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?
Monday, February 1, 2010
Institutional protection, part 2
Friday, August 28, 2009
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?.
Wednesday, July 29, 2009
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.
Wednesday, June 17, 2009
Yoo civil lawsuit allowed to proceed
See here. Also, see the Washington Post's editorial criticizing the decision. Its argument is summed up by the following:
Moreover, Mr. Yoo provided legal opinions on what he believed the law allowed the executive to do, but he did not make the final policy decisions. Allowing Mr. Padilla's case to proceed could have a chilling effect on the ability of government lawyers to give candid, good-faith advice for fear of being held personally liable.I've addressed the distinction between advice and policy here. In Yoo's case, that distinction doesn't apply in the usual way, and the Washington Post's editorial is, once again, an utter failure.
Monday, June 8, 2009
Boumediene 2: Bush 0
This is what Lakhdar Boumediene's homemade t-shirt reads, as related in his recent interview with ABC News. It refers to his two victories over the morally bankrupt Bush administration who willfully and needlessly kept him at Guantanamo for 7 years. The first victory was SCOTUS's judgment in Boumediene v. Bush which enabled him to get judicial review. The other was U.S. District Judge Richard J. Leon's decision to free him upon reviewing the 'thin reed' of evidence the administration had against him.
Boumediene makes the following remarkable statement about the duration of his detainment:
"The first month, okay, no problem, the building, the 11 of September, the people, they are scared, but not 7 years. They can know whose innocent, who's not innocent, who's terrorist, who's not terrorist," he said.
"I give you 2 years, no problem, but not 7 years."
It's remarkably generous to offer 2 years of your life for a gross mistake (assuming that it's just that), especially given the credible charge of being tortured whilst incarcerated. But leaving that aside, Boumediene's point should strike a mortal blow to any proponent of executive privilege who wants to assert that the executive is better qualified than any other branch of government to handle matters of war--a standard talking point for the right. After 7 years, the executive could not (or would not) determine Boumediene's innocence. On the other hand, it took Judge Leon only 5 months after Boumediene v Bush to sift through all the evidence and render his judgment (PDF file). In which institution would you place more trust?
Tuesday, May 19, 2009
Advice, policy and action
One major line of defense John Yoo offers for his role in torture relies on the distinction between advice and policy (authority to prescribe action). (See the prepared statement he made before his testimony to the House Judiciary Committee back in 2008).
The thought is that setting policy, but not giving advice, is related to action in a responsibility determining way. This is because policy not only endorses an action (as right/wrong, viable/unviable, legal/illegal), it motivates by being the reason for the action. In short, policy can be a constitutive part of an action which depends on it; it is the reason which explains the action. This connection explains why we tend to believe that if an action like torturing someone is wrong, then the authoritative policy which directly calls for it is also wrong.
On the face of it, advice is different. In an advisory role, the content of the advice is not taken to have motivational force. Additionally, I may not be advising you to do anything in particular but rather just laying out what I take to be your options. This is what John Yoo claims of his legal advice: it merely laid out an interpretation of legal options, and it was neither his intent nor within his authority to prescribe which options, if any, are to be taken. Yoo claims it follows that he cannot be held liable for the actions of those who were directed by policy to act in accordance with such advice. This is because, we can say, a ‘responsibility’ gap exists between advice and action, the gap filled by an independent judgment as to whether to follow the advice. So, if someone must be held accountable for the torture, it should be those who formulated the policy and carried it out. They have a direct responsibility bearing relationship to the vicious act.
Let’s examine the claim about advice. When someone asks for practical advice, it implies that he has not made up his mind on what to do. Typically, upon being offered a piece of practical advice, the advisee deliberates, takes the advice into consideration among all the other known considerations, and arrives at a decision about what to do. The process of deliberation arguably makes the advisee solely responsible for the ultimate decision. Plausibly, this shields the advisor from responsibility.
However, the conclusions are different when the advisor has practical authority over his advisee. Usually we distinguish between contexts of advice and authority, because advice is not often taken to be authoritative, but this is not a conceptual point, but rather just an expression of how we talk. When someone has practical authority over another, his pronouncements/directives/assertions possess preemptory status among the other reasons the advisee may have. That is, whatever other reasons the advisee may have, they are overruled (and are taken to be overruled) by the authority. In this context, when an advisor makes a pronouncement, he understands it to constrain and/or function as a sufficient reason for action.
