Using Justice Against Us

I originally posted this piece on November 7th, 2008 over at the Campaign For America's Future. Obama had won the election, but Bush was still president. Some of the piece is necessarily dated, but I'm re-posting it here for a few reasons. The tiniest one is that CAF has changed their template, and now all block-quoted text is also italicized, which obscures italics used in the original post. The other reasons are fairly straightforward. With the release of the OPR Report (the Office of Professional Responsibility for the Justice Department), there's more focus again on John Yoo and the lawyers who worked to give legal cover for torture and other war crimes. (I'll be posting something on the OPR at some point.)

Meanwhile, in a truly dismaying spectacle, there are pundits and hacks running around casually endorsing torture. True to form, they've been completely ignoring all the experts who have explained why torture doesn't "work" for intel, ignoring what the Bush administration actually did, and certainly ignoring that torture is absolutely illegal and a war crime.

Many in the same crowd has been attacking the very notion of justice itself, with the most prominent being Liz Cheney. Some want military commissions rather than civilian trials for alleged terrorists, even though civilian trials are standard and probably more effective. Some do not want any trials whatsoever for anyone accused of being a terrorist. Without irony, they attack the very idea of a fair justice system as a threat to civilization.

Barack Obama didn't create the current mess at Guantánamo and other sites. However, denying due process to any prisoner is indefensible. Charge the guilty, put them on trial, and let the innocent go free. That situation is bad enough. However, the Cheneys and their allies are fighting to make it even worse.

Meanwhile, I noticed that torture apologist Andrew McCarthy - in addition to living up to his last name - is making some of the same weak and misleading arguments that John Yoo did back in December 2007. While I want to delve into McCarthy further, conservatives Orin Kerr and Conor Friedersdorf have done a fine job challenging many of McCarthy's arguments. But without further ado...
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Using Justice Against Us
(11/7/08)

Among the many decisions facing Barack Obama is what to do about the military prison at the Guantánamo Bay Naval Base, and the many prisoners held there for years, in most cases without trials or charges. On a larger scale, Obama and his team will be judging the Bush administration's very notions of justice, and the world will be watching.

Everything's gotten further entangled in recent months, thanks in part to the Bush administration. On the one hand, a judge ruled that seventeen Chinese prisoners should be released from Guantánamo after being held there for seven years without evidence being produced against them. However, not long ago, the D.C. Circuit Court ruled that the CIA can hide torture allegations. The Pentagon has dropped charges against some Guantánamo prisoners so they can reset the clock to avoid deadlines for bringing them to trial, all with the full intent of reinstating charges later. CIA officers could be put on trial for alleged torture of a British resident. Just yesterday, "a Justice Department lawyer... urged a federal judge to continue the detention of six Algerians at the U.S. military prison in Guantanamo Bay, contending they would "take up arms" and attack Americans if released." Their lawyers claim the men, who have been held for seven years, are innocent. That's not to mention all the issues of torture and general treatment, as well as the problems of a trial system Scott Horton's called "The Great Guantánamo Puppet Theater."

There are many more sorry tales, of course. Bush spoke last year about shutting down Guantánamo, but unsurprisingly, he's left it to be someone else's problem. And as David H. Schanzer writes:

Bush's decision represents a victory for Vice President Dick Cheney, who, according to reports, believes that keeping the prison open under a new administration would 'validate' Bush's detention policies. But there is no redeeming the detention and prosecution system at Guantánamo -- a system that has produced only two convictions in seven years, has been rebuked by the Supreme Court three times and has caused four military prosecutors to step down in disgust.

I don't see how the Cheney-Bush policies could be "validated," but regardless, the Obama administration will have to confront those policies and their consequences. To that end, I wanted to take a closer look at an older argument by John Yoo that I think epitomizes the Bush approach toward justice.

Yoo, of course, features heavily in accounts of the Bush administration's efforts to legalize torture, and he remains a prominent advocate for their Guantánamo trial system. On December 3rd, 2007, shortly before the Supreme Court heard arguments about Guantánamo and habeas corpus in Boumediene v. Bush, NPR ran arguments from Georgetown professor David Cole and (current Berkeley professor) John Yoo. Cole basically argued that everyone deserves a trial. Yoo argued something very different, employing some interesting rhetoric in the process. You can hear both statements here (it runs 5:22), but I've transcribed Yoo's argument:

Tomorrow, lawyers in the Supreme Court will demand that terrorists held at Guantanamo Bay get their day in federal court. Sounds reasonable. But granting terrorists this right would make for unprecedented judicial micromanagement of war. The writ of habeas corpus has never benefited enemy POWs in war, any war. In World War II, the U.S. held millions of POWs. None were allowed to use our civilian courts against us, except for the rare case of citizens who joined the Axis.

In 1950, twenty-one Nazi war criminals captured in China brought a suit, exactly like this one. They had passed intelligence to the Japanese, even after Germany had surrendered. Justice Robert Jackson, who'd been the Nuremberg prosecutor, wrote for the court that granting their plea would hamper the war effort and bring aid and comfort to the enemy. His words are just as true today.

We can't expect our soldiers in the field to worry about warrants, lawyers and Miranda. Making the military act like a police force will dull the sharp edge of their spears. Until September 10th, 2001, we tried to rely solely on law enforcement to stop terrorism. I don't want the military to hold POWs arbitrarily. I don't want to hold civilians. The Pentagon doesn't want to be the world's jailer. Detainees are screened and reviewed multiple times. Only those who present the highest threat or have the most intelligence are sent to Guantanamo Bay. More procedures will mean less resources and less information for fighting al-Qaeda.

This is not a case of reining in an out-of-control president. The September 11th bombings put us at war. Congress authorized hostilities a week later. But in 2006, for the first the time in our nation's history, the Supreme Court tried to grant review of POW cases. Congress immediately overturned them in the Military Commissions Act. No court has ever challenged the president and Congress during war time. But our judges have already declared abortion, race and religion off-limits from the democratic process. Allowing them to interfere in core military decisions would represent yet another grasp of power by an imperial judiciary. This time, though, it may come at a steep cost.

Yoo's argument can be dissected and challenged many different ways, but I'd argue it's overflowing with implicit assertions that are challengeable, misleading or false. To go in rough order, he suggests that: all Guantánamo prisoners are terrorists, they are all guilty, civilian courts are the wrong method to deal with them, the Nuremberg trials support Yoo's argument, soldiers on a battlefield have to issue warrants and read Miranda rights to enemy combatants, a law enforcement approach to terrorism is ineffective, such an approach allowed the 9/11 attacks, John Yoo wants justice, all Guantánamo prisoners have been reviewed, they are all dangerous, using existing trial systems would endanger the "war on terror," using existing trial systems would somehow "interfere with core military decisions," giving due process to prisoners will somehow lead to "less resources and less information," Bush is not out of control, this is all about 9/11, Bush, Congress and the will of the people are being thwarted by the Supreme Court, which is overreaching as they always do, but this time in unprecedented and dangerous fashion, and it is the Supreme Court, not the Bush administration, that is acting in an "imperial" manner and must be curtailed – or else horrible things may happen. Whew! Shorter version: We know what we're doing, these are really bad guys who deserve to be punished, and don't question us.

