Karpinski Alleges Rumsfeld Personally Ordered Abusive Interrogations

Former General Karpinsky (demoted to Colonel) has an axe to grind: she was made into the scapegoat for Abu Ghraib. Circumstantial evidence is pretty strong that higher-ups who reported directly to Rumsfeld, notably Gen. Miller, were at least as much to blame, but they escaped all responsibility.

How reliable a witness is Karpinsky? Hard to say -- but reliable enough to deserve a hearing. Or two: one in the House and one in the Senate, say.

Rumsfeld okayed abuses says former U.S. general: MADRID (Reuters) - Outgoing Defense Secretary Donald Rumsfeld authorized the mistreatment of detainees at Abu Ghraib prison in Iraq, the prison's former U.S. commander said in an interview on Saturday.

Former U.S. Army Brigadier General Janis Karpinski told Spain's El Pais newspaper she had seen a letter apparently signed by Rumsfeld which allowed civilian contractors to use techniques such as sleep deprivation during interrogation.

Karpinski, who ran the prison until early 2004, said she saw a memorandum signed by Rumsfeld detailing the use of harsh interrogation methods.

"The handwritten signature was above his printed name and in the same handwriting in the margin was written: "Make sure this is accomplished"," she told Saturday's El Pais.

And, of course, Rumsfeld had better not plan any European travel any time soon.

YATA (Hung By Wrists 'Till Dead)

Long quote. No comment needed: Yahoo! News - AP: Iraqi Died While Hung From Wrists (impermanent link, sorry about that) [alternate lnk).

An Iraqi whose corpse was photographed with grinning U.S. soldiers at Abu Ghraib died under CIA (news - web sites) interrogation while suspended by his wrists, which had been handcuffed behind his back, according to investigative reports reviewed by The Associated Press.

The death of the prisoner, Manadel al-Jamadi, became known last year when the Abu Ghraib scandal broke. The U.S. military said back then that it had been ruled a homicide. But the exact circumstances of the death were not disclosed at the time.

The prisoner died in a position known as “Palestinian hanging,” the documents reviewed by The AP show. It is unclear whether that position — which human rights groups condemn as torture — was approved by the Bush administration for use in CIA interrogations.

…

Al-Jamadi was one of the CIA’s “ghost” detainees at Abu Ghraib — prisoners being held secretly by the agency.

His death in November 2003 became public with the release of photos of Abu Ghraib guards giving a thumbs-up over his bruised and puffy-faced corpse, which had been packed in ice. One of those guards was Pvt. Charles Graner, who last month received 10 years in a military prison for abusing detainees.

Al-Jamadi died in a prison shower room during about a half-hour of questioning, before interrogators could extract any information, according to the documents, which consist of statements from Army prison guards to investigators with the military and the CIA’s Inspector General’s office.

…

Dr. Vincent Iacopino, director of research for Physicians for Human Rights, called the hyper-extension of the arms behind the back “clear and simple torture.” The European Court of Human Rights found Turkey guilty of torture in 1996 in a case of Palestinian hanging — a technique Iacopino said is used worldwide but named for its alleged use by Israel in the Palestinian territories.

The Washington Post reported last year that after the Abu Ghraib scandal broke, the CIA suspended the use of its “enhanced interrogation techniques,” including stress positions, because of fears that the agency could be accused of unsanctioned and illegal activity. The newspaper said the White House had approved the tactics.

Pop Quiz

Crooked Timber: Pop Quiz:

From the Guardian, a sample from the test administered to recruits to the Iraqi Police Force:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person is: a) torture; b) interview techniques; c) nterrogation techniques; d) informative and reliable.

How sad that the United States now has an Attorney General who would get this question wrong.

Gonzales Confirmed: A New Low

Yesterday the Senate confirmed Alberto Gonzales to be the Attorney General of the US. That is the same man who both commissioned and approved the torture memos. Who could not bring himself to say torture is always wrong when quizzed live by a Senator. Who probably committed obstruction of justice in sabotaging the investigation into the Plame affair. Who may have lied to Congress about his shielding the boss in the Texas jury affair.

Yet all the Republicans — including POW torture victim John McCain — and six Democrats (including the quisling-like Joseph I. Lieberman (Conn.) and, sadly, our own Bill Nelson from Florida) voted to confirm. The final vote showed only 36 against, too few to sustain the filibuster which was thus not attempted, a tactical decision that I will not second guess.

A vote for Bush, I said before the election, is a vote for torture. We reap now the bitter fruits of what our fellow citizens then sowed.

May they (and the rest of us too) not get what they deserve.

The Evidence of Systematic Widespread Torture Is Growing: More Tales of Abuses In Iraq

Neil Lewis reports that A.C.L.U. Presents Accusations of Serious Abuse of Iraqi Civilians. But this isn’t about the Abu Ghraib:

The new accusations generally concern the behavior of American Special Forces, as opposed to prison guards or interrogators, who have been accused at Abu Ghraib.

Rather, it’s yet another sign of a pattern and practice.

The American Civil Liberties Union released documents on Monday describing complaints of serious abuse of Iraqi civilians, including reports of electric shocks and forced sodomy, and accused the military of not thoroughly investigating the cases.

The documents list dozens of allegations of abuse at American detention centers - the use of cigarettes to burn prisoners, aggressive dogs, electric shocks, sexual humiliation and beatings - that began at about the same time such acts were occurring at Abu Ghraib prison.

But it is not always clear whether every case described is a new incident.

Based only on the public evidence to date, how much is the ordinary carnage and inhumanity of war, and how much is something that trickled down from above, may be hard to say in a way that would satisfy the ‘beyond a reasonable doubt’ standard. But there seems to be the makings of at the very least a very strong case that is more than circumstantial. If a prosecutor were to tackle this with the aggressiveness with which we pursue Mafia cases, I think we’d see something. But there’s no sign yet of any desire to go after general officers, or even mid-level officers, much less ranking civilians.

War Crimes Trials -- A Cloud on the Horizon

I am very reluctantly coming to believe that there’s about a 50% chance that a senior administration official will face a war crime trial either for ordering or condoning torture, or for the excessive bombing and civilian casualties in Iraq. I think it’s most likely to happen after the official leaves office. It might be in absentia. It could be in Belgium, or in Germany, or (least likely) an international ad hoc tribunal. Already, SecDef Rumsfeld has had to cancel a trip to Germany to avoid the risk of prosecution.

Belgium recently changed its law to make it very difficult to launch war crimes prosecutions against foreign officials, and the supreme court there recently dismissed an attempted lawsuit against Bush. But meanwhile, a significant segment of Belgian public opinion appears to subscribe to the sentiment symbolized by this Wanted poster issued by a Belgian activist group:

Recall that the International Criminal Court agreement (.pdf) (to which the US is not a party) would prohibit these sorts of trials against our officials so long as we set our own house in order. But we are not doing that.

I wonder how long it will take the new Iraqi government to join the ICC? Joining would give the ICC jurisdiction over all actions on Iraqi soil dating after the accession. Regardless of whether they were committed by Iraqis. Then again, joining the ICC without agreeing to exclude jurisdiction against US forces would run Iraq into retaliation from the US: the US has halted military assistance to several nations that have refused to sign ‘Article 98 agreements’ by which they promise not to surrender US nationals to the ICC.

Update: If I had to bet right now, I’d bet it’s the wanton harm to civilians (which I suspect is vastly underreported in the US) that would be most likely to trigger a trial, not the prisoner abuse. But should these allegations of systematic rape in captivity, coupled with claims that the Pentagon is stonewalling by trying to avoid inquiries prove to be true, that might alter the odds.

PS. As noted in the comments, my intent in this particular post was to be positive, not normative. Under what circumstances if any a foreign war crimes trial of a former US President or Cabinet official could ever be be a good thing is very hard for me to think coherently about, as I so passionately want the US to act in a way that makes the whole question absurd.

Gonzales Admits CIA At Liberty to be Inhumane

Just as Marty Lederman has been saying,

The New York Times > Washington > Gonzales Says ‘02 Policy on Detainees Doesn’t Bind C.I.A.: Officers of the Central Intelligence Agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody, Alberto R. Gonzales, the White House counsel, said in documents released on Tuesday.

I don’t care how they parse it: waterboarding — that’s repeated near drowning — is torture in my book.

A Bit Late, What?

I would have found this much more convincing if he could have brought himself to say this live last week. Or, better yet, about two years ago.

Politics News Article | Reuters.com: Alberto Gonzales, seeking to win Senate confirmation as President Bush’s attorney general, declared that any torture by American personnel would be unlawful, according to written responses released on Tuesday to questions by senators.

“As the president has made clear, the United States will not engage in torture and U.S. personnel are prohibited from doing so,” Gonzales wrote in response to a question by assistant Senate Democratic leader Richard Durbin of Illinois.

We're Just Cruel, Inhuman and Degrading

Marty Lederman has another in his series of extraoridanry posts on the legal regulation of US torture and torture-like activiites. Here’s one of the key legal points:

The problem, which I’ve tried to explain in somewhat soporific detail in posts here, here, here, here, here and here, is that Congress (at the urging of Presidents Reagan and George H.W. Bush) has defined the term “torture” exceedingly narrowly—so narrowly, in fact, that OLC has concluded it does not cover techniques such as waterboarding, threats of live burial, and threats of rendition to nations that do torture. Those forms of highly coercive interrogation, going just up to the line of “torture” without going over, are generally unlawful, not

because they are “torture,” but because they fall within the category of conduct denominated “cruel, inhuman and degrading (“CID”) treatment,” i.e., conduct that “shocks the conscience” and hence would violate due process if it occurred within the U.S. Such CID treatment is categorically off limits to the military by virtue of the Uniform Code of Military Justice and the President’s directive that the military treat all detainees “humanely.” Such CID treatment is also categorically prohibited — even for the CIA — with respect to detainees protected by the Geneva Conventions; and such CID treatment would (by definition) be unconstitutional — even for the CIA and even as applied to Al Qaeda detainees — here in the U.S.

But the Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction.

Stay Tuned For Hell To Freeze Over

Words I never thought I would write dept: Andrew Sullivan’s Sunday NYT book review article on American torture is … brace yourself … remarkably sensible:

The critical enabling decision was the president’s insistence that prisoners in the war on terror be deemed ”unlawful combatants” rather than prisoners of war. …

The president’s underlings got the mixed message. …

What’s notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting ”ghost detainees” kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. …

Whether we decide to call this kind of treatment ”abuse” or some other euphemism, there is no doubt what it was in the minds of the American soldiers who perpetrated it. They believed in torture. And many believed it was sanctioned from above. …

Who was responsible? There are various levels of accountability. But it seems unmistakable from these documents that decisions made by the president himself and the secretary of defense contributed to confusion, vagueness and disarray, which, in turn, led directly to abuse and torture. The president bears sole responsibility for ignoring Colin Powell’s noble warnings. …

Worse, the president has never acknowledged the scope or the real gravity of what has taken place. His first instinct was to minimize the issue; later, his main references to it were a couple of sentences claiming that the abuses were the work of a handful of miscreants, rather than a consequence of his own decisions. …

And the damage done was intensified by President Bush’s refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president’s response to criticism of the defense secretary in the wake of Abu Ghraib was to say, ”Get off his back.” In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. … Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president’s discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans. It is astonishing he has been nominated, and even more astonishing that he will almost certainly be confirmed.

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ”evil” might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.

…

I’m not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it’s worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ”heroic” protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

OK, one might have preferred to see this before the election, but better late than later.

(Much of) The Right Wing Is Now In Denial on Torture

At the AALS last week, I heard a (formerly) respected law professor announce to a room that he had looked carefully and he didn’t see any evidence of systematic torture by the US. It was — although he didn’t use these words — the ‘few bad apples’ all over again. At least a few of us in the packed room expressed our shock audibly — which isn’t something you usually get at such a polite, even staid, event.

There’s clearly a lot of this denial going around, which is why Marty Lederman’s latest item demolishing the “best defense of the administration’s record on torture” is well worth reading.

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

There’s clearly much here that’s not fully in the open, notably the extent to which the Torture Memos were driven by a need to attempt to justify CIA abuses which had already happened.

But given the number of reports we do have of overly coercive questioning to say the least, no one should be allowed to claim that there wasn’t some sort of pattern and practice at work, creeping its way from the CIA to other interrogation centers, destroying whatever moral authority the US might hope to claim, inflaming the locals against us, and creating a new cadre of detainees (and families) who will hate us and try to destroy us.

Whether it also will make a mockery of the concepts such as the rule of law that we try to teach our students still remains to be seen.

What Alberto Gonzales Doesn't Get

Initial Report of the U.S. to the UN Committee Against Torture (October 15, 1999) [emphasis added]:

Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

Alberto Gonzales’s confirmation hearing (Jan 5, 2005):

SEN. LEAHY: … I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?

MR. GONZALES: With all due respect, Senator, the president has said we’re not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.

Everyone except the most craven administration apologists understands the only acceptable answer is that not even the President can authorize torture. A lawyer who doesn’t understand this is at best a fool or a knave. If he’s a government official, however, there are other, far baser, options.

Gonzales, Damned By His Own Words

An excerpt from the Gonzales hearing:

SEN. LEAHY: I just want to know: Did you agree — I mean, we could spend an hour with that answer, but I’m trying to keep it very simple. Did you agree with that interpretation of the torture statute back in August 2002?

MR. GONZALES: If I may, sir, let me try to — I will try to — I’m going to give you a very quick answer, but I’d like to put a little bit of context. There obviously — we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to — interpretation of a standard by Congress. There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean. It was a very, very difficult — I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department. Ultimately it is the responsibility of the department to tell us what the law means, Senator.

SEN. LEAHY: Then do you agree today that for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death?

MR. GONZALES: I do not, sir. That does not represent the position of the executive branch. As you know —

SEN. LEAHY: But —

SEN. SPECTER: Well, let him finish his answer.

SEN. LEAHY: But it was the position in 2002.

SEN. SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.

MR. GONZALES: Senator, what you’re asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was, of course, conversation and a give-and-take discussion about what does the law mean. But ultimately — ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.

SEN. LEAHY: Well, let me then ask you: If you’re going to be attorney general, and I’ll accept what you said, then let’s put on the hat, if you’re going to be confirmed as attorney general. The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone — anyone — who commits torture under his act; whether legal or not, he can immunize them.

Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?

MR. GONZALES: First of all, sir, the president has said we’re not going to engage in torture under any circumstances. And so you’re asking me to answer a hypothetical that is never going to occur. This president has said we’re not going to engage in torture under any circumstances, and therefore, that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.

SEN. LEAHY: But I’m trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?

MR. GONZALES: Sir, again —

SEN. LEAHY: You’re a lawyer, and you’ve held a position as a justice of the Texas Supreme Court, you’ve been the president’s counsel, you’ve studied this issue deeply. Do you agree with that conclusion?

MR. GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.

Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that in fact a president had the authority under the Constitution to —

SEN. LEAHY: Mr. Gonzales, I’d almost think that you’d served in the Senate, you’ve learned how to filibuster so well, because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?

MR. GONZALES: With all due respect, Senator, the president has said we’re not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.

And he wants to be Attorney General of the United States.

Other torture links:

Washington Post, Detainee Says U.S. Sent Him to Egypt Before Guantanamo

Jurist, Law deans assail torture memos as Gonzales hearing concludes

Daily Kos, How Bad Is Gonzales? Very Bad

Human Rights First, Gonzales Confirmation Hearings Blog

Mark Danner, NYT op-ed, We Are All Torturers Now

And be sure to see Anthony D’Amato, via Brian Leiter, An Unnoted Aspect of Alberto Gonzales’s Career

Marty Lederman on the Torture Memos

Marty Lederman, formerly of the OLC, has an important series of posts on the torture memos, including a discussion of the latest effort from the Justice Department, issued late in Dec. 2004.

Part 1, Part 2, Part 3, Part 4

Here’s a sample,

it becomes clear that perhaps the most important part of the new Levin Opinion is footnote 8, which reads: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.” In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion does not in any significant way affect what the CIA has already been specifically authorized to do. And the Administration has concealed from the public (and perhaps from the Congress, too?) the extreme forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

And, from the conclusion,

There are extremely strong arguments that if they approved or used certain of these techniques, military officials and other personnel have violated the law—including the UCMJ, article 16 of the CAT, the Geneva Conventions (as to detainees protected by those treaties), and the President’s directive that detainees be treated “humanely”—wholly apart from the torture statute that the OLC Opinions discuss. (Indeed, from the time of the 2001 enactment of the USA PATRIOT ACT until the enactment of the 2005 Defense Authorization Act this past October 28th, the torture statute itself did not even apply to GTMO because of a technical jurisdictional provision.)

And, in any event, if those recent accounts are correct about what the Pentagon has actually approved and implemented at Guantanamo, then the President’s assurance that all Armed Forces detainees be treated “humanely,” and that the military does not engage in cruel, inhuman and degrading treatment, ring hollow.

It is a very salutary development that OLC has finally construed the torture statute with the care and judgment that typically characterizes OLC’s best work, and that the Administration has reiterated the Nation’s commitment that torture is never legal, not even for “a good reason.” But that is only half the story. The other half remains untold. We are yet to have an informed public debate about what forms of conduct OLC has sanctioned as lawful, about what forms of interrogation and coercion this nation does permit, and about what is, in fact, being done in our name. If we are to have such a debate, the Administration would have to be much more forthcoming with explanations of which ostensibly “humane” treatments have been approved for military interrogators at Guantanamo and elsewhere, and would have to provide some information concerning the forms of inhumane treatment the CIA has been authorized to use (subject, of course, to redaction where there are legitimate and compelling needs for classification).

If we begin such a debate, here’s one modest question to consider: Would it be too much to ask that Congress approve—and the President sign—a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment—including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?

Digby Said It

I’ve been trying to write something comprehensive about the the state of the torture memos, US torture policy, and the coming confirmation hearings of the Enabler, one White House Counsel Gonzales. But it’s too depressing.

So just read Hullabaloo. Digby says most of it. (And even has one small tiny ray of light — not quite everyone is going to take Gonzales lying down.)

