The Torture Report

Amazing.  The Senate's torture report is out and, despite my one-time obsession with the subject, I feel no urge to post about it.  One thing should be kept in mind.  Horrifying as this report is, it is only the tip of the iceberg.  It addresses torture in secret sites by the CIA.  It does not address far more widespread, though probably more amateurish, use of torture by the military (see Abu Graib).

Maybe if I have a strong stomach, I can get to it later.  But 500 pages (to say nothing of 6000!) is formidable.

Cross-posted at Essayist-Lawyer.

Some Very Unoriginal Thoughts on Torture and Finding Bin Laden

I know it's late to be addressing the role of torture and finding Osama Bin Laden, but now that everyone else had put their two bits worth in, I might as well, too. In fact, it may have been better to delay and allow more information to come out.

Let me begin with a qualification. Every report that comes from insiders with an agenda to promote should be take with a grain of salt. I remember too well the story of John Kiriakou, the CIA agent who implied that he was personally involved in the interrogation of Abu Zubayda. By his account, Abu Zubayda gave only limited information in response to conventional interrogation, but after a single water boarding broke and gave extensive information. It later turned out that Kiriakou was not present but was merely repeatig what he had been told, that Abu Zubayda was treated far more brutally that he had been led to believe, and that his role was much exaggerated.

That being said, this account by top investigative reporter Michael Isikoff appears to be based on multiple sources, many of which were not inteded for public disclosure, and may be treated as the best account we currently have. He gives the following chronology:

Even before 9/11, US intelligence knew that Bin Laden communicated with the outside world by way of couriers. Identifying his couriers was therefore a high priority among US interrogators.

December, 2001, Mohammed al-Qahtani, believed to be the 20th hijacker for 9/11 is captured at the battle of Tora Bora and taken to Guantanamo. Once is identity is learned (by fingerprints) he is savagely tortured and reveals that he was trained in computers by "Abu Ahmed al-Kuwaiti," a high level courier working for 9/11 mastermind Khalid Sheik Mohammed (KSM). This is what is generally reported as giving the courier's nickname or nom de guerre. It also reveals an important bit of information since "al-Kuwaiti" means exactly what it sounds like -- he was from Kuwait. (That Abu Ahmed was an associkate of KSM, also a Kuwaiti, further established that they were different people). Abu Ahmed means father of Ahmed and may mean that he actually had a son by that name, or it may be purely symbolic. The torturers also learned that the Kuwaiti was at Tora Bora, but, of course, not what became of him after that.

Mohamedou Ould Slahi, Al-Qaeda association uncertain, arrested in Mauritania September 29, 2001, bounced around various countries and tortured, and ends up in Guantanamo, where he is also tortured. He reports that the Kuwaiti was killed at Tora Bora. (Note: Since Slahi was arrested in another country before the battle of Tora Bora, he could not possibly know what had become of the Kuwaiti).

March 1, 2003, KSM is captured in Pakistan. He is savagely tortured, including being waterboarded 183 times, in various black sites. Months later, when asked about the Kuwaiti, KSM acknowledges his existence, but denies that he was of any importance and says he is retired.

January 23, 2004, Hassan Ghul, whose role in Al-Qaeda and identity remain a mystery, is captured i Iraq and sent to a black site. After apparently brief torture, he confirmed the Kuwaiti's importance as a trusted messenger in the very top ranks of the Al-Qaeda hierarchy, but said the Kuwaiti had disappeared and he (Hassan Ghul) had no further contact with him. He also identified Abu Faraj al-Libi (the Libyan) as the new number three in Al-Qaeda. Hassan Ghul is no longer in US custody, and his fait remains unknown.

May 2, 2005, More detailed account of the phone callAb Faraj al-Libi is captured in Pakistan. Subjected to torture but not to waterboarding, the Libyan denied knowning the Kuwaiti and gave a made-up name for Bin Laden's courier. KSM also denied Hassan Ghul's account.

According to Isikoff, there were many mentions of the Kuwaiti by many detainees and many tidbits gleaned about him -- that he spoke Pushtun as well as Arabic (very useful when operating in Afghanistan and Pakistan), that he was good with computers, that he was a member of the inner circle, and that he was present at Tora Bora. Much of the information was false. But sorting through it, the CIA reached the conclusion that the mysterious Kuwaiti, true identity unknown, was probably Bin Laden's contact with the outside world. Hassan Ghul's statement that he had dropped out of sight was taken as evidence that he was hiding with Bin Laden. KSM and the Libyan's denials of his importance were taken as signs that they were hiding something.

Unknown date in 2007, the CIA determines the Kuwaiti's identity, though not his location. How they did that remains unknown, as does his original name. It should be noted that this took place during the Bush Administration. This means that at least some of the Bush officials touting the value of torture (though probably not all) know how this was determined. No one from either the Bush or Obama Administration is revealing how the Kuwaiti's real identity was determined. This probably means it involved some source that is still active.

Unknown date, 2009, courier's phone call to someone being monitor reveals his location. The CIA begins tracking him.

August, 2010, CIA tracks the Kuwaiti courier to a compound in Abbottobad. Its extreme security measures draw their attention. By September, they increasingly begin to suspect the compound houses Bin Laden.

March 14, 2011, although aerial surveillance has not actually spotted Bin Laden (apparently he never left the house, even within the compound), the CIA is confident enough to begin discussing options.

So what are we to conclude from all this? First, torture did not lead any Al-Qaeda operative to reveal the location of Bin Laden, the location of his trusted courier, or the true identity of the courier. Quite possibly, none of the captives knew this information. Neither is it clear that anyone under torture even revealed that the Kuwaiti was Bin Laden's contact with the outside world at all. Abu Faraj, the Libyan, had to have known this information, but gave a false name. It is unknown whether any of the others knew.

Second, torture apparently did yield many partial leads that the CIA was able to compile into a composite portrait of Bin Laden's trusted courier, who they determined to be the unknown Kuwaiti. This appears to have taken some time, and to have involved some blind alleys, such as the false name the Libyan gave.

Third, once the CIA had assembled its portrait, it turned to conventional intelligence gathering methods. In other words, it appears to have relied on torture, 2001 to at least 2005 and conventional intelligence gathering, 2007 to 2011. It is not clear what was going on 2005 to 2007.

To offer this as a defense of torture moves into some very disturbing territory. After all, all defenses of torture up until now have presupposed some degree of urgency. Ticking bombs give way to slow fuses, but the assumption has always been that there is some sort of a deadline and some sort of dire consequence if it is not met. Here there was no deadline. It took five years from when the CIA first learned of the Kuwaiti and three years from Hassan Ghul's confirmation of his importance to learn his identity, another two years to locate him, another year to trace him to the compound, and many months of surveillance to be comfortable (without ever positively confirming) that Bin Laden was there. And what would the consequences of not finding him have been? Simply the continuation of a status quo that we had learned to live with quite comfortably.

What proponents of torture are essentially arguing for is the mosaic theory of intelligence gathering. This amounts to the view that every scrap of intelligence, no matter how tiny, is worth while because it can be assembled into a larger picture. I have no general quarrel with this view. It is, as I understand it, how much of intelligence gathering works. But in the Bush Administration, the mosaic theory was used to justify indefinitely detaining and torturing anyone, innocent or guilty, high level or low level, for any scrap of information that might fit somewhere in the mosaic. My answer to anyone who would argue that torture was necessary because it filled in vital part of the mosaic would be that I would hold the mosaic theory to the same standard as the ticking bomb. We will never know if, in the absence of torture, we might have gleaned enough information from conventional interrogation, captured documents, and the like to assemble an adequate portrait of the mysterious Kuwaiti courier. To this day, we do not know how the CIA determined his identity.

