Occasional blogging, mostly of the long-form variety.

Tuesday, February 19, 2008

Torture Watch 2/19/08

(Cartoon by Mike Keefe, 2/15/08)

In the past two weeks, the Bush administration has finally admitted to torturing prisoners. We've seen artful dodges from Attorney General Mukasey and shameless and vile hackdom from many other Bush allies. Some exceptional news articles and commentary have been produced, but sadly and unsurprisingly, they have yet to be rewarded with congressional action.

Torture, due process, intelligence and related issues will continue to play a prominent role in politics for the rest of the year. This piece is intended as a resource in those essential (and tragically, necessary) battles. This is a long post because of all the links and excerpts; it's essentially several posts in one. Please feel free to skim over sections as needed.

Major Themes

1. The "debate" over torture is a stalling tactic. Mukasey and other Bush allies are trying to protect the Bush administration from criminal liability for authorizing torture. Every time a reporter asks "Is waterboarding torture?" as if there's any question after several centuries of consensus as well as clear American case law, it's a small victory for the Bushies. These are standard hack tactics of muddying the waters, running out the clock, and dragging the Overton Window to the far right. It works in environments where not only everyone gets their say (a good thing), but no one calls bullshit — certainly not "objective" journalists, who pretend that truth and falsehoods have equal validity.

2. Torture proponents consistently favor fantasy over reality. Their most common argument is some sort of "ticking time bomb" scenario. Torture is immoral, illegal, ineffective and counterproductive as a policy. Still, as we explored in "Jack Bauer versus Maher Arar" and other posts, despite their affectations of being grim realists, torture proponents not only propose highly improbable hypothetical situations, they ignore actual evidence. They ignore numerous studies and a mountain of anecdotal evidence that show torture doesn't work, or is at least highly unreliable. They rarely if ever acknowledge that we have in fact tortured people, and sometimes innocent people at that. It's extremely rare to see a torture proponent argue honestly on this, namely: that we have tortured anyone, especially innocents, is horrible, but a necessary cost. Typically, they either pretend that everyone arrested is guilty and a hardened terrorist, or they ignore the issue altogether. Similarly, even when experts on torture explain why waterboarding has been known to be torture since the Spanish Inquisition, torture apologists typically refuse to explain why the experts are wrong or offer convoluted arguments. Most commonly, though, they just ignore this evidence altogether.

3. True believers in torture view the issue differently than hacks. A hack knows that torture is wrong but argues otherwise, or else simply doesn't care. Meanwhile, authoritarian conservatives view the issue differently. As with virtually every other issue, they hold that torture is right when their side does it but wrong when the "Enemy" does it, with no independent standard of morality separate from tribalism. John Yoo and other Bush allies often employ similar arguments, but I suspect Yoo does not completely believe his own arguments (I could be wrong). Authoritarians of movement conservatism actually do.

4. The undecided have been poorly served. I do want to note that people do exist who oppose to torture in general but still wonder if there are extreme situations where it might be necessary. Generally, these people are unaware of the facts on torture, and have not been helped at all by the rhetoric of the Bush administration and their allies. In fact, disclosing that the U.S. government waterboarded three prisoners, and starting the Guantanamo capital trials now in motion, seem targeted at precisely this group of people, to win them over for Bush's radical measures and the November 2008 elections.

(We'll delve into this more later, but for now let us note that the Bush administration's claims of crucial, actionable intelligence obtained through waterboarding are currently completely unsubstantiated, and existing accounts contradict some White House claims.)

Authoritarian conservatives form the core base of support for all of the Bush administration's radical policies, filled out by a large number of hacks, shills and apologists. Their ultimate success, however, depends on a signature conservative move, the poker bluff. Congress has to stay non-confrontational and weak (it's mostly happy to oblige), and the public has to stay ill-informed, not only about torture, but about the lack of public support for torture. As Professor Darius Rejali, author of Torture and Democracy points out:

Every scientific national poll I’ve looked at since 9/11, for example, shows consistently anti-torture majorities in America. This number hasn’t varied, always hovering between 55 to 65% opposition, and includes both Republicans and Democrats. When pollsters ask not about “torture” in general but specific techniques like waterboarding, the opposition spikes to 80% opposed even if there is a ticking time bomb. What best predicts whether you’re for torture turns out not to be a partisan issue, though there is a slight Republican trend. What predicts whether you’re for torture best is if you approve of President Bush’s policies; basically it’s a loyalty vote. The pro-torture folk have always—and I mean always, in every poll I’ve seen—been a minority of 35-45% and I’m pretty sure the number is shrinking as the President’s approval numbers dip.

So the good news is that opponents of torture are not alone. I suspect people think the majority of Americans are for torture, but this just isn’t supported by any of the polling. It’s just hype from partisan media, talking heads, and the politicians. The real truth is that there is intelligence out there. What it requires is for government to tap into it and start using it.

Recent Coverage

(Cartoon by Stuart Carlson, 2/13/08)

Dan Eggen of The Washington Post has written several excellent pieces on recent developments, including "Justice Official Defends Rough CIA Interrogations: Severe, Lasting Pain is Torture, He Says" (2/17/08).

Meanwhile, Richard E. Mezo's WaPo op-ed "Why It Was Called 'Water Torture'" (2/10/08) is the latest in a series of pieces about the realities of torture, and waterboarding in particular, which Mezo was subjected to as part of Navy survival training:

I remember that the blindfold was heavy and completely covered my face. As the two men held me down, one on each side, someone began pouring water onto the blindfold, and suddenly I was drowning. The water streamed into my nose and then into my mouth when I gasped for breath. I couldn't stop it. All I could breathe was water, and it was terrifying. I think I began to lose consciousness. I felt my lungs begin to fill with burning liquid.

Pulling out my fingernails or even cutting off a finger would have been preferable. At least if someone had attacked my hands, I would have had to simply tolerate pain. But drowning is another matter.

