International Holocaust Day 2020

Today is International Holocaust Remembrance Day, which marks the anniversary of the liberation of Auschwitz. It's the 75th anniversary this year.

Fresh Air's episode for the occasion features two good older interviews: a 2005 one with Laurence Rees on his book, Auschwitz: A New History, and an 1988 interview with Holocaust survivor and author Elie Wiesel, who died in 2016. The PBS NewsHour segment, "The lessons of Auschwitz, 75 years after its liberation," features some survivors revisiting the camp and some striking memories. The United States Holocaust Memorial Museum website has an excellent primer on Auschwitz and other resources. (Going through the museum's permanent exhibit is a powerful experience.)

Although a solely historical post might be appropriate today, it feels more pressing to note current events. Hate crimes are on the rise in some areas, and the number of high-profile hate crimes in recent years is troubling. The Anti-Defamation League (ADL) tracks anti-Semitic incidents. The Southern Poverty Law Center has a more general "hatewatch" page, and both organizations maintain "hate maps." FBI statistics for 2019 hate crimes aren't available yet, but the website has information from1995 through 2018, and as CNN summarizes, the 2018 report "collected data from 110 fewer agencies" but "found that 7,120 hate crime incidents were reported by law enforcement agencies to the FBI in 2018, just 55 fewer than had been reported in 2017. Between 2016 and 2017, the FBI found a 17% increase in reported incidents." Besides raw numbers, though, it's the overall efforts to intimidate marginalized groups that's disturbing.

A New York Times article from earlier this month reports that:

The number of anti-Semitic hate crimes recorded by authorities in Los Angeles has now doubled, thanks in part to those changes. But the rising numbers also mirror a trend seen in cities across the United States. A coming report from the Center for the Study of Hate and Extremism at California State University, San Bernardino, shows that anti-Semitic hate crimes in New York, Los Angeles and Chicago — the nation’s three largest cities — are poised to hit an 18-year peak.

"It is something not seen in many years," said Brian Levin, the report’s lead author, referring to the fact that Jews in those three cities are now targeted as frequently as gay men and African-Americans in hate crimes. The report, which uses the most recent official police data, found that Jews in all three cities are being targeted at the highest numbers seen since 2001. . . .

"A substantial proportion of these hate crimes involve brutal physical attacks on Orthodox Jews who are easily identifiable,” Mr. Levin said. “Today anti-Semitism and ignorance about the Holocaust has simply become broadly acceptable, and that is reflected in the increasing number of assaults and a diversity of offenders, who now also tend to be older." . . .

[During Hanukkah], a man was charged with a hate crime in the stabbing of five Jews in Monsey, N.Y., at the home of a rabbi, and a gun battle at a kosher market in Jersey City, N.J., left three people inside the store and a police officer dead.

Added to that picture of bigotry, the Trump administration tried several times to institute a "Muslim ban," a measure with dangerous historical precedents, and finally succeeded in June 2018. The ACLU, which has a good collection of personal stories of living with the Muslim ban, reports that the Trump administration is seeking to expand the Muslim ban, but also that Speaker of House Nancy Pelosi is introducing a "NO BAN Act" to reverse the Trump measures. (Not that the current, Republican-controlled Senate will approve the bill.) It's also worth revisiting Josh Marshall's July 2016 piece, "A Propagator of Race Hatred and Violence," about Trump falsely, grotesquely claiming that American Muslims cheered the 9/11 attacks and the World Trade Center falling. As Marshall notes, "authoritarian figures require violence and disorder," and Trump has made other statements that are "the kind of wild racist incitement that puts whole societies in danger."

Meanwhile, at the Southern border, asylum seekers are held in appalling conditions. The America Academy of Pediatrics has repeatedly called for ending the family separation policy and for providing better care for the imprisoned children, and every firsthand report has been chilling. The conditions have been compared to theinfamous Andersonville prison camp during the Civil War and to concentration camps, by numerous people qualified to judge, including Holocaust survivors. The term itself is less important than the general dynamics; as one expert has explained:

"What's required is a little bit of demystification of it," says Waitman Wade Beorn, a Holocaust and genocide studies historian and a lecturer at the University of Virginia. "Things can be concentration camps without being Dachau or Auschwitz. Concentration camps in general have always been designed—at the most basic level—to separate one group of people from another group. Usually, because the majority group, or the creators of the camp, deem the people they're putting in it to be dangerous or undesirable in some way."

The awful conditions in the camps are not accidental. Trump has a long history of racism and started his campaign with a racist tirade against Mexicans. At least one of his staffers, Senior Policy Advisor Stephen Miller, is an extreme bigot and a driving force on Trump's immigration policies. As Adam Serwer has observed of the Trump administration as a whole, the cruelty is the point.

