Investigate, Disclose, Prosecute

With the CIA report on interrogations, prisoner abuses and torture released today, we're bound to see a new flurry of old arguments that the heavens shall fall if anyone dares to prosecute the perpetrators. A Washington Post op-ed today touches on these very issues, although the author is more nuanced and with a more narrow focus than many other WaPo writers on the subject. (I'd be shocked if we didn't get some raving torture apologists shortly.)

I'm not going to recap every argument (and re-use every link) in "Torture Versus Freedom" and other torture pieces here, but there needs to be a full investigation and disclosure of everything possible (the CIA report will help, but may have a more narrow focus). Prosecutions should certainly be brought where appropriate. Granting blanket immunity would be irresponsible before further facts are known, especially given what is already known. We do know over 100 prisoners were killed in detention, that abuse was widespread, and that abuses were the result of deliberate policies from the highest levels versus the work of a few "bad apples." Based on the timeline and narrative currently available, there are CIA agents – and more likely, government contractors – whose offenses were so grotesque they should investigated and probably prosecuted. However, the bigger issue is those higher up who made the decisions. That group would include Bush, Cheney, Rumsfeld, Addington, Yoo, Gonzales and others (Marcy Wheeler's "The 13 people who made torture possible" provides a splendid overview). It would be a travesty if, as with Abu Ghraib, the lower-level personnel got all the blame while the real culprits got away scot-free.

With all this in mind, I wanted to go through "CIA Accountability: 6 Reasons Not to Prosecute Interrogators." I'll go through the whole thing paragraph by paragraph, but it might be better to read the whole thing and form one's own impressions first. The author was general counsel for the CIA from 1995 to 1996.

CIA Accountability
6 Reasons Not to Prosecute Interrogators

By Jeffrey H. Smith
Monday, August 24, 2009

The CIA inspector general's report on "enhanced interrogation techniques," scheduled to be released today, is said to provide disturbing details about interrogations CIA officers conducted from 2002 to 2004. It will be painful reading. Although the Obama administration has banned the techniques, Attorney General Eric Holder is reportedly considering prosecuting some of the officers who conducted the interrogations.

We lost our bearings in the wake of the attacks of Sept. 11, 2001. The United States, long a leader in human rights and the law of war, adopted policies and practices that squandered our credibility. Over time, President George W. Bush recognized that and reversed some of those policies. In one of his first acts, President Obama went further and banned the enhanced techniques, closed the secret CIA prisons and pledged to close the prison at Guantanamo Bay.

I'm not sure how accurate it is that 9/11 caused a madness that lead to abuses. Meanwhile, Bush "recognized" legal jeopardy more than the obvious immorality and inefficacy of torture and other abuses. "Madness" is probably the best defense, but as I've written before, the timeline doesn't really support a good faith defense (more on this later). The attacks on 9/11 didn't change the thinking of the neocons, imperialists, monarchists and authoritarians inside the Bush administration so much as it gave them more justification for their already existing, radical views.

Have we done enough to restore our credibility and correct past wrongs, or are prosecutions also needed? We don't yet know what has caused the attorney general to consider prosecution. Enforcing the law is an important function of government. But the government also has broader responsibilities. Here are six reasons prosecutions are not in the nation's best interests:

It's nice that Smith admits we don't know everything yet. Conservative torture apologists generally claim, without offering any proof, that torture saved lives. However, in the eyes of the world, there's simply no question we must prosecute to "restore our credibility and correct past wrongs." A significant percentage of the American people feel the same way, and that number would likely rise if the torture story was reported more accurately.

-- First, these techniques were authorized by the president and approved by the Justice Department. The relevant committees of Congress were briefed. Although the Justice Department's initial legal opinions were badly flawed, the fact remains that the agency responsible for interpreting and enforcing the law said the techniques were "legal." That alone will make prosecutions very difficult.

This is mainly an argument not to prosecute lower-level CIA agents. That seems to be Smith's main concern, and his take on prosecuting those higher up is less clear. I suspect that Washington Post op-ed editor Fred Hiatt might not note the distinction. I wish Smith was more forthright on this, since I think this op-ed will generally be flogged to shut down all prosecutions.

The OLC (Office of Legal Counsel) memos supposedly "authorizing" torture were issued as cover-your-ass measures, after torture and other abuse had already started. As it is, the guidelines they outlined, illegal though they were, were exceeded. But the memos also ignored glaringly relevant legal statutes and case law. A lawyer saying "murder is legal" obviously doesn't magically make it so, although this is essentially the Bush administration position – and one Smith voices as well. The torture memos were neither legally sound nor written in good faith.

As for congressional disclosure, as Angler documents and the Pelosi-CIA briefings story earlier this year show, the While House and the CIA both routinely deceived Congress when they told them anything at all. In fact, just today Scott Horton wrote about the role Blackwater played in Cheney's assassination program, which was one of the major stories of the past week. As Horton notes, Cheney ordered that Congress not be briefed on the program, and that part was known months ago even if Blackwater's involvement wasn't. It's hard to believe Smith didn't know about these stories.

-- Second, the CIA provided the inspector general's report to the Justice Department in 2004. Justice has not prosecuted any CIA officers but did successfully prosecute a contractor who beat a detainee to death, an incident that was initially reported to the department by the CIA. What has changed that makes prosecution advisable now? No administration is above the law. But the decision of one administration to prosecute career officers for acts committed under a policy of a previous administration must be taken with the greatest care. Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers.

Torturing and killing prisoners are not mere "policy differences." The Bush Justice Department's refusal to prosecute abuses is further proof of its corruption, not an exoneration of the perpetrators.

-- Third, after Justice declined to prosecute, the CIA took administrative action, including disciplinary action against those officers whose conduct it deemed warranted such responses. This is standard procedure; reports of possible criminal activity must be referred to Justice. If it declines to prosecute, the matter is sent back to the CIA for appropriate administrative action.

