Rivkin's Protean Logic on Torture

(Aristaeus wrestles the shape-changing Proteus.)

David Rivkin, a lawyer who worked for the Reagan and H.W. Bush administrations, is one of the most slippery and adept torture apologists out there. He testified last week to Congress against forming a Truth Commission to investigate torture and prisoner abuses under George W. Bush's administration. As some observers have noted, Rivkin and others arguing against a Truth Commission may have inadvertently made a stronger case for criminal investigations instead. (Alternatively, they could just think that the Democrats lack the resolve for criminal investigations.) Last week, Digby revisited an excellent earlier post of hers on Rivkin, "It's Just Like Hell Week." I'd recommend reading both posts. Meanwhile, I wanted to examine more closely some of Rivkin's specific argument techniques and his protean logic on torture. (I'll warn you this is a long post.)

Background

As we've explored before, torture is (1) immoral, (2) illegal, (3) endangers us (especially American troops in the Middle East), and (4) doesn't work – unless one wants to inflict pain, produce bogus intelligence or elicit false confessions. For obtaining reliable information, more humane, rapport-building techniques are far more effective.

Meanwhile, almost every excuse from Bush officials and their allies fits somewhere in the following pattern of descending denials: We did not torture; waterboarding is not torture; even if it is torture, it was legal; even if it was illegal, it was necessary; even if it was unnecessary, it was not our fault. Furthermore, the "debate" on torture and specific techniques are stalling tactics by torture proponents and apologists, who consistently favor fantasy over reality in their arguments. They will discuss Jack Bauer and hypothetical ticking time bombs endlessly, but not Maher Arar or Binyam Mohamed (among many others). Hollywood fiction is somehow more important than the very real consequences of our policies.

The general public has not been well served by the press on these matters. Since at least 2007, a key question Bush allies have tried to push has been: "Is waterboarding torture?" There never has been any serious doubt that waterboarding is torture under U.S. and international laws, and in the past, the U.S. has prosecuted people as war criminals for committing it. Historical consensus since at least the Spanish Inquisition has been clear on waterboarding being torture – in fact, it's been a signature technique for defining torture. Yet strangely, after news broke that the Bush administration had used the practice, Bush officials and their allies claimed to be terribly uncertain over whether it was torture or not. They no doubt prefer keeping the "debate" on whether or not waterboarding is torture to a discussion centering on: "What exactly was done, and who authorized it? How can we best uncover the truth? Are members of the Bush administration guilty of war crimes? If so, how can they be brought to justice, and what should their punishment be?"

I've been very concerned that over the past several months, the national "debate" on torture has further degraded, with a steady stream of poor reporting on the issue, torture apologists making false claims unchallenged, some torture opponents on television seemingly unable to press back, and Beltway pundits insisting that any investigation into abuses by the Bush administration will tear the very nation apart more horribly than a blow job in the Oval Office (as always, class solidarity trumps justice and accountability). In some cases, the Overton window has been pushed even further askew than "Is waterboarding torture?" so that even saying "torture" has been deemed somehow... impolite. An NPR story from 12/3/09 on the successful opposition to John Brennan being appointed as head of the CIA referred to "coercive interrogations" and "coercive interrogation methods" rather than torture – although torture was a key reason for the opposition. Even the typical hedge of "coercive interrogation techniques that critics view as torture" wasn't used (although the print version of the story did mention "torture" once).

Meanwhile, also in December, after the completion of the Levin-McCain Report on abuse of detainees in U.S. custody, Republican Congressman Duncan Hunter went on Hardball to debate Democratic Congressman Jim Moran on whether waterboarding was torture. While Moran made some decent points, he didn't challenge Hunter when he repeatedly parroted unsubstantiated Bush administration claims that torture had saved American lives. Neither Moran nor Matthews pointed out that Bush officials had offered no proof for their claims, and had very strong motives for lying - avoiding prosecution for war crimes. Moran and Chris Matthews didn't even challenge Hunter when he made the blatantly false claim that Rumsfeld was never implicated in the report. While a moderator should allow guests time to speak, basic fact-checking shouldn't be such a rarity. (You can watch that segment here or read the transcript here. You can read more about the report, with a link to the released version, here - Conclusion 13 is especially pertinent to Hunter's false claims. Hunter apparently also didn't read Torture Team: Rumsfeld's Memo and the Betrayal of American Values by Philippe Sands, or perhaps he just goes momentarily blind whenever Rumsfeld's name appears.)

Scott Horton captured the sorry situation well:

We’ve seen this scenario played out several times in the last week, as broadcasters and newspapers around the country see the Levin-McCain Report as an opportunity to debate torture, despite the logical fallacy of this approach. (Perhaps for Christmas proper we’ll be treated to arguments for and against genocide, and on the fourth day of Christmas we’ll read the arguments for and against the practice of infanticide.) We’ve been treated to Christopher Hitchens against Michael Smerconish, Duncan Hunter against Jim Moran, and now the Alexander versus Rivkin encounter.

There are some similarities: Torture works, the defenders of the Bush Administration say. Torture saves lives. The safety of our country depends on torture. But it didn’t depend on torture before George W. Bush. In fact, as the World War II era poster found in post offices around the country taught my parents’ generation, “Torture is the tool of the enemy.” It’s also the tool of Dick Cheney–go figure. And “Vice” himself has been heard this week. Torture is good for you, he told us. Torture is the moral thing to do. Duncan Hunter offered us the most surreal, inane defense of this thesis and David Rivkin the most nuanced.