We've covered similar pieces in previous posts (here's the BH and VS categories for torture). True to form, movement conservatives apparently ignored Mezo's piece, as they have ignored virtually every major piece on the subject that wasn't pro-torture in the past few years. (According to Sphere, Technorati and Google, atypical conservative, Bush critic and torture opponent Andrew Sullivan linked Mezo, as did liberal sites such as Think Progress, Talking Points Memo, Brad DeLong and many less trafficked sites. Let me know if I missed a major movement conservative piece.)

Meanwhile, the AP reported:

The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for six Guantanamo Bay detainees accused in the Sept. 11 terror attacks by recalling the executions of Nazi war criminals after World War II.

The cruel irony of this wasn't lost on Lance Mannion, who exclaimed:

Nuremberg? Nuremberg?

Weren't the torturers the ones on trial in that one?

And weren't we the ones trying them? The shame is painful.

The Key Paradigm at Work

(Cartoon by Tom Toles, 2/15/08)

I keep coming back to The Washington Post's superb Angler series on Dick Cheney (check it out if you haven't), and back to this extraordinary passage in particular:

On June 8, 2004, national security adviser Condoleezza Rice and Secretary of State Colin L. Powell learned of the two-year-old torture memo for the first time from an article in The Washington Post. According to a former White House official with firsthand knowledge, they confronted Gonzales together in his office.

Rice "very angrily said there would be no more secret opinions on international and national security law," the official said, adding that she threatened to take the matter to the president if Gonzales kept them out of the loop again. Powell remarked admiringly, as they emerged, that Rice dressed down the president's lawyer "in full Nurse Ratched mode," a reference to the head nurse of the mental hospital in the 1975 film "One Flew Over the Cuckoo's Nest."

I've featured it before, but Hilzoy perfectly expresses my reaction:

Stop and think about that for a moment. A memo making an absolutely radical, 180 degree change in US detention and interrogation policy in ways that will predictably have an enormous impact on our standing in the world is signed, and neither the Secretary of State nor the National Security Advisor finds out about it until two years later? From a newspaper article?

As Hilzoy details, Cheney also bypassed Powell and Rice in setting up military tribunals at Guantanamo. Additionally, he spied on communications from Condoleezza Rice's subordinates to her, which puts his whole telecom amnesty push in perspective, doesn't it?

The main point, besides the deep dysfunction of the Bush administration, is that these people have not been operating in good faith. At the very least, Cheney, Rumsfeld, Addington, Yoo, Bush and others were fully aware that what they were doing in secretly authorizing torture was absolutely radical, in defiance of the Geneva Conventions, the Uniform Code of Military Justice, the Constitution and at least a century of American case law. It's hard to even comprehend exactly how astonishingly reckless and arrogant this is.

As is often the case with movement conservatism, this aspect is a feature, not a bug. Think Progress (11/3/07) linked several major news stories on Daniel Levin, the conservative DOJ official who underwent waterboarding to see what it was like, reported it was clearly torture, and was then forced out by the Cheney gang. Steve Benen covered the same story, quoting a Keith Olbermann special comment (video here) as did law professor and blogger Marty Lederman:

I have been reluctant to say such things before now, but those stubborn facts keep adding up, and, if the Greenburg story is accurate, it's hard to resist the simple conclusion that Gonzales and others were engaged, not only in an effort to completely distort the proper functioning of OLC (see generally Jack Goldsmith's book), but also in a conspiracy to violate the Torture Act. When responsible, thoughtful lawyers -- loyal conservative, Republican lawyers, mind you --- told them that what they had approved was unlawful, they insisted that the lawyers change their advice, and then got rid of the lawyers and hired another willing to provide alternative advice that no one could have sincerely believed (and then rewarded the lawyer who was willing to sign his name to that advice).

I'm trying to avoid hyperbole, honest. But how is this not a huge scandal?

(More on Levin later.)

I've written on this dynamic many times before, but to quote one earlier post:

…the Bush administration makes bad decisions because Bush has happily let Cheney and his cabal completely undermine a rational decision-making process. Honest brokers do not last long, and are often shut out entirely…

The Bush administration and their many allies are essentially the Nixon and Reagan administrations all over again. The crime of Watergate to them was getting caught, and they have vowed to prevent that.

These are bullies, always intent first and foremost on getting their own way, not on making good decisions or crafting good policy. It is no accident that this crew employs an authoritarian abuse of power to push through radical, authoritarian policies in conflict with core American values and laws. Neither is their corruption, fear-mongering or lying some quirk (over-hyping the Iranian threat and misrepresenting FISA laws being two of the latest examples). Fighting to get one's own way no matter what — and succeeding — is especially dangerous when one wields enormous power, has almost unfailingly disastrous judgment, and does not learn from mistakes. None of these are accidents. (The peril of this sort of executive is why in theory we have checks and balances and impeachment, but fat chance of that.)

This same attitude can be seen in Justice Scalia's latest remarks:

Justice Antonin Scalia told the BBC that "smacking someone in the face" could be justified if there was an imminent threat.

"You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'," he said in a rare interview.

He also accused Europe of being self-righteous over the death penalty...

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game.

"How close does the threat have to be? And how severe can the infliction of pain be?"

Scalia is a sharp guy, and occasionally votes in favor of civil rights and due process, but generally speaking is a conservative authoritarian. He also claims that he's an "originalist" (see Lithwick, Lemieux and Lithwick for more on this). We've examined Scalia's Jack Bauer love before, but as Scott Horton writes on Scalia's latest assertion:

The problem, of course, is that Jack Bauer doesn’t exist and the ticking-timebomb scenario on which “24” is built has never occurred in the entirety of human history. It seems a strange basis on which to be making law. But then it’s also strange that a man who becomes violently unsettled at the idea of considering how a court in Britain or Canada addresses a legal problem has no inhibitions about importing specious reasoning from Hollywood.