The American Gulag

The US holds maybe hundreds of non-citizens, all captured abroad (we are told), incarcerated in Guantanamo and in other secret prisons around the world. The Bush administration plans to hold them up to forever.

Of course, there is a difference between the Soviet Gulag, which was aimed at saboteurs, dissidents, or people who somehow got on the wrong end of officialdom, and the US Gulag, which is we are told aimed merely at the foreign version of the same.

Whether the creation of a secret archipelago of prisons and coercive questioning facilities will inevitably fail to be deployed against US citizens is a question that one is not permitted to ask in public, as it is too far outside the permitted consensus. So put that issue aside.

Ask instead whether from a moral, political, or even legal point of view, the fact that only foreigners are incarcerated for life without trial (or indeed any rights, it appears), at the complete and unconstrained pleasure of the super-imperial presidency, gives us much in the way of bragging rights over the former Soviet Union.

What’s that? Our gulag is much smaller? And our policy this week is not to torture people, the last two years notwithstanding? And that nice Mr. Bush (with Justice Thomas’s endorsement, to his and the Court’s eternal shame) promises that all the people being held really deserve it, so who needs complications like a trial?

Well, that’s alright then!

Administration's Anti-Torture Zeal Knows No Bound (Lower Bound, That is)

The Carpetbagger Report: Replacing the torture-tolerance policy with…nothing in particular.

And the Senate is going to confirm Gonzales? Whithout a fight?

Name the Country that Abuses Psychiatry to Silence Dissidents

One of the many horrifying things about the old Soviet Union was the use of psychiatry to silence dissidents. Anyone who dared suggest that the country wasn’t a workers’ paradise clearly had lost their grip on reality, right?

Fortunately, nothing like that could ever happen here, say to someone who claims that US troops torture captives.

Um.

German Abu Ghraib Complaint

The ever-reliable Karl Lenz reports:

I have just looked at the criminal complaint filed by the Center for Constitutional Rights against high-ranking Americans with the German Federal Prosecutor’s Office under the 2002 German Code of Crimes against International Law, asserting liability for torture at Abu Ghraib.

Under German law, even if the Federal Prosecutor should be not inclined to initiate an investigation, the plaintiffs can appeal that decision to a court. If the plaintiffs don’t change their minds for some reason, this is heading to court one way or the other.

Mark Kleiman: J'Accuse

In Qui s’excuse, s’accuse, Mark Kleiman demonstrates that the Joint Chiefs, like the White House above them, are OK with the US’s current torture policy, one that the Red Cross thinks involves actual torture, whatever we may call it for domestic consumption.

Today's Torture News

I hate having to write headlines like that one.

• New York Times, Red Cross President Plans Visit to Washington on Question of Detainees’ Treatment…showing how seriously the Red Cross takes the US’s apparent non-compliance with basic human rights norms
• Washington Post, U.S. Generals in Iraq Were Told of Abuse Early, Inquiry Finds: “A confidential report to Army generals in Iraq in December 2003 warned that members of an elite military and CIA task force were abusing detainees, a finding delivered more than a month before Army investigators received the photographs from Abu Ghraib prison that touched off investigations into prisoner mistreatment.”
  
  But did anyone do anything as a result of the report? We don’t know:

  “Of the Herrington report, a Pentagon official said top generals in Iraq, including Lt. Gen. Ricardo S. Sanchez, who at the time directed U.S. forces there, reported the alleged abuses to officials at U.S. Central Command, which oversees military activities in the Middle East. The official said TF 121 was investigated, but he could not provide results.
  
  ‘The Herrington report was taken very seriously,’ said the official, who spoke on the condition of anonymity because the report has not been released.”

• New York Times editorial, Abu Ghraib, Caribbean Style. Key quote:

  The White House, the Pentagon and the Justice Department clearly have no intention of addressing the abuse. Indeed, Mr. Bush has nominated one of the architects of the administration’s prisoner policy, the White House counsel Alberto Gonzales, to be attorney general. The general who set up the system at Guantánamo is now in charge of prisons in Iraq.
  
  Only Congress can hold the administration accountable and begin to repair the damage to American values and America’s image caused by the mistreatment of prisoners.

Have they gone mad in the White House or were they born that way?

Guardian: The Road to Abu Ghraib

The Guardian has a two-part series online called The road to Abu Ghraib. It’s sufficiently weird that it reads like gonzo fiction, but we are asked to believe it.

Did a Major General really decide that psychic powers would let him walk through walls, and psychic healing could save troops wounded without access to ordinary medical care? And even if so, is this really connected to Abu Ghraib?

It’s interesting, though, to read about the mythical First Earth Battalion and how the ideas behind it might have seeped into reality.

More Hersh, More News of Iraq Atrocities

A Tiny Revolution: Uh Oh quotes Seymour Hersh speaking at Berkeley last Friday, October 8th:

I got a call last week from a soldier — it’s different now, a lot of communication, 800 numbers. He’s an American officer and he was in a unit halfway between Baghdad and the Syrian border. It’s a place where we claim we’ve done great work at cleaning out the insurgency. He was a platoon commander. First lieutenant, ROTC guy.

It was a call about this. He had been bivouacing outside of town with his platoon. It was near, it was an agricultural area, and there was a granary around. And the guys that owned the granary, the Iraqis that owned the granary… It was an area that the insurgency had some control, but it was very quiet, it was not Fallujah. It was a town that was off the mainstream. Not much violence there. And his guys, the guys that owned the granary, had hired, my guess is from his language, I wasn’t explicit — we’re talking not more than three dozen, thirty or so guards. Any kind of work people were dying to do. So Iraqis were guarding the granary. His troops were bivouaced, they were stationed there, they got to know everybody…

They were a couple weeks together, they knew each other. So orders came down from the generals in Baghdad, we want to clear the village, like in Samarra. And as he told the story, another platoon from his company came and executed all the guards, as his people were screaming, stop. And he said they just shot them one by one. He went nuts, and his soldiers went nuts. And he’s hysterical. He’s totally hysterical. And he went to the captain. He was a lieutenant, he went to the company captain. And the company captain said, “No, you don’t understand. That’s a kill. We got thirty-six insurgents.”

George W. Bush is responsible for this. Don’t forget that. George Bush is reponsible for this. As much as the individuals who pulled the triggers, George W. Bush is responsible for this.

New Abu Ghraib Documents: "abuse far worse than what was originally reported"

Phil Carter reports that:

The Center for Public Integrity has obtained a series of previously classified documents from Rolling Stone writer Osha Gray Davidson surrounding the abuse investigations at Abu Ghraib prison in Iraq. Most of the documents are appendices to the various investigative reports that have been done, such as sworn statements from BG Janis Karpinski’s aide-de-camp and a high-ranking JAG officer at the prison, as well as an Army CID report documenting some of the worst abuses there. Together, these reports paint a picture of abuse far worse than what was originally reported.

(emphasis added)

I’m not sure I can bear to look.

A Vote for Bush Is a Vote for Torture

Harsh words, yes, but how else to describe this atrocity?

The Bush administration is supporting a provision in the House leadership’s intelligence reform bill that would allow U.S. authorities to deport certain foreigners to countries where they are likely to be tortured or abused, an action prohibited by the international laws against torture the United States signed 20 years ago. …

The provision, human rights advocates said, contradicts pledges President Bush made after the Abu Ghraib prisoner-abuse scandal erupted this spring that the United States would stand behind the U.N. Convention Against Torture. Hastert spokesman John Feehery said the Justice Department “really wants and supports” the provision.

For background please see Voting Republican This Year = Voting for Torture .

Don't Forget

War crimes? Criminal activity? Criminal neglect? Major cover-up? Any of these is enough to demonstrate the moral unfitness to govern of the current lot.

TalkLeft—Female Abu Ghraib Prisoner Speaks Out: Huda Alazawi was one of the few females imprisoned at Abu Ghraib in Iraq. She was a wealthy businesswoman, blackmailed by a lowlife informant who falsely dropped a dime on her and her brothers, claiming they were supporters of the Iraqi resistance after she refused to meet his demand for money. Recently released after several months at Abu Ghraib, she recounted her ordeal to The Guardian.

Alazawi was imprisoned with two of her brothers and a sister. One brother was brutally sexually assaulted —hours later he was thrown at her and her sister’s feet, bleeding from his head, knees and between his legs. He was dead.

The torture, abuse and degradation of Alazawi and other prisoners went on for months. She was able to document some of the abuse in a Koran. Other aspects of her report match those of other prisoners.

A few bad apples? No way.

Pattern and Practice

Blogging of the President 2004 (aka BOP News) has choice quotes from the new Hersh book.

Don’t let anyone tell you that the torture was the work of a few rogue elements off duty in the prision where they weren’t supposed to be. That may be the source of some of the more shocking pictures to become public so far, but if Hersh is accurate, there was a pattern and practice of abusive conduct that (1) had to be endorsed by the prison administration and (2) was the subject of at least one blistering warning to higher-ups…who turned a blind eye.

This is war crimes stuff at least for the direct perpetrators and their prison commanders; how high up it could go is a painful question that is being swept under the rug as fast as possible.

Seymour M. Hersh Says Senior Officials Ignored Warnings About Atrocities

The NYT reports that Seymour M. Hersh’s new book says the highest level military and civilian officials in the administration — including Rice and Rumsfeld — ignored warnings about abuses at Guantánamo and Abu Ghraib.

Prison Scandal: New Book Says Bush Officials Were Told of Detainee Abuse: Senior military and national security officials in the Bush administration were repeatedly warned by subordinates in 2002 and 2003 that prisoners in military custody were being abused, according to a new book by a prominent journalist.

Seymour M. Hersh, a writer for The New Yorker who earlier this year was among the first to disclose details of the abuses of prisoners at Abu Ghraib in Iraq, makes the charges in his book “Chain of Command: The Road From 9/11 to Abu Ghraib” (HarperCollins), which is being released Monday. …

Mr. Hersh asserts that a Central Intelligence Agency analyst who visited the detention center at Guantánamo Bay, Cuba, in the late summer of 2002 filed a report of abuses there that drew the attention of Gen. John A. Gordon, a deputy to Condoleezza Rice, the White House national security adviser.

But when General Gordon called the matter to her attention and she discussed it with other senior officials, including Defense Secretary Donald H. Rumsfeld, no significant change resulted. Mr. Hersh’s account is based on anonymous sources, some of them secondhand, and could not be independently verified.

Although a number of senior officials were briefed on the analyst’s findings of abuse, the high-level White House meeting did not “dwell on” that question, but rather focused on whether some of the prisoners should not have been held at all, the book says. A White House official confirmed Saturday that this meeting was held and reiterated that the focus, when the matter was referred to Mr. Rumsfeld, was on whether people were being improperly held.

Mr. Hersh also says that a military officer involved in counterinsurgency operations in Iraq learned of the abuses at Abu Ghraib in November and reported it to two of his superiors, Gen. John P. Abizaid, the regional commander, and his deputy, Lt. Gen. Lance Smith.

“I said there are systematic abuses going on in the prisons,” the unidentified officer is quoted as telling Mr. Hersh. “Abizaid didn’t say a thing. He looked at me - beyond me, as if to say, ‘Move on. I don’t want to touch this.’ “

But Capt. Hal Pittman, a Central Command spokesman, said in a statement Saturday, “General Abizaid does not recall any officer discussing with him any specific cases of abuse at Abu Ghraib prior to January 2004, nor do any of the officers of the Centcom staff who travel with him.”

Note the non-denial denial: in response to a charge about ignoring a warning about general and systemic abuse, the response is that the General ‘does not recall any officer discussing with him any specific cases of abuse.’

Note also that Pentagon is worried about Hersh’s book. Earlier today the Washington Note reported that the Pentagon let off a pre-emptive press strike against what it expected Hersh would be saying. The core of that campaign is the zillion whitewash reports issued in the past weeks, all designed to shield senior officials from any examination of their responsibilities.

They should be worried. I don’t know if ignoring reports of abuse is technically a war crime under these circumstances — so much depends on exactly what they were told, and how — but it has to be close enough to be worrying. There does come a point where closing your eyes to the evidence is a form of complicity, although I can’t say from the NYT article alone that this conduct reaches that high bar.

But whatever you call it, if Seymour Hersh is right again (and his accuracy record is imperfect) ignoring these warnings looks pretty raw.

Senate Denied Access to CIA 'Ghost' Detainee Headcount

It’s good that the Senators care enough, belatedly, to try to get to the bottom of a small amount of information about who did what to whom in the great Iraq prison/war crime scandal. But it doesn’t sound as if they are getting very far.

Senators Criticize C.I.A. in Inquiry on Iraqi Prison Abuse: Senators examining the Abu Ghraib prison scandal criticized the CIA on Thursday for failing to provide Army investigators with documents on unregistered “ghost detainees.”

At a hearing, lawmakers indicated their frustration that Army generals who investigated the prison abuses couldn’t put a specific figure on the number of ghost detainees and could only give a range of up to 100 detainees, though they said it was more likely closer to two dozen.

“It’s a very difficult question for us to answer, Mr. Chairman, because we don’t have the documentation,” Gen. Paul Kern, who oversaw an Army investigation of the 205th Military Intelligence Brigade, told Senate Armed Services Committee Chairman John Warner, R-Va.

The panel’s top Democrat, Sen. Carl Levin of Michigan, said “it’s totally unacceptable that documents that are requested from the CIA have not been forthcoming.” And, Sen. John McCain, R-Ariz., said the ghost detainee issue “needs to be cleared up really badly.”

Contacted after the hearing, CIA spokesman Mark Mansfield declined to comment on number of ghost detainees and said it is one aspect of a review under way by the agency’s inspector general

Translation of the CIA’s comment: [                           ]

Sanchez's Memo Let Loose the Dogs of Torture

Today’s dumb headline (but interesting story) is, Documents Helped Sow Abuse, Army Report Finds. The headline writer seems to think that documents write themselves, and also buys into the spin of the Army report that an order from a two-star General to “Exploit Arab fear of dogs while maintaining security during interrogations” somehow “was not clear”.

Seems pretty clear to me.

What I want to know is whose idea it was to try to cover up the torture by sending Sanchez to do the first investigation of himself.

Sign of Progress on CIA Torture

The signs have been clear from the start that the lion’s share of the US’s organized and systematized torture is by the civilians in the intelligence biz. In Iraq, their example, or pressure to emulate them, appears to have inspired those military torturers who were not simply free-lance sadists.

So far, though, it appeared that the CIA’s conduct (and that of other similar agencies?) was out of bounds for a discussion which focused on the uniformed services. Perhaps, though, the ice is cracking.

C.I.A. Expands Its Inquiry Into Interrogation Tactics: Former intelligence officials say that lawyers from the C.I.A. and the Justice Department have been involved in intensive discussions in recent months to review the legal basis for some extreme tactics used at those secret centers, including “waterboarding,” in which a detainee is strapped down, dunked under water and made to believe that he might be drowned.

…

It has been known that, after the abuses at Abu Ghraib were disclosed, the Justice Department abandoned some legal opinions written in the months after the Sept. 11 attacks that had been used as the basis for the broad latitude allowed interrogators in using extreme procedures against suspected Qaeda detainees. In recent months, government lawyers said the legal opinions were too broad and were being rewritten to restrict the harshest interrogation measures.

The broader inspector general investigation into the agency’s involvement in detention and intelligence in Iraq since May 2003 was ordered in May by George J. Tenet, who was then director of central intelligence. But additional questions about the C.I.A.’s practices center on a small number of high-level suspected Qaeda detainees being held by the agency outside Iraq in undisclosed locations around the world.

The C.I.A. has already scaled back some coercive methods used against detainees, although officials would not discuss specific techniques. Agency officials have demanded advance Justice Department approval for each tactic used against detainees and a new legal analysis of federal laws on the subject, including a statute that makes it a felony for American officials, including C.I.A. employees, to engage in torture.

One seminal document repudiated by the government was an August 2002 memo by the Justice Department. It concluded that interrogators could use extreme techniques on detainees in the effort to prevent terrorism.

Unfortunately, the NYT article also suggests that the CIA is seeking, or using, torture to question Khalid Shaikh Mohammed, a “high-level Al Qaeda suspect”.

Some of the most evil regimes have cloaked their vilest acts with a blizzard of paperwork and legality. Let’s not end up like them.

Not Just a River In Egypt

Rumsfeld in the NYT

“I have not seen anything thus far that says that the people abused were abused in the process of interrogating them or for interrogation purposes.” A transcript of the interview was posted on the Pentagon’s Web site on Friday. Mr. Rumsfeld repeated the assertion a few hours later at a news conference in Phoenix, adding that “all of the press, all of the television thus far that tried to link the abuse that took place to interrogation techniques in Iraq has not yet been demonstrated.” After an aide slipped him a note during the news conference, however, Mr. Rumsfeld corrected himself, noting that an inquiry by three Army generals had, in fact, found “two or three” cases of abuse during interrogations or the interrogations process. In fact, however, the Army inquiry found that 13 of 44 instances of abuse involved interrogations or the interrogation process, an Army spokeswoman said.

OK, how do we explain this repeated lapse on the part of a supposedly hands-on detailed-oriented man?

• Couldn’t care less about torture
• Deep denial, perhaps fueled by spread of ‘war crimes trial’ meme [I am not making this last part up]
• Yes-men (and women) surrounding him never briefed him on the abuses at any time
• Knows about abuses but ordered cover-up (why else send Sanchez to do intial report?) and no one dared tell him it failed
• Is past his sell-by date

One slip of the tongue I could believe. But more than one, and so wrong on basic facts, about one of the most serious issues facing the Pentagon today?

Whatever it is, it’s quite serious.

No Good Deed Goes Unpunished

I’ve suggested before that the folks who blew the whistle about the abuses in Iraq deserve a medal.