We'll return to the Horton piece (although I'd recommend reading the whole thing at some point). For now, I'd like to focus on David Rivkin, because he is one of the more clever of torture apologists and many of his arguments are emblematic. In May 2004, Rivkin and his frequent co-author Lee Casey defended Donald Rumsfeld, argued that the newly reported abuses at Abu Ghraib prison were the fault of "individuals, not the system" and that the Bush administration had not violated the Geneva Conventions. (They were probably trying to rebut the charges of systemic abuse reported by Seymour Hersh and others, although how far up the directives went only came out later.) In December 2005, Rivkin and Casey wrote an op-ed defending Bush's warrantless surveillance. Their April 2008 piece, "The War on Terror is Not a Crime," decried the "witch hunt" against John Yoo and other Bush administration lawyers over their radical legal opinions (the op-ed mentions waterboarding, but avoids the word "torture"). Rivkin's July 2008 testimony to the Senate Committee on the Judiciary further defended Yoo and his cohorts. In May 2006, Rivkin briefly faced off with Scott Horton on radio show To the Point (41:00 in) about torture. Crooks and Liars has a clip of Rivkin's November 2007 C-Span appearance, where he called torture "unpleasant.". Last month, Glenn Greenwald dissected Rivkin and Casey's 'no accountability' arguments. Meteor Blades gave an overview of the March 4th, 2009 hearings, Rivkin's opening statement is here, and emptywheel has a good post featuring the video of Sheldon Whitehouse's skilled grilling of David Rivkin (she also live-blogged the proceedings).

David Rivkin's segments with Charles Swift and Matthew Alexander are particularly revealing. Back in December, when I saw David Rivkin was going to be appearing opposite Matthew Alexander, I was enthused because unlike Jim Moran or some other torture opponents, Alexander knew a great deal about effective interrogation techniques and could speak with authority on torture. However, the segment wasn't entirely satisfying. I realized afterwards it was because it was a mismatch. Alexander did well, but essentially, he was an expert witness facing off with a defense attorney trying to pick holes in his testimony. There was no prosecuting attorney to give balance.

Many of the public "debates" on torture are similarly skewed, and very few if any torture apologists are arguing in good faith. They still need to be rebutted on substance, but it's folly to go in presuming intellectual honesty from them. As Scott Horton observed when facing off on torture with Rivkin's frequent partner Lee Casey (in November 2007), Casey's arguments made little sense except as a defense attorney's attempts to protect his clients from prosecution. I haven't conducted an exhaustive review of all of Rivkin's statements, but I've caught enough to see him argue that: torture is appalling, waterboarding may not be torture, waterboarding cannot be torture if American personnel undergo it, waterboarding is not torture, waterboarding is torture, and torture works. The protean logic and contradictions are rather dizzying, and that's precisely their intent. They make much more sense if the person offering them isn't trying to make a coherent argument – like a good defense attorney, he's trying to muddy the waters and seed doubt in the minds of jurors.


(The WWII-era poster referred to by Horton.)

Rivkin versus Charles Swift

If you've read Digby's posts, you've already seen the transcript of David Rivkin appearing with former JAG and current law professor Charles Swift on CNN, ironically enough on Armistice Day, 11/11/07. (Crooks and Liars has some of the video.) Let's take another look.

FOREMAN: On Friday, Michael Mukasey became attorney general of the United States despite his refusal to define an interrogation practice known as waterboarding, essentially convincing a person that he is drowning as torture. In a world where terrorists really are out there trying to kill us, where is the bright line between what must be done and what should be done? Retired Navy Lieutenant Commander Charlie Swift teaches, now teaches at Emory Law School in Atlanta and still represents one of the Guantanamo detainees. And with me in Washington, David Rivkin, an official at the Justice Department in the Reagan and George H.W. Bush administration. Professor, let me start with you. Where do we stand in this debate now. It seems now that we've gone through months of trying to decided what we think torture and what is not.

LT. COMDR. CHARLIE SWIFT, U.S. NAVY (RET.): Well, as far as waterboarding goes, it's an unusual debate to begin with, because as far as the military was concerned with, that was decided back in 1890 during the Spanish-American war when General Crowder ruled that water boarding was always illegal and never justified and we tried Japanese soldiers who did it to our troops during World War II where again we said it was illegal. So, it would seem that the bright line is on the other side of waterboarding, at least historical.

Swift makes the crucial point – waterboarding is torture, and this has been known for a long time.

FOREMAN: Listen to what John Edwards said at a town hall meeting on Tuesday about the debate.

(BEGIN VIDEO CLIP)

JOHN EDWARDS (D), PRESIDENTIAL CANDIATE: Can you believe that we are having a debate in America about what kind of torture is tolerable? I will tell you what kind of torture is tolerable - no torture is tolerable. The United States of American should not be engaged in torture.

(END VIDEO CLIP)

FOREMAN: Mr. Rivkin, a lot of Americans in the polls seem to have a similar-type view, why is it so hard, why can't we agree on a definition and stick to it?

DAVID RIVKIN, MILITARY LAW EXPERT: Incidentally, it is not a debate about whether torture is permissible, at least in my mind, it's what things amount to torture. And with all due respect to my friend Charlie, there are several forms of waterboarding. Waterboarding is a very capricious term, it connotes a bunch of things. There are clearly some forms of waterboarding without torture and off the table. They may well be some waterboarding regimens that while tough and useful in extracting information are not torture. My problem with the critics is that they don't want to have, contrary to what Senator Edwards said, we are ought to have a debate as a serious society about what stress techniques of interrogation and what to do with it. Let me point out one thing, we actually waterboard our own people. Are we torturing our own people?

Rivkin throws out quite a bit here. He often seems to open with a planned concession, perhaps to unbalance his opponents. Here, he suggests that torture isn't permissible - but then, as always, pivots to a framework that favors him. He argues no one really knows what waterboarding is (and ironically uses "capricious" while doing so). There are indeed different methods of waterboarding, but the four key methods are all clearly torture and illegal (in the linked piece, scroll down to "Act Three"). There is no serious debate on this. The charge about torture opponents not being "serious" is particularly rich given that torture proponents have consistently offered fantasy scenarios such as "ticking time bombs" while ignoring the accounts of torture experts and actual victims. Moreover, Rivkin is trying to make the key question "How much discomfort or pain can we legally inflict on prisoners?" That leads nicely away from "What war crimes did the Bush administration commit?" But Rivkin's framework is also pointless if one knows that rapport-building techniques are far more effective. A competent interrogator would not be asking, "How much pain can I inflict on this prisoner?"

