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Brad DeLong Writes a Letter About a Suspected War Criminal on His Campus

My friend Brad DeLong has written a clever letter:

UNIVERSITY OF CALIFORNIA, BERKELEY

PROFESSOR J. BRADFORD DELONG
DEPARTMENT OF ECONOMICS, UNIVERSITY OF CALIFORNIA AT BERKELEY
BERKELEY, CALIFORNIA 94720-3880

RESEARCH ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH

EMAIL: delong@econ.berkeley.edu

TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the "Torture Memo" of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo--the matter that Boalt Hall Dean Chris Edley has named "The Torture Memo and Academic Freedom"—the role played by John Yoo in the Bush administration"s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo"s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo's "Torture Memo" and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo"s recently-released "Torture Memo," and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the "Torture Memo" I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

In Professor Kantorowicz's view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state--even if it is that the government of the United States should be overthrown by force and violence--and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, "while outside legal work isn't formally scholarship, it has its own ethical obligations." The absence of relevant Supreme Court precedent from the Torture Memo is a "failure to meet the standards of practice required by the legal profession [that] appears... close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct."

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the "deciders"--George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld--his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible "ticking bomb." Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework--and so cramdown the torture policy by issuing what was essentially a "get out of jail free" card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture--that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot--a true ticking bomb. But, William Blackstone proudly stated, this rack had always been "an engine of state, and not of law." Some inform me that John Yoo's role in making the strappado and the water torture--which Bush administration members of the twenty-first century speak of in euphemisms as "severe interrogation methods," just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace "the Duke of Exeter's daughter"--routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues--and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong
Professor of Economics

This is a smart letter. It may seem knavish to quibble, but I'm going to anyway.

First, a minor point: I personally don't believe that the standards of care or competence should be any different in a professional school than in the sciences or in economics. So I'm puzzled about the first point -- would we make such arguments about physicists or engineers who messed up calculations on the space shuttle? I'd make a similar argument about the second point: if Yoo was on leave when he did what he's accused of, tenure protects him from official repercussions at Berkeley, even if it was supremely shoddy work (which it was: see Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo) and Were the Torture Memos Just Normal Lawyering?).

The key point for me is the third one. I believe the case against Berkeley's retention of Yoo is actually stronger than the "third consideration" above suggests. The worst case is not that Yoo went along with a policy already made, but rather that he was a necessary and willing participant in the commission of war crimes.

I repeat: the case against Yoo isn't about some article he published, or some view he took on some issue, or that he gave an abstract opinion in government. It's a claim that he materially participated in a war crime. Not some misdemeanor or felony. A war crime.

Under international law, any act that materially contributes to the perpetration of a war crime can make the actor an accomplice if the act is performed with the requisite intent.75 Yoo and Bybee may not have intended for acts of torture and cruel, inhuman, or degrading treatment to take place, but they were at minimum reckless as to the commission of such acts.76 Yoo and Bybee's recklessness in this regard appears to meet the intent requirement for aiding and abetting war crimes under international law.77 As the International Criminal Tribunal for Yugoslavia ("ICTY") expressed in Prosecutor v. Kvocka,78 "[t] he aider and abettor must. . . at least have accepted that such a commission of a crime would be a possible and foreseeable consequence of his conduct.... [I]t is not necessary that the aider or abettor know the precise crime that was intended or which was actually committed.

-- Milan Markovic, Georgetown Journal of Legal Ethics (2007), Can Lawyers Be War Criminals?

If Yoo's actions met this standard then he's a war criminal. And if he's ever adjudged a war criminal by a competent tribunal, I presume most sensible people would agree that he has no business being a professor of anything.

But at present Yoo is only an alleged war criminal (even though the evidence seems substantial), and that makes a big difference. What Berkeley's rules allow them to do about an alleged war criminal in their midst -- and what process and proof they should require in the absence of a finding of war crimes by a competent tribunal -- are not easy questions. Tenure is important; it shouldn't be removed for anything but the extreme case. I agree with the near-absolutists who say that it shouldn't be revoked even for advocating vile ideas, although I think the actual commission of a war crime -- even one committed by issuing a legal opinion while in government rather then wielding the electrodes or dunking the victim -- is different from simple advocacy of torture or worse.

In the ordinary course, if there were any grounds to expect that a competent prosecutor or tribunal would at some reasonably proximate time become seized of this issue and make a reasoned judgment, I'd be inclined to say it is acceptable for Berkeley let it go until then. (That seems to be what Christopher Edley, Jr. both says Berkeley's rules require and what he personally advocates.) But for obvious political reasons I suspect that there is little realistic chance of a serious investigation in the USA as to whether war crimes were committed by the Bush administration, and if so who is responsible. That's a pity, but it seems the most likely state of affairs, and one has to reason and plan based on what seems likely. Prosecutions abroad are less unlikely, but if the alleged perpetrators don't travel to the jurisdictions most likely to act, that too will not come to pass. One certainly cannot reasonably rely on them.

What, then, is a great University like Berkeley to do if it comes to fear it may be harboring a war criminal in its midst? It cannot rely on external forces to solve the problem for it. Mob rule -- firing someone because people are baying for their job -- is not the answer, although collective shunning might be a good first move. Universities are not well set up to adjudicate a dispute as to whether a professor committed a war crime. Yet the difficulty of the task (and, one hopes, the rarity of the need to face it) is not in my opinion an excuse for doing nothing. This appears to be a minority view: for what seems to be the majority view see Leiter, or the various posts at Balkanization -- although most proponents of the "drop it now" view don't address what I see to be the key issue: the ground for discharging Yoo, if there is one, is the all-too-plausible allegation that he took part in a war crime. Not just advocated one from the ivory tower, but committed or aided and abetted the commission of actions prohibited by our law, by jus cogens, and by any standard of decency. The countervailing problem is that this claim is extremely difficult to adjudicate in a University setting, and his tenure demands no less than some initial test for substantial cause, followed by a full and fair proceeding. That is asking a lot of a University, which after all is in the education business, not the war crimes adjudication business.

Brad's letter is smart because it asks the University to frame the problem and examine how it might be solved. Perhaps that will be a first step to a resolution. Perhaps Berkeley's rules do not create an avenue for one.

Perhaps we will learn something.

Torture Nation ("Is The US Now A Non-Geneva State?")

Andrew Sullivan, Is The US Now A Non-Geneva State?:

The manner in which free societies lose their moral compass is always incremental. Step by step by step, certain core values are whittled away. There is rarely a moment at which a government stands up, and asks its people if they wish to abandon such “quaint” notions as the Geneva Conventions, the rule of law, humane interrogation or habeas corpus. These things are abandoned incrementally or secretly, slice by slice, euphemism by euphemism, the chronology always clearer in retrospect than at the time. And each incremental step is always portrayed as a small but essential temporary sacrifice for the sake of security in a time of great and imminent peril.

