Saturday, May 30, 2009

Grading PolitiFact: Limbaugh on Judge Sotomayor

"PolitOpinion" is more like it.

Fact-checking the fact checkers

The issue:
Was Rush Limbaugh making a statement of fact or stating an opinion? Does the St. Petersburg Times subject its own editorials to this type of fact-checking?

The fact checkers:

Robert Farley: writer, researcher
Greg Joyce: editor


In identifying the issue, above, I asked whether Limbaugh was stating fact or opinion. Even opinion journalism, of course, can typically get boiled down to fact through careful analysis. Has PolitiFact given us careful analysis?
While many Republican leaders have been publicly cautious with their opinions about President Obama's nominee for the Supreme Court, Sonia Sotomayor, radio talk show host Rush Limbaugh has been crystal clear about his opposition.
At a newspaper famous for its narrative leads, we should register no surprise that Farley takes some time in getting to the point. Limbaugh's opposition to the Sotomayor nomination is not particularly relevant to whether his statement is true or false.

In making his case, Limbaugh cited a Sotomayor ruling that has drawn scrutiny from critics this week.

"She ruled against the white firefighter - Ricci and other white firefighters - just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past," Limbaugh said. "The law was totally disregarded."

Limbaugh is referring to Ricci vs. DeStefano, a legal case involving firefighters in New Haven, Conn. A group of mostly white firefighters claimed reverse discrimination after the city threw out the results of promotional exams because white firefighters fared significantly better than black firefighters.

Farley just needed a few paragraphs to get rolling. Yes, Limbaugh's statement draws from the Ricci v. DeStefano decision.

Farley provides an account of the background, alluding to Sotomayor's role on the three judge panel that supported the original district court ruling. Farley's version of the dissent to Sotomayor's brief opinion from appeals court judge Jose Cabranes deserves special attention:
The brevity of that response, and its lack of analysis, rankled one dissenting appeals court judge, Jose Cabranes.
Farley goes on to quote Cabranes, but his version substantially downplays the weight of Cabranes' objection. Though Cabranes' withering dissent does suggest that he was "rankled," it is also true that five other judges joined in the dissent quoted by Farley. The district court voted narrowly to support Sotomayor and the three judge panel 7-6. If the other five dissenting judges were not similarly rankled then they would have done well not to add their names to the Cabranes-authored dissent.

One would never know this part of the story from Farley's account. Indeed, nothing apart from the mere word "dissenting" would suggest the Cabranes quotation came from a legal document. The average reader would engage in little more than blind supposition in guessing the truth of the matter.

Farley writes that the case subsequently ended up with the Supreme Court of the United States, but remains mum regarding that journey. ScotusBlog fills in the missing segment of the time line:
After the Second Circuit issued its initial summary order, the white firefighters filed a petition for certiorari. However, after the panel issued its per curiam opinion, the same firefighters, now represented by former Texas Solicitor General Greg Coleman, filed a second cert. petition, claiming that they feared the first petition had been rendered moot. The Court consolidated the cases and granted cert., largely using the questions presented by the first petition; however, because the second petition better tracks the counsel who wrote the merits briefs and will argue the case, this post focuses on that petition.
The grant of a writ of certiorari moves the case to the Supreme Court. The granting of the writ, on its face, helps validate objections from the dissenting opinion. Farley did not mention that, either.

Back to Farley:
That Sotomayor ruled against "white firefighter Ricci and other white firefighters" is undisputed. But this is a very complex legal case and Limbaugh misleads when he boils down the ruling by Sotomayor (and two other appeals court judges), saying it was made, "just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past. The law was totally disregarded."
This paragraph from Farley helps greatly in illustrating where his effort at fact-checking goes astray.

Supposedly Limbaugh misleads by oversimplifying the case. But Limbaugh was not trying to communicate the intricacies of the law involved. That type of detail has always been antithetical to high Arbitron ratings. It is also antithetical to print journalism, which carries over even to Internet formats. The Times would experience great difficulty in surpassing the "Half True" standard in the daily paper using the standard Farley would use to gauge Limbaugh.

Suppose we'll ever see this graphic permanently embedded in the Times' masthead?

Don't bet on it.

In my past assessments of PolitiFact, I have mentioned the principle of charitable interpretation. That principle comes into play in this case, partly owing to Limbaugh's chosen genre. He does opinion journalism. As such, a great deal of what he says on the air is an editorial opinion and not offered as a strictly factual account.

Following the aforementioned principle, the conscientious fact checker should assess the intent of the statement in question. Was Limbaugh, in fact, trying to communicate to his audience that Sotomayor literally employed absolutely no reference to any law? Farley seems to have taken it that way, judging from the path he took.

It is both more charitable and more likely that Limbaugh was communicating in the looser sense that most of us use conversationally. For example, his statement should be viewed as consistent with the view that Sotomayor's decision ignored significant portions of the law. And for that claim, Limbaugh would have the support of the six judges who dissented from the three judge panel--as well as potential support from the Supreme Court, pending its opinion on the case.

The rest of the PolitiFact piece, in effect, drags the aforementioned straw man into the arena and gives it a thorough trouncing.
We cite some of this not just to make your head hurt, or to make the case that the ruling was correct -- that will ultimately be up to the Supreme Court -- but to show the complicated legal issues involved, as well as the fact that the district court did, in fact, make reasoned legal arguments and cited numerous legal cases to underpin its decision. In other words, you may not agree with the conclusions, but it's wrong to suggest the judges "totally disregarded" the law. Nor did Sotomayor's panel or the district court ever suggest that the city ought to give preferential treatment to women and minorities. And so we rule Limbaugh's statement Barely True.
Certainly it would be wrong to suggest that the the panel "totally disregarded" the law in a literal and absolute sense. However, it is exceptionally doubtful that Limbaugh intended his statement in a literal and absolute sense.

As mentioned above, Limbaugh was doing what he normally does on his show: Offer editorial comment. PolitiFact misleads and offers its readers a disservice by ignoring the context (genre) of Limbaugh's statement. And by disagreeing with what was almost certainly an editorial opinion, PolitiFact joins Limbaugh in the opinion journalism game.

But at least Limbaugh is forthright in distinguishing his show from an attempt at objective journalism.

I see little point in giving a fact check rating to Limbaugh's claim. If the Supreme Court overrules Sotomayor, then Limbaugh may seem vindicated. If the opposite occurs then perhaps Sotomayor looks vindicated. But if there is an objective standard for judging this one, I doubt anyone can argue it without dissent in this life.

PolitiFact further besmirched itself by taking up this one.

The grades:

Robert Farley: F
Greg Joyce: F

Friday, May 29, 2009

Grading PolitiFact: The Judical Confirmation Network and Judge Sotomayor

Fact-checking the fact checkers

The issue:

Click to enlarge.

The fact checkers

Robert Farley: writer, researcher

Greg Joyce: editor


Farley initially frames this issue as though the JCN statement rests on one particular claim from Sotomayor:

If you've been following the story of Supreme Court nominee Sonia Sotomayor via cable news, you've undoubtedly heard this sound bite from a 2001 Sotomayor speech:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

For many conservative detractors, the quote has formed the nexus of their opposition.

The story is not about "many conservative detractors," but about the statement from JCN.
A number of Republicans have expressed concern about the statement.
Any Democrats among them?
Asked repeatedly about Sotomayor's comments during the daily White House press briefing on May 27, 2009, Press Secretary Robert Gibbs admonished reporters not to make a judgment on an 8-second sound clip from a 40-minute speech. Gibbs said he was confident that when people looked at the totality of Sotomayor's speech, and the context of the comment in question, they would "come to a reasonable conclusion on this."
Was it Republican journalists asking repeatedly for Gibbs to address this issue? Does anyone get the sense that Gibbs was pawning off his answer to the question?
So we read the whole speech, titled "A Latina Judge's Voice," which was delivered by Sotomayor at the University of California, Berkeley, School of Law in 2001, and was later published in the Spring 2002 issue of Berkeley La Raza Law Journal.
Good so far. What is the reasonable conclusion?

