Obsidian Wings

Dancing In The Dark

Guest post by Gary Farber.  Gary's home blog is Amygdala, and he invites you to read him there.

[Eric Martin: My friend Gary is going to be pitching in for a couple of days as I adjust to the enhanced parenting techniques that my son is submitting me too.  And yes, sleep deprivation is torture.]

On December 31, 2009, three provisions of "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001," aka the "PATRIOT Act,"  sunset and expire.

Bills to reauthorize or amend these three provisions have been moving through the Congressional Judiciary Committees in the past two months.

The three sections are:  

SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978. Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting 'or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after 'specified person'.

This is also known as "the John Doe" provision.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Also known as the section dealing with "national security letters," by which:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities [....]

The third is:

SEC. 805. MATERIAL SUPPORT FOR TERRORISM.

What are these about, and why should we care?, you ask. As the ACLU explains:

The Method of Cheney's Madness

by publius

My views of Dick Cheney are hopefully clear by now.  So I'm not getting into the immorality of his torture stance.

But I don't think that "winning" the torture debate is his actual goal.  To me, the goal of his recent charm offensive is simply to kick up enough dirt to force a "draw."  That is, he wants to politicize the torture debate as much as possible -- to transform a profound debate about our country's values into just another everyday Republican/Democratic partisan squabble that makes people throw up their hands and despair of knowing "the truth."

If you've noticed, Cheney tends to pop up in the aftermath of damning evidence.  We just (re)learned, for instance, that our CIA agents murdered detainees, choked them, and threatened to rape their wives.  Normally, you would think these revelations would give pause to even the most ardent Cheney supporters.

But then Cheney comes along, and tries to reframe the whole story.  His intended audience isn't the nation as a whole, but conservatives.  He wants to make sure that they view these stories through partisan-tinted lenses.

And in this, he'll probably be successful.  Ideology is such a powerful force right now on the American Right that Cheney's strategy is probably a smart one.  I mean, just look at how thoroughly ideology has colored perceptions of end-of-life counseling, which shouldn't even be remotely controversial.  Heck, look at how thoroughly ideology is warping virtually everything these days.

And the press facilitates this process simply by reporting what Cheney said.  I'm not exactly blaming them for this -- he is the former Vice President, and you have to quote him.  But the mere fact of quoting his lines and airing his attacks helps trigger the ideological defense mechanism among conservatives.  They naturally want to rally to their "team's" side when they perceive that the hated Dems are attacking for political reasons.

In short, Cheney wants to transform what should a broad consensus against torture into a "he said/she said" partisan squabble.  And if most conservative blogs are any guide, he's probably been successful.

[UPDATE 3:00 -- Jonathan Bernstein, who recently started a new blog, has some additional thoughts.  Specifically, he argues that granting pardons might break the partisan/ideological impasse (he actually has a 3-part series on this).  Not sure I agree, but welcome to the Internets!]

Post hoc ergo propter hoc: Torture edition

By Lindsay Beyerstein

Washington Post reporters Peter Finn, Joby Warrick, and Julie Tate lend credence Dick Cheney's fallacious argument that because Khalid Sheik Mohammed began cooperating with U.S. authorities after he was tortured, torture made him cooperate.

The story is based the reminiscences of unnamed intelligence officers who observed Mohammed in 2005 and 2006. They say that he'd evolved from defiance to enthusiastic cooperation. But it's not clear whether any of these anonymous officials watched the metamorphosis from the beginning. The story seems to imply that they showed up 2 or 3 years after he started cooperating. In which case, why should we trust their hunches about what turned the prisoner?

And if they were around for the torture, how much stock should we put in anonymous anecdotes from people who might be facing criminal charges? Of course they're going to say that the program was dazzlingly effective. At this point, good PR is their best chance of staying free and employed.

The WaPo's sources claim to have observed Mohammed directly. Surely, only a handful of people would have been allowed access to the U.S.'s top terror detainee. Chances are, anyone who got that close has a vested interest in presenting the program in the most flattering light. For all we know, the WaPo interviewed Khalid Sheik Mohammed's torturers. If the reporters grappled with this potential conflict of interest, they don't let on. 