The ticking bomb argument itself is dangerous -- how can we possibly know any situation is not a ticking bomb? But the mosaic theory of torture pushes the justification beyond any limits whatever. Or, as this Daily Kos poster puts it, "[I]f torture is acceptable to gain a sliver of information that MAY, given 6 years of hard conventional intelligence work down the line, be of value, then why have any rules at all on anything? After all, anything MIGHT work at some point in the future, including massacre of civilians."

A Perfect Ticking Bomb (Not!)

This latest terrorist plot seemed made to order for the ticking bomb scenario. A terrorst plot has seemingly been thwarted. Large numbers of brilliantly disguised bombs, powerful enough to destroy an airplaine in flight, are being sent out on multiple planes to multiple targets. The plot can't be aborted because the bombs have already been shipped out. Sure, we've stopped some of the bombs, but how do we know there aren't more out there? And now a suspect has been arrested? Can't we torture her to find out if there are any more bombs out there and, if so, where?

I was going to write a post explaining that no, not even this was a true ticking bomb. Granted, it comes remarkably close to what I have called the three essential conditions of a ticking bomb: (1) an immediate, known danger that we lack one critical piece of information to stop, (2) a suspect in custody known to have that information, (3) no possibility of finding the critical information to stop the attack other than torture. This actually does look remarkably like the first aspect of the ticking bomb -- a crystal ball with just one clouded spot. In this case, we have mostly thwarted the plot, but there may be more bombs out there. And we had the suspect who mailed the bombs.

So I was preparing to argue that the final condition -- no other way to find the bombs -- had not been met. The fact is, we now have a huge amount of information, rapidly growing. And, more importantly, we know what to look for and where it came from and that, too, cannot be changed now that the packages have been sent off. Yes, searching every package to come out of Yemen for that past few days will be a huge hassle, but it is doable. The inconvenience it causes is the sort of thing people can tolerate, considering the danger.

That was the post I was preparing to write, but events got ahead of me. It turns out the suspect was not, after all involved in the plot, but a simple victim of identity theft. Case closed.



(PS: Oh, and kudos to all the people, across many countries, who stopped the plot. A job well done!)

Despair: What Comes Next?

So, we've had another failed terrorist attack and the Obama Administration has agreed to suspend the Miranda Warning in order to avoid the frightful results that didn't happen when we read the Miranda Warning to Richard Reid and Umar Abdumatallab. So why haven't I had any posts on the War on Terror lately? Despair, mostly. Glenn Greenwald enjoys flailing wildly in impotent rage. I do not. But what other options are open when the Obama Administration:

Orders the extra-judicial killing of a US citizen;

Retroactively legalizes telecom reps setting up shop in FBI office to bypass usual warrant requirements;

Prosecutes two whistle blowers when the Bush Administration never prosecuted any;

Issues procedures for military commissions the presiding judge describes as "only a marginal improvement, and which go beyond the Bush rules by forbidding credit for time served;

Escalates covert operations against Iran and resorts to new tricks to keep them unaccountable;

Makes no changes to Bangram prision in Afghanistan which is Bangran: worse than Guantanamo, and where two-thirds of the 600 prisoners are estimated to be innocent;

Etc. Etc.

It's not that I blame Obama exclusively. At least he's not quite as bad as Congress, which is passing legislation to prevent lawyers for Guantanamo detainees from offering any effective defense, seeking to forbid the release of any detainee even if proven innocent, and even discussing legislation requiring terror suspects (including US citizens) to be locked away forever in military detention without a trial.

Any one of these developments would once have inspired me to an outraged post. But now what is there left?

The unfortunate fact is that terror suspects have no political power, and are up against the combined might of the military, the intelligence community, and much of our domestic security apparatus. There is no political upside in acknowledging they have any rights the white man is bound to respect, and much in proving how "tough" you can be. Matthew Yglesias describes the dynamic well, "If you have an incumbent administration being urged by the opposition to seize more power, and the public wants the administration to seize more power, then you get what we have today." The current escalation in jihadi plots can only escalate this dynamic.

So is there any alternative to despair? Any at all? I see only one, and it is a weak one. But if more right-wing terror plots are thwarted, although it will not convince anyone that Arabs have human rights, it might at least convince right wingers to limit Obama's power lest it be used against them.

Mostly, though, I can only think of despair.

Torture Memos, Continued

The memos describing torture authorized almost perfectly match the accounts given by the detainees to the Red Cross. At the time the Red Cross report first came out, there were questions as to its accuracy, but the parallels make amply clear that it is accurate.

The third memo authorizes a general process of 30 days, with the option to renew. The Red Cross accounts describe processes of a month or two.

The second memo authorizes sleep deprivation by chaining to the ceiling for up to 180hours (seven and a half days). The Red Cross report describes chaining to the ceiling for up to seven days.

The first memo authorizes placing Abu Zubayda in a cramped box, although he was wounded. Abu Zubayda described being placed in a cramped box, although wounded.

The memos authorize slamming subjects against a false wall, with a rolled towel around their necks to prevent whiplash. The Red Cross report describes subjects slammed against a wall with rolled towels against their necks to prevent whiplash. Zubayda mentions that the first time he was slammed against a solid wall, but afterward a plywood false wall was placed to soften the impact.

The memos state, and the Red Cross reports confirm, that only the three highest value detainees were waterboarded.

And so forth.

But in the end, this fine parsing over what is and is not torture might not be so bad if one keeps in mind that the Convention Against Torture (Article 16) requires each member to "prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." In other words, the distinction between torture and "merely" "cruel, inhumane or degrading treatment" is hard to make, but it is not in any event the distinction between lawful and unlawful, but only between a more and serious offense. That is what makes the final memo particularly appalling. One can argue over whether the CIA black sites cross over the line into torture or are merely "cruel inhumane and degrading," but the final memo argues that they are not cruel, inhumane or degrading, either.

First, the memo points out that since the black sites are other countries, they are not in "territory under [US] jurisdiction." The memo thus interprets the treaty as allowing members to evade this provision by taking their prisoners into each other's territory and engaging in cruel, inhumane and degrading conduct there. The memo further argues that, in ratifying the treaty, the Senate said it interpreted "cruel, inhumane and degrading" as equivalent to "cruel and unusual" under the Constitution. Since the Constitution does not apply to non-citizens outside the US, Article 16 allows us to be as cruel, inhumane and degrading as we want so long as it stops just short of torture and happens to non-citizens on foreign soil. Finally, the memo "enhanced interrogation" is being done to people who have not been convicted of a crime, and is not meant as punishment, but only to make them talk, government interest in fighting terrorism will outweigh any harm done. The memo then argues in detail its great care not to harm detainees by never dousing them with water cold enough to cause hypothermia, not allowing them to hang by the wrists when suspended from the ceiling, waterboarding with saline so they don't get pneumonia or electrolyte depletion, and other such acts of tender solicitude.

The worst part is, at least some Supreme Court justices these days would probably buy this argument. Antonin Scalia sees it as positively an affront to suggest that non-citizens outside the US have any rights. He has also expressed the general opinion that the ban on "cruel and unusual punishment" applies only to people who have been convicted of a crime. Before then, it is open season. And in the odious case of Martinez v. Chavez, the Supreme Court effectively approved the use of torture to extort a confession so long as the police ultimately conclude the subject was innocent and do not prosecute him. However, I am confident that Justice Kennedy would disagree, and that such a viewpoint would be rejected by today's Supreme Court on a vote of 5 to 4.