It's also ironic that Scalia derides opponents of the death penalty and torture as smug. Ignoring the Constitution he supposedly reveres, the Geneva Convention and American case law is apparently not smug. Discounting centuries of evidence on torture and recent expert testimony is apparently not smug. Making sweeping, uninformed judgments without concern for the dire consequences is apparently not smug. Is The New York Times too obscure a source for Scalia? They covered how our "enhanced" interrogation techniques were borrowed from the KGB and similar agencies, and how "there is little evidence… that harsh methods produce the best intelligence." In fact, less intrusive, non-coercive methods, including those used with German and Japanese prisoners during the WWII era, have proven more effective.

While Nino may insist that "Scalia Knows Best" and want to play Jack Bauer, Hilzoy raises the obvious question:

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.

Dan Froomkin

(Cartoon by Rob Rogers, 2/15/08)

Dan Froomkin delivers a splendid roundup of general news every weekday, and has consistently followed torture as an issue. The past two weeks gave him plenty to cover. The entire posts are valuable to read, but I've provided excerpts, with links to other key pieces.

"We Tortured and We'd Do It Again" (2/6/08):

Yale Law Professor and blogger Jack Balkin interprets yesterday's testimony: "Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it."

Balkin then explains: "The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes. . . .

"Attorney General Mukasey's argument last week that waterboarding is not torture is based on OLC opinions that willfully distort statutory language. They argue that for something to be torture, it is not enough that it is intended to inflict severe physical or mental suffering, as the torture statute provides; it must also inflict prolonged physical suffering, a requirement absent from the text. Thus, under the OLC's reasoning, not only is waterboarding not torture (because it causes suffering so severe no one can stand it for very long), electric shocks to the genitals are not torture.

"This additional requirement is made up out of whole cloth, and it has been constructed precisely to conclude that waterboarding is not torture. This is not an interpretation on which reasonable minds can differ; it is an unreasonable interpretation that has been chosen precisely to absolve the executive of criminal responsibility and accountability under the torture statute (and the war crimes statute, even after it was limited by the Military Commissions Act of 2006). The executive has acted as a judge in its own case in a way that absolves it of having to obey the law. . . .

"It is worth recalling that at his recent hearings Attorney General Mukasey refused to explain the legal basis for why the CIA interrogation techniques (including waterboarding) are not illegal, arguing that the legal explanations themselves are classified, so that no one can know what the laws are."

"The White House's Perverse Argument" (2/7/08):

When you get right down to it, the White House's new argument in favor of waterboarding is that the ends justify the means.

The White House line: Yes, we did it, but only to three chief terrorists, and only when we thought the nation was in imminent danger. We got life-saving information in return. And so we'd do it again in similar circumstances. (See yesterday's column for more.)

Putting aside for a moment the question of whether the ends did in fact justify the means -- and there is considerable evidence that the waterboarding of those three men miserably failed that test as well -- the White House argument is deeply perverse and goes against core American values.

Waterboarding is undeniably cruel. It is undeniably an assault on human dignity. The Eighth Amendment to the Constitution -- the one banning cruel and unusual punishment -- doesn't come with an asterisk indicating: Except when you think it's really, really important.

It's true that on TV, the ticking time bomb scenarios are crystal clear, being tough means using torture, and torture always works. But none of those things are remotely true in the real world. Which is why we have rules that we're supposed to follow, even in emergencies.

And even on the twisted terms the White House is advocating, the evidence suggests that the ends in this case did not justify the means. The White House asks us to believe that in this case it was worth it. But despite all the generalized assertions that countless lives have been saved by the CIA's interrogation program, Bush and his aides -- as I wrote in my Dec. 11 column -- have yet to offer a concrete case where intelligence produced by torture saved a single life. To the contrary, as I wrote in October, Bush has repeatedly cited examples of thwarted attacks that turned out to be wildly exaggerated.

Finally, the White House argues that waterboarding is legal because the Justice Department said so. But waterboarding is flatly, objectively illegal -- according to both U.S. and international law. Try to find one independent expert to tell you otherwise. And, despite their heated assertions, no one in the White House or at the Justice Department has yet to provide a single vaguely reasonable argument to support their position. All those legal briefs are conveniently considered top secret.

White House spokesman Tony Fratto was his usual shameless self. Froomkin quotes a couple of reporters, starting with the Los Angeles Times' Greg Miller:

"The surprise assertion from the Bush administration reopened a debate that many in Washington had considered closed. Two laws passed by Congress in recent years -- as well as a Supreme Court ruling on the treatment of detainees -- were widely interpreted to have banned the CIA's use of the extreme interrogation method.

"But in remarks that were greeted with disbelief by some members of Congress and human rights groups, White House spokesman Tony Fratto said that waterboarding was a legal technique that could be employed again 'under certain circumstances'…

Jennifer Loven of the Associated Press relates Fratto's comments in the off-camera gaggle yesterday morning: "'There's been a lot written out there -- newspaper, magazine articles, some of it misinformation,' Fratto said. 'And so the consensus was that on this one particular technique that these officials would have the opportunity to address them -- in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them.'"

Ah, the benefits.

The Wall Street Journal has shown its eagerness to lie (or play dumb) for partisan ends on many occasions (read over their Whitewater and Plamegate coverage if you need a refresher), and they lowered their journalism standards yet again for the "justifying-torture challenge." As Froomkin writes:

The Wall Street Journal editorial board wrote yesterday: "Abd al-Rahim al-Nashiri planned the October 2000 bombing of the USS Cole. Abu Zubaydah was the mastermind of the foiled millennium terrorist attacks, which had Los Angeles airport as one of its targets. Khalid Sheikh Mohammed directed the September 11 attacks, and has claimed to have personally beheaded Wall Street Journal reporter Danny Pearl.

