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In new memoir, Bush makes clear he approved use of waterboarding (R. Jeffrey Smith, WaPo, 11/3):

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

After headlining this story “But you know, what the hell” on Facebook, I got into an online discussion with a friend about it a couple of days later; his take was not quite a shrug, but something like it — more or less “nothing new here.”  To be clear: he didn’t approve of the torture at all, he just didn’t see what was newsworthy about the story.  And indeed, the Post story continued:

Bush previously had acknowledged endorsing what he described as the CIA’s “enhanced” interrogation techniques - a term meant to encompass irregular, coercive methods - after Justice Department officials and other top aides assured him they were legal. “I was a big supporter of waterboarding,” Vice President Richard B. Cheney acknowledged in a television interview in February.

My friend argued that for either Bush or Obama, “Expecting public self-critical analysis from these folks is like expecting Hulk Hogan to admit that pro wrestling is rigged.” I replied:

You mistake my point, which I expressed too obliquely. My point is “simply” that we appear to have Bush’s confession that he broke laws and international obligations against torture. His blustery confidence that he was right to do so is irrelevant; the point is that he confessed to doing so. Were this a country with a functioning legal system, this would prompt prosecutors to begin legal action.

My brevity was intended to convey: this is how to commit a crime and get away with it. First, commit the crime. Then, hide it as long as possible. Then, deny it was a crime. Then, deny what you did fit the definition of the crime. (”We do not torture,” he said repeatedly.)  Always, blur responsibility so that it was perhaps ‘bad apples’ who freelanced the crime. Then persuade your successor to take part in the coverup. Then write a book about it.  [...]

Bush’s contrition isn’t the issue to me, I couldn’t care less about that. Our betrayal of ourselves is.

My friend made the reasonable point that if the public can’t be bothered with Bush’s lies to get us into a war, the chances of its getting bothered about torture are even less.  Maybe so.  Yet while there is perhaps some question about a head of state of a sovereign nation tilting that nation to war, there are actual, specific statutes and treaty obligations against torture, and specific means to see that failing to meet those obligations is punished.  Somehow, torture seems so specific and wrong to me that it seems harder to evade responsibility. Though this war was not, war might sometimes be justified; torture can never be. At any rate, in his Nation article George W. Bush: Torturer-in-Chief, Georgetown law professor David Cole points out:

…Bush and Cheney are not immune. In fact, the United States is legally obligated by the Convention Against Torture, a treaty we helped draft, and have signed and ratified, to investigate any credible allegations of torture by a person within US jurisdiction. And if the United States does not take action, other nations are authorized to do so, under the principle of “universal jurisdiction,” which treats torture as so heinous that its perpetrators can be investigated and prosecuted by any country if their own country fails to take corrective action. [...]

…the principle of universal jurisdiction, combined with our government’s failure to take any steps toward accountability, means that Bush and Cheney can be investigated and prosecuted anywhere in the world. They may feel confident that President Obama will not have the temerity to hold them accountable, but it’s not clear they should be confident about the rest of the world. Two investigations of US complicity in torture are already pending in Spain, where Pinochet was initially investigated. And Poland has recently opened a criminal investigation of torture at a CIA “black site” there. Bush and Cheney may want to limit their vacations to the homeland for the foreseeable future.

To join my friend in realism — whether as a means of triaging doomed expectations or not, whether disillusioned or not — I don’t suppose that much will come of this, either. I don’t really expect Spain or Poland to indict Bush or Cheney, though I’d frankly cheer if they did; I imagine they’ll back down if confronted, though I’d support them not doing so.

It seems like all those of us appalled by all of this can say is ’shame.’ But maybe that isn’t just a matter of scolding or blushing; maybe shame means more than mere emotional discomfort. For starters, we obviously undo the reciprocal expectation that American soldiers can expect not to be mistreated by their captors.  But there are other results, less tangible, but maybe more influential.

Even if there aren’t formal consequences for systematic, high level US approval of torture (and failure to punish that), there will be informal, but powerful ones.  Public opinion around the world — among even our closer allies — is not going to be very teary-eyed about the accelerating loss of US prestige/dominance in the world.  That loss mainly has to do with economic decline — but we’ll have simultaneously, and I’m afraid rightly, lost respect and friendship as well. We’ll just be the crazy, nasty Uncle Sam in the attic, a near-rogue nation if not a full-fledged one.

That image will be all too well founded, and that will matter. As we get used to torture by the US, we will need to get used to its consequences as well.