Well, instead of medals, what at least one of them is getting is death threats — threats serious enough for the Army to place Joe Darby and his wife in a secure undisclosed location. I’ve take the liberty of quoting more than I usually do; I hope author Wil S. Hylton and GQ magazine will forgive me. (That said, you really should read the whole article.):

They shut him up. Fast. You never even saw him. No footage of him coming off the plane, no flags or banners waving, no parade in his honor. He came home from Iraq in May, but there wasn’t even a formal announcement. In fact, you’re not supposed to know he’s here.

He lives in a secret location. It might be just down the street, or it might be halfway to nowhere. Maybe he was sitting at the next table last night, having dinner right beside you. You have no way of knowing: Nobody knows what he looks like. …

… He’s been under a gag order for three months.

First the media drove Darby’s wife out of her home. Then danger from the neighbors drove her into hiding.

Meanwhile, why can’t Darby talk to the press? One reason may be that he knows just how bad the horrors were at Abu Ghraib — and as yet no one has gone on the record to confirm them…

… Back at Maxine and Clay’s house, it didn’t take long for the storm to catch up with Bernadette [Joe Darby’s wife]. Any fantasy she had entertained about escape to the hills was dashed at 7 A.M., when her cell phone started ringing and wouldn’t stop for the rest of the day. …

By noon, the house was surrounded by TV trucks and cameramen setting up lights and microphones. As soon as Maxine stepped in front of the first camera, she could feel the quicksand at her ankles. Every time she finished with one reporter, two more would arrive, then four more after that. How many times could she say the same thing? Afternoon fell and evening came and the reporters just kept coming, through sunset and into the night, newspapers and magazines and TV stations from New York and Washington, D.C., all the major dailies and the weeklies, too. Upstairs in the bedroom, Clay and Bernadette gazed out the window in awe, watching the line of reporters inch forward, single file, toward Maxine. Diane Sawyer’s people called. Katie Couric’s, too.

As the week wore on, it barely slowed down. In some ways it even got worse. No one slept, and the phones rang all night, and as the articles began to appear, the family realized that some journalists don’t care what they say or how they make you feel. There was the writer from The Washington Post who asked a bunch of questions about Joe, then wrote an article about Maxine instead, about how small-town she was and how she’d never left Pennsylvania, which wasn’t even true, and how her house was a mess, which was only true that week, and only for the obvious reasons, and nobody’s business anyway. Then there was the team from ABC, calling so often it became like a joke. At one point, Clay counted fifteen calls from ABC in the span of a single dinner. But the worst was the guy from the New York Post who parked his white Mustang across the street, banging on the door every thirty minutes and demanding an interview with Bernadette. “I know she’s in there,” he would say. “I’m not leaving until she comes out.” Sure enough, he didn’t. He sat there for hours, watching every move they made and rushing to the door whenever anyone opened it. Well into the night, he was still there, and when Virginia came by to pick up her son Billy, Maxine brought him out with a blanket over his head, but the Post guy sprang out of his car, rushing toward them, and Billy started screaming and crying and Maxine shouted for help from the police officers who were standing across the street, but they just stared at her, then looked away. “It’s a public street,” they said.

That was the real hell of it. The media blitz was bad, but at least it was in their faces. You could see it coming and knew what to expect, which was a total disregard for privacy. It was bad but predictable. By contrast, the rest of the community, from the cops to the checkout clerk at the grocery, had become a terrifying mystery. There was no way of knowing where anyone stood, how they felt, or what they might do. Forget about the families of Joe’s unit. Bernadette knew they would hate her, but there were only so many of them. It was everyone else she was worried about. There were thousands of people in this stretch of valley, and she had lived here for most of her life. She knew some of them wouldn’t support Joe. They wouldn’t feel any sympathy for the Iraqis in those pictures, and they would consider Joe a traitor for blowing the whistle. Bernadette could see that coming. But the question was, how many were there? And which ones would they be?

Each day, she would catch another snippet of the hostility brewing around her. There was the candlelight vigil in Cumberland, Maryland, to show support for the disgraced soldiers, including the ones who did the torturing, about a hundred supporters standing in the pounding rain, as if beating and sodomizing prisoners were some kind of patriotic duty. Or the 200 people who gathered one night in Hyndman, Pennsylvania, waving American flags to honor Sivits, the first soldier tried in the scandal. They posted a sign in Hyndman. It said JEREMY SIVITS, OUR HOMETOWN HERO. And the mayor told reporters that even though Sivits would sometimes do “a little devilish thing,” on the whole he was “a wonderful kid.”

Where were the signs for Joe? Bernadette had to wonder. Where was his vigil? Where was his happy mayor? Where were his calls of support? Down at the gas station, Clay overheard some guys say that Joe was “walking around with a bull’s-eye on his head,” just casually, just like, oh, everybody knows Joe’s dead. Some of Bernadette’s family even let her know that other members of the family were against her now, that they couldn’t support a traitor. The more Bernadette heard, the more paranoid she became. How serious was this? Her nerves were so fried from the media onslaught that she couldn’t be sure what was serious and what was just talk. Had those cops really ignored Maxine because they were against Joe? And if so, what else would they ignore?

…one thing Bernadette didn’t know—because almost nobody knows it, because almost everybody who does know has either been lying or keeping it a secret—is the rest of the story, what really happened at Abu Ghraib. Oh, you hear allusions to the fact that certain things haven’t been told, like Rumsfeld saying in May that the whole story is “a good deal more terrible” than what you’ve seen. But you don’t hear Rumsfeld saying any more than that, or explaining what “more terrible” means.

You don’t hear anybody explaining, for example, how Private Lynndie England, the woman in so many of those pictures, the one smiling and laughing and giving the thumbs-up, wasn’t even supposed to be in the cellblock, how she didn’t have any police authority and shouldn’t have been dealing with inmates in the first place. You don’t hear much of anything about her job, because the truth is, her job was something else entirely. Lynndie England was an administration clerk; not an MP like Joe but the equivalent of a secretary. “She was assigned to an MP unit,” says Blake Ellis, a paralegal with England’s defense team, “but she wasn’t an MP. She did not have any police authority. She was not supposed to be walking tiers or working with inmates.”

…

Then there’s Sivits. Guess what? Not an MP, either. No business being in a cellblock, no business interacting with detainees. This is a prison with 300 military police on duty, and they’ve got a mechanic up at one in the morning taking pictures while they terrorize prisoners.

Sound kosher?

All this in a prison, by the way, that was overcrowded by about 350 percent. According to Major David DiNenna, who served under Karpinski in Abu Ghraib, “Towards the end, we had over 7,000 prisoners. We were only supposed to run 2,000.” Karpinski says the same thing.

Or how about this: children. Little kids. In the prison. …

… it’s tough to know exactly how old the kids in Abu Ghraib really are and how many of them are in there, just like it’s tough to know how they’re being treated. Seymour Hersh, the man who uncovered the Abu Ghraib scandal in The New Yorker, claims that video exists of young Iraqi boys being sodomized. But Hersh hasn’t come forward with the video, and neither has anybody else. Even if he’s not right, there’s no question that other prisoners were sodomized by U.S. soldiers. There are pictures of at least one Iraqi man being raped with a light stick. You didn’t see those pictures on the news though, didn’t hear Rumsfeld talk about that. Just like nobody except Janis Karpinski is talking about the three military-intelligence officers who were sent home in January after the sexual assault of two female prisoners. That case is confidential, just like the roughly 5,950 pages of Major General Antonio Taguba’s 6,000-page investigation of the Abu Ghraib scandal are “confidential.” Just like all the pornography coming out of Abu Ghraib is being kept from you, the videos of Lynndie England fellating an unidentified man, the pictures of soldiers having sex. The members of the United States Congress apparently couldn’t tell who the man was when they watched the highlight reel on a loop in a dark room on Capitol Hill one afternoon in May, an event that one Congressman calls “Bizarro World,” with representatives coming and going while hundreds of pictures and videos rolled by, people like Nancy Pelosi sitting in front of a screen of depravity, with a military minder occasionally interjecting, “This one’s from Tier 1A.”

That wasn’t on 60 Minutes II, either.

Just try calling your senator and asking him about that. Ask him what he saw. Any children? Pornography? Sexual abuse? Richard Durbin: No comment. Lindsey Graham: Can neither confirm nor deny. Joseph Lieberman: No response. Sam Brownback: No response. Carl Levin: No comment. Joseph Biden: No comment. Ron Wyden: Can neither confirm nor deny. Tim Johnson: Can neither confirm nor deny. Jon Corzine: No comment. Chuck Schumer: No response. Barbara Boxer: No comment. John Warner: No comment. Lincoln Chafee: No comment. Dianne Feinstein: No comment.

It’s an election year, by the way.

And so, what Bernadette didn’t know when the military escort came to get her—what she couldn’t possibly imagine—was that she didn’t need any help. All she needed was the truth. Because the irony of all this is that the people in Somerset County who turned their backs on Joe, well, those people would probably feel very different if they knew the rest of the story. That it really wasn’t about softening prisoners, gathering intelligence, or trying to win the war. That it wasn’t even about losing control in the heat of the moment. It was about getting up in the middle of the night and going somewhere you weren’t supposed to go, then beating and raping people there. It was premeditated violent crime. And as long as that stays hidden, so will Bernadette and Joe, outcasts in their own community, two more victims of Abu Ghraib.

Don't Let's Let this Be Water Under the Bridge

This item, by a soldier recently returned from Iraq, is upsetting on many levels:

Better Angels of our Nature: Over the Bridge: On January 2 of this year, a team of soldiers in my brigade stopped a couple of Iraqis near the town of Samarra. We were engaging in counterinsurgency operations there, trying to stabilize the town so the area could begin to recover and rebuild from the rigors of war. And on that day, one of the men I knew and had worked with, CPT Eric Paliwoda, lost his life during a mortar attack.

Four soldiers stopped two Iraqis. In the passion of war, on a day marred by anger and tragedy, the two Iraqis ended up getting thrown off a bridge. The bridge in question was, if I recall correctly, about 15 feet above the Tigris. The river, at that point, was about 6 feet deep.

That much we know; that much is beyond dispute. Beyond that, everything is in dispute. A man may or may not have died—the soldiers claim he lives, the other man who was flung into the waters says he met a watery doom.

But there is one other thing that I haven’t mentioned yet that is also beyond a doubt. No matter what happened on that bridge, the soldiers were ordered to lie about it. And they were ordered to lie about it not just by their team leader, but by the entire leadership of their unit, from their company commander all the way up to their battalion commander.

How do we know this? Because at the Article 32 hearing only 2 weeks ago, their commanders, under grant of immunity, said so.

It’s wrong it should happen. It’s wrong it should be covered up. It is very very wrong that the investigators should give immunity to the high-ranking officers in order to get evidence against the low-ranking ones and the grunts (isn’t it supposed to work the other way? Prosecutors get cooperation from the low-ranking members of the conspiracy to get the leaders?)

There’s more in this post besides what I quoted, which discusses the more general context in which these things happen, and that’s upsetting too.

Abu Ghraib Photos

Ghastly Abu Ghraib photos at The Memory Hole (via The Yin Blog).

Gitmo Torture Regime Documented

Digby points to a report by the Center for Constitutional Rights based on the testimony of three UK citizens released from Gitmo. It describes an organized and systematic regime of psychological and physical torture to break the detainees.

If these charges are true, then this is not a few bad apples, but policy. And the person responsible for that policy is up for re-election soon.

Separately, information about doctors who at least failed to report physical torture and in some cases were complicit in enabling psychological abuse is emerging.

More Evil From the Administration

Phillip Carter, Prisoners’ Dilemma - How the administration is obstructing the Supreme Court’s terror decisions.

If there is a historical analogy to be drawn here, it is with the legal tactics of segregationists in the years following the Supreme Court’s famous 1954 Brown v. Board of Education decision. In its second Brown decision, the U.S. Supreme Court ordered the segregated school districts to integrate themselves “with all deliberate speed.” Segregationists took that message to heart, literally taking decades to integrate their schools (a task which some say has still not been accomplished). Segregationists used every legal tactic imaginable to delay the progress of integration—from filibusters in the Senate on civil rights legislation, to crazy school districting schemes, to literally standing in the schoolhouse door of Central High School in Little Rock, Ark. Eventually, the legal principle of equality won, and segregation faded into the history books, but it took a protracted fight to make the Supreme Court’s Brown decision a reality.

The issue here is not so much the detainees’ rights per se (although the detainees might say otherwise) as the need to restore the U.S. commitment to the rule of law in the eyes of the world. To date, the United States has not been able to enlist many of its allies to help shoulder the burden of Iraq, and Sen. John Kerry is unlikely to do much better given the current state of animus toward the U.S. in the world. Treating the wartime detainees fairly by giving them a fair hearing before a neutral magistrate (as ordered by the Supreme Court) would go a long way toward rebuilding bridges with our allies abroad. American moral leadership on these issues will also help win hearts and minds in Iraq, where the parallels between the Abu Ghraib abuses by U.S. soldiers and Saddam Hussein’s henchmen are all too easy to draw. But none of that will happen if the United States continues to drag its feet, kicking and screaming at every step of the way. Indeed, if the fight to implement Rasul takes as long as the fight for equality after Brown, then many of the detainees at Gitmo could die in captivity before they see their rights vindicated.

Oh, just read it.

Eyewitness to 'Iraqitraz'

Sadly No! posts the text of an email from from John Heacock, “who served for nearly a year in Iraq with the 267th MP Company from the Tennessee National Guard.” It has very credible-sounding details about the treatment of under-18 detainees in Iraq.

The writer blames the mistreatment of detainees on three causes:

1) soldiers asked to be guards without proper training responding to their own fear by trying to be as intimdating to prisoners as possible;

2) bureaucratic failure: no one made any decent plans to cope with a number of forseeable contingencies, e.g. child prisoners; and

3) what I see as plain bad faith on the part of ranking officers (see the end of this paragraph):

The problems with the treatment of the kids at Camp Bucca was about the same as the flaws with the other prisoners: lack of a policy regarding standards of guilt or length of imprisonment, bureaucratic indifference, laziness of those of high rank whose job it was to process prisoners, scarce resources, and conflicting guidance from above. Consequently, we had hundreds if not thousands of prisoners that we didn’t know why they were being held, who would never be convicted of a crime under any civilized standard of proof, and who spent more time awaiting a hearing than they would have been held in prison if convicted. A typical example: men held for months for stealing gasoline or butting in lines, when their sentence would have been 2 weeks or 30 days. I once asked the sole JAG attorney (a 1st Lt., BTW, the lowest rank for JAG) why we weren’t following the Geneva Convention rules about hearings and length of incarceration, and he expressed shock; when I told him he could go to either the main camp or Iraqitraz [the nickname for the high-threat detention area], to see the shortcomings for himself, he told me that the camp commander wouldn’t let him into either site. It’s hard to do your job ensuring that the military follows its rules when you can’t even see what’s going on.

It. Just. Gets. Worse.

Seymour Hersh says the US government has videotapes of boys being sodomized at Abu Ghraib prison in Iraq.

“The worst is the soundtrack of the boys shrieking,” the reporter told an ACLU convention last week. Hersh says there was “a massive amount of criminal wrongdoing that was covered up at the highest command out there, and higher.”

See Ed Cone for pointers to more grisly stuff.

Of course, none of this in any way should be laid at the feet of our leaders, who consistently deplore torture in all forms. Indeed, the very concept of command responsibility, and especially ‘buck stops here’ theories of the Presidency, are anachronistic thinking ill-suited to the realities of modern governance in large organizations.

Where once we aspired to leadership of virtue, now we must learn to enjoy Virtual Leadership.

Were the Torture Memos Just Normal Lawyering?

Adrian Vermeule and Eric Posner, both respected law scholars at U. Chicago, penned an op-ed last week [now suddenly offline, only available via google cache] in which they argued that the torture memos were in fact quality lawyering, a view endorsed by the pseudonymous member of the Volokh conspiracy (who often writes as if s/he were a government lawyer).

There are a lot of things I find disturbing about this view. First, if the Torture Memo author(s) (mostly John Yoo) were asked to survey the field and opine on the best answer, they clearly failed. They did not even let on there was another side to the Presidential power question, much less that the majority of the Supreme Court had endorsed it, and most likely would again endorse it.

The Chicago profs counter this argument by saying that the OLC engaged in “standard lawyerly fare, routine stuff”. And,

Although it is true that they did not, in their memorandum, tell their political superiors that torture was immoral or foolish or politically unwise, they were not asked for moral or political advice; they were asked about the legal limits on interrogation. They provided reasonable legal advice and no more, trusting that their political superiors would make the right call. Legal ethics classes will debate for years to come whether Justice’s lawyers had a moral duty to provide moral advice (which would surely have been ignored) or to resign in protest.

Wrong. This isn’t a close call at all. To the extent that they lawyers may have been told they had to justify as much torture as could be squared with the law, they again failed on two grounds. First, their arguments as to specific intent, at least, were (I have it on good authority) specious. Second, if tasked with justifiying a given and evil conclusion, they should have found somewhere to mention that torture would be wrong. The failure to do so, as Jack Balkin noted some time ago, makes the entire argument one of those documents that makes you ashamed to be a lawyer.

Indeed, Balkin again has useful things to say about this op-ed, focusing on the claim that in the Torture Memo the OLC was just doing what it usually does, asserting a strong view of Presidential power.

Both Posner and Vermeule (and yes for that matter John Yoo also) have written scholarly papers that I respect. But there’s something worryingly wrong here when smart lawyers endorse the view that a lawyer is a machine, and can or should turn off his moral compasses, justifying it by saying he is just following the client’s orders, or meeting his expectations, or that saying “this would be wrong” is a futile gesture. This is never more true when they are government lawyers with an independent oath and obligation to the American people and to the Constitution.

Fafblog Explains Why You Have to Read About Torture

Fafblog—evidence for the hypothesis that the nation’s mental ecosystem has powerful waffle-based antibodies against evil:

“But Fafnir I do not want to read about torture” you say because you are a lazy whining person. “I want to read about gumdrops an rainbows and Presidents who are made of gumdrops an rainbows an use them to blow up the terrorists.”

No you should really read it it is a very important issue now go or I will have Giblets hit you with the waffle again.