Farley notes Sotomayor's description of the purpose of her speech:
The purpose of the speech, she said, was to "talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench."
Then he prefaces some quotations of Sotomayer with the following:
She then begins to discuss what it will mean to have more women and people of color on the bench.
Farley is partly correct. Before Sotomayor went on to discuss what it would mean to have more women and people of color on the bench, however, she stated that it was a good thing. After noting a few statistics relating to the growth of representation of women and minorities in the federal court system, she said this:
These figures and appointments are heartwarming. Nevertheless, much still remains to happen.
(Sotomayor, from the Spring 2002 issue of Berkeley La Raza Law Journal via the New York Times)
If the reader was inclined to take Farley's description to mean that Sotomayer's speech was dispassionate with respect to the influence of ethnicity, gender and race, then the reader may have been misled. Sotomayor does not simply clinically observe the effects of minority representation on the court, she judges them, by implication, as good effects.

Back to Farley:
Sotomayor spoke briefly about the contributions of women judges and attorneys in race and sex discrimination cases, while acknowledging that Supreme Courts made up completely of white men have made seminal decisions on those issues. It's in that context that Sotomayor made the statement heard round the world via YouTube.
Again, Farley is partially correct. If the white men are doing OK with those "seminal decisions" then how are we to assess the particular importance of the contributions of women judges and attorneys? Farley offers the reader no assistance in gauging the contribution of the surrounding context. Rather, he faintly implies that the context renders Sotomayor's controversial claim less controversial, and we are left hoping for additional explanation.

Good luck to us on that one.
Sotomayor later concludes that "Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage...I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."
I am certainly no expert on the law, but when are opinions, sympathies and prejudices appropriate in rendering judgment according to the law? It is difficult if not impossible to make sense of Sotomayor's statement minus that information.

Farley either knows the answer and isn't telling, or does not think it important. Perhaps it is so obvious that he feels no need to mention it. And if that is the case, then I am the one at fault for not knowing it.

Perhaps Farley's lone citation of an expert will clear things up:

Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court, read the speech and concluded it amounted to little more than Sotomayor acknowledging that judges, like anyone, are products of where and how they grew up.

"Having that context can be valuable for a judge," Goldstein said. "There are some cases, like cases of discrimination, where if you have been in someone's shoes, you can better understand it."

Is that understanding with respect to the facts of the case, or with respect to a judge's feeling of empathy? If not the former, should the latter hold any sway at all? Goldstein's statement fails to offer us guidance as to which he thinks is valuable, much less how Sotomayor views it. I'd like to know the questions Farley asked of Goldstein.
By way of reminder, we are fact-checking the statement from the Judicial Confirmation Network that Sotomayor's statement shows that she thinks "that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench."
An appropriate reminder. Unfortunately, it ought to remind us that Goldstein's contribution sheds no real light on the answer.
We think the key words in that sentence are "ought to."
Good call, Farley. So what is Sotomayor's view?
Sotomayor says several times that she agrees judges should aspire to "transcend their personal sympathies and prejudices." However, she acknowledges that we are all informed by our experiences and that "personal experiences affect the facts that judges choose to see." And, she concludes, when it comes to things like race and sex discrimination, that kind of diversity of experience can be an asset.
So transcending personal sympathies and prejudices is good. And not always transcending them can be an asset (also good). So is Sotomayor talking out of both sides of her mouth or what?
In context, it's clear that Sotomayor isn't suggesting the intellect of Latina women is superior to that of white men, only that a greater diversity of experience and thought would be a valuable addition to the court system.
Whoops. We have disconnect.

Who said anything about "intellect"? Racism is not limited to the measure of intellect. Thus, pinning the meaning of Sotomayor's statements on the absence of a specific reference to superior intellect is a distraction--a red herring fallacy. So let's toss the red herring and see what's left:
Sotomayor is ... suggesting ... only that a greater diversity of experience and thought would be a valuable addition to the court system.
Valuable in what way? Farley offered us a bunch of quotations of Sotomayor that show her straddling the fence but with a strong inclination to come down on one side. Farley's expert, Goldstein, failed to clarify the situation. We can beat around the bush all we like, but Sotomayor herself offered the least ambiguous take on her meaning via the very statement in question:
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Contrary to the Farley whitewash, that statement cannot be reasonably taken to mean that it is merely good for the Supreme Court to have greater diversity of thought and experience. On the contrary, if it were true that a wise Latina "would more often than not reach a better conclusion than a white male who hasn't lived that life" then let us have nine Latina women on the Supreme Court. Playing the odds, we'll have better supreme court decisions.

Farley's final word:
And so we rate the Judicial Confirmation Network's statement Half True.
PolitiFact defines "Half True" statements as "The statement is accurate but leaves out important details or takes things out of context."

What important details were left out? The statements from Sotomayor to the effect that she would try to set aside her prejudice? Fair enough--but this PolitiFact entry fails according to that standard, as I shall show.

Farley's fact-checking approach was wrongheaded. He spent virtually all of his time assessing the JCN claim in terms of its relationship to a Sotomayer quotation, but the JCN statement does not even mention that quotation. The URL provided by PolitiFact fails to specify the relevant statement. Here it is, in its entirety:

JCN Statement on nomination of Sonia Sotomayor to the Supreme Court

May 26, 2009

Wendy E. Long, counsel to the Judicial Confirmation Network, on nomination of Sonia Sotomayor to the Supreme Court:

"Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.

"She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety. On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas. The Supreme Court is now reviewing that decision.

"She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court."
See? Not a word about the quotation. And Wendy Long's more detailed statement on JCN's behalf on Judge Sotomayor does not rest its case on that one quotation, instead belaboring the point based on Sotomayor's decision in the controversial Ricci v. DeStefano case.

It is appropriate to dock Long for leaving out the context of a quotation she did not even mention? I don't think so.

I would guess that Farley wanted to explain away the statement from Sotomayor, and the JCN statement was chosen as the vehicle for that defense.

Odd choice.

The grades:

Robert Farley: F
Greg Joyce: F

Probably the right finding on the "Truth-O-Meter," but the accompanying rationale will not remotely wash. Fact-checking is not like multiple choice where one can guess at the right answer and receive full credit. This is multiple choice where the answer does not count in the student's favor without the accompanying rationale ("Show your work").


About Sotomayor's speech: Contra (perhaps) Tom Goldstein, Sotomayor in her speech apparently sees judges as a product of the way they grew up only if that statement discounts much of the content of the speech based on its flirtings with self stultification.

Sotomayor aims for the ideal in judging, but appears to regard morality as relative.

What kind of judicial ideal, pray tell, stems from moral relativism?

I would have loved the role of fly-on-the-wall as President Obama and Judge Sotomayor discussed their common ground on constitutional interpretation. I hope the Senate will probe her judicial philosophy thoroughly. Perhaps it will open some eyes regarding the dangers of the "living Constitution."

June 2, 2009: Putting the second "I" in "judicial" since June 2, 2009. Also fixed a couple of other minor typos.

Monday, May 25, 2009

Malcolm Nance and waterboarding

Malcolm Nance offered one of the most important opinions on waterboarding as the debate moved public. His testimony carried considerable weight because of his professional experience. As Nance tells it:
As a former master instructor and chief of training at the U.S. Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, I know the waterboard personally and intimately. Our staff was required to undergo the waterboard at its fullest. I was no exception.


When I started this post, I had been unaware that Morrissey had critically reviewed Nance's testimony. Part of my motivation for treating this issue was Morrissey's initial acceptance of that testimony. The subsequent declassification of various memos has helped to clarify Nance's role; though he is ideologically committed in opposition to waterboarding based on his acceptance that it is torture, his testimony was probably offered in good faith in spite of any exaggerations. At least some of that exaggeration probably occurred simply because Nance was not precisely familiar with limitations the CIA set on its practice of waterboarding.

My post is simply an effort to help set that part of the record straight.

Some background on the UK's "Panther" armored vehicle

Richard North of "Defence of the Realm" has an in-depth piece detailing the background of the Panther.
Announced yesterday on the MoD website, the first batch of Panther Command and Liaison Vehicles has been delivered to troops in Afghanistan, "complete with the latest battle-ready upgrades."

