Wednesday, April 29, 2009

We Tortured, Part III: False Equivalencies and "Vengeance"

This false equivalency makes me crazy. John P. Avlon on President Obama's first 100 days:
On the ugly front, President Obama’s attempts at post-partisanship have come under fire from the left as well as the right. But for every Democrat who’s counseled a blood-sport approach to the majority, bipartisanship be damned, conservative activists seem to have made a strategic decision to double down on hyperpartisanship armed with hysterical accusations about our nation being on the road to tyranny. This is unhelpful and intellectually dishonest—and it’s out of touch with the desire of most Americans to move toward a common ground, problem-solving approach to governance. The temptation of some liberal activists to push for torture trials or a truth commission only offers the mirror image of this divisive, destructive approach to American politics.
I don't know how someone whose opinions are apparently worth publishing on the Daily Beast (or anywhere, for that matter) could reach such a manifestly stupid conclusion. Baselessly accusing the president of "tyranny" is simply not the same as accusing the last administration of breaking the law, which the evidence overwhelmingly suggests is just the case. David Broder's disgusting Washington Post column from last week made the same cringeworthy argument:
But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance. Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger.


That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice.
I don't even know where to begin with this disaster. Immediately offensive is the condescending tone and the assumption that David Broder can read the minds of those calling for investigations - they say they want accountability, but really, they're just all hyperpartisans.

But more importantly: there is overwhelming evidence to show that Bybee, Yoo, Addington, and others in the administration defied clear legal precedent when they drafted these memos (see, in addition to the cases I have already cited, the 1983 prosecution of Texas police for waterboarding a suspect by the Reagan Justice Department), and yet somehow we are to let them walk away? There is strong reason to believe they broke federal and international law. When the actions of the previous administration were illegal, it is appropriate to investigate! If we don't investigate this, what offense committed by an adminstration could we ever investigate? How could this be any more obvious? And why are Broder and Avlon attacking the people who are trying to uphold the law, rather than those who are being apologists for torture?

As Daniel Larison
said recently, I'm beginning to think we don't even live in the same moral universe. It's unbelievable. (And he's worth quoting at length.)

Something else that has kept me from writing much on this recently is the profoundly dispiriting realization (really, it is just a reminder) that it is torture and aggressive war that today’s mainstream right will go to the wall to defend, while any and every other view can be negotiated, debated, compromised or abandoned. I have started doubting whether people who are openly pro-torture or engaged in the sophistry of Manzi’s post are part of the same moral universe as I am, and I have wondered whether there is even a point in contesting such torture apologia as if they were reasonable arguments deserving of real consideration.

It's horribly frightening to see how quickly we're willing to abandon the things that make our society worth protecting.

Saturday, April 25, 2009

We Tortured, Part II: Looking Backward

I'm still traveling, so I haven't had regular access to the news - this has made following the discussion about torture a little more difficult. I think, though, that I can identify the main strands of thought in the public discussion. 

The first part of this discussion concerns the immediate issue raised by the release of the torture memos: were crimes committed, and if so, will anyone be held responsible? President Obama specifically ruled out legal proceedings against the agents involved in the interrogations when he ordered the memos released, but questions remain about the authors and architects of the policy. Perhaps the most controversial of the recently-released memos is one that is dated August 1, 2002. In was signed by Jay Bybee, who was at the timAssistant Attorney General at the Office of Legal Counsel. It concerns the interrogation techniques used against Abu Zubaydah, a low-ranking al Qaeda operative.

On the same day, another memo had been authored by Bybee and John Yoo, who was Bybee's deputy at the OLC. Yoo was apparently aided by David Addington, who was legal counsel to Vice President Cheney. That memo sought to define torture in the context of U.S. Code and the International Convention Against Torture. The International Convention Against Torture defines torture "as any act by which intense suffering, whether physical or mental, is intentionally inflicted." That convention was made federal law by the 1995 Torture Implementation Act. Bybee, Yoo, and Addington all had a hand in this memo - although most reports suggest it was primarily written by Yoo - and it argues, essentially, that interrogation techniques constitute torture only if they cause pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." This, apparently, was the lawyers' interpretation of the Convention's language about "intense suffering," at least on a physical level. As for mental suffering, Yoo et. al raised the bar again, arguing that threats of imminent death, threats of intense (torture-like) pain, use of drugs, "permanent" personality alteration, or threatening to do any of the above to a third party were the only acts barred by the prohibition of "intense mental suffering." Their conclusion reflected this expansive attitude toward the law: "We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."

