Obsidian Wings

More Inhumanity

by hilzoy

I haven't yet gotten my preordered copy of Jane Mayer's new book on torture. But other people have, and it sounds horrific, in the way that a very well-sourced book by a very good journalist on how this administration, in her words, made "torture the official law of the land in all but name." Andrew Bacevich has a great review of it here (that's where I got the quote I just used from). The NYT writes:

"Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency’s interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes"

Steve Clemons is hosting a discussion about the book tomorrow at 9:30; he'll have streaming video at his site. Frank Rich writes about it here; and Scott Horton has a great interview with Mayer, including the story of an internal probe into homicides in detention, done by the CIA's Inspector General, and shut down after a series of meetings between the IG and Dick Cheney. Mayer:

"Helgerson’s 2004 report had been described to me as very disturbing, the size of two Manhattan phone books, and full of terrible descriptions of mistreatment. The confirmation that Helgerson was called in to talk with Cheney about it proves that–as early as then–the Vice President’s office was fully aware that there were allegations of serious wrongdoing in The Program.

We know that in addition, the IG investigated several alleged homicides involving CIA detainees, and that Helgerson’s office forwarded several to the Justice Department for further consideration and potential prosecution. The only case so far that has been prosecuted in the criminal courts is that involving David Passaro—a low-level CIA contractor, not a full official in the Agency. Why have there been no charges filed? It’s a question to which one would expect that Congress and the public would like some answers."

Then there's this, from the Washington Post, which seems to me to encapsulate much of what I hate about this administration:

Inhuman

by hilzoy

From Reuters:

" A newly-released document suggests Osama bin Laden's former driver may have been subjected to 50 days of sleep deprivation at the Guantanamo prison camp in Cuba, the prisoner's defense lawyers said on Monday.

Lawyers for Salim Hamdan, a Yemeni in his late 30s, previously alleged Hamdan was beaten and abused. But they said sleep deprivation for 50 days, if proved, would be among the worst abuse he suffered at the hands of his American captors. (...)

Hamdan's lawyers said they discovered the document among 600 pages of "confinement" evidence handed over to the defense team on Saturday, 9 days before trial. It said Hamdan was put into "Operation Sandman" between June 11 and July 30, 2003.

Operation Sandman has been described in press reports as a program devised by behavioral scientists where an inmate's sleep is systematically interrupted.

"My view personally is that sleep deprivation of that nature extending for 50 days would constitute torture," said Joseph McMillan, one of Hamdan's civilian lawyers."

It would.

With A Broomstick

by hilzoy

I read this report last week, but it has taken me a while to blog it. It's too awful. It's by Physicians for Human Rights. They found and interviewed eleven detainees, held in Guantanamo, Iraq, and Afghanistan, about their treatment. They then gave them medical exams to see whether their various claims about that treatment held up. You should read the Executive Summary at least, and probably the whole report.

What got the most play was a statement from the preface by Maj. Gen. Antonio Taguba (ret.):

"After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

What got me, though, were the details:

"Amir is in his late twenties and grew up in a Middle Eastern country. He was a salesman before being arrested by US forces in August 2003 in Iraq. After his arrest, he was forced, while shackled, to stand naked for at least five hours. For the next three days, he and other detainees were deprived of sleep and forced to run for long periods, during which time he injured his foot. After Amir notified a soldier of the injury, the soldier threw him against a wall and Amir lost consciousness. Ultimately, he was taken to another location, where he was kept in a small, dark room for almost a month while being subjected to interrogations that involved shackling, blindfolding, and humiliation. Approximately one month later, he was transferred to Abu Ghraib. At first he was not mistreated, but then was subjected to religious and sexual humiliation, hooding, sleep deprivation, restraint for hours while naked, and dousing with cold water. In the most horrific incident Amir recalled experiencing, he was placed in a foul-smelling room and forced to lay face down in urine, while he was hit and kicked on his back and side. Amir was then sodomized with a broomstick and forced to howl like a dog while a soldier urinated on him. After a soldier stepped on his genitals, he fainted. In July 2004, he was transferred to the prison and eventually hooded, shackled, and transferred to the prison at Camp Bucca, where he reported no abuse. He was
returned to Abu Ghraib in November 2004 and released two days later.

Amir continues to experience physical symptoms consistent with the abuse he reported. Physical examination revealed features consistent with his account, including tenderness of one of his testicles and rectal tearing. Psychologically, he continues to suffer from debilitating symptoms of severe PTSD, disturbed sleep, moodiness, anxiety, sexual dysfunction, hostility and outbursts of anger, and very frequent suicidal thoughts. He has changed from a stable provider for his family to an unemployed man. Although stressors related to the war in Iraq may exacerbate his symptoms, his most debilitating symptoms are attributable to his experience of torture and sexual violation. “No sorrow can be compared to my torture experience in jail,” he said. “That is the reason for my sadness.”"

That's the short version. The long version is worse. And that's just one story. There are eleven.

Seven of the eleven have major depression to this day; in one case, it's severe enough that the psychiatrist who examined the man recommended immediate hospitalization. (Of course, there is no way to actually make this happen.) Ten have full-blown PTSD. All have various lingering physical problems. All but one report "profound life difficulties and disruptions after their release from detention" (p. 92), which is what you'd expect, given that almost all of them have major psychiatric problems, and serious physical problems, as a result of their treatment.

Or, to put it more simply: we took these people and broke their lives apart, and not only have we done nothing whatsoever to help undo the damage, we have barely begun begun to hold the people who did this accountable for what they did. (And I'm not thinking of the actual guards at Abu Ghraib; I'm thinking of the people who set the policies that made this kind of treatment virtually inevitable.)

I never thought a report on things that were done in my name would include sentences like: "Examination of the peri-anal area showed signs of rectal tearing that are highly consistent with his report of having been sodomized with a broomstick." I never thought my country would fall this low.

Back In The USSR

by hilzoy

From the Washington Post:

"The U.S. government has injected hundreds of foreigners it has deported with dangerous psychotropic drugs against their will to keep them sedated during the trip back to their home country, according to medical records, internal documents and interviews with people who have been drugged.

The government's forced use of antipsychotic drugs, in people who have no history of mental illness, includes dozens of cases in which the "pre-flight cocktail," as a document calls it, had such a potent effect that federal guards needed a wheelchair to move the slumped deportee onto an airplane. (...)

Involuntary chemical restraint of detainees, unless there is a medical justification, is a violation of some international human rights codes. The practice is banned by several countries where, confidential documents make clear, U.S. escorts have been unable to inject deportees with extra doses of drugs during layovers en route to faraway places.

What Is Done In Our Name

by hilzoy

From the NYT:

"Next month, Salim Ahmed Hamdan, a Yemeni who was once a driver for Osama bin Laden, could become the first detainee to be tried for war crimes in Guantánamo Bay, Cuba. By now, he should be busily working on his defense.

But his lawyers say he cannot. They say Mr. Hamdan has essentially been driven crazy by solitary confinement in an 8-foot-by-12-foot cell where he spends at least 22 hours a day, goes to the bathroom and eats all his meals. His defense team says he is suicidal, hears voices, has flashbacks, talks to himself and says the restrictions of Guantánamo “boil his mind.”

“He will shout at us,” said his military defense lawyer, Lt. Cmdr. Brian L. Mizer. “He will bang his fists on the table.”

His lawyers have asked a military judge to stop his case until Mr. Hamdan is placed in less restrictive conditions at Guantánamo, saying he cannot get a fair trial if he cannot focus on defending himself. The judge is to hear arguments as soon as Monday on whether he has the power to consider the claim.

