A Lunatic Investigation....

Hey, I have an idea. You know how people always complain about "letting the lunatics run the asylum"? Well, what proof do you have that it would actually be all that bad? We're making rash assumptions based upon logic, common sense, law... but is that fair to lunatics? So here's what we do:

We create a commission, but we don't let psychiatrists, legal experts, or sane people lead the commission. If we did that, the lunatics might denounce it as a witch hunt. Instead we find and appoint prominent lunatics to head the commission. We can appoint some of the sane people and experts also, but as window dressing. We wouldn't want to demonstrate bias by letting them run the show or influence the panel's findings.

Sure, some sane people will complain about the heavy presence of lunatics on such a panel. But the alternative is no panel at all. Why? Because I said so. I mean, in fact, sane people, legislators, psychiatric experts could hold such a panel any time they wanted to, but shut up - I'm pontificating here. So when I say "surely any panel is better than where we’re headed: which is no investigation at all", don't question me.

And I'm confident that when the panel concludes its investigation it will issue a stinging repudiation of letting inmates run asylums that no one could lightly dismiss. And we can use that consensus in the future - because laws, the constitution, sound public policy... if the lunatics take over, they could all go out the window. If we form a consensus on these issues, and by that I mean letting the lunatics decide what we should do, we'll be better off when the lunatics once again rule! And the rest of the world will once again respect us!

Torture and Morality

Typical of his way of thinking, which is to say... poorly, Richard Cohen today argues that we can't prosecute Bush Administration officials for torture because we're all guilty.

"The past is a foreign country; they do things differently there." So goes an aphorism that needs to be applied to the current debate over whether those who authorized and used torture should be prosecuted. In the very different country called Sept. 11, 2001, the answer would be a resounding no.

Back then, a Post poll gave George W. Bush an approval rating of 92 percent, which meant that almost no one thought he was on the wrong course.

This shouldn't have to be explained, but then... it's Richard. No, the high approval rating for a President immediately after a moment of national crisis does not translate into equivalent approval for his policies, let alone each and every one of his policies. Nor could it. How smart do you have to be to recognize that Bush hadn't even stated his policies on torture on 9/11. He hadn't declared an intention to invade Iraq. It was Bush's bad policy choices (and their consequences) that caused his popularity to plummet.

What Cohen really means here is that after 9/11 he got climbed onto a "Bush can do no wrong to avenge this" bandwagon, and he saw nothing wrong with the use of torture to achieve Bush's objectives, stated and unstated. That's fine - he can put himself on the dock next to G.W. for his stupid, credulous, thoughtless acceptance of everything Bush did as being right. But please - leave the rest of us out of it.

At the same time, questions about the viability of torture were very much in the air. Alan Dershowitz was suggesting the creation of torture warrants -- permission from a court to, in effect, break some bones.

Dershowitz, mind you, was not in favor of torture but argued that if torture was going to be done, it was best that it be done legally.

Actually, I think the better argument is that Dershowitz is very much in favor of torture, but chooses to dance around the subject rather than approaching it honestly.

In a similar vein, the thoughtful Newsweek columnist Jonathan Alter mulled the legality, the morality and the efficacy of torture. In the end, Alter ruled it out -- although not sodium pentothal (truth serum) or offshoring terrorism suspects "to our less squeamish allies." In fact, the government was already sending suspects abroad to be interrogated.

So... an intellectually dishonest law school professor favored torture and a Newsweek columnist ended up endorsing extraordinary rendition... and this proves what, exactly? That when confronted with extraordinary circumstances, people like Dershowitz increase the volume of their calls for us to abandon our values, and people like Alter wonder if they're right? (While sheep like Cohen go, "Baaaaaah"?)

Around the same time, historian Jay Winik wrote about the usefulness of torture, how Philippine agents in 1995 got a certain Abdul Hakim Murad to reveal a plot to blow up 11 American airliners over the Pacific and send yet another plane, this one loaded with nerve gas, into CIA headquarters in Langley. After being beaten nearly to death, Murad was finally broken by the hollow threat to turn him over to Israel's Mossad.

The moral of this story being what? That the Mossad would have finished beating Murad to death, as opposed to beating him almost to death, and that fear caused him to reveal additional information? That the Bush Administration was correct to insist that nobody could possibly have conceived of a plan to crash airplanes into buildings? That if you torture somebody until they reveal a horrible terrorist plot, no matter how ludicrous, you will eventually get them to "confess" such a plot? Really... other than as an idea in Murad's mind, this notion of crashing a plane loaded with nerve gas into the CIA headquarters is supported by... what? There was a ton of documentary and physical evidence that Murad was planning to hijack and blow up airlines. Was there any to support this special new plot, or that any other person even knew of this supposed plot, learned of through the tactics Cohen approves?