Finally, who can forget the "Unite the Right" rally of neo-Nazis and other white supremacists in Charlottesville, VA in August 2017, an alarming demonstration that lead to the murder of counterprotester Heather Heyer? Trump initially condemned the rally, but he just couldn't stick to that script, and a mere one day later, went on to claim that "there's blame on both sides" and "very fine people on both sides." Later indignant claims by Trump and his supporters that he wasn't calling neo-Nazis and other white supremacists "very fine people" were far from convincing.

Trump, his administration and his supporters are far from the only problem. The United States has never been free of bigotry – slavery, as well as the killing and displacement of Native Americans, are central to our history. Institutionalized, systemic bigotry persists even without conscious, active support. But it does feel as if some of the progress of the past several decades has been rolled back, or at least that what had been underground is now increasingly out in the open. Barack Obama and his family were subjected to an alarming amount of despicable, racist attacks. And whatever Trump and his team think of themselves, black Americans overwhelmingly view Trump as racist and white supremacists think Trump is one of their own.

Most acts of evil don't rise to the level of genocide. But genocide always has precursors, none of which are ever positive and none of which should ever go unchallenged. Some Holocaust comparisons are appropriate. Most importantly, there's never a bad time to oppose bigotry and cruelty.

Update:: The New York Times reports that the Trump administration has issued press credentials to:

TruNews, a website aimed at conservative Christians whose founder, a pastor named Rick Wiles, recently described Trump’s impeachment as "a Jew coup" planned by "a Jewish cabal." . . .

TruNews, which Wiles founded as an online radio program in 1999 called America’s Hope, has a history of spreading conspiracy theories and proclaiming an imminent apocalypse. It drew more scrutiny in November after Wiles, in an online video, accused Jews of orchestrating Trump’s impeachment.

"That’s the way Jews work," Wiles said. "They are deceivers. They plot, they lie, they do whatever they have to do to accomplish their political agenda. This ‘Impeach Trump’ movement is a Jew coup, and the American people better wake up to it really fast."

Wiles also warned his listeners that "when Jews take over a country, they kill millions of Christians."

Afterward, Rep. Ted Deutch of Florida and Elaine Luria of Virginia wrote to the White House asking why TruNews had been allowed to attend presidential events. They did not receive a response.

In contrast, the Trump administration has banned CNN in the past and Trump's state department has recently banned NPR, most likely in an act of petulant retaliation. Apparently, the Trump administration views those organizations as a threat, but nominally Christian, far-right, anti-Semitic groups are welcome.

Getting Over It

Dahlia Lithwick, who's written great pieces on the Supreme Court and legal matters for a long time, has penned a thoughtful, sobering piece called "Why I Haven’t Gone Back to SCOTUS Since Kavanaugh." It's worth reading in its entirely for her recap of the disgraceful confirmation process, the continuing, dreadful treatment of Christine Blasey Ford, and Lithwick's personal experiences. Lithwick takes aim at sexism and misogyny, but also delivers a more expansive critique of power and its abuses:

That is the problem with power: It incentivizes forgiveness and forgetting. It’s why the dozens of ethics complaints filed after the Kavanaugh hearings complaining about the judge’s behavior have been easily buried in a bottomless file of appeasement, on the grounds that he’s been seated and it’s too late. The problem with power is that there is no speaking truth to it when it holds all the cards. And now, given a lifetime appointment to a position that is checked by no one, Washington, the clerkship machinery, the cocktail party circuit, the elite academy all have a vested interest in getting over it and the public performance of getting over it. And a year perhaps seems a reasonable time stamp for that to begin.

The problem with power is that Brett Kavanaugh now has a monopoly on normalization, letting bygones be bygones, and turning the page. American women also have to decide whether to get over it or to invite more recriminations. That is, for those keeping track, the very definition of an abusive relationship. You stick around hoping that he’s changed, or that he didn’t mean it, or that if you don’t anger him again, maybe it’ll all be fine when the court hears the game-changing abortion appeal this year. . . .

It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normal, not OK, and not worth getting over.

The Beltway gang – or the Village, as Digby's sometimes called it – generally doesn't like accountability for their own, regardless of political party. The powerful rarely learn the error of their ways unless they are held to account. And when they're not held responsible, it also sends the message to other powerful people that they can get away with misdeeds as well. Even if no one served jail time for lying the U.S. into the Iraq War or the Bush administration's torture regime, at least we still could have a truth and reconciliation commission or something similar. But even that would go way too far for Beltway insiders like Peggy Noonan, who in 2009 said in reference to the torture regime:

Some things in life need to be mysterious. Sometimes you need to just keep walking. . . . It’s hard for me to look at a great nation issuing these documents and sending them out to the world and thinking, oh, much good will come of that.

