Monday, April 27, 2009

Torture Justifications Unravel

Violence can only be concealed by a lie, and the lie can only be maintained by violence.
-- Aleksandr Solzhenitsyn
In this week's Sift:
  • The Devastating Senate Report on Torture. I hate to lead with torture two weeks in a row, but new info keeps coming out. You know all that stuff Jane Mayer and Phillippe Sands reported? The stuff liberals believe and conservatives don't? A bipartisan Senate report says it's true. The arguments that defend the Bush administration torture regime aren't tenable any more.
  • Short Notes. To balance all these ugly thoughts about torture, I present a picture I took Friday of a soon-to-be-momma swan. And funny videos, like Lex Luthor asking for a government bailout.

The Devastating Senate Report on Torture
"In the space of a week," writes Scott Horton, "the torture debate in America has been suddenly transformed."

The instrument of that transformation is the Inquiry into the Treatment of Detainees in U.S. Custody report that the Senate Armed Services Committee released on Tuesday.

If you've been following this story on the Sift over the last year or so, and clicking the links out to reporting by people like Phillippe Sands and Jane Mayer, you may wonder what is so remarkable -- because the story told by the Senate report is not new. But the significance of the Senate report is its authority and authenticity. Until now, if you didn't want to believe that torture of detainees was a real problem, you could point to the anonymous sources in Sands', Mayer's, and Seymour Hersh's reports and say they were making it all up; it was just a bunch of left-wing propaganda from the Bush-haters.

You can't do that any more. The Armed Services Comrmittee included Republicans like John McCain, John Warner, Elizabeth Dole, and Lindsey Graham. (The report was finished by the previous Senate, in November.) It reviewed "more than 200,000 pages of classified and unclassified documents" and interviewed over 70 individuals, some under subpoena. This the most authoritative document on torture we currently have.

And -- together with the testimony of newly emboldened officials who are saying in public what they previously said only off the record -- it absolutely destroys the layers of disinformation that the Bush administration laid down to protect itself. Let's take those layers one by one.

It's not torture. President Bush said it outright in 2007: "This government does not torture people. We stick to U.S. law and our international obligations." And Dick Cheney said in December: "We don't do torture. We never have." For the longest time, simply saying the word torture marked you as part of the liberal fringe. It was OK to talk about enhanced interrogation or to use euphemisms like "the gloves came off," but not torture.

As long as the techniques were not described in detail, you could tell yourself it wasn't really torture. Rush Limbaugh minimized it like this: "If a few terrorists get slapped around or sprinkled with water or lack air conditioning to protect us from further attacks, we can live with it." Joe Lieberman said waterboarding was "not like putting burning coals on people's bodies." (Like that's the standard.)

Well, the not-torture argument has fallen apart. In a report written in February 2007 but just leaked a few weeks ago, the International Committee of the Red Cross repeated what it had heard from 14 detainees -- descriptions that now closely match the techniques OK'd in the Bybee memo -- and said that this treatment "amounted to torture and/or cruel, inhuman or degrading treatment." The Senate report quotes a CIA lawyer as saying in 2002: "If the detainee dies, you're doing it wrong."

Now that the American people have heard about slamming people's heads into walls, stuffing them into boxes, soaking them in cold water and leaving them to shiver in chilly cells, and waterboarding them as much as 183 times in a month -- and from Bush administration memos, not liberal reporters -- you can't make those mental images go away with Orwellian Newspeak like enhanced interrogation.

Even House Republican leader John Boehner said the newly released memos outlined "torture techniques". (His spokeman tried to back away from those words later.) George Will (full quote to come) somewhat apologetically referred to "torture, if you will". Increasingly, refusing to call these techniques torture marks you as part of the conservative fringe.

Even if it is torture, it's not policy. This is the "few bad apples" defense that the Bush administration used after the Abu Ghraib photos came out. The Senate report:
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. ... Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there.
Even if it is a policy of torture, it's legal. This was the gist of the John Yoo memos: The president's power as commander-in-chief trumps all treaties, laws, and even the Bill of Rights. So if the president wants to order torture, fine.

As long as Yoo's memos were secret, people in the government could vaguely tell each other that the lawyers said the techniques were OK. You could almost imagine that some legal wizardry really did squeeze them into the letter of the law. But when the memos started coming out in 2004, the low quality of Yoo's reasoning was obvious to everyone. Jack Balkin called them "arguments that make you ashamed to be a lawyer." NYT reporter Anthony Lewis wrote:
The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison.
There was, in fact, no other reason to classify the Yoo torture memos. They didn't mention any specific interrogation techniques or contain any other information that would help our enemies. The "secret" was the sheer brazenness with which Yoo declared the law to be whatever the President wanted it to be.