What was the context in which Yoo wrote the OLC memo? As Yoo himself notes in his testimony before the Committee, his advice was requested in a very particular context: whether the recently (at the time) captured Abu Zubaydah could be subjected to enhanced interrogation techniques, given that such techniques, so Yoo claimed, would be extremely helpful to and desired by the executive.
But the relationship between executive and the OLC is not one of desire satisfaction, it is the latter’s job to constrain the actions of the former. This is confirmed by the particular institutional role the OLC occupies within the executive branch. The following statement from the OLC ‘best practices’ statement is relevant:
“Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch” (emphasis added).
That is, should there be any dispute on how to understand (and hence how to obey) a law, OLC memos are preemptory. This applies to everyone in the executive branch, including the President.
This undermines John Yoo’s basic defense. Although his advice did not take the form of policy, it went beyond the typical function of advice to supply mere considerations for deliberation. Due to the institutional authority granted to him, his advice took on an imperative like form.
Given his knowledge of the advisee’s motivations (we already know of the ‘principals meetings’ during which this whole cabal got together to discuss strategies to implement torture), Yoo’s affirming advice must be recognized to be motivational—and hence a part of the advisee’s decision to formulate the torture policy. This is what makes him culpable for his advice.
Thursday, April 23, 2009
Challenging Cheney
I don't believe the question of whether America's torture regime is legitimate rests on the question of its effectiveness in gathering intelligence. Nevertheless, it is intelligible for someone to make that question the decisive question to ask and answer.
there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics...Defenders of these [torturous--mtn] techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.If true, this would put the final nail in the coffin of the torture regime. It yielded literally nothing of value, and we have come to the end of intelligible rationales for its existence. And what is left but to conclude with Paul Krugman, if one hadn't already, that the authors of this regime are monsters.
Tuesday, April 21, 2009
Question of responsibility
I believe that there is a significant moral distinction between interrogators and those who legally authorized them to torture.
The difference is two-fold. First, the authors of torture regime are authors. They shaped and otherwise made possible the kinds of actions in question. Generally speaking, we believe that the authors of actions are chiefly responsible, and hence chiefly to blame, for them. On my understanding, the CIA frequently abstained from certain techniques and carried them out only after requests for legal guidance were returned in the affirmative. So, from what we know, the following counterfactual is true: were it not for the OLC memos and the political authority of Cheney’s office, America’s torture chambers would not have existed (I’m leaving aside the evidence that it existed in places other than Bagram, Abu Ghraib and Guantanamo). Secondly, there is a significant difference in authority and power between the two classes, and this can generate conditions of duress which can be mitigating and perhaps excusing. There was an incredible amount of pressure placed on the intelligence community to manufacture results, and given the structures of authority in place, that pressure could not have been just ignored—at least not without consequences.
To be sure, these two considerations alone won’t settle the whole question of responsibility if only because the interrogators aren’t automatons—they too author their own behaviors. This is quite clear in interrogation, since it leaves much room for maneuverability and hence deliberation—and all this needs to be decided upon, and hence authored, by each individual interrogator. Moreover, the degree of exerted pressure is unknown, and independently of that, it is difficult to imagine that it amounted to a form of duress which would be excusing. In the end, one imagines, they could have walked away from the torture chambers and obeyed the Socratic doctrine to do no wrong intentionally.
I believe both points speak against the view, held by Spain’s attorney general, that if prosecutions are to go forward, they should be launched against individual interrogators and not the authors of the regime. Obama has finally made it clear (even after his attack dog Rahm Emanuel suggested otherwise just last weekend) that he believes otherwise. In response to questions this morning, he asserted that any investigation and prosecution of the torture authors will be, as it should be, the Attorney General's office to decide and pursue. Hopefully, and as early indications of Holder already suggest, our AG is less politically driven than Spain's AG.
Friday, April 17, 2009
Flip-flop
Yesterday, Obama said that the failure to release the torture memos "could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States." This suggests that their eventual release should settle some questions. I suggested that this was a sort of preemptive attack on Spain's criminal investigations into who authorized what. Lo and behold, today, after just last week announcing that they would pursue indictments, Spanish prosecutors did a flip-flop. According to Spain's Attorney General, Cáandido Conde-Pumpido, any prosecution should focus on the interrogators, not the legal advisors. He therefore believes the case is flawed and does not recommend its pursuit. Evidently, the career prosecutors have been overruled.