According to journalists Marites Vitug and Glenda Gloria, authors of the book Under the Crescent Moon, agents hit him with a chair and long piece of wood when Murad did not talk. They forced water into his mouth, and crushed out lit cigarettes on his genitals. Murad's ribs were completely cracked. Agents were surprised that he survived.

To be clear, is Cohen in the Dershowitz, "Get a warrant before putting out your cigarettes on a prisoner's genitals" camp, or is he in the Alter "Send the prisoner to a foreign nation where somebody else's steel toed boots can get dirty while kicking in his rib cage" camp? If we're going to pretend Murad was a "ticking time bomb", what actionable evidence was obtained through his torture that prevented the fanciful "CIA nerve gas attack" from being carried out? And if we're not pretending that he was a "ticking time bomb", such that his torture did not provide us any information or evidence useful in preventing a future attack, let alone an imminent attack on Langley, what's Cohen's point?

Cohen continues with his insipid analysis:

The Philippine example was widely mentioned at the time, even by those who opposed the use of torture. The conventional wisdom that torture never works - so counterintuitive as to be an absurdity - was not yet doctrine.

No, Richard. The argument isn't that "torture never works". The argument is that evidence obtained through torture is not reliable. For example, I take Cohen prisoner, and he denies his association with al-Qaeda. After a few rounds of torture, he finally admits his affiliation. So now I ask him to identify his contacts. He denies having any contacts, or claims not to know their names. A few rounds of torture later, I have names. But none of that information is reliable.

Frankly, as a torturer, I probably don't care. If I let Richard Cohen live, return him to the streets hobbled, covered with cigarette burns, he serves first as a message of my ruthlessness - this is what I do do people who challenge state power. If Cohen's lucky it ends there. If not, he's treated as an informant - he wouldn't have been released, after all, had he not talked. Maybe I even put out the word that he talked, and my agents watch to see who takes revenge - that's actionable intelligence. Or I can whisper to the next person I pick up, "If you give me the information I want, right now, I can let you go and nobody will ever have to know you were in custody. (Or you can end up like Cohen.)" That could be true. It's more likely a lie, but it may scare some information out of the guy before the torture sessions begin.

Whatever information I get, I can act on it. I can pick up the friends Cohen named and start round two with them. Their confessions, with or without torture, will either confirm or refute Cohen's. It doesn't matter. Then round three, round four.... After I torture enough people, I'll have enough confirming information to have a pretty good idea of whether Cohen gave me real names. If he didn't and he's still alive, whether he's in custody or has to be picked up yet again, I can torture Cohen to find out why he lied. By that time I may think that Cohen was wrongly accused in the first place but, no matter. He lied during an official investigation, and that's a crime in and of itself. Besides, we're back to sending a message - and what message would an apology send?

Torture is very intimidating to dissidents - perhaps Cohen is too obtuse to have noticed that particular use of torture by oppressive regimes, but I'm sure they'll confirm that it "works". Also, if you're intent on getting information at any cost and are willing to act on the information you obtain no matter how dubious it may be, torture gets you lots of information you can act upon, usually faster and in much greater volume than would interrogation. Who's arguing that would be ineffective? The debate is over the measure you use for "effectiveness", and... silly things like American values and morality.

At the same time, we have to be respectful of those who were in that Sept. 11 frame of mind, who thought they were saving lives - and maybe were - and who, in any case, were doing what the nation and its leaders wanted. It is imperative that our intelligence agents not have to fear that a sincere effort will result in their being hauled before some congressional committee or a grand jury. We want the finest people in these jobs - not time-stampers who take no chances.

When we had the finest people in those jobs, we didn't need or use torture. When we had immoral, stupid, sociopathic people in those jobs, we got Abu Ghraib. There's a term that I've heard used for people who claim, "I was only following orders," when their on-the-job atrocities are challenged. Do you know that term, Richard?

The best suggestion for how to proceed comes from David Cole of Georgetown Law School. Writing in the Jan. 15 New York Review of Books, he proposed that either the president or Congress appoint a blue-ribbon commission, arm it with subpoena power, and turn it loose to find out what went wrong, what (if anything) went right and to report not only to Congress but to us.