It would take a long time to rebut every point of Yoo's thoroughly, and that's a key element to his technique – throw out as many claims as he can, make an emotional appeal, and try to sell some key falsehoods without anybody noticing. It generally takes longer to rebut a misleading claim than to make one. Feel free to challenge any of my characterizations above, or to delve into a different line of Yoo's, but when I first heard his argument, the line that leapt out at me and that has stuck with me almost a year later is: "None were allowed to use our civilian courts against us."

Yoo's got a pretty flat delivery if you listen to the audio, but to my ear it sounds like he's trying to sound wounded here – what a horrible, horrible thing this is – but regardless, it's a bizarre argument. How can a process of justice possibly be used "against us"? Doesn't justice entail punishing the guilty and exonerating that innocent? How can that possibly be bad? Yoo says these men are terrorists. Does Yoo mean that civilian courts can't be trusted to find them as such, to keep them imprisoned, or perhaps execute them? Does Yoo mean these men don't deserve trials, because that would be too good for them? Does he mean civilian courts or the normal military judicial system can't be trusted to punish these (supposedly) evil men sufficiently? I think this last one is precisely what he's implying, but even the most charitable reading doesn't hold up well for Yoo, because of a key, false premise implicit throughout his entire argument. He uses the word "terrorists" twice in two sentences, and later on throws in Nazis and 9/11 for good measure. Yoo is claiming all these men are guilty. They have done or tried to do us harm. He wants us to accept these premises without question. His other points are largely a smokescreen compared to selling this.

Now if only there was a way to determine the guilt or innocence of these men. Hmm.

Yoo is trying to sell a bypassing of existing systems of justice here, or really justice altogether. It's similar to what Cheney, Addington, Libby, Feith and others did with manipulating intelligence to sell the Iraq War. The Bush administration has often followed this pattern, asserting that it is right, it is infallible, and don't question it. Most arguments that Bush officials or their advocates have made in defense of Guantánamo (indefinite imprisonment, not bringing charges, the treatment of prisoners, the special trial system) have depended on Yoo's stealth thesis, that everyone they've imprisoned is guilty. I also think Yoo and his colleagues are appealing to fear, a desire for vengeance, and in some cases, bigotry. It's an element that deserves its own post, but their basic pitch is: These prisoners are guilty, they're foreign, they speak a different language, and they don't look like Peggy Noonan. Who can tell them apart? And why should you care about what happens to them? They're the Evil Other, and they're scary.

I'm not going to delve into every other point of Yoo's, but there are a few others I find interesting. His last rush, talking about activist judges and "abortion, race and religion" is rather odd, intentionally vague, and almost nonsensical. It sounds like a pander to right-wing attitudes, but that breaks with the "I'm a reasonable guy" persona he's trying to sell earlier. Still, if taken seriously, is Yoo suggesting fundamental rights should be decided by majority rule? Even if we say that Yoo is somehow defending the 'will of the people,' it contradicts his strong advocacy of unlimited power for the president. Most infamously, he asserted that no treaty or law could prevent the president from crushing the testicles of a child. Meanwhile, the "Miranda" talking point remains as popular as it is ludicrous among many conservatives, and at best is a slippery slope argument. On the war time powers front, in Boumediene v. Bush the Supreme Court somehow disagreed with the Yoo point of view, instead reaffirming that habeas corpus is a fundamental right that can only be suspended in times of rebellion or invasion. Glenn Greenwald has also delved into this issue on many occasions.

It's also noteworthy that Yoo cites Robert Jackson and invokes Nuremberg. (The case he cites, Johnson v. Eisentrager, is here. An overview is here, and refers to "German nationals" and not Yoo's more charged "Nazi war criminals." The Germans, in China, had told the Japanese about U.S. troop movements in China after Germany had surrendered, committing a crime significantly different from what was being prosecuted at Nuremberg.) In actuality, as many observers have noted, the Guantánamo trial system is the antithesis of the Nuremberg trials. Yoo also glosses over the fact that the Germans he mentions actually received a trial, something denied most Guantánamo prisoners for years. Scott Horton put it well when discussing the Hamdan trial at Guantánamo:

The Bush Administration could have handled this matter in the tradition that the nation’s greatest modern attorney general, Robert Jackson, set out at Nuremberg. Jackson personally took charge of the first prosecutions, delivering mesmerizing opening and closing statements and a dramatic cascade of evidence that targeted some of the most heinous criminals from the Second World War. Jackson had two important objectives before he reached the question of the guilt or innocence of the individual defendants: he needed to validate the fairness of the process, and he needed to demonstrate, clearly and convincingly in the eyes of the world, that heinous crimes had been committed which justified this extraordinary tribunal process. Jackson accomplished both goals. He also secured the conviction of key kingpins in the Nazi terror state. He did it all within the first year of the Allied occupation of Germany, through a process that helped transform the German people from enemies to friends. In the end, Jackson and his team demonstrated that the American tradition of justice was a potent tool to be wielded against the nation’s enemies.

By contrast, America has now endured seven years of an administration which fears the rule of law, which operates in the shadows as it contravenes criminal statutes and long-cherished traditions and retaliates mercilessly against civil servants who stand for law and principle. George Bush and his political advisors openly castigate law and justice as weaknesses or vulnerabilities–as public suspicions grow that they have darker reasons to be concerned about the law. Instead of following the historic route and using military commissions that follow the nation’s long-standing traditions, they have crafted embarrassing kangaroo courts. When the Supreme Court brought its gavel down on one of their shameful contraptions, they simply concocted another, equally shameful one, openly proclaiming an inferior brand of justice for those who were “not citizens,” exalting in the right to use torture-extracted evidence and to transact the proceedings in secret.

Or, as Lance Mannion put it, "Nuremberg? Nuremberg? Weren't the torturers the ones on trial in that one?"

Wouldn't have legitimate trials of actual terrorists, years ago, helped the Bush administration's crediblity? No one has ever said that actual, proven terrorists should not be kept in prison. Instead, critics of Guantánamo have pushed for due process, transparency, and humane treatment. They have pushed for justice, in an American tradition that includes Jackson at Nuremberg, but runs far deeper. That push for justice over the past seven years has come from both liberals and rule-of-law conservatives such as former Navy General Counsel Alberto Mora and members of the JAG corps.