"All three men were captured by the CIA in 2002 and waterboarded in the course of their interrogations. They are also the only U.S. detainees to have been waterboarded. That fact, publicly confirmed yesterday by CIA Director Michael Hayden, shreds whatever is left to the so-called torture narrative, according to which the Bush Administration has engaged in widespread, needless and systematic torture of detainees.

"Instead, we have sworn public testimony that the waterboarding was conducted against the three individuals best positioned to know about impending terrorist atrocities. The interrogations took place when a second major terrorist attack was widely seen as inevitable. And we know that the waterboarding of Abu Zubaydah helped lead to the capture of KSM, and to the foiling of an active terrorist plot against the United States."

The New York Daily News editorial board writes today: "Hayden revealed under oath that the CIA used waterboarding in interrogating three, just three, top Al Qaeda leaders: 9/11 mastermind Khalid Shaikh Mohammed; Abd al-Rahim al-Nashiri, architect of the Cole bombing, and Abu Zubaydah, who hatched the so-called millennium plot.

"The questioning was urgent. 'There was the belief that additional catastrophic attacks against the homeland were inevitable,' Hayden testified. And the technique worked. Zubaydah gave up information that led to Mohammed's capture.

"The CIA has dropped waterboarding from its approved tactics. But, should the need arise, the agency can seek presidential permission to employ it again. This leeway is imperative."

But here are just a few of the problems with these arguments. I don't know much about al-Nashiri, but according to investigative reporter Ron Suskind in his latest book, Zubaydah was a mentally ill minor functionary and, under torture, a serial fabricator. The most valuable information Zubaydah gave investigators about Mohammed was his nickname, which, as Dan Eggen and Dafna Linzer reported in The Washington Post in September 2006, the CIA had already learned seven months earlier. And as Lawrence Wright wrote in the New Yorker last month: "Among the things that Mohammed confessed to was the murder of Daniel Pearl. And yet few people involved in the investigation of Pearl's death believe that Mohammed had anything to do with the crime; another man, Ahmed Omar Saeed Sheikh, was convicted of killing Pearl."

In a previous post I covered Suskind's account of Zubaydah. You may have noticed, too, that the WSJ editorial board insists that an unsubstantiated assertion by the Bush administration is a "fact." Their "fact" is that the U.S. received crucial, actionable intelligence from torture and that waterboarding was only used on three people. Even if both these highly questionable assertions are true, the WSJ crew conveniently elides over the other torture perpetrated, outsourced or allowed by the Bush administration.

Froomkin continues:

The Boston Globe editorial board writes: "In 1901 in the United States, the military court-martialed and sentenced to 10 years hard labor a US major who had waterboarded a prisoner in the Philippines during the Spanish-American War. The United States officially outlawed the practice after World War II, when the Germans and Japanese had both used it against Allied troops. The Allies executed eight Japanese officers for waterboarding British prisoners and sentenced another to 15 years hard labor for waterboarding a US civilian, among other crimes.

"The United Nations' Convention Against Torture prohibits any treatment of prisoners causing long-term physical or mental damage, which human-rights advocates believe includes waterboarding. . . .

"The Spanish Inquisition, Nazi Germany, militarist Japan, Pol Pot - this is the roster that Bush wants the United States to join. Congress should act to make sure that the United States does not once again stoop to using tortura del agua (water torture). That's what it was called during the Inquisition."

And despite Fratto's assurance that, because waterboarding's use in the past was approved by the attorney general, it was therefore legal and not torture, Yale Law Professor Jack Balkin blogs: "Actually, it violates the law whether or not you call it illegal. Generally speaking, war criminals don't usually admit that they have engaged in war crimes. They usually say they were justified in acting as they did.

"But as we've argued on this blog many times, the statutes (and the Geneva Conventions) do not support the White House's strained interpretation. Waterboarding is torture. And torture is a war crime. If the White House has admitted to waterboarding, it has admitted to both."

"Bush Thinks This Will Help?" (2/11/08):

Lara Jakes Jordan and Pamela Hess write for the Associated Press: "The Justice Department long has resisted exposing the Bush administration and its employees to criminal or civil charges or even international war crimes if waterboarding were declared illegal.

"Larry Cox, executive director of Amnesty International USA, called [Mukasey's] testimony an example of 'the gold standard of double standards.'

"'Everyone in the world knows that waterboarding is torture and illegal,' Cox said. 'The U.S. government admits having done it. Yet the highest law enforcement official in the land refuses to investigate this scandal.'"

Mukasey's argument that he can't prosecute the people who carried out the waterboarding because they were told it was legal makes a certain amount of sense. But what about the people who told them it was legal? It seems to me that they are the ones who could more likely be prosecuted. But the Justice Department obviously can't prosecute itself.

Isn't this exactly what special prosecutors are for?

It All Comes Back to the OLC -- and Addington

Charlie Savage writes in the Boston Globe that "the controversy surrounding Bush's counterterrorism policies on such matters as interrogation and surveillance has centered on whether the Justice Department's Office of Legal Counsel, a small group of politically-appointed attorneys who advise the president, has correctly interpreted the law…

Savage writes that Rep. William D. Delahunt (D-Mass.) "said Mukasey was essentially giving 'immunity from any criminal culpability' to anyone who breaks a law, so long as the Office of Legal Counsel secretly signs off on the conduct - even if the legal advice was 'inaccurate.' . . .

As Georgetown Law Professor Marty Lederman blogs: "I was shocked last week when Judge Mukasey told Senator Feingold that DOJ would not share with the Judiciary Committee -- even in closed session -- the legal explanations of why the 'approved' CIA techniques are not unlawful. He repeated essentially the same thing to Representative Conyers yesterday. . .

"As I've argued here repeatedly, there is almost never any justification for the existence of what is, in effect, secret U.S. law about the limits of how or government can use force against individuals -- or of the existence of a 'classified' law that departs so fundamentally from how the law is widely understood by the lawmakers and by the people.