And so defenders of torture have long argued that is is essential to make torture legal - but only in the ticking time bomb scenario. And yet, such a scenario has not yet happened and the United States has still indisputably abused and dehumanized thousands of prisoners in its custody, “disappeared” and tortured hundreds, and seen more than a dozen die in “interrogation”. We now know, moreover, the following undisputed facts: the president of the United States and his closest advisers devised, orchestrated and monitored interrogation methods banned by the Geneva Conventions at Guantanamo Bay and subsequently in every theater of combat; these techniques were used not only in the extra-legal no-man’s land of Guantanamo Bay but also at the prison at Abu Ghraib where photographic evidence of many of the actual techniques explicitly authorized by the president - stress positions, hoods, mock-executions, etc. - was incontrovertible. We now know that those techniques that the president expressed “shock” at were already explicitly authorized for use by other agents by him long before Abu Ghraib was exposed.

Read the rest. It’s good.

The Groupthink of Evil

Recently I’ve avoided writing anything serious about torture — or the ongoing revelations about the Administration’s vivisection of the Constitution — because it is just overwhelmingly depressing and I can’t find the right words to express how awful it is.

And because Congress remains basically supine. Which is also depressing.

And because the press is still treating most of these scandals as one-day stories on page 23. Which is also depressing.

But even in this fog of despond, I have to draw your attention to Marty Lederman’s excessively fine post today, “The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction”.

A Student Demonstrates How to Deal With John Ashcroft

Daily Kos: John Ashcroft Yelled at Me Tonight. No Joke. (UPDATED W/PHOTOS)

I think it’s a shame that any college group would choose to invite a person who appears to be a war criminal to speak — although I think one should also note that Ashcroft’s personal participation in what appear to be war crimes may not have been as clear at the time this invitation was issued — but I think that this Knox College student demonstrates what part of the response should be.

And, of course, the really incredible thing is that even with the latest revelations, from what we know, Ashcroft was not the worst of the lot.

What He Said (War Crimes Trials Dept.)

There’s A War Crimes Tribunal in Your Future.

I’ve been saying this for a long time, and think it is as true, or more true, than ever. The critical issue, though, is not so much the presence of absence of immunity for various actors so much as a national unwillingness to bring the guilty to justice. Only when a nation will not police its own does the international community have a right (and duty) to step in.

PS. Read the article by Philippe Sands, The Green Light, that Balkin links to.

Isn't It Time to Stop (Torture Dept.)

The Washington Monthly has a special issue NO MORE: No Torture. No Exceptions..

In most issues of the Washington Monthly, we favor articles that we hope will launch a debate. In this issue we seek to end one. The unifying message of the articles that follow is, simply, Stop. In the wake of September 11, the United States became a nation that practiced torture. Astonishingly—despite the repudiation of torture by experts and the revelations of Guantanamo and Abu Ghraib—we remain one. As we go to press, President George W. Bush stands poised to veto a measure that would end all use of torture by the United States. His move, we suspect, will provoke only limited outcry. What once was shocking is now ordinary.

On paper, the list of practices declared legal by the Department of Justice for use on detainees in Guantanamo Bay and other locations has a somewhat bloodless quality—sleep deprivation, stress positions, forced standing, sensory deprivation, nudity, extremes of heat or cold. But such bland terms mask great suffering. Sleep deprivation eventually leads to hallucinations and psychosis. (Menachem Begin, former prime minister of Israel, experienced sleep deprivation at the hands of the KGB and would later assert that “anyone who has experienced this desire [to sleep] knows that not even hunger and thirst are comparable with it.”) Stress positions entail ordeals such as being shackled by the wrists, suspended from the ceiling, with arms spread out and feet barely touching the ground. Forced standing, a technique often used in North Korean prisons, involves remaining erect and completely still, producing an excruciating combination of physical and psychological pain, as ankles swell, blisters erupt on the skin, and, in time, kidneys break down. Sensory deprivation—being deprived of sight, sound, and touch—can produce psychotic symptoms in as little as twenty-four hours. The agony of severe and prolonged exposure to temperature extremes and the humiliation of forced nudity speak for themselves.

Then there is waterboarding, a form of mock execution by drowning, a technique that has been used in so-called “black sites.” In addition to the physical pain and terror it induces, long-term psychological effects also haunt patients—panic attacks, depression, and symptoms of post-traumatic-stress disorder. It has long been prosecuted as a crime of war. In our view, it still should be.

Ideally, the election in November would put an end to this debate, but we fear it won’t. John McCain, who for so long was one of the leading Republican opponents of the White House’s policy on torture, voted in February against making the CIA subject to the ban on “enhanced interrogation.” As for Hillary Clinton and Barack Obama, while both have come out strongly against torture, they seldom discuss the subject on the campaign trail. We fear that even a Democratic president might, under pressure from elements of the national security bureaucracy, carve out loopholes, possibly in secret, condoning some forms of torture.

Over the past decade, voters have had many legitimate worries: stagnant wages, corruption in Washington, terrorism, and a botched war in Iraq. But we believe that when Americans look back years from now, what will shame us most is that our country abandoned a bedrock principle of civilized nations: that torture is without exception wrong.

It is in the hopes of keeping the attention of the public, and that of our elected officials, on this subject that the writers of this collection of essays have put pen to paper. They include a former president, the speaker of the House, two former White House chiefs of staff, current and former senators, generals, admirals, intelligence officials, interrogators, and religious leaders. Some are Republicans, others are Democrats, and still others are neither. What they all agree on, however, is this: It was a profound moral and strategic mistake for the United States to abandon long-standing policies of humane treatment of enemy captives. We should return to the rule of law and cease all forms of torture, with no exceptions for any agency. And we should expect our presidential nominees to commit to this idea. —The Editors

There are articles by the following luminaries:

• Bob Barr
• Rand Beers
• Peter Bergen
• Jimmy Carter
• Steve Cheney
• Amy Chua
• Richard Cizik
• Wesley K. Clark
• Jack Cloonan
• Chris Dodd
• Kenneth M. Duberstein & Richard Armitage
• Eric Fair
• Carl Ford
• Lee F. Gunn
• Chuck Hagel
• Lee H. Hamilton & Thomas H. Kean
• Gary Hart
• John Hutson
• Claudia Kennedy
• John Kerry
• Harold Hongju Koh
• Carl Levin
• Richard Lugar
• Leon E. Panetta
• Nancy Pelosi
• William J. Perry
• Paul R. Pillar
• Tim Roemer
• John Shattuck
• Anne-Marie Slaughter
• Theodore C. Sorensen
• William H. Taft IV
• Thomas G. Wenski
• Lawrence B. Wilkerson
• Steve Xenakis

They Have No Shame

Bush Announces Veto of Waterboarding Ban

McCain Votes Against Banning Waterboarding

Maverick Fails The Test: McCain Votes Against Waterboarding Ban.