Yoo's premises, so central to the Bush administration's approach to justice, don't hold up well to scrutiny. They can be tested in terms of rhetoric and logic, they can be examined in terms of case law - and they can be challenged by reality. A McClatchy series on Guantánamo has shown that the U.S. imprisoned or still holds dozens or even hundreds of men who are innocent. Furthermore:

The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren't "the worst of the worst." From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there.

There are more well known cases, too, but claiming that all these men are guilty - and so should be denied due process – becomes indefensible when one knows of innocent people, and also knows that the Bush administration knows they are innocent. The Bush administration's support for indefinite imprisonment without charges and an "inferior brand of justice" for those who actually receive a trial seems to hinge more on the issue of torture - admitting coerced confessions as evidence, squelching torture allegations, and never admitting blame. It's a subject treated in far greater depth in books such as Torture Team, The Dark Side and Angler, documentaries such as Torturing Democracy and Taxi to the Dark Side, and on quite a few blogs (legal and otherwise). There's a question of whether John Yoo and some of his compatriots could be found guilty of war crimes. Seen in that light, it's not just that they continue to deny prisoners justice – they want to evade justice themselves.

The Guantánamo prison has long been some nightmare out of Orwell and Kafka. Men and women in power who fear justice are not likely to want to see it pursued. Perhaps when John Yoo said, "none were allowed to use our civilian courts against us," he didn't mean "us" as in "Americans," but rather "us" as in "me and my colleagues." The Obama administration will have plenty of messes to clean up, but this one can go far in restoring America's image in the world. It may in fact be one of the starkest contrasts an Obama administration can make, re-establishing the American tradition of humane treatment, due process and justice for all, in opposition to the perverse notion that some are infallible, unaccountable, and "more equal than others."

OMG Liz Cheney was RIGHT!

Following up on this recent post, here's a nice piece of satire from Air Force Reserve Lt. Col. David Frakt, "who served as a defense lawyer for Guantánamo detainees in 2008 and 2009." It's called "Confessions of a terrorist sympathizer," and recounts an interview with Rachel Maddow too dangerous to air:

Maddow: Lt. Col. David Frakt is a JAG officer in the U.S. Air Force Reserve and a law professor in California. Professor Frakt, welcome back to the program.

Frakt: Happy to be here, Rachel.

Maddow: Is it true that you’re a terrorist sympathizer?

Frakt: Yes, Rachel. That’s why, in 2008, I volunteered to represent detainees at Guantánamo. The chance to actually be a U.S. government-paid spokesperson for al-Qaida under the guise of "promoting fairness, justice and the rule of law" was just too delicious an opportunity to pass up. I figured the military commissions at Guantánamo would be the perfect soapbox for me to espouse my terrorist ideology.

Maddow: And did your position as a defense counsel give you the opportunities that you were seeking?

Frakt: Not exactly, Rachel. The whole experience was a bit disappointing. Initially, things looked very positive. The first detainee I was assigned to represent, Ali Hamza al Bahlul, was a member of Osama bin Laden’s inner circle and a very committed al-Qaida member. In fact, he has been frequently referred to as the al-Qaida minister of propaganda. So, I thought I’d hit the jackpot.

Maddow: So why didn’t it work out?

Read the rest at the link.

Why Does Liz Cheney Hate Civilization?

If you follow politics, chances are you've seen the latest attack ad from the Orwellian-named organization Keep America Safe, run by Liz Cheney and Bill Kristol (and featuring the neocon stylings of Michael Goldfarb):



When I first saw this last week, my first reaction was a steady stream of profanity. It may be the most repulsive political ad I've ever seen. Cheney, Kristol and the gang aren't attacking specific people or policies per se. They are attacking the very notions of justice, of due process, of a fair legal system, and the rule of law. Everyone is entitled to a fair trial. (Actual terrorists tend to get convicted in fair trials.) A fair judicial system is one of the defining features of civilization.

This isn't some closely-held secret. It's basic civics.

Liz Cheney, Kristol and the rest are instead pushing a radical, bullying authoritarianism identical to that of any dictator. They are calling these lawyers the "Al Qaeda Seven," implying that they are in league with terrorists if not terrorists themselves. And put this ad in the context of their many other statements. Instead of a fair justice system, they insist that the government can merely accuse someone of being a terrorist, never provide proof, hold that person indefinitely, and never put him or her on trial. That person cannot see all of the charges against him or her. Nor should s/he have a lawyer, and any lawyer who provides the required representation is a traitor. Oh, and the government can torture and abuse prisoners as well – and false confessions obtained through torture can be used as proof against a prisoner.

Their attack ad is absolutely reprehensible, and should be widely and loudly condemned. But in a sense, this assault is nothing new. Cheney is really only articulating the core dogma of the Bush administration. Far right zealots have expressed the same basic views since 9/11, if not before. This is merely one of the most blatant, hostile, high-profile expressions of their doctrine of absolute, dictatorial, unaccountable power. And as many people have noted, these attacks are pure McCarthyism.

Many people have also noted that John Adams defended the British soldiers put on trial for the Boston Massacre (its anniversary was last week), and was proud to have done so. Upholding the rule of law and giving fair trials is the very essence of patriotism.

I was disgusted but unsurprised to see that CNN ran with Liz Cheney's "Department of Jihad" characterization and treated it seriously (CNN did offer an apology later, if a weak one). I was glad to see some conservative lawyers not only speak out, but draft a formal condemnation. Even David Rivkin and Lee Casey signed it, and they've zealously defended nearly every abuse of the Bush administration. (I've got a long, older post on Rivkin here.) When even leading torture apologists like Rivkin break with you, you know you've gone way too far.

Keep America Safe's key goals seem to have been "Keep Dick Cheney out of jail," "Start more wars," and "Fear-monger to raise cash." It looks like they've decided to add "Finish the destruction of the Constitution started under Bush/Cheney." You'd think that Liz Cheney would be ecstatic that to date, her dad Dick has dodged going on trial for war crimes. Why push their luck? And what would be worse, that Liz Cheney and Bill Kristol actually believe this vile bullshit they're shilling - or that they're cynically fear-mongering? I think they're simultaneously hacks and zealots, happy to lie but also true believers in some truly radical views. Regardless, they're claiming a fair judicial system is dangerous, and thus attacking the very foundations of civilization.