“Blah blah blah torture, blah blah blah human rights. I like watchin things blow up on television, it gives me a feelin of comfy security, readin about human rights violations makes me feel bad.”

That does it, Im tellin Giblets to go get the waffle! He’s gettin the waffle now!

“Okay Fafnir I will do whatever you say just so long as Giblets an the waffle are not involved!”

It’s so easy to kind of sweep it all under your brain an think “Well theres nothin more to be said an nothin more to think about it” cause let’s face it nobody wants to think about their government participating in horror. An right now the level of torture talk has gone from “Torture: Bad!” to “Torture: Bad, But Not As Bad As Saddam Hussein” to “Torture: Bad, But What About Ticking Bombs?” to “Torture: Bad, But Not Necessarily Proof That The People Who Ordered Torture Are Bad” to “Torture: We Still Talkin Bout Torture?” to “Torture: Bad?” An before we get to “Torture: Sorta Like Mowin Your Lawn” I think we should try as hard as we can to wake up.

Calming the Troops...Or Propaganda?

A reader sent me something interesting: It seems that just before the July 4th holidays, everyone at Andrews Air Force Base -- including the local contingent of the Air National Guard -- was sent a power point file of talking points about the Iraq War and the Abu Ghraib scandal produced by the Office of the Assistant Secretary Of Defense for Legislative Affairs.

The two-pager includes some information about what the public can do to support the troops, but the main thrust of it is how important intelligence is to the war effort...

The United States is at war. In the Global War on Terror, the most important weapon in our arsenal is intelligence. Because of the intelligence gathered from interrogations we have thwarted enemy attacks and saved American lives.

• Intelligence gathered from detainee interrogations contribute to Coalition success in the Global War on Terror.
• Interrogations played a key role in the capture of Saddam Hussein.
• Interrogations are critical to determining how foreign fighters get into Fallujah and Ar Ramadi.
• Interrogations are critical to discovering improvised explosive devices targeted at Coalition force

• The President directed in February 2002 that all persons in U.S. custody are to be treated humanely. This decision was made by the President and it is in accordance with all applicable national and international laws.
  • The so-called "torture memo" was a speculative work that explored the limits of detainee treatment under U.S. and international law. It was not a policy recommendation. DoD policy requires that all interrogation practices be humane.

• The actions of the soldiers in the Abu Graib photographs were perpetrated by a small number of U.S. military, they were also brought to light by the honorable and responsible actions of other military personnel.
• Eight Iraq-related detention lines of inquiry have been ordered by DoD.
• At least seven soldiers now face or may soon face criminal charges. Three of them have been preferred for court martial
  • Charges include dereliction of duty, conspiracy to maltreat subordinates, maltreatment of subordinates, indecent acts, and battery.
  • Additionally, two noncommissioned officers were charged with aggravated assault.
• Since the onset of the war in Iraq, the United States government has recognized and made clear that the Geneva Convention applies to our activities in Iraq. General Sanchez has instructed the forces under his command of that obligation.
• Orders placing Abu Ghraib under the tactical control of the 205th Military Intelligence Brigade in no way changed the rules governing the conduct of the military police and military intelligence personnel in Iraq with respect to the laws of war or the Geneva Convention.
• Contractors at the prison were primarily used for translation, interpretation, and interrogation purposes. Felony criminal sanctions for any crimes a defense contractor may commit are available under U.S. Federal law.

• Development and approval of interrogation techniques were done in a deliberate manner with strict legal and policy review to ensure the protection of detainees, our institutions and our troops responsible for carrying out those operations.
• Throughout this conflict the procedures have been constantly reviewed and modified when deemed necessary and appropriate.
• The implication that the United States government has, in one way or another, ordered, permitted, or tolerated torture is simply not true.
• Individuals who have abused the trust and confidence placed in them, regardless of rank or position, will be held accountable

Leaving aside the question of why the Pentagon uses Powerpoint for two pages of crowded three-column text, one might ask why the troops are getting this message, and why just before a weekend in which many of them would either be going home or having other July 4th related contact with the public.

In normal times, one might look at this document, complete with the centered and inset quote from a Bush Presidential directive, and say that it's just normal to give the troops information about issues that would obviously be of concern to them. (Although in fact I have no idea how common this is -- not very, I'd imagine?) It's surely a sign of the times that at least some of the recipients saw it as a clumsy way to prime the recipients with pro-administration propaganda.

Read it for yourself and decide. In case the original powerpoint doesn't work, I've converted it to a much larger .pdf version, but it may be harder to read.

Iraq Coverup Unravels A Little More?

It has seemed very strange that Gen. Sanchez would be sent to ‘get to the bottom’ of the Iraq atrocities mess when he seemed implicated in them himself. Of course, if you want a cover-up, send the guy with a lot to hide. Now Brig. Gen. Janis Karpinski, not obviously the world’s most disinterested source herself, fingers Sanchez, and maybe Rumsfeld, for ordering the use of dogs and other “types of coercive interrogation methods for detainees at Abu Ghraib’” like those that Gen. Sanchez approved for use on prisoners at Guantanamo Bay. Note also that “The Pentagon denied the assertion Thursday,” so this may be CYA by Karpinski…

Gutless

Excuse me if I don’t join the NYT editorial board in its cheers for the Senate’s Vote to require the administration to account for all the prisoners it has captured abroad, and to turn over information about US military prisons to the Red Cross, and to comply with the Geneva conventions.

This cheering is wrong on multiple levels.

First, the Senate’s action comes just a little late. The administration was able to invade Iraq because Congress didn’t do its job in asking questions and holding it to account. And news about problems in the prisons is hardly new. There were rumors of trouble long before the infamous photos. One can argue about whether the legislature was on notice before they emerged. But there’s no question that they have been on notice for weeks, yet this vote comes only in the shadow of the Supreme Court’s reassertion of long-standing verities of separation of powers.

Notably, the Senate’s resolution requires nothing significant beyond what likely would happen anyway as a result of the Supreme Court’s recent decisions.

And, the Senate’s action is limited to military prisons, leaving the CIA gulag in the shadows.

Last, but not least, Art. VI, Clause 2 of the US Constitution reads,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It shouldn’t require legislative action to compel the President to take care that the “supreme Law of the Land” be observed, and indeed I wonder if it could be a bad precedent to even suggest in any way that but for legislative action the President ought to feel any freedom of action to unilaterally disregard fundamental norms of international law such as the Geneva conventions.

I’ll cheer when the legislature starts investigating the CIA’s network of interrogation camps. Does anyone ever get out alive?

Administration Approved Repeated Almost-Drowning as a Non-Torture Interrogation Method

Meanwhile, back at torture… USATODAY.com - Memo lists acceptable ‘aggressive’ interrogation methods. In an as yet-unreleased August 2002 legal memo, the administration approved the CIA repeatedly dunking detainees under water, for periods long enough to make them think they might drown, in order to make them talk:

The techniques discussed were “aggressive” but “lawful,” the former official said. A current Justice official who knows the memo’s contents said it specifically authorized the CIA to use “waterboarding,” in which a prisoner is made to believe he is suffocating.

…

Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was handled by top officials in the deputy attorney general’s office and Justice’s criminal division.

…

White House counsel Alberto Gonzales said the thrust of the publicly released documents was that President Bush insisted on humane treatment of all prisoners, even though legal opinions from Justice and the Pentagon said there was wide latitude in wartime within the limits of anti-torture laws and treaties.

Well if the way Bush governs is “compassionate” I guess it is no less Orwellian to call repeated near-drowning “humane”.

A vote for Bush is a vote for waterboarding.

Torture Memo Enthusiastically Approved at Highest Levels; CIA Getting Cold Feet

Dana Priest has so many scoops in one story, there’s a danger some may get lost:

First, the CIA is getting nervous and has decided to stop doing whatever undisclosed things its has been doing to its prisoners in its series of secret camps in undisclosed foreign locations, pending legal review:

The “enhanced interrogation techniques,” as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.

…

“Everything’s on hold,” said a former senior CIA official aware of the agency’s decision. “The whole thing has been stopped until we sort out whether we are sure we’re on legal ground.” A CIA spokesman declined to comment on the issue.

CIA interrogations will continue but without the suspended techniques, which include feigning suffocation, “stress positions,” light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.

Meanwhile, back in Washington D.C. the coverup over the Torture Memos continues to unravel. Let’s start with the Bybee Memo — which was approved all the way up to the top (Cheney’s office):

Although the White House repudiated the memo Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel’s office and Vice President Cheney’s office.

And that royalism stuff about how if the President says it’s legal people who rely on that shouldn’t’ be prosecuted, and how Congress, even when approving or implementing treaties (“the supreme Law of the Land” - US Constitution) has no ability to in any way limit the full, plenary, unstoppable power of the President when acting as Commander in Chief? Well, all that was not just approved but demanded and applauded from the top:

A Justice Department official said Tuesday at a briefing that the [OLC] went “beyond what was asked for,” but other lawyers and administration officials said the memo was approved by the department’s criminal division and by the office of Attorney General John D. Ashcroft.

In addition, Timothy E. Flanigan — then deputy White House counsel — discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney’s counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president’s authority.

What did all this mean on the ground? Tell me this isn’t a form of torture:

Abu Zubaida was shot in the groin during his apprehension in Pakistan. U.S. national security officials have suggested that painkillers were used selectively in the beginning of his captivity until he agreed to cooperate more fully

That’s not the view of the self-satisfied armchair warrior cadre in DC, however. They don’t see any torture here:

At the same time, the former official said, “we never had a situation where we said, ‘You can do anything you want to.’ We never, ever did that. We were aggressive, but our people were very scholarly and lawyerlike.”

“Scholarly”? “Lawyerlike”? Sorry, but the “selective” use of painkillers for someone shot in the groin isn’t like any Socratic Method I recognize.

NYT Guide to Torture Memos

Confused about all the memos and the timeline? See this handy New York Times Guide to the Memos on Torture.

And stop a minute to think that we have sunk so low, under the weight of so many memos about torture, that we need a guide to them.

Why The Bybee Memo Reads Like a One-Sided Brief: It Was (for the CIA)

One of the minor mysteries troubling lawyers who care about such things was why the Bybee memo was such a lousy piece of craft. The OLC is traditionally drawn from the elite of the profession, even if its head sometimes has to pass an ideological litmus test. One would expect an advisory memo on a major issue like torture to at least present both sides. If the key to a major part of the argument is an expansive view of separation of powers that has in the past been championed by Justice Scalia but has been repeatedly rejected by the Supreme Court as a whole (or, if you prefer, never adopted), one would expect to see a caveat or two somewhere as to the operational realities. But, just like there is a chilling absence of morality, there’s also this puzzling disconnect with the state of the law (as I’ve also noted elsewhere, the crim law types have similar complaints).

One plausible explanation for these mysteries appears now on the New York Times web site and will presumably be in tomorrow’s paper, Aides Say Memo Backed Coercion for Qaeda Cases: the Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened:

The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden’s top aides, after his capture in April 2002, the officials said. The memo provided a legal basis for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.

…

It has been known that the methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles. But until now, it was not been clear that the memo was written in response to the Central Intelligence Agency’s efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq.

…

The full extent of the tactics used during his interrogation are still not publicly known, but the methods provoked controversy within the C.I.A. and prompted concerns about whether agency employees might be held liable for violating the federal torture law.

Does the provision of this context mean that the attacks on Bybee have been unfair? No. Being asked to come up with justifications for the CIA’s behavior might mean that he was in a much tougher spot than if he was just engaging in a theoretical exercise, but his moral and professional obligations — and the need to provide quality, balanced advice not a one-sided and ultimately unpersuasive screed — were every bit as strong if not stronger.

Furthermore, and perhaps because of this memo (the NYT does not claim direct causation), whatever happened to Abu Zubaydah was not unique:

It is known that some Qaeda leaders were deprived of sleep and food and were threatened with beatings. In one instance a gun was waved near a prisoner, and in another a noose was hung close to a detainee.

Mr. Mohammed was “waterboarded” — strapped to a board and immersed in water — a technique used to make the subject believe that he might be drowned, officials said.

In the end, administration officials considered Mr. Zubaydah’s interrogation an example of the successful use of harsh interrogation techniques.

Some things just are not legal, and you have to say so.

Some Background:

• BBC profile of Abu Zubaydah
• 2002 discussion in Time magazine, ‘How do we make him talk? (‘No matter who gets Zubaydah to talk, the squeezing would most likely consist of drugs, mind games and sleep deprivation. “It’s not pulling out fingernails,” says the official, “but it’s pretty brutal.’)

Update: Jack Balkin on the role of the government lawyer.

Experts Agree! OLC Botched Work on Torture!

Legal Scholars Criticize Torture Memos notes a general consensus among expert readers that the Torture Memos were so one-sided as to be incompetent, misstated basic concepts of criminal law, and misread our international obligations.

But don’t worry, one of the lead authors is a court of appeals judge, and all the others still have their jobs! (At least until January.)

Counterspin Radio Interview

If you want to know what I sound like, you can hear a Real Audio or MP3 of an interview on CounterSpin: The Radio Show of Fairness. The show is also being broadcast on 130+ stations around the country at various times in the next week. (Update: more stations.) The family can hear it on WPFW / 89.3 FM next Thurs. at 11:00 am. Alas, there’s no station playing it here in Miami…

Torture Spin

One objective of the Bush Administration’s modified limited hangout on the Torture Memos and the accompanying partial data dump, has been to sell the voter, and the chattering classes, the story that while some lower-down officials were having philosophical discussions about torture, none of this was ever reflected in the actual orders given by higher ups.

There are a large number of reasons to be more than a little wary about this spin on the story.

First, there are the obvious gaps in the story provided by the Administration — less and less information about the orders given by higher-ups as we get closer to the present day, the period in which administration desperation about events in Iraq could only have increased.

Second, there is the absence of any information about the instructions to the CIA at any time.

Third, there is the bureaucratic reality that the vast number of memos and working groups were not the result of spontaneous organizational combustion. People very close to the top asked for those. We know Rumsfeld and Gonzales did; we don’t know how much they consulted with their boss, and he’s having memory problems on the subject of torture.

Fourth, we know that the proponents of torture were not just philosophizing, or casting about for policy options, or presenting balanced options to their bosses, but rather were so intent on getting their way that they ruthlessly cut their bureaucratic opponents out of the loop.

According to today’s Washington Post, in January 2002, the State Department Legal Advisor — one of the higher ranking lawyers in government, and traditionally an authoritative interpreter of existing treaties within the executive branch — opined that the Justice Department approach to the torture issue and to the Geneva Conventions was

“seriously flawed” and its reasoning was “incorrect as well as incomplete.” Justice’s arguments were “contrary to the official position of the United States, the United Nations and all other states that have considered the issue,” Taft said.

That letter somehow didn’t get into this week’s data dump. Nor did the reaction from Justice and Defense: they started trying to exclude the weak-livered folk from State from meeetings.

One result of the rancorous debate, according to participants, was that Yoo, Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.

For example, the officials said, a 50-page Justice Department memo in August 2002 about the meaning of various anti-torture laws and treaties was not discussed or shared with the Joint Chiefs or the State Department. It was drafted by Justice for the CIA and sent directly to the White House.

(I happened to be talking to a mid-level foreign service officer, who is not a lawyer, last week and he expressed his disgust that the US government had, for the first time, interpreted treaties without even consulting the state department.)

These actions are consistent with a picture of an administration that sought a way to use, and intended to use, violence to question people. It is not airtight proof, and one hopes they pulled back from the brink…but at the very least there are many questions left to answered.

Adminstration: Torture Memos Inoperative

Just spotted in the Washington Post, Document On Prison Tactics Disavowed :

In a highly unusual repudiation of its department’s own work, a senior Justice official and two other high-ranking lawyers said that all legal advice rendered by the department’s Office of Legal Counsel on the subject of interrogations will be reviewed.

Guess that means those old legal opinions are inoperative now. It’s about time. (Don’t suppose Judge Bybee will be asked to resign do you? Nah.)

It’s unclear from the Post article whether the royalist theory of Presidential power, endorsed by Bush himself, is also being disavowed, but I’d say it going to remain part of Administration doctrine or they wouldn’t have released a memo Bush signed approving of it.

Also,

Gonzales … refused to comment on techniques used by the CIA, beyond saying that they “are lawful and do not constitute torture.” He also would not discuss the president’s involvement in the deliberations.

A separate Post article notes that,

In December 2002, as Pentagon officials were trying to get detainees to offer more useful information about al Qaeda, Rumsfeld approved a variety of techniques, such as stripping prisoners to humiliate them, using dogs to scare them and employing stress positions to wear them down, the documents show. The tactics also included using light and sound assaults, shaving facial and head hair and taking away religious items.

Pentagon officials say most of the techniques were never used, and a Pentagon working group recommended that Rumsfeld roll back these methods. In a memo to the defense secretary in March 2003, the group wrote: “When assessing exceptional interrogation techniques, consideration should be given to the possible adverse affects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations.”

A third Post article, which sounds awfully like White House talking points, suggests that liability concerns about the Torture Act, and especially the fear that anything less than a Presidential permission slip might open the door to prosecutions, drove Ashcroft to urge Bush to allow more violence than State or military lawyers wanted. Why Ashcroft didn’t trust the troops to obey the law, and wasn’t willing to see the bad apples tried, is not made clear in this recitation of talking points.

Are we really expected to believe the Iraq atrocities, and the Administration climate which circumstantially appears to have enabled it, was caused by….an absence of tort reform?

(Actually, on reflection, that’s unfair: the legal action would have been criminal prosecution, not civil. So it was a real fear of US Attorneys?)

Bush Ordered "Humane" Treatment in Feb. 2002. Then What?

This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.

This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don’t have rights, but doesn’t say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.

The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”

al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it’s possible to tell who is al-Qaida and who isn’t just by looking at them?]

al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).

The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).

Note also what’s not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there’s a separate order for the CIA with more … flexibility?

It’s also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President’s closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don’t know what if anything came of it.

In short, we don’t know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.

UPDATE: The New York Times reports

White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.