Cheney and his allies stress that KSM only started talking after he was waterboarded. The thing is, the CIA waterboarded him as soon as they got their hands on him--183 times during his first month of captivity.  We're supposed to believe that the hundred-and-eighty-third time was the charm? Good thing there was no ticking bomb. 

With no control group, we have no way of knowing whether KSM broke any faster than he would have with traditional rapport-based interrogation tactics. For all we know, torture actually prolonged the process. Torture can harden the victim's resolve to resist the torturer.

Note that torture defenders aren't even trying to argue that KSM gave up valuable information while he was actually being tortured. (He falsely confessed to all kinds of crazy stuff including the murder of Daniel Pearl.) You might think this is evidence against the efficacy of torture. But here's where the Cheney faction does a bit of logical jujitsu: They point to the fact that KSM started talking after he was waterboarded. So, the waterboarding must have softened him up. The more parsimonious hypothesis is that once U.S. stopped torturing the prisoner, the real work of interrogation could begin.

"When I was in Iraq, the few times I saw people use harsh methods [in Iraq in 2006], it was always counterproductive,” explained veteran interrogator Matthew Alexander, author of 'How To Break a Terrorist,' “the person just hunkered down, they were expecting us to do that, and they just shut up. And then I’d have to send somebody in, build back up rapport, reverse that process, and it would take us longer to get information.”

Interestingly, the anecdotes from the anonymous officials who observed KSM suggest that his captors got their best information by exploiting the his intellectual vanity, not by beating confessions out of him.

We learn that KSM's captors shrewdly gave him a blackboard and let him "lecture" CIA agents about terrorism while they took notes. A lot of crazy claims have been made about the efficacy of torture, but no one's going to claim that waterboarding put KSM in the mood to deliver his "Advanced Topics in al Qaeda" talk. That gambit was the result of an astute interrogator who got to know the prisoner well enough to exploit his weaknesses.

[x-post at Majikthise]

Update: Marcy Wheeler notes that after the CIA stopped torturing KSM, they went back to rapport-based interrogation. The WaPo doesn't mention that critical and widely reported fact, of course.

Questions for Althouse

by publius

Ann Althouse, defending and celebrating "harsh interrogation techniques":

Critics of "harsh interrogation techniques" — they, of course, call it torture — bolster their moral arguments with the pragmatic argument that it doesn't even work. How unusual it is for the media to disillusion us about that and force the moralists to get by on moral ideals alone!

There are many things to say, but I have just a few simple questions. 

(1) Is beating a detainee to death with a metal flashlight torture?  Or merely a "harsh interrogation technique"?

(2) Is beating detainees with butts of rifles torture?  Or merely a "harsh interrogation technique"?

(3) Is choking a detainee with your bare hands until he almost passes out torture?  Or merely a "harsh interrogation technique"?

(4) Is threatening to rape wives and murder children torture?  Or merely a "harsh interrogation technique"?

Just curious.

[UPDATE 3:45:  Commenter byrningman makes some excellent points in the thread.]

Is Using A Minotaur to Gore Detainees a Form of Torture?

By Lindsay Beyerstein

Is Using A Minotaur To Gore Detainees A Form Of Torture? [HT: DJA]

Salon columnist nonplussed by torture report

By Lindsay Beyerstein

Alex Koppelman reacts to the CIA Inspector General's report like it's a disappointing summer blockbuster:

The report itself, though, didn't really live up to the hype. That's not to say it didn't contain disturbing details, like mock executions and an interrogator's threat to rape the mother of one detainee, or some bits of news. But for the most part, the declassified sections of the report were, for the most part, filled with information that was already public knowledge.

I guess he was hoping for some snappy new atrocities. It's hard to compete with Inglourious Basterds, especially when CIA censors redact all the "good" bits.

Koppelman finds the report disappointing because it merely confirms what has already been reported about torture and the CIA.

It's infuriating when people dismiss official confirmation as old news. It's always a big deal when a disputed fact is publicly acknowledged, no matter how much we already knew. Until that point, it's still just a claim that insiders like Marc Ambinder will feel entitled to dismiss as the product of mere "gut hatred." Every time you bring up that claim, you've got to defend that premise anew.