I've seen many good pieces on this despicable ad, so here's a round-up:

Spencer Ackerman: "Latest Conservative Smear Calls Justice Dept. Lawyers Terror-Sympathizers" (2/26/10)

Glenn Greenwald: "Salon Radio: The lawyers smeared by Liz Cheney" (3/3/10)

Digby: "Tearing Off Pieces" (3/4/10)

Dahlia Lithwick: "More Than Words: Liz Cheney says terrorists have no rights. Also, you're a terrorist." (3/5/10)

Greenwald: "The WP's employment of a fear-mongering smear artist" (3/5/10)

Crooks and Liars: "CNN Only Too Happy To Parrot Liz Cheney's Scare Tactics and Fear Mongering" (3/5/10)

Greenwald: "The full-scale collapse: From Murrow to Blitzer" (3/4/10)

C&L: "Blitzer Apologizes for "Any Confusion Caused" by "Department of Jihad?" Chryon" (3/5/10)

C&L: Rachel Maddow follow-up (3/6/10)

C&L: "Countdown: Conservatives Outraged With Liz Cheney's Fear Mongering" (3/6/10)

Balkinization: "John Adams Meets Joe McCarthy" (3/6/10)

Balkinization: "Have You No Sense of Decency?" (3/6/10)

Scott Horton: "Incompetent McCarthyism and Shared Belief" (3/8/10)

"Countdown: Ken Starr decries CheneyCo's shameless attacks on detainee defense attorneys" (3/8/10)

Digby: "Stale Cupcakes" (3/9/10)

C&L: "And You Thought We Left The Monarchy In England? Liz Cheney's Thinking of Running for Office" (3/9/10)

If, like me, you could use a laugh after all of Cheney's McCarthyism, here ya go. Of all the responses to the attack ad, so far Rachel Maddow's is the funniest:

Visit msnbc.com for breaking news, world news, and news about the economy

Maddow's done other pieces since (one's linked in the roundup above). And of course all this all continues. Predictably, torture apologist Marc Thiessen wrote an op-ed defending Cheney's McCarthyism. I'd like to delve into it in greater detail, but Steve Benen links some of the better debunks, and Scott Horton and David Luban also have good pieces on it.

 

Sensory Deprivation Op-Ed

(The original poster for the film The Road to Guantanamo.)

Too many good pieces on the torture memos have been written in the past few days, as well as too many atrocious torture apologist pieces, for me to link them all. I can't go through all the torture apologia pieces as thoroughly as with David Rivkin's inconsistent, disingenuous arguments. However, I did want to spend some time on the recent Wall Street Journal op-ed by former NSA and CIA head Michael Hayden and former Attorney General Michael Mukasey. It responds to Obama's release of four Bush era memos on torture, describing abusive techniques ranging from physical assault to psychological attacks to sensory deprivation to waterboarding. Hayden and Mukasey say the president has 'tied his own hands' in giving up torture, but they're attempting a little sensory deprivation of their own, trying to prevent the public from seeing the full truth of the war crimes committed by their colleagues in the Bush administration.

Michael Hayden has been running around quite a bit to argue against any investigation. As Scott Horton, discussing the memos on Democracy Now on Friday, April 17th, pointed out:

Well, I think if we have a little bit more candid Michael Hayden, we’d hear him saying something else. In fact, it was reported in Bart Gellman’s book Angler that around the time of the 2004 elections, he had a very, very strong focus on and fear of prosecution, if the things he was involved with should become public, a matter of public knowledge. And I think that’s what’s in the back of his mind here. I don’t think it’s national security at all.

Neither Hayden nor Mukasey is a disinterested party in all this. Hayden's legal jeopardy stems largely from other law-breaking by the Bush administration, but disclosures in one area may lead to more. It's not as if either of them wants the truth to come out, because even if they don't face legal jeopardy themselves, and their colleagues face greater danger of criminal convictions, their reputations could plummet. Still, this is a gamble – a poker bluff, lying about war crimes to prevent investigations and prosecutions. If they don't pull it off, their reputations could fall even further. (Presumably they feel in too deep for the more honorable route of whistle-blowing.)

There are several key lies in the Hayden-Mukasey piece. The first is that they avoid ever using the word "torture" even though the Red Cross report and U.S. statutes are clear on this - torture is precisely what was committed. The second is that they claim that torture works, and that American torture provided actionable intelligence. This specific claim ties into a general, false and horrendous notion that's been dangerously widespread in the past few days (and the past several years): that torture works, that other methods don’t, and that foregoing the cruel immorality of torture means we're at greater risk. John Yoo, Dick Cheney and most torture apologists have pushed exactly this line, however implicitly: investigate the war crimes we committed, and you'll all die horribly in a terrorist attack. It's a particularly evil piece of bullshit, but it's proved disappointingly effective and is often repeated uncritically in the corporate media. To quote the post on Rivkin:

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

You can read the full Hayden/Mukasey op-ed here, and Memeorandum links a number of responses. I'm going to go through the entire piece, paragraph by paragraph.

The President Ties His Own Hands on Terror
The point of interrogation is intelligence, not confession.

By MICHAEL HAYDEN and MICHAEL B. MUKASEY

The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

There are several falsehoods here. As Scott Horton pointed out on Democracy Now (linked above), the abuses started before these memos were issued, at the directive of the White House. The memos were ass-covering attempts because the CIA was worried about legal jeopardy if and when their actions became known. Cheney and others have tried to claim they authorized torture in response to CIA requests, but that's more ass-covering. (Jane Mayer's The Dark Side is one of the better accounts of what happened, and the excellent documentary Torturing Democracy can be viewed online.)

Hayden and Mukasey are correct that the point of interrogation is intelligence, not confessions, but they're trying to gloss over two crucial points. One, rapport-building is a far more effective interrogation technique, as testified to by U.S. military interrogator Matthew Alexander. Two, torture – what happened under Bush – produces false confessions, and can produce false intelligence that wastes resources and wears out agents, as it did with Abu Zubaydah (as chronicled by Ron Suskind in The One Percent Doctrine, among other sources). Hayden and Mukasey also push a familiar Bush line, that somehow, 9/11 occurred because the Bush administration was restrained by the law, as opposed to them ignoring imminent threat warnings and being horribly incompetent. This ties into the central lie they're pushing: foregoing the cruel immorality of torture means we're at greater risk.

Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.

This is a better written paragraph than many torture apologia pieces, because it's fairly accurate other than its conclusion. Hayden and Mukasey will save the bulk of their straw men for later.

Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.

Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president's right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.

