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March 14, 2009

Comments

Oh god, I was mellowed out, until I checked Obsidian Wings on Sunday morning.

Still no reference from you to the fact that Obama, for all his fine words, appears at least to be condoning torture at Guantanamo Bay?

I've cared about the issue of extra-judicial prisoners and the potential for abuse since about December 2001. As it has become clear that the potential had become actual, I cared about that, too.

I didn't take it up as a stick with which to beat George W. Bush: I beat George W. Bush with it (metaphorically speaking...) because he was the President who was, at least, condoning what was going on: and, as we later found out, had instigated it. But merely condoning torture, and holding prisoners extra-judicially, would have been enough to condemn him in my eyes even if we never had the testimony that Bush (or Bush/Cheney) had kicked off the slide down to torture by deciding what torture techniques were good to use on the prisoners. That was beyond-words appalling: but it was still damning merely when we knew he was condoning torture in Bagram Airbase, Guantanamo Bay, and the other gulags.

Obama is condoning torture of prisoners in Guantanamo Bay, and intends, as part of the close-down move, to expand Bagram Airbase to house still more extra-judicial prisoners there. Part of his "seamless transition", praised by both you and Eric Martin, without your ever then raising the question: what about the prisoners? If there's to be no change in the US military, what does that mean for the prisoners?

There were only ever three options:

Obama stops the torture, launches an investigation, instigates prosecutions.

Obama stops the torture, makes clear there will be no past investigation or prosecutions, just so long as it stops now.

Obama ignores the torture, makes clear there will be no investigation or prosecutions, and he doesn't much care if it stops or not.

When I learned Bob Gates was staying on as Defense Secretary, it was obvious to me that option 1 was now not going to happen: it would be exceedingly bad management for Obama to keep in place someone who would have to be investigated, and might have to be prosecuted.

Option 2 was then the best to hope for: that Obama would actively move to stop torture and extra-judicial imprisonment when he took office. That could be embarrassing for Gates, of course, but the US media had been largely looking the other way about US torture of prisoners, so they might continue.

Option 3: safest of all, evidently. Who will condemn Obama?

An investigation is essential, but is never going to seriously happen. Obama doesn't want to "make waves" over something that isn't vital to his goals, Congress certainly doesn't want to investigate, and no one cares about some prisoners who "everyone knows" are guilty of horrible things.

It's sad, but it's what our country has become now. I suspect that they will throw one or two bad apples to the wolves if need be, but I can't even imagine that happening.

Jes: fwiw, I, like Eric, am not clear that torture is ongoing. I take basically his view of the issues surrounding forcefeeding. About the allegations that torture had kicked up since he took office: I asked around about that one, and concluded that it was at least pretty unclear whether those stories were true.

I read that article about a half an hour ago and almost stopped breathing.

But what really surprised me was the opening to the article, the first several paragraphs. It initimates that this report was not supposed to see the light of day, and the author is very murky about how he came upon it. "A short time ago this document came into my hands...."

Is this a modern-day Pentagon Papers?

More important things than this on CNN.com's front page right now:

'Top Model' audition ends in brawl, arrests

Police: NFL player hits, kills pedestrian

Flight attendant raps, passengers clap

Lohan's lawyer downplays warrant

Airless tire could make flats just a memory


At least their lead story is Dick Cheney declaring the Bush administration a success and telling everyone Obama has made us less safe.

Hilzoy, "I, like Eric, am not clear that torture is ongoing." I would suggest that if torture is not ongoing it would be very clear and why not, we don't believe in torture so why wouldn't it be very clear that we're not torturing if we are indeed not torturing. "Pretty unclear" can serve only one purpose and we all no what that is, what we need now is clear, clarity and transparency.

ICRC reports are never supposed to see the light of day. This is why those of us who've been a little more knowledgeable about what goes on at the prison have been pulling hair out for years when proponents of the government's policy say that ICRC has been given access, as if their "silence" means anything at all.

Plenty of what 'everyone knows' about AZ is different from reality. It'll be interesting to see what sorts of admissions and documents come out when/if he ever gets a day in court. (And this isn't just the Admin's choice on whether to prosecute: AZ has a pending habeas case).

I haven't had to come to an opinion about whether the current force-feeding regime is torture within applicable law. I tend to think it probably is, but understand that there are arguments going to other way.

I haven't had to come to an opinion about whether the current force-feeding regime is torture within applicable law. I tend to think it probably is, but understand that there are arguments going to other way.