"But certainly where, as here, the underlying facts (and legal conclusions) are now acknowledged, and where there is such a stark and important contrast between the law as the public and Congress understands it and the law as the Executive interprets it, it is critical that the legislature and public be able to understand and evaluate the Administration's legal arguments.

"Why hasn't the Department's audacity incensed more legislators? If the Administration will not even provide Congress, let alone the public, with a public accounting, and explanation, of how it is interpreting Congress's own enactments, we really are setting a new benchmark for the degradation of our system of meaningful checks and balances."

"Return of the 9/11 President" (2/12/08):

Said Bush: "First of all, whatever we have done was legal, and whatever decision I will make will be reviewed by the Justice Department to determine whether or not the legality is there. And the reason why there is a difference between what happened in the past and today, there is a new law."

Then, however, Bush made an unsupported claim, and issued a challenge that the media and his critics should pick up with vigor: "The American people have got to know that what we did in the past gained information that prevented an attack. And for those who criticize what we did in the past, I ask them, which attack would they rather have not permitted -- stopped? Which attack on America did they -- would they have said, well, you know, maybe it wasn't all that important that we stop those attacks."

But if the American people have "got to know" that torture gained information that prevented an attack, Bush needs to start making a better case. As I've written repeatedly, he has yet to offer any evidence that intelligence produced by torture thwarted a single plot or saved a single life.

The media should demand that he back it up or take it back…

And yet, Fox News's Chris Wallace responded not with a challenge but with what may go down as one of the most inappropriate and insufficient follow-ups in presidential history.

Said Wallace: "I want to follow up on that. Whether it is interrogation of terror prisoners or the intercepting of surveillance among al Qaeda members, are you ever puzzled by all of the concern in this country about protecting of rights of people who want to kill us?"…

Even Bush had to come to the defense of his critics.

Blogger John Amato shows video of Bush's bizarre expression while listening to Wallace's questions about waterboarding: He can't stop smiling.

"Fear Rules the Day" (2/13/08):

Why, after years of refusing public comment on particular CIA interrogation methods, have top Bush administration officials suddenly begun pressing a controversial argument that it was legal for the CIA to strap prisoners to a board and pour water over their face to make them believe they were being drowned?

Dan Eggen raises that question in today's Washington Post, and comes up with a possible answer: "The issue promises to play a role in the historic military prosecution of six al-Qaeda detainees for allegedly organizing the Sept. 11, 2001, attacks, in cases described by the Defense Department on Monday."

And knowing that, the administration's strategy of acknowledging waterboarding but arguing that it was legal "appears to be aimed primarily at ensuring that no CIA interrogators face criminal prosecution for using . . . methods that top White House and Justice Department lawyers approved."

Froomkin Q&A (2/13/08):

Lititz, Pa.: So to summarize the Bush administration's view on law: If a lawyer says it is legal, it is. Seems to leave the Supremes out in the cold with nothing to do.

Dan Froomkin: Almost. You mean: If one of our hand-picked, possibly too-radical-to-get-confirmed lawyers, doing the unbending will of the vice president's office and allowed to create our own secret law says it's legal, it is.

"A Question of Human Dignity" (2/14/08):

And here's an astonishing way of looking at torture, from none other than Attorney General Michael Mukasey: The three men who were waterboarded, he said yesterday, brought it upon themselves.

NPR's Ari Shapiro spoke to Mukasey yesterday.

Shapiro: "Mukasey quoted CIA director Michael Hayden's statement that out of a large number of terrorism detainees, 100 were subjected to coercive interrogation techniques."

Mukasey: "And of those, three were waterboarded. So these are people who self-select for their ability to resist the technique."

"The House Strikes Back" (2/15/08):

Georgetown Law Professor and blogger Marty Lederman responds with outrage: "Bradbury later confirmed (see the video at 36:20-37:00) what I've often speculated here: OLC's view is that a technique is not torture if, 'subject to strict safeguards, limitations and conditions, [it] does not involve severe physical pain or severe physical suffering. . . and something can be quite distressing or comfortable, even frightening, [but] if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis.'

"Let's be very clear: This so-called 'analysis' is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible. . . .

"Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. . .

"To say that this is not severe physical suffering -- is not torture -- is absurd. And to invoke the defense that what the Spanish Inquisition did was worse, that we use a more benign, non-torture form of waterboarding -- after all, we don't stomp on the victim's chest! -- is obscene."

"Bush's BFF Going Down" (2/19/08):

Bruce Fein writes in his Washington Times opinion column: "The beginning of the end of the rule of law has emerged under President Bush, i.e., a systematic twisting of language or precedents to advance a political agenda.

"The Bush administration has bettered the instruction of Humpty Dumpty in 'Through the Looking-Glass, And What Alice Found There': 'When I use a word it means just what I choose it to mean, neither more nor less,' said Humpty Dumpty. . . .

"Mr. Bradbury's assertion that waterboarding by the CIA fell short of torture as defined by the federal anti-torture statute was first cousin to semantic jugglery and sophistry. He defended the now-abandoned practice on the fog of intelligence ignorance in the aftermath of September 11, 2001; and, President Bush's and CIA Director Michael Hayden's unsubstantiated claims that the CIA's enhanced interrogation program has proven invaluable in helping to prevent international terrorism either at home or abroad.

"The definition of torture, however, does not expand or contract like an accordion based on the objective of the interrogator or the intelligence need. The statute condemns torture period, with no commas, semicolons, or question marks."

Morris Davis writes in a New York Times op-ed that "we need to come to grips with the practice known as waterboarding, the simulated drowning of a person to persuade him to talk. . . .

"Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us. . . .

"My policy as the chief prosecutor for the military commissions at Guantanamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

"Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue -- efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing."

The Baltimore Sun editorial board writes: "Waterboarding is torture, and torture is not consistent with what we believe in as a nation, regardless of the circumstance. Prosecutors at the Nazi war trials at Nuremberg knew it more than 50 years ago, and many senior intelligence and military officials question its value and morality now. . . .