"Absolute limit" is my favorite bit. The key lie here is that torture is effective, but outlawed, and because of that, evil terrorists will laugh at our expense and be able to operate without fear (twirling their mustaches as they do so). This ignores, once again, that torture is completely unreliable for producing accurate intelligence, and that rapport-building techniques are much more effective. "If only they'd let us torture these evil-doers, we'd all be safe!" This is very much a 24 fantasy, a chief inspiration for many Bush officials and completely contrary to the actual history of torture through the ages. In past conflicts, enemy soldiers have been relieved to be treated well by Americans and thus have been more willing to disclose information. Some enemy soldiers have been more willing to surrender, thus saving lives, because of the American reputation of treating prisoners humanely. American and British interrogators of Germans during WWII have denounced the Bush administration's torture policies.

Malcolm Nance, a former SERE instructor, wrote one of the definitive pieces on waterboarding. It's a fallacy to think it can be resisted indefinitely. Holding out for more than a few minutes is extraordinary, because it is controlled drowning, and the panic it creates is primal and overpowering. Waterboarding long enough will "break" anyone in the sense that he or she will beg for it to stop, but it does not "break" them in the sense of making them tell the truth. Torture typically produces false confessions, for obvious reasons – the victim will say anything to make the suffering stop. The ancient Romans used torture as punishment, but statements obtained through torture were inadmissible for this very reason. As I've argued before, given what's effective and what's not, and what's legal and moral and what's not, if you're approaching a prisoner asking, "How much pain can we inflict on him without breaking the law?" you're already on the wrong path, and a very dangerous one at that.

Moreover, disclosure of the details of the program pre-empts the study of the president's task force and assures that the suspension imposed by the president's executive order is effectively permanent. There would be little point in the president authorizing measures whose nature and precise limits have already been disclosed in detail to those whose resolve we hope to overcome. This conflicts with the sworn promise of the current director of the CIA, Leon Panetta, who testified in aid of securing Senate confirmation that if he thought he needed additional authority to conduct interrogation to get necessary information, he would seek it from the president. By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.

This is mostly a cheap charge of hypocrisy and promise-breaking combined with the key lie, that torture works and foregoing it endangers us.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

This may be the most obnoxious, repulsive paragraph of the entire piece. Hayden and Mukasey have the gall to pretend that outrage over torture and war crimes is somehow false, and that anyone who feels this way is a dupe of the media, while simultaneously, they outrageously lie about war crimes in a major media outlet to prevent justice. (Provide your own profanity.) I'd like to see them argue this one in court. They also show the same views as Cheney and the neocons, who embraced the views of The Arab Mind, a book that argues – falsely and dangerously - that Arabs only respect force, and thus humiliating them is a good idea. There's a quite a straw man here – who knew that the point of upholding human rights was to shame other countries into not mistreating prisoners? Clearly, torturing our prisoners will show them! Seriously, how utterly juvenile and vindictive is this world view? As John McCain said (in one of his principled moments), this is not about them, it's about us. Yet again, Hayden and Mukasey lie that torture will save us.

Which brings us to the next of the justifications for disclosing and thus abandoning these measures: that they don't work anyway, and that those who are subjected to them will simply make up information in order to end their ordeal. This ignorant view of how interrogations are conducted is belied by both experience and common sense. If coercive interrogation had been administered to obtain confessions, one might understand the argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001 attacks, among others, and who has boasted of having beheaded Daniel Pearl, could eventually have felt pressed to provide a false confession. But confessions aren't the point. Intelligence is. Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.

This paragraph is simply incoherent. Their use of "this ignorant view" is also awfully obnoxious, but the bigger problem is that Hayden and Mukasey construct an alternative reality here. In the first section, Hayden and Mukasey pretend that torture is the same as normal (effective, rapport-building) interrogation. Of course torture produces false confessions. It's unlikely that Hayden and Mukasey are ignorant of this, so more likely, they're lying. "If coercive interrogation had been administered to obtain confessions, one might understand the argument" is a lawyerly lie if ever there was one. Coercive interrogation was administered, and did produce false confessions – but Hayden and Mukasey claim those false confessions weren't the goal, and construct their sentence to deceptively suggest that neither coercive interrogation nor false confessions took place. They continue with the shell game here, conflating torture with legal and effective interrogation. They write that "But confessions aren't the point. Intelligence is." Notice they've shifted to discussing general principles and not what actually happened. They're talking about the goals of interrogation, and are largely correct, but this is to pretend once again that the Bush administration did not torture prisoners and produce false intelligence. Specifically, Khalid Sheikh Mohammed was tortured, and some of his information was very unreliable, including his "confession" to killing Daniel Pearl, since another prisoner had confessed to it already. And as we've noted before, the Bush administration based pre-war assertions about links between Iraq and Al Qaeda on statements from Ibn al-Shaykh al-Libi obtained through torture. Torture's very effective at producing convenient lies – that's one of the chief reasons it's used.

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.

In most accounts by non-Bushies, Abu Zubaydah served primarily as a travel agent and was mentally ill, made worse by extensive torture. According to The One Percent Doctrine, he was tortured in large part because Bush had talked him up in public and told CIA head George Tenet, "You're not going to let me lose face on this, are you?" (See the earlier linked Suskind excerpts for more.)

Dan Froomkin has tirelessly debunked claims of Bush era torture "working." In his response to the Hayden/Mukasey op-ed, he writes:

But as I've written previously Bin al Shibh was captured almost half a year after Zubaida was, and author Ron Suskind reported that the key information about his location came not from Zubaida but from an al-Jazeera reporter who had interviewed bin al Shibh and KSM at their safehouse apartment in Karachi. Zubaida also did not provide information that led to KSM's capture. Suskind reported that a tipster led the CIA directly to KSM and subsequently collected a $25 million reward.

It's not only Suskind saying this, either. As Froomkin notes in that previous post:

Jane Mayer, in her book The Dark Side, substantiates many of Suskind's findings, and concludes that "whatever their motives, it appears the President and the Director of Central Intelligence gave the public misleadingly exaggerated accounts of the effectiveness of the abuse they authorized. Some might impute dishonest motives to them. But it seems more likely that they fooled not just the public, but also themselves."

Hayden and Mukasey have a point when they write that "Any protestation of ignorance of those details, particularly by members of those committees, is pretense." Some members of Congress did know details, although others have claimed they were deceived or details were otherwise omitted, which would hardly be a first for the Bush administration. But say that Hayden and Mukasey are correct, and that the Bush administration not only bragged about their "successes" but were also entirely honest about the torture they used. So what? Do war crimes magically not become war crimes because they were revealed to other people in positions of power? They weren't somehow made legal, and certainly not moral. It's not as human rights activists haven't criticized congressional leaders for their reluctance to oversee and investigate all these affairs. Have a full investigation and disclosure, and may the chips fall where they may.

The techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions. As already disclosed by Director Hayden, as late as 2006, even with the growing success of other intelligence tools, fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations.