We've found out since that competent lawyers were working for the government as well, and that circumventing their accurate analysis required all of David Addington's bureaucratic cleverness. The military judge advocate generals (JAGs) were uniformly opposed to torture. Navy General Counsel Alberto Mora tried to get the torture tactics rescinded, and thought for a while that he had succeeded. State Department lawyer (and 9-11 Commission executive director) Philip Zelikow wrote a memo dissenting from the Bush administration torture memos. He reports: "The White House attempted to collect and destroy all copies of my memo."

Why would they do that? The Anonymous Liberal explains:
The only reason to collect and destroy all copies of this memo would be in order to preserve, for as many Bush administration officials as possible, a potential defense against later prosecution. If the extent of these activities ever became public and investigations were commenced, the White House wanted to be able to argue that everyone involved relied in good faith on the advice of counsel. That defense would be severely undermined if it could be shown that these officials were warned, by a lawyer of Zelikow's caliber and rank within the administration, that the legal arguments they were relying on were poorly reasoned and unlikely to be sustained by a court.
Attempting to destroy all copies of Zelikow's memo, in other words, is evidence of bad faith. They knew they were wrong.

Even if it's illegal, it's necessary. This is the "ticking time bomb" argument. Michael Scheuer (the former head of the CIA's Bin Laden unit) made that argument yesterday in the Washington Post. (I feel bad about Scheuer. I learned a lot from his 2004 book Imperial Hubris, but he's been getting wiggier and wiggier ever since.)

Here's the problem with that argument: There has never been any reason to believe that torture is an effective interrogation strategy. The Senate report makes it painstakingly clear that our torture program was never even designed to be an interrogation strategy. The torture techniques come from the SERE school, which mimicks a Chinese program designed to get false confessions. (That same Chinese program is the root of the classic Cold War novel The Manchurian Candidate. It's about brainwashing, not getting information.) SERE trains our own soldiers to withstand a Chinese-style brainwash. But it was always a school for the potential victims of torture, not a school for interrogators. The SERE techniques were brought into interrogations largely over the objections of trained interrogators.

Unsurprisingly, then, the McClatchy newspapers report:
The CIA inspector general in 2004 found that there was no conclusive proof that waterboarding or other harsh interrogation techniques helped the Bush administration thwart any "specific imminent attacks," according to recently declassified Justice Department memos.
Even more damning was an article by FBI interrogator Ali Soufan published in the New York Times on Thursday.
For seven years I have remained silent about the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding.
Using only standard FBI interrogation tactics, Soufan and another agent questioned Abu Zubaydah, the suspected terrorist whose interrogation became the subject of a Jay Bybee memo. Bybee wrote: "The interrogation team is certain that he has additional information that he refuses to divulge." Quite the opposite, Soufan writes that Abu Zubaydah was cooperating.
There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.
Even if it's illegal and unnecessary, it only hurts people who deserve it. Karl Rove was making this point in 2005 when he said: "Liberals saw the savagery of the 9/11 attacks and wanted to ... offer therapy and understanding for our attackers." No politician wants to go before the voters as a defender of terrorists' rights.

But until detainees have been through some kind of legal process, they're just suspects. And sometimes they turn out to be innocent, like Maher Arar, the Canadian we arrested while he was changing planes in New York and shipped off to Syria to be tortured. Our mistake cost him a little more than a year of his life. Or like Khaled al-Masri, a German citizen we abducted in Macedonia and held for four months in Afghanistan. (He had just argued with his wife, who -- when he seemed to vanish into thin air -- assumed he had left her and their four children.) In The Dark Side, Mayer reports: "Almost from the first moments that the CIA took custody of him, some Agency officials suspected that Masri was innocent. Yet for months they subjected him to unsparing abuse anyway."

Finally, this story: A soldier in Iraq killed herself after refusing to participate in abusive interrogations. The Army covered it up.

Even if it's illegal, unnecessary, and hurts innocent people, it doesn't hurt ordinary Americans. Soufan points out one of the ways that torture makes us all less safe: It reconstructed the wall between the CIA and the FBI that the 9-11 Commission tried to tear down. Because the FBI's purpose is to send criminals to prison under the law, an FBI investigation needs to be untainted by techniques that would get the whole case thrown out of court.
Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him. ... Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.
The Senate report is very clear about how we've been hurt by our abusive interrogation tactics:
Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
This judgment about our "moral authority" flies in the face of another standard argument, made often by Dick Cheney and as recently as last Sunday by George Will:
Rahm Emanuel said that the terrorists use our enhanced interrogation -- torture, if you will -- as a rallying cry. [But] before we had this enhanced interrogation, we had the 1993 bombing of the World Trade Center, the attacks on the East African embassies. We had the bombing of the Cole. The terrorists weren't waiting to be incited.
Where to start with this? First, note the hidden assumption that prior to torture America had done nothing to incite anyone. We were just minding our own imperial business, and then 9-11 happened out of the blue. But in The Accidental Guerrilla, counterterrorism expert David Kilcullen makes the opposite argument: Most of the enemies we face are "accidental" -- they were the ones minding their own business when we blundered into their territory chasing terrorists.