Behind the bland covering story, however, lies a tale of utter incompetence, deception and bad faith which, even by MoD standards, almost beggars description.
(keep reading at Defence of the Realm)
North's tale helps explain, at least implicitly, why my initial introduction to the Panther at the BAE Systems Web site made me believe that BAE built the thing. Iveco, an Italian firm, designed and built the vehicle.

Grading PolitiFact: President Obama on supermax security

Where PolitiFact again picks and chooses between literal truth and the underlying argument.

Fact-checking the fact checkers

The issue:

Here's the PolitiFact framing of the issue, somewhat out of tune with the headline placing full emphasis on the lack of Supermax escapees:

In a speech defending his plans for the detainess at Guantanamo Bay, Cuba, President Obama said Americans should not be concerned about them being transferred to the United States because federal prisons are secure.

"Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders - highly secure prisons that ensure the public safety," Obama said. "Bear in mind the following fact: Nobody has ever escaped from one of our federal 'supermax' prisons."

The fact checkers:

Catharine Richert: writer, researcher
Bill Adair: editor


Sometimes the entries at PolitiFact place emphasis on the literal truth of a statement, like Obama's use of hyperbole regarding enforcement of labor law with respect to undocumented workers. Other times they ignore literal truth in favor of the underlying argument.

This one by Richert takes the former route, despite the fact that she had little difficulty identifying Obama's underlying argument: Supermax facilities are so secure that Americans should not concern themselves over bringing Guantanamo detainees to the continental United States.
First, we should note that Obama's comment suggests there is more than one federal "supermax" facility. But there's actually just one, the Administration Maximum Facility in Florence, Colo., according to the Federal Bureau of Prisons. Some states have built their own maximum security prisons, but it's clear Obama was referring to federal facilities because they would be the ones to house the suspected terrorists.
Oh. So by implying that there is more than one federal supermax facility, Obama was misleading his audience. Another day, that might automatically drop a political statement to the "Mostly True" level, described as "The statement is accurate but needs clarification or additional information." In this case, the problem is apparently solved by completely ignoring the context of the statement and placing the focus entirely on whether supermax prisoners have ever escaped.
The security of the "Alcatraz of the Rockies," as the Florence prison is known among correctional program professionals, has been cited frequently by Democrats as lawmakers and the administration battle over where to relocate the detainees. Obama is seeking to close the Guantanamo prison by January 2010.
Colorado hosts the lone federal prison with a supermax block, then.

Given the number of prisoners at Guantanamo, should we be concerned that the Florence facility will have trouble handling the transfer?

Supermax's approximately 480 concrete cells already are jammed with the likes of Oklahoma City bombing co-conspirator Terry Nichols, Atlanta Olympics bomber Eric Rudolph and other notorious domestic criminals. There also are 33 international terrorists, including Sept. 11 conspirator Zacarias Moussaoui, 1993 World Trade Center bombing mastermind Ramzi Yousef and failed airline shoe bomber Richard Reid.

Only one bed was not filled Thursday at Supermax, U.S. Bureau of Prisons spokeswoman Tracy Billingsley said.

(Denver Post)

Is it torture if we make all the transferred prisoners bunk together?

Cast such thoughts out of your mind! Bush is no longer in the White House. We are the ones we are waiting for, and this is change.

Let's get back to Richert, joining her after she has described objections to closing the detention facility at Guantanamo:
As for Obama's statement, federal prison officials confirmed that he is correct. No prisoner has ever escaped from the only federal supermax facility since it was opened in 1994, no doubt thanks to the $10 million perimeter fence and the remote-controlled steel doors. We find his statement True.
Move along. Nothing to see here. Even if Obama left stuff out and his underlying argument does not make much sense, PolitiFact rates his statement "True."

But seriously, what if we can't fit all the Gitmo detainees in the supermax facility in Colorado? Doesn't that undermine Obama's reasoning?

PolitiFact: Shut up.

OK, then, what if we do fit all of the Gitmo detainees into the Florence supermax facility but have to move other dangerous criminals to less secure locations? Is that a reason for concern?

PolitiFact: Shut up.

What if he has a pointed stick?

PolitiFact: Shut up.

If PolitiFact uses different criteria from one instance to another in rating political claims, then of what use are their lists grouping various ratings together and/or graphically showing how the collected statements of a given person stack up?

Answer: not much.

If Obama was trying to make the point that Americans have nothing to worry about from detainees transferred to the United States because our one supermax prison facility has never allowed a prisoner to escape, that reasoning is only applicable if all of the transferred prisoners end up in the supermax facility and no dangerous supermax prisoners are transferred to less secure locations to make room for the Gitmo imports.

Isn't that obvious?

There is no point to grading the literal truth of a statement if one completely ignores an underlying argument hanging on that supposed literal truth.

The grades:

Catharine Richert: F
Bill Adair: F

Both are flunked for the tunnel-vision focus on the "nobody has escaped" angle while ignoring the way the president was trying to use that information to reassure the American people. PolitiFact aided and abetted deceit. That is not what we want from fact-checking.


I was surprised that President Obama's statements were not available at the domain. But the full speech was available online at a .gov domain, and here is the relevant paragraph:
Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal “supermax” prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: “The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.”

Saturday, May 23, 2009

Blumner: Pay no attention to the Pelosi behind the curtain! We must bash Bush!

Editorial columnist Robyn "Blumñata" Blumner of The St. Petersburg Times is back with another clueless screed.

Oh, joy.

This week's column is a defense of Nancy Pelosi ... which is kind of another way of saying that the column is dedicated to bashing the Bush administration. The latter, coincidentally, is Blumñata's primary literary muse, at least over the past 10 years or so.

But we start with the recent dust-up between Speaker Pelosi and the CIA:
The CIA lies to Congress, at least it has many times in the past. We know it, and so do Republicans in Congress. Which is why all this faux patriotic indignation over the suggestion that the CIA misled Congress in briefings over detainee treatment is just raw political theater.
Is it?

George Tenet was running the CIA when the controversial briefings took place. Tenet was appointed by President Clinton and retained at his post by President Bush. Whom does the CIA serve? The president? Congress? Itself?

The indignation is not really over the suggestion that the CIA has misled Congress at various times. The indignation comes because Pelosi is alleging that the current CIA (under Obama) is currently misleading us when it contradicts Pelosi. And that, in turn, is important because what Pelosi knew and when she knew it is important if people are serious about prosecuting those who supported, protected and enabled enhanced interrogation methods employed during the Bush administration.
House Minority Leader John Boehner of Ohio and other congressional Republicans are relishing House Speaker Nancy Pelosi's tiff with the CIA regarding what she knew about waterboarding and when she knew it. Now they want an investigation ­— a ploy to keep the issue in the news, no doubt.
Given that we have two outcomes more likely than any other--either the Speaker of the House is telling a public whopper of a lie or the CIA is telling one of its own--why not? If either is true, isn't it important? Why would Blumner want that out of the news? Why not get behind Boehner on this one?
Pelosi says that she was misled by the CIA in a secret September 2002 briefing by not being told that detainees had already been subjected to waterboarding. The CIA counters with notes of the meeting that say she was informed that such techniques "had been employed."
Small potatos, here. The real issue is where Pelosi and the CIA agree: She was told that the administration had found enhanced interrogation methods legal. Pelosi registered no objection from her position of oversight. What did she think was the purpose of the briefing? Why tell Pelosi anything if she has no role in oversight?

But let's play along with Blumñata for now.
In the prior month a CIA detainee had been waterboarded 83 times.
Probably not. Though CIA documents report that 83 "sessions" were administered to Khalid Sheikh Mohammed, Mohammed's own recollections for that time limit the number to five. That is a big difference, and the solution to the discrepancy probably rests in the definitions of terms.

And it is a side issue, after all. Back to the Blumñata narrative:
While it is possible that Pelosi is conveniently not recalling properly, I think it is more likely that the CIA has it wrong, and the agency soft-pedaled to Congress what it was doing to prisoners.
And an editorial columnist is conveniently accorded the privilege of expressing opinion even in the midst of a newspaper that supposedly adheres to the objective standard of journalism.

