Institutional protection, part 2

The DOJ has rendered its judgment of John Yoo, et. al, and in a surprise to no one, it is a toothless one. They used 'poor judgment' concludes the report, kind of like when one regretfully chooses fish over steak at dinner or merlot over cabernet. This conclusion evidently waters down the more heady judgment of an earlier draft, which draft had recommended sanctions and possible disbarment.

But that draft was written in the heydays of moral accountability, the end of the Bush years. Now that we live in the we-only-look-forward-and-not-backwards Obama administration, all past government crimes can see the light of day with no fear of liability.


So, now we can see the clear trajectory: DOJ lawyers can be accountable only to the DOJ; and the DOJ will not hold its own accountable because that would harm the DOJ's image.

When are we going to have an independent arbiter for these crimes?

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Institutional protection

Scott Horton over at Harper's reports that the Obama DOJ has filed a brief on behalf of John Yoo in Padilla v Yoo. According to Horton, the brief argues that there are only 3 basic routes by which a lawyer at the DOJ can be held accountable for his official actions. All three routes depend, in essence, on the authority of the DOJ itself, which means that the DOJ is crimainally liable if and only if it finds itself to be so. Needless to say, this is an exceedingly low standard given any institution's inclination to protect itself.

Horton concludes:

The Holder Justice Department’s brief can only be squared with prior DOJ arguments this way: foreign lawyers in foreign Justice Departments have no immunity and can be held accountable, but lawyers who work for us have absolute immunity from any meaningful form of accountability. The path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work.

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Convictions and dismissals

Today we learned that Italy has convicted 23 Americans (in absentia) in association with their role in rendering a Muslim cleric from the streets of Milan. This is a pyrrhic victory of sorts, since the fugitive Americans will not in all likelihood spend a minute in jail. This is in large measure due to the U.S. government's incessant political pressure, grounded on the belief that it can do whatever it wants in the name of combatting terrorism. This belief reared its ugly head yesterday when the Second Court of Appeals threw out a case brought on by another torture victim of American rendition policy, Maher Arar. His case is familiar to anyone who follows these things. A Canadian citizen, picked up at JFK on a tip from te Canadian government, and inexplicably (unjustifiably) rendered to Syria where he was summarily tortured for about a year. The trip to Syria is not inexplicable if one recognizes the America's unaccountable desire to do whatever is 'necessary' to gather intelligence information. As it turns out, as it often does in these types of cases, the initial tip was ungrounded, and Arar had nothing to do with anything.

Now, evidently, the majority believed that to do otherwise than to dismiss the case would be an egregious form of judicial activism, since Congress has not explicitly penned law prohibiting this particular activity. It's not clear to me on what grounds they say this, since there exists any number of statutes under which a prosecutor could bring the culprits to justice. After all, isn't conspiracy to torutre a crime, on the books. The majority must be asking for something  else, namely, the green light by the Exectuve to prosecute its own members. Needless to say, we're still waiting for that. But on the ever useful charge of judicial activism, we can submit, on the contrary, that it is the grossest form of judicial activism to give, as this dismissmal does, carte blanche to a government gone wild. No one but the American government feels the need to dispute the facts of the Arar case, his unquestioned innocence, not even the Canadian government, which has already admitted culpability and settled with Arar. Yet, we continue to our ostrich policies from the highest levels of government down to the citizen on the street who 'just wants the government to protect him'. Well, perhaps Arar believed the same thing, that is, until he lived through the hell that comes from allowing flawed people to possess unchecked and unaccountable power. Do we all have to live through the same before we recognize the flaw here? Is our imagination and historical sense that weak? 

Before we raise our hands in salute of the Italians over the Americans, we should note that, in the Italian judgment today, 3 Italians were acquitted on the grounds that their conviction would divulge state secrets. So, there we go again.  

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The top ten things you didn't know about Iran

I found Juan Cole's list helpful. Take a look.

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Why our media is lame

Paul Krugman runs down the reasons why media coverage of health care reform is lame. Basically, the reasons can be extended indefinitely to the coverage of any significant policy issue.