Foreman picks up on the flaw in Rivkin's last argument, about waterboarding American personnel in SERE training:

FOREMAN: But we're waterboarding our own people to give them an idea of what they would encounter if they were captured by somebody else.

RIVKIN: Well, forgive me, as a matter of law and ethics, if the given practice like slavery and prostitution is officially odious, you cannot use it no matter what our goals is, you cannot even use it to volunteers. So, if all forms of waterboarding are torture then we are torturing our own people, and the very same instructor who spoke before Congress the other day about how it's torture, is guilty of practicing torture for decades. We as a society have to come up with the same baseline using (inaudible) in all spheres of public life instead of somehow singularizing this one thing, which is interrogation of combatants and we need to look at it in a broader way.

Rivkin and others have offered this argument several times. It may not be convincing, but it is inventive. (It seems to have first emerged as an attempted rebuttal of former SERE trainer Malcolm Nance's authoritative 10/31/07 piece, "Waterboarding is Torture... Period." Nance, a "former Master Instructor and Chief of Training" at the U.S. Navy SERE School, who testified before Congress, appears to be the "very same instructor" Rivkin's claiming is hypothetically "guilty of practicing torture for decades.") Rivkin's also pulling a fast one here, trying to set up a paradox to befuddle the listener. Torture is odious and immoral. SERE training, while tough, is not. Rivkin tries to skip to his conclusion without proving it. He ignores Foreman's common sense objection and makes a substitution. Looking at the explicit and implicit claims in this exchange, it goes something like this:

RIVKIN: Waterboarding cannot be torture if we subject American personnel to it.

FOREMAN: But SERE training is not torture.

RIVKIN: Aha! But torture is always wrong! Therefore, you must either prosecute our brave men and women in uniform, or not prosecute Bush officials for authorizing torture!

This is precisely the paradox and uncertainty Rivkin wants to sow in listeners' minds. Rivkin hasn't actually addressed Foreman's point, but pushes past it to offer a statement most everyone will agree with – torture is odious – while pretending that he has proven that SERE training is torture. Comparing torture to slavery and prostitution is fine, but Rivkin's conclusions depend on accepting the false premise that SERE training is torture. It's certainly not under U.S. law, and Rivkin can't honestly believe it is – but he's trying to defend his "clients" in the Bush administration here. Slavery and prostitution are not at all analogous to SERE training (or military service in general – and Rivkin is implicitly comparing American troops to prostitutes here). Looked at another way, Rivkin's essentially arguing that all sex is rape or vice versa. He does mention that volunteering doesn't matter, but argues this in relation to torture, while treating as a given a separate point which Foreman has just directly contested – that SERE training is torture. Rivkin ignores the crucial elements of consent, control, purpose, trust and short duration that differentiates the brief waterboarding in SERE training from the illegal and immoral torture technique of waterboarding. Rivkin's line of argument is particularly despicable given that SERE training is meant to prepare American military personnel against possible torture upon enemy capture, not to justify the torturing of prisoners under American control. SERE training is a defense against an evil practice, not an endorsement of that evil. Most of the American military do not view torture as either moral or legal, and much of the internal pushback against the Bush administration's policies of torture, abuse and indefinite detention came from military lawyers, many of them conservatives.

I'm sure Rivkin can be refuted more elegantly, and jcasey nicely captures the shifting logic in the same Rivkin paragraph:

Um. So, in order to teach preparedness for torture, the military has used its methods on its own people, but in using these methods, by definition, they are not torture, because you cannot torture someone who is a volunteer. But if it was torture, then the instructor is guilty of torture. So it follows that these people are either guilty of torture, or since no one wants to be guilty of torture, their students learned nothing about torture, since waterboarding isn’t torture.

On a similar theme, Glenn Greenwald discusses Jonah Goldberg’s agony over the definition of torture.

Digby also makes thorough work of Rivkin:

This man claims that if an American trainee can endure something, it can't legally be called torture. He shamefully goes even further to state that if we call it torture, it means that all of those who have trained our troops to withstand it are guilty of being torturers.

He neglects, of course, to admit that the recruits and trainees who are put though such exercises can quit at any time and they know very well that their instructors won't actually kill them. The total lack of control in the hands of someone who believes you are an enemy is what what makes waterboarding torture, and people who do it voluntarily have control. That's the difference, and it's clear to anyone who isn't an intellectual fraud as Rivkin is.

He and others (like Pat Buchanan) are now saying that we need to make waterboarding explicitly illegal if we have a problem with it --- even though one would think that any torture that was used by the Spanish inquisition and Pol Pot would automatically come under the heading of "torture" which is illegal under at least five different statutes and treaties. They are trying to pretend that waterboarding isn't already illegal, pretending that waterboarding is merely "controversial" so they are pushing for a "debate."(Swift even admits that they've left us no choice between the weasel words, parsing and secrecy.)...

But Rivkin's bobbing and weaving serves another purpose. He's literally defining deviancy down. He submits that these "stress positions" and the "hot and cold" and the waterboarding and other things they've done (plus God only knows what we aren't yet aware of) are necessary when you are dealing with "bad guys" who always lie. And anyway, if Army rangers can endure it in training then so can suspected terrorists (who've been blindfolded, stripped, sodomized repeatedly with "suppositories", held in painful restraints for days, subjected to extreme cold while being splashed with water and denied sleep.) This is what the right wing has left of their principles: if our special forces guys can live through something during their training that means it's ok for us to do it to others under much more terrifying circumstances.

As Digby also notes, if Michael Mukasey had admitted that waterboarding was torture, many high ranking Bush officials would have had to be arrested (at the very least, investigated). But let's return to the transcript, because there's more dissembling from Rivkin to be done:

FOREMAN: Then, why don't we Professor Swift, just in deference with what the American people believe in, I think, why don't we just back away from anything that gets close to this line?