Full text of the Feb. 7, 2002 Bush order below.

1. Our recent extensive discussions regarding the status of al-Qaida and Taliban detainees confirm that the application of Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al-Qaida and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving “High Contracting Parties,” which can only be states. Moreover, it assumes the existence of “regular” armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm — ushered in not by us, but by terrorists — requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.

5. I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.

PS. It’s just a minor point, but AFAIK the text of this memo was released after the evening news, and late for tomorrow’s papers. Was this an attempt to lessen coverage? Or maybe an attempt to get the papers to rely on whatever spin points were being leaked this afternoon?

Update: Judging from the stories in tomorrow’s newspapers, it made their deadlines!

I Signed the Law Professors' Letter on Iraq

Just thought I should mention that last week I signed the Law Professor’s Iraq Letter. Its concluding paragraphs ask Congress to:

(1) assess responsibility for the abuses that have taken place, identifying the officials at all levels who must be held accountable for enabling these abuses to occur and for the failure to investigate them, and determining what sanctions, including impeachment and removal from office of any civil officer of the United States responsible, may be appropriate;

(2) decide whether the U.S. should have an official policy of coercion in connection with interrogation, and if so what form it should take as well as what safeguards it should include to protect against abuses in violation of the policy.

There were about 500 signatories, almost all law professors. I’m sure they would have had more if there had been more time to organize signatures or if were not the summer vacation season.

The Marines Knew How to Do It Right

One thing I hear a fair amount¹ is people saying that since the Iraqis/Arabs/whatevers are so inhuman to “us”, it’s ok, indeed both just and desirable, for “us” to do “whatever it takes” or “give them what they deserve”. I take that to mean that because there are some vicious Islamic terrorist groups out there, and because some Arab governments repress their own peoples, it follows that the citizen-soldiers of our democracy should regress to bestiality either for retribution or deterrence. Neither one of which I find either persuasive or even palatable.

Our country’s history offers a better lesson, documented in a wonderful New York Times story in today’s paper, Enemies in the Heat of Battle, Friends for 60 Years.

The campaign to get the Japanese out of their caves on the islands near Japan was as brutal and vicious as any in the second world war. The Japanese were considered by many to be exceptionally vicious fighters who didn’t always obey the laws of war (albeit more so in other theaters, those in which they had held the upper hand). Everything being said about Iraqis or Al Qaeda today was said about the Japanese sixty years ago, and worse.

Takeo Sato, then a Japanese officer, was part of the Japanese effort to defend Saipan, captured when part of his cave fell in due to naval shelling. He became the prisoner of Marine Lt. John Rich, who ultimately befriended his captive. When fortune found a demobilized Mr. Rich in Japan a few months after the war, he went to the homes of six POWs it had been his job to question, and told their families their sons were still alive. From this sprang an improbable but enduring friendship. Now Rich and his former prisoner, both in their eighties, are revisiting Saipan with their extended families.

It’s hard to imagine that we’ll be reading any stories like this about Iraq in our dotage. And therein lies part of the problem…

¹ [Update: Here’s Trent Lott in today’s NYT Magazine:

You recently created a stir when you defended the interrogation techniques at Abu Ghraib.

Most of the people in Mississippi came up to me and said: “Thank Goodness. America comes first.” Interrogation is not a Sunday-school class. You don’t get information that will save American lives by withholding pancakes.

But unleashing killer dogs on naked Iraqis is not the same as withholding pancakes.

I was amazed that people reacted like that. Did the dogs bite them? Did the dogs assault them? How are you going to get people to give information that will lead to the saving of lives?

Charming. (Incidentally the answers to the questions about the dogs are yes and yes.)]

Phil Carter Notes Probable Jurisdiction

Phil Carter points out that the Patriot Act usefully expands US criminal law jurisdiction to sweep in “crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government”:

Sure enough, Sec. 804 of the USA PATRIOT Act … amends 18 U.S.C. 7, also known as the “special maritime and territorial jurisdiction” statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. Here’s the relevant text of 18 U.S.C. 7

Of course, this is of no great value to parties wishing to file civil law suits, and the odds that a US Attorney is going to start investigating Guantanamo seem pretty low. Prosecutions at Abu Ghrabi are firmly in the hands of the military justice system, and it’s too soon to tell whether the military honor reflex or the military cover-up reflex will dominate.

But, as noted on Intel Dump, this amendment has borne fruit in the prosecution of a civilian contractor in Iraq for an assault that lead to the death of a CIA detainee. Update: Washiington Post explains the background to the prosecution.

Cecil Turner Has A Point

In a comment to my earlier item, The Disappeared, Cecil Turner asks why I called the ‘ghost’ detainee in question a ‘confirmed POW’. And, re-reading the article I have to say that he’s basically right. The New York Times didn’t tell us much about the conditions under which the unnamed prisoner was captured, or what his citizenship was, so it seems I jumped to conclusions. And, in fact, I just found this recent Reuters article, Rumsfeld Acknowledges Hiding Iraqi Prisoner which says the detainee is an Iraqi civilian, not a POW.

That doesn’t change the bottom line as much as you might think, however. As a civilian internee, he has rights too, under the Fourth Geneva convention, which also don’t appear to have been observed. The best case for the US might be Art. 5 of 4th Geneva:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.

While this might justify stopping letters home, it doesn’t justify hiding the detainee’s existence from the Red Cross, or failing to give him an ID number, or deporting him (cf. 4th Geneva, Art. 76: “Art. 76. Protected persons accused of offences shall be detained in the occupied country.”). Also, it would be surprising to hear the US argue that the security situation in Iraq, which we’re usually told is so greatly improved, remains so bad as that the security situation would be undermined by letting the Red Cross visit him. Art. 143 says, “Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.” — have things been that bad all along?.

Of course, for its purposes the administration may have put him into the black hole category of “unlawful combatant,” but I personally do not accept that this category can be used to remove nationals of Geneva Convention signatory states from the reach of those very encompassing agreements on the unilateral say-so of an administration official. I also remain very highly dubious that this can be done even after a military hearing; in any event in this case there appears to have been no such hearing, not to mention none of the follow-on hearings that might be required if the detainee is classed as civilian being held in special circumstances out of extreme military necessity.

I simply do not accept the assertion that membership, much less suspected or reputed membership, in an international criminal organization like al Qaeda, negates a detainees citizenship and its privileges. And if you think about it, that’s not a precedent we’d like to set for our enemies to use against us.

[Several other commentators have asked why in my original post I called this a ‘technical’ war crime. That’s not a term of art; I just meant by that to suggest that although I believe this conduct is seriously wrong, and violates the US’s international obligations, and might in theory be classed as a war crime, it doesn’t seem to me personally be as evil as, say, raping and killing and frankly it’s hard to imagine that it would form the centerpiece of any very hypothetical international prosecution if the subject emerges unhurt. In the highly unlikely event that any of the US’s conduct towards its prisoners ever were to come before an international body — a procedure limited for the gravest and most serious offenses — it will be because of a substantial pattern of serious violence, injuries, or deaths, not just what is reported so far in the case of this particular ‘ghost detainee’.]

The Disappeared

Today’s bombshell is in the New York Times, Prison Abuse: Rumsfeld Issued an Order to Hide Detainee in Iraq.

Let’s count the shockers (we can still be shocked, can’t we?) and estimate the fallout.

Shockers:

1. Rumsfeld (at the CIA’s request—we’ll get to that), ordered what seems at least a technical war crime: putting a confirmed POW in solitary and hiding him from the Red Cross. [Update (6/17): Oops. Not a confirmed POW, a civilian detainee — see Cecil Turner Has A Point.]

2. It’s not a unique case; there is/was a class of “ghost detainees”—disappeared people. This from a country that (with some justice) tied itself up in knots over the fate of its own POWs and MIAs in Vietnam.

3. In addition to being immoral (we knew that), our leaders are not just partially (we knew that) but totally incompetent: having put this guy on ice because he was too important to expose to the Red Cross and so desperately needed to be softened up, the system forgot all about him:

Seven months later, however, the detainee - a reputed senior officer of Ansar al-Islam, a group the United States has linked to Al Qaeda and blames for some attacks in Iraq - is still languishing at the prison but has only been questioned once while in detention, in what government officials acknowledged was an extraordinary lapse.

“Once he was placed in military custody, people lost track of him,” a senior intelligence official conceded Wednesday night. “The normal review processes that would keep track of him didn’t.”

The detainee was described by the official as someone “who was actively planning operations specifically targeting U.S. forces and interests both inside and outside of Iraq.”

But once he was placed into custody at Camp Cropper, where about 100 detainees deemed to have the highest intelligence value are held, he received only one cursory arrival interrogation from military officers and was never again questioned by any other military or intelligence officers, according to Pentagon and intelligence officials.

Things we know already, and that this incident reminds us:

4. Abu Ghraib may be the tip of an iceberg. There are a lot of other military prisons to worry about both in and out of Iraq. One is Camp Cropper, at or near the Baghdad Airport.

5. Even worse is a network of secret CIA prisons in various undisclosed locations, run by people who take the view that none of the rules apply to them. We have no idea how many of these prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them.

Fallout

I. You would think that Rumsfeld would have to resign unless somehow they can make Tenet the fall guy for this. But I am dubious. Yes, this is much more direct and personal authorization — a real smoking gun — than what has come out so far in the torture cases, although there’s serious circumstantial evidence accumulating there too. On the other hand, while putting ‘ghost’ detainees in secret solitary is illegal, and technically a war crime, the effect on the detainees not nearly as horrible as what seems to have happened at Abu Ghraib.

II. People like me, who have been highly dubious about the US acceding to the jurisdiction of the International Criminal Court due to the real and troubling encroachment on our traditional conception of national sovereignty are really going to have to think long and hard about changing sides on this one, or at least accepting jurisdiction with regards to some of our treaty obligations. The last few months argue strongly that the US cannot always be relied on to observe its international law obligations as much as I would have thought and hoped.

III. At some point some of this stuff has to stick to Rumsfeld’s boss. Are we there yet?

Two Links From TalkLeft

Talkleft, which just has tons of good stuff every week, has two links of particular interest.

First, Iraqi Top General Complains About Confinement Conditions, a link to a Washington Post story which lays out facts tending to prove that the US is holding a top Iraqi general, and admitted POW, in conditions that violate the Geneva Conventions. The speculation is that the General wouldn’t give the answers sought about Iraqi WMD’s which, after all, we know are out there somewhere.

The second link is to a nice piece of of torture-related surrealism by ex-Phythonian Terry Jones, writing in the Guardian about how This won’t hurt much.

Turns out it hurts even when I don’t laugh.

The 'Terrorist With an A-bomb' Torture Scenario

Debates about the legality of torture often invoke intuitions about the morality of the practice. The argument is that there may be extreme circumstances in which torture is morally justified, and if so the law should reflect this. (A subsidiary and separate issue is whether a particular given circumstance, e.g. the War on Terror, rises to the level of sufficiently extreme circumstances.)

Many people, especially the type of people who believe in inalienable human rights, have the intuition that torture is always wrong. Other people are not so sure; their intuitions are more utilitarian (it was Bentham, after all, who said “The idea of rights is nonsense and the idea of natural rights is nonsense on stilts”). What if torturing (killing?) one person (or a few people? or a few dozen people?) could save thousands, or millions? Wouldn’t that be morally justified?

The most common capsule version of this question bandied about is the ‘terrorist known to have an a-bomb in NY’ (TABNY) scenario: What if the police capture someone ‘known’ to have a ticking a-bomb secreted somewhere in a major city, and ‘know’ they have only 24 hours to get the location before it goes off.

I think these hypotheticals have almost no connection with reality: How can the police ‘know’ the suspect is in fact guilty, and ‘know’ about the deadline, with sufficient moral certainty to be willing to contemplate torture, and yet not know what they seek?

I think these hypotheticals also elide what we know about torture: that some people don’t crack, and that others will say anything, yes, even false things, to make it stop. And how many false leads does the victim have to give before the 24 hours are up?

But never mind that. Let’s take it on its own terms. And by its own terms, I mean from the framework of a utilitarian moral calculus, since I doubt that a short blog post is going to convert a utilitarian to a rights-based vision of morality (although there are arguments justifying rights-based morality in consequentialist or utilitarian terms).

Law preforms complex functions in modern society. Among them it gives notice of which actions risk consequences (deterrence) and is to at least a limited extent a moral statement of what the community values, tolerates, or abhors (education).

We also know that rules tend to be violated. Generally speaking, however, if something is permitted we are likely to see more of it. Indeed, as the Medium Lobster recently noted, in some visions of utilitarianism it would be morally proper to torture N people if it would save N+1, or even morally proper to torture infinite numbers of “them” to save one of “us”.

Rules against the torture of suspects/detainees/prisoners are directed at the people who have power over that person. If we as a nation craft a rule that says torture is permitted to serve the greater good, we instruct the police officer/CIA officer/soldier at the sharp end that they should in each case make a personal judgment as to whether the end justifies this means. It is the nature of man, and especially bureaucratic man, that in times of stress people frequently are going to choose to err in the direction of heading off the mass disaster rather than risk being held responsible for failing to prevent it. That means we’re likely going to see a lot of torture, indeed “too much” even by a utilitarian calculation. Furthermore, once you open the door to torture, there’s no logical reason to think it will only be applied to “them”. What if the suspected ‘terrorist with the bomb’ is one of “us”?

Utilitarian opponents of a flat no-torture rule nevertheless object that it fails to deal with the rare but possible TABNY case where torture would be justified, and that this failing should be corrected. Here, I think I’ll follow the great Charles L. Black, Jr.’s lead. In an article I wrote on cryptography and the constitution a few years ago I summarized Black’s view:

that an “absolute” right against being tortured might nonetheless find room for an exception in the case of “the man who knew where the [atom] bomb [was ticking, but] sat grinning and silent in a chair” far from the place he had planted it. Charles L. Black, Jr., Mr. Justice Black, The Supreme Court, and the Bill of Rights, Harper’s, Feb. 1961, at 63, reprinted in The Occasions of Justice: Essays Mostly on Law 89, 99 (1963). Explaining this position in a Constitutional Law class I attended at Yale in 1984, Professor Black stated that he believed torture morally justified in this extreme and hypothetical case. Once the torturer extracted the information required, Black continued, he should at once resign to await trial, pardon, and/or a decoration, as the case might be.

I think Charles Black got it exactly right. I’m not sure that I think torture is ever morally justified or sensible, but I am prepared to accept that in the most extreme circumstances there might be an exception to that rule. But one thing I am certain about: if someone thinks that torture might be morally correct in a given situation, I want the potential torturer to understand that by acting on their view they are putting themselves personally at risk, and that their duty is to turn themselves in as soon as they’ve extracted what they sought (or failed).

If it turns out that the belief which motivated the torture was justified (and the a-bomb is defused), we may praise them. But if it turns out that the belief was mistaken, and especially if they have tortured an innocent, let them not turn to legal institutions for refuge.

Two Generals Knew (Or Should Have Known)

According to the New York Times, Brig. Gen. Janis Karpinski, the commander of the 800th Military Police Battalion, and Maj. Gen. Barbara Fast, the top Army intelligence officer in Iraq were on notice as to at least some prisoner abuse as early as mid-November: Unit Says It Gave Earlier Warning of Abuse in Iraq.

Starting in mid-November, one member of the unit began asking detainees, “How have you been treated since you have been in U.S. custody?” It was intended as a tactic meant to make the detainee feel like the interrogator cared, military intelligence personnel said. But the question soon began eliciting vivid and disturbing answers.

“One guy said he was thrown on the ground and stepped on the head,” said one soldier. “That’s when I started paying attention to it.”

As more abuse reports emerged, members of the unit made the question a formal part of the screening process. In early December, the question was added to a Microsoft Word document of questions for the unit’s interrogators to ask detainees, several military intelligence personnel said in interviews.

“We couldn’t believe what we were hearing,” said one soldier. Two detainees reported having been given electric shocks at other holding facilities before arriving in Abu Ghraib, according to the interviews. One prisoner’s file included photographs of burns on his body. “We didn’t want people to know that we knew about it and didn’t report it,” the soldier said.

…

The reports of abuse made by the Detainee Assessment Branch were often limited to one or two paragraphs in the “circumstances of capture” section of a memorandum recommending whether detainees should be released. Military officials acknowledged that the memorandums were read by judge advocates.

From there, military officials said, the lawyers reviewed a detainee’s file, added some documents and sent it to a three-member Review and Appeal Board made up of General Karpinski, General Fast and a lawyer. Whether the the assessment branch memorandum remained in the file is unclear.

But several military personnel said the policy was for the board to read the assessment memorandum. Once the board reviewed a file, the members voted on whether to release the detainee. At that point, the entire file was returned to the assessment branch with the board’s decision stated on a separate form, signed by the board members, said the military intelligence personnel.

“Whether or not they read those things I don’t know, but they should have,” said one military intelligence soldier who worked closely with the unit. “They were making decisions based on it.”

OLC's Aug. 1, 2002 Torture Memo ("the Bybee Memo")

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

• This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.

• This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.

• Nowhere do the authors say “but this would be wrong”.

• Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo

• This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court’s decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I’m no expert here, but I’m dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President’s Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we’ve had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla’s arrest as an example of the valuable intelligence that could be gathered to prevent future attacks on the US. (In fact, by all accounts other than the Justice Department’s, Padilla was at worst a nasty, ill-intentioned incompetent or perhaps just a big talker; his lawyer argues he was a guy who soured on Al Qaeda and made up stuff so they’d let him go back to the US).]

The memo then argues (pp. 33- ) that any criminal statute such as the Torture statute, which might be read to limit the President’s authority to wage war must be read to avoid this constitutional problem. It’s certainly right that reading statutes to avoid constitutional problems is a good interpretive strategy. The problem here, as I’ve suggested previously, is that there isn’t actually much of a constitutional problem here: a President negotiated the statute, the Senate ratified it, both houses of Congress passed implementing legislation that a different President signed. Treaties are the law of the land. Once implemented in legislation (few treaties are “self-executing,” so legislation is almost always needed), the President has a duty to take care that they be faithfully executed unless Congress relieves him of that obligation. That didn’t happen here.