Noonan, of course, was concerned with "good" coming to people in her social circle, of her class, not about justice for torture victims or all the other harm caused by the torture program. Nor was she concerned about ordinary U.S. citizens who might be bothered by abuses of power and might suffer the effects, later on if not immediately. She needn't have worried; no one was held accountable, and indeed no good came of it, if not the way she meant. Similarly, nothing good ultimately came of Gerald Ford pardoning Richard Nixon. Nothing good came of George H. W. Bush pardoning Iran-Contra conspirators. (So are they all, all honourable men.) Nothing good came of barely holding anyone responsible for the financial industry's malfeasance in creating the economic crash of 2008. Likewise, nothing good will come of the current human rights abuses on the border and grotesque and flagrant abuses of power by conservatives throughout government. This is not the time for politeness or gutless pleas for civility. A true "armistice" is impossible without remembrance, investigation and accountability.

(Cross-posted at Hullabaloo.)

Independence Day 2019

I'm afraid this is not a happy Independence Day. As several people have pointed out, we have tanks in DC and concentration camps on the nation's Southern border, both at the insistence of Donald Trump. The cruelty of the camps is the point; it's a feature, not a bug.

Most years for Independence Day, I post some videos, but this year, I thought I'd link a great poem I just discovered, "A New National Anthem," by Ada Limón. Follow the link for the full poem, but this may be my favorite section:

And what of the stanzas
we never sing, the third that mentions “no refuge
could save the hireling and the slave”? Perhaps
the truth is that every song of this country
has an unsung third stanza, something brutal
snaking underneath us as we blindly sing
the high notes with a beer sloshing in the stands
hoping our team wins.

It's a great piece and timely. Check out the rest.

For me, one of the best and most hopeful American traditions is the conscientious critique: MLK, Pete Seeger, Dorothea Dix, Susan B. Anthony, Frederick Douglass, Malcolm X, Cesar Chavez, Frances Perkins, and countless more. (Add Ada Limón to the list.) There's always room for improvement; we can treat each other more kindly and do better as a nation.

That idea dovetails with a 2006 piece by E.J. Dionne I've featured before, "A Dissident's Holiday." My favorite bit:

...The true genius of America has always been its capacity for self-correction. I'd assert that this is a better argument for patriotism than any effort to pretend that the Almighty has marked us as the world's first flawless nation.

One need only point to the uses that Abraham Lincoln and Martin Luther King Jr. made of the core ideas of the Declaration of Independence against slavery and racial injustice to show how the intellectual and moral traditions of the United States operate in favor of continuous reform.

There is, moreover, a distinguished national tradition in which dissident voices identify with the revolutionary aspirations of the republic's founders.

Dionne's views stand in sharp contrast with Trump's, who views Independence Day as an opportunity to play with tanks in the style of a Soviet May Day parade and invite adulation of himself. Donald Trump, like many other American conservatives, is an authoritarian. And he and his most ardent followers are cruel, gleeful bullies.

The conditions in the camps are horrible by design, because of bigotry and to maximize profits. At least the camps' grotesque reality is being increasing exposed, by visiting Democratic members of Congress, pediatricians and reporters, despite efforts to prevent the public from knowing what's really going on. We're seeing the ugliest attitudes in America, in a continuing dark tradition. But we're also seeing conscientious resistance and a push for reform. That impulse is always worth supporting and celebrating.

Guantánamo at Ten

This past Wednesday, 1/11/12, marks the ten-year anniversary of the first prisoners' arrival to Guantánamo Bay. The American facility at Guantánamo remains a shameful stain on our national honor. The facility itself isn't as important as what went on there – torture and abuse, and prisoners known to be innocent being held for years – and what's still going on there – the indefinite "detention" of individuals without charges.

Unsurprisingly, the ACLU has one of the best statements on this disgraceful milestone:

Ten years have passed since the first prisoner arrived in Guantánamo Bay, making it the longest-standing war prison in U.S. history. Almost 800 men have passed through Guantánamo’s cells. Today, 171 men remain. Fashioned as an “island outside the law” where terrorism suspects could be detained without process and interrogated without restraint, Guantánamo has been a catastrophic failure on every front. It is long past time for this shameful episode in American history to be brought to a close.

Guantánamo started with two false premises: that the men sent there were all terrorists picked up on the battlefield and that, as “unlawful enemy combatants,” they had no legal rights. In reality, a very small percentage of the prisoners were captured by U.S. forces; the vast majority were seized by Pakistani and Afghan militias, tribesmen, and officials, and sold to the United States for large bounties. On instructions from senior White House and Defense Department officials, the men received virtually no screening before being shipped thousands of miles to Guantánamo. The only “process” these prisoners received upon arrival in Guantánamo was coercive interrogation.