We've taken a shot at explaining this here. In the end, the idea is that many journalists are either too dumb or too cowardly to handle these issues. But, we shouldn't forget either that sometimes journalism is an unreasonably dangerous enterprise, and that our culture of violence (e.g. sending death threats to journalists who write intelligently about health care) plays a significant but often invisible role as well.

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Newly released OLC memos

Jack Balkin offers us a quick summary of various parts (new memos here). Nothing new, but every time I look at yet another one of these memos, I just can't believe what I'm seeing. What is the meaning of the rule of law if can be subverted so easily and its violators left free to roam and defended?.

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The Responsibility to Protect

Noam Chomsky's take on the responsibility to protect. As always with Chomsky, an informative and interesting read. We've taken on this topic here and here.

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The Collapse of the Prison System

Yesterday the right-wing philosophy that has ruled the US prison system for the last decades received a long deserved blow. A panel of federal judges issued a mandate to reduce the total number of inmates in the state of California in more than 25% in a period of two years. Notwithstanding future appeals, the decision is the culmination of a long process of deterioration of the prison system in California, once the envy of other US states and nations. Currently the designed capacity of the system is roughly doubled and inmates are accommodated in hallways in makeshift beds.

The consequences of this overpopulation are both cruel and unusual. Inmates spend most of the time locked up as the only way to avoid fights and riots. Contagious diseases spread rapidly among inmates and estimates speak of one death per week due to lack of medical assistance. Human Rights advocates have been warning about severe constitutional violations for years but their cries have faded amid the tough-on-criminals mentality dominating the country. Finally, after years of struggle, the federal justice has come through and ordered an end to these abominations based on the Cruel and Unusual Punishment clause of the 8th Amendment.

This is the first official acknowledgement of the insurmountable failure of the philosophy that has dominated the country since the 80s. It might mark a turning point in the history of the prison system. But dissident voices have been around for a while and the debate has been shaping quietly in the background. The collapse of the system has been documented in almost every front. The rates of incarceration have skyrocketed in the last three decades and starting a few years ago one in every 100 adults in the US is in jail. Moreover, it is wholly unclear whether these costs have produced benefits, for the US leads the developed world in homicide rates.

On the other side of the Atlantic Ocean, in Holland, the prison system has also been the subject of intense debate. However, the problem there is one the US wishes it had. The Dutch government has been trying to close 8 prisons for lack of inmates while the Right has tried to persuade the public of the need to put more people in jail. The cost of the initiative will be 1,200 layoffs. Even so, the Right has been unable to stop it. This strikes me as a bit bizarre. On this side of the Atlantic it is always the politicians who are trying to temper down the thirst for blood in the public, not the other way around.

Holland’s problem is envied by others. But things did not always go well for the Dutch prison system. Only a decade ago Holland had followed the American trail and was beset by an overpopulation problem. But they reacted in time and avoided embarrassment. Since then they have increased paroles, implemented electronic surveillance, worked on rehabilitation and increased community service. Plus, undeniably Holland’s eccentric soft-drug policies have had some impact—though not enough to fully account for the phenomenon. In striking contrast with the US, in Holland one of every 1,000 people is in jail.

On a philosophical vein, it is particularly interesting to speculate about the roots of the American mentality with regard to incarceration. Tough-on-criminals policies have been championed by Right-wing groups, usually affiliated with religious views, and echoed by the masses (e.g. 80% of Americans support the death penalty). The explanation of this mentality in terms of the notion of free will is thus natural.

It is plain that religious doctrines usually rely on a substantial notion of free will. But aside from the metaphysical debate, the notion performs double duty in shaping the tough-on-criminals mentality. On the one hand, because individuals are perceived as essentially free, religious doctrines place the whole responsibility for their action on them. There is no need to look at environmental conditions to explain crime: it is simply the criminal’s choice. On the other hand, this has been abetted by the deterrent effect that is expected to ensue from this mentality. Whether or not offenders are fully responsible for their actions, if we hold them fully responsible by having no consideration with them, people in a position to commit crime will have to weigh their chances against this assumption which should deter them from taking criminal action.