SWIFT: I think we should. To me, it is unfathomable that we are up against the line. You know, again, looking back at World War II, what history has taught us and what we found is that the reliable means of getting intelligence, at least in the context of a war, are using those things that build rapport with the person that they find out that you are not the ogre that they have been told. They begin to question the people who are leading them, and eventually, that leads to actionable intelligence and it is reliable, and you see, that is the real problem with anything that is coercive. When you force somebody to talk, you cannot count on what they tell you. It is going to - in that case, I think it is really an unreliable form of interrogation, and again, that is why we don't use it in court, because it is not reliable data.

That statements obtained through torture are unreliable should be common sense. Foreman presses Rivkin on this point:

FOREMAN: I seem like I have heard this in a lot of places, the same comment, what's your response to that?

RIVKIN: It is historically and practically not true for a very simple reason. First of all, the reason stress techniques were used if you look at it is because there are four building techniques of the FBI. This has been reported in the newspapers like "Washington Post" and the "New York Times." In late 2001, early 2002, I'm not working. You are not able going to be able with Khalid Shaik Mohammed, because while they're evil, they're enormously committed to their ideology. They're prepared to die for it. Point number one. Second, bad guys always lie. Why will you try to build a rapport with them, will interrogate them stressfully. If you have enough time, your biggest problem is they say nothing. If they start talking, you're able to go back and, for example and you ask, where is your safe house? You go and you see if he told you the truth.

Rivkin's core arguments here simply make no sense. First of all, rapport-building techniques are much more effective than torture at obtaining accurate, reliable information. His "historically and practically not true" claim is pure balderdash. As John Yoo often has, Rivkin also ignores that we have tortured innocent people, who are not "evil," nor some sort of inhuman zealots committed to their ideology and prepared to die for it. But beyond that, Rivkin is essentially arguing, why bother trying to build a rapport when you can skip right to the torture? He argues that "the biggest problem" is a prisoner not saying anything, and the goal is get him to talk, so why not make him uncomfortable (or torture him) to make him talk - even if what he says is a lie? Really, is there a more charitable reading of this? If Rivkin admits that the prisoner may lie under duress, but argues the lie can be checked, why is the duress even necessary? It's just as easy to ask the prisoner a question without torturing him. Rivkin's argument depends on the dodgy premise that a hardened terrorist will stay quiet if treated humanely but will speak under torture, and furthermore, that he will occasionally speak the truth and offer actionable intelligence in addition to lies if tortured, and yet again, that he will not do the same if treated humanely (or the truth-to-lie ratio will somehow be lower). How is this possibly a good tradeoff? What possible advantage is there to torture in Rivkin's argument here – besides a bizarre defense of his clients?

The truth is, there are far bigger problems than a prisoner not saying anything. False statements obtained through torture lead to bad intelligence, which squanders important resources. Rivkin might have been aware that this precise scenario occurred with at least three prisoners. Dan Froomkin has a good piece on how all the Bush claims about torture "working" and giving valuable intelligence are completely unsubstantiated and in some cases contradicted by other accounts. At least one claim by Khalid Sheik Mohammed, that of killing Daniel Pearl, remains questionable given that Mohammed was tortured and another prisoner confessed to it already. Much of the "intelligence" obtained from Abu Zubaydah was bogus and lead to wild goose chases. As Ron Suskind puts it in The One Percent Doctrine, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered." Meanwhile, in the case of Ibn al-Shaykh al-Libi, as The New York Times reported:

The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.

Stretching intelligence resources thin and tiring out agents, using statements obtained through torture to justify an unnecessary war, committing war crimes and excusing those crimes - somehow these all seem worse than a prisoner merely not talking. But I suspect that David Rivkin, like most of the Bush officials he's defending, might see things differently, and certainly doesn't want to bring such matters up.

Why torture at all, when the historical record, experts, victim testimony and common sense all argue that it doesn't work? I've quoted this passage before, but Hilzoy puts it nicely:

One of the things that has always perplexed me about the debate about torture is this: I would have thought that anyone who was thinking about endorsing torture would first stop and think very, very carefully about whether it is actually effective. Torture is presumptively immoral and abhorrent. If you care about morality at all, the question of using torture will not so much as arise unless you truly have no good alternative at all. Even then, I think it's just wrong. But if it is not the most effective way of getting information, then debating whether or not we should use it is just stupid: of course we shouldn't engage in torture if some other technique is just as good, or better. Arguing about torture without asking this question is like arguing about whether you must, absolutely must, eat your children to keep yourself from starving to death without first checking to see whether you have any other food available.

Let's return to the transcript for the end of the segment:

FOREMAN: These are borderline techniques you're talking about. If they were done to you, would you consider them torture?

RIVKIN. No. I am not, by the way, I am not even propounding waterboarding. My problem is that there is a range of stress techniques including temperature manipulation, sensor manipulations and maybe sometimes waterboarding that are actually used. Look, when people go for basic training for hell week, they sleep little bits of time at a time, their diets. There's lots of abuse, instructors yelling at (inaudible).

FOREMAN: I have to cut you for a moment for a last word, very quickly, from Professor Swift, are we any closer, briefly to coming to a conclusion as to where we're going with this debate and it seems like it is going on forever, and it sill is lively as ever?

SWIFT: Well, the reason we can't have the debates, to get down to particular techniques is that the administration won't tell us exactly what they are doing and won't tell Congress exactly what they are doing, so when one lies on the edge of these things, it is impossible to have a debate until Congress completely looks at the question and stops using general terms. Congress has tried general terms, general terms haven't work but we're going to have need a specific debate.

FOREMAN: I'm afraid, we have to go. Professor Swift, thanks so much. Mr. Rivkin as well.