The Final "torture memo" released was the CIA Inspector General's Report. It adds relatively little, partly because it heavily quotes the original Yoo memo, partly because the three later memos quote heavily from it, but mostly because whole pages are blacked out. It makes the point that only some of the high value detainees were subject to "enhanced interrogation techniques," but that "unenhanced" techniques included forcible shaving, stripping, hooding, isolation, shackling upright, and sleep deprivation and diapering for up to 72 hours. It discusses the necessity of torture for gaining information, the difficulty in knowing whether a detainee is withholding or not, (Abu Zubayda continued to be waterboarded on orders from above long after his immediate interrogators believed he had told all he knew), the damage torture might have to America's moral standing, and fears of getting caught.

The most significant part of the Inspector General's Report is probably pages 85-89, in which they attempt to assess the effectiveness of their techniques. They conclude that torture did, in fact, yield valuable information, but they cannot determine which techniques were most effective since all were used at once. Page 87 identifies individuals, and page 88 plots that the subjects revealed under torture, although they did not uncover any evidence these plots were imminent.

In other words, no true ticking bomb. They cannot say that these plots could not have been discovered by other means, or even that they would have occurred at all. And, for what it is worth, FBI Agent Ali Soufan disputes this account, attributing much of the information the CIA says it obtained by torture in fact came from other sources. Not having any inside information, I cannot presume to judge.

I am well aware that many people, especially in light of the most recent attack, will say so what. The CIA black sites housed only a handful of high-value detainees, all high ranking Al-Qaeda members, all with important information, and all vile and evil terrorists who deserved what they go. And perhaps if those few had been the only ones tortured, one might dismiss the whole episode as a detail, a regretable incident that may or may not have been necessary. But what all too many people today are forgetting is that torture was not limited to a handful of high value Al-Qaeda detainees. The Senate Armed Services Committee has extensively documented that torture by the military was extensive, systematic, extending far beyond high level detainees or even low-level insurgents, and ordered from the very top. Any serious discussion of torture under the Bush Administration has to take into account that it was a regular, planned military policy -- and is probably still going on, albeit without official approval, to this day.

Torture Memos

This post addresses an unpleasant subject, one I have intended to write about for months, but somehow always managed to avoid -- the Torture Memos. Not the original one by John Yoo, that claimed the President had authority to torture, any law to the contrary notwithstanding. These are the memos explaining why various acts did not violate existing laws against torture, released by Obama before the general firestorm of controversy convinced him not to let anything else from the Bush Administration be released.

They begin with August 1, 2002 memo signed by John Yoo that (apparently) got things started. Abu Zubayda had been captured, and the CIA suspected he was holding back information and wanted to use "enhanced" techniques. They asked whether such techniques would violate anti-terrorism statutes. The outcome was predetermined. Yoo dissected the law in a manner familiar to anyone who has attended law school, breaking it down into constituent parts and determining which parts are met. (For instance, to violate the torture statute, an action must (1) take place outside the US, (2) be done under color of law (3) on a person in custody, (4) inflict severe physical or mental pain or suffering, and (5) be intentional. Needless to say, conditions 1 through 3 can be safely assumed). The opinion, cool, detached and clinical, shows a stunning lack of imagination about what these techniques mean in the flesh and blood rather than on paper. Stress positions and long time standing can't possibly be painful because they will be limited by muscle fatigue. (Does he not realize that muscle fatigue, if severe, is itself painful?) Sleep deprivation can't be so bad because it has been done for 11 days in controlled experiments without long-term harm. (He obviously hasn't read memoirs of Soviet prisoners describing what prolonged sleep deprivation, for considerably shorter times than 11 days are like). And, of course, there is waterboarding. Severe pain is not distinguished from severe suffering. Prolonged mental harm is considered torture if it "profoundly disrupt[s] the senses," or involves the threat of imminent death. He acknowledges that waterboarding is an "imminent threat of death," but it doesn't cause prolonged mental harm because soldiers do it in SERE training. (Does Yoo not understand the difference between what is done at gunpoint and what is done in a training exercise?) But not to worry, even if you do end up causing severe pain or suffering or prolonged mental harm, you didn't intend to do it because I told you it was okay.

Apparently this memo was just a little too disingenuous because it was followed up by the Bradbury memo of May 10, 2005, which is somewhat more legally sophisticated than its predecessor. For instance, it acknowledges that experiencing many of these techniques as a prisoner may not be entirely the same as experiencing them as a trainee. It acknowledges that some things like muscle fatigue, waterboarding, or sleep deprivation, though not specifically painful, might be considered "suffering." But no problem. Pain, if sufficiently severe, is always torture, suffering, no matter how severe, is not torture unless sufficiently prolonged. (That clears waterboarding). And, unlike the earlier memo, it acknowledges the sleep deprivation, if sufficiently prolonged, may "profoundly disrupt the senses," (once again, try reading memoirs of Soviet prisoners to understand just how profound the disruption is, and just how unbearable). But it still approves the technique on the theory that prisoners will get over it once they sleep again. Unlike the earlier memo, which says there is no precedent on what is torture because no one has ever been prosecuted under the torture statute, the later memo admits there is precedent on what is torture when some other country does it -- and then engages in self-congratulatory preening for not being as bad as all that. (In fact it cites a case finding that prolonged sleep deprivation and waterboarding, described as "water torture," were torture, at least combined with other techniques such as beating).

But if it is legally more nuanced than its predecessor, the second memo is also more graphic. It described prisoners being kept awake for up to 180 hours by shackling them to the ceiling, which, it assures us, is not painful. (Care to try it?). Being held on one's feet for seven days causes swelling in the legs, but no problem, the swelling is not painful (ditto). It also gives a disturbingly graphic account of waterboarding. This is where it is revealed that it was done to Abu Zubayda 83 times and KSM 183 times. It also says that, unlike SERE training, which merely cut off oxygen and allowed CO2 levels to rise, waterboarding by the CIA allowed water to enter the upper respiratory tract, where it could be inhaled and cause pneumonia. Subjects also responded by swallowing as fast as they could. Some apparently drank so much water that the interrogators had to switch to saline to prevent electrolyte depletion. (Just how much water is that?) Finally, the memo offers the reassurance that a doctor will at all times be standing by to prevent harm. Somehow, though, that is not very reassuring because torturers regularly do exactly that -- to prevent the subject from being killed by accident.

Another memo follows, even more disturbing, that described the techniques as used in combination. Although the description of the techniques in combination is even more graphic and disturbing than reading about them separately, the memo naturally approves them. It engages is a certain self-congratulation for not using all the techniques at once, although all that means is that it is not possible to make a prisoner hold a stress position, slam him into the wall, hold him in a cramped box, and waterboard him all at the same time.

But perhaps most disturbing of all, even as the memo continues to insist that no "prolonged mental harm" is caused, it also explains that the purpose of the milder techniques is to "bring the detainee to 'a baseline, dependent state," 'demonstrat[ing] to the [detainee] that is has no control over basic human needs." (quotation marks and brackets in the original). The purpose of the harsher techniques is "to create a state of learned helplessness and dependence." I am reminded of nothing so much as the Star Trek episode Catspaw:

KIRK: So, are you going to wave your magic wand and destroy my mind, too?

SYLVIA: There's no damage, really, just a removal of all knowledge and will.

KIRK: You don't call that damage?

(Quoted from memory, minor errors are possible. Subject continued in the next post).

In Retrospect, Were We Paranoid about Bush?

I planned this post even before the Underpants Bomber struck, but that attack makes the matter all the more timely.

In light of "death panels" talk and all the hysterical, frenzied paranoia about Obama, and in light of the recent spate of terrorist plots, one of which came uncomfortably close to fruition, and with the perspective of distance, were we paranoid about George Bush? Was our side just as guilty then as the Teabaggers are today? To what extend did we exaggerate the threat he posed to freedom? To what extent were his actions reasonable policy disputes, or necessary responses to terrorism? And to what extent is the Obama Administration the same as its predecessor?

