Jane Mayer has an extraordinary article in the New Yorker today. It's on the efforts of Alberto J. Mora, then the general counsel of the Navy, to work against the interrogation policies detailed in the various 'torture memos'. It's worth reading in its entirety, and I won't try to summarize it. I will, however, highlight a few themes below the fold.
First: In response to the Abu Ghraib scandal and its various relatives, some conservative bloggers (mercifully, none here) have tried to argue that people who are worried about torture, extraordinary rendition, and so forth, must either be liberals motivated by a hatred of Bush and all his works, or else not serious about combatting terrorism. I have always felt that this is wrong in lots of different ways, but one of them surely is to discount the number of very serious people who are deeply troubled by this administration's actions, and who are also, by any definition, very conservative. Mora is one of them, and one of the sources of his opposition to torture is his parents' experience of totalitarianism:
"Mora—whose status in the Pentagon was equivalent to that of a four-star general—is known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed. A senior Defense Department official, whom the Bush Administration made available as a spokesman, on the condition that his name not be used, did so as well. Mora and the official both declined to elaborate on internal Department of Defense matters beyond those addressed in the memo. Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee. He strongly supported the Administration’s war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. “It’s my Administration, too,” he said."
But he was plainly horrified by the administration's detention policy, for reasons that have everything to do with both anti-Communism and his devotion to American ideals:
"Mora was a well-liked and successful figure at the Pentagon. Born in Boston in 1952, he is the son of a Hungarian mother, Klara, and a Cuban father, Lidio, both of whom left behind Communist regimes for America. Klara’s father, who had been a lawyer in Hungary, joined her in exile just before the Soviet Union took control. From the time Alberto was a small boy, Klara Mora told me, he heard from his grandfather the message that “the law is sacred.” For the Moras, injustice and abuse were not merely theoretical concepts. One of Mora’s great-uncles had been interned in a Nazi concentration camp, and another was hanged after having been tortured. Mora’s first memory, as a young child, is of playing on the floor in his mother’s bedroom, and watching her crying as she listened to a report on the radio declaring that the 1956 anti-Communist uprising in Hungary had been crushed. “People who went through things like this tend to have very strong views about the rule of law, totalitarianism, and America,” Mora said. (...)
The day after Mora’s first meeting with Brant, they met again, and Brant showed him parts of the transcript of Qahtani’s interrogation. Mora was shocked when Brant told him that the abuse wasn’t “rogue activity” but was “rumored to have been authorized at a high level in Washington.” The mood in the room, Mora wrote, was one of “dismay.” He added, “I was under the opinion that the interrogation activities described would be unlawful and unworthy of the military services.” Mora told me, “I was appalled by the whole thing. It was clearly abusive, and it was clearly contrary to everything we were ever taught about American values.
Mora thinks that the media has focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. “To my mind, there’s no moral or practical distinction,” he told me. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.”
Mora said that he did not fear reprisal for stating his opposition to the Administration’s emerging policy. “It never crossed my mind,” he said. “Besides, my mother would have killed me if I hadn’t spoken up. No Hungarian after Communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty.” He added, “The debate here isn’t only how to protect the country. It’s how to protect our values.”"
I expect that I would probably disagree with Mora on a whole host of issues, but he's the kind of political opponent I very badly want to have -- a man of honor, committed to American values, and willing to fight for them; not a craven sycophant like the guys at PowerLine, who are willing to abandon both their country's most basic values and their intellectual integrity in the service of George W. Bush. And one way to put one of my aspirations in politics is to say: I want to be the sort of person about whom, if he knew me, he might say the same thing. We should all, I think, aspire to that.
Second: In addition to the conservatives who disagreed with the administration's policies, professionals of various kinds seem to have been particularly likely to disagree. Mayer's story provides more evidence of this. First, the reason Mora heard about interrogation practices at all was that a professional interrogator had had serious concerns, and had brought them to one of his superiors, who in turn brought them to Mora:
"Much of Brant’s information had been supplied by an N.C.I.S. psychologist, Michael Gelles, who worked with the C.I.T.F. and had computer access to the Army’s interrogation logs at Guantánamo. Brant told me that Gelles “is phenomenal at unlocking the minds of everyone from child abusers to terrorists”; he took it seriously when Gelles described the logs as shocking.