Disciplinary action under the corrupt Bush administration isn't necessarily sufficient, especially given the severity of the crimes – torture and death. This should be further investigated and probably decided on a case by case basis, though. The bigger concern is not individual CIA agents, but those higher-up who authorized these policies.

-- Fourth, prosecuting CIA officers risks chilling current intelligence operations. This country faces an array of serious threats. A prosecution or extensive investigation will be an unmanageable expense for most CIA officers. More significant, their colleagues will become reluctant to take risks. What confidence will they have when their senior officers say not to worry, "this has been authorized by the president and approved by Justice"? And such reactions would be magnified if prosecutions focus only on the lower-ranking officers, not those in the chain of command. Such prosecutions are likely to create cynicism in the clandestine service, which is deeply corrosive to any professional service.

Emphasis mine, above. I don't think it takes a high degree of intelligence or conscience to recognize that torture and murder of a prisoner is illegal and immoral, and not just another order to obey. But I agree with Smith on the bolded section. Those lower down should be investigated, partially to further establish the evidence. But those in the chain of command should be the main targets.

-- Fifth, prosecutions could deter cooperation with other nations. It is critical that we have the close cooperation of intelligence services around the world. Nations often work together through their intelligence services on matters of mutual interest, such as combating terrorism, even if political relations are strained or nonexistent. The key to this cooperation is the ability of the United States to be a reliable partner and keep secrets. Prosecuting CIA officers undermines that essential element of successful intelligence liaison.

This argument is largely bullshit. Most other nations aren't happy about the CIA or other American agencies and contractors torturing and killing people. Investigations are proceeding in Spain and other countries. The human rights abuses perpetrated under the Bush administration, and the Obama administration's insistence that it can still hold prisoners indefinitely without trial or evidence, have hurt foreign relations and our national security, not helped it.

-- Sixth, President Obama has decisively changed the policies that caused so much damage. He recognizes that it is vital to our security to have an effective intelligence community that is not distracted by looking backward and coping with congressional investigations and grand jury subpoenas.

The CIA is not a monolithic entity. It has tortured in the past, while others in the CIA have opposed this. Most in the FBI favor rapport-building techniques, as do some military interrogators such as the decorated Major Matthew Alexander. That's why the newly-announced High-Value Detainee Interrogation Group (HIG), with different agencies represented but FBI predominance and White House oversight, may prove to be a good idea.

Smith has consistently argued for years that CIA agents need clear guidelines, and he's absolutely right on that. HIG may provide that, and could be a useful buffer against torture apologist bullshit. Smith also has a point about not just going after lower-level CIA operatives. However, yet again, when torture and murder are involved, these are not mere "policy differences." It's pretty damn important for national security and "effective intelligence" that everyone in the CIA to understand that the Nuremberg defense doesn't hold and some orders must be challenged.

If media reports are accurate, the conduct detailed in the inspector general's report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.

The writer, a partner at Arnold & Porter, was general counsel of the CIA from 1995 to 1996.

This is more of the same. Again, there should be a full investigation, and some of those "who actually carried out that behavior" probably should be prosecuted. However, the big problem is those who authorized it, and they should remain the main focus. I don't think Smith is necessarily averse to prosecuting the chain of command, although some torture apologists have made similar arguments as a smokescreen to try to protect key members of the Bush administration. It's basically the "Criticize the Bush administration and you hate the troops" bullshit, except adapted to excuse war crimes. Let's also not forget – and the CIA would do well to remember this, too – that the Bushies have shown themselves perfectly happy to trash the CIA repeatedly for their own mistakes, and for doing things that the Bushies told and browbeat the CIA to do. (See these excerpts from The One Percent Doctrine, for example.) I don't blame Smith too much for sticking up for his former colleagues at the CIA in general principle, but I wish he'd recognize that part of the game, and be more forthright about his stance on prosecuting Bush, Cheney, Rumsfeld, Addington, Yoo and the gang.

Based on his past writings and statements, Smith is strongly for clear guidelines for the CIA, army and other government entities, he's for agency coordination, and appears to be anti-torture.

For instance, here's his list of articles.

From mid-September 2001, here's a PBS interview.

He's written other op-eds for The Washington Post on this general subject. From June 2005, there's "Regaining Respect."

From November 2005, there's "Central Torture Agency?: Exempting the CIA From the McCain Amendment Sends the Wrong Signal to Our Officers."

From February 2007, there's "A War Under Law: Congress Must Address U.S. Detainee Policies."

I'm less concerned about Smith specifically, but did want to put his arguments in context.

Currently, the investigation is set to be only of low-level personnel. As Scott Horton and others have pointed out, if the law is followed, such an investigation will necessarily lead upward. The big worry is a whitewash. And Horton today raises serious concerns about Holder not releasing the Office of Professional Responsibility (OPR) report. (Marcy Wheeler has similar concerns.) It's important because, as Horton writes, that report:

...Could therefore provide ample reason to doubt whether anyone with legal training—or indeed, anyone with a functioning mind and the ability to read—would find the memos to be persuasive statements of the law. That matters, because the law requires someone relying on them to have done so “in good faith.”

Horton, Marcy Wheeler (Emptywheel), Spencer Ackerman and several other blogs will all be useful to read over the next weeks. Here's the Washington Post article on special prosecutor John Durham. Wheeler isn't thrilled about him. Eric Holder's statement can be read here.

From Wheeler, I'd also recommend "Cheney’s Cherry-Pick," "Reposted: The CIA IG Report on the Inefficacy of Torture," and"Reposted: The CIA IG Report’s “Other” Contents."

Ackerman has "Collected Lowlights Of The 2004 CIA IG Report Into Torture" and another look at Cheney.

KCRW radio show To the Point today was on "A New Look for America's Terrorism Interrogations."

I imagine Dan Froomkin will have more in the days to come as well.

There's plenty to sift through, and much more to come out besides that.

