(updated w/transcript)

Back in February, The New York Times' Charlie Savage -- who won the Pulitzer Prize for exposing Bush's use of signing statements to break the law -- wrote an article reporting that, after a first-week Executive Order from Obama banning torture, "the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda," which is "prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies."  About Savage's February article, I wrote:

While believing that Savage's article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly).

In retrospect, Savage was right and I was wrong about that:  his February article was far more prescient than premature. 

Today, in the NYT, Savage has another article examining the same topic, headlined:  "To Critics, New Policy on Terror Looks Old."  In it, he explores this question:  "Has [Obama], on issues related to fighting terrorism, turned out to be little different from his predecessor?"  A key point from Savage's article -- which I've tried to emphasize several times -- is that whereas these policies were supported by roughly half the population (Republicans) in the Bush era but vehemently opposed by the other half (at least ostensibly), Obama's embrace of them is now causing a large part of the other half of the population (Democrats) to support them as well, thus entrenching them as bipartisan consensus:

In any case, Jack Balkin, a Yale Law School professor, said Mr. Obama’s ratification of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations.  By bestowing bipartisan acceptance on them, Mr. Balkin said, Mr. Obama is consolidating them as entrenched features of government.

"What we are watching," Mr. Balkin said, "is a liberal, centrist, Democratic version of the construction of these same governing practices."

That was the point former Bush DOJ lawyer Jack Goldsmith made when arguing last month that Obama is actually strengthening (rather than "changing") the Bush/Cheney approach to Terrorism even more effectively than Bush did by entrenching those policies in law and causing unprincipled Democrats to switch from pretending to oppose them to supporting them, thus transforming them into bipartisan dogma.

Savage is my guest on Salon Radio today to talk about Obama's record on terrorism and civil liberties, and the way -- as Savage describes it -- Obama has embraced and replicated many of the core "War on Terror" polices of the Bush presidency, particularly in the form they took in Bush's second term (even as Obama largely purports to reject the Bush theories of unilateral presidential power).  We also discuss how so many people who previously criticized these polices rather vocally when pursued by Bush are either silent or actively supportive now that Obama is defending them.  There simply aren't any better reporters on these issues than Savage, and I highly recommend listening to his very nuanced and well-informed views on these topics.  

The discussion is roughly 20 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly.

UPDATE:  The transcript is now posted here.

On a note related to all of this, the Obama administration -- which has repeatedly delayed releasing a less redacted version of the 2004 report of the CIA's Inspector General that aggressively challenged both the legality and efficacy of torture -- today announced that it would delay its disclosure by at least another seven weeks, to August 31, 2009.  We're in the New Era of Tranpsarency.

(updated below - Update II - Update III)

There are several noteworthy developments since I wrote on Tuesday about the refusal of NPR's Ombdusman, Alica Shepard, to be interviewed by me about NPR's ban on using the word "torture" to describe the Bush administration's interrogation tactics.  Given the utter vapidity of her rationale ("there are two sides to the issue. And I'm not sure, why is it so important to call something torture?"), I was momentarily amazed to learn that she actually teaches "Media Ethics" to graduate students at Georgetown University (my amazement quickly dissipated once I recalled that this is the same institution that, until last year, paid Doug Feith -- Doug Feith -- to teach students "national security policy" and that Berkeley Law School has John Yoo "teaching law" to its students; next semester at Georgetown:  Karl Rove teaches Civility in a Post-Partisan Age, Bill Kristol lectures on Accountability in Punditry, while David Gregory examines The Role of Intellect in Adversarial Questioning).

NPR's "torture" ban and its Ombudsman's incoherent defense of it has now turned into a significant controversy for NPR -- and rightfully so.  Yesterday, The Huffington Post trumpeted the controversy in a prominent headline all day long, focusing on Shepard's refusal to be interviewed here.  The media reporter Simon Owens wrote a long column on Shepard's refusal to discuss her rationale with me despite my having been a primary critic of NPR's policy (indeed, this controversy began several weeks ago when I noted the ample documentation from NPR Check of NPR's steadfast refusal to use the word "torture" and the embarrassing contortions it employs to accomplish that).  