Well, if you only tortured a few of them, that's okay, then. This is a deliberately misleading account because torture occurred before the memos were issued, per White House directives. Moreover, this picture is grossly deceptive because, as Emptywheel notes, "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 comments, "There better be a pretty damned long fuse on that ticking time bomb. And yes, this is nothing but pure sadism."

Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits. Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government's argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.

Hayden and Mukasey are basically whining about Obama revealing what the Bush administration did. However, they also suggest once again that torture worked and that it was somehow legal.

There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world. Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering. The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue. Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees. Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.

The first sentence makes little sense. They seem to be arguing that revealing prisoner abuses is the real problem, not the abuses themselves. And Hayden and Mukasey have been conflating interrogation with torture throughout their entire op-ed, and do so again in this paragraph. Unconscionably, they suggest the "bad apple" view of Abu Ghraib, when it's well established at this point that the abuses at Abu Ghraib, Guantanamo, Bagram and other sites was the result of policy issued at the top. (See again Torturing Democracy, linked above, or Phillipe Sands' Torture Team: Rumsfeld's Memo and the Betrayal of American Values.) The talk about "alternative protocol" is obfuscation. At issue is the baseline treatment of prisoners, the core human rights every person is entitled to under U.S. and international law. We are talking about torture, which is immoral, and always illegal. Even if the CIA wasn't following the Army Field Manual, they would not be entitled to break those laws.

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001. Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America's role as a superpower. Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein's Iraq, or the many other purported grievances asserted over the past eight years.

This paragraph is pretty illogical and incoherent, and reminds me of one of Bush's craziest straw man arguments from years ago. Hayden and Mukasey are seriously suggesting that many people think the U.S. deserved the 9/11 attacks? And that such people are on the same side of those who dislike American power? This smells of an irrational attack on Europe and activists, and a lame attempt to discredit torture opponents. Or maybe it's flag-waving and fear-mongering as an irrational appeal. Yes, a number of attacks " took place long before the advent of CIA interrogations," but so what? Bush tried to claim that those same attacks occurred because we hadn't invaded Iraq yet. Hayden and Mukasey seem to be arguing that they occurred because we weren't torturing people. Or they're claiming that people didn't like us even before we started torturing people, so who cares if they don't like us now? Oh, also – torture and "the invasion of Saddam Hussein's Iraq" – make sure you mention the boogeyman by name – were both unnecessary and extremely harmful to the United States. Starting a war of choice and killing people needlessly, and torturing people needlessly, aren't "purported grievances," either. They're real. If you can come up with a more charitable interpretation of their paragraph, let me know, because it seems like utter crap in even the best light.

The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.

This really isn't hard. If a lawyer says murder is legal, it doesn't make it so. It's not as if the CIA and the Bush administration thought all this was legal to begin with, which is why they kept things as secret as they did and issued these ass-covering memos. Wow, the CIA needs to follow the Geneva Convention and not commit war crimes, which is such a burden, especially since torture does not work reliably for producing accurate intelligence and legal methods do.

Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.

Oh, please. Again, the OLC can't say something that's clearly illegal is legal. The issue is hardly "candor." The Bush administration aggressively attacked and undermined "candor." Angler is probably the best account, but Dick Cheney, David Addington, Donald Rumsfeld, George Bush and the rest actively squelched and punished dissent. They didn't want honest brokers. That’s why they hid major decisions even from key members of their own administration, and Cheney even spied on some of them. John Yoo, Bybee and the rest were either horribly incompetent lawyers in claiming that torture was legal (as well as warrantless surveillance and other abuses) or opportunist suck-ups, willing to say black was white to please their superiors. I'd say the evidence strongly points to the latter. What Hayden and Mukasey describe would not be an issue in a competent and relatively honest administration.

In his book "The Terror Presidency," Jack Goldsmith describes the phenomenon we are now experiencing, and its inevitable effect, referring to what he calls "cycles of timidity and aggression" that have weakened intelligence gathering in the past. Politicians pressure the intelligence community to push to the legal limit, and then cast accusations when aggressiveness goes out of style, thereby encouraging risk aversion, and then, as occurred in the wake of 9/11, criticizing the intelligence community for feckless timidity. He calls these cycles "a terrible problem for our national security." Indeed they are, and the precipitous release of these OLC opinions simply makes the problem worse.

Jack Goldsmith has said that he's no civil libertarian, but even so, he was appalled by many of the abuses of the Bush administration. This is subterfuge by Hayden and Mukasey, though. The issue is not one of "timidity and aggression." The issue is whether we're a nation of laws or not. According to U.S. and international statutes, torture must be investigated, and prosecuted where appropriate. "Following orders" is a mitigating factor but not an excuse. The Bush administration committed war crimes, and was warned off that course by members of its own administration such as Alberto Mora. What makes the situation "worse" is that we have people like this in power in the first place, and other people defending this monstrous conduct. It's shameful that, as the op-ed states:

Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009.

Aren't we proud. It would be nice if these two actually put duty to their country above loyalty to Bush, Cheney, the six men indicted in Spain and others, but personal honor and conscience have not exactly been the hallmark of the Bush administration. I'd really like to hear some of their reasoning offered up at trial and have it eviscerated. We need a full investigation, with people under oath. The truth needs to come out. We've seen time and time again that when high-ranking people aren't held accountable, they simply abuse power again. And while our national honor is at stake, these are also far from victimless crimes. I'll link once more the Firedoglake petition for AG Eric Holder to appoint a special prosecutor.

Hayden and Mukasey have penned a sensory deprivation op-ed. They seek to blind the public to what actually happened. They want to prevent citizens from hearing the word "torture." But all their attempts to deceive the public, hide the truth and prevent justice can't cover the rank stench of the war crimes committed by their colleagues.



(Cross-posted at Blue Herald)

Banality, Audacity and Delusion

After the International Red Cross Report describing the torture of prisoners and the release of four Bush era memos outlining abuse and torture, only the most delusional, dishonest and conscienceless of people can claim that torture didn't occur. Several observers (including Digby) have invoked Hannah Arendt's famous phrase, "the banality of evil," and it's apt, especially for Jay Bybee's dispassionate discussion of inflicting monstrosities. I wanted to look at three reactions to the latest revelations.

Dan Froomkin rounds-up several pieces, but Georgetown law professor David Cole provides one of the best early responses:

A child would recognize these tactics as cruel and inhumane. The United States itself treated waterboarding as torture when the Japanese used it against our troops in World War II. Yet through pages and pages of dense legal reasoning, the Office of Legal Counsel lawyers somehow reach the conclusion that these tactics, even when employed in combination and over a 30-day period, are not torture, and not even cruel, inhuman, or degrading.