The memo argues (p. 35) that Congress “may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Either this is just bunk, or the Geneva conventions, the prohibitions on the use of poison gas, all the rest of the web of international agreements to which the US is a party, are so much tissue paper. We’re no longer committed to the rule of law, but the rule of force. (In fact what the OLC seemed to argue for in other memos was a double standard in which international law still applied to everyone else.)

In any case, there’s an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.

[Update (6/14/04 12:10): In response to a question, I guess I should clarify this: Congress has discretion to choose the tools available to the President. It can rule some practices unlawful, either under its Art I, sec. 8, para. 14 authority “To make Rules for the Government and Regulation” of the armed forces or under the Art. VI Treaty power. I would argue it can order all troops leave a given country, if only under the power of the purse. But it cannot direct a brigade to go here or there in the field of battle.]

Page 36 pulls back a bit in the direction of reality. Perhaps realizing that its argument is a little daft, the memo considers the possibility that “[i]t could be argued that Congress enacted 18 U.S.C. § 2340A with the full knowledge and consideration of the President’s Commander-in-Chief power, and the Congress intended to restrict his discretion in the interrogation of enemy combatants.” But the visit is merely temporary, for the memo quickly asserts that even if this were the case, “the Department of Justice could not could not [sic] enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign”.

Note that the argument here is not that the DOJ should use its prosecutorial discretion, but rather that it would have a legal duty to abstain from prosecution. Why couldn’t the DOJ prosecute what appears to be a crime? Because the President’s power to protect the nation’s security is paramount (p. 36), and plenary, especially “in grave and unforseen emergencies” (p. 37).

Now, there really is great substance to the argument that the President’s powers are at its apex if he has to repel a sudden attack on the US. I think all constitutional scholars would agree with that. But the scenario to which this applies is the invading army, the advancing missile or aircraft, not the detainee captured half way across the world.

By page 39 of the memo, however, we’re back to the Vesting Clauses of the Constitution, and the argument the President is a law to himself regarding anything touching military matters. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” And since intelligence gathering is so critical to modern warfare against terrorists, Congress certainly can’t interfere with that.

In short, it’s the same Nixonian argument all over: the DOJ can’t prosecute anyone who, in anything arguably connected to the war effort, does what the President tells them to.

But that’s not enough. The Memo then turns to other defenses besides Presidential authorization that might be raised by a person accused of torture. [I take it that this section of the memo applies to both accusations of “torture” which the authors admit is torture and accusations of “torture” that the memo writers would characterize as mere “cruel, inhuman, or degrading acts” that are not actual torture, but it’s a little vague on this, and it’s conceivable the authors mean this section only to apply to the latter. The memo speaks of force, even deadly force, which suggests it includes what they call torture, but elsewhere it notes that the force must be “proportional” to the need; given that the “need” is national security, and the memo treats this as the summum bonum, I read the memo to intend the defenses potentially to apply to all uses of force including the most severe torture.]

The first is the “necessity” defense, the second is a notion of “self-defense”. I will leave it to others to skewer these. But I do feel a need to point out just how far down the slippery slope this memo goes by page 45. It argues that otherwise criminal individual acts can be defended by invoking the nations’s not the individual’s right to self-defense (and even in a footnote argues that there’s a relevant analogy to the right to national self-defense under international law. And this applies to suspected prospective attackers and their associates as well as soldiers in the field. How this differs from saying that if the US even suspects anyone of wanting to harm it, it can do anything it wants to them is not clear on first reading.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

Yoo, Unrepentant

Prof. John Yoo published an op-ed in the LA Times today entitled With ‘All Necessary and Appropriate Force’. As Prof. Yoo worked in the Justice Dept. During 2001-03, and by all accounts had a major hand in the drafting of Justice Dept. memos relating to the rules applying to the treatment of al Qaeda and other persons labeled by the administration as non-persons enemy combatants, his comments deserve careful attention.

Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared “to be an effort to redefine torture and narrow prohibitions against it.”

Yes, that’s more or less what it looked like all right. Or, as one pithy letter-writer to the Washington Post put it, “How is it that the Defense Department, the Justice Department, and the White House counsel’s office were all writing lengthy and detailed memos on the laws against torture, how to get around the laws against torture, and the president’s alleged authority to ‘set aside’ the laws against torture, and yet nobody had any intention of torturing anybody?”

This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.

Ok, we’re already at the first disingenuous loophole: “a standard of treatment” tells us nothing about what sort of standard. “Kill them all” is a standard. As for the promise of humane treatment, what is that worth when it’s qualified by “to the extent appropriate and consistent with military necessity”?

This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism.

Actually, this statement is dangerously false. The Geneva Convention does not apply to terrorists on our shores–but the Bill of Rights does. As regards foreign nationals in foreign countries where we are conducting military operations, the Geneva Conventions clearly contemplate a dichotomous world: there are foreign uniformed troops, who get POW status if caught, and there are foreign civilians, who do not, but instead benefit from certain limited protections for civilians. Irregulars who take up arms can be treated as criminals, can be tried, can be shot if there is a death penalty. POWs can’t be tried, and are entitled to a set standard of treatment that in many countries exceeds what civilian prisoners would get. Furthermore the Geneva convention system provides for a system by which military captors must hold a hearing to determine the status of a captured combatant before determining that they are not entitled to POW status. We’ve failed to do this in Afghanistan and Iraq, although we did manage somehow to do it in the first Iraq war.

It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose — inflicting civilian casualties through surprise attack — violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.

By joining Al Qaeda or the Taliban, much less by being accused of joining by Mr. Yoo and others, persons forfeit neither their citizenship nor their humanity. Al Qaeda is not a country. It cannot sign the Geneva conventions. But its fighters often are citizens of signatory countries, or are fighting on behalf of signatory countries. The idea that the US can unilaterally say that accused Al Qaeda and Taliban members are, by virtue of the accusation, removed from the Geneva conventions is dangerous nonsense, and an ugly precedent that will surely come back to haunt us. To the extent that particular fighters violated their rights to POW status by, for example, not wearing uniforms, our obligation under those same conventions is to treat them as POWs until we give them a hearing.

It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” It defined mental pain or suffering as “prolonged mental harm” caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures “calculated to disrupt profoundly the senses or the personality.” Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention — against “cruel, inhuman or degrading treatment or punishment” — because it was thought to be vague and undefined.

Physical and mental abuse is clearly illegal. But would limiting a captured terrorist to six hours’ sleep, isolating him, interrogating him for several hours or requiring him to do physical labor constitute “severe physical or mental pain or suffering”? Federal law commands that Al Qaeda and Taliban operatives not be tortured, and the president has ordered that they be treated humanely, but the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station.

Another disingenuous move. Neither six hours sleep nor “several hours” of interrogation are illegal acts. But that’s not what we’re talking about. We’re talking about scaring people with dogs, about contests to see how many detainees could be so terrified they peed on themselves. We’re talking about 16 hours of continuous interrogation, and suicide attempts. We’re talking about telling people they were about to be killed. We’re talking about simulating telephone conversations in which detainees were told their families were being held on the other end of the line and would be harmed if the detainee didn’t talk. We’re talking about not jjust threatening but abusing kids to make parents talk. We’re talking about raping women and children of both sexes. We’re talking about atrocities.

Treating “captured terrorists as if they were guests at a hotel”? The word “offensive” is really too mild for this sort of argumentation.

Finally, critics allege that the administration wants to evade these laws by relying on the president’s commander-in-chief power. But the 1994 statute isn’t being evaded, because the president’s policy is to treat the detainees humanely.

WHOOPS! What happened to “to the extent appropriate and consistent with military necessity”?

Besides, that statute does not explicitly regulate the president or the military. General criminal laws are usually not interpreted to apply to either, because otherwise they could interfere with the president’s constitutional responsibility to manage wartime operations. If laws against murder or property destruction applied to the military in wartime, for instance, it could not engage in the violence that is a necessary part of war.

Non-sequitur. Straw man. No one has suggested that the statute prevents military operations. Just military torture. And since the statute is part of our observance of the Geneva Conventions, it’s hardly odd to read it to apply to the military - since that’s to whom the Geneva Conventions apply.

But suppose Congress did specifically intend to restrict the president’s authority to interrogate captured terrorists.

Ok, back to reality.

As commander in chief, the president still bears the responsibility to wage war. To this day, presidents from both political parties have refused to acknowledge the legality of the War Powers Resolution, which requires congressional approval for hostilities of more than 60 days. (President Clinton ignored it during Kosovo.) And in the war on terrorism, Congress has authorized the president to use “all necessary and appropriate force.”

Non-sequitur again. No President has ever previously suggested that the Torture Statute was either unconstitutional or didn’t apply in wartime.

By exploring the boundaries of what is lawful, the administration’s analyses identified how a decision maker could act in an extraordinary situation. For example, suppose that the United States captures a high-level Al Qaeda leader who knows the location of a nuclear weapon in an American city. Congress should not prevent the president from taking necessary measures to elicit its location, just as it should not prohibit him from making other strategic or tactical choices in war. In hearings this week, Sen. Charles E. Schumer (D-N.Y.) recognized that “very few people in this room or in America … would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

This is so wrong on two levels. First off, not one of the memos at issue is about the rare hypothetical ‘terrorist known to have an a-bomb in NY’ (TABNY) scenario. Rather, they are about the care and torture of all so-called ‘enemy combatants’. Not a single one of these people has ever been alleged to have WMDs in the US. It may be that many people got tortured for denying knowledge of the existence of WMDs in Iraq, but the evidence points rather strongly in the direction that these weapons never took the trouble to exist.

Prof. Yoo’s resolution of the TABNY scenario is wrong on its own terms too, because it legitimates a torture regime that, even judged by its own starkly utilitarian morality, will inevitably err on the side of excessive torture . Explaining why that is is a little complicated, so I’m going to defer that to another posting that I’ll put up no later than Monday.

Ultimately, the administration’s policy is consistent with the law.

“Consistent with the law” because (although Prof. Yoo has soft-pedaled it in this op-ed) the memo says that the Constitution allows the President to do what he wants if he justifies it by miliary necessity.

If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.

True. But you left one out: the courts can find that your interpretation sounds in Nuremburg.

Deconstruction of Torture Memo's Analysis of Criminal Intent

One of the weirder parts of the Torture Memo, which I didn’t write about earlier, was the attempt to suggest that a torturer might be able to benefit from what we lawyers call a ‘pure heart, empty head’ defense: ‘Honest, judge, I didn’t think it was torture.’ The memo tries this on in two implausible ways: (1) The guy doing the damage honestly believes it’s legal; (2) the guy doing the damage isn’t sure it’s really going to be that damaging. Both arguments seem completely inapplicable to the circumstances, neither is convincing, and the legal analysis is muddled. But don’t take my word for it, it’s not my field. Instead, have a look at these three posts by experts.

Update (6/11/04): Also don’t miss Eric Muller’s excellent comment, Manipulating Doctrine.

Women and Children. On Camera.

Brad reports on a Sy Hersh speech at U.Chicago in Torture and Rumors of Torture.

We’re heavy into hearsay territory here, but if this is really true, we haven’t hit bottom yet:

Bush, he said, was closing ranks, purging anyone who wasn’t 100% with him. Said Tenet has a child in bad health, has heart problems, and seemed to find him generally a decent guy under unimaginable pressure, and that people told him that Tenet feared a heart attack if he had to take one more grilling from Cheney. “When these guys memoirs come out, it will shock all of us.”…

He said that after he broke Abu Ghraib people are coming out of the woodwork to tell him this stuff. He said he had seen all the Abu Ghraib pictures. He said, “You haven’t begun to see evil…” then trailed off. He said, “horrible things done to children of women prisoners, as the cameras run.”

He looked frightened.

At some point, we run out of new horrors, don’t we? Please?

(And at some point, Real Soon Now, mass revulsion takes over, right?)

Why Can't Bush Simply Say "We Don't Do Torture. It's Wrong." ???

Digby points out GW Bush’s non-denial denial when faced with a softball torture question:

Q: Mr. President, I wanted to return to the question of torture. What we’ve learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law.

So when you say that you want the U.S. to adhere to international and U.S. laws, that’s not very comforting. This is a moral question: Is torture ever justified?

BUSH: Look, I’m going to say it one more time. Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you.

We’re a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.

What does it mean when the head of government cannot simply say “Torture is wrong and I would never condone it”? Might it mean that he read a memo or two that suggested the key to making torture legal was giving the torturers reasonable grounds to bleieve that their actions are legal … because the President authorized them?

Torture: Wrong Yesterday, Wrong Today, Wrong Tomorrow

In nothing new under the sun, the Curmudgeonly Clerk notes accurately that many prior administrations have done quite horrible things in wartime. He notes the firebombing of Dresden and Tokyo, and the Japanese internments as examples of FDR’s wartime moral failings. To which one might of course add the general conduct of the anti-insurgency campaigns in the Philippines after the Spanish-American War, the bombing of Cambodia, most of the century-long campaign against Native American tribes, just to name a few.

From this basis, he concludes I was wrong to approvingly quote Kevin Drum saying that “Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong.”

As Mr. Clerk puts it,

My purpose is neither to justify the conduct of the present administration nor condemn the current president’s predecessors. As I indicated during my last stint as a guest contributor at Crescat Sententia, I find wartime torture to be deeply troubling. I do not wish to minimize the moral significance of the events at Abu Ghraib or the decisions that purportedly led to those abuses. But Drum and Froomkin are incredibly mistaken in maintaining that the Bush administration’s alleged wartime moral failings are unprecedented or unique.

That excesses and moral failings in wartime are not new, no reasonable person could dispute. That the US has been guilty of some in its history is not seriously in doubt, despite the ‘my country right or wrong’ crew. But there are important differences about this case which I think make it especially bad.

The first is that we are in a post-Nuremberg age. We profess and affirm a renewed and specific commitment to the rule of law even in wartime, one that labels some (but not all) excesses as war crimes, anathema. Torture falls squarely into that zone.

The second is that the norm against torture is especially well-established, and long-established, in both our domestic (cf. the Eighth Amendment) and international legal traditions, and in world-wide morality. (For a historic example, consider the post-Civil War case of Andersonville, where the mistreatment of prisoners was strongly condemned.) The prohibition is not a new post-Nuremberg idea, even if the clear deliniation of personal responsibility for adhering to the prohibitory norm may be. The attempt to justify cruel and unusual acts as legal thus is particularly hard to accept and particularly deserving of condemnation.

In summary, I am not arguing that inter-temporal relativism excuses past evils. Rather, I am arguing that,

1. The fact that there is a history of many evils in wartime should not blunt our condemnation of other evils, such as systematic torture of prisoners, that even those in the past might have blanched at, and

2. We can, we should, we do, hold ourselves and our government to a higher standard than the lowest common denominator of history. Indeed, it is precisely because we have the benefit of that history that we know we should do better.

I admit that the above is somewhat different from Kevin Drum’s lines that I quoted, so I’m grateful to Mr. Clerk for making me be clearer.

Basic Evil

While we lawyers get all het up about how people with a JD and a basic knowledge of the Constitution could sign a torturer’s charter, and whether this is a banal evil or virulent evil, or both, Kevin Drum has his eye on the basics:

But put aside the technical analysis and ask yourself: Why has torture been such a hot topic since 9/11? The United States has fought many wars over the past half century, and in each of them our causes were just as important as today’s, information from prisoners would have been just as helpful, and we were every bit as determined to win as we are now. But we still didn’t authorize torture of prisoners. FDR, Truman, Eisenhower, LBJ, Reagan — all of them knew it wasn’t right, and the rest of us knew it as well.

So what’s different this time? Only one thing: the name of the man in the White House. Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong. It’s time to reclaim it.

And just imagine what those guys will do if they don’t have to worry about re-election.

Iraq Abuse Recap

Whiskey Bar: Chapter and Verse provides a compact summary of what we suspect we know about the Iraq abuse story, and the far far murkier coverup.

Fafblog Interviews Donald Rumsfeld

It’s interview week over at Fafblog. Today it’s Fafblog interviews Donald Rumsfeld, and Fafblog asks the questions no one asks and gets the answers no one says:

DR: Now, I’ve accepted responsibility before and I’ll accept responsibility again for everything done under my command. But I’ll be damned… damned… if I let a few systemic, widespread, and grotesque atrocities reflect on the character and conviction of the high-ranking civilian and military brass who created the environment that fostered those atrocities.

Lack of Training? Or Surplus of It?

Talkleft describes an atrocity:

TalkLeft: Teaching Prisoner Abuse A US soldier “sustained a traumatic brain injury that left him with a seizure disorder. Military records confirm that his injury “was due to soldier playing role as a detainee who was uncooperative.”

TalkLeft asks the obvious — but very serious — question:

A “training” exercise implies teaching and supervision. Who supervised the senseless beating of a soldier? And what, exactly, was being taught?

Just a few bad apples? If only.

Give the Good Guys a Medal--Create One if Necessary

Only a Few Spoke Up on Abuse as Many Soldiers Stayed Silent—the New York Times reports on Joseph Darby and the small number of other soldiers with the decency and the guts to report abuses.

As we know, neither the right-wing media nor his neighbors have been especially kind to Spec. Darby, the soldier who made one of the important early reports.

One way to begin to restore some of my confidence in the system would be to give Spec. Darby and the other early complainants a medal or two. If there isn’t an appropriate medal in the military arsenal, then it is time to create one.

It would be the right thing to do.

The Horror

As a parent of two boys, I cannot begin to tell you how horrible and disgusting I think it is that my government could act in this way:

GI: Boy mistreated to get dad to talk. [Link updated 6/11/04] A military intelligence analyst who recently completed duty at Abu Ghraib prison in Iraq said Wednesday that the 16-year-old son of a detainee there was abused by U.S. soldiers to break his father’s resistance to interrogators.

The analyst said the teenager was stripped naked, thrown in the back of an open truck, driven around in the cold night air, splattered with mud and then presented to his father at Abu Ghraib, the prison at the center of the scandal over abuse of Iraqi detainees.