Also, along with her On the Media appearance this weekend, Shepard went on another NPR-affiliated show -- Patt Morrison's KPCC Southern California Public Radio program -- in a quality segment that included several good questions from Morrison (and even better ones from callers); a very well-compiled, illustrative and cringe-inducing montage of NPR's repeatedly going out of its way to avoid calling Bush interrogation tactics "torture," juxtaposed with an excerpt where NPR explicitly accused Iraqis in Sadr City of "using torture" against detainees; and, finally, the inclusion in the discussion of a Berkeley Professor of Linguistics explaining why it matters so much what the media does in this regard and how virtually all media around the world -- other than what he called the "spineless U.S. media" -- call these tactics "torture" (the KPCC program credits my criticisms of Shepard for catalyzing the controversy and the segment can be heard here).  Amazingly, a caller asked Shepard about the advent of blogs and how it has diversified commentary, and in replying, Shepard put on her most condescending and self-glorifying voice to say this:

I think, um, we're now at a stage where the debate is between dialogue and diatribe, and I wish there was more dialogue.  I think there's more diatribe.

That's from the same person who refuses to "dialogue" about her views outside of NPR-affiliated confines. 

Along those lines, Shepard has gone back to her NPR blog to write yet another column about this controversy and to assure NPR listeners in her headline that "Your Voices Have Been Heard."  In it, she references my criticisms without bothering to address any of them, and also claims, for whatever it's worth:  "For the record, I have brought this issue and the volume of comments to the attention of NPR's top editorial staff."

Finally, Shepard today will appear on yet another NPR program, the nationally broadcast Talk of the Nation, beginning at 2:00 p.m. EST, for a segment entitled "Why Doesn't NPR Call Waterboarding Torture?"  Readers here are obviously quite familiar with this controvery as well as Shepard's conduct in it thus far and could obviously pose excellent questions to her.  Her appearance this afternoon on Talk of the Nation provides a good opportunity for that (the call-in number is 800-989-8255; for those in cities (such as NYC) where NPR doesn't broadcast that show, CarolynC has information about where to hear it).

* * * * *

Several weeks ago, when writing about all of the various euphemisms employed by The New York Times to avoid using the word "torture," I wrote about why I think this matters so much and why the media's use of euphemisms invented by the government torturers themselves so vividly reflects the core corruption of American "journalism":

This active media complicity in concealing that our Government created a systematic torture regime -- by refusing ever to say so -- is one of the principal reasons it was allowed to happen for so long . . . The steadfast, ongoing refusal of our leading media institutions to refer to what the Bush administration did as "torture" -- even in the face of more than 100 detainee deaths; the use of that term by a leading Bush official to describe what was done at Guantanamo; and the fact that media outlets frequently use the word "torture" to describe the exact same methods when used by other countries -- reveals much about how the modern journalist thinks. These are their governing principles:

There are two sides and only two sides to every "debate" -- the Beltway Democratic establishment and the Beltway Republican establishment. If those two sides agree on X, then X is deemed true, no matter how false it actually is. If one side disputes X, then X cannot be asserted as fact, no matter how indisputably true it is. The mere fact that another country's behavior is described as X doesn't mean that this is how identical behavior by the U.S. should be described. They do everything except investigate and state what is true. In their view, that -- stating what is and is not true -- is not their role.

The whole world knows that the U.S. tortured detainees in the "War on Terror." Yet American newspapers refuse to say so.

That second paragraph is a pure distillation of how Shepard -- the "Media Ethics" Professor in Georgetown's graduate journalism program and NPR's Ombudsman -- explicitly thinks.  And that -- a refusal to state facts and instead amplify and give credence to plain falsehoods -- is one of the principal and most destructive sicknesses in American establishment journalism.  All of that was perfectly captured by penetratingly true satire back in August, 2004, from Jon Stewart and Daily Show "reporter" Rob Corddry [sent to me this week by a reader to illustrate what NPR is doing]:

Stewart: Here's what puzzles me most, Rob. John Kerry's record in Vietnam is pretty much right there in the official records of the U.S. military, and hasn't been disputed for 35 years.