I'll start with the obvious. There were, in fact, some paranoid Bush haters. The Truthers were the most extreme example, followed by people who thought he wanted to cancel the 2008 election and proclaim himself President for Life. Also on the list of obviously paranoid were people who were sure Diebold voting machines were rigged to make a Democratic victory impossible, people who thought he would start detaining political opponents, and people who thought opponents would be shipped off to GTMO.

But there were other, more reasonable fears that people had, some confirmed, some refuted, and some still uncertain. One fear I confess to having that was proven false was the fear that he would treat a Republican victory in the 2008 election as a matter of national security and resort to Nixonian dirty tricks. Didn't happen. Another was the fear that he would pardon everyone in his Administration before leaving office. That didn't happen either, probably because he had assurances from Obama that there would be no prosecutions. (Could such assurances have something to do with why he did not resort to dirty tricks in the election? Or am I just being paranoid again?)

I divide the concerns of Bush opponents into several categories, and analyze them, as opponents saw them at the time, in hindsight, and in comparison with the Obama Administration.

Fear mongering and warmongering. It's really hard to know to what extent the Bush Administration saw itself as doing what was necessary for the protection of the American people, and to what extent it merely exploited fears for partisan advantage. Certainly scheduling a vote on the invasion of Iraq for right before the 2002 Congressional election -- and demonizing Democrats for any hesitation sounds a lot like exploiting fears for partisan advantage. Tom Ridge has more or less admitted that the Administration manipulated alert levels for partisan advantage. And I see no reason to doubt either that the Administration manipulated intelligence to justify the Iraq War, or that it scheduled the vote before elections as a means of political pressure. And not only Bush, but Republicans in general have been using fear of terrorism (and fear in general) as their favorite technique to win elections and continue to do so to this day. Obama, by contrast, does not fear monger, but he does a lot manipulating behind the scenes to get his way. [Hope to find link later]. Pick your poison.

Treating the federal government as a patronage organization. This is one of those areas where we have a lot of suspicions, but no proof. There is some evidence when going into the 2006, running scared and facing major losses, the Bush Administration used, or attempted to use, a variety of federal agencies as patronage organizations to advance Republican prospects. There is also evidence that US Attorney David Iglesias was fired for declining to use his office to advance Republican electoral fortunes. However, the reasons for the other US Attorney firings remains unclear, as does the extent to which the federal government in general, and the Justice Department in particular, was corrupted to serve as a patronage organization. File this under undetermined. As for the Obama Administration, I do not know if they want to stoop to such measures. But given Republicans' intense opposition and eagerness to jump on them for any misstep, it seems safe to assume that it would not be able to get away with it. Partisan divisiveness has its advantages.

Indefinite detention, extraordinary rendition, and torture. Bush critics were absolutely right to condemn these. We may, however, have made a mistake in how we attacked them. Criticizing this as a civil rights or constitutional issue allowed the retort that civil rights and constitutional rights do not apply to non-citizens outside the United States. Legally, this is accurate. Treating this as a matter of civil rights and constitutional liberty also creates the impression that US citizens tremble in fear of GTMO and torture, which Bush supporters could indignantly (and correctly) deny. Quite correctly, they could point out that the right of ordinary Americans to due process of law was not in danger, that Bush never committed any civil liberties violations comparable to, say, Woodrow Wilson's Palmer Raids in WWI, the internment of Japanese Americans in WWII, or COINTELPRO during the Cold War. All of this was true, and to the extent Bush opponents claimed otherwise, they could fairly be accused of paranoia.*

But these policies, nonetheless, fully deserved our condemnation, even though they posed no domestic danger. The proper criticism was not that these violated civil or constitutional rights, but that they violated universal human rights. It was pure paranoia to suggest that US citizens were in danger of losing their freedom to such methods, or to fear monger about them. But it was entirely appropriate to point out that the Bush Administration's use of torture (and torture-lite), its lack of regard for innocence or guilt, and its absurdly rigged procedures for determining detention were, indeed, the stuff of dictators, and to be angry about it. There is an old jibe that a liberal is someone whose immediate interests are not at stake. Let's turn that insult into a boast that a liberal is someone whose immediate interests are not at stake who cares anyhow.

These are policies the Obama Administrations appears fully committed to ending. It also appears fully committed to covering up the crimes of its predecessor. This is certainly unfortunate, as learning more about the crimes of the Bush Administration, particularly against innocent people, might finally convince many people that they were actual crimes. But given the degree of Republican obstructionism, the hysteria they are whipping up, and the lack of political upside to protecting Scary Brown People, I thing he does deserve some credit here.

Executive powers. One of the most alarming things about the Bush Administration was its insistence, in effect, that the President was exempt from all laws, so long as he said "national security" first. Whenever Bush considered any law unduly restrictive of his power, he simply said, "national security" and broke it. Congress, confronted with his actions, invariably retrospectively legalized them. Once he got what he wanted, Bush backed off of his more extreme claims to be exempt from laws. Unsurprisingly, Obama, having been given so much power by Congress, shows no inclination to give it back.

Some people, like "Anonymous Liberal" argue that this is a significant improvement over Bush-era lawlessness. As s/he puts it, "What was once illegal is now legal. So what we're now debating are proposals to change or amend existing law to make it better. We're working within the democratic framework to try to effect policy change, which is how things are supposed to work. Three years ago we were debating whether the law even had to be followed." I find this argument unconvincing. What the Bush Administration has proven is that if the President breaks the law, Congress, instead of reigning him in, will change the law to validate his actions. A more dangerous or subversive position is hard to imagine.

Data mining. Although the Bush detention and torture policies are better described as human rights than civil rights issues, many of his policies raised legitimate civil rights concerns. These included his warrantless surveillance, national security letters, searches for patterns in phone calls and e-mails, tip hotlines, terrorism watch list, no-fly list, Total Information Awareness, and so forth. Though they diverge in detail, all of these policies fit under the broad rubric of data mining. It is these policies that the Obama Administration gives every sign of intending to keep in unmodified form.
Because these are the Bush era policies that pose the greatest civil liberties (as opposed to human rights) concern, because they are the ones that Obama appears to have adopted lock, stock and barrel, because so little is known about them so far, and because they are the policies most likely to be stepped up in the wake of the latest terrorist attack, these policies deserve a post of their own. Coming up.
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*There do, however, appear to have been some CONINTEPRO-like activities on the state level, at least in Maryland.

Politics Eclipse Policy, Part II

So, having criticized the MSM for focusing on politics over policy in the current health care debate, why have I written only on the politics and not made a single post on substantive healthcare policy? For two reasons. First of all, I consider Republican conduct here to be sufficiently disturbing that for me the politics of the issue really do eclipse the policy.

The second reason is that ultimately, healthcare reform is not my biggest issue. I didn't vote for Obama to pass universal healthcare. Yes, it is an important issue, and one that I favor. But it wasn't the reason for my vote.

I voted for Obama in hopes that he would clean up the mess Bush left. He hasn't done it. Given the choice between Bush with universal healthcare and Bush without universal healthcare, I will take the healthcare. But I was hoping for a President who wasn't George Bush and am now despairing of getting one.

Consider the Bush policies I saw as important and how Obama has responded so far.

Get out of Iraq. Check. Granted, he is following the timetable negotiated by Bush, but he is following in, not trying to subvert it as some hawks have desired.

Develop a rational policy in Afghanistan. None in sight.

Stop relying on defense contractors. We are, if anything, relying on them more than ever.

Practice diplomacy. Okay, we are making at least some progress there.