Swift makes the key point – we don't know all of what happened, Bush officials refused/refuse to tell us, and we still need to know. And here's Rivkin offering his loathsome "hell week" defense. But let's also note Rivkin's stance on waterboarding. What is it, exactly? He's said he's not "propounding it" but has argued that no one can exactly define it, it can't be torture because American personnel are subjected to it, it's a part of a range of effective techniques, and those techniques taken as a whole are no worse than "hell week." Rivkin's trying to muddy the waters here, but has certainty not condemned waterboarding or admitted it is torture. Foreman asks Rivkin if he'd consider these techniques torture if they were done to him, and Rivkin says no. Rivkin might be choosing to misconstrue Foreman on "these techniques," but given the context of the entire discussion, Rivkin's opening statement, and his previous writings and appearances, it's fair to say that Rivkin holds that waterboarding is not torture or is not always torture. Rivkin's statements are the sort that a good prosecutor would push on to nail him down. But let's keep an eye on his claims as we proceed…


(Heracles wrestles the shape-changing Achelous - although "achelousian" doesn't sound as good as "protean," does it?)

Rivkin versus Matthew Alexander

I'm going to spend much less time on Rivkin's face-off with Matthew Alexander in December 2008, but it presents some striking similarities and differences with Rivkin's stint opposite Charles Swift. If you're unfamiliar with Matthew Alexander, he's the author of How to Break a Terrorist, led an interrogation team in Iraq, and is using a pseudonym to discuss effective and harmful interrogation techniques to better serve national security. On 11/30/08, The Washington Post ran his op-ed, "I'm Still Tortured By What I Saw in Iraq," which made the crucial point that prisoner abuses at Abu Ghraib and Guantanamo radicalized many of the fighters in Iraq he encountered, and thus abusive practices endangered American troops. Meanwhile, rapport-building techniques proved far more effective at obtaining actionable intelligence than abusive practices, and Alexander's team acquired some important information with their approach, which Alexander identifies with American values. He appeared on The Daily Show, and also discussed these issues with Scott Horton in "The American Public has a Right to Know That They Do Not Have to Choose Between Torture and Terror."

You can watch the entire discussion between Matthew Alexander and David Rivkin on Riz Khan's show below (it runs roughly 23 minutes). I'll quote some key sections and indicate their times below.





Roughly 3:30 in, Rivkin offers his opening statement:

RIVKIN: Let me clarify, torture in my view is always unacceptable, and in fact I frankly think characterizing American interrogation policy, or debates about interrogation policy, as torture is misleading. We're really talking about – and let's also stipulate, it's always better to extract the maximum amount of information with the least harsh techniques. But that's not the real issue – the real issue is, in a situation where the kinder, gentler, purely rapport-building techniques prove unavailing, how far you can go? And I think common sense is useful here. Torture is defined somewhat imprecisely in international law, but basically, in my view, waterboarding is torture. In my view, things like stress positions, sensory deprivation, it's what we lawyers call all facts and circumstances, depends on how much is enough. Let me submit to you that any interrogation, the custodian interrogation that Mathew is talking about, in a police station, does have elements of coercion. And you're being told, as the people who worked for Enron, that if you don't cooperate with us we're going to go after your wife and make sure she gets sentenced in the same time frame as you so your children would have to go into a foster home. There's, there's always an element of coercion. The question is, how much of it? To me, the problem with the critics is, they paint everything with a broad brush, they see no difference between modest use of stress techniques, modest use of sensory deprivation, loud music being played, some temperature variability, again, the interrogator being in the same room, in the same amount of clothing as the person being interrogated. Those things are, I think, legally permissible, and may come in handy. If Matthew doesn't need it, he would not use it. But we're talking about a situation where it's not working, just being kind and gentle.

Yet again, Rivkin starts with a concession and a pivot – torture is unacceptable, but it's wrong to call American interrogation policy torture (for some reason), and the real question is how much pain, suffering or discomfort one can legally inflict on a prisoner. As we covered before, this is precisely the wrong question to be asking if one wants reliable information from a prisoner, but sources such as Angler, The Dark Side, Torture Team and Torturing Democracy report this is the one of the questions Bush officials asked (if only for legal cover), and focusing on it versus "what war crimes did the Bush administration authorize?" could benefit Rivkin's "clients." (I think Bush officials did this out of fear, arrogance, a desire for vengeance, ignorance and their Jack Bauer fantasies. That's a separate but related subject, but retired Rear Admiral John Hutson put it well when he said, "torture is the method of choice of the lazy, the stupid and the pseudo-tough.") The simple answer to Rivkin's question, 'how far can you go?' is nowhere. As we've covered already, in addition to the illegality and immorality of torture, it generally produces bad intelligence that harms security efforts. Torture is defined "imprecisely" in the Geneva Conventions because its drafters didn't want anyone to say that because a specific torture technique wasn't explicitly banned, it must be okay. Rivkin again makes his complaint about how unserious torture opponents are. While there may be legitimate issues of what precisely is and should be allowed, the Army Field Manual is a pretty clear guide, and the chief objections have always been about practices that most people other than Rivkin call torture. At the end, Rivkin pretends he's trying to offer Alexander, a skilled interrogator, a useful tool he can employ at his discretion. This is awfully disingenuous, as Alexander has already explained what's most effective, and at issue is the torture and other war crimes committed by Bush officials, who certainly do not deserve the trust and deference granted Alexander. Still, overall, Rivkin's main ploy is to move listeners away from the fact that Bush officials authorized torture at all, something he has never directly acknowledged (that I've seen), and he does this by discussing less extreme practices and pretending that's what we're "debating."

However, it's very interesting that Rivkin acknowledges that waterboarding is torture here, a marked departure from (and I'd say a direct contradiction of) his earlier appearances. I suspect he realized claiming otherwise just wouldn't fly on this program. Rather than trying to depict waterboarding as some mysterious, indefinable procedure as he did with Swift and elsewhere, here his muddying-of-the-waters centers on coercive techniques other than waterboarding (and other forms of torture) and pretending that those are the big scandal. He's trying to set a straw man he can defeat to avoid having to explicitly defend the indefensible or even admit it occured. Rivkin acknowledges that torture is wrong, and this time also concedes that waterboarding is torture, which he has elsewhere admitted was done to prisoners in American custody – but strangely, as we know from his other appearances, he opposes accountability for these offenses. Rivkin's correct that some coercive and discomforting techniques are not torture, but it's disingenuous to pretend that critics are objecting to those and not the long list of more shocking abuses perpetrated at Abu Ghraib, Guantanamo and other sites. It's also disingenuous to try to conflate the Bush administration's torture policies and worst offenses with more trivial matters.