Well, clearly this justifies all the alleged "torture" in the ICRC "report", I mean if a learned lawyer like yourself can't figure out whether force feeding is torture how is some poor interrogator on the front lines to know whether tying a towel around someone's neck and using it to repeatedly smash the person's head against a wall is "torture"? They will become timid and we'll have another nineleven every week.

John Yoo was just following orders and drawing nice bright clear lines like the good German American he is.

Why does Jes not care whether or not we pull out of Iraq?

Ugh: "Well, clearly this justifies all the alleged "torture" in the ICRC "report", I mean if a learned lawyer like yourself can't figure out whether force feeding is torture how is some poor interrogator on the front lines to know whether tying a towel around someone's neck and using it to repeatedly smash the person's head against a wall is "torture"?"

???

I would have thought that the point of CharleyCarp's comment was more like: insofar as there are allegations of ongoing torture, they concern force-feeding. Those may or may not be torture under the law. How this would in any way justify slamming someone's head against a wall eludes me.

Sorry hilzoy, that was snark/faux wingnut. I should have been more over-the-top, I guess.

It did seem out of character... Sorry for taking it wrong. ;)

While it might be interesting to determine whether torture produced "actionable intelligence" or "wild goose chases," it hardly matters. Even if it could be shown that torture produced useful information half the time, it's no less immoral or illegal -- and good faith is no defense. The real focus should be on investigation and, if the political will can be generated, prosecution under existing (and very clear) federal and international law.

An investigation is essential, if only to answer once and for all the question: how much actionable intelligence did we get from this, and how many wild goose chases did we send people off on?

That sentence makes me a little crazy, because it grants the assumption that this had anything to do with actual intelligence gathering.

A much more interesting question is how many other people were held and tortured for years as part of those "wild goose chases".

It's completely clear from the report, and Danner's article, that the torture was never connected with interrogation in any meaningful way.

The "wild goose chases" were the point: the torture was used to extract the desired stories -- to create the narrative of other terror attacks averted that would justify a limitless, lawless, authoritarian dictatorship.

To this day the lies are still being spread by "liberal" media: just a few minutes ago on NPR, Abu Zubaydah was referred to as a "high-level al-Qaeda operative".

And the Obama administration participates in the same charade; they'll never come close to admitting how many of the prisoners are completely innocent of any connection to any threat against this country, and are going to try to create a shadow "justice" system to hold many more than the handful of real criminals.

Hell, they're still telling the Brits we can't release Shaker Aamer because he's "too dangerous." His great crime was to go start a school for girls in Afghanistan with Moazzem Begg, and then to stand up for the human rights of his fellow prisoners, many of them sold for bounty as he was, as he was moved from one dungeon to the next.

Hilzoy, you sound as if you are still open to learning more about forced feeding as it actually occurs at Guantanamo.

Whether you consider it torture or not is not really important. Once you grasp what U.S. soldiers are doing to prisoners twice a day in our names, along with the context for the hunger strike and the alternatives open to the Obama administration, I'm confident that you would consider it absolutely wrong from every standpoint, moral and pragmatic.

It must end now, particularly if the imprisonment of the vast majority of the men there is going to drag on for much of the year, as there is every indication will happen.

I would think that someone like you, who very much wants the Obama administration to be successful, would want to end any practice that could be considered to be participating in and condoning continued torture, whether you agree that it technically is torture or not.

Nell – I think you are pretty much rocking here. I say think because intuitively I say force-feeding is right. But in context – if I had been subjected to some of this sh!t dying might be preferable and I would want the option.

You all are turning me into a damned lefty. Is there a place I can get cured of that?!?

Since it came up, can anyone point me to Eric's discussion of the issues surrounding forced feeding at Guantanamo?

Nell: I think it's wrong. I think that people generally ought to have the right to refuse medical treatment, and force-feeding counts, according to me, as medical treatment. Period. The fact that it's incredibly painful only adds to the wrongness, imho.

That said, while (as I also said) I don't know whether it's torture, I think that it is in a different moral category (so long as it is not done in a way that deliberately maximizes the pain, and not for the purpose of interrogation.) If the point is to keep someone alive, and it is done in the least ghastly way possible, then it is, I think, a different wrong thing. (Which is not at all to say: not wrong.)

Thanks, Hilzoy. As you probably know, the forced feeding isn't being done in the least ghastly way possible, and the legal challenge to allow prisoners at least not to be forced into the restraint chair failed.

So what should be the obligation of those of us who know this to do? I have a hard enough time retaining any optimism and credit of good faith toward the Obama administration based on the pattern being formed by their legal filings in torture and detention cases so far. Knowing that they're proceeding with one of the most gruesome practices of the former regime and at the same time blessing Admiral Walsh's sunny report on prisoner conditions... it's agonizing.