Close Guantanamo. A stated goal with approximately zero chance of happening. Granted, Congress has a large hand in that.

End torture. Well, the Obama Administration has formally committed itself not to torture and has closed down CIA "black sites" that weren't being used anyhow. But torture continued unabated at Guantanamo with no attempt to stop it, and who knows what is going on at Bangram.

End warrantles wiretaps. The Obama Administration seems quite content continuing the mysterious "basket warrants" allowed under the Protect America Act and sweeping the entire issue under the rug. Is the program appropriate? Is it entirely out of control? Just how much of our foreign communications are being surveilled? Who knows?

Stop the abusive use of National Security Letters. Who knows? I'm guessing not; they are just too convenient.

Stop infiltrating and surveilling innocent organizations. Who knows?

Stop heavy-handed PATRIOT Act investigations of innocent dissent. Who knows?

Put the No-Fly List on a rational basis. Not a sign of it.

Either abolish our color-coded system of alerts, or put them on a rational basis. No. In fact, orange appears to be the new norm.

Stop using the federal government (including the Justice Department) as a system of partisan patronage. Who knows?

Stop interfering with the independent judgment of government scientists. Who knows?

Stop the heavy-handed immigration raids that give the country a police state feel. It is my understanding there has been progress here, and the emphasis has shifted to deporting criminals and cracking down on employers.

Stop heavy-handed treatment of foreign tourists for small technical violations. Who knows?

Lighten up on the war on drugs. Once again, it is my understanding the feds have stopped raiding medical marijuana facilities. Otherwise things remain heavy-handed, but at least be are back to pre-Bush.

Allow unfriendly demonstrators in your vicinity and critics into town hall meetings. Yes, give Obama credit, he has done this. In fact, he was disappointed how few showed up on the health care tour.

Introduce accountability into the bank bailout and stop treating it as a handout. For the most part, no. As funds began to run low and everyone knew Congress would not approve any more, the Administration had started being more parsimonious, which is all to the good, but even the Bush Administration would presumably have done the same. Maybe Obama will offer a reasonable set of banking regulations and somewhat redeem himself on this one, but I am not holding my breath.

Run a more open Administration. Despite a few encouraging signs, the overall record is most unimpressive.

Expose what the Bush Administration was up to. This was the critical one for me. Only by revealing what they were up to can we really get a handle on what (if anything) was justified and how to reform it. Unlike, say, Glenn Greenwald, I can understand why prosecution is politically impossible, but exposure it essential. And, while there have been a few forced disclosures so far, on the whole this Administration has been fighting tooth and claw to keep its predecessor's actions secret. What are we to conclude but that it wants to reserve authority to continue them?

Accusation Against Pelosi: Hypocricy or Cynicism?

Many Democrats are completely baffled at the attention Republicans are focusing on Nancy Pelosi and the Torture Memos. After all, they argue, the Bush Administration that was in charge of all that was done to the terrorists at the black sites. Pelosi is guilty, at worst, of passive acquiesence. That deserves to be condemned, but is a minor matter compared to actually running the sites. So why the obsessive focus on Pelosi?

The trouble with this question is that it assumes everyone agrees there is something wrong with shackling known terrorists to the ceiling a week or more to keep them from sleeping, slamming them into the wall 20 to 30 times in a row, or waterboarding them 83 to 183 times. But try, if you can, to place yourself in the perspective of someone who thinks that everything that went on at the black sites was perfectly fine. Republicans are, in effect, clearing themselves and the Bush Administration of any wrongdoing because they didn't see anything wrong with any of that. But if Pelosi thought there was something wrong going on, it was incumbent on her (but not on them) to speak up. At the most superficial level, they are accusing her of hyopcrisy for failing to act on her principles.

The trouble with such accusations is that they are never very convincing. People who believe that not-quite-torture is wrong and evil consider it unimportant that Pelosi was a hypocrite in failing to oppose it; such a failing is a trivial offense compared to actually committing not-quite-torture. People who criticize Pelosi as a hypocrite for failing to live up to her anti-torture principles while giving themselves a free pass because they support not-quite-torture regard oppostion to not-quite-torture as vile terrorist-coddling that endangers American lives. So why condemn Pelosi for failing to live up to to such dangerous principles?

It is my belief that there is a deeper, unspoken accusation there. To understand it, consider the subject where liberals are most fond of accusing conservatives of hypocrisy -- homosexuality.

There is no shortage of examples. Senator Rick Santorum holds himself out as Mr. Family Values and denounces homosexuality as a menace that threatens our whole civilization, yet is completely accepting of his gay staffer. Senator Larry Craig holds himself out as Mr. Family Values and denounces homosexuality as a menace that threatens our whole civilization and is caught soliciting gay sex in a public restroom. Reverand Haggard preaches passionate anti-gay sermons while carrying on with a gay prostitute. We liberals condemn them as hypocrites. We mock them for failing to live up to their stated values. But how convincing is such an accusation?

Certainly such accusations are unconvincing to anyone believes that homosexuality really is an evil menace that threatens our whole civilization. Consider what David Frum had to say on the subject:

If a religious leader has a personal inclination toward homosexuality - and nonetheless can look past his own inclination to defend the institution of marriage and to affirm its benefits for the raising of children - why should he likewise not be honored for his intellectual firmness and moral integrity? "I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self."

Or, put differently, the personal failings of an anti-gay crusader are irrelevant to the underlying evil of homosexuality.

The accusation of hypocrisy does not make much sense from a liberal standpoint either. Does it really make sense to say, "Not only does so-and-so have vile, bigoted values, but he doesn't even live up to them"? If someone's values are vile and bigoted, isn't it better, after all, not to live up to them? But are we really criticizing, say, Rick Santorum for publicly condemning homosexuality while privately being completely accepting of his gay staffer, or are we actually condemning him for privately accepting a gay staffer while publicly condemning homosexuality? The distinction is subtle but real. It amounts to saying that Rick Santorum knows that there is nothing wrong with being gay, as evidenced by his being completely accepting of his gay staffer's orientation. Yet he lies by publicly pretending to think homosexuality is wrong in order to pander to his constituents' worst instincts and win votes. That isn't hypocrisy; that's cynicism.

Many accusations of hypocrisy make more sense when read as really accusations of cynicism. Consider Al Gore's mansion which uses energy at a considerable rate even as Gore preaches the need to cut energy consumption to fight global warming. Hypocrisy? Many environmentalists would agree that it is, indeed, hypocrisy, but that doesn't make global warming any less real or the need for conservation any less urgent. Now try it as an accusation of cynicism. Al Gore knows global warming isn't real, as evidenced by his extravagant energy consumption, but he continues to fear-monger in order to impose his political agenda. Doesn't that make more sense?

Now, apply this general rule to the accusations against Nancy Pelosi. I think what Republicans really mean is that Pelosi obviously didn't think anything going on at the black sites was wrong, as evidenced by the fact that she didn't protest at the time. But now she is pretending to think not-quite-torture was wrong in order to pander to her constituents, despite the real danger opposition to not-quite-torture poses to American lives. Seen from that perspective, it almost makes sense.

Update:

Cheney's speech confirms my suspicions. Without actually naming Pelosi, he says, "Some members of Congress are notorious for demanding they be briefed into the most sensitive intelligence programs. They support them in private, and then head for the hills at the first sign of controversy." This is an an accusation of cynicism not even masquerading as one of hypocrisy.

Further Reflection on Torture and "Public Necessity"

I should add a qualification to my post on torture and necessity. It overlooks a critical legal distinction. The affirmative defense of necessity generally applies in cases of "private" necessity. The lost hiker breaking into a cabin in a blizzard, the convict escaping a cell on fire, the Katrina looter and so forth are acting out of necessity for their own personal protection, or, at most, the protection of a few family members or friends. Public necessity is a different matter.