Obama's Speech on Security and Values

Questiongirl posted the video of the speech here, and you can read the transcript here.

I appreciate that Obama actually speaks to the public as adults, and am sympathetic to the ridiculous amount of challenges before him, many with powerful, entrenched interests against him, and an conscienceless, obstructionist minority party. (Unlike Rush Limbaugh, I want him to succeed, and plenty of conservatives do, too.) In the speech, Obama offered some on-target critiques to puncture some of the astounding idiocy of our national discourse, particularly the current fear-mongering over terrorists killing everyone in their beds after escaping from prison.

However, the speech had plenty of troubling sections, too. Dan Froomkin has a great overview (emphasis mine):

But in some parts of his speech, Obama appeared to be defending actions and even taking positions that didn't live up to his own professed standards.

When it came to what to do with the detainees at Guantanamo, he declared that he would work to create a system that would enable the indefinite detention without trial for a limited number of people whom the government is unable to prosecute for past crimes, but whom are nevertheless considered to be threats to the country. Even though he spoke of establishing lawful standards and periodic reviews, that's a dangerously extreme policy proposal. He once again expressed his intention to use a reformed military commission process for some detainees -- but gave no reason to think it won't run into many of the same legal challenges that Bush's process did. He spoke of sending many detainees to face trial in federal courts -- but then promised that no one would be released who endangers our national security. The whole point of a fair judicial system is that the executive can't guarantee the results.

Obama spoke passionately about his commitment to transparency, but offered up the same lousy and unpersuasive excuses he did last week for his decision to fight the court-ordered release of more photos of prison abuse. In particular, the weight he put on his responsibility not to release information that would inflame our enemies was deeply disturbing.

He offered no additional clarity regarding his position on the state secrets doctrine, where his lofty promises still stand in dramatic conflict with what his administration is actually doing.

And in continuing to oppose the creation of an independent commission that would fully investigate the abuses of the Bush administration, he marginalized those of us who want to find out what happened as polarizers, much like those who continue to doggedly defend Bush policies. He said the recent debate has obscured the truth -- when all we want is to let it free.

See also Glenn Greenwald, DDay and Digby. As they say, look at Obama's actions. And what disappoints me about Obama is the many places he's running things too closely to the horribly ineffective Bush playbook – as captured in this Tom Toles cartoon. It'd be one thing if Obama were letting Attorney General Eric Holder do his job and enforce the law when it came to Bush era abuses, but DDay's piece passes on a troubling report:

On at least one issue, though, Obama seems to have made up his mind. Isikoff reports that Obama announced his opposition to torture prosecutions--an unsurprising admission, perhaps, but one that must have disappointed many in attendance. Previously he had said that the question of investigation and prosecuting Bush administration officials was one for Holder to answer. But with Holder sitting right beside him, there's no doubt he's feeling pressure to, as they say, look forward, not backward.

If this is true, it's not good. I'm glad Obama's meeting with civil rights groups, but we've seen that the GOP will not stop gross abuses of power voluntarily. I understand Obama not publicly leading the charge on an investigation, and he was correct that Congress and the courts can proceed. But the Justice Department can and should, and is in fact legally obligated to do so. The Departments of Defense, Treasury, Energy, and Health and Human Services all have steep tasks ahead of them, but that's why there's more than one department in the government and more than one cabinet official. While I continue to hope the best for Obama and his administration, there is absolutely no scenario where public pressure to do the right thing won't make things better. We need a full investigation into human rights abuses (and on Wall Street, among other places). These aren't distractions, they're the tasks at hand, and essential to address for a successful long game.

(Cross-posted at Blue Herald)

Torture Versus Freedom

(WWII-era poster on torture.)
(There are times I feel like a broken record on torture and human rights abuses. This is something of a recap post borrowing somewhat from earlier pieces.)

Defending torture insistently means one's moral compass is pointing straight down to hell. I continue to believe it's essential to confront the dangerous and evil lie that torture "works" and that we're all going to die if we respect human rights, follow the law, or dare to investigate - let alone prosecute - the people responsible for these horribly shameful and criminal policies. However, as many have noted, that we are "debating" torture's usefulness at all means we've failed somehow as a society. As Scott Horton quipped in December 2008, "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."

While specific false claims about torture and the Bush administration's conduct should be challenged, it's especially important to emphasize torture's immorality and its clear illegality. Torture is the very antithesis of freedom. The key dynamics are not truth, security or patriotism. They are power, dehumanization and sadism. As Rear Admiral John Hutson observed, "torture is the method of choice of the lazy, the stupid and the pseudo-tough." When someone is tortured, it means that someone else in a position of power over the victim has deliberately chosen to inflict significant pain and suffering on a fellow human being. Torture spreads and corrupts in a democracy. Not only do torturers often not recognize the truth even when it's told to them, sometimes the torturers get so carried away they don't "even bother to ask questions" and "torture becomes an end unto itself." As Soviet-era torture victim Vladimir Bukovsky put it, "Why run the risk of unleashing a fury that even Stalin had problems controlling?" He also explains how, after several days of torture, "neither the doctor nor those guards could ever look me in the eye again." (See also The Lucifer Effect.)

These abuses have often resulted in permanent or serious physical and psychological damage (although torturers often prefer methods that hide the abuse they've inflicted). Torture is assault of the most cruel variety, robbing the victim of the sanctity of his or her own body, but also his or her very mind and soul. These are not actions to weigh lightly, tactics to endorse or excuse cavalierly, nor damages to forgive quickly before we even know precisely what was done. It's hard to imagine a more clear moral line.

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, terrorize the populace, produce bogus intelligence or elicit false confessions. It's not that torture never produces a true statement, but at best, torture "works" much the same way amputation "cures" all hand ailments. (That's still probably far too generous.) Experienced interrogators know that torture is unreliable and counterproductive in addition to being cruel and illegal. For obtaining reliable information, more humane, rapport-building techniques are far more effective. Furthermore, as John Sifton has pointed out, intel from prisoners typically grows "stale" quickly, and "if you’re relying on interrogations for intelligence, you’re already on the back foot. You’ve already lost the war, so to speak." Regardless, a skilled, experienced interrogator pursuing accurate information would not be approaching a prisoner asking, "How much pain can I legally inflict?" That is a self-defeating, dangerous path that leads all too easily to becoming "the enemies of all humankind."