Critics have long asserted that Guantánamo’s climate-controlled isolation is a breeding ground for madness. But turning that into a legal claim marks a new stage for the military commissions at Guantánamo. As military prosecutors push to get trials under way, they are being met with challenges not just to the charges, but to Guantánamo itself. (...)

The military prosecutors declined to comment on the claims about Mr. Hamdan’s condition. As is common at Guantánamo, their legal filings were not made public before the scheduled court date. But defense filings released by Mr. Hamdan’s lawyers recited some prosecution arguments.

The prosecutors argued that the way that Mr. Hamdan was being held did not constitute solitary confinement in part because “detainees can communicate through the walls.” They said that Mr. Hamdan had denied having mental problems and that he was no model detainee, spitting at guards, threatening assault and throwing urine."

Well, that certainly puts my concerns about Hamdan's mental health to rest.

It's not just Hamdan, though:

"In leaked reports in 2004 investigators for the International Committee of the Red Cross, who do see detainees, said their treatment, including solitary confinement, amounted to torture. But the Red Cross usually keeps its conclusions private.

As a result, much of what is known about current conditions at Guantánamo comes from lawyers, who visit regularly under tight restrictions. Many describe the men as depressed or delusional. Some, they say, show obvious signs of what some of them call Guantánamo psychosis.

Four detainees are believed to have committed suicide in 2006 and 2007, but the military has never released the official details.

Some of the men are increasingly paranoid and some are losing touch with reality, said Rebecca P. Dick, a Washington lawyer who visited two Afghan detainees in March. “One client said, ‘I’m talking to the ceiling now,’ ” Ms. Dick recalled.

Six detainees, according to military officials, are now on hunger strikes. They are fed liquid nutrition through tubes inserted in their nostrils daily.

Mr. Stafford Smith said one of his clients, a hunger striker, was fixated on a mathematical formula that he believed proves that he will be the next to die.

Another detainee, Mr. Stafford Smith said, has smeared feces on his cell walls. “When I asked him why he was doing it, he told me he had no idea,” Mr. Stafford Smith said."

The idea that we are driving detainees at Guantnamo insane are not new. (Recall the Uighur detainee I described here: "Abdusemet said, "I am starting to hear voices, sometimes. There is no one to talk to in my cell and I hear these voices."") Nor is it accidental. We ought not to be holding people for years in conditions calculated to drive them insane within days. In a sane world, basic decency would ensure that we did not. In this world, however, I'll settle for court orders.

Approving Torture: Better Late Than Never?

by hilzoy

As has been noted in comments, we haven't written about the this story:

"In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques -- using different techniques during interrogations, instead of using one method at a time -- on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies. (...)

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: "Why are we talking about this in the White House? History will not judge this kindly."

The Principals also approved interrogations that combined different methods, pushing the limits of international law and even the Justice Department's own legal approval in the 2002 memo, sources told ABC News. (...)

A year later, amidst the outcry over unrelated abuses of Iraqi prisoners at Abu Ghraib, the controversial 2002 legal memo, which gave formal legal authorization for the CIA interrogation program of the top al Qaeda suspects, leaked to the press. A new senior official in the Justice Department, Jack Goldsmith, withdrew the legal memo -- the Golden Shield -- that authorized the program.

But the CIA had captured a new al Qaeda suspect in Asia. Sources said CIA officials that summer returned to the Principals Committee for approval to continue using certain "enhanced interrogation techniques."

Then-National Security Advisor Rice, sources said, was decisive. Despite growing policy concerns -- shared by Powell -- that the program was harming the image of the United States abroad, sources say she did not back down, telling the CIA: "This is your baby. Go do it.""

For my part, I was torn. On the one hand, I wanted to write about it. On the other, I wasn't sure what to say. It doesn't particularly surprise me to learn that Cheney et al signed off on torture, and I do not, myself, regard the fact that they signed off on specific interrogation plans, as opposed to general policies allowing plans like those, as all that significant. (It might be significant legally, but not morally. Policy makers have an obligation to consider the specific ways in which policies they approve might be implemented.) The one minor surprise was how big a role Rice seems to have played, both as the chair of these meetings and in particular decisions ("This is your baby. Go do it.")

On the third hand, while I can toss off little posts about, say, Michael Medved's silly article while I'm here in Pakistan (read article, stop laughing, run searches on "Guantanamo" etc., publish results), I'm really not in a position to write anything that requires genuine reflection. And this clearly does. Members of this administration, at the most senior levels, have approved of torture. This might not be news, but I think it is never, never a good idea to lose one's capacity to be outraged by it.

One of the great dangers of the Bush administration is that it will permanently alter our sense of what is possible or acceptable. You can see an analog of this when people say things like: Bush won't be able to do X, or: he will have to do Y, where these statements do not refer to physical necessity or impossibility. (E.g., if memory serves, when the surge began, some Republicans said: if it doesn't work, Bush will have to withdraw.) The sense in which people who say such things think that Bush "has to" or "can't" do something or other is just that there are certain things we do not believe that any President would do, and others we think he must do. There are lines we assume he would never cross.

But this administration does not recognize the existence of any such lines. They do not "have to" withdraw just because none of their plans have worked, the army is breaking, and the war has next to no popular support. They would "have to" withdraw only if someone put a gun to their collective heads and forced them to. They do not "have to" obey the law or the Constitution: they will only if they are literally compelled to. Likewise, they do not "have to" respect even the most basic principles of decency and humanity, even when obligated to do so by US law and treaties we have signed, which are, according to the Constitution, the law of the land. Neither moral suasion nor legal obligation seem to matter to them. The only sense in which they "have to" do anything is the sense involving physical necessity.

It would be a catastrophe if we lost our sense that there are certain things that our government just cannot do, where "cannot" means something more than physical impossibility. Imagine the possibilities: we normally think that the President "cannot" just shoot his political opponents. But surely in one sense he can, at least if he's a decent shot. Maybe he couldn't do it without being thrown in jail. But that's not right: surely in one sense he "can" bribe the judges, suborn perjury, impose martial law, or do something else to get himself off the hook. Do we really want to go down this road? I don't.

The Bush administration threatens us with the catastrophe of losing our sense that there are things the government cannot do every time they do one of those things. I never, ever want to go along with their redefinition of what is possible, which is why I refuse to stop being outraged when something like this happens. (It's also why saying: hey, why are you still surprised? is beside the point. I'm not.)

But I really couldn't think what I could say that would do justice to this, sitting on the other side of the world, and trying to do my thinking in tiny snatches of time. So all I'll say is: it is an outrage, and we should never lose sight of that fact, or become inured to it.

Torture Nation

by publius

As expected, the great idealist vetoed the proposed ban on medieval, confession-extracting torture methods. (McCain flip-flopped and opposed the bill too). It’s hard to add much – the veto pretty much speaks for itself. But it’s worth stepping back and explaining why the ban is a good idea even if you have no problem with torturing known al Qaeda members.

The torture debate has two parts that often get conflated – (1) the morality/legality of the act itself, and (2) administrability (i.e., how do we know these powers won’t be abused?). Bush’s supporters tend to ignore the second point altogether, although it’s arguably the strongest – and most Burkean – argument against “coercive interrogation.”

To support Bush’s veto, you essentially have to reach two conclusions. First, you must think torture is morally and legally acceptable in prescribed circumstances. Assuming you do, though, that's not enough. It's necessary but not sufficient. To support Bush's position, you must also think that the federal government is capable of exercising this awesome power in a responsible way. I’ve heard a lot of arguments justifying Conclusion #1, but virtually nothing to justify Conclusion #2 (other than “trust us”). Indeed, most of the arguments we hear from the pro-torture side – ticking time bombs, evilness – are only relevant to the former.

