Sunday, December 30, 2007

More Chutzpah -- This Time About the Clintons

Rich Lowry's latest column on Bill and Hillary Clinton is an extraordinary display of wilfull blindness. He and his fellow right-wingers have spent the last 15 years foaming at the mouth with rage at the Clintons as a wild-eyed left-wing radicals. Now Lowry has actually looked at Hillary and found her to be "[a] centrist-oriented Democratic politics that is pragmatic and economically literate." The only problem -- he can't give up 15 years worth of rage at her and, inexplicably, all those years of unrelenting vilification has left her embittered. He just can't handle her resentment.

Imagine that! Bill Clinton hewed center; he belonged to the DLC; he offended much of the Democratic Party's liberal wing; he was the very model of moderation. As a reward, he reaped the hatred of the Republican establishment that was outraged that any Democrat would dare usurp their god-given right to the White House. Right-wing pundits reviled Clinton as a wild-eyed radical; foundations spent vast sums smearing him; a special prosecutor dedicted himself to bringing Clinton down; conspiracy theorists spun the wildest rumors about him; private militias trained in the woods for armed rebellion against his government. And Lowry still can't forgive the Clintons for any of this.

But what's really unforgiveable about the Clintons is that they did not take this lying down. Lowry is outraged that, when smeared, they hit back:

Throughout the 1990s, their attacks were directed at people who were vulnerable by virtue of their status as allegedly self-interested women accusing Bill of misconduct, or as conservative politicians hated by the press, or as special prosecutors whose work was distasteful to the public.
Translation: When Paula Jones sued for sexual harrassment, Bill Clinton defended the case. When Newt Gingrich took control of Congress and promptly overreached himself by passing a lot of unpopular measures, Clinton had the audacity to veto them and win a showdown with the Republican Congress. Worse yet, popular opinion sided with Clinton. And special prosecutor Ken Starr's attacks on Clinton merely boosted his popularity, while making Starr look mean and vengeful. Lowry calls this a "politics of personal destruction" (although he conceeds that the game was played "on both sides.")

In short, after spending 15 years slandering Hilary as a radical, Lowry suddenly realizes that she is not, and that her views aren't so bad after all. But politics of the 90's were so nasty, what with all those attempts to bring the Clintons down that he just can't forgive her for it.

Maybe I should make a new category of chutzpah, because Lowry's is impressive.

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Saturday, December 29, 2007

The Morality of Torture (and a Hint at Definition)

My last post addressed why we do not need to torture, even when it might be convenient. Abu Zubayda was waterboarded. This raises, once again, the question of whether waterboarding is torture and, even if it is, what is wrong with torturing a known terrorist for information that may save thousands of innocent lives.

People who defend waterboarding argue that it is not really torture, or a very mild form of torture, because (1) it is not painful and (2) the panic involved lasts only seconds. Another common argument is that people have voluntarily subjected themselves to waterboarding, and surely they would not voluntarily subject themselves to, say, putting hot needles under their fingernails. Bart de Palma adds that waterboarding is much less painful than the wounds that soldiers (and civilians) routinely receive in war. He defines torture only as the "intentional infliction of severe pain," which waterboarding does not entail. But he also condemns sexual abuse even when it is not specifically painful.

Opponents of waterboarding reply that extreme fear can be as bad as pain, and that there is a basic, qualitative difference between being waterboarded by force and being waterboarded with consent. (The same issue of consent applies to people who dismissed the sexual abuse at Abu Ghraib as no worse than fraternity hazing). I would add another thought. Electric shock was for a long time a popular form of torture because is did not leave any scars. It was also a short-lived pain, that could be immediately turned off with the flip of a switch. One of my high school science teachers knew men in Mexican border towns who had macho contests, holding onto electrodes to see how much voltage they could withstand. So there were people who voluntarily subjected themselves to electric shock as well.

Even if waterboarding is torture, what is wrong with the torture of a known terrorist? The best explanation I have seen of what makes torture such a moral outrage, also contains hints as to how torture might be defined:

[I]t's the violation of the integrity of the person by depriving them of all their power over themselves, and . . . somehow erasing the integrity of their 'self'. Prison doesn't do that; even Joe Arpaio - who keeps his prisoners in tents, offers them no recreation and dresses them in pink - does not violate their integrity in the ways that I'm describing - they still make choices, have some responsibility as to their behavior. Bluntly, I'd rater shoot someone than torture them harmlessly. I believe it's more moral; I'm violating their 'person-ness' less through an act of outright violence than through one that seeks to break their ownership of themselves in the ways that torture does.