Even if it's illegal, unnecessary, hurts innocent people, and makes us all less safe, no one should be held accountable.
This is the point that is still under argument. For example, Senators Graham, McCain, and Lieberman have issued a statement asking the administration not to prosecute the lawyers who wrote the torture memos:
Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime.
This line of defense is no more credible than any of the others. In fact, no one is saying that bad-but-honest legal advice or bad-but-honest policy advice of any kind should be criminal. In order to prosecute someone like John Yoo or Jay Bybee, you'd need to show bad faith: that they knew they were giving bogus advice that facilitated the administration's law-breaking. Bad faith is hard to prove, but the fact that the administration destroyed memos and lost emails is awfully suspicious. Who knows what we'd find if we did a serious investigation?

Jim White of Oxdown Gazette nailed this argument back in February:
there would be no need to "criminalize policy differences" with the Bush Administration if the policies themselves were not crimes. Torture is not a policy difference, it is a crime. Wiretapping without a warrant is not a policy difference, it is a crime. ... To complete the inversion of logic here, now note that since there are indeed crimes that have been committed by the Bush Administration, when there is a call not to prosecute because Bush was the President and he and his minions were acting "for the good of the country", this is actually a call to inject a political consideration [my emphasis] into the decision of whether to prosecute.
The way to keep politics out of the legal process is to do what Colin Powell's former chief of staff wants: appoint a special prosecutor and let him or her follow the evidence wherever it leads.

Even over at Fox News, support for torture is starting to unravel: During the "Freedom Watch" segment Wednesday, Shepard Smith completely lost it on the air. After listening to a colleague make the point that torture helps keep us safe, Smith repeatedly slaps the desk for emphasis as he says:
We. Are. America. I don't give a rat's ass if it helps. We are America! We do not fucking torture! We don't do it.

The Senate report quotes Major Paul Burney about one motivation for torture:
we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful ... The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate resuIts.
This is the real nightmare scenario -- torturing people until they say things to support the torturer's delusions. It's lose-lose in every direction.

Not sure why, but putting Jay Bybee's words to music somehow captures their nonsensical quality better than just reading them on a computer screen.

You know your frame is winning out when people have arguments like this: Paul Begala said that we executed Japanese soldiers for waterboarding during World War II, but National Review's Mark Hemingway claimed Begala exaggerated: It was only 15 years at hard labor. Begala replies: Those were two different cases.

Short Notes
The new kids on my block. My apartment building is right next to Mine Falls Park (pictured), so one couple in my neighborhood is a mating pair of swans. They tell me that it's nesting season, and that they expect to hear the splish-splash of little cygnets any day now.

If you've never seen a straight steal of home, you weren't watching the Red Sox and Yankees last night.

The "Gathering Storm" parodies just won't stop. Here, some actors you might recognize (Alicia Silverstone, for one) get together to do one for

While you're at FunnyOrDie: If all the villainous Wall Street firms are getting bailouts, why not LexCorp? Lex Luthor (played by Mad Men star Jon Hamm) has great plans for his federal cash. And no nerds were harmed during the filming of the Malin Akerman Watchmen Tour. Alyssa Milano (from Charmed -- how do they get these people?) is Lady Liberty in this parody of a trailer for "The Wrestler" -- but the broken-down wrestler is Uncle Sam. Wonder what Lindsey Lohan's eHarmony video would look like? What about the video Bristol Palin's ex-boyfriend would make in response?

Bill Kristol has won a quarter-million-dollar prize from the conservative Bradley Foundation. Joan Walsh's reaction: "Maybe there isn't a God."

Now ask the rest of us. Near the bottom of a long and otherwise standard "If the election were held today ..." poll of Texans, Research 2000 asked: Do you think Texas would be better off as an independent nation or as part of the United States of America? More than 1 in 3 Texans endorsed independence, and Republicans split evenly, 48-48.

1 comment:

John McCain said...

Nice summary of why all the "pro torture" arguments are wrong, but I like Shepard Smith's the best. Even if torture buys us a modicum of security is it worth our collective soul?