Is there a connection between Obama's statement and the Spanish AG's decision? Inquiring minds want to know.
When asked by reporters about the case, Obama gave his standard, "I'm a strong believer that it's important to look forward and not backwards," claptrap. It's time he talk to the public like adults and offer a reasonably complete picture of his views on this matter. Leadership requires more than clever aphorisms; we need guidance and transparency.
Wednesday, April 15, 2009
Uncovering and maintaining secrets
...I believe that exceptional circumstances surround these memos and require their release.
First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
Tuesday, April 7, 2009
Full IC Red Cross report
Now leaked in full at the New York Review of Books. Go here.
For Mark Danner's companion article, 'The Red Cross Torture Report: What it Means', go here.
Danner's article is worth reading, so don't miss it.
It's hard to see how this document will not have significant political ramifications. Hopefully, all the investigations that have been shelved and put into abeyance will be fast tracked.
As Danner points out in his article, the contours of the Bush administration's torture program have been known since 2004. What more needs to be revealed before action is taken?
Obama continues to assert that he wants to move forward. Moving forward is appropriate under certain circumstances, but in this case it is unequivocally the wrong path. This is not only because the current administration has no standing to 'forgive' and forget (only the victims have that authority), it is evident that the issue won't just pass away. Not only are many Americans rightfully vociferous on this issue, it has a determined international following. Even if America should allow its politicians to continually obfuscate, the rest of the world will not. Specifically Spain, the UK and Poland are now undertaking investigations.
In this case, the only way forward is to look backward and come to grips with what we have done and what it means for us. To do that, we need a full accounting.
Monday, March 30, 2009
the Red Cross's conclusions
The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.As quoted by Mark Danner in his great New York Review of Books piece, US Torture: Voices from the Black Sites (which contains numerous excerpts from the secret Red Cross report).
Change you can believe in
From the blog, The Lift:
A group of 4 lawyers which are part of the ‘Association for the Dignity of Prisoners’ (Asociacion pro dignidad de los presos y presas de espana) Boyé Gonzalo, Isabel Elbal, Luis Velasco and Antonio Segura), filed a criminal complaint against Jay Bybee, Douglas Feith, Alberto Gonzales, David Addington, John Yoo and William J.Haynes II on the 17th of March at Spain’s Audienca nacionial for committing crimes under Chapter III of Title XXIV of the Spanish Criminal Code (”Crimes against protected persons and property during an armed conflict”). The lawsuit claimed the six former aides.
“participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention centre at Guantánamo”.
The case was not formally accepted by the court yet, but Baltasar Garzon has ordered the prosecution to start a criminal probe against the six. Gonzalo Boyé, one of the four lawyers who wrote the lawsuit, said the prosecutor would have little choice under Spanish law but to approve the prosecution.
“The only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people,” Boyé told the Observer. “This case will go ahead. It will be against the law not to go ahead.” Boyé predicted that Garzón would issue subpoenas in the next two weeks, summoning the six former officials to present evidence.
If Garzón decided to go further and issued arrest warrants against the six, it would mean they would risk detention and extradition if they travelled to Spain or any of the 24 nations that participate in the European extraditions convention (it would have to follow a more formal extradition process in other countries beyond the 24).. It would also present President Barack Obama with a serious dilemma. He would have either to open proceedings against the accused or tackle an extradition request from Spain.
Philippe Sands, whose book Torture Team first made the case against the Bush lawyers and which Boyé said was instrumental in formulating the Spanish case, said yesterday:
“What this does is force the Obama administration to come to terms with the fact that torture has happened and to decide, sooner rather than later, whether it is going to criminally investigate. If it decides not to investigate, then inevitably the Garzón investigation, and no doubt many others, will be given the green light.”
Signatories to CAT [Convention Against Torture--mtn] have the authority to investigate torture cases, especially when their own nationals have been involved. The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that Spanish citizens had been tortured in Guantánamo.
Read the rest here.
More discussion at Opinio Juris.
If America doesn't pursue investigation into its own crimes--and shame on the Obama administration for not taking the lead on this--then thank God someone else will.