That is the best explanation I have heard of what makes torture so deeply and viscerally wrong, it "seeks to break . . . ownership of [self]." And if this defines what is so wrong about torture, it also gives a rough measure of whether an act fits within the broad rubric of torture -- does it violate "ownership of self." Thus we can understand why the worst pain a soldier wounded in combat experiences is still not as bad as equivalent pain inflicted on a helpless prisoner -- war wounds do not intrude on "ownership of self." We can understand why sexual abuse, even when not painful, is so vile -- sexual abuse is a direct assault on "ownership of self." We can understand the importance of consent -- to do even the most painful act voluntarily and with consent is an expression, not a violation, of "ownership of self." People who volunteer to have themselves waterboarded, men who test their machismo by seeing how much voltage they can stand, fraternity pledges who submit to abusive (even sexually abusive) hazing are testing the limits of their "ownership of self," not having it forcibly stripped from them.

So, does waterboarding violate "ownership of self" the same way that physical torture or sexual abuse do? The best account I have seen of waterboarding is in this post. It is impressive in both its objective description of the mechanics of waterboarding and is subjective account of what waterboarding inflicts. The author is an ultra-marathon runner and an experienced diver and swimmer who once held his breath for over four minutes and another time tested himself by swimming laps without breathing until he passed out.

To waterboard, ge placed his head below his chest so water in the upper respiratory tract would not descend into the lungs and actually drown him. He began by simply pouring water over his face. Thanks to his experience as a swimmer and diver, he was able to breath air through his nose or mouth (depending on which was not full of water) and expel the water from his nose, throat and sinuses by forefully exhaling. He then escalated by blocking his mouth with a rag, which allowed him to breath only through his nose. Although more difficult, he could still make shallow breaths of air and expel the water. His conclusion (although he did not state it in quite those terms) was that a well-conditioned athlete could be trained to resist either technique. Then he covered his nose with saran wrap and waterboarded through a hole over his mouth.
The water fills the hole in the saran wrap so that there is either water or vaccum in your mouth. The water pours into your sinuses and throat. You struggle to expel water periodically by building enough pressure in your lungs. With the saran wrap though each time I expelled water, I was able to draw in less air. Finally the lungs can no longer expel water and you begin to draw it up into your respiratory tract.

It seems that there is a point that is hardwired in us. When we draw water into our respiratory tract to this point we are no longer in control. All hell breaks loose. Instinct tells us we are dying. I have never been more panicked in my whole life. Once your lungs are empty and collapsed and they start to draw fluid it is simply all over. You [b]know[b] you are dead and it's too late. Involuntary and total panic.

There is absolutely nothing you can do about it. It would be like telling you not to
blink while I stuck a hot needle in your eye. At the time my lungs emptied and I began to draw water, I would have sold my children to escape. There was no choice, or chance, and willpower was not involved.
. . . . .

So, is it torture?

I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question.
Sufficiently intense fear, in other words, is just as bad as any pain, and can go just as far in breaking "ownership of self." ("I would have sold my children to escape.") Broadly defining torture as acts that "seek to break ownership of self," waterboarding clearly qualifies.


Tuesday, December 25, 2007

The Practicality of Torture

Having discussed differing accounts of the torture of Abu Zubayda, the next question is, so what. Assuming the John Kiriakou is right that we got valuable information from Abu Zubayda by torture, does that prove that torture is necessary or justified in our fight against Al-Qaeda. My answer would still be no. Torture may, indeed, be the quickest and most convenient way to fight terrorism, but it is not an absolute necessity.

In considering the need for torture in fighting the War on Terror, I believe we should take the following into account:

(1) Most Al-Qaeda operatives captured (especially higher-ups) will be plotting terrorist attacks.

(2) Most of Al-Qaeda's terrorist plots never get off the drawing board. We do not know and, indeed, probably not even the CIA knows, how many of the plots Abu Zubayda gave up ever went beyond the "aspirational" stage.

(3) The ones that do get off the drawing board take months or even years, to come to fruition. The September 11 attacks appear to have moved from "aspirational" to "operational" in early 1999 and only came to fruition two and a half years later. Preparations for the 2000 attack on the USS Cole apparently began in late 1998. Admittedly, these were unusually large and complex terrorist plots. Smaller and simpler ones can mature more rapidly. But true urgency is rare.