Public necessity is the act of someone, usually a government official, taking necessary action to protect the general public, such as a firefighter destroying a house to prevent the spread of a forest fire, police damaging a private house to capture a criminal holed up inside, or, for that matter, the Air Force if it had shot down United 93 to prevent it from hitting its target. Generally speaking, public necessity is not an affirmative defense, but a grant of immunity. In other words, the public officials undertaking these acts would escape prosecution altogether because they were acting in an official capacity. Clearly this is not what I am advocating in the case of torture.

However, this should not be an insurmountable obstacle. The privilege only extends so far. Police are, after all, sometimes prosecuted for shooting people, even in their official capacity. I would therefore propose an absolute ban on torture, with no immunity for public necessity, but with an affirmative defense of necessity in such cases.

Torture is Tactical; Rapport is Strategic

On the subject of torture and the war on terror, consider this column by "Matthew Alexander," (psuedonym), a military interrogator in Iraq, discussing the advantages of rapport building over torture in Iraq. One of the things he learned was torture and abuse by Americans was a major recruiting tool for foreign jihadis. Another was that being treated humanely could be a serious blow to terrorists' world view. He also gained valuable insight into the insurgents' motives:

Over the course of this renaissance in interrogation tactics, our attitudes changed. We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shiite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money. I pointed this out to Gen. George Casey, the former top U.S. commander in Iraq, when he visited my prison in the summer of 2006. He did not respond.

Perhaps he should have. It turns out that my team was right to think that many disgruntled Sunnis could be peeled away from Zarqawi. A year later, Gen. David Petraeus helped boost the so-called Anbar Awakening, in which tens of thousands of Sunnis turned against al-Qaeda in Iraq and signed up with U.S. forces, cutting violence in the country dramatically.

Balloon Juice blog presents Alexander's column with a revealing juxtaposition from Andrew McCarthy defending torture:

Superior force and discipline are not enough against this adversary. We need intelligence. Intelligence is the single asset that stands between the terrorist and scores — if not more — of slaughtered civilians. Between the terrorist and murdered American military personnel. In the war on terror, as in no war before it, intelligence will be the difference between victory and defeat. . . . [T]here are certain circumstances in which high-level al Qaeda operatives are captured in the throes of plotting massive strikes. There are certain circumstances in which such a terrorist might be able to tell us, right now, where bin Laden is, or Zarqawi, Zawahiri, and other leaders who are themselves weapons of mass destruction because they have the wherewithal to command massive strikes.

Alexander and McCarthy actually agree on an important point; it is intelligence that will win counter-insurgency. But they disagree, not only how how to obtain intelligence, but, at a much deeper level, on what intelligence really is.

For the sake of argument, I will grant McCarthy and other defenders of torture a point and assume that torture is, in fact, the quickest and easiest way to get the information they want. But the type of intelligence McCarthy and others like him discuss is revealing; it is narrowly military. What type of attack are you planning? Where is your weapons cache? Where are the EID's hidden? Where can I find your leader? Granted, all this information is important and worth knowing, but it is purely tactical. It may thwart a few attacks and win a few battles, but it is not how counter insurgencies or great wars of ideas are won.

Contrast this with what Alexander learns by building rapport; fighters' backgrounds, their motives, their quarrels and internal disputes, their differences, and what really makes them tick. This is strategic information, the sort of knowledge that defeats insurgencies, builds alliances, and wins wars of ideas. It is the sort of information that can not only win a war, but build a peace. And torture is worthless for gaining this sort of complex, sophisticated information.

I don't know Matthew Alexander's real name or where to find him. But I hope the Obama Administration finds him and gives him a major role in retraining our interrogation teams. Maybe, just maybe, he can help us win in Afghanistan.

Toture and the "Slow Fuse"

I have no illusion that my most recent post will satisfy defenders of torture. The more honest ones, at least, acknowledge that the "ticking bomb" is most unlikely and merely serves as the thin end of the wedge. The basis view of torture proponents is that torture is necessary in some cases short of a true ticking bomb, and we should therefore legalize it so as to avoid elaborate subterfuges in which we do what is necessary while pretending not to.

Charles Krauthammer proposes, after presenting a ticking bomb case to prove sometimes torture is allowed, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you've established the principle, to paraphrase George Bernard Shaw, all that's left to haggle about is the price."

Former CIA agent Reuel Marc Gerech offers a more plausible scenario, "[S]uppose . . . soldiers capture members of Al Qaeda and their computers, and learn that the group has advanced plans for striking American and European targets, but we don’t know specifically where or when." Reuel's argument is that torture will be used in a case like that, whether we admit it or not, so we are better off legalizing torture so we can control it instead of outsourcing torture to an Arab ally.

Krauthammer proposes to allow torture without restraint in true "ticking bomb" emergencies. In case of "the slower-fuse high-level terrorist," he would allow a handful of trained specialists to use inhumane techniques with approval of the Cabinet or some sort of torture warrant. "The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained."

So, having admitted the thin end of the wedge by acknowledging necessity (in the legal sense) as an affirmative defense to torture, how do I respond to arguments like this? Essentially, by standing by the basic underlying principles of legal necessity.

Yes, it is possible to construct a hypothetical scenario that would justify torture. It is easier to develop a hypothetical to justify most other crimes such as breaking and entering (the cabin in a blizzard), arson (burning down a house to stop a forest fire), escape from prison (fire, flood, earthquake, death threats, etc), or theft (Katrina). Does that mean we should drop the concept of crime on principle and limit ourselves to haggling over the price? No, it merely means that necessity can be an affirmative defense to a wide range of crimes, including torture. But the threshold of necessity is a hell of a lot higher for torture than for anything else.

What about the argument that since torture is bound to happen in some cases, we should legalize it so we can at least regulate it? That argument gets made a lot in the cases of drugs, prostitution, pornography, gambling and the like. But please note that these are all "victimless" (or perhaps more accurately, self-victimizing) crimes. The bound-to-happen-anyway argument is not one that gets made in the case of crimes involving a victim. Yes, murder, rape, theft, vandalism, etc. are undoubtedly bound to happen despite the best that law enforcement can do. But that is no argument for legalizing any of them. Nor is it an acceptable argument in the case of torture.

Finally, and most critically, what about the argument that torture is necessary? What about the "slower fuse," as Krauthammer calls it, the evidence of a terrorist plot, without quite enough information to thwart it? Yes, admittedly, torture becomes extremely tempting in cases like this. But the temptation must be resisted. If anything can justify torture, it is the legal principle of necessity: no other alternative exists. In this case, there are still alternatives. The bare fact that a terrorist plot has been partially compromised may be enough to persuade members to abandon it. The capture of leaders directing the plot behind the scenes may leave the terrorists in the field rudderless. And granting that these possibilities are nothing we would want to bet our safety on, once the government has partial information, there are any number of ways besides torture to shake the terrorist tree and see what fruit falls out.

Terrorist plans are fragile. When even partially discovered, they can be disrupted. Admittedly, terrorists are easier to thwart than defeat. It is better to capture a terrorist cell and put it out of action permanently than to thwart its plans and leave the terrorists free to fight another day. But then again, there is no guarantee that even with torture we would get enough detail to capture every conspirator.

People like Gerech and Krauthammer illustrate very plainly the temptations of torture. But these temptations must be resisted. The defense of necessity must be narrowly applied, lest it license general lawlessness. An absolute ban on torture, with necessity as an affirmative defense, just as it is with other crimes, and a lot of ingenuity in finding alternatives -- these are how we can defeat the terrorists without losing our soul.

The Things You Learn in Law School!