It’s logically similar to my opposition to the death penalty. To be honest, I don’t have that much of a problem with executions in the abstract. If you kill a bunch of people for no good reason, I honestly don’t worry too much about the state taking your life too. My opposition to capital punishment, then, is rooted in doubt – specifically, conservative doubt about the limits of man’s knowledge. There is simply no way to administer capital punishment fairly and objectively without regard to class, race, etc. – abuse and injustice are inevitable.

Same deal with torture. Do I really care if, say, Osama bin Laden is tortured? Not really. The problem, however, is that any system that authorizes torture in narrow, extreme circumstances will inevitably expand and be abused. For instance, how can we know that the person being tortured is actually guilty? How do we define and limit "extreme circumstances"? We can’t. The level of certainty necessary to justify medieval torture is simply unattainable.

The bin Laden example obscures this problem because it implicitly addresses these administrative concerns. In other words, with bin Laden, we already know with certainty that he’s guilty. The epistemic doubt isn’t there. Because we’ve already answered Question #2 above, the debate can move on to Question #1, which asks what acts are moral and/or legal. But bin Laden is an extreme (and misleading) example because we almost always lack this level of certainty. You can’t cite the badness of bin Laden (an argument relevant to Conclusion #1) to silence administrability concerns (Conclusion #2) when the program inevitably moves to other suspects.

In sum, the problem with approving torture isn’t merely the heinousness of the acts themselves, but the impossibility of administering them fairly and correctly. Traditional conservatives used to believe that unfettered, opaque executive power is inevitably abused. They were right – that’s the nature of the beast.

And it’s not a theoretical concern. We’ve seen evidence again and again of the consequences of overbroad executive authority. In the last week alone, we’ve (re)learned that the FBI abused its powers to write national security letters and that the Bush administration wants to stretch the 2002 war vote into a universal justification for anything it does with respect to Iraq. That’s not to mention the clear cases of abusing innocent people or the horrendous images from places like Abu Ghraib. There’s nothing surprising here – these are precisely the types of overreach that history predicts.

It’s a lesson as old as time – unchecked executive power is made to be abused.

Kristof On McCain

by hilzoy

Nicholas Kristof is a smart guy. So why on earth did he write this?

"Consider torture. There was nary a vote in the Republican primary to be gained by opposing the waterboarding of swarthy Muslim men accused of terrorism. But Mr. McCain led the battle against Dick Cheney on torture, even though it cost him donations, votes and endorsements.

Even more than his time as a prisoner in Hanoi, that marked Mr. McCain’s most heroic moment. He risked his political career to protect Muslim terror suspects who constitute the most despised and voiceless people in America."

As Kristof notes later, it's only four days since McCain voted against a bill that would have prohibited any agency of the US government from using waterboarding or any other techniques not authorized by the Army Field Manual. McCain says that while he thinks it is "incontestable that waterboarding is outlawed by the Military Commissions Act, and it was the clear intent of Congress to prohibit the practice", he doesn't want to ban the CIA from using all the interrogation techniques prohibited by the Army Filed Manual. Here I agree with Marty Lederman:

"If Senator McCain believes that there are particular "enhanced" techniques that are not in the Field Manual, but that are also not torture or cruel treatment, and wishes to allow the CIA to use them, he should identify what they are, and offer legislation that would authorize those, and those only, techniques, in addition to those listed in the Field Manual. Otherwise, despite all his worthy efforts in this area, Senator McCain is now facilitating the CIA's use of techniques that are unlawful, including some that are torture even by Senator McCain's own lights."

Nicholas Kristof thinks it's great that McCain is no good at pandering. Personally, I don't see why: not being good at a bad thing is no guarantee of being good at any good thing. I suppose Kristof thinks that McCain is so bad at pandering because his principles keep getting in the way. But I don't see much evidence of that. (Quite the contrary.) John McCain acts on principle some of the time. I'm glad: intermittent attacks of conscience are better than none at all. But I'm not prepared to call McCain "principled" absent some evidence that he acts on his principles consistently. Until I see that evidence, I'm sticking with my view that while McCain isn't much good at pandering, he's no great shakes at being principled either.

Why We Have Trials

by hilzoy

From the NYT (h/t CharleyCarp):

"Abdul Razzaq Hekmati was regarded here as a war hero, famous for his resistance to the Russian occupation in the 1980s and later for a daring prison break he organized for three opponents of the Taliban government in 1999.

But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan when, senior Afghan officials here contend, he was falsely accused by his enemies of being a Taliban commander himself. For the next five years he was held at the American military base in Guantánamo Bay, Cuba, where he died of cancer on Dec. 30. (...)

Several high-ranking officials in President Hamid Karzai’s government say Mr. Hekmati’s detention at Guantánamo was a gross mistake. They were mentioned by Mr. Hekmati in his hearings and could have vouched for him. Records from the hearings show that only a cursory effort was made to reach them.

Two of those officials were men Mr. Hekmati had helped escape from the Taliban’s top security prison in Kandahar in 1999: Ismail Khan, now the minister of energy; and Hajji Zaher, a general in the Border Guards. Both men said they appealed to American officials about Mr. Hekmati’s case, but to no effect.

“What he did was very important for all Afghan people who were against the Taliban,” Hajji Zaher said of Mr. Hekmati’s role in organizing his prison break. “He was not a man to take to Guantánamo.” (...)

The 1999 escape was a deep humiliation for the Taliban government, which blocked roads and searched houses across the country for days afterward and offered $1 million for the capture of the escapees. Two of Mr. Hekmati’s relatives were badly tortured by the Taliban after the prison break as the Taliban looked for information.

Two of the men Mr. Hekmati freed, Mr. Khan and Hajji Zaher, returned to the battlefield to lead forces against the Taliban. They both received significant American support in 2001 and worked with Special Forces units.

A third man who escaped with them was another commander of the anti-Taliban Northern Alliance, Gen. Mohammed Qasim.

According to Mr. Hekmati’s account in his hearing in September 2005, he organized the escape because he opposed the Taliban’s “ruthlessness and injustice.” (...)

The men escaped to Iran, where Mr. Khan provided Mr. Hekmati and his family with a house and financial support in return for his daring. Mr. Hekmati said he returned to Afghanistan only in 2002, after the Taliban were toppled and Mr. Karzai’s interim government was installed. Within a year, he was arrested."

Hekmati was apparently accused by two people: one a governor he had turned in for corruption and for protecting Taliban leaders, and the other a relative involved in a blood feud against him. The Afghan government officials mentioned above could have vouched for him, but apparently we just don't know how to get in touch with Afghan cabinet ministers and generals, even when they're trying to get in touch with us.

There's a better way of dealing with this sort of thing than letting people rot in jail until they die of cancer. It's called a "trial." Amazingly enough, in countries that have "trials", the judge and jury get to hear "witnesses" and examine "evidence" on both sides of a case, rather than just taking the government's word that the accused is guilty. Then -- and this is the really astonishing part -- the members of the jury get to deliver what is called a "verdict", based on their assessment of the strength of the evidence against the accused. And that "verdict" does not have to be guilty: in countries with "trials", that verdict can go either way!

Pretty amazing, once you think about it. Maybe we should try it sometime.

