Scalia: A legend in his own mind

In his dissenting opinion in Boumediene v. Bush, which conferred the right of judicial review on detainees at Guantanamo and elsewhere, Antonin Scalia flatly declared:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

In support of this contention, he claims:

In the short term... the [majority's] decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.

He goes on to cite several incidents from the GWOT "battlefield" — a very flexible concept for Scalia — as alleged in such sources as the minority report of a Senate committee and several articles from WaPo. Most of the alleged incidents occurred in 2004.

Mark Denbeaux, a professor at Seton Hall University School of Law (SHUSL), with the assistance of several law students, deconstructed Scalia's claims in a detailed 22-page report that found:

"Justice Scalia’s reliance on the these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

[...]

"Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data. Such a statement simply repeats, without appropriate judicial analysis or skepticism towards the statements of parties before the Court, inaccurate data disseminated by the Department of Defense. Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die."

The SHULS study found that only one released Gitmo detainee (designated "ISN 220") later took up arms against U.S. forces or their allies, and he was not released as a result of any legal process. In fact, the report found that "the decision to release ISN 220 was made by political officers in the Department of Defense and was contrary to the recommendations of the military officers."

Scalia's false claims go to the heart of the rationale for holding detainees without judicial review: if any doubt exists, keep them locked up indefinitely for fear that they might attack the U.S. or its allies [1]. This falsehood will be repeated many times by October 8th, when the first Gitmo trial begins.

Scalia's dissent is yet another variant of the Willie Horton Syndrome (see below and here) in U.S. politics. No politician or member of SCOTUS wants to be blamed for the release of a prisoner who later attacks U.S. troops or civilians. While this impulse may be understandable, an opaque system that includes torture and indefinite detentions is not the solution. A transparent judicial process is better able to balance legitimate security considerations with the due-process rights of those who have been unfairly accused and imprisoned.

NOTES

[1] Unless there's enough international pressure to force their release, of course.

[H/T to Scott Lemieux at Lawyers, Guns and Money
and M. Duss at Think Progress]

"Into a different game..."

In an interview with the BBC on February 12th, U.S. Supreme Court Justice Antonin Scalia (left) addressed the question of torture in the following terms:

"To begin with the constitution... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime."

Scalia argued that courts could take stronger measures when a witness refused to answer questions:

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game.

"How close does the threat have to be? And how severe can the infliction of pain be?"

Here, once again, is Scalia's version of "strict constructionism" in action: the "punishment" narrowly refers to sanctions imposed by a court following a criminal conviction.

Scalia seems to believe that the authors of the Bill of Rights weren't really concerned about how people in pretrial custody, for whatever reason, were treated. He implies that the 9th Amendment doesn't restrict coercive interrogations during the investigative process, when the presumption of innocence applies to suspects or defendants in the U.S. legal system. So "smacking someone in the face" is permissible, then, for a suspect (or maybe even a witness) who's presumed to be innocent—but not, Scalia generously allows, for convicted criminals.

There's a separate and quite vast body of law, of course, that applies to coerced confessions by persons who are merely suspects in criminal cases. Seventy-two years ago, in Brown v. Mississippi [1], three black defendants were sentenced to death following their conviction for murder. Despite uncontested evidence of torture, the state Supreme Court affirmed the jury's verdict. Two courageous Mississippi judges dissented and described the events that led to the three "confessions:"

"The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o'clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping... until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

"The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed he crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

"Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government."

In unanimously reversing the three convictions, the U.S. Supreme Court rejected the notion of a "trial by ordeal," stating [citations omitted]:

"The rack and torture chamber may not be substituted for the witness stand. The state may not permit an accused to be hurried to conviction under mob domination--where the whole proceeding is but a mask--without supplying corrective process...The state may not deny to the accused the aid of counsel... Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is 'but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured...' And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires 'that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions...'

"It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process."

Is waterboarding even "more revolting to the sense of justice" than the treatment of the suspects in Brown? It's certainly not less revolting. Scalia's reference to a "smacking someone in the face" is disingenuous given the catalog of far greater horrors that have been inflicted on suspects in U.S. custody in places like Guantanamo and Abu Ghraib. His comments to the BBC also focus on the extreme situation facing Jack Bauer in 24: the suitcase atomic bomb that's about to go off in Los Angeles [2].