For good measure, take a look at Scott Horton's interview with Jane Mayer. Her book, The Dark Side, claims that the Red Cross concluded that the CIA's 'interrogation regime' is torturous. The torture part may not be news, but the declaration by a major international institution is.
Tuesday, February 3, 2009
Obama and rendition
The LA Times kicked up a mini storm with the Sunday piece entitled, 'Obama preserves renditions…' According to the Times, Obama is set to continue Bush’s widely abhorred rendition program wherein foreign nationals are kidnapped and then taken to a torture-friendly country and subsequently tortured for information. As others have pointed out (here, for example), the Times piece fails to distinguish between extraordinary rendition and the type of rendition program the Obama executive order makes possible. This is no small difference, since the former is known to involve torture and other extralegal interrogation techniques while the latter, given the other executive orders Obama has penned, should not—at least for now. We need the qualification since Obama left open the possibility for using techniques that go beyond the Army Field Manual. This will depend upon the findings of the task force he called for to investigate the appropriateness of the manual’s methods. We eagerly await the results of this investigation.
The shortcomings of the Times piece needed to be pointed out, but we should be concerned that Obama's policies are getting a pass owing to the necessarily favorable comparisons to Bush's.
For example, we have this nugget quoted in the Times piece, “’Under limited circumstances, there is a legitimate place’ for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.” Now, what is a director of Human Rights Watch doing trying to justify kidnapping? It boggles the mind that someone committed to human rights could say that it could be morally justified.
Can we think of a greater affront to liberty than government sanctioned kidnapping? The Times goes on to quote Malinowski as urging Obama to set up a system to ensure that rendered prisoners be shuffled off to a court of justice where they would receive a public hearing. To be sure, this proposal offers an outcome better than being kidnapped and tortured. But with regard to the right to liberty, it is no less of an offense.
Even Glenn Greenwald, who I admire for his characteristic moral clarity, instead of condemning the practice of rendition outright, waxes philosophical by offering a thought experiment designed to tax the minds of those who would condemn the practice.
I believe Bush did the nation at least one service by clarifying what we should be against. As Nietzsche said, “We all need our antipodes.” We shouldn’t now lose our moral compass just because someone we trust and admire is in charge of the country. Perhaps we should be even more vigilant.
Wednesday, May 28, 2008
Torture, Inc.
I'm finally reemerging from under a mountain of blue books and term papers, and I learned that I completely missed the Office of the Inspector General's release of their report last week. It was 4 years in the making and basically details their investigation into interrogation tactics at Gitmo, Afghanistan, and Iraq as reported to them by interviewed FBI agents. The report details a ghoul's list of tactics: short shackling, extreme temperatures, loud music, waterboarding, sleep deprivation, isolation, and bright lights/darkness, not to mention humiliation and threats to harm.
This list contains only those tactics FBI agents personally observed. This is slightly misleading (particularly the frequency of observations); specifically it does not imply that the agents did not have strong reason to believe that harsher tactics were not used (more frequently). This is so, since it was FBI policy, a policy implemented after FBI agents made higher ups aware of abuse, that agents should leave an interrogation scene in which tactics used were contrary to FBI practices. The rule states, “"If a co-interrogator is in compliance with the rules of his or her agency, but is not in compliance with FBI rules, FBI personnel may not participate in the interrogation and must remove themselves from the situation" (p.364). That is, the commencement of torture (by DOD and CIA agents) signals an FBI agent's departure from the scene. There is no reason to doubt that had FBI agents remained on the scene the frequency of the claims of abuse would have been significantly higher.
The report is significant, firstly, because of the source of its information. FBI agents have little reason to fabricate or exaggerate claims. Secondly, it rounds out the picture we have the Bush administration's interrogation policy. These weren't isolated incidents used only on 2 or 3 detainees but rather a systematic approach to information gathering. Thirdly, the FBI was brought in initially for their expertise in interrogation. As the report points out, their view is that rapport building is the most effective means to information gathering, and the complaints FBI agents repeatedly made charged that coercive tactics are ineffective (not to mention unusable or undermining at trial). This highlights two other essential vices of the Bush administration, namely, its contempt for knowledge and expertise and its impatience.
