personnel in jeopardy both now and in future conflicts. To take just a few examples, this legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death. That is simply unacceptable. We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.

Not only that, this legislation would deny detainees at Guantanamo Bay and elsewhere-people who have been held for years but have not been tried or even charged with any crime-the ability to challenge their detention in court. Among its many flaws, this is the most troubling-that the legislation seeks to suspend the Great Writ of habeas corpus.

The legislation before us is better than that originally proposed by the President, which would have largely codified the procedures the Supreme Court has already rejected. And that is thanks to the efforts of some of my Republican colleagues for whom I have great respect and admiration.

But this bill remains deeply flawed, and I cannot support it.

One of the most disturbing provisions of this bill eliminates the right of habeas corpus for those detained as enemy combatants. I support an amendment by Senator Specter to strike that provision from the bill. I ask unanimous consent that my separate statement on that amendment be put in the record at the appropriate point.

Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.

Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.

As a group of retired judges wrote to Congress, habeas corpus "safeguards the most hallowed judicial role in our constitutional democracy--ensuring that no man is imprisoned unlawfully."

This bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.

Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.

That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.

Why would we turn our back on hundreds of years of history and our nation's commitment to liberty -- particularly when there is no good reason to do so? We should be working to provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice. We can do that quite well without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.

Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular--the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not , in fact, enemy combatants. Unless any of my colleagues can say with absolute certainty that everyone detained as an enemy combatant was correctly detained--and there is ample evidence to suggest that is not the case--then we should make sure that people can't simply be locked up forever, without court review, based on someone slapping a "terrorist" label on them.

There is another reason why we must not deprive detainees of habeas corpus, and that is the fact that the American system of government is supposed to set an example for the world, as a beacon of democracy. And this provision will only serve to harm others' perception of our system of government.

A group of retired diplomats sent a very moving letter explaining their concerns about this habeas-stripping provision. Here is what they said: "To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world."

Many, many dedicated patriotic Americans share these grave reservations about this particular provision of the bill.

They have reservations not because they sympathize with suspected terrorists. Not because they are soft on national security. Not because they don't understand the threat we face. No. They, and we in the Senate who support the Specter amendment, are concerned about this provision because we care about the Constitution, because we care about the image that American presents to the world as we fight the terrorists. Because we know that the writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. If we sacrifice it here, we will head down a road that history will judge harshly and our descendants will regret.

We must not imperil our proud history. We must not abandon the Great Writ. We must not jeopardize our nation's proud traditions and principles by suspending the writ of habeas corpus, and permitting our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.

Unfortunately, the suspension of the Great Writ is not the only problem with this legislation, nor is it the only instance where the legislation goes beyond establishing military commissions to include unnecessary provisions with deeply troubling results.

The Administration has spoken about the need for this legislation to bring clarity to the War Crimes Act, which makes it a crime to violate Common Article 3 of the Geneva Conventions. It has proposed that we specifically list the actions that would be considered crimes under that law. On the face of it, that certainly sounds sensible. But when you look at this legislation, you realize that the modification it makes only muddies the waters. Not only that, it does so retroactively.

The key problem is in the definition of "cruel or inhuman" treatment. This is a critical definition because it is the provision that determines which coercive interrogation techniques amount to crimes under U.S. law. But because of the complex structure of this section, it is very difficult to understand what the new definition would criminalize, and I am concerned that any ambiguity may be interpreted too narrowly by some. The definition incorporates several terms that in turn have their own separate definitions, and it even has one new definition that doesn't go into effect until the date of enactment, even though the rest of the amendments to the War Crimes Act are made retroactive to 1997. Frankly, the new prohibition is extremely unclear. And we have already heard different interpretations of it from Senators and Administration officials who negotiated the language. If our goal is to give unambiguous guidance to our personnel, and the courts, this does not do it.

The way the provision is drafted, it even seems designed to grant immunity to senior officials who authorized coercive interrogation techniques.

We should just follow the approach originally endorsed by the Senate Armed Services Committee, which would have applied the language of the McCain amendment.