(4) The more a plot matures, the more external evidence it creates. Kiriakou reports that Abu Zubaydah captured with a bomb being assembled and map of a school. If true, this is, indeed, an urgent threat. But the bomb and the map were more than ample evidence to thwart the plot. No assistance from Abu Zubayda was needed.

(5) High-ranking Al-Qaeda operatives when captured usually have an abundance of evidence, such as documents, laptops, and cell phones. Abu Zubayda himself is a classic example. His safehouses contained "documents, cell phones and computers" that contained "crucial information." Al-Zarqawi in Iraq is another example. He did not live long enough to be interrogated, but he told us volumes from beyond the grave through captured documents.

(6) This point is controversial, but there is some evidence that mature plots are especially vulnerable to disruption is one of the conspirators is captured. One piece of evidence is Bin Laden's tape stating that Zacarias Moussaoui was not part one of the September 11 conspiracy and that if he had been involved, Bin Laden would have cancelled the operation and withdrawn the operatives. Of course, Bin Laden might just have been lying to keep us from waterboarding captured terrorists. But the September 11 Commission reaches a similar conclusion. Moussaoui's superiors did not learn he had been arrested until after the attack (his arrest took place about a month before) and, if they had known, they might have cancelled the operation. The Millenium Bombing, the thwarted Al-Qaeda plot we know most about, is also revealing. When Ahmed Ressam was arrested with a bomb his co-conspirators scattered and fled.

Admittedly, there were differences between September 11 and the Millenium Plot. The Millenium Plot involved only one cell, operating mostly on its own with only minium guidance from above. September 11 was a highly compartmentalized, centralized, carefully coordinated operation. And, even more to the point, once Ressam's bomb was captured, it was impossible for his accomplices to proceed without it. September 11 involved no special equipment. But to the extent that mature plots are relatively easy to disrupt, the capture of a conspirator will actuall reduce the urgency of the threat and the need for fast information.

(7) Finally, non-coercive methods do work, albeit more slowly. Terrorists, when arrested, experience what often happens to cult members when they leave the hothouse atmosphere of their cult. When the cult's bizzare way of thinking is no longer reinforced everywhere they turn, their own judgment again begins to reassert itself. Ahmed Ressam experienced a serious blow to his world view when he received a fair trial. (He was convicted, but that was fair, after all. He was guilty). It undermined his belief that the United States was Great Satan. Leaving the terrorist hothouse and being treated fairly by his enemies was sufficient to persuade him to give information against Al-Qaeda. But it took 16 months. He was not able to give "time sensitive" information about ongoing operations (nor did he know of any other than his own bombing plot), but he offered valuable information about Al-Qaeda members and methods. Zacarias Moussaoui also received a major blow to his world view when, despite his best efforts, a jury refused to sentence him to death. Perhaps he, too, may end up informing against his terrorist colleagues without coercion.

Of course, Ressam and Moussaoui are only foot soldiers. They do not have as much information as Al-Qaeda leaders, who will be less likely to cooperate without torture. And no doubt many foot soldiers will refuse to talk unless tortured. But if even 20% of all captured foot soldiers were willing to give information against Al-Qaeda that would, after all, be a serious security breach.

I would therefore say that, given the slow pace at which Al-Qaeda terrorist plots proceed, given the increased probability of exposure or disruption the more a plot matures, given the large amounts of information captured with senior Al-Qaeda leaders, and given the willingness of at least some terrorists to talk without torture, that the use of torture is a matter of convenience and not necessity. Convenience is not sufficient to justify torture.

And my posts denying the need to torture high-level Al-Qaeda members are becoming redundant. I hope not to post on subject for a long time.

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Sunday, December 23, 2007

The Torture of Abu Zubayda

The subject of torture of captured Al-Qaeda members is back in the news with new revelations about the torture of Abu Zubayda. The CIA destroyed videotapes of its interrogation of Abu Zubayda, which opponent of torture take as evidence that it was so graphic that it would turn public opinion against torture, even of the worst terrorists. At the same time, the CIA leaked that Democratic leaders in Congress were briefed about the torture and approved, actions which proponents of torture take as proof of its necessity.