"One Of Us"

by hilzoy

I just couldn't let this delightful comment by Kathryn Lopez at NRO pass unremarked. She's talking about John McCain:

" I’m second to none in praising him on his surge leadership. But on a whole host of issues — including water boarding, tax cuts, and the freedom of speech — he’s not one of us."

Like von, I favor Obama among the Democrats, and McCain among the Republicans. And one of the reasons for that is that, leaving aside the odious Ron Paul, while all the Republican candidates seem to be in favor of prolonging the war in Iraq indefinitely, McCain is the only one [UPDATE: except for Huckabee, oops] who is not "one of us" on waterboarding. He hasn't come out against torture nearly as much as I would like, nor has he been a champion of civil liberties, but at least he seems to recognize that there's a problem there, which is more than I can say for the rest of them.

The Kool Kidz in the Republican Party might think that support for torture is a prerequisite for entry into their little club. That just shows how far the supposed party of moral values and limited government has fallen.

Choose Your Own Adventure

by Katherine

(Note: In response to commenters' requests (thanks, guys) I'm promoting this response to Patterico's hypothetical about torture, which I posted last night.  I've edited for grammar, & in one case--the bit about Abu Ghraib & its relationship to the CIA torture program--for factual precision.)

No, the waterboarding session was not worth it.

The CIA officers charged with waterboarding KSM, lacking the knowledge that everything would turn out so swimmingly, would demand assurances from their boss that they could not go to jail for this. Their boss, & his boss, would ask the Justice Department to assure them that they would not go to jail. In order to tell them that they wouldn't go to jail, the Justice Department would have to write a memo falsely concluding that: (1) terrorism suspects were not protected by any portion of the Geneva Conventions, & the war crimes act did not apply; (2) waterboarding (& such other "enhanced interrogation technqiues" as the CIA would deem necessary) was not torture.

As a result of those memos, CIA agents would torture many other prisoners, and kill several of them, including some who were not high level members of Al Qaeda & whose torture & death did not save a single life. In order to justify what they had done & avoid liability, they would cover up the evidence of this. They would also make false and exaggerated claims about how the program was necessary, how many lives had been saved by torture.

The techniques--not waterboarding, so much, but many of the others--would spread to the military. In some cases, it would be because the Secretary of Defense thought it would be convenient not to have the Geneva Conventions apply to terror suspects in military custody, & to have authorization to use "enhanced interrogation technqiues" to abuse prisoners. After all, were America's brave soldiers lives less valuable than civilians? In other cases it would be because members of the military stationed with the CIA saw what CIA agents could do to prisoners: a guard at Abu Ghraib prison in Iraq, say, might come into work one night & notice that a CIA agent had tortured a prisoner to death & left his body paced in ice in the shower while higher ups fought about what to do with the evidence. The guard might unzip the body bag, take some pictures with corpse. It might not be the first time the guard had seen a CIA interrogator torture a prisoner. It might assure him that if the CIA could get away with killing a guy, surely he & his friends on the night shift could continue to have some fun with the prisoners, & continue to take some pictures.

Soldiers would torture many, many, many prisoners--in Afghanistan, in Guantananmo, in Iraq. Some of them would be tortured to death. Some of those tortured would be innocent.

The people tortured would make false confessions, which whether they were guilty or not would lead to them being detained for years without charge or trial. Their false confessions would lead to other arrests, and more torture, and more false confessions. Intelligence would be led down God knows how many blind alleys, resulting in the torture of God knows how many, the imprisonment of God knows how many more.

The results would be downright bizarre sometimes. We'd not only imprison & torture innocents--we'd imprison & torture guys we captured in a Taliban prison bearing scars from torture by high level al Qaeda members; one of whom Osama Bin Laden had personally accused of trying to assassinate him in 1998. We'd keep one of them in prison in Guantanamo for the better part of 5 years; another for 6 and counting despite the fact that he kept trying to kill himself.

The administration wouldn't be able to admit that this happened; it would have to classify as much as the evidence as it could, for as long as it could. It would have to keep the courts from examining the legality of these techniques, & push laws through Congress immunizing itself from prosecution, & ensure that the Justice Department remained in the hands of lawyers who would continue to falsely claim that everything had been legal; who would never investigate; who would never prosecute. Members of the President's party would have to support "enhanced interrogation" & pretend it wasn't torture; otherwise they would be admitting that a President in their party had participated in a conspiracy to commit war crimes.

But they wouldn't be able to keep it all secret; the world would find out. It would destroy our reputation, & make it impossible for us to credibly pressure other countries not to torture people or detain them indefinitely based on a bare allegation that they were terrorists or national security threats. It would help drive recruiting for Al Qaeda. It would help seal the failure of our invasion of Iraq.

I suppose you could add a bunch of other stipulations to your hypothetical to prevent these things from happening: these techniques would be practiced only against the highest level suspects, in a few prisons. They would be restricted to trained, professional, carefully selected CIA agents. It would only be used to prevent attacks when there was no other possible way to stop them. We would never torture innocents. We would never torture anyone to death. You could stipulate that, but it just makes the hypothetical even more of an irrelevant fantasy. In real life, this happened. In real life, it always happens when a country experiments with torture: it always spreads, it always leads to innocents being tortured, it never saves more lives than it destroys. In real life, a government who promises that this time it will be different is either lying, or kidding itself.

You should trust a government claiming it needs to torture exactly as much as you should trust a terrorist leader explaining why it needs kill just a few civilians (or a few dozen, or a few hundred), in order to save hundreds of thousands of Muslim children from death and slavery. I could make up a hypothetical where a suicide bombing prevented more evil than it inflicted & saved more people than it killed; would that show that opponents of terrorism just don't understand the moral complexity of it all?

Demand-Side Torture Support

by publius

It’s hard not to be repulsed by Deroy Murdock’s celebration of waterboarding. But what I’m interested in is how Murdock (and those like him) justify this position in their own minds. I doubt Murdock thinks of himself as an immoral, sadistic person. After all, no one likes to think of themselves as a bad person. Rationalization is a growth industry in that respect. To the extent simple good vs. evil explanations don’t cut it (maybe they do though), this part gets to the heart of it:

Though clearly uncomfortable, waterboarding loosens lips without causing permanent physical injuries (and unlikely even temporary ones). If terrorists suffer long-term nightmares about waterboarding, better that than more Americans crying themselves to sleep after their loved ones have been shredded by bombs or baked in skyscrapers.

You can think of support for torture (including willful blind-eye-ness) as a “supply-side” or a “demand-side” problem. The supply-side explanation is more simplistic. The idea is that many Americans have an overabundance of nativist-inspired cruelty and indifference that manifest in political support for torture. In short, it’s the “Americans are yahoos” theory, exemplified by Inhofe’s infamous “more outraged by the outrage” comment in response to Abu Ghraib. If torture support is simply a matter of excess supply, then we’re all screwed. That’s tough to fix.

But there is hope. It may be that political support for (or indifference to) torture is a problem of excess, inflated demand. When people feel threatened, they can justify doing almost anything – regardless of how heinous it may be. For instance, if someone is trying to kill you, moral limits give way to the more primal urge to survive. (Morality is a luxury located on up the Maslow chain, so to speak).

The problem then is not so much that torture supporters are bad people, but that they are misinformed about the nature of threats facing them. If you think of Muslims as an undifferentiated mass intent on storming our shores and drinking our blood, then torture seems like less of a problem. Similarly, if you think of al Qaeda as an existential threat to world civilization, then torture seems like less of a problem. And finally, if you think the nature of the terrorist threat against us resembles a plot from 24, then torture seems like less of a problem.