The standard challenge advocates of torture always offer to opponents is the ticking bomb scenario and hypotheticals like this: "If we had credible information regarding an ongoing al Qaeda plot to detonate a nuclear weapon in the continental United States, and we had just taken into custody an al Qaeda militant who was in a position to know where and when the attack was to occur but who was refusing to cooperate, are you saying we would need to let thousands of Americans die rather than harm a hair on the terrorist's head in an effort to extract the information that might save them?"

The standard answer from torture opponents from John McCain to Arne Langsetmo is that anyone on trial for torture in that extremely unlikely event can plead extenuating circumstances. This rarely satisfies torture proponents. They argue that such an answer is condoning law breaking, that it is much better to have a system of "torture warrants" so we can preserve the rule of law and maintain proper checks and balances.

Up until now, my best answer to that has always that (as Arne says) extreme hypotheticals make for bad law, that the law cannot foresee all possible contingencies, that the prospect of a ticking bomb is too remote to be worth writing into the law, that loopholes of that sort have a way of growing, and that I can think of no better check on the use of torture than the prospect of prosecution. But thanks to law school, I can now offer another answer. Condoning law breaking in extreme, highly unusual cases is not some radical departure from long-accepted principles of the rule of law. Rather, common law has long accepted necessity as an affirmative defense to any crime but homicide.

First to the matter of affirmative defense. As everyone knows, at common law, the defendant is presumed innocent unless proven guilty beyond reasonable doubt. This means that the law presumes the defendant did not commit the crime. In order to overcome this presumption, the prosecution must present evidence that the defendant did commit the crime, and must prove every element of the crime beyond reasonable doubt. A defendant who casts reasonable doubt on the evidence, or on any element of the crime, must be acquitted. In an affirmative defense, the defendant does not seriously dispute that he committed the crime, but rather argues that there was some justification (or excuse) for his actions that the law does not presume. The defendant may argue that he was insane, that he acted in self defense, that he was coerced, that he acted out of necessity, and so forth. Once it is proven that the defendant committed the crime, the law does not presume any of these affirmative defenses. Rather, the defendant must present evidence that the affirmative defenses are true. He may also be required to establish the truth of such a defense by a preponderance of the evidence (i.e., that it is more likely than not).

At common law, the elements of the necessity defense are (1) the defendant acted to prevent a significant evil, (2) the harm prevented was greater than the harm caused, and (3) there was no other alternative. The defense of necessity may be used in a wide range of situations. A fire fighter may destroy a house to prevent the spread of a wildfire. A lost hiker caught in a blizzard may break into a cabin. An inmate may escape a prison during fire or flood. A diabetic stranded in New Orleans during Katrina may steal insulin from a pharmacy. And so forth. The law does not try to foresee every possible scenario in which what would other wise be a crime could be justified by a severe enough necessity. Rather, it makes necessity a general defense and lets circumstances determine when it applies.

Thus a ticking bomb torturer may establish necessity by proving that (1) he acted to prevent a significant evil (the ubiquitous nuclear bomb over Los Angeles should rate), (2) the harm prevented was greater than the harm caused (any advocate of torture would assure you that was true), and (3) there was no other alternative. That last one can be tricky. The law, for instance, would excuse a Katrina looter stealing a life-saving drug in a medical emergency. It might be more skeptical of stealing food. After all, help was on the way, and you can live without eating for a few days. (A jury might be more sympathetic). So a torturer pleading necessity would have to meet the high hurdle of no other alternative. The law does not want to encourage otherwise criminal acts by making the defense of necessity too easy. The requirements are stringent, for torture as for any other crime, as they should be.

Our would-be torturer may run into a few other problems in pleading necessity. Traditionally, necessity has been accepted as a defense only when caused by the forces of nature, not by any man-made emergency. But that distinction is weakening. If necessity justifies destroying a house to prevent the spread of a fire, why should it matter whether the fire's origin was natural or arson? If an inmate may escape in case of fire or flood, why not death threats from other inmates, if the authorities will not protect him? I know of no case in which the defense of necessity has been applied to torture in a ticking bomb case, but the principles are the same. If necessity has not been used as a defense to torture maybe it is, after all, because such cases are extremely rare.

The other problem is that the defense of necessity may be denied by statute. Usually, this means that the legislature says that necessity shall not be a defense in a specific instance. It is my understanding that anti-torture laws have a generic no-excuses provision. Even so, a nuclear bomb in Los Angeles might overcome even a no-excuse clause.

In short, contrary to what torture advocates may imply, there is nothing new, radical, or dangerous about allowing necessity as an affirmative defense to a wide range of crimes. If necessity is difficult to establish, that is because we do not wish to encourage law breaking in any but the most dire circumstances. That should be especially so for a crime as heinous as torture.

Next: Why this post is unlikely to satisfy torture advocates.

One Final Riff on Obama (Before He is Sworn In)

Finally, let me make one last, unfair criticism of Obama before he has the opportunity to act. It is gratifying to hear that he intends to shut down GTMO, try or release the detainees, and launch an investigation of indefinite detention, torture, and "extraordinary rendition." But there is one more Bush Administration policy he has been notably silent on, the only one he voted in favor of, but one that led to practices so illegal the entire top echelon of the Justice Department was ready to resign. I refer, of course, to warrantless surveillance. Does Obama intend to investigate that as well?

Just a Quick Note

Just in case any reader out there is interested, McClatchy News has an excellent selection of primary documents on the US practice of torture here, including Supreme Court rulings, Bush Administration memos, and court martial evidence.

Why Did Democrats Yield on Telecom Immunity?

I worked to help the Democrats take control of Congress in 2006 with no illusions that they would pass any legislation to reign in George Bush. Such a things would clearly be impossible unless they had a veto-proof majority. I did hope, however, that they would at least block any further laws upholding executive abominations and expose the ones that had already taken place. My advice (and expectation) was that the Democrats should start with easy things like defense contractor abuse and corruption, then move into more controversial fields like warrantless wiretapping and manipulation of intelligence at the beginning of the Iraq War, and save the rights of detainees (i.e., torture and indefinite surveillance) for last.

I based this set of priorities on two things. First, public opinion seemed to be easier to mobilize over wiretapping (which could threaten the privacy of citizens) than over GTMO (which involved only non-citizens). Second, prior to the 2006 elections the Democrats actually had blocked a law authorizing warrantless surveillance, while acquiescing to a law effectively legalizing torture.

Well, my expectation/recommendation appears to have been wrong.

Congress has actually done quite well in exposing the use of torture and the high-level approval of such techniques. But they have failed to conduct any meaningful investigation of warrantless wiretapping, and have now caved and given the Bush Administration not only all the wiretap powers it wants, but retroactive immunity for telecoms to insure that Administration misdeeds are never revealed. The obvious question is, why.

To review, in August, 2007, Congress, led by Democrats, passed a bill granting vastly expanded powers of warrantless surveillance, but imposing a six-month sunset provision and not including telecom immunity. George Bush thanked them, but said he also wanted legislation making these powers permanent and granting retroactive immunity to telecoms. In February, 2008, with the increased powers set to expire, Bush made clear that he would veto any extension that did not include retroactive immunity. Congressional Democrats defied him and allowed the increased surveillance powers to expire. National security was not endangered, they explained, because all warrants granted under the expanded regime would remain in force for a year.

So why are the Democrats caving now, after making such a show of defiance earlier? Several explanations have been offered.

Congress is concerned about national security. While there was no emergency in February, in August expanded warrants will start expiring and place the country in danger, so legislation has to be in place before August. The trouble with this theory is that it does not explain telecom immunity. If national security truly requires expanded powers of surveillance, Congress could always pass an extension of the expanded powers into the next Administration, but without retroactive immunity. Then George Bush would be the one endangering the country if he vetoed such a law.