The National Religious Campaign Against Torture (NRCAT) Action Fund has produced detailed Congressional vote scorecards of House and Senate incumbents’ “actions on major pieces of torture-related legislation in the 109th, 110th, and 111th Congresses,” from 2005 to 2010:

You can tell people how their vote will make a difference by writing a letter to the editor of your local newspaper that either thanks your incumbent Representative or Senator for his or her good votes to end torture – or takes him or her to task for failing to vote against torture. Get involved today - we’ve got suggestions and sample letters available.

I’ve reformatted the data to an online spreadsheet, visible to the right.  NRCAT compiled House votes on the Detainee Treatment Act (DTA), the Military Commissions Act (MCA), and bills about habeas corpus, Army Field Manual “golden rule” in interrogation, videotaping interrogations, and closing Guantanamo, as well as the House attempt to override Bush’s veto of the “golden rule” bill.

For the Senate, NRCAT also reviewed DTA, MCA, habeas corpus, and Guantanamo closure votes, as well as the Mukasey confirmation vote and a vote on establishing a commission to examine detainee treatment abuses.  Scores were computed as the sum of equally weighted positive votes to end torture and negative votes to tolerate it, divided by the greatest possible score for the Congressperson or Senator, expressed as a percentage.

Support these progressives:
Feingold, Sestak, Grayson,
Kilroy, Murphy, Clark, Lentz,
Trivedi, Pingree, Grijalva,
Doggett!!!

Naturally, I was interested in how “newsrack actblue” candidates or their opponents voted — and I’m very pleased to report that every single incumbent we’re supporting got a NRCAT score of 100. Moreover, two challengers — Tarryl Clark and Manan Trivedi — face Republican incumbents with extremely poor scores: Michele Bachmann (10) and Jim Gerlach (14) respectively.

NRCAT has also published questionnaire responses for selected Senate and House races. One of the Senate races was Wisconsin’s — and while Russ Feingold agreed with the NRCAT position on every count, Ron Johnson stayed true to form by… refusing to answer the questionnaire.

While it’s true that candidates have probably completed buying the air time they can purchase before the election, a Feingold staffer has emailed me that his campaign can still use funds to mount the best possible “get out the vote” (GOTV) drive they can. So if you haven’t donated, there’s still time, and now it’s even clearer that we’re supporting some outstanding candidates.

• Get FISA Right
• Takoma Park License Plate Scanner
• Material support

1. “Predator drones“:

As digby writes, “All presidents should probably make it a rule not to yuk it up over WMD and air attacks. It’s unnecessary.”

2. “Tase him!”

(also via digby)

After all, the kid ran on to a baseball field, which jeopardized… something or other. Anyway, TASE HIM!

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EDIT, 5/6: WMD link added.
UPDATE, 5/10: Credit where credit is due — the Washington Post editorial page weighs in against what happened in Philadelphia (”Police and Tasers“): “…[T]he Philadelphia police commissioner, Charles Ramsey, who reviewed video of the incident, said his officer had acted within department guidelines. That’s the problem. While Tasers have been useful in protecting officers from dangerous and out-of-control suspects, in too many police agencies the policy on using them is so loosely defined that officers can fire the weapons more or less when they feel like it.”

Last Sunday, conservative and former Bush speechwriter David Frum had the temerity to criticize Republican strategy in the wake of the health care and insurance reforms passed on Sunday.

Last Tuesday, the Wall Street Journal lashed out at him, claiming he “now makes his living as the media’s go-to basher of fellow Republicans, which is a stock Beltway role.”

Last Wednesday, David Frum was forced out of his position at the American Enterprise Institute.  Like others, I had a good time with the news, suggesting a paragraph on the AEI “About Us” page be rewritten as

“The Institute’s community of scholars is committed to expanding liberty, increasing individual opportunity, and strengthening free enterprise. AEI pursues these unchanging ideals through independent thinking, open debate, reasoned argument, and by firing anyone who disagrees with us.”

Scott Horton, in What Frum’s Firing Tells Us About Politics Today, writes that event

…tells us a good deal about AEI and the current dynamics within the Republican camp. In today’s AEI, policy experts aren’t there to do analysis and give advice—they’re there to serve as made-to-order propagandists. Differing views are not wanted.

And that’s true.  But what’s also interesting is how little Frum’s views differed from a Republican Party’s of not so terribly long ago, and how embarrassing they could and should have been for Sunday’s victors, not its vanquished.  For the centerpiece of what Frum wrote was this (emphasis added):

“This time, when we went for all the marbles, we ended with none.  Could a deal have been reached? Who knows? But we do know that the gap between this plan and traditional Republican ideas is not very big.“

And it’s true — even Nancy Pelosi and liberal columnist E. J. Dionne tout the Republican antecedents of the current legislation, identifying its ancestors in Heritage Foundation proposals of the early 1990s, the 1996 Dole campaign, and of course (however much he now hates to admit it) Mitt Romney’s Massachusetts health care bill of 2006.  And they celebrate that.