It's even more so because the hunger strike was precipitated by the fact that even the easiest, long-since-cleared-for-release prisoners are apparently not going to be freed anytime soon, and no one is offering any honest communication or enough improvement in conditions to create enough trust that the strike might be stopped.

The administration apparently plans to take a long, slow, cautious, step-by-step approach, and not to place a single prisoner in the U.S. That's a recipe for another year of imprisonment. Just t.f.b. for the prisoners, I guess, just like it will be t.f.b. for the victims of rendition flights to torture if Mohamed v. Jeppesen Dataplan is dismissed because the court, as every other court has done, accepts the assertion of state secrets privilege as a case-killer.

We truly do have years in which to prosecute G.W. Bush and Dick Cheney and the rest of their criminal junta. But the prisoners are wasting away, minds and bodies.

OCS: You still credit the troop surge for the recent "success" in Iraq; keep hanging on to that and you'll never be a lefty! ;>

(Thanks for the encouragement, though.)

All four of our parents had a prohibition against force feeding in their legal medical directives. We do as well. Why? Because we believe that a painful procedure done against our will is a form of torture unless it could be shown that it was done in an emergency to save our lives. Saving the life of a prisoner who sees no end to his incarceration and wants to die hardly qualifies as a medical emergency.

OCS, you don't have to be a lefty to stand for the rule of law.

Nell, my guys haven't been on hs for years, and so I don't know any more about the details than I read in the papers. The government is certainly scared of the prospect of a GTMO prisoner dying on hs. And fear always brings out the worst.

Whether a given individual has the right to refuse treatment depends, I think, on that person's mental state. I can imagine a person being in an impaired state, such that autonomy of this type has to be compromised. Then again, I'm no professional ethicist. I wonder what one would say?

When the history of this time is written -- and everything is declassified so the utter triviality of the conduct most men are thought to have engaged in is finally public -- I suppose it will be clear that along about 2003/04, the fear shifted from fear of attack to fear of having to account for what they've done. Not that a great many of the people involved (eg Mr. Yoo, who just wrote another unrepentant piece in the Philly paper) are self-aware enough to realize it.

CharleyCarp: an ethicist would, indeed, say that it depends on one's mental state. When it's a question of forcefeeding e.g. a child, or someone who is genuinely insane, or in some other way not competent to make this decision, the normal course of action is to appoint a guardian who will decide based on the best interests of the person in question. If it's someone who has expressed a preference while competent, that preference ought to be followed. If not (e.g. in the case of a young child), the decision should be made based on what the guardian takes his or her best interests to involve.

Normally, the guardian will be a family member or someone who knows the person and, one hopes, will have his or her best interests at heart. When no such person is available (e.g., in the case of orphans), it's sometimes the state.

I can easily imagine that some detainees could not be competent to choose. (I mean, I wrote a whole series of posts on how isolation, sensory deprivation, etc., could drive people insane.) What I have a much harder time imagining are circumstances in which the Bush administration rather than family members would be the appropriate decision-makers.

This is a really interesting question. Though this is post hoc prompter hoc, isn't a big question whether the detainees are guilty of being terrorists or not? I mean, we arrest people in order to stop them doing harm, so if someone engaged in a hunger strike to martyr themselves and create potentially even more harm, can we say 'well, it depends on your mental state'? And if someone was imprisoned under false pretences, it becomes more of an offense to prevent them from trying to draw attention to the flaws in the system that is imprisoning them.

I'm not completely sold on my reasoning, but I'm thinking that there is some relationship to the discussion of chemical castration, i.e the drugs that could potentially eliminate or substantially reduce sex offenders sex drives (here's a link related to that, though the program is voluntary, so isn't the challenge to ethics in the same was as a court mandated punishment would be) I can see the argument that in a general sense, invading the body is a bright line, but would be interested to hear what you think.

It seems that the Obama administration is just trying to maintain the status quo while it sorts through various options. That means avoiding the bad press that would follow from deaths by starvation, and it also seems to mean examining the whole bogus theory of the "unitary executive" to assess whether it would be useful to retain some portions of it.

It's slightly encouraging that the administration will stop referring to detainees as "enemy combatants," though their legal status remains the same as it was under the Bush/Cheney regime.

They're not being allowed contact with family members. They're not being allowed significantly easier contact with lawyers.

There's still no Muslim chaplain.

And there's certainly no "we realize that the previous administration couldn't admit that 90 percent of you have been imprisoned for no reason, but we can, and do, and we're going to start releasing people in the following order...".