The logs detailed, for example, the brutal handling of a Saudi detainee, Mohammed al-Qahtani, whom an F.B.I. agent had identified as the “missing twentieth hijacker”—the terrorist who was supposed to have been booked on the plane that crashed in a Pennsylvania field. Qahtani was apprehended in Afghanistan a few months after the terrorist attacks.
Qahtani had been subjected to a hundred and sixty days of isolation in a pen perpetually flooded with artificial light. He was interrogated on forty-eight of fifty-four days, for eighteen to twenty hours at a stretch. He had been stripped naked; straddled by taunting female guards, in an exercise called “invasion of space by a female”; forced to wear women’s underwear on his head, and to put on a bra; threatened by dogs; placed on a leash; and told that his mother was a whore. By December, Qahtani had been subjected to a phony kidnapping, deprived of heat, given large quantities of intravenous liquids without access to a toilet, and deprived of sleep for three days. Ten days before Brant and Mora met, Qahtani’s heart rate had dropped so precipitately, to thirty-five beats a minute, that he required cardiac monitoring.
Brant told me that he had gone to Mora because he didn’t want his team of investigators to “in any way observe, condone, or participate in any level of physical or in-depth psychological abuse. No slapping, deprivation of water, heat, dogs, psychological abuse. It was pretty basic, black and white to me.” He went on, “I didn’t know or care what the rules were that had been set by the Department of Defense at that point. We were going to do what was morally, ethically, and legally permissible.” Recently declassified e-mails and orders obtained by the American Civil Liberties Union document Brant’s position, showing that all C.I.T.F. personnel were ordered to “stand clear and report” any abusive interrogation tactics.
Brant thinks that the Army’s interrogation of Qahtani was unlawful. If an N.C.I.S. agent had engaged in such abuse, he said, “we would have relieved, removed, and taken internal disciplinary action against the individual—let alone whether outside charges would have been brought.” Brant said he feared that such methods would taint the cases his agents needed to make against the detainees, undermining any attempts to prosecute them in a court of law. He also doubted the reliability of forced confessions. Moreover, he told me, “it just ain’t right.”"
Mora, in turn, was concerned not just because he thought that these practices were immoral and contrary to American values. He also thought that they would be harmful to the military, that they would taint future prosecutions of terrorists on whom they had been used, and that they were flatly illegal. Here's his take on a memo by John Yoo:
"There was only one copy of the opinion, and it was kept in the office of the Air Force’s general counsel, Mary Walker, whom Rumsfeld had appointed to head the working group. While Walker sat at her desk, Mora looked at the document with mounting disbelief; at first, he thought he had misread it. There was no language prohibiting the cruel, degrading, and inhuman treatment of detainees. Mora told me that the opinion was sophisticated but displayed “catastrophically poor legal reasoning.” In his view, it approached the level of the notorious Supreme Court decision in Korematsu v. United States, in 1944, which upheld the government’s internment of Japanese-Americans during the Second World War. (...)
In Yoo’s opinion, he wrote that at Guantánamo cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.
“The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority,” Mora wrote in his account. Yoo’s opinion didn’t mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker’s union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President’s war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified. (...)
Mora concluded that Yoo’s opinion was “profoundly in error.” He wrote that it “was clearly at variance with applicable law.” When we spoke, he added, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law.” A few days after reading Yoo’s opinion, he sent an e-mail to Mary Walker, saying that the document was not only “fundamentally in error” but “dangerous,” because it had the weight of law. When the Office of Legal Counsel issues an opinion on a policy matter, it typically requires the intervention of the Attorney General or the President to reverse it.
Walker wrote back, “I disagree, and I believe D.O.D. G.C.”—Haynes, the Pentagon’s general counsel—“disagrees.”"