Corddry: That's right, Jon, and that's certainly the spin you'll be hearing coming from the Kerry campaign over the next few days.

Stewart: That's not a spin thing, that's a fact. That's established.

Corddry: Exactly, Jon, and that established, incontrovertible fact is one side of the story.

Stewart:  But isn't that the end of the story? I mean, you've seen the records, haven't you? What's your opinion?

Corddry: I'm sorry, "my opinion"? I don't have opinions. I'm a reporter, Jon, and my job is to spend half the time repeating what one side says, and half the time repeating the other. Little thing called "objectivity" -- �might want to look it up some day.

Stewart: Doesn't objectivity mean objectively weighing the evidence, and calling out what's credible and what isn't?

Corddry: Whoa-ho! Sounds like someone wants the media to act as a filter! Listen, buddy:  Not my job to stand between the people talking to me and the people listening to me.

That derision is also as pure an expression of how Alicia Shepard and NPR think as one can imagine.  And it's not just Shepard, but American journalists generally.  From a 2006 interview Jim Lehrer gave to Columbia Journalism Review:

CJR: At CJR Daily, we spent a lot of time during the 2004 presidential campaign criticizing just the sort of story that it seems [Ben] Bradlee is describing — stories that "highlight the controversy," report this claim versus these competing claims, rather than providing facts for the reader and helping them navigate toward the truth. What are your thoughts on this? How do you approach reporting what a public official has said something that is blatantly untrue?

Lehrer: I don’t deal in terms like "blatantly untrue." That’s for other people to decide when something’s “blatantly untrue.” There’s always a germ of truth in just about everything . . . My part of journalism is to present what various people say about it the best we can find out [by] reporting and let others — meaning commentators, readers, viewers, bloggers or whatever . . .

But remember:  don't ever call them "stenographers."  That's insulting and offensive. Rather, what they do is called "reporting," by which they mean:  "We call people in power and write down what they say really accurately and then we faithfully repeat what 'each side says' without commenting on it or judging it (except where it's our Government's claims against some foreign country, in which case we state our Government's claims as fact)."

* * * * *

What makes this practice particularly destructive in the torture context is that the central enabling deceit of the Bush administration was that there are no objective, verifiable standards for what "torture" is.  Instead, it's just all in the eye of the beholder, easily re-defined to include or exclude anything we want, dependent upon who is doing it, devoid of any authoritative sources on what it means, and, ultimately, entirely subjective.  It is that rotted premise -- that there is no fixed, known understanding of "torture" -- that outlets like NPR are not just accepting, but actively promoting, by refusing to use the term on the ground that "there are two sides to the question" (see ABC News' Jake Tapper for an imperfect though still commendable exception:  tactics used by CIA "qualify under international law as torture").

It is vital to keep in mind -- as I noted last week in arguing why it's so vital that torture photos be released -- that there is still very much an active, vibrant debate over torture in this country.  That debate encompasses not only the question of whether we should punish those who did it, but whether or not it is right and just for us to use it.  In fact, as reported just recently by Harper's Luke Mitchell, Jeremy Scahill, and Lt. Col. Barry Wingard, there is ample evidence that very serious abuse is still occurring in America's detention facilities, including at Guantanamo (all of which confirmed similar reports from earlier this year).  Whether the U.S. should torture people is a matter of opinion about which reporters need not take a position.  But that is plainly not the case for the proposition that these tactics are "torture."  There are not two sides to that question, and media outlets that suggest otherwise are actively deceiving their audience.

UPDATE:   I neglected to mention this strange email exchange I had with Anna Christopher, NPR's "Senior Manager, Media Relations," who contacted me on Tuesday after I wrote about Shepard's refusal to be interviewed.  In posting the exchange, I'm editing out one sentence from my reply which references an insignificant fact about why Shepard was out of the office last week that the Salon intern who spoke with Shepard's office (on my behalf) agreed to keep off-the-record (an agreement I therefore feel compelled to respect).