He was against torture before he voted for it.

Timeline of CIA Torture Tape Destruction

This looks to be a careful and thorough effort: Complete 911 Timeline: Destruction of CIA Interrogation Tapes.

The site is slow — maybe a lot of demand?

Worse Than Kafka

Seen on a mailing list:

The irony of all this is overwhelming: CIA gets investigated for destroying tapes of torturing people, not for torturing people.

'What is Wrong with These People?'

The Carpetbagger Report summarizes The right’s deranged support for waterboarding.

Each of the following was said recently by a different GOP office-holder, leader, or pundit,

• “There are different ways of doing it. It’s like swimming, freestyle, backstroke.”
• “One man’s torture is another man’s CIA-sponsored swim lesson.”
• opposition to waterboarding is “part of the Democrat blame America first” agenda and goes “right along with their desire to close Guantánamo, where the terrorists are gaining weight on American menus that include honey-glazed chicken and rice pilaf.”
• Waterboarding is something of which every American should be proud.

As Steve Benen correctly asks, What is wrong with these people?.

It's Starting to Hit the Fan

Like a dam weakening, the little trickle of news about misdeeds at Guantanamo and in CIA torture labs is becoming a bigger trickle.

• ABC News, CIA Spy Calls Waterboarding Necessary But Torture (but see Kevin Drum)
• AWOL Military Justice: Morris D. Davis explains why he resigned as Chief Prosecutor at Guantanamo. (It’s because they put a torture advocate above him in the chain of command). And although Congress would like him to testify, the Pentagon has refused to let him. (Will Congress use the power of the purse to force testimony? Unlikely)
• Marty Lederman explains why Congress’s intelligence oversight desperately needs an overhaul
• Independent Online Edition, CIA photos ‘show UK Guantanamo detainee was tortured’

Can we hope for a flood of revelations now?

Bonus: Emily Bazelon and Dahlia Lithwick, If the CIA hadn’t destroyed those tapes, what would be different?

Senators and Representatives Could Have Spoken Out On Waterboarding: the Constitution Protects Their Right to Speak Out Without Fear of Legal Consequences

A number of the best internet commentators are discussing today’s news that a few of the leading Congressional Democrats may have been – probably were – briefed about the administration’s plans to torture (waterboard, and maybe more) suspected terrorists being held in secret CIA facilities abroad. There’s confusion about the facts, with few of the people allegedly briefed confirming the story. Notably, however, it appears that of those briefed, only Rep. Jane Harman objected. (Note that we’re still at an early spin stage here — more facts about who said what to whom are likely to come out.)

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to “jeopardize their careers and risk jail” as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).

Article I, section 6 of the Constitution reads as follows,

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(emphasis added)

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.

I’m not saying this would be easy or politically painless. The political risks are obvious – and recall the Congress was being briefed not all that long after 9/11. But even without the national security angle or the political frenzy angle, there were also counterveilling issues of fundamental personal ethics As Rep. Harman noted,

“When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.”

Serious people take oaths like this seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to “preserve and defend the Constitution of the United States.” To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory, including not only the Speech and Debate clause, but also the Incompatibility Clause (which forbids members of congress from serving in the executive branch; a converse conclusion is that this clause forbids the executive branch from turning members of Congress into subordinates).

Although apparently too easily forgotten, the Speech and Debate Clause is, as Justice Harlan said in United States v. Johnson, 383 U.S. 169, 178 (1966),

the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.

The Supreme Court has limited the reach of the Speech and Debate Clause in some relevant respects. In Doe v. McMillan, 412 U.S. 306 (1973), the Court distinguished statements on the floor (or in committee) – which are and remain completely privileged – and their republication elsewhere. In that case a committee print of one of its reports, issued in a routine manner by the Public Printer, contained allegedly defamatory statements about private citizens. They sued for an injunction to prevent further publication, dissemination, and distribution of the report until the objectionable material was deleted, and sought damages. The Court held that the Members of Congress and their staffs could not be sued due to the Speech and Debate Clause, since their actions had all been part of the ordinary legislative process. But the Court also held the Superintendent of Documents and the Public Printer could be sued because they had no broader immunity than Members of Congress would have and their actions in publically disseminating the report outside Congress were not legislative acts, unlike voting, speaking on the floor or in committee, which are protected.

More troubling for third parties, however, is Gravel v. United States, 408 U.S. 606 (1972). Senator Gravel read key parts of the Pentagon Papers at a committee hearing, and then placed the full text of the 47 volumes of it into the public record. That act, the Supreme Court held, was privileged, an argument it called “incontrovertible.” But the Court refused to assume that once the material was in the public record it automatically followed that arrangements to republish them were inevitably legal, nor did at accept that Senator Gravel’s attempts to find a publisher (or his aide’s, which they took to be the same thing for these purposes), fell under the Speech and Debate Clause.

Combine this holding with the administration’s more recent and aggressive re-interpretations of the Espionage Act, which seek to extend it to reach the conduct of parties not holding clearances who share information that they acquire from someone who has one, and you begin to wonder whether newspapers that republished the floor speech might not face some legal attacks from the Justice Department. Although I personally think that the First Amendment must protect a newspaper that republishes a member of Congress’s statements on the floor, it is clear that the current administration has taken positions that would allow it to argue the contrary; more to the point, although I think the newspapers would win such a case, even the main Pentagon Papers case, much less the Gravel case noted above, don’t conclusively foreclose the government from arguing the contrary.

The question of security clearances is the murkiest part of the story. The Bush administration has consistently taken the extreme position that it never has any legal duty to tell Congress anything. It claims the power to ignore subpoenas. It says that the President is the only judge of what he has to do, and any attempt to compel him is unconstitutional. As early as 2001 the administration unilaterally revoked the security clearances of 91 Senators, arguing as GW Bush put it “it’s not in the nation’s interest” that they have access to information they could leak.

I believe that Congress could Constitutionally legislate to preserve the security clearances of members who disclose classified information on the floor. As far as I know (please correct me if I’m wrong), Congress has never passed such a rule, and in its absence, I think it is within the power of the executive to choose to deny clearances to whistle blowing members of Congress. That is a forward-looking loss of privilege rather than a legal disability of the sort that the Speech and Debate Clause protects against. But legally, that’s it. A member of Congress who learned of torture plans and chose to tell the nation about them would face no other legitimate legal risk; (there was, with the Gonzales gang, the not inconsiderable possibility of an improper prosecution, but many of the key events here were when Ashcroft was Attorney General) .