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. Almost every new document and piece of information has exposed lies, deception and crippling inconsistencies in their self-ennobling but accountability-denying tale. The existing evidence does not support a "good faith" defense, but even if it did, an investigation would still be required by law. Anti-torture laws exist in large part to protect all of us from men and women so certain of their own righteousness or need that they torture others (normally until the tortured person says exactly what they want to hear - apparently, precisely what happened here). The "debate" on torture and specific abusive techniques are stalling tactics by torture proponents and apologists, who consistently favor fantasy over reality in their arguments, and want to prevent a full investigation or trial. They will discuss Jack Bauer and hypothetical ticking time bombs endlessly, but not Maher Arar or Binyam Mohamed (among many others). They typically ignore altogether such damning, central evidence as the Red Cross report, which stated authoritatively and unequivocally that prisoners in U.S. custody were tortured. Their specific denials shift depending on their audience, but they almost always ignore that for years we have tortured, abused and imprisoned innocent people. It's much easier to abuse people or justify their abuse, of course, if they're all viewed as guilty, dangerous, alien or subhuman. These practices have often resulted in significant, lasting physical and psychological damage - and even death. (That's not to mention their central role in selling the war in Iraq and the consequences of that.) Ignoring or outright lying about this level of cruelty and abuse embodies the banality and audacity of evil.

The general public has been horribly served by the press on these matters. Some reporters, organizations and blogs have covered these issues superbly. But major outlets such as The New York Times have chosen to use euphemisms for torture and have played the gutless and dishonest false equivalency game of he said-she said. They've routinely withheld the crucial context that America has prosecuted the same abuses in the past. (Meanwhile, America's covert operations have committed and taught similar abuses in the past as well, hardly in line with our best moments or stated ideals.)

Opposition to torture should not be a partisan issue, and it isn't. Liberals, moderates and rule-of-law conservatives, including many military lawyers, have spoken out against torture, abuse and the stripping away of legal rights. (Some more partisan conservatives opposed prisoner abuses until they realized how far up the authorization went.) Yet as Glenn Greenwald has shown, most Beltway pundits (and sometimes all pundits on a given show) oppose prosecutions and often even a full investigation.

It's maddening, as is too much of the mainstream torture "debate," because as Will Bunch asserts, "Torture is not about "winning the afternoon"" – we are discussing clearly illegal war crimes with serious consequences. Yet torture apologists are routinely granted respectability and their false and misleading claims often go unchallenged. Somehow, on the Beltway circuit, it would be rude – and perhaps too much work - to fact-check and refute them. Somehow, it's a radical notion to point out that torture is illegal and that legal statutes require that credible allegations of torture be investigated. Somehow, revealing the truth, or – heaven forbid – prosecuting a member of their Beltway class would be horribly "divisive," yet refusing to do so and asserting that the law doesn't apply to some people somehow isn't divisive. Torture apologists typically avoid any mention of the key legal statutes and major reports and articles on torture, and far too many pundits feel similarly entitled to ignore key evidence in the public record (and sometimes ignore their own op-eds). Instead, we get the characteristic and grandiloquent ravings of Peggy Noonan, claiming that "Some things in life need to be mysterious… Sometimes you need to just keep walking." In Beltway morality, torturing someone is fine - or at least debatable among civilized folk - but it's terribly, horribly rude and offensive to call someone a torturer, or to accurately describe what was done as torture, or even to acknowledge that anything at all took place. War crimes are just too contentious, an understandable indiscretion by gentlemen, or a mystery that passeth all understanding.

Most prominent torture apologists are not arguing in good faith, and virtually every pro-torture argument has been debunked countless times, including the infamous ticking time bomb scenario. Specific pro-torture arguments come in and out of fashion, but the most popular two currently are the counterfactual claims that we didn't torture anyone (David Rivkin, Liz Cheney) and that torture (or "enhanced interrogation techniques") saved lives (Dick Cheney, John Boehner, many talk show hosts). A few, such as Lindsay Graham, are "trying to find a narrow ground from which [to] condemn torture, yet prevent anyone from being held accountable for torture." (Trying to spread partisan blame is also popular, although it may eventually backfire.) Liz Cheney has attempted a particularly brazen tact favored by some torture apologists (including her mother) - denying that torture is torture while waving the flag and trying to shame her challengers. Liz Cheney told Norah O'Donnell that it "does a fundamental disservice to those professionals who are conducting this very effective program and to those people who approved the program in order to keep this nation safe and prevent attacks through the program to call it torture."

This would surely come as news to the many professionals, past and present, who have spoken out against these abuses. It'd be an astounding revelation to those who suffered the consequences of those policies, from those prisoners who were tortured and killed, to the American troops attacked, injured and killed, to the families and friends of both groups. As decorated military interrogator Matthew Alexander puts it:

There are valid reasons why we haven’t had enough with “torture sanctimony,” as Christopher Buckley puts it in an article in The Daily Beast, and let me start with the most important—it’s going to cost us future American lives in addition to the ones we’ve already lost.

Our policy of torture and abuse of prisoners has been Al Qaida’s number one recruiting tool, a point that Buckley does not mention and is also conspicuously absent from former CIA Director General Michael Hayden and former Attorney General Michael Mukasey’s argument in the Wall Street Journal. As the senior interrogator in Iraq for a task force charged with hunting down Abu Musab Al Zarqawi, the former Al Qaida leader and mass murderer, I listened time and time again to captured foreign fighters cite the torture and abuse at Abu Ghraib and Guantanamo as their main reason for coming to Iraq to fight. Consider that 90 percent of the suicide bombers in Iraq are these foreign fighters and you can easily conclude that we have lost hundreds, if not thousands, of American lives because of our policy of torture and abuse. But that’s only the past...