But the truth is (as everybody knows except most Americans) that criminals don’t have free will. And this is not a metaphysical statement: criminals are determined by their upbringing, opportunities and even chance. Without a doubt social conditions are causally responsible for the production of crime (as for the production of science, literature, etc). To the extent society causally participates in the production of these evils, it shares the moral responsibility with the wrongdoer for her wrongdoings.

One can ignore reality as much as one wants—even with the hope that ignoring it will magically end crime. But reality is stubborn and ignores those who ignore it. By imprisoning all offenders the US has incapacitated them. But at the same time it has deprived them of the main source of rehabilitation: society. Criminals are not free to choose crime but neither are they free to choose rehabilitation. For too long has the US seen prisons not as functional parts of society but as ostracization facilities. The strategy of ignoring the conditions that produce crime has yielded the expected results: overcrowded prisons and no significant decline in crime. It is time for a change.

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Justification for facilitating torture

The case of the APA and its members who participated in coercive interrogations.

When I read about psychologists who participated in the Bush administration approved interrogation/torture sessions, I recoil in contempt. The contempt is heightened when I read that, since 2002, the American Psychological Association (APA) has effectively condoned and offered justifications for its members’ participation. Is my attitude justified?

Some say no. They do so on the basis of a counterfactual claim: interrogations would have been worse for detainees had it not been for psychologists’ participation. This argument uses the following standard for ethical action: doing something is justified if doing it leads to better outcomes than not doing it. Applied to our psychologists’ participation in torturous interrogation, we can respond, Really? Their participation led to torture and the claim is that without them matters would have been worse. Really, worse than being tortured?

Even if we grant that there are degrees of torture and that psychologists’ participation mitigated the degree of torture, the counterfactual claim is specious because it uses the wrong baseline for comparison. If I torture you less than someone else would have, then that results in a better state of affairs; but, it obviously can’t be used to justify what I am doing. As an aside, compare a similarly specious argument often made for paying the minimum conceivable wage to third-world workers: if I didn’t bring my business over there, they would be unemployed; therefore, since $1/day is better than the nothing they would have gotten, that’s what I’m justified in paying.

At the very least, then, a comparative claim used to justify action must use as a baseline not how things are or would have been without the action, but rather how things would have been if I had acted in all the ways I could have acted. In the case of the torturer, assuming she can stop torturing, that would represent the best outcome (in the case of the entrepreneur, a better outcome would be to pay the just amount which is certainly more than $1/day), and what she does in fact do can be justified only if it is better than that. So, a better standard of justification would be this: my action is justified if doing it is better than anything else that I could have done. I’m not saying that this is the correct standard, but we can use it for our present purposes of evaluating justification for facilitating torture.

We can begin by looking at a brief history of the APA’s ethics code that is relevant to conflict between law and professional ethics. We can note that prior to 2001, the APA’s ethics policy suggested that conflicts be ‘responsibly resolved’ by the psychologist. This open-endedness left it open to the psychologist to follow her conscience in potentially violating positive law. Post 9/11, the policy was revised to read that obeying the law, irrespective of its content, would be sufficient for its members ethical standing. [For a more detailed discussion of the APA’s ethical standards, see Kenneth S. Pope’s, Ph.D., ABPP and Thomas G. Gutheil’s, M.D. article, here.]

Let’s now think of the culpability of individual psychologists and their role in torturous interrogations. If their participation is to be justified, they must claim that their participation leads to better outcomes than anything else they could have done. Is this plausible? The director of the APA’s ethics office, Stephen Behnke, argues for the presence of psychologists as follows:

APA frames a role that psychologists have unique training to fill: the role of observing interrogations in order to guard against ‘behavioral drift’ on the part of interrogators. Behavioral drift, which may arise in high stress situations where there is insufficient ethical guidance or oversight, involves a deviation from professionally and ethically acceptable behavior and so may lead to coercive interrogation techniques. Psychologists, as experts in human behavior, are trained to observe and intervene to prevent behavioral drift.