Independent of those concerns is one about our press. I generally keep up with the news, but as I noted above I was swamped last week and completely missed the reportage on the OIG report. But, how is it that a concerned citizen who turns away for but a few days can miss a significant piece of news such as this? I only chanced upon the story due to some link on some blog buried beneath the headlines. Examining our major paper's websites this week would have not given me an inkling of the story at all. Assuming this will not change, the threshold for being an informed citizen is now far above the level most citizens can maintain. This is obviously a problem, particularly when we have an otherwise unaccountable government.
Thursday, May 1, 2008
"No greater legal monstrosity than a secret statute"
An executive order is the product of the executive, and he has the authority to revoke at will. So, suppose an executive publicly declares some order that prohibits certain interrogation techniques and then changes his mind, publicly declaring instead that they should be now permissible. Those interested in the content of the law, its consequences for public policy, its ramifications for international relations, etc., will first turn to X and then to Y to acquire guidance and direction about what they should do. That’s what the publicity condition on legal principles is for, because if law is to serve as an instrument by the people for the people, the people must know and have access to it. So, whether one agrees with X or Y, at least one knows our government’s standing with respect to that area of law.
The current executive in the U.S. has a different take on matters. His Justice Department disclosed yesterday that not only can the executive change his mind about an executive order, that changing of his mind does not need to be publicized. The New York Times reports, “At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.”
So while the initial executive order is made public, the actual functioning directive to all agencies under executive power can operate in secret. This understanding of executive privilege has wide ranging adverse consequences. For example, while citizens may believe, because of a public executive order, that the U.S. does not condone some heinous act X, all agencies under the executive may through some secret directive actually condone and engage in X. To point out just one concern, how can a responsible citizenry protest and attempt to change a law it cannot know about?
We already know, because of the fine work of the Boston Globe’s Charlie Savage, about the Bush administration’s abusive use of executive signing statements. Their excessive employment can be considered a form of secrecy, but technically they are not since the executive’s statements are a matter of public record. However, yesterday’s disclosure marks a whole new path to secrecy.
In the nature of things, the Justice Department official justified this interpretation of the executive’s powers by invoking the need for secrecy in matters of national security. However, even if we suppose that in matters involving dire necessity secrecy is justified, the powers referred to are general and are unconstrained, as a matter of law, by the substance of the matter at hand. We can see this with the Bush Administration’s handling of the OLC torture memos. What reason could be given to make those legal documents classified, except to save the administration from public ridicule?
At the heart of a discussion on the conditions required for a legal system to exist, Lon L. Fuller, a noted legal philosopher, declared that “there can be no greater legal monstrosity than a secret statute.” Who, except the shameless and corrupt, can disagree with that?
Thursday, April 17, 2008
The banalization of torture
This Washington Post article must be read to see one comi-tragic implication of our waterboarding policy. The plaintiff and defendant claim not to have known what waterboarding is. I'm highly skeptical of that, especially in the case of the defendant.
The ultimate quote: “And it's widely acknowledged that the supervisor, Joshua Christopherson, then told the assembled sales team, whose numbers had been lagging: ‘You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales.’”
I’ll leave it at that, so you can go read the article.
Thursday, April 10, 2008
Deliberating about torture
New details are emerging about the role of senior members of the cabinet in approving our use of torture. The CIA has already admitted to waterboarding 3 detainees. And we know they sought and acquired the approval of the Justice Department. And we know that the OLC offered legal language to justify torture. What we didn’t have a glimpse of is a picture of the executive deliberations that approved the whole shebang.
Until now. ABC News reports that a ‘principals committee’ met often to deliberate on and ultimately approve particular uses of harsh or 'enhanced' interrogation tactics. The committee consisted of Dick Cheney, Colin Powell, George Tenet, Condoleezza Rice, Donald Rumsfeld, and John Ashcroft. The CIA was evidently nervous about the legal boundaries of these tactics, and each time it sought the direct approval of the committee and Bush.
After many iterations of this approval process, the report asserts that Rice (who was National Security Advisor at the time) told the CIA that “This is your baby. Go do it.” This meant that the CIA had the implicit and general approval of the committee and no longer required explicit approval.
Approval by committee does not mean of course that each member of the committee approved. We know for other reasons that Dick “It’s a no brainer” Cheney and Rumsfeld categorically approved of such measures. However, the report suggests that Powell expressed reservations. Sadly, however, those reservations were not moral, but were rather grounded in the ‘image’ of the US abroad. That is, we would look bad to the world if we approved torture. Indeed.
