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Sunday, April 26, 2009

"best leave it unsolved, really...

it's not the most fun topic, but tonight I'm going to round up some news and commentary regarding the use of torture.

Of course this issue has resurfaced because the Obama Admin was forced to cough up some Bush era documents that outlined torture practices because of an ACLU freedom of information request (God bless 'em). They could have, however, heavily redacted the documents and at least kicked the can down the road as the ACLU would then have to file another request and argue in front of a judge, etc., etc. Obama considered this approach but decided against it.

Newsweek provides some backstory regarding the internal debate within the Obama Admin about what to release:

Running for president, Barack Obama was able to denounce the torture tactics the Bush administration used and to declare, "If crimes have been committed, they should be investigated." But after his election, Obama said he wanted his administration to look forward, not backward. If only it were so simple. Last week Obama--over the CIA's bitter opposition—authorized the release of Justice Department documents spelling out in great detail the enhanced interrogation techniques used by the CIA and permitted by Justice Department lawyers. That decision alone was one of the hardest the new president has had to face, say his aides.

But the Obama administration is not off the hook. Though administration officials declared that CIA interrogators who followed Justice's legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries--and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say. Even if prosecutions prove too difficult to bring, an outside counsel's report could be made public. For his part, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a "truth commission." In a democracy, the wheels of justice grind on--and the president, for good reason under the rule of law, does not have the power to stop them.

The debate about releasing the memos was forced by a Freedom of Information Act lawsuit brought by the American Civil Liberties Union. More than a month ago, Holder and White House counsel Gregory Craig recommended releasing the memos, partly on the grounds that the Obama administration wasn't using the techniques anymore and should not be put in the position of covering up for its predecessors. President Obama seemed onboard. But several administration officials who wished to remain anonymous discussing internal deliberations say the reaction at the CIA was indignant. Exposing some of the nation's most sensitive secrets would tear up the country's most prestigious intelligence service, its defenders argued. New CIA Director Leon Panetta was put on the spot. A former congressman and White House chief of staff in the Clinton administration, Panetta came with few ties to the intelligence community. Panetta needed to show he would stand up for his troops, the officials say, so he did, protesting that releasing the documents would destroy morale.

After several intense cabinet meetings, Obama appeared to back down and go along with a Panetta proposal to heavily "redact"—black out—all references to specific interrogation techniques, say the administration sources. But this would make the release meaningless, argued others, and Obama began to swing back again. Panetta had one ally, John Brennan, a former agency official who is now Obama's chief counterterrorism adviser. But Adm. Dennis Blair, the national intelligence director, backed a more complete release, and so did Secretary of Defense Robert Gates, a Bush holdover (and former CIA director). In the end, Obama approved the disclosure of the documents, along with a strongly worded statement that agency professionals "who acted reasonably and relied upon legal advice from the Depart-ment of Justice" will be held blameless.

Predictably, people on the right were, shall we say, 'nonplussed' by the disclosures. My favorite protestation came from Peggy Noonan, who said that some things (like torture, apparently) are just best left "mysterious." Which for me immediately brought to mind this scene from This is Spinal Tap:

Jon Stewart has more:

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How the memos were applied in the real world:

One memo, written in August 2002 and signed by then OLC Chief Jay Bybee, approves a list of 10 "enhanced interrogation" techniques that the CIA wanted to use against Abu Zubayda, who was believed to be a senior member of al-Qaeda. The techniques are described in a detached, clinical manner: "walling," the act of throwing detainees against a "flexible wall," and "close confinement," the act of placing a detainee within a confinement box that forces the detainee to stand or sit. The memo also approves the use of insects with the confinement box to enhance detainees' sense of terror.

The techniques listed do not rise to the level of torture, the memo says, because they do not cause severe physical or mental suffering. But the abstract descriptions of these techniques stand in stark contrast to detainee testimony of how they were actually applied, according to a 2007 report by the International Committee of the Red Cross. In addition to describing techniques outlined in the Bybee memo, the ICRC report describes several other techniques, such as forced nudity, the dousing of detainees with cold water, and forcing detainees to wear diapers. All of these appear to violate the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which the United States is a signatory.

Alex Abdo, a legal fellow with the ACLU's National Security Project, says comparing the clinical description in the OLC memos to the ICRC report was surreal. "The four memos were written by lawyers trying to construct a legal regime that allowed the unthinkable. The sterilized language they use in the memos as compared with the graphic descriptions of the ICRC report make that patently clear," Abdo says. "It's as though you're in Alice in Wonderland."