On this view, the chief benefit of psychologists’ participation lies in their ethical and professional competencies, which competencies can be used to thwart coercion by morally drifting interrogators. I don’t know why Behnke believes psychologists possess particular ethical dispositions and/or competencies, but even if they were uniquely trained in that regard, by the APA’s own ethical standards discussed above, if CIA interrogators ‘legally’ coerced information, no psychologist would have authority to intervene into or report such coercion. The official policy belies the individual justification. Now, if even if we are to imagine a heroic psychologist who bucked the law, this doesn’t absolve the other psychologists who not only ‘monitored’ interrogations but devised, shaped, and directed an entire interrogation regime. This describes the roles of Bruce Jessen and Col. Morgan Banks who are both believed to have deployed their expertise in evading interrogation to develop the C.I.A’s and military’s S.E.R.E interrogation program (survival, evasion, resistance and escape). Can we say of such a psychologist that his participation is better than anything else he could have done?

Suppose neither had participated at all, as surely was open to them, then an entire regimen of coercive interrogations would have been eliminated from existence. And surely that outweighs any conceivable benefit, if such there be, of their actual participation. Behnke might retort that the way the two devised their interrogation regime led to safer methods than would have been available without them. Even if this is true (I’m highly skeptical), it uses the specious comparative benchmark discussed above. Given that their methodology has been established to be torturous, then the correct standard of comparison is not whether without them the CIA would have invented more torturous methods, but rather whether they could have devised effective interrogation methods that shunned any hint of coercion. By the many accounts of experienced FBI interrogators, the most effective method does not involve coercion, and we can surmise that both Jessen and Banks could have built a program around that truth.

Let’s leave aside the case of individuals and turn to the topic of institutional responsibility for facilitating torture. We can note firstly that, in the context of political policy and as compared to individuals, institutions have a far broader range of counterfactual actions available to them. This is partially because they are responsible for many of the rules under which individuals must act and partially because of the great causal powers institutions have in the modern world. This is an often neglected fact and, in my opinion, it implicates institutions in a broader range of responsibilities than is normally acknowledged. We need to keep this in mind when we assess the APA’s actions and omissions.

We know that around 2006 after reporting made clear the coercive nature of U.S. interrogations, the Amercian Medical Association and the American Psychiatric Association both issued prohibitions on its members from even being present at interrogations. Against this background, how should we assess the APA’s insistence on the benefits of psychologists’ participation. Given the existing ban by the AMA and the Am Psychiatric Assoc., the APA arguably could have put a stop to the whole sordid mess by following suit. Here’s why: as mentioned above, it is continually argued, both by the heads of the APA and military brass, that participation by psychologists is essential to keeping interrogations safe. Their absence, then, would entail unsafe interrogations. Therefore, at the very least, the APA’s prohibiting member participation would have put considerable political pressure on the administration to discontinue these, by their own lights, unsafe interrogations. So, this is a conceivable, even probable, counterfactual outcome, one which we can use to assess the goodness of the actual outcome. What was the actual outcome? Detainee deaths and psychologically broken human beings. By the standard set out above, the APA’s actions were unjustified, and it should be found culpable for torture.

The issue of individual and institutional culpability for the torture that took place under U.S. control is a complex problem. Nevertheless, the only argument I’ve seen defending the participation by APA members is specious, and the blame goes to the individual psychologists who participated in coercive interrogations but also, and perhaps to an even greater degree, the professional association which endorsed such participation.

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One thought too many

We've all lived through Dick Cheney's outrageousness. Alongside his grim reaper Addington and legal waterboy John Yoo, he's perpetrated many grievances against America's reputation and standing in the world--not to mention against human beings.

But this one makes me angry. The New York Times reports that in 2002 Cheney and his cohorts tried to persuade Bush that military action in an American city was justified. Evidently, sleeper cells were on his mind and nothing short of military action could appease him. In contrast to his almost too cool public appearances, this grim episode proves how absolutely unhinged Cheney was during this time period. To be sure, in 2002 danger was in the air, and we wanted our public officials to be acutely sensitive to the very real possibility that more strikes on domestic soil was immanent. Nevertheless, to contemplate something so drastic in a case where more or less nothing was at stake, demonstrates the underlying paranoia which had seized his mind. Of course, the military strike never took place, evidently due to Bush's cooler, more reasonable mind (sic!). But the fact that it was even seriously deliberated evinces what Bernard Williams once quipped as 'one thought too many'.

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