"White House officials insist a ban on waterboarding would force the CIA to shut down its program of enhanced interrogation of terror suspects. When pressed to defend the president's position, White House spokeswoman Dana Perino . . . relied on partisan sniping: 'Americans will have to ask themselves, "Do you trust the intelligence community more than you trust Democrats who are beholden to their left wing?"'"

Dana Perino, ever charming. Apparently, despite plenty of evidence to the contrary, only Dirty Friggin' Hippies care about such pesky problems as torture. Perino might want to run that by Alberto Mora, the rule-of-law conservative and general counsel for the U.S. Navy who the Cheney gang lied to and undermined for opposing torture. For starters. It's that same paradigm of unaccountable power and radical decisions we discussed earlier. As I wrote previously on Mora:

It’s impossible to avoid the fact that the Bush administration is not ignorant of the mistakes they have made. But they do not view them as mistakes, or at the very least did not at the time. Whether it comes to the 4th Amendment, judicial review, and the illegal NSA eavesdropping program — or using discredited reports of Nigerian uranium sales to sell the case for war — or disregarding plans for the reconstruction of Iraq — or pushing for a policy of torture — they have been warned of the dangers and proceeded anyway. The Bush administration has not been given solely bad counsel. It has ignored, suppressed, and aggressively attacked good counsel. Given the ongoing disastrous consequences, “hubris” is just too tame a word.

Scott Horton

(Cartoon by Ed Stein, 2/13/08 — click for a larger view.)

Scott Horton is a "wicked smart" lawyer who writes for Harper's. He's occasionally debated torture apologists, and has written extensively on torture, due process, surveillance, and other issues of civil rights and justice.

"Deconstructing John Yoo" (1/23/08): "Once again, poor John Yoo, the author of the original torture memorandum and steady defender in public fora of waterboarding and crushing the genitalia of small children, feels he is being persecuted." (How cool is it, by the way, that he used "fora"?)

"Bulletins from the Ministry for Torture" (1/27/08)

"Burke on Terror, Ignorance and Tyranny" (1/29/08): "No passion so effectually robs the mind of all its powers of acting and reasoning as fear."

"‘Reasonable Minds Can Differ’" (1/31/08): Horton assesses Mukasey's latest evasions, and quotes from three of my favorites on legal issues, Jack Balkin, Dahlia Lithwick and Marty Lederman.

"Blackstone on Torture" (1/31/08).

"Challenging Torture": A prepared speech by Horton that serves a fascinating recap of torture through the ages, using as a starting point Paul about to be tortured by the Romans in the Book of Acts. An excerpt:

Few societies had a more carefully charted system of torture than the Romans. They used torture much as President Bush contemplates its use, namely as a tool for interrogating enemies. They specified permitted techniques and detailed who could use it and under what circumstances. They regulated its admissibility as evidence in legal proceedings. They refrained from negative moral judgments about torture, but while embracing its use, they also noted that it really wasn’t particularly effective or useful in extracting information from subjects. The prime rule they devised is the one that Paul relies upon in Acts–they forbade torture to be used against a citizen who was uncondemned. That is to say, torture could be used as a punishment, but not in connection with interrogation.

But [Darius Rejali, author of Torture and Democracy] tells us that the barriers and internal rules could not hold. Once torture emerged as a practice authorized by law in some circumstances it spread very quickly, and ultimately the prohibition against torturing citizens could not be sustained.

"Six Questions for Alex Gibney, Producer of the Oscar-Nominated ‘Taxi to the Dark Side’" (2/5/08).

"Torture Groundhog Day" (2/7/08):

…the Bush Administration is nothing but a series of Groundhog Days, just the sort to which Bill Murray finds himself condemned in the movie of that name. And the cycle that the Bush White House serves up is torture, and particularly waterboarding, 24/7.

"Nino Scalia, Your Hairshirt Is Showing, and Your Bishop Has a Message for You" (2/12/08): Quoted earlier, but here's a new section:

His legal posture is very interesting. The Constitution, he argues, bans the use of “cruel and unusual” punishment. That means no torture if you’ve been convicted of a crime. So in Scalia’s internal legal world, the application of torture to someone who’s not even been charged with a crime and who may simply be completely innocent—say a witness to some serious plot, but not a conspirator—might be just fine. This may well reflect a sort of logic, but it doesn’t reflect an appreciation of the historical roots of the prohibition on torture, which evolved over hundreds of years in English jurisprudence.

"Treating the Constitution as a Doormat" (2/13/08) – More on the FISA bill, but the issues are related, I'd say.

"Six Questions for Darius Rejali, Author of ‘Torture and Democracy’" (2/13/08). A great piece, quoted earlier in this post.

"A Valentine from the Ministry of Love" (2/14/08): The chilling tale of Sami al-Hajj, which Horton puts into larger context:

…today Kristof gives us the story of a journalist who was seized and locked away in Gitmo, and who is being tortured, twice a day. What’s his offense? None has been charged. It seems evident that his prime offense is simple: he is a journalist who worked for a broadcaster that the Bush regime despises: al Jazeera. That was plenty of reason to seize and torture him.

"Indeed, the Offender May Be Your Boss" (2/14/08):

Indeed, some of the perpetrators [of human rights violations] have not just gained entrance to the United States and acquired citizenship, some of them are senior officials of the Department of Justice. Steven Bradbury and John Yoo, for instance, are probable target for criminal proceedings in the not too distant future… Let's hope so, because justice in this world for crimes of this magnitude seem all too rare.

"The Valentine’s Day Torture Trifecta" (2/16/08): Horton examines the lies, evasions or cluelessness of Steven Bradbury, Bush, and Lieberman:

On Valentine’s Day the Bush Administration was out on a mission, straight from the Orwellian Ministry of Love. That ministry of course served in Nineteen Eighty-Four as the center for torture. And as the shortest month reached its middle point, three apologists appeared on behalf of the administration to explain to the American public that they needed to relax and start getting comfortable with torture. It’s the new American Way, after all.