What is her evidence? Most of it is essentially irrelevant. The CIA has, at various times in the past, intentionally give false information about its activities. On the other hand, members of Congress also frequently lie through their teeth, so I call that one a wash.

Unfortunately for Blumñata, that takes care of the bulk of her defense of Pelosi.

But we still have this:
(O)n the detainee issue specifically, the Washington Post reported in 2006 that Mary McCarthy, a former CIA deputy inspector general, was convinced that the CIA had lied in multiple congressional briefings about detainee treatment by failing to disclose the abuses or denying them outright.
Mary McCarthy. That former CIA deputy inspector general who was apparently dismissed for leaking classified information to the press? And who, according to the Washington Post story in question, made her alleged allegations through anonymous sources?

The reader may be interested in the fact that the St. Petersburg Times has a policy against reporting news based on anonymous sources. Blumñata just sidestepped that ethical barrier with a nifty head fake.

And now she sees herself behind the defensive backfield and approaching the goal line:
Ultimately, Pelosi vs. CIA is a sideshow to divert attention from the real issue, which is that our intelligence agency engaged in a pattern of torture and abuse of prisoners. Who knew about the abuse, when and who approved it are important questions, but they need to be posed to all the principals involved, including the former president and vice president.
Flag on the play.

The dispute between Pelosi and the CIA reveals exactly why neither the Democratic majority in Congress nor the Democratic administration under President Obama will pursue the investigation Blumñata wants: They know they won't be able to avoid sharing the blame. We can probably best measure Blumñata's realization of this via successive visits from Halley's Comet.

But it will be fun to watch her stew over the next four years while it doesn't happen, most likely blaming it on the relatively powerless Republicans.
When that is the kind of investigation Republican leaders want to launch, they'll finally be putting country before politics.
See what I mean? The Democrats don't need any help from the Republicans to launch a full investigation. President Obama can order one through the Department of Justice. The Democratic-controlled Congress can steamroll the tiny opposition and start up an investigation any time they like.

Squirm, Blumñata, squirm.

Grading PolitiFact: Michele Bachmann on ACORN (Updated x2)

Fact-checking the fact checkers

Another substitution of ad hominem for fact-checking

The next most recent PolitiFact entry dealing with a Michele Bachmann statement plainly set aside the objective model of journalism in favor of opinion--poorly supported opinion, counting the granting of any benefit of the doubt.

This week found PolitiFact once again grinding a political axe, and accordingly serves as a good evidence of political bias at PolitiFact.

The issue:

I'll end the suspense right away. PolitiFact finds Bachmann's claim "False."

The fact checkers:

Robert Farley (writer, researcher)
Bill Adair (editor)


As with the last Bachmann entry by PolitiFact I checked, this one immediately sets aside the pretense of journalistic objectivity.
U.S. Rep. Michelle (sic) Bachmann's latest outrage focuses on an old nemesis: ACORN.
The first sentence is an attack on Bachmann. The statement implies that she is guilty of serial outrage, though PolitiFact has only previously rated two of her statements. And regardless of how many were rated, the opening statement is an editorial judgment with no place in an objective news story.

In a May 6 press release, Bachmann sounded the alarm:

"At least $53 million in federal funds have gone to ACORN activists since 1994, and the controversial group could get up to $8.5 billion more tax dollars despite being under investigation for voter registration fraud in a dozen states. The economic stimulus bill enacted in February contains $3 billion that the non-profit activist group known more formally as the Association for Community Organizations for Reform Now could receive, and 2010 federal budget contains another $5.5 billion that could also find its way into the group's coffers."

Press release? The text linked via PolitiFact ("U.S. Rep. Michele Bachmann's Web site, Press release: "ACORN got $53 million in federal funds since 94, now eligible for up to $8 billion more," May 6, 2009") consists entirely of a Washington Examiner story. Perhaps things were different when Farley investigated, but currently this "press release" is classified under "Articles," not "Press Releases" at the Bachmann Web site. In other words, the quotation attributed to Bachmann is not even her statement. Farley is primarily fact-checking Kevin Mooney's commentary for the Examiner, not Bachmann.
She has since thrown these numbers out several times in interviews, including ones with Lou Dobbs on CNN and Glenn Beck on Fox.
Bachmann on CNN with Lou Dobbs and Barney Frank:
ACORN has received approximately $53 million since the early 1990s. Now, between the stimulus and the budget that was passed by President Obama, they have access potentially to $8.5 billion.
Bachmann on the Glenn Beck program (May 13, 2009):
No organization has a right to taxpayer funding. And, and, if you look at ACORN, they have been the recipients of about $53 million in direct funding since 1994. Now with the stimulus bill and with the last budget bill, there's a potential that ACORN could have access to--get this--over $8 billion, potentially, in grants. This is serious money.
What problem does Farley detect?
In January, we addressed a piece of this when we fact-checked a claim from House Republican Leader John Boehner, who warned the economic stimulus package "could open billions of taxpayer dollars to left-wing groups like the Association of Community Organizations for Reform Now (ACORN)." Boehner was referring to $2.2 billion in the stimulus package for "neighborhood stabilization," essentially money doled out to groups to buy up abandoned and foreclosed homes, to rehabilitate them and then sell or rent them out. ACORN said it had no plans to apply for the funding, and if it did, the money would have to be used to buy and fix abandoned houses, not for voter registration efforts. We ruled that claim Barely True.
No doubt the ruling applies to Boehner's claim rather than ACORN's claim. But Bachmann does not appear to mention anything at all about using the money for voter registration and nor does Mooney's story. Is Farley's imagination on overdrive?
This latest claim from Bachmann follows the same tortured logic on an even grander scale.
What "tortured logic"? How do we get from mentioning nothing at all about the specific destination of the funding to "tortured logic" to the effect that the money would be used for voter registration? Couldn't it be enough that ACORN is innately partisan and at the same time under an ethical cloud because of its pattern of voter registration fraud? Is ACORN left wing merely because of its voter registration drives? That hardly seems like the case.

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ACORN’s 2006 election campaign, "Raise the Minimum Wage," represented unprecedented victory for working families.

blog it

Let us hope for a better explanation from Farley of the supposed problems with Bachmann's claim:
A spokesman from Bachmann's office said the congresswoman got her data from a May 6, 2009, Washington Examiner commentary written by Kevin Mooney, who got the $8.5 billion figure from Matthew Vadum, a senior analyst and editor with Capital Research Center, a conservative think tank.
No kidding. Way to go, Sherlock Farley. Mooney was the one who wrote the statement you attributed to Bachmann. What ever would we do without PolitiFact?

Let's first look at how they arrived at that number. It includes, of course, the same $2.2 billion that Boehner cited from the stimulus package. Vadum also adds in another $1 billion in the stimulus for Community Development Block Grant (CDBG) funds. ACORN could potentially tap into that, he said.

The remaining $5.5 billion comes from the Obama administration's proposed 2010 budget, specifically the budget for Housing and Urban Development. The budget plan includes $1 billion for an Affordable Housing Trust Fund, plus $4.5 billion more for CDBGs.

Comes to about $8.5 billion, then. Has Farley detected more invisible "tortured logic"?

CDBGs have been around since 1974. Obama is seeking to increase the CDBG budget, from about $3.6 billion in 2009 to $4.2 billion next year. And then there's the addition $1 billion for CDBGs in the stimulus. But the point is, this isn't some new pot of money that hasn't been available in years past. To the extent ACORN has been eligible for CDBG money for decades, it is available to ACORN now.

But the fact is, ACORN isn't eligible for CDBG funding. At least not for the controversial voter registration efforts that Republican leaders claim are a willful effort to forward the group's liberal agenda.

Note the second paragraph. Farley says that ACORN is not eligible for CDBG funding with respect to its voter registration drives. What a relief! That would cut out all but one of the aims listed on this ACORN Web page, leaving such things as a campaign for federally mandated paid sick leave--if we take Farley literally.