—

Imagine two spotlights illuminating a stage, one with blue light, one with red; there’s some overlap, and a small bluish dog squats there, producing small bluish dog output.  To its right, a tethered Doberman gnaws on a couple of bloody bones, with older ones gnawed clean and abandoned stage left.  When the Doberman’s occasional snarls frighten the little blue dog, it invariably wags its tale and briefly assumes a submissive posture.

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On Tuesday evening I listened to a panel sponsored by the Bill of Rights Defense Committee (BORDC) titled “Understanding U.S. Torture and Executive Accountability,” and hosted by the Institute for Policy Studies.

The panelists
Shahid Buttar, BORDC; Jesselyn Radack, former
Department of Justice ethics attorney; Matthew
Alexander, former U.S Army interrogator.
Originally uploaded by Thomas Nephew

I knew the panelists — Shahid Buttar, Matthew Alexander, and Jesselyn Radack — would be interesting, having read about them or read their own writing as I’ve followed these issues.  But what also interested me was one short sentence at the end of the e-mail:“The speakers will present concrete action opportunities to promote torture accountability, with a discussion to follow.”

Here is what they said.

“File bar complaints” - Jesselyn Radack
Jesselyn Radack, a former Department of Justice ethics attorney, blew the whistle on Department of Justice efforts to conceal her objections and counsel concerning the improper use of evidence gained in interrogations of “American Taliban” John Walker Lindh — and has paid for it with a long legal battle and placement on the no-fly list.*

Scott Horton’s recent Harper’s Magazine interview with her,  Justice’s Vendetta Against a Whistleblower: Six Questions for Jesselyn Radack, is a useful starting point for catching up with the story. As Radack points out there, her experience couldn’t be a starker contrast with that of Yoo and Bybee’s clean getaway from accountability for real wrongdoing:“I am now the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a terrorism case–and my advice was to permit an American terrorism suspect to have counsel.”

Noting that “you don’t have to be a lawyer to file a bar complaint,” Ms. Radack hoped that would happen to John Yoo, Jay Bybee, and other lawyers implicated in authorizing torture. She clarified a question I had by saying you don’t have to live in the state where, say, John Yoo is admitted to the bar (Pennsylvania, as it happens), to lodge a complaint with that state bar association.

“Practice tolerance” - Matthew Alexander
Matthew Alexander, a former Army interrogator, has written a number of articles and editorials over the past few years rebutting claims that torture is necessary or effective.  One of the latest ones I’m aware of is a devastating review in Slate of former Bush staffer and current torture apologist Marc Thiessen’s ironically titled book “Courting Disaster.”  One of the first was a 2008 op-ed for the Washington Post, “I’m Still Tortured by What I Saw in Iraq.”**
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Oh, say can you see by the dawn’s early light
at Camp No near the base where they’re helplessly screaming?
Whose broad stripes and bright stars now mock all human right,
O’er the TV we watched were so emptily streaming
And the talk shows that scare, the thugs who don’t care
gave proof of our fright and our morals so bare
Oh, say does that star-spangled banner yet wave
O’er a land no longer free and the home of the knave?

From Waterboarding For Dummies (Mark Benjamin, Salon.com, 3/9/2010):

Self-proclaimed waterboarding fan Dick Cheney called it a no-brainer in a 2006 radio interview: Terror suspects should get a “a dunk in the water.” But recently released internal documents reveal the controversial “enhanced interrogation” practice was far more brutal on detainees than Cheney’s description sounds, and was administered with meticulous cruelty.

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed” to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus. [...]

The CIA’s waterboarding regimen was so excruciating, the memos show, that agency officials found themselves grappling with an unexpected development: detainees simply gave up and tried to let themselves drown.

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NOTE, 03/15, at my father’s suggestion: I do intend to disturb and discomfort readers with this post, but I do not intend to impugn that vast majority of soldiers, veterans, and others who’ve served this country with honor. Nevertheless, it is as a human being, a citizen, and in fact a patriot that I believe the practice and acceptance of torture — past or present — raises unavoidable questions about what our country now stands for, and therefore what its symbols now stand for. It does not detract from honorable service at all — rather the opposite — to say that this country was better than what some of its leaders have made of it, and that I hope it will be again someday.