Now: I am not a lawyer. But one of the few things I do know about the law is that if you're going to write a memo on the law governing presidential powers in cases where Congress might be taken to have forbidden what the President plans to do, you just cannot not cite Youngstown. It would be like writing a memo on freedom of the press without mentioning the first amendment. It speaks volumes that an administration lawyer could not just write a memo on that subject without mentioning one of the central controlling cases, but be taken seriously afterwards.
It's also one more example of the belief, which a lot of influential members of the administration seem to have held, that they knew better than everyone. When army generals questioned their assumptions about how many troops were needed in Iraq, they knew better; when lawyers told them that their interrogation policies are flatly unlawful, they knew better; when interrogators told them those interrogation techniques were unlikely to work, they knew better; when diplomats warned of the consequences to America's national interests of policies like torture and extraordinary rendition, they knew better. Sometimes people do know better than everyone. Sometimes you go out on a limb and you're right. But when you decide to ignore all the experts, you're taking an enormous gamble; and when you do so repeatedly, you should probably stop and consider the possibility that when so many people disagree with you, they might be right. But this administration never seems to have entertained any such self-doubt, even now, when you'd think their own dismal track record might tip them off.
Third: Mora also warned that the administration's actions might open its members to prosecution:
"Mora told Haynes that, if the Pentagon’s theories of indemnity didn’t hold up in the courts, criminal charges conceivably could be filed against Administration officials. He added that the interrogation policies could threaten Rumsfeld’s tenure, and could even damage the Presidency. “Protect your client!” he said."
Fourth: Kevin Drum has already flagged this episode, but it's so extraordinary that I have to flag it too. Mora threatened to put his objections into an official memo if the detention policies weren't changed:
On January 15th, Mora took a step guaranteed to antagonize Haynes, who frequently warned subordinates to put nothing controversial in writing or in e-mail messages. Mora delivered an unsigned draft memo to Haynes, and said that he planned to “sign it out” that afternoon—making it an official document—unless the harsh interrogation techniques were suspended. Mora’s draft memo described U.S. interrogations at Guantánamo as “at a minimum cruel and unusual treatment, and, at worst, torture.”
By the end of the day, Haynes called Mora with good news. Rumsfeld was suspending his authorization of the disputed interrogation techniques. The Defense Secretary also was authorizing a special “working group” of a few dozen lawyers, from all branches of the armed services, including Mora, to develop new interrogation guidelines.
Mora, elated, went home to his wife and son, with whom he had felt bound not to discuss his battle. He and the other lawyers in the working group began to meet and debated the constitutionality and effectiveness of various interrogation techniques. He felt, he later told me, that “no one would ever learn about the best thing I’d ever done in my life.”
John Yoo then produced the memo I mentioned earlier, arguing against Mora's views; and the working group produced a draft based on Yoo's arguments:
"A few days after his meeting with Yoo, Mora confronted Haynes again. He told him that the draft working-group report was “deeply flawed.” It should be locked in a drawer, he said, and “never let out to see the light of day again.” He advised Haynes not to allow Rumsfeld to approve it.
In the spring of 2003, Mora waited for the final working-group report to emerge, planning to file a strong dissent. But the report never appeared. Mora assumed that the draft based on Yoo’s ideas had not been finalized and that the suspension of the harsh techniques authorized by Rumsfeld was still in effect.
In June, press accounts asserted that the U.S. was subjecting detainees to “stress and duress” techniques, including beatings and food deprivation. Senator Patrick Leahy, Democrat of Vermont, wrote to Secretary of State Condoleezza Rice, asking for a clear statement of the Administration’s detainee policy. Haynes wrote a letter back to Leahy, which was subsequently released to the press, saying that the Pentagon’s policy was never to engage in torture, or cruel, inhumane, or degrading treatment—just the sort of statement Mora had argued for. He wrote in his memo that he saw Haynes’s letter as “the happy culmination of the long debates in the Pentagon.” He sent an appreciative note to Haynes, saying that he was glad to be on his team."