Two participants in the interrogation have given differing accounts; John Kiriakou of the CIA, defends the use of torture and Daniel Coleman of the FBI (as reported by the Washington Post) criticizes it. Needless to say, neither man is a neutral witness. Kiriakou, as one the the CIA participants in waterboarding, has strong reason to argue that it was necessary, while Coleman, one of the FBI agents who stuck to orthodox methods of interrogation, is eager to defend those techniques as sufficient.

Both accounts agree certain facts. Intelligence determined that Abu Zubayda shuttled among 14 safehouses in Pakistan. On March 28, 2002, US and Pakistani forces raided all 14 at once. Abu Zubayda was in one of the houses, had a shootout with the raiding forces, and was seriously wounded. His condition did not allow him to be interrogated for at least several days. He was then transferred to a secret location in Thailand, where the FBI questioned him using orthodox interrogation techniques and got some limited information. Some time later (neither acount specifies when, possibly in May, although they did not receive legal approval until August,) the CIA began using stronger techniques, including waterboarding. Abu Zubayda then gave them additional information.

The accounts differ on the value of what Abu Zubayda had to offer. According to the CIA, he was a high-level Al-Qaeda operative who gave very limited information with orthodox methods and much valuable iformation after waterboarding.

Kiriakou reports that the raid discovered a bomb being assembled in the safehouse with the soldering arm still hot and plans for a school that was presumably the target. Agents were alarmed because of the immediate threat. Once Abu Zubayda recovered sufficiently to be questioned, Kiriakou reports that he was friendly, cooperative, and willing to talk about generalities, but not to give any actionable intelligence. Kiriakou emphatic that every escalation in coercion against Abu Zubayda was approved at the highest levels in Washington. Five years after the event, he did not recall whether it included all techniques such as sleep deprivation, but the agents definitely slapped their prisoner and waterboarded him. Abu Zubayda held out 35 second against waterboarding. (By constrast, when the agents attempted it on themselves, Kiriakou was able to withstand about 5 seconds and none of them were able to hold out more than 10 or 12). The next day Abu Zubayda said Allah told him to cooperate because it would be easier on the others captured.

As a high-level Al-Qaeda operative, Abu Zubayda had valuable information. He did not know the locations of Bin Laden or Khalid Sheikh Mohammed, but he was able to give information on ongoing but hterrorist plots that allowed them to be disrupted. Five years after the fact, Kiriakou did not remember details about those plots, other than to say that he gave information that disrupted "dozens" of attacks though none, to his recollection, on US soil. Once these plots were thwarted, Abu Zubayda was, of course, not able to give information on further plots that developed after he was captured. But he was able to continue giving information on how Al-Qaeda was organized and operated, and which individuals filled different roles. He was always cooperative and never lied, Kiriakou reported. All information he gave was collaberated from other sources. Apparently the threat of being waterboarded again was sufficient to overcome all resistence.

Although Kiriakou said that most of the interrogation videotape would consist of "a lot of very long and very boring conversations about the minutiae surrounding the leadership of al Qaeda," he acknowledges that the part showing waterboarding would, indeed, be graphic enough to alarm most people:

It-- it's-- it's sort of a violent thing to-- to see or to go through. You may be of, you know, one persuasion or the other where you think it's a necessary thing or--or you think it's torture. But either way you dice it-- it-- it's not something that's pretty to watch. . . . To me it's almost like being shocked. Where you tense up because you wanna-- you wanna wiggle out of the way of the water, and you can't, because you're strapped down. And-- and your head is immobilized.
As for whether torture is justified, Kiriakou is ambivilent. He is unwilling to forego torture in the future because:

I think that this is an ongoing battle that we're gonna be fighting for the next generation, at least. And it's always going to be a game of one-upmanship. We always have to have information that is at least as good as what they're planning. It's the only way that we can-- that we can stop these attacks. What happens if we don't water-board a person and we don't get that nugget of information, and there's an attack on a-- on a movie theater or a shopping mall or-- or in midtown Manhattan, you know, at rush hour? Then-- then what do we do? I-- I would have trouble forgiving myself.
Yet at the same time he is inclined to believe that that time immediately following September 11 was different and could justify things that are no longer justified.