Now, the article paints these deliberations against a background of “great concern that another terror attack on the nation was imminent.” My historical memory is bad, but I don’t recall any talk of an imminent threat in the Spring of 2002. Does anyone else? We know that one fruit of these interrogations was the capture of Khalid Sheik Mohammad, the alleged mastermind of 9/11. (For some that alone would justify torture.) But, against this background, we might wonder whether revenge for 9/11 played more of a decisive role in these deliberations than preventing an imminent attack.
Wednesday, April 2, 2008
John Yoo’s ‘torture memo’
John Yoo works now at Berkeley Law (can one think of Berkeley the same way again?). He used to work for the Office of Legal Counsel. His work included writing the legal justifications for torture that the Defense Department used to ground its policies in 2003.
Yesterday, the Washington Post published his work, which was previously classified for reasons of national security (can anyone explain that?).
I don’t have the expertise to parse the legal language, but I am confident that the reasoning is flawed, because I am confident that there can be no justification of torture and a fortiori no legal justification of torture. One could argue, I suppose, that moral reasoning and legal reasoning are different. I disagree, but at any rate they are not different with respect to torture.
Perhaps the most obnoxious things about Yoo are his hubris and his contempt for the public. In his response to the WaPost article he asserted, “Far from inventing some novel interpretation of the Constitution, our legal advice to the President, in fact, was near boilerplate." Not having ever worked for the OLC or knowing anyone who has ever worked there, I am nevertheless pretty sure that he is blatantly lying. I am sure that he will be called out on this by someone at the OLC. He is lying because surely and obviously there is no legal template justifying unconstrained presidential powers.
But his lie reveals a damning truth, at least as applied to his own work. This is because by boilerplate he might be referring to his understanding of the OLC’s charge of providing legal justification (really, merely legal language) for whatever actions the executive wants justification. That is, he bought into his own reasoning: in times of war, crisis, turmoil, distress, stress, discomfort (where’s the bottom?), do whatever the president says. Since our president wanted to 'fight terror' by any means necessary, that's what John Yoo sought to justify.
Murat Karnaz and Guantanamo
Mr. Karnaz is a German national who was ‘picked up’ while traveling in Pakistan and transported by the U.S. government to Afghanistan where he was (per his testimony) interrogated and tortured. He was then shipped to Guantanamo where he wallowed for 4 years.
60 Minutes just ran an interview with him. Check it out here.
The absolute horror of this story is this: the tribunal system set up to assess the standing of detainees ignored its own government’s exculpating evidence, ruling instead to detain Karnaz based on an unsubstantiated claim made by sources unknown. Since the documents used by the tribunal have been declassified, this establishes, assuming at the minimum the sincerity of the proceedings, that they are extremely risk averse. The upshot is this: give the tribunal anything suggesting that the detainee has committed or might commit an act of terror and, even when it is overwhelmingly disconfirmed and contradicted by other available evidence, they will decide to detain him, if it were solely up to them, forever. Ticking time bombs, everywhere.
In light of this, it seems moot to insist, as the D.C. Court of Appeals has done (in Bismullah v Gates, if you’re interested), that detainees have a right to demand that the tribunal make their judgment based on all the available evidence (in particular, the evidence held by the government). It is, of course, a reasonable judgment, but what does it change for the detainees if the tribunal system is irrationally risk averse? Well, legally, it would give those responsible for reviewing the tribunal’s decisions access to relevant information. That is an advantage, but it is one to be enjoyed by the detainee only after the years it will take for review to occur. (I am assuming that the reviewing court will not be irrationally risk averse as well.)
In the nature of things, even in the face of de facto victories, the Bush administration filed an emergency petition to the Supreme Court, asking it to review the Court of Appeals decision. Evidently, they are not satisfied with having the power to detain innocent people indefinitely, they want it made into a right.
Guantanamo is a circus. The mental and legal gymnastics it forces upon us and our legal system cannot be worth it.
I saw an interview with John McCain last night. He is evidently dead set upon closing the prison. Thus, along with the commitments made by Obama and Clinton, we can be assured (hopefully) that the nightmare will end in 2009.