"If anything"? Richard doesn't see any tension between his implication that nothing went right under Bush, and his blind endorsement of everything Bush did post-9/11?

We were the ones, remember, who just wanted to be kept safe.

It's quite reasonable for the citizens of a nation to ask that their government protect them from foreign enemies. That's part of the government's job. It's quite another for the government, or hacks like Richard Cohen, to read into that, "At all costs." Unlike Cohen, some of us were never ready to surrender our core values. But then, perhaps Cohen never had any.

Save Us From the Speechwriters

First it was David Frum, not a stupid man but one predisposed to fatuous assertions; next Michael Gerson, the nation's dumbest syndicated columnist. Now erupting, from deep within the bowels of the White House... Marc A. Thiessen.

When President Bush left office on Tuesday, America marked 2,688 days without a terrorist attack on its soil.

Except for anthrax. And the Beltway sniper (close enough to terrorism to test "homeland security", even if without a political objective). And, although certainly not a terrorist attack, the colossal screw-up after Katrina that let the nation know that, for years after 9/11, Bush and his administration were completely incompetent to handle any large-scale disaster on U.S. soil. And if we're counting days, the amount of time between the first attack on the World Trade Center and the end of Clinton's term was even greater, with no subsequent anthrax attacks to conveniently overlook.

Thiessen's goal here seems to be to defend Bush's record of torture, disregard of the Constitution, and indefinite confinement of suspects without charges or recourse to the courts. It's one of those arguments where Bush's adherents wish to be taken on faith. Khalid Sheik Mohammed refused to talk until he was tortured, and the information gathered was so valuable that only Bush and those with top security clearances, like... his speechwriters have been trusted with the intimate details. But it allowed the government to claim to have prevented terrorist attacks that may have been planned for U.S. soil, and a few of those directed at overseas targets, so, you know, shred the Constitution and all hail Bush. And shame on Obama for describing torture for what it is.

It's astonishing that Bush's defenders are so quick to defend the use of torture, but so scared of the word itself. Have they no courage in their convictions? No, that qualification isn't needed. Have they no courage?

President Obama has inherited a set of tools that successfully protected the country for 2,688 days - and he cannot dismantle those tools without risking catastrophic consequences.

You know, it's like potato chips. You hold a guy without charges or access to the courts, torture him, make sensational claims about what you supposedly learned through torture (but refuse to substantiate them)... and how can you possibly stop at just one? C'mon Obama - taste the forbidden fruit. You'll like it....

On Tuesday, George W. Bush told a cheering crowd in Midland, Tex., that his administration had left office without another terrorist attack. When Barack Obama returns to Chicago at the end of his time in office, will he be able to say the same?

Again, that's a claim Clinton could have made - more honestly. But that's not the point, is it. Thiessen wants to set a stage where any further attack on the U.S. vindicates Bush and redeems his miserable record. From his tone, it almost sounds like Thiessen is hoping for an attack, just so he can snivel, "I told you so." Even though it would vindicate nothing in his argument and, quite possibly, reflect and result from the failure of the Bush Administration's policies.

In 2007, President Bush revealed intelligence that Osama bin Laden had told al-Qaeda leaders in Iraq to form a cell to conduct attacks inside the United States - then the surge drove them from their havens and set back those plans.

In 2004, President Bush (via Condoleezza Rice) revealed that in 2001 they sat on intelligence that Osama bin Laden was determined to attack targets within the United States. I wish he'd taken that, you know, 1% as seriously as the notion that a planned terrorist cell ostensibly to be based in U.S. occupied Iraq had similar intentions.

Bush Didn't Make Any Mistakes, But Obama Should Learn From Them

As part of his continuing series of columns in which he demonstrates his eagerness to be invited to Bush's new Dallas home for supper, Michael Gerson shares more thoughts on the incoming Obama Administration.

Part of the appearance of security is rooted in seven years without additional terrorist attacks in America - itself a triumph against violence. It is difficult for a leader to take credit for a negative achievement - for the absence of failure. But here credit is due.

Apparently we're talking about international terrorism, in which case the seven years Gerson sees as warranting credit to Bush represent almost as much time as the eight year period between the first and second attacks on the World Trade Center. Gerson's correct that the passage of seven years doesn't justify complacency, but so far Bush's track record isn't better than Clinton's. If a terrorist attack were to occur in 2009, is Gerson more likely to pen a column describing the failure of Bush's policies, or to accuse Obama of taking his eye off the ball? As if Obama had warnings from the outgoing administration about the threat of al-Qaeda, and a memo on his desk declaring that they intended to attack within the United States, but focused on other priorities?