But all of these assumptions are wrong. Muslims are – it’s crazy I even have to write this – extremely diverse (ethnically, culturally, economically, religiously, etc.). Al Qaeda (which is a term that often conceals more than describes these days) is not an existential threat. They’re dangerous – but they pale in comparison to Cold War-era nuclear war in terms of threats to humanity. And of course, the series 24 does not reflect reality.

That’s what’s so dangerous about this perpetual state of fear that the Bush administration (and others) cultivate. It inflates demand for immoral action. Think about all the ways that fear is reinforced. The color codes. The conflating of groups like Hezbollah and al Qaeda. The use of “al Qaeda” to refer to any disfavored Iraqi Sunni insurgent group. The exaggeration of the Iranian nuclear threat – and of A-jad’s military power. The endless invocation of 9/11. The demagoguery that meets every attempt to reaffirm the rule of law and our moral values in terrorist-related legislation.

Taken together, these actions create artificial “demand” by making everyone think they’re on the verge of getting killed. And when people see themselves as under assault, they can justify anything. It’s no accident that Murdock invokes the sharp imagery of “baked” and “shredded” Americans. The cynical explanation is that he’s deliberately generating fear to justify abhorrent positions. The less-cynical explanation is that his perception of the threat facing us is simply inaccurate. He – like so many others – are justifying terrible things because they’re seeing monsters in the shadows.

Thus, one part of gaining political support for banning and punishing torture is making sure that Americans are better informed (the media plays a big role here). That’s why it's important to push back on things like Iran demagoguery, or on the conflation of distinct Muslim groups. The misinformation has real consequences. If people think Iran is about to shower us with nuclear missiles, then war makes a lot of sense. If people think the Great Muslim Horde is out to get us, then they’ll care less if we torture innocent people.

Someone once said that the only thing we have to fear is fear itself. Well, that's more right than ever. With another war on the horizon, our own fear has – sadly – become a threat to the larger world. But on the bright side, that fear is hopefully something we can correct.

Mukasey - A Baseline Problem

by publius

Lordy, what to say about Schumer and Feinstein. It’s all pretty depressing, but there’s a larger point here. Specifically, the whole sorry affair provides a textbook example of how adopting extreme political positions can successfully shift a debate’s center of gravity.

As annoyed as I am, I actually feel for Schumer -- but just a tiny bit. He backed himself into a tough spot. Mukasey is his guy, and he apparently promised the White House (prior to the nomination) that Mukasey would sail through. He could, of course, argue that the “deal” had an implied clause -- “said agreement is contingent on said nominee not supporting Spanish Inquisition torture methods publicly in Senate hearings.” But still, it’s a tough spot on the microlevel (i.e., the personal day-to-day dealings with the White House).

Feinstein, though, is a different story. I suppose it’s political cover for her buddy, but that’s not a good excuse in light of the consequences (more on that below). She needs to hear about this.

But turning back to Schumer, the more troubling issue is that he let himself get backed into this corner at all. In fact, his excuse -- “this is the best we can hope for” -- completely vindicates the administration’s extreme tactics. Essentially, the administration’s lawbreaking and DOJ-politicization have been so extreme that a candidate who refuses to call waterboarding torture is transformed into a “compromise” nomination. After all, says Feinstein, “he’s no Alberto Gonzales.” Boy, that’s a ringing endorsement. And sound logic too. Here’s a warm plate of tuberculosis for ya. Say what you will, it ain’t the bubonic plague.

Given our low expectations and mangled baselines, refusing to call Spanish Inquisition-era torture “torture” is now something a “compromise” candidate can do and still get through a Democratically-controlled Senate committee. But that’s the point. The Bush administration -- and the GOP more generally -- goes long. They push hard so that yesterday’s “extreme” becomes tomorrow’s “compromise.” And in this case (like so many others), the tactics have proven successful.

What’s most troubling though is the consequences -- and the precedent that non-accountability sets. At times, I wish the Dems wouldn’t even fight if are 100% certain that they’re going to fold in the end. That’s because fighting half-heartedly and losing only encourages the GOP to embrace torture even more strongly. There are no consequences, so why not?

All that said, it's important to keep some perspective. Yes, Schumer and Feinstein were an embarrassment this week. But it’s worth noting that Mukasey will have unanimous Republican support and that the opposition is basically 100% Democrat. It’s also worth noting the near-unanimous position of the top GOP presidential candidates on these issues. Most of the Dems are at least trying -- and that’s significant.

My fear of course is that these episodes will cause people to throw their hands up and say “both parties suck equally.” That’s not true, but that fact doesn’t excuse Feinstein’s vote.

Waterboarding

by hilzoy

From the NYT:

"In an effort to quell growing doubts in the Senate about his nomination as attorney general, Michael B. Mukasey declared Tuesday that waterboarding and other harsh interrogation techniques “seem over the line or, on a personal basis, repugnant to me” and promised to review the legality of such methods if confirmed.

But Mr. Mukasey told Senate Democrats he could not say whether waterboarding, which simulates drowning, was illegal torture because he had not been briefed on the details of the classified technique and did not want to suggest that Central Intelligence Agency officers who had used such techniques might be in “personal legal jeopardy.”"

There is an easy way for Mukasey to get around the fact that he has not been briefed on what the CIA did: just define waterboarding, say whether waterboarding so defined is torture, and add that not having been briefed on what the CIA did, he doesn't know whether or not what they did meets his definition. That Mukasey has not taken this obvious route suggests that he is not motivated by his own uncertainty, but by the desire to keep people he believes have engaged in torture from being punished for their crimes.

That we are even having a debate about this question, and that it is not a foregone conclusion that someone who claims not to know whether waterboarding is torture cannot possibly be confirmed as Attorney General, is a testament to the moral degradation of our country, and of our political discourse. Here is a description of waterboarding (h/t Katherine), written by a Malcolm W. Nance, a "former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California":

"There is No Debate Except for Torture Apologists

1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, endure the hardships and return home with honor.

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.

Call it “Chinese Water Torture,” “the Barrel,” or “the Waterfall,” it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power of making the victim suffer and often ask questions as an after thought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraieb, Baghram and Guantanamo. No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity waterjets."

Imagine what we would think of a country where candidates for high office and nominees for the highest law enforcement position in the country had earnest debates about whether or not the rack was torture ("hey, I do stretching exercises before I go jogging, and it doesn't hurt me!"), or whether disembowelling living prisoners shocked the conscience ("I had my appendix out, and I'm doing just fine!") We would think that the people who said such things had utterly lost their humanity. Yet for some reason, altogether too many of our fellow citizens seem to think that it is perfectly acceptable for politicians and their appointees to have the same debates about waterboarding. I suspect that future generations, and the current inhabitants of other countries, will regard this the same way we would regard people who took it to be an open question whether the rack was torture: with abhorrence.

To quote Nance again:

"We live at a time where Americans, completely uninformed by an incurious media and enthralled by vengeance-based fantasy television shows like “24”, are actually cheering and encouraging such torture as justifiable revenge for the September 11 attacks. Having been a rescuer in one of those incidents and personally affected by both attacks, I am bewildered at how casually we have thrown off the mantle of world-leader in justice and honor. Who we have become? Because at this juncture, after Abu Ghraieb and other undignified exposed incidents of murder and torture, we appear to have become no better than our opponents."

Attorney General Nominee Disavows Torture

by Katherine

The President’s nominee for Attorney General was introduced to the committee by a Democratic Senator, who vouched for his integrity, his qualifications, and “his interest in working with all of us in making our homeland more secure, and at the same time protecting our citizens' rights and liberties.”