UPDATE II:  In comments, Paul Daniel Ash points out the glaring dishonesty in Shepard's central defense of NPR's policy.

UPDATE III:  On a not unrelated note, long-time journalist Charles Kaiser (Newsweek, NYT, WSJ) notes that The Washington Post has been caught selling lobbyist access to their reporters and political officials; declares the Post dead; and writes its obituary.

(updated below)

After numerous delays sought by the Obama administration, it is expected that a 2004 CIA Inspector General's Report -- aggressively questioning both the efficacy and legality of Bush's interrogation tactics -- will be released tomorrow.  A heavily redacted version of that document was already released by the Bush administration in response to an ACLU lawsuit and it remains to be seen how much new information will be included in tomorrow's version.

In anticipation of the release of that report, there is an important effort underway -- as part of the ACLU Accountability Project -- to correct a critically important deficiency in the public debate over torture and accountability.  So often, the premise of media discussions of torture is that "torture" is something that was confined to a single tactic (waterboarding) and used only on three "high-value" detainees accused of being high-level Al Qaeda operatives.  The reality is completely different. 

The interrogation and detention regime implemented by the U.S. resulted in the deaths of over 100 detainees in U.S. custody -- at least.  While some of those deaths were the result of "rogue" interrogators and agents, many were caused by the methods authorized at the highest levels of the Bush White House, including extreme stress positions, hypothermia, sleep deprivation and others.  Aside from the fact that they cause immense pain, that's one reason we've always considered those tactics to be "torture" when used by others -- because they inflict serious harm, and can even kill people.  Those arguing against investigations and prosecutions -- that we Look to the Future, not the Past -- are thus literally advocating that numerous people get away with murder.

The record could not be clearer regarding the fact that we caused numerous detainee deaths, many of which have gone completely uninvestigated and thus unpunished.  Instead, the media and political class have misleadingly caused the debate to consist of the myth that these tactics were limited and confined.  As Gen. Barry McCaffrey recently put it:

We should never, as a policy, maltreat people under our control, detainees. We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.

Journalist and Human Rights Watch researcher John Sifton similarly documented that "approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death."

* * * * *

The ACLU has posted online numerous autopsy reports of detainee deaths in U.S. custody.  These are documents prepared by the U.S. military, and they are as chilling as they are reflective of extreme criminality.  Here are just a few illustrative examples (click on images to enlarge):

Autopsy ME-4309 -- 27 y/o male civilian - Mosul:

Autopsy A 03-51 -- 52 y/o male civilian -- Nasiriyah:

Autopsy ME 03-367 -- unknown age, Iraq:

A Daily Kos diarist today has more on these autopsy reports.  Sifton describes numerous other cases of detainees tortured to death in U.S. custody:

• Jamal Naseer, a soldier in the Afghan Army, died after he and seven other soldiers were mistakenly arrested. Those arrested with Naseer later said that during interrogations U.S. personnel punched and kicked them, hung them upside down, and hit them with sticks or cables. Some said they were doused with cold water and forced to lie in the snow. Nasser collapsed about two weeks after the arrest, complaining of stomach pain, probably an internal hemorrhage.

•  

• In December 2003, a 44-year-old Iraqi man named Abu Malik Kenami died in a U.S. detention facility in Mosul, Iraq. As reported by Human Rights First, U.S. military personnel who examined Kenami when he first arrived at the facility determined that he had no preexisting medical conditions. Once in custody, as a disciplinary measure for talking, Kenami was forced to perform extreme amounts of exercise—a technique used across Afghanistan and Iraq. Then his hands were bound behind his back with plastic handcuffs, he was hooded, and forced to lie in an overcrowded cell. Kenami was found dead the morning after his arrest, still bound and hooded.

•  

• There may be other CIA homicides yet uncovered. One case of concern involves a detainee in the CIA’s detention program named Hassan Ghul, a Pakistani who was arrested in northern Iraq in January 2004. . . . I am starting to suspect that Ghul might be dead. After all, his name was redacted from the OLC memo, unlike that of other CIA detainees now at Guantánamo. Why would the CIA be afraid of mentioning Ghul? CIA doctors appear to have determined that Ghul was in poor health when he was captured, in fact, too unhealthy to be waterboarded. Unlike other former CIA detainees, human-rights groups have not confirmed that he was rendered to Pakistan or to a third country. Did the CIA perhaps torture Ghul to death? We do not know. He has now completely disappeared.