(click through for examples)

But do these memos provide grounds for the legality of torture? That may have been their intent, but the law is clear:

In fact, the President has not “banned” torture. Torture was illegal before President Bush came to office, through our incorporation of the Geneva Convention into domestic law. (This is to say nothing of centuries of American custom and tradition holding that torture is unconscionable and morally abhorrent.) Members of the Bush administration did not somehow “unban” torture; they simply chose to ignore the law. Torture has not become any more or less legal since Obama took office.

The federal statute which outlaws torture defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering.” The “color of law” language was included specifically because torture programs are expected to operate with government approval and legal justification. But the authors of the torture memos used Byzantine, arbitrary re-definitions of “pain and suffering” to advance the conclusion that torture is not torture.

Furthermore, enforcing our laws is not discretionary but a duty of the office. The President has the opportunity to protect these CIA agents and contractors through presidential pardon if he feels it just or necessary for the national well-being. Obstruction of justice is not a legitimate means towards that end.

Perhaps most disturbing about this navel-gazing is the assumption that the primary focus on any torture investigation should be its effect on the American public. But the American public is not the victim here. The victims are for the most part still locked away in foreign prisons. We have brutalized thousands of people through our torture program. Many of them are innocent of all wrongdoing, many of them are murderers, many are American citizens—the facts of their cases do not matter. All of them have the right to see the men and women who tortured them brought to justice, even if we find it inconvenient or unpleasant.

The next question is "was it effective?" Cheney wants to declassify a couple documents from his own VP files that he says will show that torture saved American lives. (Still cherry picking intelligence even in retirement!)

This McClatchy reporter, however, says that the CIA's own internal reviews said there was no evidence these methods had helped thwart a terror attack:

And as Mark Danner notes, the idea that we must compromise our values for our own protection is cynical to the extreme:

Republicans from Dick Cheney on down have been unflagging in their arguments that these "enhanced interrogation techniques . . . were absolutely crucial" to preventing "a major-casualty attack." This argument, still strongly supported by a great many Americans, is deeply pernicious, for it holds that it is impossible to protect the country without breaking the law. It says that the professed principles of the United States, if genuinely adhered to, doom the country to defeat. It reduces our ideals and laws to a national decoration, to be discarded at the first sign of danger.

This is why torture is at its heart a political scandal and why its resolution lies in destroying the thing done, not the people who did it. It is this idea of torture that must be destroyed: torture as a badge worn proudly to prove oneself willing to "do anything" to protect the country. That leads to the second paradox of torture: Even after all we know, the political task at hand -- the first task, without which none of the others, including prosecutions, can follow -- remains one of full and patient and relentless revelation of what was done and what it cost the country, authoritative revelation undertaken by respected people of both parties whose words will be heard and believed.

So what about the politics of all this. These new documents have gotten everybody worked up, but the truth is, as Danner points out in the same op-ed, we've known the broad outlines of what went on for some time now:

The first paradox of the torture scandal is that it is not about things we didn't know but about things we did know and did nothing about. Beginning more than a half-dozen years ago, Bush administration officials broke the law and did repugnant things to detainees under their control. But if you think that the remedy is simple and clear -- that all officials who broke the law should be tried and punished -- then ask yourself what exactly the political elite of the country has been doing for the last five years. Or what it has not been doing. And why.

However much we would like the scandal to be confined to the story of what was done in those isolated rooms on the other side of the world where interrogators plied their arts, and in the air-conditioned government offices where officials devised "legal" rationales, the story includes a second narrative that tells of a society that knew about these things and chose to do nothing.

Unlike Watergate or Iran-contra, today's scandal emerges not from a shocking revelation of wrongdoing but from a long process of disclosure during which Americans have stared at blatant lawbreaking with apparent equanimity. This means Democrats as well as Republicans, including those in Congress who were willing to approve, as late as September 2006, a law, the Military Commissions Act, that purported to shield those who had applied these "enhanced interrogation techniques" from prosecution under the War Crimes Act.

Though they could have filibustered the bill, Democrats let it pass into law. The midterm elections loomed, and it was no secret that the president had introduced the bill partly as a trap -- a little bait that might allow any Democrat who spoke up against it to be accused of wanting to "coddle terrorists." Having been burned by the "politics of fear" in 2002 and 2004, Democrats stood aside. Six weeks later, they won control of Congress.

The dirty little secret of the torture scandal and of all the loud expressions of outrage now clogging the country's airwaves is that until very recently, the politics of torture cut in the opposite direction. This is why, although we have known the general narrative of torture since the summer of 2004, most politicians have been loath to do anything about it. Republicans ordered it and, then as now, supported its use -- as long as they could call it something else. Democrats, on the defensive since 9/11 as the party of weakness on national security, saw no interest in taking up a cause perceived to be deeply unpopular. In the wake of 9/11, taking the gloves off was a badge of authenticity. Did Democrats really want to make themselves the party that stood for the rights of Khalid Sheik Mohammed?