It would have taken great courage, and carried political risk, but our Constitution does provide a channel by which members of Congress can stand up and call the executive to account on its plans to torture someone in a secret CIA prison. At the end of the day it was that courage, not the legal avenue to expose wrongdoing, which was in too short supply in Congress.

(I’ve written the above in something of a hurry and think of it as a very preliminary attempt to explain the role of the Speech and Debate clause. I welcome correction and amplification from those who may know more than I; I would be particularly grateful for any insights regarding the granting and withholding of security clearances for members of Congress, a subject I am sure I have much to learn about.)

Kevin Drum on 'What the Tapes Would Have Shown'

Kevin Drum:

So here’s what the tapes would have shown: not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical “confessions” under duress. This was all prompted by the president of the United States, implemented by the director of the CIA, and the end result was thousands of wasted man hours by intelligence and and law enforcement personnel.

Nice trifecta there. And just think: there’s an entire political party in this country that still thinks this is OK.

CIA Torture Tape Destruction: the Search for a Scapegoat

Scott Horton, The Scapgoat at Harpers, spotted via Jim Henley, Maxwell Smart Acted Alone!. Lots and lots of good stuff — here’s only a taste:

When the Bush Administration trots out arguments and finds that even Michelle Malkin (“it is bad) and Ed Morrissey (“frankly, the timing stinks”) have trouble swallowing them, it’s in serious trouble. And that was the case here. The claims that the policy was adopted for legitimate reasons didn’t pass a smell test; even “the base” wasn’t buying them.

All of which meant: time for a new strategy. So what works better that a good scapegoating?

But is the scapegoating strategy even marginally plausible? No, it isn’t. First, we have the opening volley—everything was disclosed and approved in advance. Even the oversight committees were briefed on this. Everything was kosher. So know we’re being told that they briefed Rockefeller and Harman, but not President Bush. Does anybody believe that for even a second? No, it’s not plausible. And all this relates to an issue that has involved the White House like no other issue since the Bush Administration began. The highly coercive interrogation program—the “Program”—was Dick Cheney’s baby. He lobbied the CIA to adopt it and turned to extraordinary measures to overcome their initial reluctance. (This is how we got the torture memoranda at Justice, after all). And let’s keep in mind that this is a White House in love with secrecy and the destruction of internal documents which might prove compromising. (Think: Dick Cheney and his visitors’ logs; think: Karl Rove’s missing emails, now put at 10,000,000 and counting).

And the very correct ending:

The CIA tape destruction presents another test for the Rule of Law in America. It’s a test for Congressional oversight, and it’s a test for the Department of Justice. Michael Mukasey will have to decide whether he considers himself to be the nation’s principal law enforcement officer, or a loyal retainer of George W. Bush. He’s only a few days on the job and the path has clearly divided.

What is the CIA Hiding?

The most likely and simplest explanation for why the CIA destroyed the tapes of its torture sessions with Abu Zubaydah and Abd al-Rahim al-Nashiri — even in the face of strong reasons not to — is that the tapes showed evidence of serious crimes. If you were a CIA person caught literally red-handed, would you rather be at risk of obstruction of justice charges, or of charges of torture, war crimes, or attempted murder or who knows what. That simple decision tree leads straight to burning the evidence.

But in the name of baseless speculation, I offer you the following more baroque hypothesis. The not infallible David Johnston tells us that,

… in April or May of 2002, officials briefed on the classified details of the case said, C.I.A. officials expressed dissatisfaction with the pace of the interviews and concluded that Mr. Zubaydah was revealing only a little of what he knew. C.I.A. interrogators, led by an outside consultant, ratcheted up the use of aggressive techniques.

Outside consultant? Where does the CIA go to get expert help torturing people? I doubt somehow that they went to Haliburton or even to Blackwater USA. They may have had an aging contra or El Salvadorian death squaddist on the payroll, but the real up-to-date expertise is probably in the Middle East.

So maybe part of what the CIA was hiding was that they got a Syrian, or a Saudi, or even an Israeli, to help them?

It's the Cover-Up That Gets You

C.I.A. Destroyed Tapes of Interrogations:

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said….

The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners.

C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case.

Update: Read this: Firedoglake, Absence of Torture Tape Librarian a Feature, Not a Bug

France Says Immunity is Forever

Contradicting a series of international law decisions by multiple national and international tribunals, and citing a missive from the French Foreign Ministry, a French court has ruled that ministerial immunity against torture charges persists past the minister’s retirement.

Based on this dramatically deviant assertion by the French Foreign Ministry, the French court of first instance dismissed the torture charges filed against Donald Rumsfeld in France.

Details on what happened and how it deviates from international law as it is commonly understood at the Center for Constitutional Rights, France in Violation of Law Grants Donald Rumsfeld Immunity, Dismisses Torture Complaint.

Is this (pro-US) French President Nicolas Sarkozy’s doing? It certainly seems an odd decision for Bernard Kouchner, the former socialist and co-founder of Doctors Without Borders (Médecins Sans Frontières) turned Foreign Minister.

It also seems like the sort of decision a decent court system would overturn on appeal.

DOJ as Augean Stables

American Civil Liberties Union : ACLU Learns of Third Secret Torture Memo by Gonzales Justice Department

Legal papers filed in federal court Monday in a lawsuit brought by the American Civil Liberties Union and other organizations disclose that the Office of Legal Counsel (OLC) for the Department of Justice issued three secret memos in May 2005 relating to the interrogation of detainees in CIA custody. Until now, the existence of only two of those memos had been reported and it was not known precisely when the memos had been written. The memos are believed to have authorized the CIA to use extremely harsh interrogation methods including waterboarding.

No light at the end of the tunnel.

Military Contractor to Face the Jury in Torture Claim

From the e-mail inbox:

November 6, 2007, New York, NY - In a key victory in the war against torture, today a federal court ruled that the lawsuit against a private military contractor in Iraq should be heard by a jury of Americans. The action was filed in 2004 against CACI and Titan, both of which were named in the military investigation of the Abu Ghraib scandal. The Center for Constitutional rights, Burke O’Neil LLC, and Akeel Valentine, PLC brought the suit as a class action on behalf of the hundreds of Iraqi torture victims. The same firms filed an action on October 11 against Blackwater USA for the killing of innocent bystanders at Noori Square in September.

The court today ruled that the case could go forward against CACI, whose employees worked as interrogators in the prison. The court found that that there was a dual chain of command where corporate employees were obliged to report abuse up the chain of command at CACI. The court dismissed the claims against Titan, whose employees worked as translators, reasoning that the military exercised exclusive control over the translators.

Susan L. Burke, of Burke O’Neil LLC, stated, “We are delighted that a jury of Americans will soon be deciding whether an American corporation is free to torture prisoners.”

Michael Ratner, President of the Center for Constitutional Rights, stated, “This will send a message to all contractors that they cannot act with impunity outside the law and begins to answer the question of how CACI will be held accountable for the atrocities at Abu Ghraib.”