But there's another way to look at this: After supposedly ramping up to deal with large-scale terrorist attacks, the consequence of which could mirror the effects of a natural disaster, how did the Bush Administration perform? If anything should move us away from complacency, it's that track record.

Gerson sees the Congressionally approved tools used to combat terrorism as non-controversial, but finds room to learn from Bush's excesses:

Yet some methods designed for exceptional cases, such as waterboarding, were ethically disturbing and eventually counterproductive - causing self-inflicted ideological wounds in a largely ideological struggle.

I had almost forgotten that torturing people is "ethically disturbing". It's good to have a "compassionate Christian" around to remind us of that.

And there is little doubt that some administration claims of executive power invited a judicial backlash and undermined the power of future presidents.

Others might argue that the level of judicial deference to Bush is more problematic than the few cases that went against him. Gerson's right that future Presidents will have to remember that their office has limits, and those limits will at times be enforced by the courts. But he's confused about the source of those limits, as they in fact arise from a document the President is sworn to uphold, the Constitution. Gerson continues to explain the consequence of Bush's extra-constitutional actions:

If the administration had sought congressional backing for military commissions in 2001, and later for rules to hold combatants, the resulting legal framework would probably have been upheld by the courts - and would probably have been closer to administration goals than the eventual result.

So had Bush respected the Constitution and separation of powers, and acted accordingly, there would have been less litigation and the outcome would have been closer to what he wanted? That's the consequence Gerson sees from a "judicial backlash [that] undermined the power of future presidents"? The horror!

Gerson is apparently concerned that "enhanced" forms of interrogation won't be available to the CIA:

Or should the CIA be allowed to employ still-classified "enhanced" techniques short of torture? During his campaign, Obama promised the universal application of the Defense Department approach - but that is easier for a candidate than a president to pledge.

Sure, and Obama will have access to classified information that will help him make that assessment. But if we look at the interrogation techniques that worked in finding and killing Abu Musab al-Zarqawi, not only was torture unnecessary, by all appearances it would have been counter-productive. If one is needed, the fact that the result of the investigation was a bombing run intended to kill al-Zarqawi is a reminder that warfare carries a very different set of ethical balances than peace. But it's one thing when you are forced to make tough decisions that challenge your values due to the realities of war, and quite another to repeatedly make ethical concessions out of loyalty to a particular politician or administration without examining the reasoning behind those policies or considering their efficacy.

The hardest issues concern detained terrorists. Guantanamo will and should be closed as a public diplomacy nightmare. Perhaps half of the detainees will be sent home, leaving about 100 exceptionally dangerous men.

Well, so far that doesn't sound very hard. Why, though, do we still have 250 detainees at Guantanamo if it's so easy to sort out the "really bad ones" from the rest, and to send the others home?

The Obama administration will need to decide on a format for trials - much improved but politically discredited military commissions, ordinary civilian courts or some kind of national security courts created by Congress and supervised by the federal judiciary.

But the administration will not be able to try everyone. Some detainees will be too dangerous to release but too difficult to convict in a normal court setting using unclassified evidence. And any president will need the ability to hold and question newly captured terrorists outside the procedures designed for American criminals.

The reality is that you're unlikely to find any of that 100 who cannot be convicted and sentenced to life in prison based upon less sensational charges that don't require public disclosure of classified evidence or investigative technique. Remember John Walker Lindh, who if convicted at trial could have received up to three life sentences plus an additional 90 years in prison? There are many charges that can be brought against those defendants that will prevent them from ever again stepping outside the walls of a federal prison.

But let's assume for a moment that there are a few whose trials would somehow require public disclosure of material that would undermine our continuing efforts to fight wars and combat terrorism. That no number of court orders or protective measures could allow a fair trial without disclosure of that information. What would Gerson suggest then?

Unless Obama returns to a simple exertion of executive authority, he will require congressional authorization to detain people.

So Gerson is suggesting that Obama can spare himself a lot of headaches and better protect the nation by eschewing Bush's unilateralism in favor of constitutional process?

And this will expose a major tension between the new president's military responsibilities and the views of supporters who believe that detainees should be held only in preparation for trial.