Click the image to
place an order for
this book with
Powell’s Books.

This post announces an ambitious and possibly quixotic effort — the attempt of a legal layperson like myself to launch and carry on a discussion about Benjamin Wittes’ “Law and the Long War: The Future of Justice in the Age of Terror,” published in 2008.

Luckily, I’ll be joined in this discussion by my friend “The Talking Dog,” whose legal acumen and training — as well as self-deprecating wit and engaging writing — are always in evidence at his blog of the same name.  “TD’s” interviews of lawyers, policy makers, human rights leaders (most recently with NYU’s Karen Greenberg), and even Guantanamo detainees have been genuine journalism, and are among the finest things the American blogosphere has produced.

Our plan is to take the book chapter by chapter, at no precise schedule other than to take the chapters in sequence.  We hope readers will check Wittes’ book out from the library, borrow it from a friend, or buy a copy for themselves, so they can read along with us and join the discussions we hope for.

We’ve tentatively decided to divide the chapters up as follows:

Announcements - here at newsrackblog and the talking dog
Introduction - discussions at both newsrackblog and the talking dog
Chapter 1.  The Law of September 10 - discussion here at newsrackblog
Chapter 2.  The Administration’s Response - discussion at talking dog
Chapter 3.  The Real Guantanamo - discussion at the talking dog
Chapter 4.  The Necessity and Impossibility of Judicial Review - discussion here at newsrackblog
Chapter 5.  The Case for Congress - discussion here at newsrackblog
Chapter 6.  The Twin Problems of Detention and Trial - discussion at the talking dog
Chapter 7.  An Honest Interrogation Law - discussion at the talking dog
Chapter 8.  Surveillance Law for a New Century - discussion here at newsrackblog
Conclusion - discussions both at newsrackblog and the talking dog

To leave some time for readers to join in (and for me, at least, to gather my thoughts), our first posts about Wittes’ introduction will be sometime around the middle of next week.  At this blog, this post will serve as one “home page” for the overall effort, and the outline above will link to each post as it is written.  We’ll also try to provide “prior chapter” and “next chapter” and other useful navigational links within each post, time permitting.

===

Why is this worth doing?  I’m tempted to simply answer: what could be more important?  Whether it’s always clear or not, our lives and our rights are both at risk.  We have to evaluate those risks, and decide what to do about them.

For my part, though, this is also partly just an attempt to become more “fluent” in the legal underpinnings of the debates about the habeas corpus and other human rights of detainees, the costs and benefits of the expansion of executive powers,  and the conduct of international relations and military force in this so-called “long war” of ours.

There are also more immediate reasons to do so: Wittes and his book have proved quite influential, perhaps especially of late.  On its publication, the book merited extended discussion at numerous legal blogs, and gained respectful and often warm reviews in the popular media and the academic press.

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An occasional review of further developments in stuff I’ve written about before.

Practice to deceive, 04/22/08 — This was a post about how several key figures like John Yoo, Douglas Feith, David Addington, and William Haynes II used outright deceit to advance the torture policies they favored. I argued that

“In each case, the deception was needed in order to grease the skids for an immoral and criminal policy, by either sidestepping persons or offices with inconvenient integrity, or by pretending to agree with them even as the diametrically opposite decision was taken. In each case above the deception itself answers the question, “was the torture policy advocate acting in good faith?”

That, in turn, arguably speaks to a so-called “consciousness of guilt“, which can be proven by showing such deceptions and which is admissible circumstantial evidence in criminal trials.

The question may well be on Attorney General Eric Holder’s mind.  A number of reports over the weekend have suggested that Holder is seriously considering a special prosecutor, at least of those actors who overstepped even the loose legal limits imposed by the flawed Yoo/Bybee and Bradbury OLC memoranda.  The memo writers themselves shouldn’t rest easy quite yet, either.  At the “Daily Beast,” human rights legal expert Scott Horton writes,

As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.

(See also Marcy Wheeler’s comments here.)

It’s by no means clear (to put it mildly) that Holder will call for a special prosecutor; while he values the independence of the Justice Department, it can’t hurt to remind him you have his back if he bucks the likes of the West Wing Weasels (TM, but please use widely) David Axelrod and Rahm Emanuel on this.  Please avail yourselves of the opportunity to do so using the ACLU button to the right or the Holder “Yes We Can” button on the left.  You can also visit the “AfterDowningStreet” site linked by the orange “Torture is a war crime! Prosecute” button at the upper right; David Swanson is currently asking people to call or write the Justice Department at 202-514-2001 or AskDOJ@usdoj.gov.