So perhaps it should come as no surprise that Obama would rather dodge this issue, it's certainly nothing new coming from a Democrat. But I don't think this is about fearing being painted as soft on defense so much as it's about wanting to maintain control of the agenda. Obama realizes this could quickly spiral out of control as investigations uncover more brazen wrongdoing (who knows how far that rabbit hole goes!). The effect could be to ignite a partisan war, which might then derail his own efforts at healthcare reform, cap and trade, etc., etc. (In a monumental case of projection Republicans are already suggesting that investigating/prosecuting torture would amount to turning this country into a banana republic. Steve Benen dispenses with that absurdity here.)

I actually appreciate that Obama is mindful that he can't accomplish everything he'd like and that he has to set priorities. That's a good thing. It's a common refrain that he's bitten off too much already with his ambitious agenda, but clearly he is setting priorities. This issue apparently just doesn't make the cut for him.

Nevertheless, the fact of the matter is it's really not his decision to make, as Obama well knows:

As a constitutional law scholar, Obama knows he can't tell the Attorney General whom or whom not to prosecute; he doesn't want to influence the DOJ OPR reviews; the White House messed up the comms on this one, but their position never changed. Holder never wanted a special prosecutor either; during the transition, he and Obama explicitly discussed this subject and they found that they agreed with each other.

Holder and Obama also know that the ultimate decision to prosecute will be Holder's, and it will arise from facts not yet in evidence. Holder cannot order his U.S. Attorneys to refuse to accept evidence that interrogators, particularly contractors, deliberately violated the OLC guidelines. If the OPR review finds that DoJ lawyers willfully engaged in misconduct to justify obviously illegal practices, then Holder may not have a choice. (If he did, he wouldn't. But he might not.)

Rahm Emanuel, however, was apparently not so clear on the whole "independent judiciary" thing, and may have really stepped in it when he said the Obama Admin wouldn't pursue torture prosecutions:

The Daily Beast has learned that senior Justice Department lawyers were “incensed” at the Emanuel and Gibbs statements, as one put it—not because they disagreed with Obama’s apparent opposition to an investigation and prosecution, but because the statements violated well-established rules separating political figures in the White House from decisions about active criminal cases. The statements were viewed as a frontal assault on the autonomy and independence of the criminal-justice system. “Emanuel got far ahead of the process and described it in a way that clearly suggested that political judgment was driving the entire process,” one senior Justice official told me. “It was depressing and amateurish.”

Now the White House misstep may in fact be propelling the process in the opposite direction. Another Justice Department official observed, “The department is now in the process of making some very tough decisions about what to do with this extremely complex and difficult matter. Emanuel’s statement was unfortunate, because now if the attorney general decides against appointing a special prosecutor, people are going to believe that this was a politically dictated decision. The only clear way out of this bind may now be to do what the critics suggest and appoint a special prosecutor.” Demands for the appointment of a special prosecutor have been proliferating in recent days following the release of the torture memoranda on April 16.

That may help explain the shift in language from the Obama camp that Jon Stewart mocks here:

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A TPM reader captured the situation pretty well I think:

Let's say that all of the sudden, due to the catastrophic onset of a once-in-a-generation crisis, it no longer becomes possible to deny that the elites at the head of a societally important institution have a record of rampant violation not just of the law, but of our most cherished American ideals. Do you:

A) acknowledge that the institution itself has failed in fundamental ways, name and prosecute the true bad apples to the fullest extent of the law, and overhaul the system in a way that essentially wipes out many of the vested interests that have kept it going; or

B) attempt to patch up the existing system by agreeing to keep up various now-discredited fictions and illusions in exchange for a few hard concessions from the elites, all in the hope that the whole monstrosity can limp along until the crisis has passed, at which point it can recover and all of the elites can go back to business as usual

Obama is, by nature, a consensus seeker with inhuman levels of ambition and talent, which means that on both torture and on Wall St. bankster criminality he instinctively reaches for B), which is the (impossible) option that attempts to please everybody at least a little. But what we really need is A), which would seem to someone like Obama to be the most dangerous option, necessitating as it does the social trauma of genuine collective soul searching. You'd have to be able to gamble that America can tolerate this kind of huge rupture -- like the lancing of a boil -- and come through it all intact, and Obama is not a gambler.

But gambler or no, is doing nothing really an option?

Eugene Robinson (who recently won a Pulitzer btw) says we can't just let lawbreaking slide:

The rule of law is one of this nation's founding principles. It's not optional. Our laws against torture demand to be obeyed -- and demand to be enforced.