Shereef Akeel of Akeel & Valentine, PLC said, “This is a real victory for the men we represent. Now they have the chance to seek justice before the American people.”

The denial of summary judgment in the case means there will be a jury trial of a private military contractor for torture. A status conference is scheduled for December 6, and a trial date will be set then. Attorneys for plaintiffs are asking for it to be held as promptly as possible.

US Government Contintues to Fail the Waterboarding Test

State Department lawyer John Bellinger, heretofore not known as an Addington-rabid member of the State Department (he was cut out of the key torture debates), refuses to say that the US would always condemn a foreign power that waterboarded a US citizen. Apparently whatever vague desire our government may have in protecting us against foreign torturers must give way to our government’s desire to do some torturing.

Meanwhile, three-star Army General Russel Honore responds to questions about waterboarding by saying that “we’ve got an obligation to do what the hell we’ve got to do to make sure we get the mission done.”

Yup, now that we got past that little AG confirmation thing, they’re all for it.

What’s next, retroactive immunity bills?

No Surprises Here

Well, this is no surprise: Specter to vote for Mukasey as US attorney general. There were two ways this could play out: Specter would be a key vote and cave to White House pressure, or — what actually happened — the Democrats would cave and Specter would take the expedient route.

I suppose the only tiny silver lining in this whole sordid mess is that the GOP is so much in the tank for torture, that they haven’t figured out that they are missing an opportunity: now that the Democratic party is so compromised on the torture question, it’s actually open to Republicans to reformulate themselves as the anti-torture party. McCain could do it. Huckabee could do it. Even Romney could probably pull it off. (Rudy might find it tough.)

CIA Admits Waterboarding

CIA Admits Waterboarding. Their defense? They “only” did it to three people.

Meanwhile, we learn from ABC News that Gonzales forced out a top aide who, having undergone waterboarding to see what it was like, decided it was indeed torture and should be banned.

Schumer and Feinstein Sell Out Legislative Prerogatives and Surrender in the Fight Against Torture

Senators Schumer and Feinstein have demonstrated that they have no regard for democratic principles — and none for Democratic principles either — by announcing that they plan to vote for AG nominee Mukasey. Not the first betrayal from Feinstein, but a new low for Schumer.

• The Enablers Of Evil
• The Royals Love a Good Torture
• Schumer and Feinstein Say Yes To Waterboarding
• Schumer, Feinstein to Support Mukasey: David Addington Smiles (The Washington Note has it right here: “Why did Dems take control of the Senate anyway?”)
• The unique weirdness of the AG nomination
• Breaking: Feinstein & Schumer Cave - Will Vote For Mukasey For AG

Term limits are looking better every day.

Mukasey Waterboarding Reax

I don’t need concrete facts to know whether beheading prisoners is legal. And Mr. Mukasey only needs non-hypotheticals to know if waterboarding is illegal if there exists some set of facts in which he imagines that it might be acceptable for the United States government to waterboard a prisoner.

• Mukasey Still Does Not Know If Waterboarding Is Torture
• No on Mukasey
• Mukasey plays dumb
• The Pit and the Pendulum and Bush’s Nominee
• Mukasey Unsure About Legality of Waterboarding
• Showing Mukasey and You What Waterboarding Is

And the winner for dullest, most-in-the-tank headline….The Washington Post: Attorney General Nominee Sends Letter to Dems.

Update: Honorable mention to the New York Times which, having started with this headline: Mukasey Unsure About Legality of Waterboarding, somehow changed it to Mukasey Says Harsh Interrogation ‘Repugnant’.

Mukasey

Attorney general nominee Michael B. Mukasey today wrote a second, and much less artful, letter to the Senate Judiciary committee in response to its question about whether waterboarding is a permissible interrogation technique.

The man not only failed to answer the question, he wasn’t able to bring himself to say the W-word: “waterboarding”.[*]

Here’s the bottom line: “certain coercive interrogation techniques” may or may not be legal, but our poor ethically challenged AG-to-be can’t say for sure in the context of a hypothetical question. Only a specific case would allow a judgment. And just because Mukasey finds them repugnant isn’t enough to say these “coercive interrogation techniques” are illegal.

Part of the subtext is that were the Justice Dept to actually decide that waterboarding were illegal it would have to decide whether to prosecute the waterboarders on the federal payroll (especially at the CIA). And it doesn’t want to do that, especially since this administration told them to go ahead. Indeed the people — Gonzales? Rumsfeld? Cheney? — who gave the orders might be the ones who become possible targets for prosecutors.

But ultimately, it’s a basic decency issue. It may be that publicly admitting to basic decency is a disqualifying action for law enforcement officials in this administration, but if so, then the Senate shouldn’t confirm anyone to the job. A vote for someone who will not disclaim waterboarding under any circumstances is a vote for someone who isn’t fit to hold office under the Constitution of the United States.

In a positive development, Senator Clinton announced that she’ll vote against Mukasey. However, none of the candidates have yet said they’ll filibuster Mukasey’s nomination.

Sadly, the candidates remain trapped in reactive politics. As far as I know, not one of the major candidates — not even Sen. Dodd — have ever touched the much more important issue of whether, if elected, they would prosecute any people in the current administration who are found to have ordered torture and who are found to have carried it out.

---

[*] Update: in fairness, I should note that Mukasey did bring himself to say the W-word in the context of the uncontroversial assertion that the military can’t waterboard. What this artful distraction elides, however, is that the issue is what the CIA and other civilian agencies are allowed to do. (Note that the FBI, to its credit, seems to have not only stayed away from the darkest parts of the dark side, but even objected to them.)

Torture Charges Filed Against Rumsfeld in France

I would have thought he'd know better than to travel to Europe, where they still have some standards: Donald Rumsfeld Charged With Torture During Trip To France

October 26, 2007, Paris, France - Today, the International Federation for Human Rights (FIDH) along with the Center for Constitutional Rights (CCR), the European Center for Constitutional and Human Rights (ECCHR), and the French League for Human Rights filed a complaint with the Paris Prosecutor before the "Court of First Instance" (Tribunal de Grande Instance) charging former Secretary of Defense Donald Rumsfeld with ordering and authorizing torture. Rumsfeld was in Paris for a talk sponsored by Foreign Policy magazine, and left through a door connecting to the U.S. embassy to avoid journalists and human rights attorneys outside.

"The filing of this French case against Rumsfeld demonstrates that we will not rest until those U.S. officials involved in the torture program are brought to justice. Rumsfeld must understand that he has no place to hide. A torturer is an enemy of all humankind," said CCR President Michael Ratner.