Weymouth: What did I know and when did I know it?, 07/09/09 — Washington Post ombudsman Andrew Alexander had a lengthy post-mortem of the “pay to play” Post ’salon’ proposal in the Sunday, July 12 edition. Calling it an “ethical lapse of monumental proportions,”, Alexander found that early scapegoat and Post business exec Charles Pelton had in fact tried to sound out “questions about ethics [...] with both [CEO K. Weymouth and executive editor Marcus Brauchli] months ago.” For their part, the two seem to have believed that their underlings’ silence at a June 24 meeting signalled consent, when of course it merely signaled wanting to stay employed:

Several [newsroom employees] now say they didn’t speak up because they assumed top managers would eventually ensure that traditional ethics boundaries would not be breached. [...] Neither Weymouth nor Brauchli can recall anyone raising concerns, although both say they wish someone had. [...] In an interview, Brauchli said it was his responsibility to vet the concept and that it is “understandable” that no news managers at the meeting raised a caution. “When the publisher and the editor both appear to have signed off on an idea, I think it is perhaps true that a certain complacency sets in,” he said. For that reason, lower-level managers might be less inclined “to stand up and say: ‘Whoa, this is a bad idea.’ ”

Ya think? Alexander draws on interviews with Weymouth and Brauchli for the piece. Meanwhile, in “Veteran editors offer advice to the Post,” Northwestern media ethics professor Loren Ghiglione displays a keen eye for the main chance: “The board has audit, compensation and finance committees. Why not one focused on the company’s values and ethics, headed by an ethics prof?” Oh hell, why not.

On the irrelevance of “Balkinization in particular and the legal profession in general, 05/25/09 — In an irritated post I decried the growing irrelevance of the legal blog ‘Balkinization’ to ongoing, urgent issues such as torture, the abrogation of habeas corpus at Guantanamo and elsewhere, and other abuses of executive power — all matters that the blog had once been at the forefront of covering.

Of late, though, there have been a number of posts on precisely these subjects, including ones by Jack Balkin, (”The Inspector General’s Report and The Horse that is Already Out of the Barn Door“, “We believe that anyone suspected of war crimes should be thoroughly investigated“)  Sandy Levinson (”A further disappointment from the Obama Administration“, and newcomer Deborah Pearlstein (”Post-Acquittal Detention“).

While I don’t agree with all of what they have to say, I agree with a lot of it.  Regardless, it’s all worth reading — and it’s rarely wise to generalize too much along the lines of “the dog that didn’t bark” with blogs or the busy people who are taking time out to write them.  I shall meditate on my impatience.

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NOTES: links to my posts are highlighted in gray and dated. Washington Post item via Yglesias.

Word cloud of Obama’s speech, via Aziz
Poonawalla. Originally uploaded by abde,
used here by permission.

President Obama and former Vice Torturer Cheney gave much-anticipated speeches in Washington on Thursday. I tend to agree with critics who are a little weary of Obama’s trademark eloquent lip service to constitutional values and rule of law, while belittling those who actually insist on defending it as “finger pointers.” For me, Obama’s most telling lines were these:

…the recent debate has been obscured by two opposite and absolutist ends.

On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “anything goes.” Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants - provided that it is a President with whom they agree. Both sides may be sincere in their views, but neither side is right.

That first part sounds like a bit of payback for a reportedly testy meeting between Obama, high level staff, and leading civil liberties advocates in the White House on Wednesday, in which “one of the attendees warned the President he was letting George Bush’s policies become his own [...] Obama was not pleased by that characterization.” Thanks a bunch for using weasel words like “little allowance” and “almost never” while balancing off the ACLU, CCR, HRW, and HRF against a miscreant like Cheney — a tired “if they’re all mad at me, I’m doing something right” approach.  Yet it’s been groups like these — far more than Obama’s own party — who have been plinking away at U.S. government excesses these last 8 years; it’s an open question whether Obama would be president at all without their work.

Of course, Obama looks and sounds great compared to Cheney:

Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense, and political opponents as criminals. It’s hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration criminalize the policy decisions of its predecessors.

No, it’s hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration shrink from prosecuting the crimes of its predecessors for the sake of expediency.

Trouble is, Obama sees that as some kind of unseemly food fight:

I understand that it is no secret that there is a tendency in Washington to spend our time pointing fingers at one another. And our media culture feeds the impulses that lead to a good fight. Nothing will contribute more to that than an extended re-litigation of the last eight years. Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.

With that, here are some reactions from other respected writers in the blogosphere and among activists.

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