And from Human Rights First:

The cases also include that of Abed Hamed Mowhoush, a former Iraqi general beaten over days by U.S. Army, CIA and other non-military forces, stuffed into a sleeping bag, wrapped with electrical cord, and suffocated to death. In the recently concluded trial of a low-level military officer charged in Mowhoush’s death, the officer received a written reprimand, a fine, and 60 days with his movements limited to his work, home, and church.

As many documented cases of detainee deaths as there are, these deaths have almost certainly been under-counted, as the military and CIA have simply failed to investigate many obvious homicides or even falsely characterized them as natural deaths.  As The Medscape Journal of Medicine explained after reviewing all of the available autopsy reports of detainee deaths:

In a well-publicized death of an Iraqi general that resulted from trauma and asphyxiation, the on-site surgeon ruled the death "natural."[11] On review at autopsy, this death was eventually classified as homicide by the Office of the Armed Forces Medical Examiner.[8] According to the Church Investigation Report, in at least 3 deaths, "medical personnel may have attempted to misrepresent the circumstances of abuse, possibly in an effort to disguise detainee abuse."[21]

In the case of Kenami, detailed above by Sifton, this is what happened in the aftermath of his death:

No autopsy was conducted; no official cause of death was determined. After the Abu Ghraib scandal, a review of Kenami’s death was launched, and Army reviewers criticized the initial criminal investigation for failing to conduct an autopsy; interview interrogators, medics, or detainees present at the scene of the death; and collect physical evidence. To date, however, the Army has taken no known action in the case. 

Needless to say, there has been very little accountability even for the deaths which the U.S. military itself acknowledges are homicides, as Human Rights First documented:

Since August 2002, nearly 100 detainees have died while in the hands of U.S. officials in the global “war on terror.” According to the U.S. military’s own classifications, 34 of these cases are suspected or confirmed homicides; Human Rights First has identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. . . .

Despite these numbers, four years since the first known death in U.S. custody, only 12 detainee deaths have resulted in punishment of any kind for any U.S. official. Of the 34 homicide cases so far identified by the military, investigators recommended criminal charges in fewer than two thirds, and charges were actually brought (based on decisions made by command) in less than half. While the CIA has been implicated in several deaths, not one CIA agent has faced a criminal charge. Crucially, among the worst cases in this list – those of detainees tortured to death – only half have resulted in punishment; the steepest sentence for anyone involved in a torture-related death: five months in jail.

 * * * * *

It's not uncommon, of course, for our political debates to be distorted.  But discussions over torture and accountability have descended to a new level.  The picture that is most commonly conveyed -- that torture was confined to a small handful of cases, was highly regulated, and resulted in no long-lasting harm -- is pure propaganda, completely false.  The reality -- that our "interrogation tactics" killed numerous detainees, who, by definition, are people confined helplessly in our custody, virtually none of whom has been convicted of anything, and at least some of whom are completely innocent -- is virtually never heard as part of these debates.  It's vital that this changes.  Tomorrow's likely release of a new version of the incriminating CIA IG Report provides an excellent opportunity for that finally to happen.

[Thank you to everyone who particpated in the fund-raiser I held here last week.  The response was very enthusiastic and it was quite successful.  I tried to send personal emails thanking everyone who contributed, but it's possible that Paypal irregularties, email errors or personal oversight may have caused some to fall through the cracks, so I'll take this opportunity to express my sincere appreciation.  I hope and expect that it will enable me to take steps that will improve the impact and efficiency of what I do here in several ways.]

UPDATE:  British journalist Andy Worthington has a superb and richly detailed examination of numerous other detainee deaths, with an emphasis on the clear link between those deaths and the tactics approved by Bush officials.