He repeatedly told the Judiciary committee that he was horrified by the pictures of Abu Ghraib; that he would not condone torture or rendition; that he would prosecute those who violated the laws against torture; that he understood there were limits on the President’s power as Commander in Chief and that he rejected the “torture memo” issued by the Office of Legal Counsel in August 2002:

"Like all of you, I have been deeply troubled and offended by reports of abuse. The photos from Abu Ghraib sickened and outraged me and left a stain on our nation's reputation. And the president has made clear that he condemns the conduct and that these activities are inconsistent with his policies. He has also made clear that America stands against and will not tolerate torture under any circumstances. I share his resolve that torture and abuse will not be tolerated by this administration and commit to you today that, if confirmed, I will ensure the Department of Justice aggressively pursues those responsible for such abhorrent actions."

“We in the executive branch, of course, understand that there are limits upon presidential power; very, very mindful of Justice O'Connor's statement in the Hamdi decision that "a state of war is not a blank check for the president of the United States" with respect the rights of American citizens. I understand that, and I agree with that.”

“Senator, this president is not going to order torture. We don't condone it. I will say, with respect to the opinion, the [OLC torture memo] has been withdrawn. I reject that opinion. It has been rejected. It does not represent the views of the executive branch. It has been replaced by a new opinion that does not have that discussion.”

“Senator, the [OLC torture memo] has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it’s been rejected by the executive branch. I categorically reject it. And in addition to that, as I’ve said repeatedly today, this administration does not engage in torture and will not condone torture.”

“Senator, if I might respond to that, the president is not above the law. Of course he’s not above the law.”

“I want to emphasize to the committee how important I think treaties like Geneva are for America, because they do represent our values, and in many ways and at many times, they have protected our troops. And it is true that part of winning the war on terror is winning the hearts and minds of certain communities.”

Q: “I was glad to hear you say to -- and I’m -- correct me if I misunderstood you, but to Senator Durbin that it is wrong if somebody -- if a U.S. personnel turns somebody over to another country knowing they’re going to be tortured. Did I understand you correctly on that?”
A: “I believe that that is the law, and naturally U.S. policy.”
Q: “And so they would be prosecuted, the people who did that?”
A: “Yes, sir. Yes.”

The hearing took place in 2005. The nominee was Alberto Gonzales.

I assume Michael Mukasey will be a better Attorney General than Gonzales. He could hardly be worse. He doesn’t owe his career to George W. Bush. He has a reputation for independence and integrity that Gonzales never did. He sometimes said no to the administration as a judge. Overall, he gave somewhat better answers at his confirmation hearings than Gonzales—less “oh but we were doing our best” defense of the original OLC torture memo; more willingness to admit that the Commander in Chief power has limits.

So maybe his ringing denunciations of torture today were actually sincere. Then again, maybe not. His answers sounded better than Gonzales’, but he was asked much easier questions. When Gonzales refused to take a position on the legality of waterboarding, he got detailed written follow-up questions. I would be surprised if there’s any follow up to Mukasey’s claim he couldn’t comment on the admissibility of evidence obtained through waterboarding, because he didn’t really know what waterboarding was.

None of the statements that I’ve read today give me any real information or reassurance about what he will do as Attorney General. Not without a specific denunciation of the 2004 and 2005 OLC torture memos; or a willingness to say that specific techniques like waterboarding, hypothermia, and painful stress positions are banned; or a pledge to release the publicly release the legal justifications for “enhanced interrogation” & wireless surveillance instead of treating the administration’s constitutional law arguments as state secrets. The statements that “I categorically denounce torture,” “the United States doesn’t torture,” “torture is antithetical to our values”—they are meaningless from members of this administration. It’s past time for the press to learn this, and to stop writing credulous headlines about how the “Attorney General Nominee Rejects Torture.” But I doubt that’s going to happen when the Democrats abdicate and fail to ask hard questions.

UPDATE: Emily Bazelon has a similar take.

(edited for typos, etc.)

New Improved Torture Memos

by hilzoy

From the NYT:

"When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

Here's what we're talking about:

The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.

Never in history had the United States authorized such tactics. While President Bush and C.I.A. officials would later insist that the harsh measures produced crucial intelligence, many veteran interrogators, psychologists and other experts say that less coercive methods are equally or more effective. (...)

Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said. He recalled agency officers asking: “These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?” Or “Do I have to do the less extreme before the more extreme?”"

Discussion below the fold.

One Small Step Away From Barbarity

by hilzoy

From ABCNews:

"The controversial interrogation technique known as water-boarding, in which a suspect has water poured over his mouth and nose to stimulate a drowning reflex, has been banned by CIA director Gen. Michael Hayden, current and former CIA officials tell ABCNews.com. (Image above is an ABC News graphic.)

The officials say Hayden made the decision at the recommendation of his deputy, Steve Kappes, and received approval from the White House to remove water-boarding from the list of approved interrogation techniques first authorized by a presidential finding in 2002.

The officials say the decision was made sometime last year but has never been publicly disclosed. (...)

While new legislation reportedly gave the CIA the leeway to use water-boarding, current and former CIA officials said Gen. Hayden decided to take it off the list of about six "enhanced interrogation techniques."

While welcoming the move, some critics say the CIA did not go far enough.

"I can say it's a good thing, but the fact remains that the entire program is illegal," John Sifton of Human Rights Watch told ABCNews.com.

As a result of the decision, officials say, the most extreme techniques left available to CIA interrogators would be what is termed "longtime standing," which includes exhaustion and sleep deprivation with prisoners forced to stand, handcuffed with their feet shackled to the floor."

As Marty Lederman notes, waterboarding is plainly illegal, and it's plainly torture. As I see it, so is "longtime standing", which our government still seems to find acceptable, for reasons best known to itself. It's a horrible thing that this should constitute progress, but it does.

But that one small step is just too much for Misha at Anti-Idiotarian Rottweiler, whose response is headlined 'CIA Wimps Hand Another Weapon To Al Qaeda':

"Leaving us only with the tried and true “no sugar for your tea unless you talk, Habib”, “pretty please?”, “pretty please with a cherry on top?” and “if you don’t talk right now, I shall have to ask you to talk AGAIN! Wewy wudely!” methods.

Terrorists all over the world, upon hearing the news, vowed to kill themselves rather than be taken captive. “No sugar with my TEA?”, Ahmed Falafel, a terrorist with al-Qaeda in Iraq, exclaimed when he heard about it. “What ARE you Americans? ANIMALS?” He then went back to sharpening his bread knife for an upcoming beheading of a captured Iraqi kindergarten teacher."

Sigh.

Jose Padilla And Lowell Jacoby

by hilzoy

Yesterday, Jose Padilla was found guilty:

"A federal jury convicted former "enemy combatant" Jose Padilla on Thursday of terrorism conspiracy charges, handing a courthouse victory to the Bush administration, which had originally sought to imprison him without a criminal trial.

Padilla was arrested in 2002 for allegedly plotting a radiological "dirty bomb" attack, but prosecutors chose not to pursue those allegations in court here. But after a three-month trial, they had convinced the jury that Padilla, 36, participated in a South Florida-based al-Qaeda support cell that in the '90s began to send money and people to wage holy war in Bosnia, Chechnya, Kosovo and Somalia.

Padilla and co-defendants Adham Hassoun, a Lebanese-born Palestinian, and Kifah Jayyousi, a naturalized U.S. citizen from Jordan, were found guilty of one count of conspiracy to murder, kidnap and maim overseas, an offense with a maximum penalty of life in prison. They also were convicted of one count of conspiracy to provide material support for terrorists and one count of material support for terrorists. Sentencing is set for Dec. 5."