Horton provides video of Bradbury's waterboarding defense (which other excerpts have touched on as well). Horton analyzes:

So the key is brevity. Do it in a few seconds, no lasting effects, and it’s fine. And that’s the beauty of waterboarding, in Bradbury’s mind. A former OLC attorney advisor, Georgetown Prof. Martin Lederman says this is “flatly, 100% wrong, and indefensible.” I’d say that is a charitable characterization. My own view is that this opinion constitutes evidence of Bradbury’s participation in a criminal conspiracy to introduce a regime of torture as defined in American and international law. The law may provide defenses for the interrogators who act in misplaced reliance on the Justice Department’s opinions, but it provides no shield for those who in bad faith formulate the policies that foment torture. Bradbury has no business serving in the Justice Department or in any other public office. He should now be the target of a criminal investigation, together with the other policy-level figures who drove the introduction and propagation of this torture regime. Indeed, beyond their essential criminality, no group of people have done more in the last seven years to undermine the security of every American citizen than these shadowy, ethically-challenged figures who seem propelled by the credo that they stand above the law because they can twist it to say whatever they want.

As for Bradbury’s future career, I suggest he take up acting. He is a natural to play the Grand Inquisitor in Schiller’s Don Carlos or Dostoevsky’s Brothers Karamazov–he has the reasoning down pat, he actually looks sincere and clean-cut as he explains that “torture is good for you.” Our use of waterboarding is humane compared to the Spanish Inquisition, he says. And then he demonstrates the key distinction: the Japanese or Spanish would fill the stomach with water and then stand on the body. For the American version, we fill the lungs with water and don’t do any standing. You can exhale now. Isn’t that a great relief? It’s a kinder, gentler form of waterboarding. A waterboarding of which all Americans can be proud. A waterboarding that reflects America’s core values of respect for human dignity.

Lieberman, no surprise, doesn't understand what waterboarding entails when he says "It is not like putting burning coals on people’s bodies. The person is in no real danger. The impact is psychological." Perhaps more important than exposing Lieberman's ignorance is Horton's illuminating focus on the familiar "ticking time bomb" scenario and how torture has been used in "general intelligence gathering," not only imminent threat situations (if any have ever even existed):

But there’s another aspect of Lieberman’s statement which needs some attention. He presents his rationale as an outtake from the Fox Network’s “24,” he talks about ticking bombs and the urgent needs to wrestle information from a participant in a plot in the course of performance. But of course, not a one of the instances in which waterboarding was actually applied related to anything like such a scenario.

Indeed, a Judiciary Committee staffer who carefully tracked Bradbury’s testimony earlier in the day drew this conclusion from it: “This is an official acknowledgment that we do not use these tactics only in (fanciful) ‘ticking bomb’ scenarios — we use them to find about ‘potential’ ‘planning’ of attacks and enemy ‘whereabouts’ — that’s just general intelligence gathering.” That’s precisely correct and it demonstrates the fraudulent way the “ticking bomb” argument is being used. Students of moral philosophy of course will recognize the technique. It was put forward by Sophists in the post-Platonic period. They suggested that they could contrive a set of facts sufficient to topple any moral law that a moral philosopher could postulate. The “plank of Carneades” is a prime example of their approach comstructed by the Sophists from a teaching of the second century BCE skeptic Carneades. It suggested that in extremis, a person could violate most natural and moral laws to save himself. Carneades did not actually believe this, he presented it as an example of a powerful and malicious form of argumentation with strong appeal to the weak-minded against which society must ever be on guard. And the “ticking bomb” scenario is merely an updated version of this line of reasoning. The way to approach such arguments entails a series of questions:

(1) Has the factual scenario that is posited ever occurred? Is it likely to occur?

(2) What is the consequence to society of taking the exception as a basis for overturning the general rule? How is the exception granted and applied?

(3) What is the objective of those advancing the exception?

However, this approach suggests we treat Lieberman’s comments as something serious and worthy of analysis. In fact the man is not a serious figure and his argument—that “waterboarding is better than placing burning coals on the flesh”—is simply ludicrous, and that’s the best way to treat it.

In the end, Lieberman’s comments add nothing to the debate. But they tell us much about Lieberman.


(Cartoon by Dan Wasserman, 2/12/08)

NPR's Fresh Air (10/10/07):

This year the Human Rights First Award for Excellence in Television will be given to a show that "depicts torture and interrogation in a nuanced, realistic fashion." According to interviews with military leaders, portrayal of torture on television shows has changed interrogation techniques in the field.

TV producer Adam Fierro (The Shield), intelligence expert Col. Stuart Herrington and human rights advocate David Danzig discuss TV violence.

"5 Myths About Torture and Truth" by Darius Rejali (12/16/07). (Rejali poses one "myth" rather unfortunately, well examined by Matt Weiner.)

Democracy Now!: "The 9/11 Commission & Torture: How Information Gained Through Waterboarding & Harsh Interrogations Form Major Part of 9/11 Commission Report" (2/7/08).

"Damage That Must Be Undone" by Eugene Robinson (2/8/08):

Did you ever imagine that we would have a president who uses legalistic euphemisms and craven rationalizations to justify strapping prisoners down and subjecting them to simulated drowning? A president who claims the right to use waterboarding, and God knows what other "techniques," in the future if he wants?

Think Progress: "Charles Swift: Use Of Waterboarding Evidence In Court Unheard Of Since ‘Spanish Inquisition’" (2/12/08).

"Why Now?: The timing of the Guantanamo trials is not an accident." by Charles Swift (2/15/08).

Steve Benen and Blogenfreude cover Joe Lieberman's support of waterboarding.