Jane Hamsher details the extremely aggressive tactics the White House and House leadership used to coerce liberal environmentalist members to vote for the cap-and-trade bill despite their belief that it helped polluters more than it did anything else (and remember their ability to do that the next time they claim that a bill they ostensibly support simply couldn't pass because it lacked the necessary votes).  Jane quotes from a Politico article reporting on White House anger towards environmentalist Democratic Rep. Lloyd Doggett, due to an impassioned floor speech he gave arguing that the bill was so industry-friendly that it would do more harm than good.  That article contains this quote:

The White House is smoking mad at Rep. Lloyd Doggett (D-Texas), who says he's voting against the climate bill — despite the lobbying of the entire First Family in the Oval Office last night.

If the bill goes down, Obama won't forget Doggett's role, Democrats say.

It's "stunning that he would ignore the wishes not just of his president, but of his constituents and the country,” said an administration official.

This has become an emerging theme among both the White House and House leadership:  that progressive members of Congress have an obligation to carry out "the wishes of the President" even when they disagree (now, apparently, it's "stunning" when they defy his dictates).  That was the same subservient mentality that led House Democrats who admitted they opposed the war supplemental spending and/or the foreign bank bailout to nonetheless vote for the bill:  because they President favored it.  The duty of Congress is not to obey the wishes of the President. 

Note, too, that the sort of bullying tactics that were used for the war supplemental bill and now for the cap-and-trade bill are only directed towards the House progressives who want legislation to be less beholden to corporate donors; those tactics are never invoked against Blue Dogs who play a vital role in impeding progressive legislation and thus supply the perfect excuse for Democratic leaders as to why such legislation does not pass.  Let's see if these tactics are used against Blue Dogs who impede a public option for health care, the repeal of DOMA and Don't Ask, Don't Tell, and various issues relating to the closing of Guantanamo.  Will we hear condemnations from Rahm Emanuel's underlings about how stunning and outrageous it is that conservative Democrats are "ignoring the wishes of the President?" 

NPR's Ombudsman, Alicia Shepard, wrote a column last week justifying NPR's policy of using euphemisms such as "enhanced interrogation tactics" -- while barring the use of the word "torture" -- to describe the interrogation tactics used by the Bush administration.  I wrote a critique of that column which was widely cited, and the comment section to her column was filled with hundreds of angry criticisms -- many times the number of comments her column typically attracts (usually in the range of 10-20).  As a result of all that, last week I extended an invitation to Shepard to discuss her column with me on Salon Radio, and was told by an NPR representative that she would respond to the invitation by Monday.

Yesterday, we received Shepard's response:   no.  According to the Salon intern who tenaciously pursued Shepard all week and spoke with her yesterday:

I just got off the phone with Alicia Shepard.  She declined to have an interview, or to go on Salon Radio.  To quote, she thought "misleading things" were written about her on Salon, and said "I don't want to get into a shouting match." As for what the "misleading" statements were, she didn't clarify.

I've conducted close to 100 interviews since we launched Salon Radio in July of last year -- including numerous interviews with people expressing views I criticized rather harshly (one of whom was NPR's Tom Gjelten) -- and not a single one could be characterized as a "shouting match."  In fact, I don't think any of them entail anyone raising their voices at all.  That's a rather lame excuse to avoid facing challenges to one's arguments.  And if it's really true that I made "misleading" statements about her column (despite my excerpting large portions of what she wrote), that would be all the more reason to clarify what she believes.

But this is a quite common affliction in our political discourse.  There are many people who love to opine pedantically and express all sorts of provocative opinions -- as long as they don't ever have to confront criticisms of those views.  People like Charles Krauthammer and Bill Kristol will stay hiding on Fox News where they can spout all sorts of claims without challenge, but then refuse to be questioned about those views by someone like Bill Moyers.  Rachel Maddow constantly invites prominent Republicans on her show so she can interview them, but most refuse.  I can't even imagine writing a column that caused as much anger as Shepard's did -- on a topic as obviously controversial as torture -- and then refusing to discuss it with someone who led the objections to what I wrote.  That's why I've debated journalists I've criticized and have even gone on right-wing talk radio to discuss columns I wrote, and routinely respond to criticisms in the comment section to the posts I write.   For reasons I've explained before -- in response to a Marc Ambinder post advocating that pundits be more willing to engage those with whom they disagree -- seeking out a public forum in which to express controversial views (as Shepard has done) entails the obligation to confront critics and criticisms.  Refusing to do so is irresponsible cowardice that singularly enables reckless opining (The Washington Post's Ruth Marcus did the same thing after writing columns advocating that Bush officials not be investigated for the crimes they committed only to then refuse to be questioned about her views).