But Mora was operating on the assumption that Haynes and others in the administration were being truthful with him. Oops!
"(Mora) was further taken aback when he learned, while watching Senate hearings on Abu Ghraib on C-SPAN, that Rumsfeld had signed the working-group report—the draft based on Yoo’s opinion—a year earlier, without the knowledge of Mora or any other internal legal critics. Rumsfeld’s signature gave it the weight of a military order. “This was the first I’d heard of it!” Mora told me. Mora wrote that the Air Force’s deputy general counsel, Daniel Ramos, told him that the final working-group report had been “briefed” to General Miller, the commander of Guantánamo, and General James Hill, the head of the Southern Command, months earlier. (The Pentagon confirmed this, though it said that the generals had not seen the full report.) “It was astounding,” Mora said. “Obviously, it meant that the working-group report hadn’t been abandoned, and that some version of it had gotten into the generals’ possession.”
The working-group report included a list of thirty-five possible interrogation methods. On April 16, 2003, the Pentagon issued a memorandum to the U.S. Southern Command, approving twenty-four of them for use at Guantánamo, including isolation and what it called “fear up harsh,” which meant “significantly increasing the fear level in a detainee.” The Defense Department official told me, “It should be noted that there were strong advocates for the approval of the full range of thirty-five techniques,” but Haynes was not among them. The techniques not adopted included nudity; the exploitation of “aversions,” such as a fear of dogs; and slaps to the face and stomach. However, combined with the legal reasoning in the working-group report, the April memorandum allowed the Secretary to approve harsher methods.
Without Mora’s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in Haynes’s letter to Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. “It seems that there was a two-track program here,” said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. “Otherwise, why would they share the final working-group report with Hill and Miller but not with the lawyers who were its ostensible authors?”"
Just to be clear about this: According to the New Yorker, Mora is a political appointee, not a holdover from some previous administration that the Bush administration found itself stuck with. He was their guy. He had the effrontery to disagree with John Yoo, William Haynes, and David Addington, and as a result he didn't just lose an internal argument, he was completely shut out of the process, and not told about the final product of a group that he was a member of. That's just incredible -- and it's no way to run an organization.
There are a lot of problems with secrecy and the suppression of internal dissent, and one of them is that if you either muzzle or hide things from people who are likely to disagree with you, you're much more likely to make bad decisions. When you allow people to argue for different points of view before a position is adopted, and expect them to fall in line only afterwards, you're much more likely to hear good objections to the policy you start out supporting, or to think of possible consequences you hadn't thought of; and thus you're much more likely to reject that policy if, on reflection, it turns out not to be such a good idea. But if you exclude people who disagree with you from policy deliberations, or keep them in the dark entirely, you're much more likely to end up making ill-considered, and sometimes disastrous, choices.
It takes, um, an unusual administration to produce the combination of morally abhorrent combination and sheer incompetence that we've seen from the Bush administration. It's not as though they weren't warned:
"Mora asked Haynes to think about the techniques more carefully. What did “deprivation of light and auditory stimuli” mean? Could a prisoner be locked in a completely dark cell? If so, could he be kept there for a month? Longer? Until he went blind? What, precisely, did the authority to exploit phobias permit? Could a detainee be held in a coffin? What about using dogs? Rats? How far could an interrogator push this? Until a man went insane?"
And it's not as though it's so very hard to figure out that if, for instance, you reward people for producing dreadful legal arguments that tell you what you want to hear, you'll end up in legal trouble. But if you assume that you're right at the outset, and therefore that you don't need to listen to people who disagree with you, it's almost inevitable. I just wish the consequences of this fell where they belong, on the people who put these policies in place, and not on our soldiers, detainees who were picked up by bounty hunters somewhere in Pakistan, and others who had nothing to do with these decisions.
And I want basic managerial competence to be a prerequisite for people who run for President.
And a pony.
PS: I'll be away for a week, starting sometime tomorrow afternoon. I don't know whether I'll have either the time to blog or an internet hookup. Have fun!