Upon seeing his frail and frightened son, the prisoner broke down and cried and told interrogators he would tell them whatever they wanted, the analyst said.

…

Sgt. Samuel Provance, who maintained the 302nd Military Intelligence Battalion’s top-secret computer system at Abu Ghraib prison, gave the account of abuse of the teenager in a telephone interview from Germany, where he is now stationed. He said he also has described the incident to Army investigators.

Buck stops … where did you say?

What Happens When You Let the Attack Dogs of War Off the Leash

The prison body count is increasing: Pentagon Records Show Five Brutal Interrogation Deaths. And the troops were routinely absuing people; even abusing reporters — how dumb and arrogant can you get? Interestingly, the reporter abuse claims got a complete white-wash. Meanwhile we read about cover ups … while the case for a policy and practice directed from the top just gets stronger every day. [Update: I forgot to link to the Army’s apparent attempt to neuter Red Cross inspections]

People used to worry out loud about personal and national honor (while injustice and atrocitities went on around them). Are we just more honest now? Or is something valuable lost if we set our sights so low?

OK, That's A Denial

I complained yesterday that the Pentagon issued a non-denial denial about the New Yorker article by Seymour Hersh. Today we get a full-bodied denial: Pentagon: Hersh report ‘journalist malpractice’.

Update: To ice the cake, the DoD changed the original press release.

Eric Muller Is Asking the Right Questions About the Justice Dept.

In More on the Justice Department, the Pentagon, and the Supreme Court, Eric Muller is asking the right questions about whether the Justice Dept. misled the Supreme Court, either on purpose or (more likely) due to incompetence or manipulation.

Two months ago I would have been confident that of course no one in the SG’s office would knowingly lie to the Supreme Court. I still think that’s more likely than not. But when your government will torture people, everything has to be on the table.

Torture Not A Policy, Just a Pattern. Right.

The Observer reports that US guards ‘filmed beatings’ at terror camp:

Dozens of videotapes of American guards allegedly engaged in brutal attacks on Guantanamo Bay detainees have been stored and catalogued at the camp, an investigation by The Observer has revealed.

Later in the article the Observer says:

It is the case of [Tarek] Dergoul [the fifth British prisoner freed last March], however, that is likely to be the most damaging. The 26-year-old, from Mile End in east London, spent 22 months at Guantanamo Bay from May 2002. Today he tells The Observer of repeated assaults by Camp Delta’s punishment squad, known as the Extreme Reaction Force or ERF.

Their attacks, he says, would be prompted by minor disciplinary infractions, such as refusing to agree to the third cell search in a day - which he describes as an act of deliberate provocation.

Dergoul tells of one assault by a five-man ERF in shocking terms: ‘They pepper-sprayed me in the face, and I started vomiting. They pinned me down and attacked me, poking their fingers in my eyes, and forced my head into the toilet pan and flushed.

‘They tied me up like a beast and then they were kneeling on me, kicking and punching. Finally they dragged me out of the cell in chains, into the rec[reation] yard, and shaved my beard, my hair, my eyebrows.’

After their release last March, Shafiq Rasul, Asif Iqbal and Ruhal Ahmed, the so-called Tipton Three from Staffordshire, told of similar ERF attacks.

Rasul said they led to a new verb being coined by detainees: ‘to be ERFed’. That, he said, meant being slammed against a floor by a soldier wielding a riot shield, pinned to the ground and beaten up by five armed men.

However, it is Dergoul who now reveals that every time the ERFs were deployed, a sixth team member recorded on digital video everything that happened.

Lieutenant Colonel Leon Sumpter, the Guantanamo Joint Task Force spokesman, confirmed this last night, saying all ERF actions were filmed so they could be ‘reviewed’ by senior officers. All the tapes are kept in an archive there, he said

This might be a good time to re-read this important post, Did the Justice Department Lie to the Supreme Court? by Eric Muller, especially if you haven’t see the recent updates.

Denial or Non-Denial Denial?

The press, and most blogs, are playing this DoD News: Statement from DoD Spokesperson Mr. Lawrence Di Rita as a categorical denial of the latest Seymour Hersh article in the New Yorker.

That’s odd, because at least to a lawyer’s eye it seems awfully cagey. Let’s parse all five paragraphs of it to see if it’s a real denial, or just a non-denial denial.

Update (5/17/04): DoD changed the original press release if you follow the link it will have additional text now. Plus they issued another denial

“Assertions apparently being made in the latest New Yorker article on Abu Ghraib and the abuse of Iraqi detainees are outlandish, conspiratorial, and filled with error and anonymous conjecture.”

“The abuse evidenced in the videos and photos, and any similar abuse that may come to light in any of the ongoing half dozen investigations into this matter, has no basis in any sanctioned program, training manual, instruction, or order in the Department of Defense.”

Of course, that’s not what Hersh actually alleges in his article. Hersh alleges that the Pentagon allowed one set of techniques (“sleep deprivation, exposure to extremes of cold and heat, and placing prisoners in ‘stress positions’ for agonizing lengths of time” plus “sexual humiliation of Iraqi prisoners”), left implementation to MPs untrained in how to do it, with a chain of command largely in the dark as to the black ops orders, and the troops then ran amok. “Cambone and his superiors,” writes Hersh quoting a Pentagon consultant, “‘created the conditions that allowed transgressions to take place.’” That is not denied.

“No responsible official of the Department of Defense approved any program that could conceivably have been intended to result in such abuses as witnessed in the recent photos and videos.”

Again, not what Hersh alleged. He did not suggest the upper reaches of the DoD intended to allow rape or sexual torture, and especially not photographed torture. Rather Hersh alleges the Pentagon expanded a program that allowed serious physical abuse, what I would call torture (“sleep deprivation, exposure to extremes of cold and heat, and placing prisoners in ‘stress positions’ for agonizing lengths of time” plus “sexual humiliation of Iraqi prisoners”) and took the troops out of their regular chain of command. At which point events took their course.

“To correct one of the many errors in fact, Undersecretary Cambone has no responsibility, nor has he had any responsibility in the past, for detainee or interrogation programs in Afghanistan, Iraq, or anywhere else in the world.”

Here we come to the nub of the matter: Saving Cambone. Here’s what Hersh actually says about him:

Early in his tenure, Cambone provoked a bureaucratic battle within the Pentagon by insisting that he be given control of all special-access programs that were relevant to the war on terror. Those programs, which had been viewed by many in the Pentagon as sacrosanct, were monitored by Kenneth deGraffenreid, who had experience in counter-intelligence programs. Cambone got control, and deGraffenreid subsequently left the Pentagon. Asked for comment on this story, a Pentagon spokesman said, “I will not discuss any covert programs; however, Dr. Cambone did not assume his position as the Under-Secretary of Defense for Intelligence until March 7, 2003, and had no involvement in the decision-making process regarding interrogation procedures in Iraq or anywhere else.”

So far, we have not so much a denial, as a confirmation of one of the facts Hersh reports. But Hersh also says this:

The solution, endorsed by Rumsfeld and carried out by Stephen Cambone, was to get tough with those Iraqis in the Army prison system who were suspected of being insurgents. A key player was Major General Geoffrey Miller, the commander of the detention and interrogation center at Guantánamo, who had been summoned to Baghdad in late August to review prison interrogation procedures. The internal Army report on the abuse charges, written by Major General Antonio Taguba in February, revealed that Miller urged that the commanders in Baghdad change policy and place military intelligence in charge of the prison. The report quoted Miller as recommending that “detention operations must act as an enabler for interrogation.”

…

Rumsfeld and Cambone went a step further, however: they expanded the scope of the sap, bringing its unconventional methods to Abu Ghraib. The commandos were to operate in Iraq as they had in Afghanistan. The male prisoners could be treated roughly, and exposed to sexual humiliation.

…

In a separate interview, a Pentagon consultant, who spent much of his career directly involved with special-access programs, spread the blame. “The White House subcontracted this to the Pentagon, and the Pentagon subcontracted it to Cambone,” he said. “This is Cambone’s deal, but Rumsfeld and Myers approved the program.” When it came to the interrogation operation at Abu Ghraib, he said, Rumsfeld left the details to Cambone. Rumsfeld may not be personally culpable, the consultant added, “but he’s responsible for the checks and balances. The issue is that, since 9/11, we’ve changed the rules on how we deal with terrorism, and created conditions where the ends justify the means.”

In most of these passages, Hersh doesn’t so much say Cambone had the responsibility, rather that he was a conduit for Rumsfeld’s orders. To the extent he accuses Cambone of more, and he does, the news release is either a genuine denial of his responsibility, or a non-denial denial if his policy-making role could be characterized as something other than ” responsibility … for detainee or interrogation programs in Afghanistan, Iraq, or anywhere else in the world.” In other words, this leaves open the possibility that Cambone got to pick who had the responsibility for these tasks, or that he executed instructions from someone — Rumsfeld — who had that responsibility.

“This story seems to reflect the fevered insights of those with little, if any, connection to the activities in the Department of Defense.”

Again, not a denial.

[Edited slightly at 14:05]

Rumsfeld Ordered 'Physical Coercion and Sexual Humiliation of Iraqi Prisoners'

Here’s William Safire defending Donald Rumsfeld last week as the Cabinet member soooo concerned with civil rights:

Shortly after 9/11, with the nation gripped by fear and fury, the Bush White House issued a sweeping and popular order to crack down on suspected terrorists. The liberal establishment largely fell cravenly mute. A few lonely civil libertarians spoke out. When I used the word “dictatorial,” conservatives, both neo- and paleo-, derided my condemnation as “hysterical.”

One Bush cabinet member paid attention. Rumsfeld appointed a bipartisan panel of attorneys to re-examine that draconian edict. As a result, basic protections for the accused Qaeda combatants were included in the proposed military tribunals.

Perhaps because of those protections, the tribunals never got off the ground. (The Supreme Court will soon, I hope, provide similar legal rights to suspected terrorists who are U.S. citizens.) But in the panic of the winter of 2001, Rumsfeld was one of the few in power concerned about prisoners’ rights.

It smelled like fiction back then, since I recalled that the Pentagon had written rules for Gitmo trials that were so harsh that even administration lawyers rebelled against the first draft. Now here’s Seymore Hersch in the New Yorker, with a different set of facts about how Rumsfeld is soooo sensitive to prisoner rights:

The roots of the Abu Ghraib prison scandal lie not in the criminal inclinations of a few Army reservists but in a decision, approved last year by Secretary of Defense Donald Rumsfeld, to expand a highly secret operation, which had been focussed on the hunt for Al Qaeda, to the interrogation of prisoners in Iraq. Rumsfeld’s decision embittered the American intelligence community, damaged the effectiveness of élite combat units, and hurt America’s prospects in the war on terror.

According to interviews with several past and present American intelligence officials, the Pentagon’s operation, known inside the intelligence community by several code words, including Copper Green, encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq. A senior C.I.A. official, in confirming the details of this account last week, said that the operation stemmed from Rumsfeld’s long-standing desire to wrest control of America’s clandestine and paramilitary operations from the C.I.A.

Rumsfeld, during appearances last week before Congress to testify about Abu Ghraib, was precluded by law from explicitly mentioning highly secret matters in an unclassified session. But he conveyed the message that he was telling the public all that he knew about the story. He said, “Any suggestion that there is not a full, deep awareness of what has happened, and the damage it has done, I think, would be a misunderstanding.”

1. Who you gonna believe?

2. Looks like that search for the persons responsible that Rumsfeld promised us may not take too long.

3. When did Bush first learn of this order?

3A. If Bush knew in advance, is that why he said Rumsfeld is the best Secretary of Defense ever? (Version (i) Bush knew in advance and supported Rumsfeld in order to ensure Rumsfeld’s silence; version (ii) Bush knew in advance, agreed with the policy and still does, and that’s why he thinks Rumsfeld is so great.)

3B. If Bush didn’t know of this order at all when he ranked Rumsfeld above George Marshall, would he like a mulligan?

4. Was Safire lying on purpose, tactically, the way he usually does, or did his friend play him for a patsy?

Full Text of Red Cross Report at Cryptome

Cryptome (in the heroic rather than creepy mode) has the full text of Red Cross Report on Iraq POWs, or to give it its full title, “Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation.”

Ugly Things Grow In Dark Corners

Secret prisons. Harsh interrogations. Heard this one before?

Harsh C.I.A. Methods Cited in Top Qaeda Interrogations: The Central Intelligence Agency has used coercive interrogation methods against a select group of high-level leaders and operatives of Al Qaeda that have produced growing concerns inside the agency about abuses, according to current and former counterterrorism officials.

At least one agency employee has been disciplined for threatening a detainee with a gun during questioning, they said.

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as “water boarding,” in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.

How many detention faciilities does the CIA run? How many prisoners? How long are they held? Are they released?

And those are the easy questions. The tough ones are about how often the CIA launders its torture through foreign intelligence agencies.

Smash Says Soldiers' Email Unhampered

According to Milblogger Citizen Smash, one of the stories I linked to below is false: there is no general order preventing soldiers in Iraq from using e-mail, but rather a localized rule to stop GI’s helping themselves to private bandwidth. According to Smash it’s an example of how rumors get started:

It would appear that KBR contractors at Ginmar’s camp had set up their own wireless Internet system, and some industrious GIs have since set up their own unofficial Internet café, piggy-backing off the KBR system. But now the KBR folks are upset that the soldiers are slowing down their access (poor babies), so they’ve decided to end the “free ride.”

Not, he says, a general rule blocking access. Rather, the general rule was and remains that e-mail access is spotty, and mostly a matter of private enterprise.

Even British Conservatives Think It's a Rum Business

Even the UK’s Telegraph is running away from this one.

Rumsfeld is running this operation like a pizza parlour: Mr Rumsfeld has expressed his profound regret, although it is not entirely clear whether that is chiefly for the treatment of the Iraqis or the political damage that the scandal has caused the US government. He has, however, refused to resign, and - according to the recent polls - 70 per cent of the American public agrees with his decision.

I found it rather confusing, however, when Mr Rumsfeld also indicated that he would “resign in a minute” if he felt he could not be an effective leader. On that basis, he should be gone already: he has already proved an ineffective leader, and will be much less effective in the wake of this miserable scandal. For what has leaked out of Abu Ghraib, along with the stomach-churning whiff of chaos and sadism, is the fundamental incompetence in the running of the US military from the top down.

As for George W. Bush, the Telegraph produces the best narrative of events from a bureaucratic perspective I’ve seen yet. Read this article and ask yourself how it could be that no one told the President?

At some stages the answer plausibly is, ‘Because no one showed the pictures to Rumsfeld’ (perhaps on the theory that if you keep the pictures locked in a safe in Iraq, they’re less likely to leak?) and thus he had no chance to see just how bad it was.

But the plausibility of that answer vanishes once the Pentagon learned that 60 Minutes had the pictures. And still no one told Bush. Rumsfeld et al are trying to say it was just a mistake. No way. Too many people made that mistake. No, it’s either a massive CYA attempt gone wrong (and you’d think they’d been around too long the think the press would sit on this story for long? or are they that used to a tame press?) or, most likely, no one thought to tell GWB because, well, why would you?

(I’d sure like to know when they told Cheney — why hasn’t anyone asked that question?)

Possible Paper Trail & Other Revelations

Read Pentagon Okayed Tough Questioning Methods in the Washington Post. Then, at least for the sake of the argument, assume that none of the practices are, legally, “torture” and that none violate international or US law but instead represent the measured outer limit of what can be done to fight terrorism. (Without actually reading them, I’m not prepared to say whether this is a fair assessment, but I would very much like it to be.)

Two things still jump out.

1. The Post doesn’t know if these rules applied at Abu Ghraib. We do know that the brass took extraordinary action to keep out a highly trained military lawyer. Were there other rules in effect (and, followed or broken? is there a paper trail?) or no rules?

2. These chilling words: “Separate CIA guidelines exist for agency-run detention centers.” Do they have written rules? Who monitors to see if they re followed? How many camps are there in the American secret prison archipelago? How many prisoners? How long do they stay in? Do they get out?

See BOP News for the relevant parts of the Rummy transcript. Seems the discussion cut off just before it got to the meat.

First Thing We Do--Keep Out the Lawyers. Then Isolate the Soldiers.

How to vastly increase the odds you have atrocities:

AP, Pentagon Rejected Lawyer As Prison Adviser

By MATT KELLEY, Associated Press Writer

WASHINGTON - Pentagon officials rejected an Army plan last year to send an experienced military lawyer — who is also a Republican member of Congress — to help oversee the unit blamed for prisoner abuse at the Abu Ghraib complex outside Baghdad.

That left the prison complex, which holds up to 7,000 Iraqis, without an onsite lawyer to guide interrogations and treatment of prisoners.

The top lawyer for the 800th Military Police Brigade, the Army unit in charge of detainees at Abu Ghraib, later came under fire in an Army report about the abuse for being ineffective and “unwilling to accept responsibility for any of his actions.”

The rejected lawyer, Rep. Steve Buyer, R-Ind., and other experts say having had a lawyer at the prison might have prevented or at least mitigated the beatings, sexual humiliation and other abuse detailed in photographs and the Army probe.

“It’s always good to have a lawyer around so you’ve got a conscience for the command and an opportunity to vet questions,” said retired Army Maj. Gen. William L. Nash, who commanded an armored brigade during the 1991 Gulf War (news - web sites).

Pentagon officials confirmed there was no onsite lawyer at Abu Ghraib, but spokesmen for Army Secretary Les Brownlee and Pentagon personnel officials did not respond to repeated requests for comment Friday. Bryan Whitman, a spokesman for Defense Secretary Donald H. Rumsfeld, referred questions to the Army.

Buyer, a strong supporter of the Iraq war and a lieutenant colonel in the Army Reserves, had volunteered to go to Iraq shortly after the invasion in March 2003.

In a telephone interview Friday with The Associated Press, Buyer said military officials all the way up to the Joint Chiefs of Staff had approved his assignment to the 800th Military Police Brigade, which has handled Iraqi prisoners of war since the beginning of the conflict.