Revealingly, after my interview invitation was extended to her last week, Shepard did appear for a five-minute segment on an NPR program -- On the Media -- to discuss her column with an NPR host.  There's only so much an interviewer can accomplish in a five-minute segment, and that's particularly true when one is an NPR host interviewing a fellow NPR employee about an NPR management policy.  That said, the interviewer -- Bob Garfield -- did a very good job of asking some of the key questions (though there are many others I'd like to ask her).  As a result, even with those constraints, the emptiness of Shepard's rationale quickly became evident.  The segment can be heard here (or by clicking PLAY on the player below) and is recommended.  The comment section to the interview is filled with NPR listeners furious at the NPR policy and Shepard's defense of it.  It's not hard to see why Shepard is eager to avoid being questioned adversarially, outside of NPR, about her position.

* * * * * 

(updated below)

In the now famous "white firefighter" affirmative action case -- Ricci v. DeStefano -- the Supreme Court today, in a 5-4 ruling (.pdf), reversed the decision of a unanimous Second Circuit Court of Appeals panel (which included Judge Sonia Sotomayor) and held that the firefighters were the victims of unlawful racial discrimination.  The Court split along standard ideological lines (Roberts, Thomas, Scalia, Alito and Kennedy in the majority), with Kennedy writing the Court's opinion.  Four Justices agreed with the Second Circuit's panel, including David Souter, the Justice whom Sotomayor has been nominated to replace.  Several points are noteworthy about this decision:

(1)  In light of today's ruling, it's a bit difficult -- actually, impossible -- for a rational person to argue that Sotomayor's Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel's ruling; and now: (d) four out of the nine Supreme Court Justices -- including the ones she is to replace -- agree with her.

Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did.  It's perfectly reasonable to argue that she ruled erroneously, but it's definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.

(2) The irony of using Ricci against Sotomayor has always been that the reason this case resonates for so many people is due to empathy for the white firefighters.  That irony is underscored by today's ruling, as Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci.  Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters "understandably attract this Court's sympathy," but it must be the law -- i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act -- which determines the outcome.

From the start, those protesting Sotomayor's decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of "fairness" and empathy -- at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making.

(3)  For all the chatter about "judicial activism" and that dreadful Roberts metaphor of "a neutral umpire calling balls and strikes," it is so striking how frequently conservative judges invalidate policies which conservatives dislike as a political matter.  Here we have the conservative wing of the Court declaring illegal the employment decisions of local government officials, who used a political approach -- diversity -- which conservatives dislike on policy grounds.  So often, the outcomes of the allegedly neutral conservative judges are completely consistent with (and aggressively advance) the political preferences of conservatives (Bush v. Gore being only the most obvious example).  Indeed, few things are rarer than conservatives Justices invalidating policies that conservatives like politically, or upholding policies they despise -- the true test for whether one applies the law independently of political and outcome preferences.

 (4)  As is true for most discussions of affirmative action, the fight over Ricci has completely ignored the countless ways that whites in America have long benefited, and continue to benefit, from exactly the sort of non-merit considerations which affirmative action opponents decry.  As Justice Ginsberg noted, whites had a virtual monopoly for decades on firefighter positions until Congress extended Title VII to public employment ("firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow"), and city officials in this case determined that the test in question was flawed because, among other things, it did not reward merit.  The result of the Court's decision in Ricci -- barring the City of New Haven from invalidating metrics with a racially disparate impact -- is this:

Regardless of one's views on affirmative action, the complaints about not-merit-based factors cut both ways.  As for Sotomayor, the Court's 5-4 decision today ought to put an end to the attempt to use Ricci to depict her as being somehow out of the judicial mainstream and thus unfit for the Court.