Shortly afterwards in the segment, Matthew Alexander says that there's no question that waterboarding is torture and explains why.

At around 10:35 in the first video, Rivkin returns to his main points, but with some interesting variations:

RIVKIN: Can I just say one thing, again, I wish we did not use the word torture, because to me, there should be no serious debate about torture. The real question is, should we use coercive techniques, well short of torture, or should we take them off the table. And just one more thing – I believe that most forms of waterboarding are indeed torture, but let's be clear about one thing – Matthew, we're doing it to our own people, with SERE. And remember, if it's torture, we can't do it to ourselves, even if they volunteer. You cannot volunteer for slavery, you cannot volunteer for prostitution. Thousands of American servicemen have gone through SERE training that specifically includes waterboarding. So let's be consistent – if that's torture, we cannot do that, it's illegal.

ALEXANDER: I've been through SERE training, so I can speak to that, and I was exposed to harsh techniques, but that's a very different situation than when you're a captive, when you're a prisoner of war, you don't have control over the force that's keeping you captive.

Yet again, Rivkin does not want the word "torture" used, and goes back to the same arguments he used with Swift and elsewhere. But is this force of habit for Rivkin, trying to throw his opponents and listeners into confusion? Or can he just not help himself? Because he's contradicted himself here. On Riz Khan's show, he's acknowledged that waterboarding is torture (although he's argued against that in other appearances), yet here at the end argues once again that waterboarding isn't torture – its illegality and immorality are in question because of SERE training. As Alexander points out (with great authority), SERE training is not torture. Once more, Rivkin is hiding behind American military personnel to push a false paradox : either SERE training must be outlawed – or, the implication is, Bush officials should not be prosecuted for torture, because what constitutes torture is so terribly unclear that somehow, one could waterboard a prisoner in good faith and not realize it was torture. Oh, those poor, confused Bushies, just trying to do the right thing, and certainly not ignoring expert warnings in their own administration in the process!

Arguing that the Bush administration didn't know these practices were torture is despicable. As Marty Lederman has pointed out, "Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. . ." And Scott Horton, drawing in part on research by Darius Rejali, has pointed to the ancient Romans and "their carefully charted system of torture." The Romans used torture, but only as punishment, because they knew that testimony obtained through torture was unreliable. It would be hard to overstate how radical and arrogant the Bush administration was, but even so, it's stunning to think they wouldn't know any of this history, wouldn't care, or would dismiss the grave moral, legal and practical risks of torture.

Is there a more charitable, plausible reading of Rivkin's arguments above as he turns yet again to SERE training? Does this make any sense outside of a defense of Bush officials? What is Rivkin's actual position? It's incoherent. Does Rivkin hold waterboarding is torture or not? In previous appearances, he's argued it's not torture, or isn't always, or no one can say, yet here he's argued waterboarding is torture, but also that it's not clear and maybe it's not. Rivkin's logic is protean, shifting and malleable. What's consistent is his attempt to sow uncertainty and make the "bright line" on torture dim, fuzzy and grey.

In the second video, right near the start, Rivkin once again says that "most forms of waterboarding, to me, certainly qualify as torture." That makes at least three times he makes this concession (even if it's sometimes with qualifiers). Rivkin can't keep his story straight. I have to add, Rivkin lecturing Matthew Alexander about interrogation and opining on how well the Guantanamo prisoners are treated is pretty repulsive to watch.

Horton's take on the discussion is invaluable:

Rivkin is too sophisticated to make the same mistakes [as Duncan Hunter]. He focuses instead on two arguments. Like a good criminal defense lawyer, he plays semantic games: the Bush Administration’s torture techniques can’t be torture, he says, because we use them on pilots being prepared to resist torture by our adversaries as a part of the SERE training program. That argument lies at the core of the dubious Justice Department Office of Legal Counsel opinions which Justice even now refuses to show to President-elect Obama’s transition team—such is their confidence in their analysis. These arguments are pure sophistry, with all the persuasive force of Richard Nixon’s famous answer in his Frost interviews–When the president does it that means that it is not illegal. The doctrine of presidential infallibility, or at least impunity, lies at the heart of current Bush doctrine; it is a sledgehammer used to demolish the Constitution. Rivkin knows how to wield it.

But Rivkin offers another argument: Torture works. He repeats this in the face of Major Alexander, an interrogator trusted with the toughest cases on the battlefield in Iraq, who made the most significant intelligence breakthrough in the Iraq conflict and got the Bronze Star for his efforts. Alexander offers us specific documented evidence that torture doesn’t work and neither do highly coercive techniques. In one case, the Bush techniques were applied for twenty days on a detainee. It got nowhere. Then relationship building was used for just six hours: at the end, the interrogator left the room with the keys to finding al Zarqawi.

What’s Rivkin’s evidence to the contrary? “I have interviewed a dozen interrogators who tell me so,” he claims. I have interviewed dozens of interrogators (Alexander is one) and I have never heard one present evidence or even express faith in the utility of torture, or what Rivkin would call “highly coercive techniques.” Torture does get people to talk, no doubt about that. But does it get what the experts call “actionable intelligence”? No. FBI Director Robert Mueller just confirmed that fact. The Bush Administration’s claims of success in using torture techniques like waterboarding have been thoroughly and repeatedly debunked, most recently by David Rose in Vanity Fair.