Ah, but Scalia has already argued that the "unlawful combatants" at Gitmo don't have the same legal rights, and freedom from coercion, as the defendants in the Brown case [3]. In another speech in Europe reported by the BBC , he is quoted as follows:

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break... If he was captured by my army on a battlefield, that is where he belongs."

Scalia, as usual, is quite reckless about expressing himself, and apparently prejudging, matters that are likely to come before the Supreme Court. To paraphrase the old bumper sticker from the days of the AT&T telecommunications monopoly, Scalia might just say: "I don't care, and I don't have to." Unlike other judges, the Supremes aren't subject to any ethical constraints whatsoever, apart from their own consciences.

While Scalia told the BBC that it would be "absurd" to rule out sticking "something under the fingernail" of a detainee in a difficult situation, at least he seems to think that detainees captured on a battlefield are entitled to the same treat as prisoners of war (although 80% of Gitmo inmates were not captured on the battlefield).

The Bush administration, meanwhile, refuses to grant the Gitmo "unlawful combatants" the same minimal rights available to POW's. The prosecution is seeking the death penalty for six detainees, a sentence that is strictly forbidden for POW's under international law, including the Third Geneva Convention of 1949. These show trials will likely be conducted as the fall election approaches, possibly winning political points for Republican waronterra candidates but deepening worldwide cynicism about the alleged "rule of law" in the U.S.

NOTES

[1] Cite: 297 U.S. 278 (1936). The prosecutor in the case was John Stennis, who was the U.S. Senator from Mississippi from 1947 to 1989.

[2] Any minimally-competent terrorist group would arrange to limit the damage to its plans that might result from the capture of any of its members, especially as the plan is about to be realized. It's likely that the terrorists who had actual possession of such a suitcase bomb would be the only ones in a cell who'd know where it was or where it would be used. Torture would be very unlikely to extract any information of value in that situation.

[3] The three defendants were described as "ignorant Negroes" even in the dissent, and no doubt they were second-class citizens. But at least they were citizens entitled to minimal constitutional protections—once their case went beyond the trial court.

PHOTO: The Washington Note

Not asking, not telling

Not since the disastrous French colonial war in Algeria has a democratic country been engaged in a deep internal debate about torture—or, "enhanced interrogation techniques," to use the clinical euphemism that's currently in vogue. The first Guantanamo detainees have been in military custody for over five years, with yet another suicide in recent weeks, and the crimes at Abu Ghraib were revealed early in the Iraq war, yet the debate in the U.S. continues.

Unfortunately, and to our national shame, it's an exaggeration to say that there's a "debate" at all: there's little evidence of any controversy outside the Beltway, raising profound questions about the state of U.S. political culture these days. If I had to guess, I'd say that the general attitude on the subject may be summarized by a phrase from an altogether different controversy: "don't ask, don't tell." The Administration, it would seem, is tacitly authorized to take whatever action George Bush deems suitable to protect the country (as noted in earlier posts here and here).

To the extent that there has been any debate at all, there's ample evidence that it was most intense within the Pentagon, between the civilian and military leaderships:

Speaking publicly for the first time, senior U.S. law enforcement investigators say they waged a long but futile battle inside the Pentagon to stop coercive and degrading treatment of detainees by intelligence interrogators at Guantanamo Bay, Cuba.

Their account indicates that the struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.

In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.

The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.

[...]

It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.