Meanwhile, never underestimate the ability of our press corps to painfully miss the point. As Digby noted in a (superb) post on Mukasey's Senate testimony:

Kelli Arena says the good news is that this is a very cordial hearing, without the "apoplectic fits" one is accustomed to from this committee. I don't think Kelli has ever heard about the "banality of evil."

(There's much more, of course, and I've linked Digby, Glenn Greenwald and Arthur Silber in previous posts on the subject, but I can't cover it all. Please link any other good pieces or sites in the comments.)

A Final Metaphor (or Two)

(Cartoon by David Horsey, 2/15/08)

There's something quite sad about John McCain, tortured as a P.O.W. and once an eloquent opponent of such treatment, voting to allow it. There's something pathetic in major pundits trying to make excuses for McCain, even on this Faustian bargain, for which there's really no positive interpretation.

Regardless of any possible noble intent on the part of a torture proponent, there remains the reality of the practice's actual use, as on Sami al-Hajj (as written about by Nicholas Kristof and referenced in the Horton "Ministry of Love" post above). Apparently innocent, al-Hajj has been kept imprisoned for six whole years, and started a hunger strike over a year ago. His force feeding has been one more unnecessary brutality, "really a regime to make it as painful and difficult as possible.” Yet again — sadly — this is no accident. As Horton writes:

There are in fact clear internationally agreed upon standards for forced-feeding... What is going on in Guantánamo consciously avoids the Malta standards not because there would be any difficulty complying with the standards, but because it is intended to be a form of torture.

Imagine being imprisoned, unjustly, for even a day. Imagine it for a week. Then a month. Imagine losing a whole year of one's life. Imagine, if it's possible, what it must be like to have been imprisoned for six years without knowing when, if ever, one will be freed. On top of all that, and all the other indignities, imagine, if it is possible, what it must be like to be tortured.

Not everyone who has been arrested is innocent, of course. But guilt also doesn't make torture effective or moral, and at the very least, the risks and costs are very, very high. All this brings to mind an arresting example from Darius Rejali:

And let’s remember, torturers aren’t chosen for intelligence; they are chosen for devotion and loyalty, and they are terrible at spotting the truth when they see it. In the “Five Myths” piece I talk about how the Chilean secret service lost valuable information in that way when they broke Sheila Cassidy, an English doctor, and she told them everything but they didn’t believe her. And one can just repeat dozens of stories like this. My favorite is when Senator John McCain tried to explain the concept of Easter to his North Vietnamese torturer. “We believe there was a guy who walked the earth, did great things, was killed and three days later, he rose from the dead and went up to heaven.” His interrogator was puzzled and asked him to explain it again and again. He left, and when he came back, he was angry and threatened to beat him. Americans couldn’t possibly believe in “Easter” since no one lives again; McCain had to be making this up.

Even though it was North Vietnam in a different era, it's striking that this torturer was unaware of such a central tenet of a major world religion. Likely he could have learned the truth without too much effort. Of course, it's also remarkable that authoritarian conservatives, mainly of them self-identifying as Christian, could support torture, seeing as their religion clearly opposes it and Jesus was himself tortured and put to death in cruel fashion. It's likewise truly incredible that so many supposedly smart, trustworthy officials and pundits are unaware (or pretend not to know) the history and facts about torture. They, too, could learn this with little effort, but they have chosen not to, and seem to have willfully ignored such evidence even when presented directly to them.

Picture John McCain and his torturer, as McCain patiently (or desperately) tries to explain the truth yet again but simply is not believed. Imagine him knowing what's likely to come. Imagine him having been a prisoner for years, and not knowing when and if his captivity, and this treatment, will ever end.

Torture is a most un-Christian sacrament. Much more importantly, it's also an immoral and un-American one. Torture proponents on the whole prize "devotion and loyalty," and not only are "terrible at spotting the truth" about torture, they reject it completely, just as McCain's torturer refused to believe the truth when told to him. Some apologists such as Mukasey may be highly intelligent, but they cannot be accused of wisdom. The same is true of all the key players in the Bush administration, with their assertion of divine, monarchial powers. Such awesome power married to such poor judgment with so little accountability has been disastrous. The myth about torture that proponents flog so relentlessly it that it will somehow make us stronger, help us ascend over peril and fear, let us rise up again and save us from the Dread Enemy. It's all a lie. But with all these lies, myths and fantasies, for Sami al-Hajj and all those others imprisoned and tortured, the body and blood remain.

(Cartoon by John Sherffius, 2/18/08)

Update: I added two more excerpts.

(Cross-posted at The Blue Herald)


Comrade Kevin said...

He's the decider and he decides what torture is and is not.

Anonymous said...

Excellent and extensive write-up. Personally, I think the entire debate about the legality/morality of torture is a big, stinking red herring. Let's disregard all of that in favor of a much more relevant argument: it doesn't f'n work. It accomplishes nothing and is counterproductive to getting useful HUMINT. Torture is effective at getting the victim to say whatever he thinks he can say to end the torture. Sure, it's useful if we're interested in extracting the largest possible quantity of bullshit out of detainees, but otherwise....

Also note the stunning beauty of the logical fallacy in the waterboarding "debate":

We do not torture.
We waterboard.
Therefore, waterboarding is not torture.


Batocchio said...

Comrade Kevin: Precisely. It's wonderful that such a good and wise man wields unaccountable power, isn't it?

Ed: A great summary. The fact that torture doesn't work (except for confessions) and is unreliable at best for obtaining information is a huge reason not to do it. Torture is immoral, illegal, ineffective and counterproductive. I'm not picky about which factor ultimately convinces people, but the "ineffective and counterproductive" angles demolish every excuse to use it.

Of course, the current administration has been after confessions and coerced aid. I've got another post on the Gitmo trials in the works, but I doubt it would shock you to learn that loyal Bushie Haynes doesn't want any acquittals because he thinks it'd look bad to hold people for so long and not find them guilty. It's Kafka meets Orwell, with a little Joseph Heller thrown in as well, topped off with a big heap of Dante.