The first memo I mentioned, which was also dated August 1, 2002 and was written by Bybee, applies this line of reasoning to the interrogation of Abu Zubaydah. This memo was one of the memos released by the Department of Justice on April 16, 2009. It considers the various methods used against the prisoner, including "walling," stress positions, sleep deprivation, and waterboarding. The first technique seems to have been invented by the United States, but the second was perfected by Communist China. The fourth technique, waterboarding, was used during the Spanish Inquistion, by the Gestapo during World War II, and by the Khmer Rouge in Cambodia - in fact, it is solemnly remembered in a torture museum in Cambodia! More importantly, though, it was used by Japanese soldiers against American prisoners in World War II, including against Chase Nielsen, one of the pilots who participated in the Doolittle raid. At the Tokyo War Crimes Trials following the war's end, the United States convicted Japanese officials of torture. Their main charge of torture: waterboarding of captives

The Bybee memo considers waterboarding, but concludes that it does not meet the level of pain and suffering necessary to be considered torture. Bybee states that waterboarding is not a deadly technique, and it is unlikely to have long-term psychological effects on the victim. On page 15 of his memo, Bybee writes, "We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years [...] (But) you do not anticipate that any prolonged mental harm would result from the use of the waterboard. Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth."

This claim, however, is highly questionable, as Jane Mayer revealed in the New Yorker:
Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, told me that he had treated a number of people who had been subjected to such forms of near-asphyxiation, and he argued that it was indeed torture. Some victims were still traumatized years later, he said. One patient couldn’t take showers, and panicked when it rained. “The fear of being killed is a terrifying experience,” he said.
Thus we see that there is considerable reason, both in the form of legal precedent and expert opinion, to believe that waterboarding meets the level of pain and suffering necessary to be considered torture. But Bybee mentioned neither of these things in his memo. Even the well-known case of America's conviction of Japanese officials for torture - based on the specific charge of waterboarding - receives no mention whatsoever. The legal opinion offered is so poorly argued that it is hard to believe Bybee could have written it for any other purpose than to provide legal justification for acts that he knew to be illegal (or, at the very least, highly suspect). The same must be said of the the other two important documents from August 1, 2002: the memo from Yoo et. al, discussed above, and another memo written from John Yoo to then-White House Counsel Alberto Gonzales, outlining the president's powers with regard to interrogation techniques. That memo, written by Yoo and approved by Bybee, has been widely scorned for asserting, among other things, that anti-torture laws "may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers." Harold Koh, Dean of Yale Law School and President Obama's nominee for Legal Adviser to the Department of State, called it "perhaps the most clearly erroneous legal opinion I have ever read."

So, to sum things up: on August 1, 2002, three documents written by John Yoo, David Addington, and Jay Bybee were approved by Bybee and became the centerpiece of the Bush Administration's interrogation policies. They were:
- The "expansive view" memo by Bybee, Yoo, and Addington, "defining" what level of pain and suffering constitutes torture and would be prohibited by law;
- Bybee's just-released memo referring specifically to the interrogation of Abu Zubaydah, and concluding, among other things, that waterboarding is not torture; and
- The memo, written primarily by John Yoo, to Alberto Gonzales, arguing that techniques involved in U.S. interrogations do not meet the criteria of torture - and, more broadly, that laws prohibiting torture may violate the president's constitutionally-ensured powers to make war against America's enemies. 
These memos have been roundly criticized for their unprecented interpretation of executive power and their shockingly poor legal reasoning. They ignored American legal precedent, circumvented international laws and norms, and justified the use of techniques that have been called "torture" by the current President of the United States, the current United States Attorney General, the Minority Leader of the United States House of Representatives, the Bush administration's convening authority on the Guantanamo commissions, the International Red Cross, and the King of Jordan, among others. So, what are their fates?

John Yoo is professor of law at the University of California, Berkeley.

Jay Bybee holds a lifetime appointment as a federal judge on the 9th Circuit Court of Appeals.

David Addington is apparently still looking for work

Bybee and Yoo are currently being investigated by the Office of Professional Responsibility at the Department of Justice, but no criminal charges are pending. Why not? Peggy Noonan, for one, thinks it's just time to move on:

This attitude is disturbingly widespread in Washington, and I hope it isn't shared by President Obama, who remarked, somewhat obliquely, that he prefers to look forward rather than backward. I was relieved when he discussed the possibility of a bipartisan Truth Commission, because it's the most likely way we'll make any progress on these issues. But why does the idea of prosecutions make everyone so nervous?