President Obama should be commended for releasing these memos. But his simultaneous assertion that he will not seek to hold accountable those responsible for the wrongs so evident on the memos’ face is unacceptable. The line C.I.A. agents are not, however, the most culpable. Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the “constitutional conscience” of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed.

It is not enough to say that when we have a president who does not believe in cruel and inhuman treatment and torture, the United States will not engage in such practices – while leaving open the possibility that if we again elect a president who does believe in such practices, they can be revived as a policy option. We must formally acknowledge that what was done was wrong, indeed criminal. At the very least, a credible independent investigation must be undertaken. The Convention Against Torture, which we have signed and ratified, demands nothing less wherever there is any evidence that persons within our jurisdiction inflicted cruel, inhuman, or degrading treatment on another human being. These memos are that evidence.

Cole provides the human, just perspective.

Next up is John Hinderaker of Powerline. Not long ago, we looked at Hinderaker's torture apologia, claiming that waterbaording was not torture, all captured by Andrew Sullivan in "From the Pro-Torture Cocoon". Hinderaker outdoes himself here, however (my emphasis):

The Obama administration has made public four memos that were authored by the Justice Department between 2002 and 2005, in which lawyers from DOJ's Office of Legal Counsel responded to requests by the CIA for legal opinions as to whether harsh interrogation techniques, including waterboarding, could legally be used on a few high-level al Qaeda detainees. DOJ concluded, among other things, that the use of such techniques would not violate the statute that prohibits torture.

You can read the memos here. If you do, you will see that DOJ's lawyers grappled carefully and fairly with issues that are, by their nature, both difficult and distasteful. I find much to agree with in the memos and little, if anything, with which I disagree from a legal standpoint. Several things about the memos are striking: the concern that is shown for the health and well-being of the detainees; the very limited circumstances under harsh interrogation techniques were used (only when the CIA had reason to believe that the detainee had knowledge about pending terrorist attacks, among other limitations), and confirmation of the fact that thousands of American servicemen have been waterboarded and subjected to the other techniques in question, as part of their training --a practice that continued at least up to the dates of the memos.

I think the opinions were correct in substance; in any event, CIA officials were obviously justified in relying on them. In this context, the Obama administration's announcement that it will not prosecute the CIA personnel involved is evidently grandstanding. Of course they won't be prosecuted: to do so would be a double-cross of the worst sort, and the likelihood of getting a conviction would be nil. The fact is that the CIA officials who extracted valuable information from captured al Qaeda leaders--information that we have every reason to believe prevented successful terrorist attacks--are heroes. Their task was a thankless one, but, based on all the information we have, including the newly-released DOJ memos, they performed it well.

Judging from Hinderaker's previous, worshipful pieces on George W. Bush, I'm guessing some of this drivel is delusional authoritarianism, although that doesn't preclude disingenuousness as well. In previous posts (most recently, the Rivkin one), we've demolished the gossamer substance of all of Hinderaker's arguments. SERE training is not the same as torture. Waterboarding is torture. The Bush administration authorized and committed torture. The Red Cross report is clear on this, and the memos solidify the administration's role. Furthermore, there is no proof of actionable intelligence gained through this torture, and plenty of evidence pointing to the opposite. Hinderaker is definitely a hack, but I believe he's truly delusional, too.

Finally, let us check in with one of the most skilled and vigorous of torture apologists, David Rivkin, who writes (my emphasis):

No Harm, No Torture

The release of these memos comes at a high price. By describing in great detail the most assertive set of interrogation techniques, that the United States has ever used — having determined them after a great deal of reflection and analysis to be legal — we have rendered them essentially unusable in the future. This is precisely because these techniques were not torture, did not feature brute force and worked primarily because of their psychological dimension. Now, having been exposed, these techniques would be studied by our enemies, who will then train their operatives to withstand them.

However, while this disclosure came at a great price, it also provides a great benefit. The memos are well-written, and feature careful and nuanced legal analysis. They weave together the facts and the law. They are grounded in real world experience, because nine out of 10 techniques, used against high-value detainees, were also used over a period of many years in SERE training courses, with thousands and thousands of American participants.

This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage. The conclusions the memos reach — that the specific interrogation techniques used by the C.I.A. did not constitute torture — are eminently reasonable. To any fair-minded observer, these documents definitively establish that the Bush administration did not engage in torture. They go a long way toward rebutting shrill and unfair attacks on the integrity of Bush administration officials, and, more generally, on America’s honor.

The earlier post on Rivkin (linked above) debunks all of his claims except the new set here, in his analysis of the memos - he claims no fewer than three times that these techniques were not torture. (He's made that claim before, but not in relation to these specific memos.) Rivkin may believe some of what he says, but I believe he's too intelligent for that. He's again playing defense attorney here, lying to protect his clients, attacking the central charge – because every "fair-minded observer" knows this is torture. Indeed, some torture apologists admit it, but try to argue – falsely – that the torture was justified and effective at producing accurate, actionable intelligence. It's a standard defense for war criminals, but Rivkin is setting up his rampart further ahead. It's also interesting to see Rivkin's back to arguing that waterboarding is torture, after briefly admitting it was, and long insisting it wasn't.

David Cole represents the moral, human response to these atrocities. Jay Bybee and his colleagues represent the banality of evil. John Hinderaker represents the delusion of evil. And David Rivkin represents the audacity of evil. He has to know that this was torture, both illegal and immoral, but he doesn't care, and is eager to lie to the public to prevent justice.

I'll add that I'm rather sick of pundits complaining about "anger" and "retribution." The United States lead at Nuremberg in prosecuting war crimes. If you're not angry about the U.S. committing war crimes under the Bush administration, you're not paying attention - or you're a shill like Hinderaker and Rivkin. "Retribution" is properly the province of those directly harmed by these abuses. But they can join the rest of us in seeking justice.

Rivkin's welcome to offer his conscienceless, immoral, counterfactual bullshit in court, and I hope he gets the chance, because he's trying to forestall any sort of trial or official investigation. Let Rivkin, Bybee, Yoo and the lot make their statements under oath and under cross-examination. Surely, since they can prove their righteousness, they would welcome the vindication. Surely they would yearn to prove they are "heroes" and not war criminals or apologists for the same.

Here are petitions to impeach Jay Bybee and for AG Eric Holder to appoint a special prosecutor. Earthly justice would make a nice change of pace, wouldn't it?

(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)

The Red Cross Report on Torture

If you haven’t read Mark Danner's lengthy piece for the New York Review of Books on the Red Cross report on the treatment of "high value" prisoners, do check it out. It's harrowing stuff. Alternatively, Dan Froomkin provides an excellent overview, and Danner discussed the piece on Democracy Now. (Funny that many major new organizations haven't given it that much coverage, and many politicians aren't mentioning it, either.)