Personally, I think Rivkin's claims about interviewing "dozens" of interrogators who have validated his positions are complete bullshit, and any serious study of effective interrogation techniques would strongly validate Alexander's approach and condemn torture. Alexander doesn't challenge Rivkin on this, and that's not really his job, but Riz Khan doesn't push on this dubious claim either, and alas, Scott Horton or someone similarly prepared isn't there to press Rivkin. Dan Froomkin has a saying called "winning the half hour," in which a guest makes an outrageous or dubious claim, but can scurry off without being fact-checked or being called to account due to the typical way political talks shows proceed. Regardless, Rivkin's claims are highly questionable and completely unsubstantiated.

Let's return to Horton (and again, I'd suggest reading the entire piece if you haven't):

What drives the torture enablers like Rivkin and Hunter? The Wall Street Journal’s editorial page considers the torture debate to be a left-right struggle; torture is the cause of the right and the critics are on the left. But anyone who has studied the debate knows this is absurd, for there are as many convinced conservatives in the ranks opposing torture as liberals. Andrew Sullivan offers this week a series of posts that make this point. He looks at Glenn Reynolds and Jonah Goldberg, two powerful voices on the political right, both staunch defenders of Bush policy. How did they react when the first photographs of Abu Ghraib surfaced? Both were quick to condemn the images as grotesque, sickening, and criminal. Both called immediately for prosecutions to restore the nation’s honor. And how do Reynolds and Goldberg react when the Bush Administration is revealed as the author of that abhorrent conduct? Suddenly what was once morally reprehensible, is a necessary tool in a just cause. Indeed, it makes us safer they suggest against overwhelming evidence to the contrary. Is their agenda to support and justify the conduct of their political leader, no matter how depraved or unlawful that conduct is? The threshold from principled analysis to partisan propaganda has been crossed.

And in the case of Rivkin, who is generally more cautious and circumspect, we see the same process. Rivkin tells us that we must close our eyes to what happened. He opposes even an inquiry into the genesis of the torture program, saying we know everything from the voluntary disclosures of the Bush Administration. But of course even the Levin-McCain Report tells us that we know very little. That report fails to unearth what went on in Jerry Boykin’s and Stephen Cambone’s Special Operations Command, where by consensus the most serious abuses involving the military occurred, starting with Cambone’s authorization of torture in rules of engagement issued shortly after 9/11. And the Levin-McCain Report notes that the role of torture remains unknown inside of the CIA, though we have two directors who have offered up a series of public whoppers in their efforts to get the dogs off the scent.

But Rivkin’s history is much like that of Reynolds and Goldberg. Back when the Democrats were in power, in 2000, he offered this: “As an alternative to expansive universal jurisdiction and the International Criminal Court, the United States should promote a renewed commitment to the prosecution of ‘international’ crimes in national judicial systems.” (”The Rocky Shoals of International Law,” National Interest, Winter 2000, co-authored with Lee Casey). I happen to agree with this perspective. That is, the International Criminal Court cannot be a forum for the enforcement of the laws of war against the great powers; if that happens, the support upon which it depends for its credibility will collapse. The great powers, and particularly the world’s paramount power, the United States, must enforce the laws itself. And this is precisely why the weaseling of the torture enablers presents such a threat to America’s security. It robs us of moral stature just as it robs American service personnel of the protections that Americans labored for two centuries to create. It marks the ultimate triumph of petty partisanship over principle. And that is the essence of the torture debate.

Rivkin's Congressional Testimony

Nowhere (that I've seen) has Rivkin argued that the torture that Bush officials have admitted to and Rivkin supposedly decries should be investigated and prosecuted. Before his March 4th testimony, Rivkin commented to The New York Times on Congress' intent to investigate prisoner abuses:

They want to pillory people... They want to destroy their reputation. They want to drag them through the mud and single them out for foreign prosecutions. And if you get someone in a perjury trap, so much the better.

It's interesting that Rivkin avoided this more partisan language with both Swift and Alexander. Meanwhile, in his prepared statement on March 4th, one of his closing arguments was:

President Obama and the Democrat-controlled Congress are entitled to revise and reject any or all of the Bush Administration's policies. No one, however, is entitled to hound their political opponents with criminal prosecution – whether directly or through the device of a politically unaccountable commission.

Well, what if these former officials broke the law? Rivkin tries to claim that the only reason Bush officials could be prosecuted is because of a partisan witch hunt. He ascribes motive to the investigators, but ignores cause and justification. He does not acknowledge that Bush officials authorized torture and that they committed war crimes. He ignores that Bush officials have publicly admitted to authorizing torture and that specific prisoners were tortured. He refuses to admit that an investigation and probable prosecution would be simple justice and even mandated under the law.

Some of the most telling moments with Rivkin came during his grilling by Sheldon Whitehouse, who was sharp enough to challenge Rivkin's many hedges and qualifiers. Another statement was highly revealing, when Rivkin was allowed to go into high dudgeon mode, being shocked, shocked that anyone would question the upstanding Bush administration. Here's the video (via TPM):



The key lines:

RIVKIN: I do not see how going through another round of self-referential and self-absorbed exercise that would not lead to any kind of national consensus, but basically would dwell at great length on our alleged sins, and by the way, we're all entitled to our opinions, I fundamentally disagree with the narrative that has been portrayed here of the Bush administration's alleged misdeeds. Yes, mistakes were made. Yes, some bad things happened. But compared with the historical baseline of past wars, the conduct of the United States in the last eight years, Senator Cornyn, has been exemplary, measured by any objective indicia of misdeeds - abuse of detainees per thousand captured, excessive use of force per thousand troops in the field - so I don't see that at all.

[…]

WHITEHOUSE: I would suggest, Mr. Rivkin, that until you know, and we all know, what was actually done under the Bush administration, you not be so quick to throw other generations of Americans under the bus, and assume that they did worse.