France is under the obligation to investigate and prosecute Rumsfeld's accountability for crimes of torture in Guantanamo and Iraq. France has no choice but to open an investigation if an alleged torturer is on its territory. I hope that the fight against impunity will not be sacrificed in the name of politics. We call on France to refuse to be a safe haven for criminals." said FIDH President Souhayr Belhassen.

We want to combat impunity and therefore demand a judicial investigation and a criminal prosecution wherever there is jurisdiction over the torture incidents," said ECCHR General Secretary Wolfgang Kaleck.

The criminal complaint states that because of the failure of authorities in the United States and Iraq to launch any independent investigation into the responsibility of Rumsfeld and other high-level U.S. officials for torture despite a documented paper trail and government memos implicating them in direct as well as command responsibility for torture -- and because the U.S. has refused to join the International Criminal Court -- it is the legal obligation of states such as France to take up the case.

In this case, charges are brought under the 1984 Convention against Torture, ratified by both the United States and France, which has been used in France in previous torture cases.

French courts therefore have an obligation under the Convention against Torture to prosecute individuals responsible for acts of torture if they are present on French territory. This will be the only case filed while he is in the country, which makes the obligations to investigate and prosecute under international law extremely strong.

Rumsfeld's presence on French territory gives French courts jurisdiction to prosecute him for having ordered and authorized torture and cruel, inhuman and degrading treatment of detainees in Guantanamo, Abu Ghraib and elsewhere.

In addition, having resigned from his position of U.S. Secretary of Defense a year ago, Rumsfeld can no longer try to claim immunity as a head of state or government official. Nor can he claim immunity as former state official, as international law does not recognize such immunity in the case of international crimes including the crime of torture.

Former U.S. Army Brigadier General Janis Karpinski, former commander of Abu Ghraib and other U.S.-run prisons in Iraq, submitted written testimony to the Paris Prosecutor for the plaintiffs' case on Rumsfeld’s responsibility for the abuse of detainees.

This is the fifth time Rumsfeld has been charged with direct involvement in torture stemming from his role in the Bush administration’s program of torture post-9/11.

Two previous criminal complaints were filed in Germany under its universal jurisdiction statute, which allows Germany to prosecute serious international crimes regardless of where they occurred or the nationality of the perpetrators or victims. One case was filed in fall 2004 by CCR, FIDH, and Berlin attorney Wolfgang Kaleck; that case was dismissed in February 2005 in response to official pressure from the U.S., in particular from the Pentagon.

The second case was filed in fall 2006 by the same groups as well as dozens of national and international human rights groups, Nobel Peace Prize winners and the United Nations former Special Rapporteur on Torture. The 2006 complaint was presented on behalf of 12 Iraqi citizens who had been held and abused in Abu Ghraib prison in Iraq and one Saudi citizen still held at Guantánamo. This case was dismissed in April 2007, and an appeal will be filed against this decision next week.

Two other cases were filed against Rumsfeld in Argentina in 2005 and in Sweden in 2007.

Full text of complaint (.pdf, in French).

Debasement of Discourse

Must not let this go without notice.

Via Crooks and Liars, Peronist Rudy Giuliani exposes his moral relativism about torture: it’s ok when we do it.

At a town-hall meeting in Iowa last night, Rudy Giuliani did his best impression of a crazy person.

After noting that Giuliani ally Michael Mukasey, the Attorney General nominee, “fudged” his answer on waterboarding, a local woman asked if a presudebt can order waterboarding, even though it’s torture.

Mr. Giuliani responded: “Okay. First of all, I don’t believe the attorney general designate in any way was unclear on torture. I think Democrats said that; I don’t think he was.”

Ms. Gustitus said: “He said he didn’t know if waterboarding is torture.”

Mr. Giuliani said: “Well, I’m not sure it is either. I’m not sure it is either. It depends on how it’s done. It depends on the circumstances. It depends on who does it.

I don’t know if he’s crazy, but he’s certainly dangerous: Rudy ♥ Torture.

Previous related post: Giuliani’s irrational hatred of ferrets.

The Senate Flirts With Irrelevance (or Worse)

Since they are aggressively not talking about the war, the two most important domestic policy issues before Congress at present are the FISA re-authorization and the nomination of Michael B. Mukasey, a man who is an intelligent prevaricator about torture and a straight-forward authoritarian about Presidential power to be our next Attorney General.

The Senate’s capitulation on FISA includes retrospective amnesty, without even a need for truth and reconciliation, for all the telecom companies that violated the law, knowingly, and allowed illegal eavesdropping of telecoms traffic just because someone in government asked them to do so. There is now some evidence, arising from the Nacchio fraud trial, that the illegal spying program started well before 9/11 — the smoking gun that this amnesty plan may be designed to hide.

The whole idea of these companies going along with oral requests that they had to know were illegal is positively Soviet. So too are the all-too-credible allegations that when Qwest failed to play ball with these illegal requests, it got punished by being denied government contract work for which it was best qualified.

That the Senate would agree to an amnesty with no disclosure in these conditions is one of the best arguments for term limits that I have ever heard.

Senator Chris Dodd, emerging as the conscience of the Presidential field, has placed a hold on the FISA bill. I hope his colleagues are grateful to him for saving them from their own folly.

Even so, no hold seems likely for the Mukasey nomination, further cementing the irrelevance of the Senate and its quiet complicity in torture and other outrages. Yes, there’s a tradition of allowing most nominees to go through, but torture ought to be exceptional. And if that won’t do it, why on earth is the Senate going to confirm a man who testifies that he believes the President can violate statutes on national security grounds more or less whenever he wants to?

Asked, for instance, if the president was free to violate a law enacted by Congress, Mr. Mukasey said, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

…

Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants.

“The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”

But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.)

The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.

…

“So you are telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?” asked Senator Russ Feingold, Democrat of Wisconsin, referring to the 1978 law.

Mr. Mukasey did not answer directly…

I think this means that confirmation would be a grave error — even if failure to confirm keeps Peter Keisler, the perhaps equally absolutist temporary AG, in office for a long time. (I happen to have known Keisler reasonably well a long time ago, back in college and law school. He always seemed a deeply decent person on a human level. He was also one of the most right-wing people I knew and his political viewpoints were extreme even then. But then he might well say the same about me for all I know.)

As for the Senators, if they don’t care about the Constitution, is there at least no jealousy left for the legislative prerogative? Primaries for them all, I say.

A Whale of a Quote

Roger Alford shares with us his list of the “Quotable Quotes from the Fordham Law Review Symposium on International Law and The Constitution: Terms of Engagement.”

There are several good ones, but this one from Yale Law Dean Harold Koh stands out:

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

Surrealism in Everyday Life

If I wrote something like this, not that I would, it would probably be parody or something.

I’ve known Brad a long time, although I don’t get to see him as often as I’d like these days. He can be very funny, but he has a different sort of humor, so when he writes something like this…

King Lear Blogging:

King Lear at the California Shakespeare Theater. Very well done.