It's pretty amazing that such an obvious point needs to be made, but here we are.

Krugman says this is about our Nation reclaiming its soul:

America is more than a collection of policies. We are, or at least we used to be, a nation of moral ideals. In the past, our government has sometimes done an imperfect job of upholding those ideals. But never before have our leaders so utterly betrayed everything our nation stands for. “This government does not torture people,” declared former President Bush, but it did, and all the world knows it. And the only way we can regain our moral compass, not just for the sake of our position in the world, but for the sake of our own national conscience, is to investigate how that happened, and, if necessary, to prosecute those responsible.

These two commentators, however, are the exception not the rule. Much political commentary tracks closer to David Broder's, who argues that action would amount to the criminilization of policy differences.

It's worth noting that if we decide the acceptibility of torture really is just an honest policy difference between the parties we can pretty sure that it will take place again in the future.

I'll finish with a video and an incendiary bit of speculation...

This segment from Keith Olbermann ably explains why waterboarding is indeed torture:

And here's the incidendiary bit...

We have all heard the argument that waterboarding can't be torture because we do it to our own troops as a part of a military training program. As this article notes:

the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans.

but Bush officials say they didn't know anything about what they had approved. If they would have done some research they would have discovered that

Government studies in the 1950s found that Chinese Communist interrogators had produced false confessions from captured American pilots not with some kind of sinister “brainwashing” but with crude tactics: shackling the Americans to force them to stand for hours, keeping them in cold cells, disrupting their sleep and limiting access to food and hygiene.

“The Communists do not look upon these assaults as ‘torture,’ ” one 1956 study concluded. “But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture.”

Worse, the study found that under such abusive treatment, a prisoner became “malleable and suggestible, and in some instances he may confabulate.”

In late 2001, about a half-dozen SERE trainers, according to a report released Tuesday night by the Senate Armed Services Committee, began raising stark warning about plans by both the military and the C.I.A. to use the SERE methods in interrogations.

So ironically we employed a technique used to force confessions (because victims will say whatever their captor wants to hear to make it stop) as part of our own interrogations.

Or is it so ironic afterall? We now know that one of the primary goals of the interrogations was to "find" the link between Al Qaeda and Iraq, in order to provide the Bush Admn cover for their war. Frank Rich connects the dots:

we do have evidence for an alternative explanation of what motivated Bybee to write his memo that August, thanks to the comprehensive Senate Armed Services Committee report on detainees released last week.

The report found that Maj. Paul Burney, a United States Army psychiatrist assigned to interrogations in Guantánamo Bay that summer of 2002, told Army investigators of another White House imperative: “A large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful.” As higher-ups got more “frustrated” at the inability to prove this connection, the major said, “there was more and more pressure to resort to measures” that might produce that intelligence.

In other words, the ticking time bomb was not another potential Qaeda attack on America but the Bush administration’s ticking timetable for selling a war in Iraq; it wanted to pressure Congress to pass a war resolution before the 2002 midterm elections. Bybee’s memo was written the week after the then-secret (and subsequently leaked) “Downing Street memo,” in which the head of British intelligence informed Tony Blair that the Bush White House was so determined to go to war in Iraq that “the intelligence and facts were being fixed around the policy.” A month after Bybee’s memo, on Sept. 8, 2002, Cheney would make his infamous appearance on “Meet the Press,” hyping both Saddam’s W.M.D.s and the “number of contacts over the years” between Al Qaeda and Iraq. If only 9/11 could somehow be pinned on Iraq, the case for war would be a slamdunk.

But there were no links between 9/11 and Iraq, and the White House knew it. Torture may have been the last hope for coercing such bogus “intelligence” from detainees who would be tempted to say anything to stop the waterboarding.

Last week Bush-Cheney defenders, true to form, dismissed the Senate Armed Services Committee report as “partisan.” But as the committee chairman, Carl Levin, told me, the report received unanimous support from its members — John McCain, Lindsey Graham and Joe Lieberman included.

Levin also emphasized the report’s accounts of military lawyers who dissented from White House doctrine — only to be disregarded. The Bush administration was “driven,” Levin said. By what? “They’d say it was to get more information. But they were desperate to find a link between Al Qaeda and Iraq.”

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.

(more on this here)

Even if it wasn't their stated goal, you get the impression Bushco wasn't exactly worried about the possibility of forcing false confessions that might help them politically. Talk about down the rabbit hole. I'm about as jaded as they get when it comes to these guys, but to consider that our government may have tortured people to extract false confessions to use as a basis for going to war is hard to contemplate.

I, for one, would like to know if it's true.

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