Former officials who say that we prevented terrorist attacks by waterboarding Khalid Sheikh Muhammad or Abu Zubaydah are possibly intentionally ignorant of the fact that their actions cost us American lives. And let’s not forget the glaring failure in these cases. Torture never convinced either of these men to sell out Osama Bin Laden.

These policies have been extremely harmful, and additionally, the various defenses for these abuses just don't hold up to scrutiny. As DDay noted on sleep deprivation, "a technique that takes 11 days to break a prisoner is most definitely NOT a technique used in reaction to an imminent plot, particularly not a ticking time bomb scenario." ("Break" in this context would almost certainly amount to the prisoner submitting to his captors' power, not necessarily providing accurate intel, even though the pro-torture crowd often mistakenly or intentionally conflates the two.) Emptywheel was the first to observe, "according to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002." As John Cole commented, "There better be a pretty damned long fuse on that ticking time bomb. And yes, this is nothing but pure sadism."

The more pieces we add to the torture narrative, the worse it looks. Each report, each new contradiction to the standard Bush administration version of events, further exposes the dishonesty of the torture apologists and the indefensibility of the actual perpetrators' actions. That trend looks to continue. Torture apologists want to muddy the waters to confuse the public, and frame the "debate" to prevent the most glaring questions from being asked: "What exactly was done, and who authorized it? What is the timeline? 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?" More than anything, they want to avoid any questions about the role selling the Iraq War played in pushing torture. It's understandable why Liz Cheney would try to gloss over the starring part her father played in that diabolical plot, but it's hard not to share Dan Froomkin's amazement - why has the press been so silent on such explosive revelations?

Arguments that we shouldn't prosecute because of the public's own complicity are silly, misleading and self-serving, especially given the quality of the coverage, but even more importantly because of the law. Roughly half of the public supports investigations, although the numbers fluctuate, especially when polls use poor and misleading questions. As Dan Froomkin observes:

To me, these poll results demonstrate the genius of the Cheney strategy, which is to keep the argument limited to what happened at the black sites, which have an aura of "24" to them. The torture there was still inexcusable, but I guess forgiveable to many.

I doubt they would feel the same way if they were shown proof of a direct relationship between Bush policy and not just the torture of "high value" detainees, but also the vile abuse of garden-variety suspects at Guantanamo and Bagram, and of mostly innocent Iraqis at Abu Ghraib.

Has Dick Cheney told the truth or been accurate about anything of consequence at this point? Is there some reason to let him dictate the "debate" or take anything he says at face value, unverified, even when a mountain of evidence calls him out as delusional or a self-serving liar? (Or is basic journalism just too "impolite"?) These abuses were not isolated incidents, nor the result of a few bad apples. People were tortured and sometimes killed as a direct result of widespread, deliberate policies of abuse dictated from the very top. There is no serious dispute on this. The media haven't done a good job of making all this clear and pushing back against the liars who claim otherwise. And as Matthew Alexander puts it, "The American public has a right to know that they do not have to choose between torture and terror." The media as a whole have not helped spread the word about that, either.

We need a full investigation – and one without immunity handed out beforehand. We need as much disclosure as possible. For all the recent bluster from torture apologists urging the release of documents, the smarter among them only want cherry-picked releases and not the full picture. They want to prevent a trial at all costs. That's why it's essential to call Cheney's bluff on the document and investigation front. Surely, if these people are right, a full investigation and disclosure will exonerate them. Surely it's the only way they will be vindicated. That's the political gamesmanship, but the law itself is quite clear. The proper place for Bush officials to be offering their defenses is under oath, as part of a full and thorough investigation and/or on trial. An investigation is what's required by law given the clearly credible allegations of torture, and Bush officials could offer all their shifting defenses and "evidence" there. There is absolutely no good reason to believe the same or similar abuses won't happen again if we don't look at what happened. As retired Major General Antonio Taguba states, "There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

This is not a game. These torture "debates" should not be thought experiments divorced from objective reality, history, the known timeline and the very real and deadly consequences of these policies. It's one thing for members of the general public to be confused or not be up to date on the general timeline and key details, or be swayed by fantastical ticking time bomb scenarios. It's one thing for the bloodthirsty chickenhawks who assume every Muslim or Arab prisoner is a guilty terrorist to indulge in their ignorant, self-flattering Jack Bauer fantasies of living in the "real world" of tough decisions. It's inexcusable that so many members of the media still - still - know and/or report these matters so poorly. We deserve and need better. It's not hyperbole to say that people are dead because of these policies. Given what we already know, how can we turn away? This is not a game to those who were tortured, nor to the families and friends of those tortured, abused, maimed and killed. It is not a game to human rights activists trying to end abuses around the world. It's not a game to the JAGs and other lawyers trying to ensure fair trials and treatment for their clients, guilty and innocent alike. Contrary to the grotesque bullying tactics, shameless lies or colossal self-deception of the Cheney family and their kind, it's not a game to the American and coalition troops attacked, injured, maimed or killed as a result of arrogant, feckless leadership and reckless, unconscionable and evil policies.

We have failed as a nation in allowing torture. We will fail again if we don't learn the full story and prosecute where appropriate as many of the guilty as possible. The perpetrators and their allies say they've done nothing wrong, so why would they stop should they re-gain (or maintain) power? The specific abuses of power may change, but the pattern of abuse will not. There's a direct line from Watergate through Iran-Contra to the Bush administration's abuses. As the recently-released Senate report shows, there's also a direct connection from trying to sell an unnecessary war with Iraq to torturing prisoners to make them "confess" to a non-existent Iraq-al Qaeda/9-11 link. And it's not as if no one ever warned the Bush administration that they shouldn't be doing this. As Cheney aide David Addington said (in the context of warrantless wiretapping and executive power), "We're going to push and push and push until some larger force makes us stop." That larger force clearly will not be conscience. And David Broder and his lazy, gutless, dishonest and addled ilk will not speak out for human rights or democracy any more than they opposed a war of choice or admitted their own culpability in that. It's up to the citizenry. We need to push for a full investigation, as much disclosure as possible, and prosecutions where appropriate. Torture is immoral and illegal. The road to hell may be paved with good intentions, but there's more than one road, and the price of doing nothing is just too damn high. It's a radical stance to be sure, but: Let the truth come out, and justice be done.