The problem is that we have no clear assurance that ACORN is limited to non-partisan use of the funds for any of its purposes or services. ACORN is, after all, not a government organization. Who polices their efforts to ensure non partisanship? Farley, perhaps? Is paying for Democrat votes via housing assistance less dubious than fraudulent registration practices? Farley doesn't tread anywhere near that road.

But maybe he should, as this excerpt from a CDBG document might suggest:
“Grantees are responsible for managing the day-to-day operations of grant and subgrant supported activities. Grantees must monitor . . . subgrant supported activities to assure compliance with applicable Federal requirements and that performance goals are being achieved. Grantee monitoring must cover each program, function, or activity.”
(Subpart J of 24 CFR Part 85 “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments," from here)
In short, ACORN polices ACORN and its subsidiaries, though the same source implicitly suggests that HUD inspections could occur.

But back to Farley and PolitiFact:
ACORN has a complex corporate structure. It's actually a network of affiliates. The ACORN that Republicans love to hate gets involved in political activity like voter registration. But there are other entities, like the sister company, ACORN Housing Corporation, a non-profit that provides free housing counseling to low and moderate income homebuyers. Some of the ACORN Housing affiliates have also dabbled in affordable housing projects, and have received federal funding. But ACORN Housing doesn't get involved in voter registration activities at all.
There's that "voter registration activities" straw man again. If only AIG could compartmentalize as well as Farley does on behalf of ACORN. Bachmann, Mooney and Vadum do not talk about the money going for voter registration. Yet it supposedly demonstrates Bachmann's "tortured logic."

According to the Washington Examiner's report, ACORN and its affiliates have received $53 million from the federal government since 1994. Most of that federal money went to the ACORN Housing Corporation, which by law could not be used for voter registration.

We checked, and there is no money in the stimulus package or the budget for voter registration programs.

That's great, except it is not really true that the money could not be used for voter registration. Rather, it would simply be illegal for the money to be used for voter registration or other political activities. And ACORN is reponsible for ensuring compliance, with occasional inspections from HUD. My personal experience with government inspections is that they are pretty much a joke. Make the paperwork look pretty, behave yourself while the inspection is underway, and then back to business as usual. Not that Bachmann's veracity rests on ACORN using the funds for voter registration. It is reasonable to see the entire organization as tainted by the voter registration scandals. Unless you happen to be targeting Michele Bachmann.
According to a July 2002 report from the Employment Policies Institute called "Rotten ACORN, America's Bad Seed," tax forms show that since 1997, the ACORN Housing Corporation has paid more than $5 million in fees or grants to other ACORN entities. The report does not claim, however, that federal tax dollars were shifted into ACORN voter registration efforts.
The EPI report does make the following claim, however:
The Association of Community Organizations for Reform Now is registered as a non-profit corporation in Arkansas, which does not require public financial disclosure.
Maybe that is why the report does not claim that federal tax dollars were shifted into ACORN voter registration efforts? Because there was not any real way to either confirm it one way or the other given the lack of disclosure? And Farley did not bother to mention it?

Nor this?:
Since 1977, ACORN has accepted federal government grants. That year it was awarded a grant to hire VISTA volunteers, who were supposed to be put to work helping Employment Policies Institute / 21 low-income individuals. ACORN used the volunteers—in violation of federal law—for two of its favorite pastimes: politics and union organizing.
I guess Farley is technically accurate, since "politics and union organizing" are not voter registration efforts. But most would call them political activities. Though the voter registration aspect remains a straw man, from what I can tell.

And Farley's course takes us yet further along Surreal Boulevard:

Asked what funds ACORN Housing has transferred to other ACORN affiliates, Vadum said ACORN Housing has paid over $1.5 million to Citizens Consulting Inc., which he describes as "the shadowy part of the ACORN network where money seems to disappear into."

That's absurd, said ACORN executive director Steven Kest. Citizens Consulting Inc. is the accounting arm of the ACORN organization. CCI handles bookkeeping, payroll accounting and other financial management services for ACORN and its many affiliates. And ACORN Housing doesn't even use CCI anymore, as it now does its accounting in-house, Kest said.

Did Farley forget to mention that Citizens Consulting Inc. is run by the brother of ACORN's founder and engages in lobbying on behalf of ACORN according to one of his sources?

Apparently so:
ACORN paid Citizens Consulting, Inc.—which is run by Rathke’s brother—$520,000 for lobbying between 1998 and 2004.
The Salvador Dali of fact-checking begins painting his conclusion:
Bottom line, we don't see any evidence that ACORN Housing has transferred money to ACORN for voter registration, so we think it's incorrect for Bachmann to link federal money that ACORN Housing might receive with the more controversial voter registration activities performed by sister organization ACORN.
Bachmann did not link federal money that ACORN Housing might receive with the more controversial voter registration activities performed by ACORN, certainly not in the sense that Farley clearly intends where the current government actions would funnel money specifically to voter registration drives. She did implicitly link the practice of voter fraud to the worthiness of organizations to receive federal funding. And if ACORN Housing really isn't directly connected with ACORN proper then we should doubt that the law Bachmann duped Barney Frank into approving would apply in the first place.
Even more ridiculous is the suggestion that ACORN or any of its affiliates might actually get $8.5 billion in federal tax dollars.
Bachmann, Mooney and Vadum were each very clear that the $8.5 billion was an amount potentially available to ACORN. Farley has constructed another straw man.

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Straw men do not belong in the fact-checking business. Not that I'm prejudiced or anything.

(W)hen Bachmann says ACORN could get that amount, it assumes the group would get every single dime in the stimulus for fixing up abandoned homes. And remember, they said they don't even have plans to apply for any of it.

Even if Bachmann says "ACORN could get that amount" it does not, contrary to Farley's assertion, assume anything about how much ACORN would actually get. Could a person who places the worst face on Bachmann's words come to that conclusion? Sure. Farley at least provides us proof of that. But "ACORN could get that amount" is a statement of possibility and Bachmann was considerably more circumspect than Farley suggests.

The quotation Farley misattributes to Bachmann says "could get up to."

Bachmann on television with Lou Dobbs said "access potentially to $8.5 billion."

Bachmann on television with Glenn Beck said "there's a potential that ACORN could have access to ... over $8 billion, potentially, in grants."

Bachmann obviously emphasized that the figure in the $8 billion range was a potential figure. Farley, in addition to falsely attributing Mooney's words to Bachmann, obscures the care she took in making her public statements on the subject.

Between Bachmann and Farley, Bachmann is the more accurate of the two in this case. Farley helps reinforce that distinction by subsequently using ACORN's executive director, Steven Kest, as his go-to expert on accountability standards for government grants:
"These are competitive grants for very specific projects," Kest said."The money can only be used for the project you bid for. It can't go to voter registration. If you've ever had any experience with grant funding from the federal government, they do a good job of making sure the money is used for the purposes it was intended. You can't use the money for any other reason. You can't transfer the money to other vehicles for other purposes."
The Government Accounting Office seems somewhat less impressed than Kest with grant accountability standards. The GAO produced a report in 2007 called "Single Audit Quality" with the subtitle "Actions Needed to Address Persistent Audit Quality Problems."

Note the key finding of that report:
In its June 2007 Report on National Single Audit Sampling Project, the PCIE found that, overall, approximately 49 percent of single audits fell into the acceptable group, with the remaining 51 percent having deficiencies severe enough to classify the audits as limited in reliability or unacceptable. PCIE found a significant difference in results by audit size. Specifically, 63.5 percent of the large audits (with $50 million or more in federal award expenditures) were deemed acceptable compared with only 48.2 percent of the smaller audits (with at least $500,000 but less than $50 million in federal award expenditures). The PCIE report presents compelling evidence that a serious problem with single audit quality continues to exist. GAO is concerned that audits are not being conducted in accordance with professional standards and requirements. These audits may provide a false sense of assurance and could mislead users of the single audit reports.
So, ACORN is responsible for ensuring its own compliance with government standards for audits, and even if an audit occurs roughly half of the reports fall below acceptable standards. Is Kest's assurance of adequate accountability an acceptable standard for fact checking? Did we just receive an assurance from the fox that the hen house is well protected?

