Morphing on: a note to readers

Entries on Runes this year have morphed from the mostly political into the exclusively cultural, with an emphasis on literature, blues and, lately, African and Indian music.

This shift is partly due to the fact that a major focus in the past, the torture regime under the Bush/Cheney administration, has finally emerged as a national controversy that might yet lead to the appointment of a special prosecutor and eventual legal action. Various bloggers and columnists have pursued this goal for years without getting much attention, but the recent Red Cross Torture Report and a related article (and here) by Mark Danner in the New York Review of Books helped to belatedly expand public awareness of the issue.

While I'm certainly not saying that work by progressives in this area has been completed, the issue has developed a momentum of its own — for now. The tension between the ethical obligation to prosecute war crimes and the desire to move on might yet be resolved in favor of the latter. The scope of the planned investigation already seems too narrow, since it seems to accept as legitimate any "interrogation techniques" condoned by the torture memos of Jay Bybee, John Yoo and the White House Office of Legal Counsel.

Meanwhile, Hilzoy of Obsidian Wings, one of my favorite bloggers, is retiring. As she explains it:

"The main reason I started blogging, besides the fact that I thought it would be fun, was that starting sometime in 2002, I thought that my country had gone insane. It wasn't just the insane policies, although that was part of it. It was the sheer level of invective: the way that people who held what seemed to me to be perfectly reasonable views, e.g. that invading Iraq might not be such a smart move, were routinely being described as al Qaeda sympathizers who hated America and all it stood for and wanted us all to die.

"I thought: we've gone mad. And I have to do something -- not because I thought that I personally could have any appreciable effect on this, but because it felt like what Katherine called an all hands on deck moment."

All this rings true for me, too. Hilzoy will be missed, though I'm not quite ready to follow her (and Sarah Palin's) lead by shutting down this forum. In keeping with the eclectic nature of Runes, more entries on political topics seem inevitable. For now, though, it's great fun sifting through my bookshelves, photo collection and YouTube for items that might otherwise be overlooked. If nothing else, Runes can always function as a kind of personal archive, journal and storage locker.


PHOTO: From a men's room at Goldman Sachs, which just reported record profits of $3.44 billion. GS is the largest remaining investment bank on Wall Street.

Rachel Maddow interviews Michael Isikoff on the torture lawyers

Visit msnbc.com for Breaking News, World News, and News about the Economy

Rachel interviews Michael Isikoff at the end of this segment (February 16th) on the latest revelations about the Bush Justice Department. Isikoff makes a compelling, if somewhat obvious, argument:

1) IF the Yoo/Bybee memo was intended to gave Bush officials legal cover for waterboarding and other forms of torture, AND
2) Those same officials pressured Bybee, Yoo and or AG Gonzales to produce exactly that justification, THEN
3) The whole legal cover evaporates, taking with it the "good faith" defense.

"Good faith reliance" on a legal opinion still has some political credence as a barrier to prosecutions, as Barack Obama himself has declared. But, legally speaking, acting in "good faith" is not, and has never been, a defense to a federal torture charge.

Morally speaking, we can hope that a person instructed to waterboard a detainee would hesitate and refuse — even if a "legal opinion" said it was okay.

Slapping a few wrists

In the February 14th issue of Newsweek, Michael Isikoff writes:

"An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys."

[snip]

"If [Attorney General] Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action."

Jay Bybee and John Yoo, authors of the infamous torture memo, must be quaking in horror at the prospect of disciplinary action that could range from a reprimand to suspension to disbarment.

As a practical matter, any disciplinary proceedings against Yoo would have little effect since he teaches law as a tenured member of the faculty at Berkeley. Jay Bybee sits on the 9th Circuit, and it's no small matter to discipline or remove a sitting federal judge. However, it seems highly unlikely that either Yoo or Bybee would face grave sanctions for "'deeply flawed' and 'sloppily reasoned' legal analysis." If they had been in the private sector when their opinions had been offered, a lawsuit for malpractice might prove more productive.

While professional discipline wouldn't be much of a sanction, given the war crimes these officials directly facilitated, at least it would be a start.