During Eric Holder's confirmation hearings, he was asked about these memos and noted that the "criminalization of policy differences" was a worrying trend in American politics. It dates back to Watergate, but it continues on through Iran-Contra, Whitewater/Monica Lewinsky, and now to torture. There was - and remains, I think - an attitude that Democrats were happy to use investigations to achieve what they had failed to do in elections: beat Richard Nixon. Of course that's a ridiculous notion, because Nixon broke the law and deserved everything he got, but it nonetheless was the opinion of many conservatives at the time.

Imagine, then, the reaction of the right during Iran-Contra. Again, the Democrats failed to beat a Republican president in his re-election bid, so they decided to use Congressional investigations to derail his second term. Let me repeat: this is a ridiculous attitude; Reagan administration officials broke the law and should have been held accountable. But in the highly-charged partisan politics of Washington, the use of Congressional investigations is seen by some as just another weapon in the political arsenal. The attitude of Oliver North at the Iran-Contra hearings is similar to the right's modern approach to critics of torture: "Well, weak, glasses-wearing, Ivy-League, East-Coast, New-York-Times-Reading liberal wusses might not like it, but someone has to be tough and do what's necessary for America, even if it means bending the rules a little bit here and there. Anyone with a brain and a set of a cajones understands that." 

By the time we got to the 1990s, then, Republicans had discovered what they thought was a political weapon (even if it what they saw as political theater had been the legitimate investigation of crimes). Eager to wield this new weapon, they spent an entire presidency and millions of dollars investigating President Clinton. Whitewater never turned up any illegal actions, but it did lead to Monica Lewinsky and President Clinton's eventual perjury. That was good enough for the Republicans, but they had been overzealous: because President Clinton's actions were so minor compared to the crimes of previous presidents (nothing on a Watergate or Iran-Contra scale), and because the Republicans had so aggressively attacked him for something that most people didn't consider to be that big of a deal in the grand scheme of things, Clinton's approval ratings went up and the Republicans' numbers tanked. Clinton left office with an approval rating in the mid 60s - people thought he was a good president, even though they looked down on his character.

This trend did not continue into the next two-term presidency because the Democrats didn't control Congress until 2006. By then, President Bush was a lame duck, and despite hearings, nothing on the scale of the previous investigations took place. It just wasn't worth it - Congressional Democrats seemed pretty happy to let the president's second term fizzle out. If investigations into possible criminality began now, wouldn't it smack of political retribution?

Probably. There's a significant principle at stake here: presidents should be given the benefit of the doubt, particularly in uncertain and dangerous times, to do what they think is best for the American people. It would be very dangerous to undermine that principle, and the effecton subsequent administrations could be severe.

But there is a more important principle that will suffer if we don't act: the principle that no one is above the law. It is becoming increasingly obvious that the Bush administration did not act in good faith with the letter or spirit of the law; that its justifications for illegal acts were simply cover for premeditated decisions to torture, not genuine attempts to determine what was allowed and prohibited; that it engaged in significant, widespread violations of federal and international law; and that these crimes were approved - in fact, they were directed - by officials at the highest levels of the executive branch, including the President, Vice President, and Secretaries of State and Defense. Some of these officials may not have known that what they were ordering was illegal; if they trusted the advice of their lawyers, they would have been assured that it was not. But their lawyers - Bybee, Yoo, and Addington, and perhaps others - were almost certainly attempting to circumvent the law. It would be awkward, embarrassing, and painful to hold them fully accountable for their actions. But ignoring or excusing their actions would do vastly more harm to our country.

If we are not a nation of laws, what are we?

Saturday, April 18, 2009

We Tortured

The United States tortured its prisoners, and President Bush was either unfathomably ignorant of the truth or he was lying when he said ''this government does not torture people'' (bet on the latter). You can read the chilling memos justifying the practices here.

Sullivan puts it succinctly:
According to these documents, almost nothing that was done at Abu Ghraib was outside the limits agreed to by Bush - and much of what was done at Abu Ghraib was mild in comparison. So when the president acted "shocked" at what we all saw, and said it was not America, he was also authorizing far worse in secret - and systematizing it long after Abu Ghraib was over. He was either therefore a fantastic liar on one of the gravest matters imaginable or so psychologically compartmentalized and prone to rigid denial of reality and so unversed in history, law and morality that he had no reason being president.

References to ''1984'' are quite popular right now (for obvious reasons), but one passage in the Bybee memo is worth noting again for its eerie similarity to the nightmarish torture scene near the end of the novel (again, hat-tip to Sully):

''You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him," - Jay Bybee, judge of the United States Court of Appeals for the Ninth Circuit.

"‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal,’" - George Orwell, Nineteen Eighty Four.

More on this when I've returned to the UK and am no longer paying for internet. For now: to the airport.