Dali applies the finishing strokes:
Bachmann's statement is irresponsibly misleading on several levels. She says the group under indictment for voter registration fraud could tap into billions of federal dollars. In fact, none of the federal money can be used for voter registration activities.
Again, Farley implies that Bachmann is suggesting that the federal grant money would be directed toward voter registration activities even though Bachmann neither says that nor provides more than the very faintest of implications that would be the case. There is a disconnect between what Farley says Bachmann said ("the group under federal indictment for voter registration fraud could tap into billions of federal dollars") and the subsequent accusation that the statement is misleading ("In fact, none of the federal money can be used for voter registration activities").

It should go without saying that the Bachmann statement is correct even if it were true that none of the federal money can be used for voter registration activities. And, as shown above, the assurance that none of that money would be used for political activities is diaphanously thin.

Thus, it is reasonable to conclude that Bachmann's supposed misleading is a product of Farley's faulty inference.

Farley's last word rolls his faulty inferences into a neat conclusion:
An affiliate like ACORN Housing could conceivably apply for a grant to build an affordable housing project, or to buy, fix and sell abandoned homes, but that's exactly what the money would have to be used for. Suggestions that one of the affiliates might funnel money to ACORN for political activity is, so far, unsubstantiated conjecture. And then there's the matter of trying to make a splash by throwing out the massive $8.5 billion number, suggesting ACORN "could get" it, as in all of it. That's absurd. We rule Bachmann's statement False.
1) We have little assurance that ACORN could not use the money other than for its intended purpose. Indeed, it is possible that buying, fixing and selling abandoned homes can be done in a politically partisan manner. Farley fails to consider that possibility, and does a wholly inadequate job of supporting his associated assertions.

2) Neither Bachmann nor her sources suggested that that an ACORN affililiate would funnel the as-yet-unallocated money toward political activity. Farley's own source did, however, provide evidence that ACORN had steered grant money toward political activities in the past. Bachmann's point is simple: ACORN has been indicted for engaging in fraudulent voter registration, and that should disqualify the organization from receiving federal grant money. Bachmann has her facts straight. One might disagree with Bachmann that all branches of the ACORN tree should be barred from receiving federal funding, but that is a political question, not a question of fact.

3) Finally, as noted above, Farley is simply making things up when he suggests that Bachmann is saying that ACORN would get the entire $8.5 billion for the asking. That is not a fair reading of Bachmann's public statements. Farley's inferences suggest a political bias on his part.

The inaccuracy of Farley's attempt at fact checking is positively surreal.

The grades:

Robert Farley: F
Bill Adair: F


I wanted to belatedly draw attention to the way PolitiFact uses misleading blurbs to advertise its stories. See below for an image clipped from the PolitiFact main "Truth-O-Meter" page.

What jumps out from this graphic? Two things. The image of Michele Bachmann, helpfully labeled, and the "False" Truth-O-Meter rating on the opposite side of the box. And there would not be anything wrong with that if the grade was close to realistic. But observe the text accompanying the graphics.

To the left, we have the statement Farley misattributes to Bachmann. Not a good start.

To the right, we have a brief caption apparently justifying the rating given to Bachmann:
"Access to" and "actually getting" are two very different things.
Yes they are two very different things. But Bachmann only emphasized access to while never suggesting "actually getting." Even comparing "actually getting" with the statement falsely attributed to Bachmann cannot support the charge ("could get up to").

The graphic fairly represents Farley's ridiculous attempt at fact checking, albeit without letting on that it is ridiculous. But it is tremendously unfair to Bachmann.


Update 2:

Megathanks to Matthew Vadum for prominently linking to this post through a story of his at The American Spectator. His story makes this attack on Bachmann the central exhibit of a brief evaluation of the efforts at PolitiFact; a portion of the story delves into the general liberal tilt of PolitiFact's parent, the St. Petersburg Times.

Look under the tag "Grading PolitiFact" for more evaluations of a fact-checking outfit that might as well be taking its cues from Media Matters.

May 24, 2009: Corrected spelling of eight cylinder word "diaphanous"
Minutes later, corrected spelling of "Michele" where applicable.
Finally took out that extra "e" from "judgment"

Friday, May 22, 2009

Piquing PolitiFact: How many times was waterboarding used?

Fresh from criticizing PolitiFact for flubbing its analysis attached to a statement from former vice president Dick Cheney, I e-mailed the Truth-O-Meter at PolitiFact asking for a resolution of the discrepancy between number of sessions reported in the so-called "torture memos" and the reports from the terrorists as given to the Red Cross.
Dear Truth-O-Meter,

I have encountered numerous news reports to the effect that Abu Zubaydah and Khalid Sheikh Mohammed were waterboarded 83 and 183 times, respectively.

But testimony from both men collected by the Red Cross appears to directly contradict that, as Zubaydah told of 10 waterboarding sessions and KSM said that he experienced 5 sessions.
(see page 10)

How is this discrepancy explained?

If my inquiry is not ignored (I expect it to be ignored), then PolitiFact will be set up to either publish a piece contradicting one of its earlier stories or forced into correcting the same earlier story.

I expect PolitiFact will do nothing to correct the misinformation it reinforces in its readership, but I look forward to seeing my expectation dashed.

Grading PolitiFact: Cheney on how many were subjected to waterboarding

An easy one, but PolitiFact found a way to blow it.

Fact-checking the fact checkers

The issue:

During a recent speech, Dick Cheney asserted that, despite a continued furor over waterboarding, it was administered to only three terrorists. PolitiFact relates it like so:
"You've heard endlessly about waterboarding," Cheney said in his address at the American Enterprise Institute. "It happened to three terrorists. One of them was Khalid Sheikh Mohammed, the mastermind of 9/11, who has also boasted about his beheading of Daniel Pearl.
The fact checkers:

Robert Farley: writer, researcher
Bill Adair: editor


To make a short story even shorter, Farley got this one right. Three detainees were subjected to waterboarding, and PolitiFact graded Cheney with its highest degree of accuracy ("True"). So what's the problem?

Farley put an odd focus on a marginally related subject, that of how many times the three detainees were waterboarded, and very probably got it wrong.

Farley used a New York Times story as his source, apparently assuming that its status the "the paper of record" would ensure accuracy. Fact-checkers ought to guard themselves against such assumptions. Numerous reports surfaced since the Times story calling its numbers into question.

A U.S. official with knowledge of the interrogation program told FOX News that the much-cited figure represents the number of times water was poured onto Mohammed's face -- not the number of times the CIA applied the simulated-drowning technique on the terror suspect. According to a 2007 Red Cross report, he was subjected a total of "five sessions of ill-treatment."

"The water was poured 183 times -- there were 183 pours," the official explained, adding that "each pour was a matter of seconds."

The Times and dozens of other outlets wrote that the CIA also waterboarded senior Al Qaeda member Abu Zubaydah 83 times, but Zubayda himself, a close associate of Usama bin Laden, told the Red Cross he was waterboarded no more than 10 times.

(Fox News)

The Times and Farley no doubt expect that the poor terrorists were so traumatized by the technique that they could not accurately recall how many sessions they had endured.

Abu Zubaydah:
The suffocation procedure was applied during five sessions of ill-treatment that took place during an approximately one-week intense period of interrogation in Afghanistan in 2002.
(page 10)
Khalid Sheikh Mohammed:
The procedure was applied during five different sessions during the first month of interrogation in his third place of detention.
(page 10)

"In addition I was subjected to 'water-boarding' on five occasions, all of which occurred during that first month."
(page 35)
Have the facts been checked adequately if the assessment includes just one of two widely discrepant accounts, and stories purporting to explain the discrepancy are simply ignored as though the writer was unfamiliar with them?

I don't think so.

The grades:

Robert Farley: D+
Bill Adair: D+

Both men pass merely on the strength of evaluating the main issue correctly. Including the minor issue was questionable, and getting it wrong is unacceptable. Or should be unacceptable.


Guidelines established by the Bush administration set limits on the number of sessions and duration of waterboarding.