("Inferno Canto XXI (The Lawyers)" by Michael Mazur.)

Further Resources

Many other sites have produced superb pieces on these issues. I've tried to link a number of them above, and in previous posts. However, Emptywheel has a superb torture timeline with links, and a shorter piece rounding up the most recently-released documents, including the Red Cross and Senate reports on the torture and abuse of prisoners, and the Bush administration torture memos.

My most extensive posts to date on the subject are (the very lengthy) "Torture Watch 2/19/08" and "Rivkin's Protean Logic on Torture."

I would recommend (although I've linked some of these above):

The Dark Side (July 2008) by Jane Mayer. Dan Froomkin provides a good overview of it, and some of Mayer's related pieces can be read online: "The Memo," "The Hidden Power," "Whatever It Takes" and "The Black Sites."

Torture Team: Rumsfeld's Memo and the Betrayal of American Values (May 2008) by Philippe Sands. "The Green Light" by Sands covers many of the highlights.

Angler: The Cheney Vice Presidency (September 2008) by Barton Gellman gives one of the best overall accounts of how the Bush administration worked. Excerpts are here and here.

The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11 (June 2006) by Ron Suskind. (I have an older post covering the Abu Zubaydah material here.)

Torturing Democracy - the full documentary can be viewed online. (PBS chose not to air it before the end of the Bush administration, probably due to external pressure.)

Frontline - many good episodes relate to the Bush administration, but "The Dark Side," "Cheney's Law" and "Bush's War" are the most relevant, and can all be viewed online.

Taxi to the Dark Side is an Oscar-winning documentary about a Afghan cabdriver arrested, tortured and killed by American troops.

Mark Danner wrote two key pieces in the New York Review of Books in April 2009, "US Torture: Voices from the Black Sites" and "The Red Cross Torture Report: What It Means." The first piece lead to the release of the Red Cross report.

"Torture's Long Shadow" (12/18/05) by Vladimir Bukovsky, a victim of torture during the Soviet era.

"It's Our Cage, Too" (5/17/07) by Charles C. Krulak and Joseph P. Hoar, who write that "torture betrays us and breeds new enemies." ("Charles C. Krulak was commandant of the Marine Corps from 1995 to 1999. Joseph P. Hoar was commander in chief of U.S. Central Command from 1991 to 1994.")

"The General's Report" (June 2007) by Seymour Hersh on Army Major General Antonio Taguba and his attempts to report on the abuses at Abu Ghraib. (The sidebar links several other related Hersh stories.)

"Rorschach and Awe" (June 2007) by Katherine Eban, on torture psychologists James Mitchell and Bruce Jessen. This April 2009 Democracy Now episode features Eban, and is a good overview of the subject.

"Waterboarding is Torture... Period" (10/31/07) by Malcolm Nance, a former SERE instructor.

"Why It Was Called 'Water Torture'" (2/10/08) by Richard E. Mezo.

"Tortured Reasoning" (December 2008) by David Rose for Vanity Fair, focusing on false claims of torture "working" on specific prisoners.

"I'm Still Tortured by What I Saw in Iraq" (11/30/08) by Matthew Alexander (a pseudonym), an American interrogator. He is also the author of How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq. (I've linked several of his appearances above and in previous posts.)

"My Tortured Decision" (4/22/09) by Ali Soufan, an FBI interrogator who questioned Abu Zubaydah, and confirmed and fleshed out earlier accounts. Crucially, any actionable intelligence was obtained before Abu Zubaydah was tortured.

"Drop By Drop: Forgetting the History of Water Torture in U.S. Courts" (PDF, 2006) by Evan Wallach, a "federal judge and former judge advocate general" for The Columbia Journal of Transnational Law.

"Waterboarding is Illegal" (5/10/08) by Wilson R. Huhn, Washington University Law Review.

The Lucifer Effect by Philip Zimbardo, on the Stanford prison experiment and related issues of power and abuse. Zimbardo's site links a number of his appearances, including this Fresh Air interview.

Torture and Democracy (November 2007) by Darius Rejali. One of the most comprehensive books on the subject. Here's Rejali with Scott Horton.

I could easily keep going, and feel free to pass on any recommendations in the comments. Other posts have and will continue to take on specific torture apologist arguments. In the future, I may try to put together a torture primer of some sort, covering most of the arguments we've seen. But the most important task now is to push for a full investigation.

(Edited for clarity, and a few sentences and links added to paragraph 5 of the piece proper. It was a late night.)

Update 5/16/09: In comments, johnsturgeon and Nell of A Lovely Promise have recommended and linked the work of Alfred McCoy, a history professor at the University of Wisconsin-Madison.

His key book is A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror (December 2006). As Nell notes, a limited preview is available through Google Books. She adds that "McCoy's book is an essential part of any torture 'syllabus'. He brings out the multi-decade, systematic research by the CIA into psychological torture, the torture paradigm that resulted, and the lasting damage that it produces on those subjected to it."

Here's some other McCoy links:

"Cruel Science: The Long Shadow of CIA Torture Research" (5/29/04).

"The Hidden History of CIA Torture: America's Road to Abu Ghraib" (9/9/04).

"Why the McCain Torture Ban Won't Work: The Bush Legacy of Legalized Torture" (2/8/06).