So prisoners have despaired, and are especially anxious because the few prisoners they expected to be released aren't being, and are hunger striking.

Some forty prisoners are being strapped to chairs and having tubes forced up their nose and down their throats twice a day.

Almost no one knows this is happening. For the Obama administration to do anything other than continue the regime while sending out Admiral Walsh to assert that everything is just fine, treatment is humane, we even have a movie night, they'd have to have done their review.

But if they'd been willing to really talk with the defense lawyers and dissident prosecutors, they wouldn't be "doing a review" to begin with, because there are no files to review.

The Obama team have trapped themselves by walking a political line that accepts the basic premises of the false "war on terror" narrative. But trapped with them are men they are now forced to force-feed, to keep the narrative going.

We can't un-shvt the bed, we can't un-torture those who've been tortured, but by God why can't we stop treating the men who are still there as "a couple hundred hardcore militants" too dangerous to release?

They're not being allowed contact with family members. They're not being allowed significantly easier contact with lawyers.

My Yemeni client had a phone call with his family last June. Cloud nine all around. What a crime it is that it took 6 years to get to this. (He's had another in the last few months).

"It's completely clear from the report, and Danner's article, that the torture was never connected with interrogation in any meaningful way."

I am not in any way defending any of what has been done, but I don't think that's clear at all. It may be true, but I hardly see where it's clear.

"It's completely clear from the report, and Danner's article, that the torture was never connected with interrogation in any meaningful way."

I am not in any way defending any of what has been done, but I don't think that's clear at all. It may be true, but I hardly see where it's clear.

Hilzoy:

That said, while (as I also said) I don't know whether it's torture, I think that it is in a different moral category (so long as it is not done in a way that deliberately maximizes the pain, and not for the purpose of interrogation.)

I must stridently object to this statement. Whether or not force feeding in this case is torture has nothing to do with it being or not being for interrogation. No one, even the worst apologists in the former regime, defined torture as e.g., "physical pain equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death in the service of interrogation". Nor should they have. Torture in our current debate has been tightly coupled with interrogation by its apologists, but there is no inherent relation. If the force feeding is being performed in a manner to deliberately inflict more pain (I also cannot agree that maximization of pain is necessary; torture is still torture even if it could be worse) than necessary, it should be counted as torture. If you wish to impose some minimum standard of how much excessive pain need be inflicted, I can understand and might grudgingly accept the assignment of some lesser category of wrong (though honestly, I personally can't think of another that would apply). But the purpose to which the deliberately inflicted pain might be intended to serve, to say nothing of a relation to interrogation in particular, has absolutely no reason to enter into a determination if the force feeding is torture. If it were to interrogate, to impose obedience, to break the wills or minds of the "subjects", or simply to provide sadistic pleasure to the administrators, whether or not it was torture would be wholly dependent upon unnecessary suffering (possibly over some "acceptable" threshold if one absolutely must equivocate) being deliberately inflicted. The hoped-for utility provided to the inflicter would not enter into consideration at any time.

I hope I've grossly misunderstood this. I'm running on no sleep, so I could fairly easily imagine that, but reading and re-reading this brings me to see a jaw-dropping assertion that if it's not being done for interrogation, it would need to be considered some other undesirable sort of thing besides torture.

Gah, contraposition. Of course. And naturally I only see that after posting.

Like I said, no sleep. Ignore the above.

No one will read this post because it is already far along in the comments.

Sometimes I feel like I shout myself blue in the face on this blog and others about the fact that this torture goes on all over the U.S. in prisons everywhere.

Who the hell cares about the U.S. prisoners ? The American citizens ?
Of course I care about the people detained by the U.S. illegaly all over the world.

But the best way to start taking care of the international problem would be to start addressing the problem at home.
And I don't see too many people here (but I could be wrong), or elsewhere, too upset about the fact that torture has been going on in U.S. prisons at least since the 1980's. This whole drama seems to be playing out in collective indifference.

As far as the U.S.'s reputation abroad is concerned, don't worry.
It no longer has any positive reputation on this issue.
Almost everyone I know in France, even the little guy on the street, the one who would not necessarily know in the U.S., knows that the country has been torturing.

It will take us YEARS, and a hell of a lot more than Barack Obama, to rebuild our reputation on this front, if indeed we ever manage to.

Debra, I saw your post and agree. Nobody cares about prison abuse in the U.S., which is rampant, and almost impossible to address within the legal system which basically strips incarcerated people of any rights whatsoever. It's an issue I would devote some political effort to except that it would be so mindbogglingly depressing and fruitless.