You know, the-- the months after September 11th were different. Because we were-- we were really reactive at the time. And we were-- we were stunned by the-- by the magnitude of-- of the attacks on September 11th. And we were afraid that something of-- of equal-- scope was-- was in the works. And we were really trying to do anything that we could to stop another major attack from happening. I don't think we're in that mindset right now. I think we're chasing them all over the world. I think we've had a great deal of success chasing them, not just by ourselves but with other-- with other governments. And-- as a result, water-boarding, at least right now, is unnecessary.
Daniel Coleman, as reported in the Washingon Post disagrees. By his account, documents, cell phones and computers were seized as multiple sites. Coleman led the review of the captured documents and found they gave "crucial information" about Al-Qaeda and its network. Abu Zubayda himself, however, was mentally unbalanced (perhaps as a result of an earlier head injury) and played only a limited role in Al-Qaeda, as a safehouse keeper and travel agent. Coleman says that Abu Zubayda gave the limited information he had without coercion, but the CIA, hoping for more, tortured him and got only "crap." Other, unnamed sources dispute that Abu Zubayda was broken with a single session of waterboarding and say that "harsh treatment" continued for weeks or months.

I intend to give my own, more complete, opinion on the subject in my next post. Just for a preliminary, however, I will say that I agree with Andrew Sullivan. Even taking Kiriakou at his word, he unknowingly points out the flaw in the whole ticking bomb scenario. The torture of Abu Zubayda was not a ticking bomb. It was a situation in which there might be a ticking bomb, but no one knew. And Kiriakou acknowledges where the approach can easily lead. It is never possible to know that any situation is not a ticking bomb. The temptation will always be there to torture, just to be sure. "What happens if we don't water-board a person and we don't get that nugget of information, and there's an attack on a-- on a movie theater or a shopping mall or-- or in midtown Manhattan, you know, at rush hour? Then-- then what do we do? I-- I would have trouble forgiving myself." Taken to its logical conclusion, when would we not waterboard.

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Saturday, December 22, 2007

Is Bush's Power Waning?

And now, to return to a question I have asked before, has George Bush's power waned (or, alternately, has he at least mellowed) since the Republicans lost control of Congress?

I believe there is some evidence of it. He is moving away from the position of "We don't negotiate with evil, we defeat it." He undertook the surge in Iraq against the advice of the establishmen, but it is having moderate success because General Petraeus is proving to be a shrewd politician and is negotiating with some unsavory people in the interest of defeating worse ones. We have made a deal with North Korea. The intelligence community has torpedoed Cheney's proposed war with Iran. And, on the home front, we now have a sane Secretary of Defense and Attorney General, albeit ones locked into old Bush Administration policies. Bush is now submitting his wiretapping to the FISA court. So, yes, there is evidence of greater maturity and flexibility on the part of the Administration, though whether this is the result of losing control of Congress or just of experience is hard to tell.

But the one area where we can expect George Bush to be utterly inflexible is in concealing his past deeds. He will resist to the utmost anything that might expose what he has been up to for the past six years, because that is what might result in indictments.

Wednesday, December 19, 2007

Now What?

Christopher Dodd has blocked the vote on retroactive immunity for telecoms until next year, but that merely postpones the ultimate showdown.

To recap, the FISA court is believed to have ruled last August that wiretapping of foreign-to-foreign calls passing through cables in the US required a warrant. Everyone agreed that this was a serious threat to national security, and that a law was needed exempting such calls from the need for warrants. Congress originally prepared such a law but, under Administration pressure, passed modifications to FISA that may or may not have allowed warrantless surveillance of all international calls into and out of the United States. But Congress also made a 6-month sunset provision on the law and sought to placate critics by assuring them that tighter restrictions could be enacted in six months.

In the clear light of hindsight, the six-month sunset turns out to have been either a tactical error or a clever ploy by people hoping to leverage even greater concessions to the Administration. The law sunsets in February, and our national security is genuinely in danger if we require a warrant to listen into foreign-to-foreign calls. George Bush has vowed to veto any bill that does not grant retroactive immunity to lawsuit to telecoms (the only truly effective way we have right now of finding out just what the Administration has been up to), let alone any bill that would shrink his powers of warrentless surveillance. In effect, he is holding our national security hostage.

"Anonymous Liberal" has an excellent post explaining the effectiveness of such a veto threat:

Under our constitutional framework, the presidential veto is an enormously powerful weapon, particularly when it is being wielded by a lameduck president who has long ago bottomed out in the polls. The Democrats, even if they were to act in lockstep unity, do not have the votes to override a veto. This puts them in a particularly disadvantageous position when it comes to legislation that,for whatever reason, has to pass.If no bill needs to pass, the Democrats can simply pass their preferred legislation (assuming there's no filibuster) and use the President's veto as campaign fodder. No progress is made, but at least no affirmative damage is done and maybe someday there won't be a Republican president standing in the way. But when it comes to mandatory appropriations bills and other necessary pieces of legislation, doing nothing really isn't an option. When confronted with a presidential veto, the Democrats must choose either to pass a bill the president will sign or reap the political consequences of doing nothing.
. . . .