"Mistakes were made" – Rivkin uses the classic passive formulation. Yet again, he pretends that we're talking about more common abuses committed by individuals. He ignores that there was an official policy of torture and abuse authorized at the highest levels. Rivkin's much smoother than Duncan Hunter, but he's just as selectively – and conveniently - blind. He takes his summoned umbrage out on a straw man and argues statistics of cruelty on the ground level to avoid discussing that, higher up, Bush officials chose this, tried to hide all they could, and ignored or squelched expert advice warning them against their radical course of action. The "narrative" of the Bush administration Rivkin 'disagrees' with is pretty clear at this point, but he just chooses to ignore it. See the books Angler, The Dark Side and Torture Team, the documentaries Taxi to the Dark Side and Torturing Democracy, and the Frontline episodes "The Dark Side," "Cheney's Law" and "Bush's War, " for starters. Many details are still secret, but the basic story is not, or is at the very least damning enough to cry out for further investigation.

According to Rivkin, suddenly it's "self-absorbed" to investigate probable war crimes. Presumably, insisting that officials are entirely above the law regardless of the scope of their misdeeds is the true mark of humility. Rivkin's attitude reminds me of Doug "What's Common Article III?" Feith's "assholes" line, and it's no surprise that Rivkin's 2004 op-ed on Abu Ghraib and Feith's arguments that the Geneva Conventions did not apply share so many similarities. The arrogance and recklessness of these people is staggering. Hubris is just too tame a word.

(It's also not surprising that Rivkin's statements were facilitated by the friendly questioning of that paragon of integrity, Republican Senator John Cornyn, who's previously tried to defend waterboarding with a ticking time bomb scenario.)

Rivkin would not be so objectionable if he were the actual defense attorney for a Bush official on trial, since he'd be playing an important role in the judicial system. And as a private citizen, he's certainly entitled to his views. But Rivkin generally presents himself in public appearances without owning up to his agenda and core positions. He is generally presented as a conservative, but in his appearances with Swift, Alexander and others, he has not stated what he's made clear elsewhere – he opposes investigations and prosecutions regarding Bush officials and holds that they committed no crimes. It's not hard to see why he would hide this. He can accomplish much more appearing as an expert, with some presumption of intellectual honesty and disinterest. He can present himself as far less radical than he actually is, and try to win over some converts or at least sow doubt with his inconsistent, terribly disingenuous arguments. That again is his right, but it is despicable - and it never serves the public well to have false claims and deceptive arguments go unchallenged. I'd also contend that Rivkin's efforts are focused on preventing rather than serving justice, and deceiving rather than informing viewers, and this approach doesn't serve the public well, either. Rivkin's a clever fellow, but extremely intellectually dishonest. Duncan Hunter may be dishonest or delusional on Rumsfeld's culpability, and he's dead wrong about torture 'working,' but he's upfront enough to say he believes torture works, it saved lives and Bush officials shouldn't be prosecuted. That shouldn't win him any prizes, but it's a very different approach from Rivkin's. Rivkin is slippery enough to adjust his pitch to different audiences, telling one that no one can say whether waterboarding's torture, admitting to another that it is, colorfully complaining to The New York Times about nasty partisanship, and toning down the same charges in his more formal challenge to Congress, scolding them if they dare seek justice. He's insisted that the Bush officials acted in good faith, he's claimed it's a different world after 9/11, and he's ignored pretty much every major piece on Bush administration wrongdoings. His arguments shift about, but ultimately, he's defending it all. At no point that I've seen has he ever admitted that crimes were committed (or that actions that could reasonably be considered crimes were committed). He's consistently pushed for no transparency and zero accountability for everything the Bush administration has ever done.

Going Forward

I'm sure many of our fine legal bloggers can do a more thorough examination of Rivkin and the latest torture apologist arguments against investigations and accountability. But the outrageousness of Duncan Hunter's claims and the skilled disingenuousness of Rivkin's arguments require that torture opponents appearing in public discussions know their subject cold and come prepared for a dizzying array of false assertions and misleading tactics. Experts on torture such as Matthew Alexander, Malcolm Nance, Darius Rejali and others definitely help the public arrive at a clearer, better understanding of these issues. But having them face off alone against a torture apologist can be a mismatch, because the primary goal of experts usually is to inform and elucidate, not necessarily to argue or to challenge and debunk false claims. Given that these torture apologists are arguing as defense attorneys for Bush officials who should be investigated for war crimes, the most effective torture opponents are those who prepare as skilled prosecutors. Rivkin and his ilk will try to move off-topic, argue questionable points, sell misleading framing and false, hidden premises, or outright lie - and then move on. Sometimes, it's wisest to clamp down on one point and not let them wriggle away. The entire discussion may wind up focusing only on a few points, but the goal of torture apologists is to sell their hidden premises and spread confusion. Any muddying of the waters they can achieve is a small victory.

Investigating the Bush administration will be all the more difficult given a Beltway class that views calling someone a war criminal as a far worse sin than actually committing war crimes. Luckily, the public supports investigations into wrongdoing by the Bush administration. There are legitimate debates about the benefits and drawbacks of a "truth commission" versus a Justice Department investigation, and on whether a truth commission would pave the way for later criminal investigations or interfere with them. All that's fine. But the public should also hear that there's never been a serious debate on whether waterboarding and other forms of torture are legal, that torture makes us less safe, and contrary to apologist claims, it doesn't work. The moral arguments for opposing torture are important, as is the American tradition of justice exemplified at Nuremberg, not to mention the simple idea that no one is above the law. When a guest declares that "torture works!" there's no good reason not to point out that Bush officials have a vested interest in lying about the usefulness of their law-breaking, that they have little to no proof to support their claims, and that they were warned about their actions. Torture apologists shouldn't be able to offer a host of grossly deceptive claims and slip away unchallenged and with their reputations unscathed. And as long as we're going with metaphors from Greek mythology, in addition to tenaciously holding protean logic accountable, Perseus and Medusa spring to mind. John Yoo and the gang are absolutely petrified of being forced to face their own monstrosity.


(Caravaggio's "Medusa.")

(Edited for typos and clarity, and added two sentences and a link in parentheses. It was a long night. The repetitive prose remains, though. Cross-posted at Blue Herald)