UPDATE:  Scotusblog's Tom Goldstein makes several similar points about the decision:

I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the [five-member majority of the] Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive" . . . .

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.

That last sentence is the key point and should end any attempts (other than by right-wing polemicists looking to raise money off her nomination) to use Sotomayor's Ricci decision to depict her as out-of-the-mainstream.

One of the most cherished weapons for dismissing political arguments without having to engage them is to claim they come from "the Far Left" or are confined to "liberal ideologues."  For years, that was what was said about withdrawing from Iraq even as majorities of Americans supported that position, and it is how the political and media establishment now demonize the call for investigations into Bush/Cheney crimes, despite large percentages and diverse ideological support for those views .  Exactly the same tactic is used to dismiss those who criticize Obama for adopting Bush policies in the areas of civil liberties and secrecy:  only people from the Far Left fringe or civil liberties extremists would equate Obama and Bush when it comes to such matters.

From today's Op-Ed page of The Washington Post -- the ultimate establishment organ -- one finds this observation about Obama's use of the state secrets privilege from a Post Editorial:

The second Bush administration took the state secrets doctrine to new heights by arguing that an entire case should be dismissed -- sometimes at its earliest stages -- if it could touch on any information that could conceivably have national security ramifications. The Justice Department under President George W. Bush used this approach to try to quash litigation involving, among other things, domestic surveillance and extraordinary rendition (the forced transfer of detainees to countries where they may be tortured).

President Obama has said that the state secrets doctrine should be reformed, and he has promised to be more measured. Yet when confronted with actual cases the Obama Justice Department has adopted the same legal arguments as the Bush administration.

From a Post Op-Ed today by two of the leading advocates of preventive detention -- former Bush DOJ official Jack Goldsmith and Benjamim Wittes of the right-wing Hoover Institute and neoconservative Brookings Institution -- there is this observation on Obama's possible use of an Executive Order to vest himself with preventive detention powers rather than having Congress do it for him:

Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.

This seductive logic, however, failed disastrously for Bush -- and it will not serve Obama any better.

That Obama is replicating the Bush/Cheney approach in these areas isn't a by-product of some civil liberties extremist refusal to appreciate the joys of pragmatism or Leftist-purist dissatisfaction with all dogmatic imperfection.  That this observation is heard from The Washington Post Editorial Page (of all places), from right-wing advocates such as Wittes and Goldsmith, and from mainstream, liberal and pro-Obama outlets (TPM this weekend:  preventive detention approach is "the latest installment in the Obama administration's tendency to mimic the Bushies on war on terror tactics") demonstrates that rather conclusively.  Rather, it's just a blindlingly clear fact that any minimally honest person is compelled to acknowledge.  When one combines that with the fact that Bush's actions in the areas of civil liberties, Terrorism and secrecy were (at least ostensibly) central to the widespread anger about the Bush presidency, it's impossible to understand how anyone whose objections over the last eight years were sincere (as opposed to a handy weapon opportunistically used to politically weaken Bush) could be supporting what Obama, in these areas, is doing now.

* * * * *

One last related point:  Ever since Obama reversed himself on the question of whether to suppress the torture photos, I've been searching for an Obama supporter who (a) defends his decision to suppress those photos but also (b) criticized him when, two weeks earlier, he announced that he would release those photos.  I haven't found such a person yet, but I'm still looking. 

When Obama originally announced he would release the photos, he was attacked on seemingly every television news show by people like Lindsey Graham, Liz Cheney and Joe Lieberman for endangering the Troops, but I don't know of a single Democrats who joined in with those criticisms on the ground that the photos shouldn't be released.  But as soon as Obama changed his mind and embraced the Graham/Cheney/Lieberman position, up rose hordes of Obama supporters suddely insisting that those photos must be suppressed because to release them would be to endanger the Troops.  I'm still searching for any pro-photo-suppression Democrats who criticized Obama when he triggered controversy by orginally announcing he would release them.