There are, of course, the Berkeley moments: the announcement beforehand that there is a silver Prius in the parking lot with its interior lights on, and four men (including me) get up to check…

Were I Berkeley law professor John Yoo, I would never agree to take part in the production and come on stage to waterboard and then blind the Earl of g And I would never agree to make Gloucester confess not just to conspiring with Cordelia and the French but also to being the twentieth highjacker…

…I’m forced to believe it might actually have happened.

Fight Outrage Fatigue!

Bush’s Justice Department secretly endorsed torture

Justice Department secretly endorsed torture

NYT tamer headline on the facts: Secret U.S. Endorsement of Severe Interrogations

Charnel House

Secret US Endorsement of Severe Interrogations

The Torture Administration

How the Justice Department Made the World Safe for CIA Torture

And more:

DOJ’s Secret Interrogation Opinions

Torture

A New Threshhold for AG Nominee Mukasey

Secret Gonzalez-supported Torture Efforts Revealed

Defusing the 'Ticking Time Bomb' Scenario

There’s no question that the pro-torture folks love to trot out the unrealistic ‘Ticking Time Bomb’ Scenario in order to justify the use of torture. (It even seems to find its way regularly into Presidential debates.) And then it’s onwards down the slippery slope. So it’s good to see some serious thought being put into defusing this politically — if not necessarily intellectually — effective argument.

Here’s what the Association for the Prevention of Torture has to say about its new report, Defusing the Ticking Time Bomb Scenario:

Defusing the Ticking Bomb Scenario

In June 2007, as part of a series of activities to mark its 30th anniversary, the APT convened a meeting of experts to discuss responses to the ticking bomb scenario. In popular films and television series, on talk shows and news, in academic journals and political debates, the possible use of torture to prevent a terrorist attack in a hypothetical 'ticking bomb scenario' is a hot topic. The dramatic nature of the scenario, and the artificially simple moral answers it seems to offer, have helped it make a significant impression on public audiences. Yet this scenario ultimately seeks to destroy the hard-won absolute prohibition of torture under international and national laws. In presenting certain acts of torture as justifiable, even desirable, in distorting reality and manipulating emotions and ethical reasoning, in leading well-intentioned societies down a slippery slope to legalised and systematic torture, the ticking bomb scenario represents a grave threat to global anti-torture efforts.

Based on discussions at and following the June 2007 meeting, the APT has prepared Defusing the Ticking Bomb Scenario: Why we must say No to torture, always. This brochure provides the general public, human rights advocates, academics and governments with essential arguments against any proposed 'ticking bomb' exception to the prohibition of torture. It exposes the misleading and flawed hidden assumptions of the scenario, and emphasises the toxic effect of torture, like slavery and genocide, on societies that tolerate it. It recalls the fundamental and absolute nature of the prohibition under international law, and describes how the scenario manipulates moral and ethical judgment by obscuring the true moral cost of tolerating any act of torture.

Press as Poodle

The title of the blog post is overwrought, The Next Hurrah: CBS Collaborates in Torture, but with cause.

According to Dan Rather’s lawsuit against CBS, it didn’t torture anyone — but CBS let the US government talk it into first squeltching and then toning down the story of the torture at Abu Ghraib.

Shameful if true. (And, while nothing is impossible, it’s hard to see what Rather could possibly gain from making this up.) So much for the heirs of Murrow and Cronkite.

Bonus poodle example. And my apology to real poodles and their fans.

Torture

Upsetting — extremely well done — article by Jane Mayer for the New Yorker, on the CIA’s ‘Black Sites’.

Short version, and some reactions, in Report: Harsh Methods Used On 9/11 Suspect from the Washington Post. (Note the Officially Approved Euphemism here: “harsh methods” indeed.)

War crimes, I tell you.

War Crimes

Seymour M. Hersh interviews Army Major General Antonio M. Taguba (forcibly Ret.), and gets a preview of his testimony at the c. 2010 war crimes trials:

“There was no doubt in my mind that this stuff”—the explicit images—“was gravitating upward. It was standard operating procedure to assume that this had to go higher. The President had to be aware of this.” He said that Rumsfeld, his senior aides, and the high-ranking generals and admirals who stood with him as he misrepresented what he knew about Abu Ghraib had failed the nation.

“From the moment a soldier enlists, we inculcate loyalty, duty, honor, integrity, and selfless service,” Taguba said. “And yet when we get to the senior-officer level we forget those values. I know that my peers in the Army will be mad at me for speaking out, but the fact is that we violated the laws of land warfare in Abu Ghraib. We violated the tenets of the Geneva Convention. We violated our own principles and we violated the core of our military values. The stress of combat is not an excuse, and I believe, even today, that those civilian and military leaders responsible should be held accountable.”

Torture Harms the Torturer Too

The Tortured Lives of Interrogators - washingtonpost.com

“I tortured people,” said Lagouranis, 37, who was a military intelligence specialist in Iraq from January 2004 until January 2005. “You have to twist your mind up so much to justify doing that.”

Being an interrogator, Lagouranis discovered, can be torture.

I think the most compelling arguments against torture are its fundamental immorality, what it does to this country;s moral standing, what it does to this country’s legal standing, and that it doesn’t work real well, in that order. But I’m willing to add what it does to the torturers to the end of the list.

They could, after all refuse, costly as it would be to them personally. And, indeed, some do:

Lagouranis’s tools included stress positions, a staged execution and hypothermia so extreme the detainees’ lips turned purple. He has written an account of his experiences in a book, “Fear Up Harsh,” which has been read by the Pentagon and will be published this week. Stephen Lewis, an interrogator who was deployed with Lagouranis, confirmed the account, and Staff Sgt. Shawn Campbell, who was Lagouranis’s team leader and direct supervisor, said Lagouranis’s assertions were “as true as true can get. It’s all verifiable.” John Sifton, a senior researcher for Human Rights Watch, said the group investigated many of Lagouranis’s claims about abuses and independently corroborated them.

“At every point, there was part of me resisting, part of me enjoying,” Lagouranis said. “Using dogs on someone, there was a tingling throughout my body. If you saw the reaction in the prisoner, it’s thrilling.”

In Mosul, he took detainees outside the prison gate to a metal shipping container they called “the disco,” with blaring music and lights. Before and after questioning, military police officers stripped them and checked for injuries, noting cuts and bumps “like a car inspection at a parking garage.” Once a week, an Iraqi councilman and an American colonel visited. “We had to hide the tortured guys,” Lagouranis said.

Then a soldier’s aunt sent over several copies of Viktor E. Frankel’s Holocaust memoir, “Man’s Search for Meaning.” Lagouranis found himself trying to pick up tips from the Nazis. He realized he had gone too far.