Assuming, in fact, it's necessary for Obama to request extraordinary power in relation to some of the detainees. But you know what? There aren't many Obama supporters who actually fit the description Gerson provides - there may not even be any. The vast majority of Obama's supporters have always acknowledged the reality of the situation. Extending habeas corpus rights to detainees held in U.S. prisons is not the same thing as saying "detainees should be held only in preparation for trial" - it relates to whether or not detention is justified. It's a check on abuses and the potential for abuses. You shouldn't have to be much of a student of history to understand why the Founding Fathers were sufficiently concerned about that potential that they inserted habeas corpus rights into the body of the Constitution.

Tails, You Lose

A while back I proposed,

If you wish to assert that something is not torture, you subject yourself to the technique at the hands of those who disagree. If, after a standard application of the technique, you continue to insist that the technique is not torture, you win! If you confess that it is torture, even if just to get things to stop, you lose.

Although my challenge likely fell far below his radar screen, other similar challenges did not - and Christopher Hitchens decided to prove the challengers wrong.

The "official lie" about waterboarding, Hitchens says, is that it "simulates the feeling of drowning". In fact, "you are drowning - or rather, being drowned".

He rehearses the intellectual arguments, both for ("It's nothing compared to what they do to us") and against ("It opens a door that can't be closed"). But the Hitch's thoroughly empirical conclusion is simple. As Vanity Fair's title puts it: "Believe me, it's torture."

I'm a bit surprised that it took the experience of being waterboarded for Hitchens to recognize something so obvious, and if he refreshes his memory on the history of waterboarding he will discover that this is one of the techniques we have historically complained about "them" doing to "us", and some of our ideas were taken from "them" (even though "they" used the same techniques on "us" to elicit false confessions), but I'll give him credit for being honest about his experience.

How long did it take between the start of the exercise and when Hitchens signaled "unbearable distress" causing the exercise to stop? Approximately 16 seconds. He relates,

Also, in case it’s of interest, I have since woken up trying to push the bedcovers off my face, and if I do anything that makes me short of breath I find myself clawing at the air with a horrible sensation of smothering and claustrophobia.

His realization,

Well, then, if waterboarding does not constitute torture, then there is no such thing as torture.

Almost in the next breath, he retreats from those words:

When contrasted to actual torture, waterboarding is more like foreplay. No thumbscrew, no pincers, no electrodes, no rack. Can one say this of those who have been captured by the tormentors and murderers of (say) Daniel Pearl? On this analysis, any call to indict the United States for torture is therefore a lame and diseased attempt to arrive at a moral equivalence between those who defend civilization and those who exploit its freedoms to hollow it out, and ultimately to bring it down. I myself do not trust anybody who does not clearly understand this viewpoint.

Hitchens continues, explaining why he still (now) comes down against waterboarding. But he seems to have forgotten another point of history - the forms of torture that don't leave marks were developed in no small part because they are as effective, or more effective, than those that do, by regimes that wanted plausible deniability when western groups challenged them as torturing political prisoners. Also, how much thought does it take to realize that torture that leaves you "unmarked and undamaged and indeed ready for another bout in quite a short time" is likely to be far more beneficial to your interrogator than torture that leaves you unresponsive or kills you.

Hitchens' voluntary sixteen seconds (and a second round of an undisclosed duration) gave him hints of post-traumatic stress disorder. What if he couldn't have called off the exercise - if he would have been waterboarded again and again until he disclosed whatever it was his interrogators sought to learn (whether or not he had that information)? Wait - let's ask Hitchens (from the video):

It would be bad enough if you did have something ... but what if you didn't have anything? What if they'd got the wrong guy? Then you would really, you'd be in danger of losing your mind very quickly, I think.

Because if it makes you lose your mind but doesn't leave a scar, it's not "real" torture?

That's An Awfully Big Word....

John Yoo, who could certainly tell us what the meaning of "is" is, has trouble with the word "implemented". He and David Addington, again demonstrating that the Bush Administration is overflowing with men who have no sense of honor, apparently decided that the best defense of their decisions and actions was to alternate between playing stupid and being petulant.

The American Conservative suggests the ten lessons we can draw from this painful bit of testimony.

"I Would Love To Answer That...."

"...But I don't have a brain."

Haynes knew he was in for some cruel and unusual treatment. He took a swig from his Diet Pepsi bottle, put on his reading glasses and announced: "I don't have a formal opening statement." He then read his formal opening statement, in which he defended all those things he couldn't remember doing by saying that "we all rightly fear another assault on our country, one perhaps even more horrific than the last."

He then rested his elbows on the witness table, revealing a big gold watch on his wrist, and allowed the amnesia to wash over him.

With the Bush Administration, unfortunately, who would expect anything else?