I am also very concerned about the definition of unlawful enemy combatant that is included in this legislation, and about the corresponding issue of the jurisdiction of the military commissions.

This legislation has been justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men recently transferred to Guantanamo Bay. Yet if you look at the fine print of this legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of serious terrorist crimes, but also individuals, including legal permanent residents of this country, who are alleged to have "purposefully and materially supported hostilities" against the United States or its allies.

This is extremely broad, and key terms go undefined. And by including hostilities not only against the United States but also against its allies, the bill allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.

Not only that, but the bill would also define as an unlawful enemy combatant subject to trial by military commission, anyone who "has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.

If we are going to establish military commissions outside of our traditional military and civilian justice systems, at a minimum we should explicitly limit their application to the worst of the worst, those who pose a serious threat to our country. We shouldn't leave it up to just one branch of government to make these incredibly important decisions.

The bulk of this legislation concerns the structure and process of military commissions. Although we heard from many witnesses at congressional hearings this summer that we should hew as closely as possible to the long-established military system of justice, this bill instead essentially starts from scratch and creates a whole new structure. It does so despite Justice Kennedy's wise advice in his concurrence in Hamdan , where he said: "The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment."

For example, this legislation creates a presumption for the admissibility of hearsay evidence. Now, it is true that because of the exigencies of war and active combat situations, hearsay rules may need to be structured differently than they are in our criminal courts, but the rules laid out in the UCMJ are drafted to handle these same exigencies. While there may need to be some adjustments to the UCMJ hearsay rules, we need not discard them altogether.

The presumption against hearsay is a fundamental protection built into our existing legal structures to ensure that proceedings yield a just and fair result. Yet in this provision and elsewhere, the legislation erodes such protections-going far beyond what is allowed in the military system-and without justification.

Even more disturbing is that the bill appears to permit individuals to be convicted, and even sentenced to death, on the basis of coerced testimony. According to the legislation, statements obtained through cruel, inhuman, or degrading treatment, as long as it was obtained prior to December 2005 when the McCain amendment become law, would apparently be admissible in many instances in these military commissions.

Now, it is true that the bill would require the commission to find these statements have sufficient reliability and probative value. But why would we go down this road of trying to convict people based on statements obtained through cruel, inhuman, or degrading interrogation techniques? Either we are a nation that stands against this type of cruelty and for the rule of law, or we are not. We can't have it both ways.

The idea that coerced statements can be used as long as they were obtained long enough ago is appalling. It seems to assume that there was a lack of clarity in the law prior to December 2005. In fact, there was great clarity, until this Administration decided to invent a narrow definition of torture that had never been used or accepted anywhere in the civilized world. The McCain amendment was needed to get this Administration to return to the law. It was a repudiation of the legal theories of the infamous Bybee memo, which the Administration even said it was withdrawing once it was publicly revealed. Its enactment should not now be used as a dividing point before which evidence obtained through cruel and inhuman treatment can be used in court.

At times of great adversity, the strength of a nation's convictions is tested and its true character revealed. If we sacrifice or qualify our principles in the face of the tremendous challenge we face from terrorists who want to destroy America, we will be making a terrible mistake. If we cloak cruel or degrading interrogations done in the name of American safety with euphemisms like "alternative techniques," if we create arbitrary dates for when differing degrees of morality will apply, we will have betrayed our principles and ourselves.

Statements obtained through such techniques should not be admissible, even against the most vicious killers in the world, in proceedings held by the government of the United States of America. Period.

In sum, this legislation is very troubling and in many respects legally suspect. I fear the end result of this legislation will only be more delay. It will surely be subject to further legal challenge, and may squander another four or five years while cases work their way through the courts again.

We can and must fight terrorism aggressively without compromising fundamental American values. We must remember what the Army Judge Advocate General told me at a Judiciary Committee hearing this summer: that the United States should set an example for the world, and that we must carefully consider the effect on the way our own soldiers will be treated.

In closing let me do something I don't do very often--and that is quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: "Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him." How sad that this Congress would seek to pass legislation about which the same cannot be said.

(From remarks on the Senate floor.)