Once an allegation is officially confirmed, the revelation will be re-branded as old news. The elite media will thereby give themselves an excuse to gloss over it, but at least it will have been incorporated into the conventional wisdom.

One other thing about the OIG report... So far, the focus has been on the unequivocally illegal acts detailed in the report. Mock executions, for example, are explicitly forbidden by U.S. anti-torture law. Even the CIA isn't condoning them The agency acknowledges that the mock executioners went beyond what they were authorized to do.

That these cases were closed is a sub-scandal unto itself. By closing the files on clear-cut crimes, someone decided to decriminalize torture at large, as opposed to a handful of EIT techniques. The interview room became a free fire zone.

I wonder whether Eric Holder's decision to reopen clear-cut criminal investigations will deflect attention from EIT cases in which the perpetrators claim to have been following legal orders. The Obama administration is afraid to probe too deeply into the latter cases because it's clear that responsibility goes all the way up to the former occupant of the White House.

The IG Report

by publius

It's hard to know what exactly to say about the IG Report (pdf).  It's hard to imagine anything that so completely contradicts the ideals this country is supposed to stand for.  Glenn's post pretty much covers the main points (and don't forget to check out Marcy and Spencer's posts too).  But here are a few thoughts:

Depravity

The IG Report is not for the faint of heart.  The details of abuse are so graphic and brutal that it's hard to read in places.  But Glenn is right -- everyone should read it (or at least the key parts).  People should see precisely what happened.

The highlights include:  (1) mock executions; (2) threatened rape of family members; (3) threatened murder of children; (4) kicking and beating a detainee with a metal flashlight to death; (5) threatening naked hooded detainees with power drills; (6) blowing cigar smoke in detainees' faces until they got sick; (7) waterboarding with massive volumes of water far beyond what OLC authorized (to make it "poignant"); (8) stress positions that nearly caused shoulder dislocations; (9) scraping detainees with stiff brushes; (10) choking a detainee with one's bare hands until they nearly pass out; (11) subjecting detainees to extremely cold temperatures and water dousing; (12) "hard takedowns" (sometimes in diapers); and (13) beating detainees with butts of rifles (followed by kicking them).

It's easy to let your mind skim over these.  But if you stop and linger over a couple of them -- and really take the time to reflect on the individual pain and fear that must have been involved -- it makes you sick to your stomach.  These acts must be punished.

Let's Thank All The Lawyers

Glenn mentioned this in his post and on Twitter.  But it's worth remembering that we know about this information because of the ACLU and other courageous lawyers' efforts (people like Katherine).  If it were up to Congress, we would know nothing.

Paper Trails

One remarkable aspect of this entire tragic affair is just how extensively papered it is.  Everyone was trying to cover themselves, and it created a lot of evidence.  This paper trail is significant for a couple of reasons.  First, it makes it easy for a Truth Commission (or some similar entity) to assemble all the information and then to investigate gaps, etc.  Second, it shows just how directly all of these policies came from straight the top.

The Limits of the Prosecution

Glenn and others are critiquing Holder's decision to limit the scope of the prosecution.  And I agree.  It would be a gross injustice if only the lower-lever officers were prosecuted.

My hope, though, is that today isn't the final word on that.  A few successful prosecutions could hopefully be leveraged to go after bigger fish -- the ones actually responsible for implementing torture as national policy. 

The IG Report - Hot Off The Presses

by publius

Spencer Ackerman has a copy at the Washington Independent.  I can't read it at the moment, but I'll certainly be writing more later.

Mock Executions

by publius

More on this to come, but good lord:

A long-suppressed report by the Central Intelligence Agency's inspector general to be released next week reveals that CIA interrogators staged mock executions as part of the agency's post-9/11 program to detain and question terror suspects, NEWSWEEK has learned. . . .

Nashiri's interrogators brandished the gun in an effort to convince him that he was going to be shot. Interrogators also turned on a power drill and held it near him. "The purpose was to scare him into giving [information] up," said one of the sources. A federal law banning the use of torture expressly forbids threatening a detainee with "imminent death."