You have informed us that the waterboard may be approved for use with a given detainee only during, at most, one single 30-day period, and that during that period, the waterboard technique may be used on no more than five days. We further understand that in any 24-hour period, interrogators may use no more than two "sessions" of the waterboard on the subject - and that no session may last more than two hours. Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed six. The maximum length of any application of water is 40 seconds (you have informed us that this maximum has rarely been reached). Finally the total cumulative time of all applications of whatever length in a 24-hour period may not exceed 12 minutes.

[W]here authorized, it may be used for two “sessions” per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water application. Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

(Bradbury memo, via

The math:

  • Mohammed and Zubayduh both reported a number of waterboarding sessions consistent with the limitation of five days in a 30 day period.
  • Five times at two sessions per day is 10 sessions (probably not a "session" as used in terrorists' descriptions) in a month.
  • Six applications of water multiplied by 10 sessions comes to 60 applications of water in a month.

Sixty, of course, is less than 83, but it remains unresolved whether "applications" as used in the CIA descriptions matches the use of the same term in the Bradbury memo. It may have been necessary to use more than one container of water to sustain a 40 second segment. Or the CIA may have exceeded the guidelines. Either might be the case, not to rule out both.

Power Line on "Dueling Speeches"

President Obama and former vice president Dick Cheney both made speeches on national defense yesterday.

Power Line has a terrific series of posts delving into the comparison between the two speeches.

Highly recommended.

Part I
Part II
Part III
Part IV


For Barack Obama to repeat the canard that the Bush administration shredded the Constitution, operated outside the law, etc., is false and dishonorable. It is also damaging to our country. Barack Obama is slandering his own government--his own nation, really--for political advantage. This is one more in a growing list of contemptible actions by our new President.

Thursday, May 21, 2009

The liberal mind: The Amazing Kathy

This will be cross-posted at my blog critiquing blogs (Bad Blogs' Blood).

"Kathy" is one of the main contributers to a trending liberal blog called "Comments from Left Field." Every so often I drop by there to see how liberals think, and to contribute to discussion threads. Unfortunately, it is all too apparent that I will have to keep searching for quality content from the left.

Not that I reached that conclusion only recently. But a recent exchange with Kathy on waterboarding provided such an astounding example of bankrupt thinking that I can't keep CFLF on the Sith blogroll at Sublime Bloviations, and moreover it is time to induct CFLF into the bad blogs list at Bad Blogs' Blood.

I found Kathy's approach to waterboarding typical of the left--in my experience, anyway--and therefore both fascinating and disturbing. Kathy thinks that waterboarding is obviously torture--and her opinion parallels Justice Potter Stewart's famous opinion on obscenity from Jacobellis v. Ohio: "I know it when I see it."

Having read the Bybee and Yoo memos, I was aware that the legal opinion on which the Bush administration relied rested largely on the distinction between "pain" and "extreme pain," the latter representing the concept of torture stated in the Convention Against Torture. Kathy used the Convention Against Torture as her source for the definition of torture, but denied that the CAT definition was ambiguous.

Given the relatively obvious demarcation problem with the CAT definition, I asked Kathy how we should distinguish between "pain" and "extreme pain." Though her posts in the discussion thread contained many errors, her response to that query serves as a clear representation of why a blogging Kathy will serve primarily to uneducate people, and why CFLF belongs on the bad blogs list. At least if she sticks to politics and world events instead of something about which she possesses genuine knowledge.



Where do we draw the line between “severe” and non-severe? Do you know, since you do not find it the least bit ambiguous?


Common sense, not to mention intellectual honesty, would tell you that severity of suffering is defined by what the victim is feeling, not by what the torturer thinks he is feeling, or decides he will feel if a particular torture is done in a particular way.

As well, common sense would tell you that if the victim is screaming, or crying, or begging for the torture to stop, severe suffering is taking place.

And common sense should tell you that intentionally drowning someone to the point of blacking out and/or death — much less doing it 83 times, or 183 times — will cause severe suffering.

Finally, common sense will tell you that if the purpose of subjecting a person to waterboarding, or to sleep deprivation, or to excruciating stress positions, or to exploitation of phobias, is to force the victim to comply with your request for information or answers to specific questions, then the suffering really should probably be severe, since mild discomfort is probably not going to do the trick.

And yes, all of this IS obvious. Or should be, to a minimally intelligent and reasonable person.

So much so, in fact, that I feel I’ve entered some Alice in Wonderland world just by answering these questions.

Which is why I won’t, anymore.

I expect that most people who seriously follow the news would realize that legal standards based on subjective impressions pose a difficulty. I knew no other way to take a standard based on "what the victim is feeling, not what the torturer thinks he is feeling, or decides he will feel if a particular torture is done in a particular way."

Isn't that type of subjectivity the perfect vehicle for a prisoner lawsuit alleging that confinement apart from his terrorist allies produces intolerable psychological pain? How is one to properly serve Allah as a proper extremist if he is prevented from killing infidels? I chose to illustrate the absurdity of Kathy's position by showing her to be a torturer of the worst sort. In my reply, I complained that Kathy was torturing me.

But that wasn't the end of it, of course. Kathy provided the tools to make a strong case against her. After all, it is the victim's impression of suffering that serves to indicate the degree of torture, not the expectation of the torturer. Kathy's own rationale silenced her objections.

True to form, however, Kathy had somewhat contradicted herself. Though the suffering victim of torture is the arbiter of the degree of torture in her view, "common sense" was supposed to inform us that suffering accompanied by various behaviors of the sufferer would indicate to observers (perhaps even the torturer?--I didn't get around to asking that of Kathy) that the physical or mental pain was "severe pain" rather than mere potentially legal "pain."

It was clear what I had to do. I hit the "Caps Lock" key and begged Kathy to stop torturing me.

I figured I had an airtight case according to Kathy's logic. She didn't mount much of a defense.


Dang. You’re guilty.

And you, Bryan, are an idiot. Draw whatever conclusions you wish: I am through here.

So, Kathy's mental assessment of the legal definition of torture amounts to "It's obvious" or "I know it when I see it." And when called on her shallow-as-a-Slip 'n Slide definition of torture, she reverted to ad hominem and avoidance.

And without a deeper rationale than "It's obvious," there is no way to reason the issue. Sadly.

Wednesday, May 20, 2009

Marco Rubio for Senate

Hat tip to "The Other McCain" at Hot Air.

I've been unimpressed with the guy I helped elect to the office of Florida governor, Charlie Crist. He shares too many of John McCain's unfortunate beliefs/qualities.

Tuesday, May 19, 2009

The truth about the truth about health care (Updated)

Robyn "Blumñata" Blumner is back at it again this week with another nonsensical foray into editorial journalism.

Not that Blumñata has been on vacation since the last time I dissected one of her granfalloonian offerings. She finally wrote something focused enough to warrant a relatively focused reply. Much of her work this year consists of laundry list attacks on either the Bush administration or conservatives in general.

This week she puts her abysmal knowledge of economics on display as she writes in favor of single-payer health care.
Universal health care is a benefit that a large majority of Americans say they want. It would grant Americans some semblance of the kind of peace-of-mind that Canadians and Western Europeans enjoy. We wouldn't have to worry that a job loss would also put our family's health coverage at risk. And on and on.
A large majority of Americans want universal health care? A pity that Blumner failed to name her source. Here is one, from 2003, that calls her claim into question.
In an extensive ABCNEWS/Washington Post poll, Americans by a 2-1 margin, 62-32 percent, prefer a universal health insurance program over the current employer-based system. That support, however, is conditional: It falls to fewer than four in 10 if it means a limited choice of doctors, or waiting lists for non-emergency treatments.
Focusing simply on the first sentence, one would think that universal health care appeals greatly to Americans. But the four in 10 mentioned subsequently is not a majority, and doctor shortages and waiting lists are quite likely with universal health care.

At least we can say that Americans like the idea of pie-in-the-sky health care. Who could be against that minus the problems?

But even Blumñata admits there are problems:
But expanding health coverage to everyone is going to mean higher taxes in some form as well as other sacrifices, such as enforceable cost controls on the medical establishment and some practical limits on patient medical services. Expensive medical procedures that don't demonstrably work or have about the same outcomes as cheaper methods are going to have to be eliminated from coverage. Drugs too will have to prove their efficacy. Welcome to the age of generics.
Higher taxes is a huge drawback to universal health coverage. This represents a core inconsistency with both President Obama's domestic policy and Blumñata's thinking.

