Obsidian Wings

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.)

Indefinite Detention

by hilzoy

From the Washington Post:

"Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said. (...)

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge."

This is a very puzzling article. It has some good news: for instance, that Obama has rejected the idea of national security courts. This is good: the idea of trying to construct an entire new set of courts, all of whose procedures could be litigated until eternity, is crazy, and why we need a new court system has never been adequately explained. If the administration has rejected that, that's good news. 

Then there's this: 

"One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said."

Ken Gude of the Center for American Progress comments:

"Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances. (...)

This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example."

That's not entirely right, I think. First, I'd like to see a very clear definition of "the battlefield", to prevent future reversions to Bush's doctrine that it was the entire world. This should not be left up to the discretion of the President. Second, this allows for exceptions to the rule that future detainees will be either held as prisoners of war, transferred to the US for trial, turned over to local authorities, or sent home. Those exceptions should not be "rare", or reserved for "extraordinary cases"; they should be nonexistent.

Finally, of course, there's that little bit about "going forward". Those detainees that the administration believes that it can neither try nor release could be held indefinitely, according to this policy. That is, of course, the elephant in the room. And it's just wrong.

In this country, we have what we call "laws". When you break a law, you can be tried, and, if the government can prove your guilt beyond a reasonable doubt, you can be sent to jail. If the detainees in question have not actually violated any laws, then it's hard to see why we propose to detain them. If they have, and we cannot prove it beyond a reasonable doubt, then we should ask: why not? 

If we don't have convincing evidence against someone, we should not detain him. If we do have such evidence, but it was obtained under torture and the person we tortured will not repeat it in court, then it is unreliable. If we have evidence, but revealing it would compromise "sources and methods", then we're in a pickle, but not an insoluble one. We might allow a judge to review that evidence in camera. We might decide that convicting this person is worth compromising some of our secrets. We could try to find more evidence that we could disclose. But we do not get to just detain someone indefinitely. 

No President should have that power. Period.

I sympathize with Obama's not wanting the Congress to pass legislation on this topic. They have been horrible on these issues so far, and I see no reason to think that they would change. (And, yes, Obama has been awful too, but the Congress has been even worse.) If he somehow has to obtain the power to detain people indefinitely, and it's legal to do it via executive order, fine.

I also don't envy him the politics of it. Obviously, if some released detainee commits an act of terror against the US, all hell will break loose. And the costs of that will not be purely political: people might not get health insurance, or we might be unable to act on global warming, if some released detainee decides to blow himself up in an American city. I wish that my fellow citizens were also moved by the wrongness of keeping people who might be innocent locked up without recourse, but apparently not enough of them are.

But that doesn't make it right. Obama does not have to do this. The rule of law is one of our most basic values. It underwrites the freedoms that we go on and on about, but are apparently unwilling to risk much of anything to preserve. 

Shame on him if he does this. And shame on us.

Fish!

by hilzoy

From the Toronto Star (h/t CharleyCarp):

"After almost eight years of captivity, each step of Khelil Mamut's freedom is a little overwhelming.

The ocean, which he could hear only on windy days when the waves crashed beyond Guantanamo's razor wire rimmed fence, is now something he can wade into.

People call him by his name, not 278, his internee serial number.

Then there was the horse he saw while walking one of the island trails on Thursday, the day he and three other Chinese citizens of the Muslim Uighur minority arrived in Bermuda. The animal made him stop suddenly, just to stare.

"How can I express it," he said yesterday, describing the new tropical home where he now lives with the three other former Guantanamo detainees. "It is so great, so beautiful."

"This may be a small island," added Abdullah Abdulqadir. "But it has a big heart.""

That's Khelil Mamut on the left right, with the fish. Salahidin Abdulahat is on the right. They look happy. So am I. 

Bermuda Does What We Will Not

by hilzoy

Yesterday, four of the Uighur detainees at Guantanamo were transferred to Bermuda. Some or all of the rest might go to Palau. Apparently, the British government is upset, and some Bermudans are worried about the effects on the tourist industry:

""When an American is watching an ad (for Bermuda) it hits my mind as an American, they saw the level of intense media attention, I say to myself, 'Hmm, that's the country that accepted Guantanamo Bay detainees' ... This is a fact, mark my words, tourism will be affected by this," said Donte Hunt, a deputy party chairman for the United Bermuda Party, the government's opposition party.

But the Bermudan government defended its decision to take the Uighurs, who the U.S. feared would face torture if sent to China. Minister of Education, Elvin James, a staunch ally of Prime Minister Ewart Brown, lamented the attention that's been paid to the nation, but said the "constant criticism" is unfair. 

"If we have people here who are homeless, does it not mean we can take care of four more? ... That's the love we need to show here today," James said during a boisterous parliamentary session that mimics the British system. 

"We have people here, taken against their will, proven to be innocent, and now they want a chance to survive and earn a decent living," James said, earning loud laughter from opponents."

I'm glad for the four who are free: it's about time. I only wish my own country had done as much, instead of acting like cowards.