Despite this internal debate, the techniques of torture had already been studied in depth for decades by the Pentagon—but only to teach soldiers how to resist torture, not to practice it:

"Many of the controversial interrogation tactics used against terror suspects in Iraq, Afghanistan and Guantanamo were modeled on techniques the U.S. feared that the Communists themselves might use against captured American troops during the Cold War, according to a little-noticed, highly classified Pentagon report released several days ago. Originally developed as training for elite special forces at Fort Bragg under the "Survival, Evasion, Resistance and Escape" program, otherwise known as SERE, tactics such as sleep deprivation, isolation, sexual humiliation, nudity, exposure to extremes of cold and stress positions were part of a carefully monitored survival training program for personnel at risk of capture by Soviet or Chinese forces, all carried out under the supervision of military psychologists. (1)

So the techniques of presumed communist torturers were assimilated by the U.S. military and eventually re-emerged in the protocols for treatment of detainees in Iraq and Guantanamo. Contrary to the conventional wisdom that untrained and understaffed U.S. guards improvised techniques, perhaps inspired by Jack Bauer and other government operatives in shows like "24:"

The report, completed last August but only declassified and made public on May 18, suggests that the abusive techniques stemmed from a much more formal process than the Defense Department has previously acknowledged. By 2002 the Pentagon was looking for an interrogation paradigm to use on what it had designated as "unlawful combatants" captured in the "war on terror." These individuals, many taken prisoner in Afghanistan, were initially brought to the U.S. detention facility at Guantanamo, although others were subsequently hidden away in CIA secret prisons or turned over to U.S.-allied governments known to practice torture. That same year, the commander of the detention facility at Guantanamo began using the abusive "counter resistance" techniques adopted from SERE on prisoners at the base, and according to the Pentagon report SERE military psychologists were on hand to help.

The use of some "enhanced interrogation techniques" has apparently, for now, been limited:

In response to fallout over the well-documented cases of prisoner abuse — which included prolonged isolation, sensory deprivation (visual and auditory), forced removal of clothing, exploiting prisoners phobias (notably fear of dogs), and threats against family members — the Pentagon began scaling back the use of SERE tactics in 2002 and eventually banned them altogether. The Army Field Manual, which serves as a primary guide for U.S. military interrogation, now specifically rules out the use of a variety of SERE-founded techniques including water-boarding, a form of simulated drowning, as well as the use of dogs.

But critics remain concerned that the Pentagon's clean-up has not gone far enough. In the letter to Secretary Gates, dated May 31, 2007, the non-profit Physicians for Human Rights cites an appendix of the current Army Field Manual that "explicitly permits what amounts to isolation, along with sleep and sensory deprivation." The letter, signed by retired Army General Stephen Xenakis, a psychiatrist and former senior medical commander, and Leonard Rubenstein, the organization's executive director, also points out that the current Field Manual remains "silent on a number of other SERE-based methods (including sensory overload and deprivation) creating ambiguity and doubt over their place in interrogation doctrine."

If the latest Republican presidential debate is any indication, the more restrictive policy on torture could be short-lived. The candidates, notably excepting John McCain in a rare moment of lucidity, fell over themselves to prove who could be toughest on future detainees. The current policies are ambiguous at best:

Even assuming that Pentagon reforms have succeeded in cleaning up the worst excesses of U.S. interrogations, a number of experts have grave doubts that current policies are either workable or effective. Members of the Intelligence Science Board, many of whom serve as consultants to the Pentagon, have recently argued that U.S. interrogation policy involves a grab-bag of outmoded techniques, many dating from the 1950s, that ignore lessons learned from law enforcement and lack cultural sensitivity to Arab and other foreign prisoners. The kind of insensitivity, critics might now add, that we once assumed only our worst enemies would show their foreign prisoners. (2)

The de facto standard for the treatment of detainees was best revealed by George Bush in his memorandum of February 7, 2002. He declared that the U.S. would treat unlawful combatants "humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva" [my emphasis]. As events have demonstrated, the final authority on "military necessity" is George Bush and no one else.

NOTES

(1) SERE techniques were designed to "replicate harsh conditions that the Service member might encounter if they are held by forces that do not abide by the Geneva Conventions." [Quoted from page 23 of the 131-page secret report (2006) by the Defense Department's Inspector General, of which a heavily-redacted copy is available online. Its purpose was to evaluate the DoD's investigations into detainee abuse.]

(2) There's a succinct definition of torture, along with a statement of the moral and policy reasons not to practice it, on page 4 of the DoD report.

PHOTO: Hooded Iraqi prisoner chained to a railing at Abu Ghraib (from Wikipedia Commons).