Under the Nuremberg principles, there's ample ground to launch a criminal investigation of Bybee and Yoo, along with former AG Alberto Gonzales. The true purpose of their "advice" was to give legal cover to practices that were blatantly in violation of U.S. and international laws prohibiting torture. Reliance on that advice is no excuse whatsoever. This hasn't been a gray area of the law for at least 63 years.

Nazi lawyers and judges were successfully prosecuted at Nuremberg — by U.S. prosecutors — for making the kinds of technical, bureaucratic arguments that Bybee, Yoo and Gonzales devised.

Obama needs to reconsider his apparent reluctance to investigate the Bush years and his inexplicable statement that officials who relied on legal opinions shouldn't be prosecuted. As a lawyer who has taught constitutional law, he surely realizes that there's no "good faith" defense to torture, and any reliance on legal opinions must be "reasonable." Moreover, the "good faith" argument is all too evocative of the discredited Nuremberg Defense ("I was only following orders").

Disciplinary proceedings would send a "signal," but not a very strong one — unless they provide a legal and political foundation for actual prosecutions of Bybee, Yoo and the rest of the Bush/Cheney cabal. A stronger move would be the creation of a "truth and reconciliation commission" along the lines proposed last week by Senator Patrick Leahy (D-VT).

Unfortunately, Leahy qualified his proposal by stating that "he was only offering the idea to see how much support it had:"

"We need to see whether the American people are ready to take this path," he said, adding that he did not have anyone in particular in mind to lead the commission, but wanted "people with real credibility."

Why should the "level of support" really matter if war crimes were committed? (No doubt there was little support for the Nuremberg prosecutions in Germany in 1945 [1].) As Obama stated last week:

"Nobody's above the law and if there are clear instances of wrongdoing then people should be prosecuted just like any ordinary citizen, but that generally speaking, I'm more interested in looking forward than I am in looking back," said Obama. "I will take a look at Senator Leahy's proposal but my general orientation is to say, let's get it right moving forward."

In the face of such headwinds, it will require someone with raw political courage to pursue this issue, and that's traditionally been a scarce commodity in Washington (with some notable exceptions). But without an investigation, there's simply no way to evaluate whether any "wrongdoing" has occurred.

Finally, the least serious crimes committed by the Bush/Cheney administration are the ones that seem to be getting the most attention: torture and "abusive interrogations," detentions without due process, warrantless wiretaps, improper hirings and firings in the Justice Department. Sadly, the most serious offenses get little attention: crimes against peace, including such crimes against humanity as waging an aggressive war in Iraq and "the wanton destruction of cities, towns, or villages, or devastation not justified by military necessity" [Nuremberg Principle VI (b)].

Unless these questions are thoroughly addressed by an investigation, we — like the rest of the world — will be left to wonder what kind of people we are.


NOTES:

[1] This is not meant to suggest that the war crimes of the Bush administration are comparable, qualitatively or quantitatively, to those of the Nazis. But some of the same legal considerations apply to prosecutions under the Nuremberg principles and other provisions of international law. This topic has gotten a lot of attention on these pages, including (most recently) here and here.

PHOTO: Speaking of political courage, where's the great Telford Taylor (1908-98), a chief U.S. prosecutor at Nuremberg, when we really need him? [Wikimedia Commons]

[H/T to Lawyers, Guns and Money and Obsidian Wings, where
versions of the above were cross-posted as comments.]

Obama priorities: Round two

Not a bad start. In one week, Barack Obama has signed executive orders that are calculated, at long last, to ban torture by the U.S. government, close Guantanamo, and shut down the CIA's secret "black site" prisons around the world. Eric Holder, his nominee for Attorney General, has declared waterboarding to be torture, opening the way to possible (but unlikely) prosecutions of those officials in the Bush administration who authorized or approved its use.

Obama has also acted quickly on environmental issues. As of today, California will be allowed to develop more aggressive pollution-control standards for cars. He has also rescinded the Bush administration's notorious gag order on discussing abortion at overseas birth-control clinics that receive funding from the U.S. government. By freezing a Bush delisting order, Obama has restored the protection of wolves under the Endangered Species Act.