The same dynamic is at play in the FISA debate. If it hadn't been for the FISA Court's ruling earlier this year (the text of which has still not be released publicly), Congress could afford to do nothing. But, at least according to published reports, the Court ruled that certain foreign-to-foreign communications that pass through U.S.-based switches require warrants before being intercepted. Because all sides agree that legislation is necessary to address this narrow issue, Bush is able to use that need as leverage to demand a FISA reform bill that contains all sorts of other bells and whistles, including telecom immunity. If Congress were to provide him with a bill, like the House bill, that doesn't give him everything he wants, he'd veto it and claim that Congress wasn't providing him with the tools necessary to protect the country from terrorists. He'd hold out for the bill he wants, even if it it means genuinely harming our ability to detect terrorist threats.

It should be noted, however, that our security is not at stake to the degree AL would suggest. Although the bill sunsets in six months, it also authorizes the government to seek approval from for its procedures, and such authorization will remain in effect for one year after approval, even after the law sunsets. In other words, if the Administration gets approval from the FISA court in February, 2008, shortly before the law sunsets, it will continue to have authority to wiretap international calls without a warrant until February, 2009 (i.e., past the Bush Administration). So even if Bush vetoes legislation that does not include retroactive immunity, the actual danger will not begin until the next administration. Congress will not have increased our vulnerability to terrorism by refusing to give Bush what he wants. It will merely have increased its own vulnerability to demagoguery, a bigger chance than most Democrats are willing to take.

Even so, in the clear light of hindsight, perhaps it would have been better after all not to have created a six-month sunset Perhaps it would have been wiser from Congress to make the sunset run some time after the end of the Bush Administration and gambled on a more reasonable President the next time around.


Christopher Dodd for Attorney General

Kudos to Christopher Dodd for blocking telecom immunity for FISA violations, although, alas, this probably just postponed the inevitable. I have leaned toward Dodd for President for some time for no better reason than that he had the strongest resume of the candidates. But this action clinches it; if he is still on the ballot when my state holds primaries, he will have my vote. Of course, it is too late for Dodd to have any chance of winning the nomination, and even if he did, the embrace of the netroots in the primaries is still probably the kiss of death in the general election. But I believe it is worth while for anyone who cares about the Bush Administration's violations of civil and human rights to vote for Dodd anyhow. If enough people show support for Dodd, it may show the Democrats (assuming they win the election) that we are an important constituency that has to be taken into account.

Many people, knowing that Dodd has no chance of being President, are proposing him as Senate Majority Leader. I have a different office in mind -- Attorney General. In the leadup to the 2006 elections, I hosted Calling For Change parties for (something very much against my basic inclination) because I believed that the election mattered. I had no illusion that Congress would pass any worthwhile legislation (Bush still had the veto, after all), but hoped that they would at least block any further grants of power and investigate the Administration's abuses to date. In that they have disappointed. Whether it is because they do not want to expose what the Administration has done or because they are too weak-kneed to stand up and have a showdown makes no difference; they have failed in their job to get to the bottom of things. As Senate Majority Leader, Christopher Dodd is unlikely to change any of this.

Some people's next hope is to win the presidency. Once Democrats control the executive branch, at last they can determine, expose, and root out the Bush Administration's abuses. Well, yes, they can, the question is whether they will want to. It seems a reasonable bet that Hilary Clinton as President will be little more than Bush-lite. Barrack Obama will probably want to reconcile and move on. Christopher Dodd would do the job as President, but he stands no chance of winning. But if our next President (assuming the Democrats win) would name Dodd as Attorney general, he would have the chance.

Granted, the worst abuses do not appear to have taken place in the Justice Department, but in the intelligence services. And, granted, Dodd is a poor choice for Intelligence Directory. Clandestine intelligence is a dirty business, and no doubt we really do need to leave it to the sort of people who should be kept on a short leash. But the Justice Department is the leash. The Attorney General holds it. And Christopher Dodd is the man for the job.