Pentagon personnel officials and Brownlee rejected the assignment, saying the Army could fill the requirement another way. Brownlee also wrote to Buyer that his high-profile status could bring danger to the troops around him.

Buyer said he objected to David Chu, the Pentagon’s personnel chief, and Charles Abell, Chu’s deputy.

“I expressed the importance of having a (lawyer) at the camp,” Buyer said. “You have to ask, when you had a qualified officer, and the civilian leaders, Dr. Chu and the secretary of the Army, said no, who did you send in his place?” …

Buyer served as a lawyer at a prisoner of war camp run by the 800th Brigade during the first Gulf War. His duties, Buyer said, included helping the International Committee of the Red Cross monitor conditions and ensuring guards followed international law such as the Geneva Conventions. He said he also questioned some Iraqis suspected of war crimes.

“The 800th MP Brigade performed exemplary service in the Gulf War,” Buyer said. “There was no hint of any mistreatment or maltreatment of prisoners. It never happened. They had excellent leadership.”

How to keep the lid on:

Electrolite: If we only had a press. Email from a friend with contacts among American troops in Iraq prompts me to wish some journalist would investigate reports that the military has ordered KBR, which provides net connectivity for US camps and bases in Iraq, to cut off all soldiers’ “inessential” access to email and the net for the next 90 days.

I understand that KBR also handles paper mail services to and from serving soldiers in Iraq, and that pickup and delivery are often little better than once a month.

I’d also like someone to investigate what our soldiers actually know about Abu Ghaib, both the events themselves and their political impact in the rest of the world.

If it’s true that the average soldier’s email is being curtailed, and if (as I suspect) many of them have only a patchy knowledge of the scandal and its impact, it would seem that many of our soldiers are about to lose a major lifeline to home without being told why.

Extend it for three months after that, and you are past the election. Which means that MaxSpeak’s prophecy…

“The troops will be the peace movement.” As the Iraqi mission disintegrates, the troops will be the first to know, then their families, then everybody.

…just might have hit a speedbump.

Very Painful

• Boing Boing, US torturers made screensavers out of atrocity photos
• Making Light, User base persistence I have to quote the conclusion:
  

  And now, a list: The Nine Ways of Being an Accessory to Another’s Sin.

  1. By counsel.
  2. By command.
  3. By consent.
  4. By provocation.
  5. By praise or flattery.
  6. By concealment.
  7. By partaking.
  8. By silence.
  9. By defense of the ill done.

  Anybody feel like keeping score?

• Talking Points Memo, various sorts of abuse are endemic throughout the American prison system
• Risks Digest, Risks of prisoner abuse vs. digital cameras
• The American Street, The Story of Little George
• Approximately Perfect, Meanwhile, in the Alternate Universe … (via Eschaton)
• Better Angels of our Nature, There Is No Honor

And, on a somewhat related note: David Neiwert issues a Media Revolt Manifesto.

Why Don't I See This In My Newspaper?

Billmon at the Whiskey Bar has been doing a superlative job of collating and explaining the Iraq Atrocities scandal. I urge anyone who breathes to have a look.

For example: in Donald Rumsfeld’s Battle With The Truth, Billmon contrasts some of Donald Rumsfeld’s statements under oath with the the actual facts.

Why don’t I see anything like this in my newspaper?

Here’s just one of the many items:

“And when General Taguba came in and made his report, he indicated that a number of the issues that had been raised last year by the ICRC had, in fact, been corrected by the command structure between the time that they were observed by the ICRC and the time that General Taguba’s team arrived on the scene.”

Donald Rumsfeld
Testimony to the Senate Armed Services Committee
May 7, 2004

On at least one occasion, the 320th MP Battalion at Abu Ghraib held a handful of “ghost detainees” … that they moved around within the facility to hide them from a visiting International Committee of the Red Cross (ICRC) survey team. This maneuver was deceptive, contrary to Army Doctrine, and in violation of international law.”

Gen. Antonio Taguba
Article 15-6 Investigation of the 800th Military Police Brigade
May 7, 2004

(note: this is the only mention of the ICRC in the Taguba report.)
________________

Painful

Jim Henley’s Unqualified Offerings:

Daily Reminder to my Fellow Citizens - We torture people. As a matter of policy.

This isn’t about news cycles. This is about our self-respect. Leonard Dickens, a year ago:

Torture is the canary in the coal mine. When your society starts seriously talking about torture, it means you’ve fucked up and become repressive.

Posted by Michael at 12:13 AM | Link | Comments (0)

The Buck Stops Where?

The headline may be Bush Apologizes, Calls Abuse ‘Stain’ on Nation but we Kremlinologists know the real goodies are elsewhere.

First, the top folks in the State department are intensifying their campaign to redeem themselves, even if this means trashing Bush. Powell’s interview with GQ came out last week, in which he tired to play loyal to the boss while roughing up his bureaucratic rivals. Then, this week, the increased budget request for Iraq went to Congress without any warning to State, leaving Powell humiliated when he’d just been telling Congress there wouldn’t a request for months.

Purely coincidentally, today State lets it be known that only Bush’s intransigence and unwillingness to apologize kept him from doing it in the day before yesterday’s Arab TV interviews when it still might have done some good. You know that Bush, hates to admit he’s wrong. But we, the guys at State who are now worried about our reputations when we have to look for new jobs in January, we want the world to know it’s not our fault:

A wide variety of officials in the administration had advised Bush to apologize on Wednesday when he gave interviews to two Arab television channels and were puzzled when he did not, senior U.S. officials said. An apology had been recommended in the talking points Bush received from the State Department and elsewhere, the officials said. Senior administration aides then made a push overnight for him to say he was sorry during his news conference with Abdullah, the officials said.

Talk about burying the good stuff in a news article. But wait, there’s more fun stuff in the depths of Mike Allen’s article.

Also yesterday, the government’s chief classifier decided to open an investigation into the appropriateness of classifying the Army’s probe of prison abuses. J. William Leonard, director of the Information Security Oversight Office, agreed to a request in a letter from Steven Aftergood of the Federation of American Scientists.

In the letter, Aftergood cited the executive order on classification, No. 12958, as prohibiting the classification of documents solely to “conceal violations of law.” Government documents are supposed to be classified if revealing their contents would harm national security. Senior Pentagon officials have been unable to explain why the report, known as an Article 15-6, was classified. In response to a reporter’s question on May 4, Pace said, “I do not know specifically why it was labeled secret.”

At the same news conference, Rumsfeld also was at a loss to explain why the report would be considered secret. “You’d have to ask the classifier,” he said.

Just what is the Information Security Oversight Office? It is adminstratively part of the National Archives — you know the same archives Bush is trying to politicize — although it gets its marching orders (“receive our policy and program guidance”) from the National Security Council (NSC).

Hmm. That would be Condi Rice? Which gives rise to a really evil thought. Suppose the author of the report was the classifier. (Generally, if you have a security clearance and produce a document which relies on secret docs, you have an obligation to make sure the new document is properly classified.) That would be United States Army Major General Antonio M. Taguba, probably not the White House and the NSC’s favorite general this week. This wouldn’t be an attempt to get him in trouble? Nah. Surely if Eisenhower had someone to hold his underwear when he stepped into it,¹ then Major Generals have someone to do the job of classifying documents for them. Yes, stick with the simple explanation: Rats. Ship. Whole lotta water.

¹ “To leave his mind and his time free, he had others to do the most basic of human chores for him. He did not dress himself - John Moaney, his valet, put on his underwear, socks, shoes, pants, shirt, jacket and tie.” — Stephen E. Ambrose, Eisenhower, p. 299.

Abu Ghraib and the American Pshycho-Sexual Scandal Artery

Digby and Billmon are having a respectful and fascinating disagreement about how the Abu Ghraib scandal will play out. Will it expand to take in the other elements of what Sidney Blumenthal has dubbed the ‘New Gulag’? Will the American appetite for a scalp be satisified with Rumsfeld’s or will the scandal machine demand more? And are these the same or different questions?

First Blumenthal. Then Billmon. Then the sex.

Blumenthal writes (in the UK’s Guardian),

It stretches from prisons in Afghanistan to Iraq, from Guantánamo to secret CIA prisons around the world. There are perhaps 10,000 people being held in Iraq, 1,000 in Afghanistan and almost 700 in Guantánamo, but no one knows the exact numbers. The law as it applies to them is whatever the executive deems necessary. There has been nothing like this system since the fall of the Soviet Union. The US military embraced the Geneva conventions after the second world war, because applying them to prisoners of war protects American soldiers. But the Bush administration, in an internal fight, trumped its argument by designating those at Guantánamo “enemy combatants”. Rumsfeld extended this system - “a legal black hole”, according to Human Rights Watch - to Afghanistan and then Iraq, openly rejecting the conventions.

Private contractors, according to the Toguba report, gave orders to US soldiers to torture prisoners. Their presence in Iraq is a result of the Bush military strategy of invading with a relatively light force. The gap has been filled by private contractors, who are not subject to Iraqi law or the US military code of justice. Now, there are an estimated 20,000 of them on the ground in Iraq, a larger force than the British army.

It is not surprising that recent events in Iraq centre on these contractors: the four killed in Falluja, and Abu Ghraib’s interrogators. Under the Bush legal doctrine, we create a system beyond law to defend the rule of law against terrorism; we defend democracy by inhibiting democracy. Law is there to constrain “evildoers”. Who doubts our love of freedom?

To which Billmon of the Whiskey Bar adds,

It appears the Army was worried about the kinds of things the Army is usually worried about - loss of control, lack of discipline and a breakdown in the chain of command - and was willing to dig into the shitpile of interrogation abuses to find out just bad things had become. And it eventually put the investigation in the hands of someone (Taguba) who was willing to trace the problems back to the original decision to try to turn Abu Ghraib into a Gimo-style intelligence factory.

The higher ups, on the other hand, appear to have realized fairly quickly that exposing the abuses at Abu Ghraib would draw global attention to the entire system - Gitmo, the prisons in Afghanistan, their entire kinder, gentler gulag archipelago. So it looks like they adopted a strategy of letting the CID investigations run their secret course, while allowing Taguba’s report to sit on the bureaucratic shelf.

The photographic evidence, however, couldn’t be controlled — the gang should have seen that from the start — and somebody (Taguba?) became so angry about the way the report was being buried that they leaked it to Sy Hersh. The stonewall crumbled.

…

And so we come to the central question: Can the cover up artists keep the focus exclusively on Abu Ghraib? Ironically, the flood of S&M porn shots now making their way onto the market tend to reinforce the media’s fascination with the perverted antics at the prison, which ultimately works in favor of the coverup, if not Rumsfeld personally. The new gulag archipelago, like the old one, requires anonymity. Right now, the other islands in the chain still have it, and may get to keep it - unless, of course, there are some candid snapshots from Gitmo or Bagram or the CIA’s mysterious “ghost” prisons floating around in unauthorized hands.

Even if such photos were to come to light, I’m not sure the mainstream media, much less the American public, can absorb much more than they already have. It’s not easy to admit you live in a country that now owns and operates its own system of gulag camps - instead of contracting the entire job out to friendly despots, sight unseen, as in the good old days.

To which Digby says,

It’s funny he brings this up, because I was just thinking the exact opposite.

I think it is precisely the nature of the evidence that makes the media and the American public interested in the story. They are inured to charges of lies or corruption —- violence and prurience are what moves them. I concluded long ago that the only scandal that really interests the American public is a sex scandal.

It is the S&M image of this one that is moving it, the pictures, the graphic kinkiness of it. That’s what shocks and thrills the public, if only in a sickening, voyeuristic, train wreck sort of way.

This is a depressing if all-too-plausible account. I would like it to be wrong. It’s been a while since I did retail politics, all of it before the Clinton era which I suppose may have altered the fundamentals, but my impression of the average voter is pretty good.

The ones I met were decent folk, just busy with their lives. They tended to be proud of their country, and I don’t somehow think they will take this lying down. I think rather, that the most Republican of them will take it sitting down in the sense of this letter in today’s New York Times:

I was a Republican yesterday, I am a Republican today, and I will probably be a Republican tomorrow. I am not a Democrat because I still hold to the philosophy that the Democrats are the tax-and-spend party.

But I must say that in November, I will stay home. George W. Bush and his crew are pathetic and, worse, inept. How can it be that Defense Secretary Donald H. Rumsfeld was not briefed on Maj. Gen. Antonio M. Taguba’s Army report? Perhaps a little more gravitas from Mr. Rumsfeld would be in order.

Each new disclosure proves that the Iraq adventure is the biggest mistake since Vietnam. Will the United States ever learn?

Given the relatively polarized electorate and the fairly small number of undecided (who tend to go for challengers anyway if the economy is bad), this election was always going to be in large part about motivating the base. (Thus, the hype over gay marriage issue or today’s prime time, “Judeo-Christians”-only White House Prayer Day Show; these things excite the base.)

There are exactly two ways I can see that Bush can dig himself out of this one.

First, the October Surprise scenario. One need not even ascribe nefarious acts to the Bush team for this to happen: the anger generated by Abu Ghraib revalations, and the others still to come, only makes the chances of a fanatical terroristic sequel to 9/11 that much more likely.

Second, to ramp up the vitriol against Kerry. This has been the Bush family m.o. for a generation, and was the strategy for this election from the start. If thee was a bottom below which they woudn’t go, it just got lower.

And it’s only May.

Privately?

In my current addled state, I’m having a little trouble understanding headlines like Bush Privately Chides Rumsfeld. Erum. “Privately”? Like on the front page of every newspaper on earth? Yes, I understand it’s off-camera, but is that what “privately” means now?

Full Text of Abu Ghraib Report?

Does anyone know where the full text of the report by United States Army Major General Antonio M. Taguba about atrocities at Abu Ghraib prison can be found? The LA Times ran some excerpts (extensive, excessive, reg. req.) but surely the whole report ought to be online somewhere?

Update: Ok, that was quick: it’s here, on MSNBC of all places.

'So Much for the Feminization of the Military, eh?'

Kevin Drum’s guest writer today is Debra Dickerson a former military officer and currently a no-holds-barred writer. Strong stuff.

The New My Lai

I don’t know if the current uprising in Iraq is the new Tet, or even if Iraq is Vietnam or something worse, but I’m fairly sure that Abu Ghraib is the new My Lai (complete with Seymore Hersh exposé). It remains to be seen who gets cast as Lt. Calley, and whether history repeats itself as to the nature of the trial and the exoneration of the chain of command. It looks as if there’s at least a chance that one General, Janis Karpinski — just a reservist after all, and the only female commander in the Iraqi war zone — will get thrown to the wolves, although she’s fighting back and pointing the finger at the CIA, claiming that “the alleged torture involved detainees kept in a special interrogation unit that was off limits to most of the U.S. troops deployed there.”

As the Guardian notes, what happens in the UK will be especially interesting:

If true, the allegations could mean serious criminal consequences for Britain, which, unlike the United States, has signed up to the new International Criminal Court. It has the power to launch war crimes charges of its own against authorities including the commander-in-chief - the Prime Minister - if necessary.

This probably will be spun as evidence that those who objected to signing on to the International Criminal Court were right about the possible consequences. As one who was quite queasy about the ICC’s inroads on national sovereignty, and certainly never a proponent of it, I urge people thinking of making that argument to think carefully. Do you really want to argue that we should not sign on to the ICC because we might be called to account for what appear to be genuine war crimes? (The real fear was, among other things, spurious allegations.).

If anything, this seems to cut the other way. Could it be Abu Ghraib is an argument for the ICC? Only a thorough US investigation, including military, black ops, and civilians, and especially the relevant higher-ups in each group, will suffice to blunt that argument.

Where Do Fish Rot From?

S H * T

Fallujah--A Blunder; Prisoner Treatment--A Crime

Juan Cole has the essential website of the moment, especially a guest commentary Former CIA Saudi Arabia Station Chief Ray Close on ‘The Real Meaning of Fallujah’—defeat and likely disaster. Also a few choice words on the abuse of prisoners scandal.

Other commentary of note on the prisoner horror: Intel Dump :

So let’s be clear on what’s going on here. We go into Iraq to stop, among other things, human rights abuses that were being directed by the Hussein regime. Many of those abuses took place at Abu Ghraib prison, the same building at the center of this report. Iraqi guards regularly beat, humiliated, and tortured their detainees, and they reveled in their cruelty. Now, we have American soldiers doing many of the same things, allegedly at the direction of American intelligence officers who wanted these MPs to set the conditions for productive interrogation sessions. I can’t condemn this conduct enough, and yet, I feel that condemning this conduct isn’t enough. This is truly reprehensible stuff.

What’s worse is that other American soldiers may suffer for the brutal excesses of these MPs, interrogators, and OGA (“other government agency” = CIA) employees. Reciprocity is a very real thing where the laws of wars are concerned, and we should be very concerned about retaliation against any Americans captured by Iraqi insurgents in the future. Similarly, reprisals are very real problem in war; they’re often fueled by anger over mistreatment of one side’s own troops. When American troops learned of the German massacre at Malmedy during the Battle of the Bulge, historical accounts said they went on a killing spree — double-tapping every German in their sights, and giving no quarter even the Germans sought it. Other historical accounts reflect this trend. I think we can expect this news to reach every quarter of the Arab world, from the hideouts of the Iraqi insurgency to the Arab street. And when it does, I think we can expect it to fire up our adversaries in a huge way. This event will do significant, lasting damage to American credibility in the eyes of the Arab world. If a lot of Arabs were on the fence about American foreign policy, they won’t be after they see this report. (If you think for one minute I’m exaggerating, imagine the American response if we’d seen our POWs treated this way and had these pictures broadcast on Al-Jazeera.)

Intel Dump also notes the role that non-uniformed contractors play in this, and the need to clarify their legal duties and status.

Hullabaloo notes that Iraq POW operations will be taken over by the Guantanamo warden, which is not necessarily good news and he also notes the British angle to the prisoner mistreatment atrocity.

Then, in a class of its own, is Fafblog’s explanation of how you can tell none of it really happened.