At that point, Lagouranis said, he moderated his techniques and submitted sworn statements to supervisors concerning prisoner abuse.

The Post’s article has lots more, not all of it unambiguous, and is worth reading in full.

Senator Bill Nelson Votes for Torture

Senator Bill Nelson Votes for Torture.

Or, as the NYT put it,

The Senate Intelligence Committee on Thursday questioned the continuing value of the Central Intelligence Agency’s secret interrogation program for terrorism suspects, suggesting that international condemnation and the obstacles it has created to criminal prosecution may outweigh its worth in gathering information.

The committee rejected by one vote a Democratic proposal that would essentially have cut money for the program by banning harsh interrogation techniques except in dire emergencies, a committee report revealed.

And that one vote was Florida’s own Bill Nelson.

In a closed session on May 23, two Democrats, Senators Sheldon Whitehouse of Rhode Island and Dianne Feinstein of California, proposed barring spending on interrogation techniques that go beyond the Army Field Manual, which bans physical pressure or pain. Under their proposal, the only exception would have been when the president determined “that an individual has information about a specific and imminent threat.”.

The amendment failed when Senator Bill Nelson, Democrat of Florida, joined all the Republicans in voting no.

All Floridians should be ashamed of Sen. Bill Nelson, who provided the deciding vote to prevent the Senate from taking a stand against torture.

He has sunk to the level of Sen. Martinez, which is pretty low indeed.

There is no excuse for this sort of vote. None.

A General Takes a Strong Stand on Torture

Gen. David H. Petraeus, the US military commander/viceroy in Iraq may be “overrated”, but he’s done at least one thing right: taking a strong stand against torture.

CIA Draws a Line

It’s good to know, I guess, that there are some things so horrible that the CIA will deny that it did them.

Father of Pakistani Alleges U.S. Torture It also alleged that the building held two children, ages about 6 and 8, of Mohammed, who had been captured in Pakistan within days of Khan.

“They were also mentally tortured by having ants or other creatures put on their legs to scare them and get them to say where their father was hiding,” the statement charged.

Gimigliano, the CIA spokesman, said the agency “forcefully and completely rejects as false any suggestion that its officers would in any way mistreat children, including children of al-Qaida terrorists.”

Just two more small details:

1. In light of everything else we know, how reliable is the CIA’s denial?

2. What about the adults?

Privatized Abuse -- and Institutionalized Irresponsibility

This sounds like a big deal:

The Project On Government Oversight (POGO) Blog: Contractual Error

The Washington Post reports that private contractors have played a role in alleged detainee abuses at Guantanamo, sometimes even directing Army personnel to perform such abuse. This information was obtained from a 2004 survey of FBI agents who visited the detention facilities and is the latest addition in a long series of reports on contractor misconduct.

If the allegations are true, the Dept. of Defense would be in violation of Subpart 7.503©(3) and (7) of the Federal Acquisition Regulations, which states that direction of federal employees and military forces is an “inherently governmental function” not to be performed by contractors.

These episodes of misconduct shed light on fundamental questions about the proper role of private contractors in service to the federal government.

…

Peter Singer highlights this debate for DefenseTech and argues that a new provision of the FY 2007 defense budget could force security contractors in Iraq and Afghanistan to comply with the Uniform Code of Military Justice. However, security contractors outside of conflict areas, such as those at Guantanamo, would still remain outside the bounds of legal obligation.

There’s more, and it’s worth reading.

On the Severabilty of the Habeas Corpus Provisions of the Military Commissions Act

About a month ago, the New Yorker published Killing Habeas Corpus, Jeffrey Toobin’s profile of Senator Specter’s take on the Military Commissions Act (aka ‘The Torture Bill’). It contained a revealing fact about the Senator, a fact whose significance Toobin seemed to have missed. Toobin quotes Specter as saying,

Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.”

Trouble is, the final version of the Military Commissions Act — the one the President signed — doesn’t have a severability provision, although some earlier versions did. In theory, that usually means that the bill stands or falls as a whole — if one part of the bill is unconstitutional, the whole bill is void. (There are exceptions, for when the courts find Congress couldn’t have intended that.) So my colleague Steve Vladeck and I wrote the New Yorker a letter.

To the Editor:

In Jeffrey Toobin’s marvelous profile of Senator Arlen Specter (“Killing Habeas Corpus,” Dec. 4), the Senator reveals that he labors under a fascinating misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Senator Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial (and, in our view, unconstitutional) habeas provision would have no implications for the continuing force of the rest of the Act.

In fact, as anyone who reads the Act will quickly discover, the statute as signed by the President contains no such provision. As a result, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. As the habeas-stripping clause was the subject of its own vote in the Senate, and the legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting severability.

We draw some comfort from this observation, although not from the apparent failure of one of the bill’s coauthors to understand what he was voting for.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor

The New Yorker just published it, in a version that keeps the essential point but edited all the cute out of it:

Toobin’s profile reveals that Specter labors under a misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial habeas provision would have no implications for the rest of the Act. In fact, the statute contains no such provision, and, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. Since legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting it.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor
University of Miami School of Law
Coral Gables, Florida

Of course, both Steve and I have complete faith that the Supreme Court could, if it wanted, find some excuse to sever the habeas provisions of the MCA from the rest of the bill — all they’d have to do is change current severability doctrine to fit. Whether it could be done in a principled way, on the other hand…

Evidence Mounts that US Used Psychological (and Physical?) Torture Against Padilla

The evidence begins to mount that the US used at least psychological torture against Jose Padilla while holding him in the Navy brig for almost three years.

Padilla’s allegations that he was kept in total sensory deprivation begin to seem more credible. Padilla’s lawyers allege that he was kept alone in a locked room and fed through a slot to minimize human contact.

Padilla was by all accounts a docile and model inmate. What possible justification other than the desire to break Padilla by isolating him could justify the treatment depicted in this picture, published in the New York Times today:

The NYT explains the photo as follows: Padilla got to go to the dentist once — for a root canal. To prevent this from breaking his sensory deprivation, the Navy worked hard to minimize human contact:

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

I hope it is not going to be debated that if it is proved that the government did hold Padilla in sensory deprivation conditions for months, much less years, this is not only cruel and unusual, but actual government misconduct.

The effects certainly appear to have been severe,

Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit filed Friday that he “lacks the capacity to assist in his own defense.”

“It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation,” Dr. Hegarty said in an affidavit for the defense.

…

Dr. Hegarty said Mr. Padilla refuses to review the video recordings of his interrogations, which have been released to his lawyers but remain classified.

He is especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day, Mr. Patel said in his affidavit.

“During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body,” Mr. Patel said. “The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel.”

Recall that Padilla is a US citizen, arrested in the USA, and at the relevant times had been charged with no crime.

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.

Sen. Dodd Wants to Roll Back Aspects of the Torture Bill</