Democracy Now: "Professor McCoy Exposes the History of CIA Interrogation, From the Cold War to the War on Terror" (2/17/06).

Democracy Now: "Historian Alfred McCoy: Obama Reluctance on Bush Prosecutions Affirms Culture of Impunity" (5/1/09).

"A Short History of Psychological Terror" (February 2008) is an hour-long lecture by McCoy on YouTube.

Thanks again for the recommendations. At least a half-dozen sites cover the latest factual revelations and political gambits on torture diligently (VS is not a breaking news site), and it seems most readers have at least one good source. I don't know about anybody else, but I read "we fight to build a free world" as both a rebuke and an inspiration. Thanks to everyone who's keeping the pressure up on these issues.

Update 5/19/09: Marcy Wheeler (Emptywheel) has a great article for Salon, "The 13 people who made torture possible," which serves as a good introduction or refresher on the key players and the basic timeline.

(Cross-posted at The Blue Herald)

The Torture Flowchart

(Picture by the invaluable darkblack.)
How did all this torture and war stuff happen, you ask? Well, some people have been trying to cover those stories for several years now, but the recently unclassified senate report adds valuable detail. But hey, why not try a flowchart?


Click for a larger view, or go here. Here's a larger view of that little collage:


Click for a slightly larger view, or go here. (One of the pictures comes from "The Green Light," a summary of one of the better books on torture out there, Torture Team: Rumsfeld's Memo and the Betrayal of American Values by Philippe Sands. Check out the article if you haven't.)

Feel free to quibble with any of the specifics in the chart, or improve it. It's somewhat tongue-in-cheek and has its flaws, beyond the resolution issues. With authoritarians, there's often a chicken versus egg question for their actions, and an ignorance versus evil question for their motives. However, for them, an authoritarian regime is both a means and the ends. To paraphrase Digby, incompetence, corruption, secrecy and dishonesty are features, not bugs of these systems. My main point is that a host of attitudes contribute to the problem, and a little bit of reflection, humility, intelligent analysis, oversight, honest counsel or courage can check it – unless the steamroller is allowed to prevail. Just as bullshitters don't care whether what they're saying is true or not, authoritarians tend not to care about such pesky things as negative consequences, principle or the law. An explicit order to "Torture that man until he falsely confesses to an 9/11-Iraq connection!" might never come, in those exact words – yet that outcome is nonetheless the natural (or perhaps unnatural) result of a series of deliberate decisions, an arrogant attitude and the overall climate created. (That's not to mention the issues of self-awareness and CYA language.) It's not as if the Bush administration lied, hid the evidence, dodged oversight and ignored or punished warnings from their own people out of good faith. They knew what they were doing was radical. (See Angler, a superb book, for much more.) In any case, there will be plenty of time to discuss the specific "whys" as we continue to establish all of the "whats" in greater detail. We need an excellent special prosecutor to investigate the crime scene. ( A truth commission might help as well, but not if it goes the Iran-Contra route of immunizing everyone and undercutting any criminal investigations.) Paul Krugman spells it out well:

Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link.

There’s a word for this: it’s evil.

Exactly. Let the full truth be known, and justice be done.

(Cross-posted at Blue Herald)

Torture Watch 4/8/09

What precisely was done, by whom, to whom? Who ordered it? Who knew? And what will be done about it?

We previously covered Mark Danner and his important article in the New York Review of Books on the Red Cross Report on Torture. He has a new piece, "The Red Cross Torture Report: What It Means," and the site allows readers to read or download a PDF on the original report.

Dan Froomkin has a good roundup of reactions in "How Many Others Were Tortured?" (An earlier post, "Bush's Torture Rationale Debunked," is good wrap-up of issues Froomkin has written on before, and we've covered here.) The Washington Post commented on the report in "Report Calls CIA Detainee Treatment 'Inhuman'" and The New York Times did in "Report Outlines Medical Workers’ Role in Torture."

In The Daily Beast, Scott Horton asks, "Are Republicans Blackmailing Obama?" Given that they made similar comments before Eric Holder's confirmation, my bet is yes. The dynamic reminds me of the U.S. Attorney scandal, in that public officials were improperly pressing the Attorneys' offices for information about then-current cases. In this instance, apparently Republicans are going several steps further morally, even if they're probably in the clear legally – demanding that the Justice Department under Obama make a specific decision on cases they've yet to investigate fully. Horton's piece is a good start, but this affair would benefit from more whistleblowing on Senator John Cornyn (R-TX) and other Republicans. There's little doubt that Cornyn knows the Bush administration committed war crimes, and he's doing everything in his power to ensure the truth doesn't get out and they never face justice.

The problem isn't just the Republicans, however. John Sifton writes for The Daily Beast today, "Is Leon Panetta Covering Up Torture?" Glenn Greenwald has written several posts on Obama administration efforts to stall or cover up the truth, including their assertions of unaccountable power, similar or in some cases even exceeding claims made by the Bush administration. See "There are no excuses for ongoing concealment of torture memos," "New and worse secrecy and immunity claims from the Obama DOJ" and "Obama, the ICRC Report and ongoing suppression" (QuestionGirl covered some of this earlier). Today, Greenwald posted two segments from Countdown on these issues, featuring the reliable Jonathan Turley:

Visit msnbc.com for Breaking News, World News, and News about the Economy

Visit msnbc.com for Breaking News, World News, and News about the Economy

Scott Horton continues to cover human rights issues diligently at his blog, No Comment. "In Brennan, Cheney has a Friend" builds on the issue of Cheney "stay-behinds" and those with similar interests covered earlier by Seymour Hersh. There's also “Investigate and Punish the Perpetrators,” "Torture Doctors," "Lock ‘Em Up,""Obama’s National Security State," "Presidential Accountability" and "Left Behind."