To pursue his economic program, Obama will descend into the ninth circle of political hell by meeting with congressional Republicans tomorrow. Good luck with that, as the Democrats are reduced to courting Maine's two Senators to get the 60 votes they need to stop a filibuster.

So the agenda has moved along nicely in just 168 hours. (Still, you've got to wonder: will the Democrat's economic rescue package go down the tubes in the name of "bipartisanship?")

Now I doubt that the following list would be totally overlooked by the Obama administration, but these are four items also deserve high priority in any effort to reintegrate the U.S. into the global legal framework.

1. Join the International Criminal Court (ICC) in The Hague

The ICC has recruited 108 member nations since it was founded in 2002. The membership includes nearly all countries in western Europe and South America, Japan, Canada, Mexico and Australia. Bill Clinton signed the treaty at the end of his second term, but George W. Bush "ordered the signature withdrawn." By joining the ICC, the U.S. would send a strong message that it has again embraced the rule of law after an eight-year lapse. The Obama administration and current ICC members should strongly encourage China, India and Russia to join.

2. Sign the treaty banning antipersonnel mines

The treaty is formally known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction -- or more briefly, the Ottawa Treaty. The treaty was adopted following a vigorous campaign by Jody Williams, a U.S. citizen, that won the early support of the Canadian government. Williams was awarded the Nobel Peace Prize for her efforts. There are 155 signatories to the treaty, including the ones mentioned above. But not the U.S., which claims that the heavily-mined DMZ in Korea should be exempted from its provisions. Meanwhile, South Korea, the supposed beneficiary of U.S. protection, states that it has produced no antipersonnel mines since 2000. Like the U.S., most current manufacturers of antipersonnel mines have refused to sign the Ottawa treaty.

3. Sign the convention banning cluster bombs

After the Convention on Cluster Munitions was approved in Dublin in May of 2008, it was quickly accepted by 107 nations. Last month, 97 of those nations went on to formally endorse the Convention in Oslo. The usual suspects have refused to participate, including the U.S., China, Russia, India and others who either manufacture cluster bombs or have large stockpiles. Unexploded cluster bombs can remain hazardous to civilians for many years.

4. Ratify the Kyoto Protocol on climate change and its successor

The Kyoto agreement is, technically speaking, a Protocol to the U.N Framework Convention on Climate Change (UNFCCC). While the U.S. is a signatory to the Protocol, it has never been ratified by the necessary two-thirds of the Senate. That leaves the U.S. among a handful of countries that have defied international opinion and the overwhelming weight of empirical data on climate change. On their own initiative, an impressive number of U.S. states and cities have adopted many of the Protocol's goals. Over the next couple years, the UNFCCC will be developing a successor to the Kyoto Protocol that will likely include a "cap and trade" system for carbon emissions. While ratification of the Kyoto Protocol might be of little practical importance at this late date, the Obama administration could make up for lost time by playing a major role in developing the next set of goals for stabilizing the climate.

These four steps would require the approval of the U.S. Senate, and therefore the recruitment of a single Republican to overcome a filibuster, not to mention other obstructionist tactics that could (and will) be used. But it's not too early to start the process of gaining approval for these essential treaties.


TOP PHOTO: Barack Obama poses with one of his peers. (Wikimedia)

MIDDLE PHOTO: A U.S. M18A1 claymore antipersonnel mine, ready for deployment. (Wikimedia)

BOTTOM PHOTO: A USAF B-1 bomber dropping 30 CBU's (cluster bombs) (Wikimedia)

'Taxi to the Dark Side' - See it!

Anyone who has doubts about prosecuting the highest officials of the Bush/Cheney administration for their roles in the torture regime of the last seven years should see this powerful film, which won an Academy Award and a Peabody Award. It should be required viewing for all incoming members of Congress and the new administration, especially Barack Obama and his Justice Department.

Point/Counterpoint

POINT: From ABC News, April 11th:

President Bush says he knew his top national security advisers discussed and approved specific details about how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, according to an exclusive interview with ABC News Friday.

"Well, we started to connect the dots in order to protect the American people." Bush told ABC News White House correspondent Martha Raddatz. "And yes, I'm aware our national security team met on this issue. And I approved."