The report also says, according to the sources, that a mock execution was staged in a room next to a detainee, during which a gunshot was fired in an effort to make the suspect believe that another prisoner had been killed. The inspector general's report alludes to more than one mock execution.

Looking Backwards

by hilzoy

From the Washington Post:

"Attorney General Eric H. Holder Jr. is leaning toward appointing a criminal prosecutor to investigate whether CIA personnel tortured terrorism suspects after Sept. 11, 2001, setting the stage for a conflict with administration officials who would prefer the issues remain in the past, according to three sources familiar with his thinking.

Naming a prosecutor to probe alleged abuses during the darkest period in the Bush era would run counter to President Obama's oft-repeated desire to be "looking forward and not backwards." Top political aides have expressed concern that such an investigation might spawn partisan debates that could overtake Obama's ambitious legislative agenda. (...)

Holder's decision could come within weeks, around the same time the Justice Department releases an ethics report about Bush lawyers who drafted memos supporting harsh interrogation practices, the sources said. The legal documents spell out in sometimes painstaking detail how interrogators were allowed to subject detainees to simulated drowning, sleep deprivation, wall slamming and confinement in small, dark spaces.

Any criminal inquiry could face challenges, including potent legal defenses by CIA employees who could argue that attorneys in the Bush Justice Department authorized a wide range of harsh conduct. But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the "four corners" of the legal memos. Some incidents that might go beyond interrogation techniques that were permitted involve detainees in Iraq and Afghanistan, and are described in the secret 2004 CIA inspector general report, set for release Aug. 31.

Among the unauthorized techniques allegedly used, as described in the report and Red Cross accounts, were shackling, punching and beating of suspects, as well as the waterboarding of at least two detainees using more liquid and for longer periods than the Justice Department had approved. That conduct could violate ordinary criminal laws, as well as the U.N. Convention Against Torture, which the United States signed more than a decade ago."

This is good. CIA officials who exceeded the unbelievably expansive rules laid down in the torture memos should be prosecuted. That said, I'd give up all hope of any prosecutions of CIA officials for prosecution of the people who set policy -- people like Cheney and Addington. They created the Bush administration's interrogation policy. They decided to set aside law, morality, and basic humanity. They should bear the consequences. 

Moreover, the idea of prosecuting lower-level people while the people with real power get off scot-free sticks in my craw. The laws should apply to everyone, and people like Cheney and Addington, who did not have to worry about losing their jobs if they stood up for basic human decency, have less excuse than anyone for violating it. 

This will, undoubtedly, set off another round of wailing from the CIA, about being asked to do the dirty work that keeps us free and then being prosecuted for their troubles. I have very little sympathy for this, especially in the present case: by all accounts, if Holder does appoint a prosecutor, that prosecutor will be looking into the possibility that some interrogators exceeded the rules that the DoJ laid down. Those rules were -- how to put it? -- hardly confining. Moreover, much as I dislike the actual interpretation of the law given in the DoJ memos, it was quite specific. CIA interrogators knew the rules. If they broke them, that's too bad.

It's especially hard to feel too sorry for CIA officials when we've just learned that they kept Leon Panetta in the dark about one of their programs until June 23. Keeping the director of an organization in the dark about one of its programs for nearly six months is unconscionable. The people who had that clever idea should be fired, since they apparently do not believe in accountable government. The rest of the CIA ought to ask itself serious questions about its relation to the rest of the government and its responsibilities, and fix what's wrong with its culture before complaining about being held accountable for violating the law.

(They might also try getting something right for a change. Those teensy little mistakes like failing to predict the collapse of the USSR or the fall of the Shah, or, well, any major event I can think of offhand, not to mention saying that the case that Saddam had weapons of mass destruction was a slam dunk, make me much less sympathetic to the idea that if I only knew of all their great successes, I'd realize how much it matters to let them go on working outside the law. And that's without even getting into all those covert actions that worked out so well, like toppling Mossadegh, or the exploding conch shells.

I'm sure some great people work there, and do genuine good. But if they want more sympathy from the rest of us, they need to confront their own shortcomings and change their organization.)