Judging by the press reports, the evidence was weak and the jury somewhat odd ("On the last day of trial before the Fourth of July holiday, jurors arranged to dress in outfits so that each row in the jury box was its own patriotic color -- red, white or blue.") Moreover, the NYT reports this disquieting detail:

"The jurors, seven men and five women from Miami-Dade County, would not speak publicly at the courthouse and left through a side entrance. But one juror, who asked that her name not be used, said later in a telephone interview that she had all but made up her mind before deliberations began.

“We had to be sure,” the juror said in Spanish. “We wanted to make sure we went through all the evidence. But the evidence was strong, and we all agreed on that.”"

However, rather than dwelling on the verdict, I want to focus instead on a memo (pdf) that Marty Lederman posted at Balkinization a few days ago. It's the single most shocking document concerning this administration's attitude towards the Constitution that I have seen thus far. It's from Lowell Jacoby, Director of the Defense Intelligence Agency, and it is an explanation of why Jose Padilla should not be allowed access to counsel. Bear in mind that the Sixth Amendment holds that "In all criminal prosecutions, the accused shall (...) have the Assistance of Counsel for his defence." Of course, Padilla was not at that time charged with any crime, which is why one might have thought that the Fifth Amendment might have been relevant: "No person shall be (...) deprived of life, liberty, or property, without due process of law." Possibly there are exceptions for prisoners of war, but Padilla was arrested at O’Hare International Airport in Chicago, not in the mountains of Afghanistan.

Note the absence, in both the Fifth and Sixth Amendments, of any qualification like: "so long as it is convenient for the government to provide access to counsel", or: "so long as no important government purpose depends on depriving a person of life, liberty, or property without due process of law." The fact that the government has some interest or other in putting me in prison and throwing away the key cuts no ice unless they can convict me of a crime, or in some other way satisfy the due process clause. Arguing that they cannot provide me with due process because that would itself be inconvenient for them is just not an option.

One way or another, American citizens like Jose Padilla are simply not supposed to be disappeared on US soil, far from any actual battlefield, and held incommunicado. They are supposed to be granted access to counsel, charged with a crime or released, and granted a speedy trial by a jury of their peers. There are no exceptions for suspected al Qaeda members. These are rights enjoyed by completely appalling people like Jeffrey Dahmer, Ted Bundy, and Charles Manson; and by traitors like Aaron Burr and Benedict Arnold. They are granted to every United States citizen (and others, but they are not relevant here.) They, along with habeas corpus, are what prevents the government from being able to toss us in jail at will and keep us there indefinitely without having to account for its actions.

That is what is at stake here: the protections that prevent our government from acting like the Soviet Union or the Pinochet regime or any other dictatorship. These are the freedoms we allegedly cherish, and for which we allegedly fight. They are our birthright, and an inheritance we must never allow to be squandered. With that in mind, consider these words by the Director of our DIA, an official paid by our tax dollars to work for our government:

"DIA's approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example -- even if only for a limited duration or for a specific purpose -- can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process. (...)

Permitting Padilla any access to counsel may substantially harm our national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention. DIA's assessment is that Padilla is even more inclined to resist interrogation than most detainees. DIA is aware that Padilla has had extensive experience in the United States criminal justice system and had access to counsel when he was being held as a material witness. These experiences have likely heightened his expectations that counsel will assist him in the interrogation process. Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla.

Because Padilla is likely more attuned to the possibility of counsel intervention than most detainees, I believe that any potential sign of counsel involvement would disrupt our ability to gather intelligence from Padilla. Padilla has been detained without access to counsel for seven months -- since the DoD took control of him on 9 June 2002. Providing him access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break -- probably irreparably - the sense of dependency and trust that the interrogators are attempting to create.

At a minimum, Padilla might delay providing information until he believes that his judicial avenues have been exhausted. Given the nature of his case, his prior experience in the criminal justice system, and the length of time that has already elapsed since his detention, Padilla might reasonably expect that his judicial avenues of relief may not be exhausted for many months or years. Moreover, Padilla might harbor the belief that his counsel would be available to assist him at any point and that seven months is not an unprecedented for him to be without access to counsel.

Any such delay in Padilla's case risks that plans for future attacks will go undetected during that period, and that whatever information Padilla may eventually provide will be outdated and more difficult to corroborate.

Additionally, permitting Padilla's counsel to learn what information Padilla may have provided to interrogators, and what information the interrogators may have provided Padilla, unnecessarily risks disclosure of the intelligence sources and methods being employed in the War on Terrorism.

In summary, the United States has an urgent and critical national security need to determine what Padilla knows. Padilla may hold extremely valuable information for the short-term and long-term security of the United States. Providing Padilla access to counsel risks the loss of a critical intelligence resource, and could affect our ability to detain other high value terrorist targets and to disrupt and prevent additional terrorist attacks."

Marty Lederman glosses this correctly:

"In other words, legal process must be entirely denied Padilla so that he will come to think that all hope is lost -- that he is in a world without law or due process. As long as he even thinks that he is subject to the Constitution and laws of the United States, the "relationship" of "trust and dependency" is broken."

When this document was written, the government had already held Jose Padilla incommunicado for seven months. They had already had more time than they should have to produce that "atmosphere of dependency and trust" that Director Jacoby thinks is so important. Moreover, whatever information he might have had was surely becoming dated. So even if one thought that government interests were appropriately weighed against some of the most important freedoms protected by the Bill of Rights, those interests had become attenuated by the time Jacoby wrote this.

But that is beside the point. The most basic freedoms we have, which surely include the freedom not to be thrown in jail without charge, deprived of counsel, and left there indefinitely, should not be bargained away for any government interest. There are limits to what the government can do to us because it decides that something is important, and this is one of them.

This is one more direct assault by this administration on our Constitution and our freedom. It is shocking that a government official could write this document, and shocking that it has not produced anything like the outrage it deserves.

Jose Padilla has been convicted of a crime. But for my money, Lowell Jacoby and those who think as he does are the greater threats to our country.

Supreme Court Will Hear Guantanamo Case

by hilzoy

From the Washington Post:

"The Supreme Court, reversing course, agreed Friday to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement.

The action, announced without comment along with other end-of-term orders, is a setback for the Bush administration. It had argued that a new law strips courts of their jurisdiction to hear detainee cases.

In April, the court turned down an identical request, although several justices indicated they could be persuaded otherwise.

The move is highly unusual.

The court did not indicate what changed the justices' minds about considering the issue. But last week, lawyers for the detainees filed a statement from a military lawyer in which he described the inadequacy of the process the administration has put forward as an alternative to a full-blown review by civilian courts.

"This is a stunning victory for the detainees," said Eric M. Freedman, professor of constitutional law at Hofstra Law School, who has been advising the detainees. "It goes well beyond what we asked for, and clearly indicates the unease up there" at the Supreme Court."

The Supreme Court's order is here (pdf). The "statement from a military lawyer to which the article refers is here (pdf). I meant to write about that statement at the time, but anyone who is in any doubt about the total inadequacy of the CSRTs, the only procedure available to most Guantanamo detainees, should read it. The defense's argument that the Supreme Court should hear this case is here (pdf); it's also worth reading.

These detainees are in their sixth year at Guantanamo. They are still trying to get habeas rights: the right to compel the government to show that it has some good reason for detaining them. It's wonderful that the Supreme Court will hear the case, but it should never have taken so long.