As first reported by ABC News Wednesday, the most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al Qaeda suspects would be interrogated by the CIA.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

These top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding, sources told ABC news.

[See also this related story from ABC on these "Principals" meetings.]

And from the Associated Press, April 11th:

[A] former intelligence official described Cheney and the top national security officials as deeply immersed in developing the CIA's interrogation program during months of discussions over which methods should be used and when.

At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of "principals" fully understood what the al-Qaida detainees would undergo. The principals eventually authorized physical abuse such as slaps and pushes, sleep deprivation, or waterboarding. This technique involves strapping a person down and pouring water over his cloth-covered face to create the sensation of drowning.

Finally, the Washington Post reports: "I told the country we did that," Bush said. "And I also told them it was legal. We had legal opinions that enabled us to do it." Nonetheless, "State Department officials and military lawyers were intentionally excluded from these deliberations, officials said. [Attorney General Alberto] Gonzales and his staff had no reservations about the proposed interrogation methods and did not suggest major changes, two officials involved in the deliberations said."

COUNTERPOINT: [Note especially 18 U.S.C. Section 2340A (c), with relevant part in bold.]

Title 18, United States Code, Section 2340: Definitions

As used in this chapter—

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality...

Title 18, United States Code, Section 2340A: Torture

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Prosecutor alert: isn't it time to draw up the criminal complaint for United States of America v. George Walker Bush, et al.?

[My emphasis. For a recent analysis of related
legal and political questions, check this out.]

The legal endgame

After he vetoed H.R. 2082, the “Intelligence Authorization Act for Fiscal Year 2008,” George Bush submitted the following explanation to the House of Representatives:

"Section 327 of the bill would harm our national security by requiring any element of the intelligence community to use only the interrogation methods authorized in the Army Field Manual on Interrogations. It is vitally important that the Central Intelligence Agency (C.I.A.) be allowed to maintain a separate and classified interrogation program... While details of the current C.I.A. program are classified, the attorney general has reviewed it and determined that it is lawful under existing domestic and international law, including Common Article 3 of the Geneva Conventions."

Forgive me for taking no comfort in the claim that the Attorney General has "reviewed" and approved the classified program.

Veto or not, "harsh interrogation practices" like waterboarding will be discontinued after next January 20th if a Democrat is elected.

So all this gets curiouser and curiouser, legally speaking. Why all the fuss, if the torturers might only be in business for another ten months?

The federal criminal code (18 USC 2340A) already prohibits acts of torture "committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering... upon another person within his custody or physical control." Additional provisions describe in some detail the forms of "severe physical or mental pain or suffering" that are encompassed by the prohibition:

"(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

"(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

"(C) the threat of imminent death; or

"(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality..."

It would take a prodigious feat of dissembling to convince a sober juror that this statute doesn't prohibit "harsh interrogation techniques" like waterboarding. (Although that's what lawyers often try to do, obviously.)

The existing law further provides for "federal extraterritorial jurisdiction" if the perpetrator is a U.S. national or the alleged offender is "found within the United States, irrespective of the nationality of the victim or the alleged offender."

If convicted, defendants can be sentenced to up to 20 years in prison or, if the victim was killed, the death penalty. Any person who conspires to commit torture is subject to the same term of imprisonment, but not the death penalty. A conspiracy charge could certainly be filed against any official who authorized acts of torture.

Here's the heart of the mystery: why enact a measure like HR 2082 when the legal toolbox is already adequate to prosecute torturers and those who authorize it?

By passing this bill, Congress implies that there's some ambiguity about whether waterboarding constitutes "torture" within the meaning of the existing statute, which was adopted in 2000. [1] It's stupid, unnecessary and plays into the legal strategy for Bush's endgame, which is to preempt prosecutions of administration officials who authorized torture and create ambiguity about what the law permits.

While one can appreciate Congress' interest in using its funding authority to limit torture, a Bush veto was inevitable. There's no hint that Bush/Cheney have any concern about how the U.S. is perceived in the world, or how his position on torture may affect U.S. troops who themselves become prisoners. These are issues for future administrations, and therefore irrelevant.