"No one will read this post because it is already far along in the comments."

It helps to not make statements contrary to fact.

"Sometimes I feel like I shout myself blue in the face on this blog and others about the fact that this torture goes on all over the U.S. in prisons everywhere."

Has someone disagreed?

@Gary: You are right; it's not clear from the report; I overstated. It is, I still believe, true. The tortures were not connected with any good-faith effort to get actionable intelligence, but to get tales of further terror attacks that would justify the torture and the global roundup.

The CIA and senior counter-terror people knew who Abu Zubaydah was. They knew he only did travel arrangements for al Q exactly because he wasn't quite right in the head to begin with. But they went right ahead because he was the closest thing to a big fish they had, so they just out and out lied to the watching Principals.

Those dozens of tapes were destroyed not to hide the scenes of torture -- this report is enough to make a legal charge of torture stick. They were destroyed because they'd show the further terror tales being fed to AZ by his "interrogators" as much or more than they were being extracted from him.

[The CIA] knew [Abu Zubaydah] only did travel arrangements for al Q exactly because he wasn't quite right in the head to begin with.

That could be misinterpreted. I mean they knew he wasn't a high-level operative, and that he was not right in the head. He was restricted to doing travel arrangements and greeting new camp arrivals by senior al Qaeda people because of his mental deficiencies, something the CIA handlers were aware of before they launched into torturing him.

I'm going to disagree with part of Debra's comment, although I responded sympathetically to a previous, similar contribution.

Specifically, this:

the best way to start taking care of the international problem would be to start addressing the problem at home.

The best way to start taking care of the international problem would be to stop forced feedings at Guantanamo, start allowing prisoners frequent contact with their families and lawyers, set near-term dates for release and keep them, take some into the U.S., give "war on terra" prisoners at Guantanamo and Bagram and other U.S. prisons either POW status and its processes or the ability to challenge their detention and be charged or released, and cooperate rather than obstruct in holding accountable those who set the U.S. policy of torture and rendition to torture.

Ending torture altogether, a much longer and more arduous and society-wide process, involves facing up to and ending torture in prisons and by police (tasers are torture). As I said the last time Debra brought this up, so the "no one cares, no one listens to me" grates a bit.

Two weeks ago, I wrote this: Plenty of what 'everyone knows' about AZ is different from reality. It'll be interesting to see what sorts of admissions and documents come out when/if he ever gets a day in court.

Today, the Washington Post has the http://www.washingtonpost.com/wp-dyn/content/article/2009/03/28/AR2009032802066.html?hpid=topnews>tip of the iceberg. Rest assured that just like everything else in this whole sorry spectacle, as more and more classified information comes out, there will be ever less to the thing.

Debra: And I don't see too many people here (but I could be wrong), or elsewhere, too upset about the fact that torture has been going on in U.S. prisons at least since the 1980's. This whole drama seems to be playing out in collective indifference.

There does seem to be a presumption, in the American narrative, that once someone is in jail, whatever happens to them is no more than what they deserve.

The lack of interest in how it happened that the New Orleans jail was not evacuated well in advance of the hurricane's arrival, and the lack of interest in the discovery that once it was clear the prison would be flooded, most of the prison staff left, did make that very clear. Many of the prisoners were on remand, they had not yet been found guilty of any crime: but they were in jail, so no one seemed to feel they merited public concern.

Nell: The best way to start taking care of the international problem would be to stop forced feedings at Guantanamo, start allowing prisoners frequent contact with their families and lawyers, set near-term dates for release and keep them, take some into the U.S., give "war on terra" prisoners at Guantanamo and Bagram and other U.S. prisons either POW status and its processes or the ability to challenge their detention and be charged or released, and cooperate rather than obstruct in holding accountable those who set the U.S. policy of torture and rendition to torture.

Yes. This.

And from Charley Carp's link: "Others in the U.S. government, including CIA officials, fear the consequences of taking a man into court who was waterboarded on largely false assumptions, because of the prospect of interrogation methods being revealed in detail and because of the chance of an acquittal that might set a legal precedent. Instead, they would prefer to send him to Jordan."

That sounds very much like extrordinary rendition to me.

And if the WP reports correctly, that the reason AZ won't be allowed a trial is because he could testify about how he was tortured, well: it's disgusting, but not surprising.

Strangers of his counsel, hirelings of his pay,
These shall deal our Justice: sell—deny—delay.

Obama didn't want to change how the US military functions, and how the US military functions includes torturing prisoners.

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