Democrats are afraid of being labeled as soft on terrorism. This explanation does not make a great deal of sense. All evidence is that the Democrats will have a landslide victory in Congress with the next election regardless of what they do. Nor does there appear to be a great groundswell of public opinion in favor of telecom immunity. Indeed, Democrat Bill Foster won the seat of former House Majority Leader Dennis Hastert while openly opposing such immunity, despite his Republican opponent's attempts to paint him as soft on terrorist. (Foster went on to vote against the current bill).

Conservative "Blue Dog" Democrats revolted, demanding telecom immunity, and the leadership went along to preserve party unity. This explanation would make a good deal more sense if it were not so obvious that the Democratic leadership favored telecom immunity from the start. It looks like an excuse.

Democrats expect to win Presidency in 2008 and are therefore promoting executive power. This may be so, but it does not explain why the Democratic leadership would be so eager to pass a bill saving the Republican President considerable embarrassment for past actions.

The Democratic leadership is eager to hush up what happened for fear their own complicity will be revealed. This is my own opinion. The most obvious objection is that the Democratic leadership was equally complicit in torture, yet Congressional hearings are revealing more and more about torture. The difference (I believe) is that a growing body of evidence about torture is being revealed regardless of what Congress does. The Supreme Court, human rights advocates, McClatchy News and others have revealed too many embarrassing details to be concealed. The best Congress can hope to do since torture is being exposed anyway is to jump on the bandwagon. The details of warrantless surveillance remain a mystery that the Democratic leadership in Congress would like to keep buried.

And then there is the question of why Obama went along. Obama now is in much the same position McCain has been in for most of the election, and John Kerry was in during the 2004 election. Caught between the base and independent voters, Obama, like McCain and Kerry before him, is trying to avoid doing anything that could be controversial. This means not taking a firm stand on anything and preferably not having any coherent position on any controversial issue. In short, the key to being elected our leader is to avoid exercising any leadership during the election campaign!

Wolf Continued, Steps One Through Three

Naomi Wolf's central argument in her book The End of America is that George Bush is adopting ten steps typical of dictatorships everywhere. Having previously addressed the general merits of her approach, I will now look at the ten steps individually.

Step 1, Invoke an Internal and an External Threat. That threat, Wolf comments, can be real. Certainly Al-Qaeda and 9/11 are real. But Bush has shameless exploited that threat to consolidate power in his own hands. Wolf describes fearmongering by Hitler (at length) and by Mussolini, Stalin and Pinochet (more briefly). But, once again, she would do better with a more systematic approach. Do all dictators fearmonger? Just particularly harsh ones? Or mostly ones consolidating power?

Step 2, Establish Secret Prisons. By "secret" prisons, Wolf means prisons beyond the reach of the law. Obviously, the Bush Administration is doing just that. It is has set up a prison system in Guantanamo deliberately intended as a law-free zone, where routine humanitarian standards, fair trials, or indeed, the requirement for any sort evidence or justification for detention do not exist. Worse still are the truly secret prisons, the "black sites" and "extraordinary renditions." Comparisons with prison conditions, torture and mock trials under real dictatorships here are prefectly appropriate. Of course, there have been only a few hundred people in GTMO and fewer still in the black sites. Some people might dismiss such abuses as small-scale compared to real dictatorships, or even to our own past failings, such as the internment of Japanese Americans during WWII. Wolf argues that such prisons will necessarily proliferate (her word is "metastasize") and expand to include US citizens.

Arguably, the metastasis has begun, and on large scale. The Bush Administration is now seeking to pander to nativist elements in the Republican Party by being as heavy-handed as possible with illegal immigrants. Workplace raids are sweeping up hundreds of illegal immigrants at a time, and sometimes legal immigrants along with them. Helicopters are being used in the raids, and whole areas blocked off for detentions. Children come home from school to find their parents gone, or else, in the name of preserving families, children (some of them citizens) are also detained. The scale is comparable the the WWII internment, but conditions are far worse. The sheer numbers overwhelm any meaningful sort of due process. No one pretends that terrorism or security are involved. European visitors are not treated as brutally, but they have experienced shorter-term arbitrary detentions for matters as trivial as overstaying a visa years ago or even no reason but an immigration officer's discretion.

But the firewall protecting citzens from unaccountable prisons remains (mostly) intact. And, as Wolf comments, most Americans ultimately do not care unless citizens are detained. On the one hand, this lack of concern for our egregious violations of human rights is appalling. On the other hand, Americans are essentially right that a country may commit all manner of atrocities against foreigners while remaining a democracy so long as the firewall protecting citizens is maintained. Thus far, with the exceptions of Hamdi and Padilla, it holds.

Step 3, Develop a Paramilitary Force. All dictatorships have a political police of some sort, one that fills neither the military role of foreign wars not the police role of fighting crime, but is used for political intimidation. A systematic account of the sorts of political police different dictatorships have had, showing how they differed and what they had in common, would be extremely useful here. It would give us a much clearer idea of what to look out for. Alas, Naomi Wolf does not offer any meaningful sort of comparisons here. Instead, she describes how Mussolini and Hitler used street thugs to intimidate the opposition in the process of gaining power. Dictatorships do, in fact, sometimes use street thugs to do their dirty work. Street thugs have the advantage of plausible deniability. But they have the disadvantage of not being well enough organized or disciplined for the dictatorship to control very well. Sooner or later, dictators need some sort of personal army or secret police ("dreaded" is the usual adjective) to do their dirty work. Wolf does not discuss this subject at all.

She does offer one useful guideline -- she warns against private armies that are not accountable to "the people." But what does it mean for an army or police force to be accountable to the people? Wolf does not go into detail, but the Founders were clear on this point. A private army was one created, funded and controlled solely by the executive without legislative oversight. An accountable army was one created, funded and regulated by the legislature, though under the command of the executive. Hamilton discusses the distinction at length in Federalist Paper #24, and Jefferson's grievance listed in the Declaration of Independence include, "He [George III] has kept among us, in times of peace, standing armies, without the consent of our legislatures."

So who would play the role of a secret police in George Bush's America? In the days of J. Edgar Hoover, the FBI played something approximating that role. When the extent of FBI abuses became know, Congress passed laws to reign the FBI in. Those laws appear so far to have been successful. Abuses have been documented, but the FBI has refused to take part in torture, and the head of the FBI was prepared to resign over warrantless surveillance. The FBI as a whole appears to be uncorrupted. The Army, to judge from resistence from the JAG Corps to Bush's kangaroo courts at Guantanamo, also appears generally uncorrupted. Clearly the Founders were right; proper legislative control is the difference between an accountable and an unaccountable army (or police).

So what paramilitary do we have outside legislative control? Wolf suggests defense contractors, such as Blackwater. Defense contractors work for private, for-profit companies and, as such, avoid the sort of legislative regulation that regular armies and police have. Indeed (as Wolf points out), defense contractors are trying to be exempt from any laws at all. As Americans they are exempt for Iraqi law; as residents of Iraq they are exempt from American law; as civilians they are exempt from the Uniform Code of Military Justice; and as a military body they cannot be civilly sued. But, like secret prisons, defense contractors operate overseas and, despite their use in New Orleans in the wake of Hurricane Katrina, I see no evidence that "Blackwater is coming home." Far from trying to create a secret police, the Bush Administration appears to be simply following their usual belief in privatization, and trying to increase the number of troops available in Iraq without resorting to a draft.

Thus far, it seems safe to say that the Bush Administration will not create a dictatorship precisely because they do not have a secret police, and no instrument short of that can be effective.

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.