Meanwhile, Attorney General Michael Mukasey has initiated an internal ethics investigation of attorneys who approved the use of waterboarding—a process that, at best, would result in nothing more than removal from office. [2]

The far better course for Congress is to aggressively pursue the appointment of an independent counsel to prosecute administration officials who authorized torture. An in-depth congressional investigation is also long overdue [3]. Until those things happen, the Democrat "majority" will be dancing to the Bush/Cheney playbook.

NOTES

[1] The media have uncritically bought into the administration's notion that waterboarding falls into some gray area under existing law. Witness today's NYT article on the veto, which downplays waterboarding as "a technique in which restrained prisoners are threatened with drowning" [my emphasis].

[2] Mukasey has declined to prosecute waterboarders and administration officials on the ground that they relied on legal advice from DOJ attorneys. This is a variation on the "only following orders" defense, which wasn't received very well at Nuremberg. The Uniform Code of Military Justice permits U.S. troops to refuse orders that require illegal acts. Subordinates have a duty to disobey laws requiring them to commit criminal offenses under federal statutes. Once again: there is no ambiguity in the federal law, and it's a mistake to imply any.

[3] As the Bush veto again illustrates, the next administration will have to take very drastic measures to disassociate itself from the Bush torture regime (as noted in more detail here, here and here). A few exemplary prosecutions of war criminals would be a good start.

PHOTO: Water torture in Antwerp, 1556 (Wikimedia).

"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).

Saying no to torture

"Treat [British POW's] with humanity, and Let them have to reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren."

—George Washington, in an order to Lt.Col Samuel Blachley Webb during the Revolutionary War.

Washington "often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should expend even to their enemies."

—Historian David Hackett Fisher in Washington's Crossing (2004)

While the torture "debate" inexplicably continues, this might be a good time to propose a solution that worked quite well during the first 214 years of this country's existence: don't torture, ever. Or abuse, mentally or physically. Apart from the obvious moral issues that shouldn't (but apparently do) require discussion, it's in the manifest self-interest of the U.S. to stop torture, if only for the protection of its own soldiers who might some day be held by foreign governments.

This solution requires no more than a strict application of the Golden Rule: treat prisoners as well as we have a right to expect American prisoners of war and citizens to be treated abroad. Such a rule against torture would apply equally to all prisoners in U.S. custody, of every nationality, whether members of the uniformed armed forces of another country, "detainees," "unlawful combatants," or American citizens.

All persons have an absolute right to be free of torture and abuse, mental and physical. Period. No exceptions and no wiggle room, ever, for any reason.

Unfortunately, endless parsing over the definition of "torture" has been a prominent feature of this absurd and degrading national debate. It should be self-evident that a government has a right to confine persons only when they present a clear and demonstrated danger to others, as determined by lawful processes, whether they're domestic criminals or suspected international terrorists. Those persons should be confined as long as necessary (but no longer), in humane conditions, with adequate shelter, nutrition, medical care, recreation and freedom to observe their religious practices. Prisoners shouldn't be held incommunicado, and they have the right to communicate with family and friends—under supervision, if necessary to protect national security. And they should have a right to legal counsel. Any deviation from these minimal standards quickly becomes a form of abuse or torture.

The moral objections to torture, and the international legal prohibitions on it, are beyond the scope of this posting*. But we needn't look to international law for guidance. American jurisprudence has long recognized that torture and other forms of harsh interrogation can produce very unreliable results and violate both the letter and spirit of the Bill of Rights. This recognition predated the liberal decisions of the Warren court on criminal procedure (primarily made during the sixties) by several decades. So here's a quick stroll down memory lane, with highlights of some major Supreme Court decisions on torture and coerced confessions:

From Chambers v. Florida, 309 U.S. 227** (1940):

"The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless."

From Watts v. Indiana, 338 U.S. 49 (1949):

"The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights—these are all characteristics of the accusatorial system and manifestations of its demands.

"Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards."

Here's Justice Douglas, concurring in Watts v. Indiana:

"Detention without arraignment is a time-honored method for keeping an accused under the exclusive control of the police. They can then operate at their leisure. The accused is wholly at their mercy. He is without the aid of counsel or friends; and he is denied the protection of the magistrate... The procedure breeds coerced confessions. It is the root of the evil. It is the procedure without which the inquisition could not flourish in the country.