I'll cover some of the highlights here, including Danner's summary:

Far and away the greatest damage, though, was legal, moral, and political. In the wake of the ICRC report one can make several definitive statements:

1. Beginning in the spring of 2002 the United States government began to torture prisoners. This torture, approved by the President of the United States and monitored in its daily unfolding by senior officials, including the nation's highest law enforcement officer, clearly violated major treaty obligations of the United States, including the Geneva Conventions and the Convention Against Torture, as well as US law.

2. The most senior officers of the US government, President George W. Bush first among them, repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public. The President lied about it in news conferences, interviews, and, most explicitly, in speeches expressly intended to set out the administration's policy on interrogation before the people who had elected him.

3. The US Congress, already in possession of a great deal of information about the torture conducted by the administration—which had been covered widely in the press, and had been briefed, at least in part, from the outset to a select few of its members—passed the Military Commissions Act of 2006 and in so doing attempted to protect those responsible from criminal penalty under the War Crimes Act.

4. Democrats, who could have filibustered the bill, declined to do so—a decision that had much to do with the proximity of the midterm elections, in the run-up to which, they feared, the President and his Republican allies might gain advantage by accusing them of "coddling terrorists." One senator summarized the politics of the Military Commissions Act with admirable forthrightness:

Soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.

Senator Barack Obama was only saying aloud what every other legislator knew: that for all the horrified and gruesome exposés, for all the leaked photographs and documents and horrific testimony, when it came to torture in the September 11 era, the raw politics cut in the other direction. Most politicians remain convinced that still fearful Americans—given the choice between the image of 24 's Jack Bauer, a latter-day Dirty Harry, fantasy symbol of untrammeled power doing "everything it takes" to protect them from that ticking bomb, and the image of weak liberals "reading Miranda rights to terrorists"—will choose Bauer every time. As Senator Obama said, after the bill he voted against had passed, "politics won today."

5. The political damage to the United States' reputation, and to the "soft power" of its constitutional and democratic ideals, has been, though difficult to quantify, vast and enduring. In a war that is essentially an insurgency fought on a worldwide scale—which is to say, a political war, in which the attitudes and allegiances of young Muslims are the critical target of opportunity—the United States' decision to use torture has resulted in an enormous self-administered defeat, undermining liberal sympathizers of the United States and convincing others that the country is exactly as its enemies paint it: a ruthless imperial power determined to suppress and abuse Muslims. By choosing to torture, we freely chose to become the caricature they made of us.

Danner's conclusion on Democracy Now is also a good summing up:

Well, I think that there are a number of things you can say about torture. The first thing is that it’s illegal, very illegal, under international and domestic law. The second thing you can say is that it’s politically damaging, enormously damaging, particularly in a war, the so-called war on terror, which is a political war. It’s essentially a worldwide counterinsurgency in which you are trying to persuade young Muslims, first of all, not to support al-Qaeda, not to join al-Qaeda, not to support a war, an insurgency, against the United States. So it’s politically damaging and illegal. These things are a matter of record. Third, it makes justice impossible. You end up with a bunch of prisoners in Guantanamo who, because they’ve been tortured, cannot be prosecuted.

ThinkProgress posted some of Danner's C-Span appearance, where he expressed the frustration of many who'd like to see justice done:



One passage in particular stuck out to me:

DANNER: I think the definitional question is extremely important, and as I mentioned a moment ago, I think it’s extremely important to get by it already. We’re debilitated in that by some degree by the practices of the American press, frankly, which is that as long as the president or people in power continue to cling to a definition that they assert is the truth — as President Bush did when it came to torture, he said repeatedly the United States does not torture — the press feels obliged to report that and consider the matter as a question of debate.

This journalistic gutlessness is maddening, and part of the problem we examined in "Rivkin's Protean Logic on Torture" (and more generally in two earlier posts).

When Cheney was interviewed recently by CNN suckup John King, Cheney's attacks on Obama and defense of his own conduct were both unsurprising and shameless. So were several media reactions. The post on Rivkin included the line, "investigating the Bush administration will be all the more difficult given a Beltway class that views calling someone a war criminal as a far worse sin than actually committing war crimes." Obama obviously didn't go that far, and King never would, but sure enough, several Beltway journalists were more scandalized by Obama's press secretary pushing back against Cheney than they were by the former vice president probably being guilty of war crimes. They also weren't terribly concerned about John King not pressing Cheney on any of his highly questionable claims or his legal jeopardy. DDay, Glenn Greenwald and DougJ at Balloon Juice have more on this, and as DougJ observes, "Dick Cheney still has higher status in the Village than Barack Obama. It’s that simple." It sometimes truly astounds me how shallow and venal our press corps is.

The Obama administration is releasing some more Bush era torture memos, and this is good, but much more needs to be done. As Scott Horton spells out in "Dereliction of Duty," Attorney General Eric Holder should be following the law and opening a criminal investigation.

Dan Froomkin has more in his roundup on "The Cheney Reaction." Andrew Malcolm glossing over Cheney's crimes and chiding Obama for responding to Cheney in "detail" proves once again that Malcolm is an ass and a hack. Meanwhile, Cheney's fellow Republicans are not happy with him running about, drawing attention to Bush administration misdeeds. Froomkin also links Scott Horton, who observes::

Sunday evening, President Obama responded in some detail to Dick Cheney’s claims that the security of all Americans depends upon imprisoning innocent people in depraved conditions outside of the rule of law. As Professor Jonathan Turley notes, the curious thing about Obama’s response is that it is so mild. Cheney’s statements are tantamount to an admission of his involvement in a serious criminal conspiracy. Moreover, Cheney actually brags about his criminality—he insists that he’s doing it because it’s good for us. When prosecutors decide which cases to charge, one concern is whether the crime has been committed in an open and notorious way. Cheney’s conduct on this score is off the charts. As Turley says, “This is the best defined and most public crime I’ve seen in my lifetime.” Cheney is effectively building the case for his own criminal prosecution. It needs to happen, preferably before another coronary incident robs us of the opportunity to bring a serious criminal to justice.

Horton posts the video of Turley on Rachel Maddow's show, and Turley offers a great overview of the legal issues here, the stakes for our country if justice is ignored, the radical nature of the Bush administration's crimes, and the Obama administration's reluctance to push ahead:

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

It's essential that the Obama administration continues to be pressured on seeing that justice is done.

(Bonus Scott Horton: "Lie About How We Treated You and You Can Go Free." That one hasn't changed.)

(Cross-posted at Blue Herald)