The Cheney Series: Abu Ghraib

by hilzoy

Anonymous Liberal, both in comments here and in a very good post, makes an important point about today's article on Cheney, namely: it implies that he and his staff bear real responsibility for the abuses at Abu Ghraib and elsewhere. The crucial part of the article is this:

"That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of specific interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive.

Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be dangerous as a matter of policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently," Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed."

If true, this implies several important points. First, contrary to all those who have blamed the abuses at Abu Ghraib and elsewhere on "a few bad apples", it was this administration's policy that techniques like waterboarding could be used not just by the CIA, but by military interrogators.

Second, John Yoo "verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be dangerous as a matter of policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits." The fact that these techniques spread through the military was not some sort of tragic unforeseen event. They were warned that this might happen; they decided to allow the use of these techniques anyways; and if they did anything to try to prevent something like Abu Ghraib from happening as a result -- if they tried hard to train everyone involved in interrogations about what they could do and what they could not -- I haven't heard about it yet.

Anonymous Liberal:

"In other words, the people who were championing the use of these new (illegal) interrogation techniques were specifically warned that if military interrogators were permitted to use them, it would be difficult to contain the spread of such practices and abuse was likely. In the best case, these warnings were disregarded, the techniques migrated, and the result was Abu Ghraib. In the worst case (which I suspect is more likely), the use of these enhanced techniques was affirmatively encouraged in all military theatres, not just Guantanamo, and the result was Abu Ghraib. Either way, the Office of the Vice President is directly responsible for stripping away the clear rules that had previously existed regarding the treatment of military detainees, a move that set the stage for what would later happen at Abu Ghraib and elsewhere."

In his testimony before the House and Senate Armed Services Committees after the Abu Ghraib photos came out, Donald Rumsfeld said:

"When we first were told about these activities and saw those photographs, I and everyone at this table was as shocked and stunned as you were."

Unless he means that he was "shocked and stunned" that the fruits of the administration's policies had become public, I don't see how this can be true.

Rumsfeld also said:

"Some have asked: Why weren’t those charged with guarding prisoners properly trained?

If one looks at the behavior depicted in those photos, it is fair to ask: what kind of training could one possibly provide that would stop people from doing that? Either you learn that in life, or you don’t. And if someone doesn’t know that doing what is shown in those photos is wrong, cruel, brutal, indecent, and against American values, I am at a loss as to what kind of training could be provided to teach them.

The fact is, the vast majority of the people in the United States Armed Forces are decent, honorable individuals who know right from wrong, and conduct themselves in a manner that is in keeping with the spirit and values of our country. And there is only a very small minority who do not."

It's a pity our President, Vice President and Secretary of Defense are among that small minority.

Taguba

by hilzoy

Major General Antonio Taguba (ret.) talks to Seymour Hersh. Here he's talking about a meeting with Rumsfeld:

"“Here . . . comes . . . that famous General Taguba—of the Taguba report!” Rumsfeld declared, in a mocking voice. The meeting was attended by Paul Wolfowitz, Rumsfeld’s deputy; Stephen Cambone, the Under-Secretary of Defense for Intelligence; General Richard Myers, chairman of the Joint Chiefs of Staff (J.C.S.); and General Peter Schoomaker, the Army chief of staff, along with Craddock and other officials. Taguba, describing the moment nearly three years later, said, sadly, “I thought they wanted to know. I assumed they wanted to know. I was ignorant of the setting.”

In the meeting, the officials professed ignorance about Abu Ghraib. “Could you tell us what happened?” Wolfowitz asked. Someone else asked, “Is it abuse or torture?” At that point, Taguba recalled, “I described a naked detainee lying on the wet floor, handcuffed, with an interrogator shoving things up his rectum, and said, ‘That’s not abuse. That’s torture.’ There was quiet.” (...)

Taguba had submitted more than a dozen copies of his report through several channels at the Pentagon and to the Central Command headquarters, in Tampa, Florida, which ran the war in Iraq. By the time he walked into Rumsfeld’s conference room, he had spent weeks briefing senior military leaders on the report, but he received no indication that any of them, with the exception of General Schoomaker, had actually read it. (Schoomaker later sent Taguba a note praising his honesty and leadership.) When Taguba urged one lieutenant general to look at the photographs, he rebuffed him, saying, “I don’t want to get involved by looking, because what do you do with that information, once you know what they show?”

Taguba also knew that senior officials in Rumsfeld’s office and elsewhere in the Pentagon had been given a graphic account of the pictures from Abu Ghraib, and told of their potential strategic significance, within days of the first complaint. (...)

I learned from Taguba that the first wave of materials included descriptions of the sexual humiliation of a father with his son, who were both detainees. Several of these images, including one of an Iraqi woman detainee baring her breasts, have since surfaced; others have not. (Taguba’s report noted that photographs and videos were being held by the C.I.D. because of ongoing criminal investigations and their “extremely sensitive nature.”) Taguba said that he saw “a video of a male American soldier in uniform sodomizing a female detainee.” (...)

On January 20th, the chief of staff at Central Command sent another e-mail to Admiral Keating, copied to General Craddock and Lieutenant General Ricardo Sanchez, the Army commander in Iraq. The chief of staff wrote, “Sir: update on alleged detainee abuse per our discussion. DID IT REALLY HAPPEN? Yes, currently have 4 confessions implicating perhaps 10 soldiers. DO PHOTOS EXIST? Yes. A CD with approx 100 photos and a video—CID has these in their possession.”

In subsequent testimony, General Myers, the J.C.S. chairman, acknowledged, without mentioning the e-mails, that in January information about the photographs had been given “to me and the Secretary up through the chain of command. . . . And the general nature of the photos, about nudity, some mock sexual acts and other abuse, was described.”

Nevertheless, Rumsfeld, in his appearances before the Senate and the House Armed Services Committees on May 7th, claimed to have had no idea of the extensive abuse. “It breaks our hearts that in fact someone didn’t say, ‘Wait, look, this is terrible. We need to do something,’ ” Rumsfeld told the congressmen. “I wish we had known more, sooner, and been able to tell you more sooner, but we didn’t.”

Rumsfeld told the legislators that, when stories about the Taguba report appeared, “it was not yet in the Pentagon, to my knowledge.” As for the photographs, Rumsfeld told the senators, “I say no one in the Pentagon had seen them”; at the House hearing, he said, “I didn’t see them until last night at 7:30.” Asked specifically when he had been made aware of the photographs, Rumsfeld said:

There were rumors of photographs in a criminal prosecution chain back sometime after January 13th . . . I don’t remember precisely when, but sometime in that period of January, February, March. . . . The legal part of it was proceeding along fine. What wasn’t proceeding along fine is the fact that the President didn’t know, and you didn’t know, and I didn’t know.

“And, as a result, somebody just sent a secret report to the press, and there they are,” Rumsfeld said.

Taguba, watching the hearings, was appalled. He believed that Rumsfeld’s testimony was simply not true. “The photographs were available to him—if he wanted to see them,” Taguba said. Rumsfeld’s lack of knowledge was hard to credit. Taguba later wondered if perhaps Cambone had the photographs and kept them from Rumsfeld because he was reluctant to give his notoriously difficult boss bad news. But Taguba also recalled thinking, “Rumsfeld is very perceptive and has a mind like a steel trap. There’s no way he’s suffering from C.R.S.—Can’t Remember Shit. He’s trying to acquit himself, and a lot of people are lying to protect themselves.” It distressed Taguba that Rumsfeld was accompanied in his Senate and House appearances b