And finally Justice Jackson, also concurring in Watts v. Indiana:

"Such treatment not only breaks the will to conceal or lie, but may even break the will to stand by the truth. Nor is it questioned that the same result can sometimes be achieved by threats, promises, or inducements, which torture the mind but put no scar on the body. I suppose no one would doubt that our Constitution and Bill of Rights, grounded in revolt against the arbitrary measures of George III and in the philosophy of the French Revolution, represent the maximum restrictions upon the power of organized society over the individual that are compatible with the maintenance of organized society itself. They were so intended and should be so interpreted." [My emphasis.]

Eleven years later, in Spano v. New York, 360 U.S. 315 (1959), the Supremes stated:

"The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves..."

"Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar."

Ah, but I can hear the legions of parsers already: "These are decisions in criminal cases, where the issue was extracting evidence (like confessions) rather than information, and they involved U.S. citizens subject to ordinary constitutional protections and not suspected terrorists." To which I answer with a loud Bronx cheer. Torture and abusive detentions raise practical and (especially) moral questions that transcend narrow distinctions between citizens and noncitizens, and between criminal prosecutions and intelligence "inquisitions."***

Meanwhile, some 400 "detainees" languish at Guantanamo and others sit in secret CIA prisons in eastern Europe and elsewhere. Some of these prisoners have been in U.S. custody for five years, and some unknown percentage was clearly involved in activities that could be called "terrorist" or in armed opposition to U.S. forces in Afghanistan or elsewhere.

If any of these detainees had any information that was of value in 2001 or 2002, it has long since become obsolete. Terrorist and guerilla organizations have a cellular structure that's designed to limit the damage that would result from the capture or death of members of a given cell, including the leadership. These adjustments happen very quickly, out of necessity. [This beehive structure was clearly demonstrated in Battle of Algiers, the powerful 1966 film by Gillo Pontecorvo that was rediscovered by the Pentagon after September 11th.]

If any of the remaining prisoners represent a continuing danger to the U.S., the government should present evidence of that fact to justify their continued detention. Meanwhile, why do relatively few Americans object to the harsh treatment and extended confinement of these prisoners? Two reasons, I imagine. First, few people are willing to take the risk of releasing any prisoners if one or more of them may commit future terrorist acts. Second, there's a widespread assumption that they must all be guilty of something. If not, why are they being held?

Nonetheless, all persons held by the U.S. government have a due-process right to a hearing with basic protections that include the right to counsel, the right to confront the evidence against them and the right to an impartial magistrate.****If we persist in denying these fundamental rights, we have to ponder some very difficult implications for a self-proclaimed democracy: who are we as a people, and what are we becoming? Right now, despite some encouraging signs in Congress and the courts, the answers to those questions aren't at all clear.

NOTES

*Wikipedia and other online sources have useful information about international legal standards that apply to torture. For example, see Wikipedia's articles on unlawful combatants, the Universal Declaration of Human Rights, torture and the U.N. Convention Against Torture. And also the American Bar Association article mentioned at the top of this posting.

**The citation "309 U.S. 227" refers to volume 309, page 227 of the United States Reports, which contain the full text of the Supreme Court decision. Finding it online is simple: just Google "309 U.S. 227" and you'll find numerous links (of which a few might require free registration).

***Nothing that I say is meant to preclude obtaining evidence or intelligence through noncoercive, voluntary interrogations. Is there a "bright line" that separates noncoercive from coercive questioning? Physical and mental abuse go over that line, including psychological tortures like sleep deprivation, freezing temperatures, various forms of humiliation (such as public nudity), mock execution, sensory deprivation and long-term solitary confinement without human contact (as in the Padilla case). The question is always: is this how we would want a fellow citizen to be treated in another country?

***The fact that some other governments, or terrorist groups, notoriously don't apply similar humanitarian standards in their treatment of American captives is no excuse for our own bad behavior, for all the reasons described by George Washington.

GRAPHIC: Notinourname.net