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Sunday, December 09, 2007

Antonin Scalia's Principles

One of the most awkward intruders into policy debate is the "matter of principle." Utilitarian arguments can be dismissed as irrelevant because "it's a matter of principle." There is nothing necessarily wrong with this, but it can be difficulty to understand other people's principles sometimes. To one who disagrees, it can be very hard to understand why any issue, from rejection of torture to unrestricted access to guns could be an all-important moral principle regardless of consequences.

Which leads to the subject of Justice Antonin Scalia. During recent arguments about Guantanamo detainees in the case of Boumediene v. Bush, Scalia made it clear (as he has in the past) that a critical matter of principle was at stake for him; his determination to restrict human rights to US citizens and residents. Hearing arguments, he repeatedly asked, "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?"

Scalia's determination to restrict basic rights to citizens is well established. In the case of Hamdi v. Rumsfeld (involving a US citizen captured in Afghanistan), Scalia was emphatic. The streamlined procedure Sandra Day O'Connor set for to determine whether Hamdi was an enemy combatant violated his right of due process as a citizen. A US citizen captured and accused of fighting for the enemy must be either tried for treason, with full protections of the criminal justice system, or released. Not coincidentally, the streamlined procedure O'Connor proposed could have been made available to non-citizens challenging their detention as well. A full criminal trial for every captured enemy soldier would, of course, be impossible. By setting such high standards, Scalia was taking care to restrict his protection to US citizens.

In the cases of Hamdan v. Rumsfeld and Rasul v. Bush, Scalia was positively outraged that his colleagues would allow non-citizens detained outside the US access to our courts, calling it a "monstrous scheme." To Scalia, the issue is simple. Our detainees at Guantanamo are non-citzens being held outside the US and have been declared "enemy combatants" by the executive. No further argument is allowed (at least in court). To suggest such people have any enforceable rights would be "monstrous."

Presumable Scalia does not see anything "monstrous" in holding people taken far from the theater of combat, whose ties to our enemy is questionable. Or in holding a man as an enemy combatant for nearly four years after he was determined not to be. Nor in the widespread allegations of abuse at Guatanamo. To Scalia, all these are subordinate to an all-important principle: non-citizens declared the enemy and held outside the US must not be given access to our courts.

In fairness to Scalia, he has legitimate concerns what would happen to our ability to fight wars if every prisoner of war taken could challenge his status in federal court. As he put it in Rasul, "Over the course of the last century, the United States has held millions of alien prisoners abroad. . . . A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints--real or contrived--about those terms and circumstances." Giving real or alleged captured enemies access to the courts may tie the military up in endless trials and evidentiary issues.

In the fog of war it is entirely reasonable for the Army, when in doubt whether it has captured an enemy fighter or a non-combatant, to err on the side of detaining rather than releasing the captive. There is nothing wrong with that provided that (1) detention is temporary, until the detainee's status can be determined, (2) the procedures for determining status are fair, and (3) the detainee is treated humanely in the meantime. At Guantanamo, none of these conditions have been met. Scalia doesn't care.

But many military people do. The military has well-established procedures for dealing with people who may or may not be the enemy, set forth in Army Regulation 190-8. A group of retired military offices has submitted a brief to the Supreme Court on the subject. Regulation 190-8 requires that in case of doubt a hearing must be held before a competent tribunal "shortly after capture." All prisoners are to be given the privileges of a prisoner of war until status is determined. Anyone found to be an innocent civilian must be released. Confusion about who is or is not a combatant is common during war; the brief reports that "[I]n the 1991 Gulf War, nearly 1,200 hearings resulted in the release of about 75% of those initially detained."

The retired military officers criticize the procedures used at Guantanamo on four grounds:

(1) Pressure from command prevents impartial decision;

(2) Evidence obtained by torture is allowed, contrary to the Geneva Conventions;

(3) Military necessity requires an extremely abbreviated procedure for battlefield status hearing. There is no such necessity in the case of prisoners held thousands of miles from the scene of combats, years after their capture.

(4) Anyone unjustly found to be an enemy combatant faces detention, not for a war of limited duration, but for a multi-generations "War on Terror."

(Justice Stevens made similar comments in his partial dissent in Hamdi.)

In short, Justice Scalia's fears are unfounded. The courts are being involved only because the Bush Administration is refusing to follow long-established military procedures for handling prisoners. There is no sound reason why it cannot return to them.

He may have a point, however, in the question of whether such procedures are required by constitutional law.

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