Nell makes an important point at A Lovely Promise and A Tiny Revolution about how torture is not about "intelligence gathering":

But torture does something else altogether, and is designed to do so: it extracts false confessions. These confessions, along with the agony of the torture itself, serve the goals of limitless, lawless "war": to humiliate and break opponents, to divide them from supporters, to terrify those not actively in opposition into staying inactive, and, most importantly, to justify the operations of the dirty war within which torture takes place: commando raids, assassinations, spying, kidnaping, secret and/or indefinite (and unreviewable) detention, and further torture.

The mistaken assumption that those in the previous administration who set the torture policy were motivated solely by an urgent need for information has several other bad effects…

Check it out. There's at least one comment in the ATR thread that's well worth reading.

You may have caught Colin Powell on the Rachel Maddow show. Dan Froomkin and Scott Horton comment, but I'd especially check out DDay's post on Colin Powell and the My Lai massacre (it was new to me). (Digby has a followup.)

In a despicable move, the "Privilege Review Team" at the Justice Department has threatened British lawyer Clive Stafford Smith and a colleague with possible six month jail sentences for writing a letter to President Obama detailing the abuses inflicted on their client, Binyam Mohamed. This one gets uglier the more one learns. Amy Goodman and Glenn Greenwald both spoke with Smith, but the audio is poor in both cases (Greenwald will be providing a transcript).

Then there's "Seton Hall Law Students Reveal That Generals Knew Guantanamo Detainees Were Tortured," which comes via Digby, who comments. Let's add in "The Bush Six" by Jane Mayer, "Release the Torture Memos" by Hilzoy, and from Hullabaloo, "That Mighty Liberal Blog Power Made Manifest" by DDay and "Blackmail" by Digby.

Jason Linkins noticed back in late March that the "Washington Post Finally Describes Waterboarding As Torture (When Someone Else Does It)."

When dealing with movement conservatives, the ignorance-to-evil ratio often becomes a question, even if it's a bit moot. In "From The Pro-Torture Cocoon," anti-torture conservative Andrew Sullivan looks at the torture apologia of happy wingnut John Hindraker. (For added irony, read the whole Hindraker post to see him call Obama ignorant.)

Meanwhile, I'm really looking forward to getting a hold of a copy of Christopher Durang's dark comedy, Why Torture Is Wrong, and the People Who Love Them. I've directed a couple of Durang's plays, and NYT reviewer Ben Brantley gushes over the premiere production: "But Mr. Durang, bless his heart, believes that no other art form can offer the communal catharsis — and consolation — that theater does, a point he makes quite directly (between bouts of violence) in "Torture."" While we push for truth and justice, the arts come to the rescue once again.

Finally and perhaps most importantly, Suzanne Ito of the ACLU has a post at Crooks and Liars about the Office of Legal Counsel torture memos and links an ACLU petition for Attorney General Eric Holder to assign an independent prosecutor.

It's shameful that most of what we know comes from ACLU efforts and a handful of reporters, activists and lawyers. Most Beltway pundits are trying to prevent the truth coming out, and certainly want to prevent prosecution. While Obama is much brighter and more competent than Bush, he's currently skewing far too closely to the Bush method of doing things, from coddling arrogant, corrupt and incompetent oligarchs on Wall Street, to borrowing too much of Bush's foreign policy, to invoking state secrets and claiming the government is not reviewable or accountable, to hiding and protecting horrible abuses of the past. The political realities are tough for effecting lasting, positive change in many areas, given the entrenched, powerful interests opposing that on Wall Street, on health care, on defense spending, and in the intelligence community. But there's no excuse for hiding the misdeeds of the Bush administration or repeating them. Civil rights don't defend themselves, and justice won't magically happen. There are members of the Obama administration who want to do the right thing, but public pressure is essential. The Obama administration needs to be pressed to investigate, disclose and prosecute where appropriate the human rights abuses that form one of the most shameful chapters in our recent history.

(Cross-posted at Blue Herald)

Torture Watch 3/16/09

Michael Bersin's post "A Small Clique Of Legal Extremists" is a useful overview of laws (and Bush administration statements) on torture. He also has a 2008 series on Justice Scalia speaking at the University of Central Missouri (one, two, three and four).

Although I linked it in "Rivkin's Protean Logic on Torture," this Glenn Greenwald post from February delves into American torture treaties as well.

Karen Greenberg has an article on the prison at Bagram Air Base in Afghanistan posted at both TomDispatch and Salon (Digby posts on it). How much is the Obama administration breaking with and fixing the abuses of the past?

Steve Hynd (Cernig) at Newshoggers has more on these questions in "Obama Administration Defends Rummie In Torture Lawsuit," a troubling development.

It's not enough to conduct ourselves better in the future; we must uncover all that was done in the past and ensure that justice is done. As always, public pressure will be crucial for making that happen.

(Cross-posted at Blue Herald)

Return of the Denver Three

Now the ACLU has rode in on their white horses to represent two of the three! (No word on what the deal is on the third.) The Rocky Mountain News has the latest update here.

I still feel any legal action could easily been avoided if Michael Casper, the man now identified as ejecting the Denver Three, had simply acted like an adult and apologized. Or, alternatively, someone else, such as the Denver police or the FBI, who both knew Casper's identity but refused to reveal it, had persuaded him to act like an adult and apologize. Perhaps not; perhaps identifying himself through an apology would have just opened Casper to be sued. However, that's happening anyway now, and boy does he look bad. Had he apologized, the story would be out of the news long ago, and had he still been sued, public opinion might have been with him.

Casper's actions were silly and stupid, but they was also illegal. I personally don't think trampling anyone's civil rights is a good thing, nor does it comfort me to think that it doesn't seem to trouble the Denver police, nor the FBI. So a partisan guy gets overzealous and abuses his authority - in fact, invents an authority he does not possess. It's not the end of the world; let him apologize, let's return to civility, and move on. However, there can be no return to civility without civil rights. Casper has yet to acknowledge, pubicly or privately, that what he did was wrong. Consequently, instead of owing the Denver Three an apology, he may soon be owing them money as well.