Think about it. Mr. Obama is selling health care reform as an economic salve. But that is ridiculous. Sure, decreased spending on health care decreases the percentage of GDP spent on health care--but it also decreases the GDP, particularly where the expenses return workers to their jobs faster.

Interruption via update: To make myself clear, decreased spending on health care decreases the GDP generally, while the rapid return of workers to their jobs shrinks the percentage of GDP spent on health care as a percentage of GDP generally.

I apologize for the poor job I did expressing that idea.


But back to her list of admitted problems.
  • cost controls
  • limits on patient medical services
To be sure, Blumñata offers only one example in support of these euphemistic-sounding drawbacks. Expensive treatments that do not work well would be eliminated as options, she says, and where two treatments offer about the same benefit the more expensive of the two would be sidelined.

It is neither that simple nor that benign.

Cost controls will very probably include restrictions on your choice of doctors as well as limitations on seeing a specialist. They will probably include (perhaps only when the money starts to run out) assessments on the quality of life a patient expects following treatment. They will include rationing of services, which will grow gradually more pronounced as the wealth of medical resources produced by our past systems turns obsolete. As for Blumner's example of reduced availability of medications, doctors often have clinical reasons for choosing a more expensive medication. Patients do not always respond the same way to medicine, and some medicines do not work well in conjunction with other therapies.

The benign-sounding push toward efficiency is, by analogy, an initiative that removes tools from the doctor's toolbox, and, instead of your doctor, the government will decide which tools belong in there.
Knowing there will be costs and how much Americans hate the thought that lunch may not be free, opponents to health care reform have already launched a "Harry and Louise" style scare campaign. A group called Conservatives for Patients' Rights expects to spend up to $20 million on television ads that feature patients and doctors in Canada and Britain complaining about long waits for surgery or how they couldn't get needed medications under their national health care.
Sometimes the truth hurts, which is probably why single-payer proponents like Blumñata want to poo-poo the real problems with the idea by labeling it as a "scare campaign." The poll above shows how support for universal health care shrinks based on the existence of its traditional drawbacks. Conservatives who want to publicize those drawbacks are simply trying to scare people. Or something:
It is designed to make you want to desperately cling to the status quo.
I doubt it, for the admitted problems with the current system stem largely from government involvement, including the ramifications for malpractice within the framework of the U.S. legal system. Other problems stem from attaching health care to employment--a problem presidential candidate John McCain had hoped to address with his health care reform plan--and the third party payment system as represented by private insurance, Medicare and Medicaid.

As for the supposed desperation:
PRINCETON, NJ -- Despite ever-increasing healthcare costs and widespread dissatisfaction with the U.S. healthcare system, a majority of Americans remain satisfied with what they pay for their own healthcare, the quality of the healthcare they receive, and their healthcare coverage.
What, Blumñata never told you that? Most of you are supposed to be desperate! Now get with the socialist pogrom! Er, I mean program.
Of course, President Barack Obama isn't suggesting that we adopt a single-payer system like these other countries have — which is too bad in my view.
Obama has said that he prefers the single-payer plan. But he also clearly realizes that an immediate switch to a single-payer plan is a high political risk. His plan immerses the medical system frog in a pot of tepid water and starts heating it gradually from the bottom. Before you know it, you're cooked.
Reality: Obama Has Consistently Said That If We Were Starting From Scratch, He Would Support A Single Payer System, But Now We Need To Build On The System We Have
No doubt that prospect makes Blumñata impatient.
People in the United States seem to like our own single-payer government-run program: Medicare.
Sure they do. So long as they aren't thinking about the incredible waste in the Medicare system along with the fact that it already consumes over 16 percent of federal spending (Social Security included). National defense takes up about 19 percent.

clipped from

blog it

The Medicare budget just keeps expanding, and the baby boomers will push its expenses to even more amazing heights. Sorry if that sounds scary, but it is reality. There is one way to avoid the problem: Cut and/or ration services. The only part of his plan for Medicare that Obama will currently admit, so far as I'm aware, is the part that expands the government's share of medical costs and raises taxes to pay for it. Is that fiscal responsibility? Seriously?

Back to Blumñata:
And as to the poor Canadians who can't get decent medical care? A 2008 Harris poll of how the citizens of 10 developed countries feel about their health care system found the United States dead last, with fully a third of Americans saying our system needs to be completely rebuilt. Meanwhile, Canada's system was third-highest in popularity.
Hmm. Blumñata left out the poll's conclusion to the effect that all the nations surveyed had majorities calling for health care reform.
Regardless of what system a country has it falls far short of satisfying public expectations. Most systems always seem to be in a crisis or near crisis.
It is true that the U.S. system ranks last among the nations surveyed in terms of native popularity. But there could be innumerable reasons for that other than quality of care, including the existence of a pervasive negative message from the national press.

Blumñata again:
But the folks coordinating the ads don't let the facts stand in their way.
They'll face a stiff challenge in ignoring more facts than our own Blumñata. Rather than start in on how those folks play with the facts, she engages in four paragraph's worth of personal attacks against Rick Scott of Conservatives for Patients' Rights. Supposedly it is relevant that the hospital group Scott once headed, HCA, was found guilty of various wrongs even if Scott himself was charged with nothing and convicted of nothing.

Too cute.

After apparently exhausting her supply of facts misrepresented by Scott (without ever starting on it), Blumñata runs off to attack the strategy she says Republicans will use to oppose Obamacare:

Republicans in Congress are positioning themselves in this camp too. They're working from a 28-page attack plan by GOP strategist Frank Luntz, an expert on phrasing political positions for maximum advantage. The plan lays out ways to defeat Obama's health care reforms by painting Democrats as wanting "to put Washington politicians in charge of your health care."

The charge is absurd since Obama's intention is to leave current health insurers in place while offering a government plan as an alternative. But there may be real trouble in holding congressional support together when the new costs and sacrifices necessitated by a $120 billion universal health care plan start coming clear.

Somehow, Blumñata has worked in an editorial position with a newspaper for over 15 years without apparently realizing that Congress controls the expenditures of the government. Along with not realizing that government insurance automatically carries a competitive advantage over private insurance. Know of any private insurance companies that can levy general taxes in order to support their bottom line?

How long did it take for Florida's state-sponsored homeowner's insurance entity to its current status as Florida's #1 homeowner's insurance company?
The Florida Legislature created Citizens Property Insurance Corp. in 2002 when it merged two existing state-backed insurance pools, the Florida Residential Property and Casualty Joint Underwriting Association and the Florida Windstorm Underwriting Association. Commonly called Citizens, it is now Florida's largest home insurer. As of November 2007, Citizens insured more than 1.4 million homes, condos and businesses in Florida.
FYI, the Florida Residential Property and Casualty Joint Underwriting Association was established way back in 1992. The Florida Windstorm Underwriting Association is comparatively ancient, kicking off in 1970 to cover properties in the Florida Keys. In any event, they demonstrate the tendency of government entities to grow. A big part of that growth stems, in this case, from the state insurers exemption from leverage rules applied to private insurers.

So, yes, the plan set forth by Obama does increase the government's role in health care and that role is likely to incrementally increase, leading to exactly the types of problems characteristic of single-payer programs--unless the political pressure brought by groups such as Scott's prevent it.

And for Blumñata it isn't just the supposed misrepresentations by Scott, it is the method they supposedly intend to employ.

She quotes a portion of the Frank Luntz "attack plan," but where is the rest of the so-called "attack plan"? I have been unable to find a copy of it online. If it is so bad, then why not publicize the whole thing? Why quote tiny portions from the 28 pages without any surrounding context?

Maybe that's the only way to keep Luntz from misleading people? Keep the people from accessing the information?

Bottom line, Obama's health care reform as part of an economic stimulus is a dangerous fantasy. And the resulting health care system will surely deliver a lower quality of care even if it satisfies people who believe they would have to pay for their own care otherwise. Speaking of free lunch.