As documents secured by the ACLU demonstrate, Guantánamo became a perverse laboratory for brutal interrogation methods. Prisoners were subjected to beatings, sleep deprivation, stress positions, extreme temperatures and prolonged isolation. So inhumane was the interrogation regime that the FBI instructed agents not to participate. Within the Department of Defense, too, there were courageous objectors, but they were largely ignored.

Our nation continues to pay the price for those egregious errors. Torture is the principle reason for the astonishing fact that, more than ten years after 9/11, the alleged perpetrators of those attacks—though in U.S. custody for as many as nine years—have not been brought to justice. And it is the principle reason why federal courts were rejected in favor of military commissions with looser evidentiary standards. Even under this imbalanced system, only six Guantánamo prisoners have been convicted of crimes before a military commission. Only one prisoner has been tried in federal court, in a case that showed the strengths of our criminal justice system: after considering the evidence, the jury refused to rubber stamp the government’s case, convicting the defendant on the one charge it found justified, which still resulted in a life sentence. That case should have put to rest any unfounded fears that federal courts cannot conduct fair and safe trials for Guantánamo prisoners, just as they have in hundreds of other terrorism cases. Instead, fearmongerers spun the case as a defeat for national security. Bowing to pressure and unwilling to fight Congress’s subsequent attempts to ban the transfer of detainees to the United States for federal prosecution, the Obama administration restarted the discredited military commission trials.

The United States’ reputation as a defender of human rights has been profoundly diminished because of Guantánamo’s continued existence, damaging our ability to effect change on the world stage. Our allies have refused to share intelligence out of concern that it will be used in unfair military commissions, and will not extradite terrorism suspects if they will end up in military detention or face military trials. Perhaps most critically, military officials acknowledge that Guantánamo has been used for years as a recruiting tool by our enemies -- creating far more terrorists than it has ever held -- undermining rather than enhancing our security.

Each branch of government shares responsibility for the perpetuation of Guantánamo’s legacy...

Read the rest at the link. In his piece on this anniversary, Scott Horton makes many similar points, and adds:

The second underreported lesson of Gitmo relates to the poisonous effect of partisan politics. No one expected matters as deeply felt as 9/11 to remain entirely outside of partisan politics, but the idea of Gitmo was cast soon after the attack, amid a political campaign. Republicans made it an issue in the midterm elections of 2002, marketing it as a “robust” or “proactive” approach to defending the nation against terrorists. The message worked marvelously, scoring enormous gains for the G.O.P.

Unknown to most Americans, though, just before the fall vote, representatives of the CIA and FBI went to the White House to break the bad news: Gitmo had been filled not with dangerous Al Qaeda and Taliban leaders, but with a bunch of nobodies. Political considerations plainly dictated the response. The government would not review the prisoners’ cases or grant releases, we were told; instead, “the president has determined that they are all enemy combatants.” Not only did this approach deny facts later borne out in case reviews and habeas petitions, it aggressively demonized the Gitmo population in order to create a sort of political insurance policy.

The Bush Administration’s shameful response continues to distort the domestic political dialogue about Guantánamo, which amounts to an extended effort to avoid accountability for a series of stupid political mistakes. In the end, it has been effective domestic politics. But it has cost America enormously on the global stage, diminishing the country’s influence and degrading its moral image to an unprecedented degree. This, more than any other reason, is why Obama’s pledge to close Gitmo was fundamentally wise, and why Obama should be reminded of that pledge and pressed to bring it to fruition.

Lakhdar Boumediene was an innocent man held prisoner for seven and half years at Guantánamo without charges, and only released in 2009. He explains some of his ordeal in a New York Times op-ed, My Guantánamo Nightmare:

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again...

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget...

I will never forget sitting with the four other men in a squalid room at Guantánamo, listening over a fuzzy speaker as Judge Leon read his decision in a Washington courtroom. He implored the government not to appeal his ruling, because “seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” I was freed, at last, on May 15, 2009...

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice.

The ACLU has an audio podcast with Boumediene, as well as a video series , Voices From Guantánamo. Digby passes along Boumediene's appearance on Up (along with a reminder about a similar, disturbing case):

Visit msnbc.com for breaking news, world news, and news about the economy

Boumediene's words, "I still had faith in American justice," strike deeply, and remind me of the words of an abused Iraqi prisoner quoted in a previous post": "When you came to our country, we hoped law would return. We still have that hope."

If you would like take action, you can sign the ACLU petition to President Obama. You can also check your congressperson and senators' stances on the issue, and voice your opinion to them (including thanking them, if appropriate).

America's history has never been pure, nor has any nation's. But as E.J. Dionne put it in an Independence Day column back in 2006:

...The true genius of America has always been its capacity for self-correction. I'd assert that this is a better argument for patriotism than any effort to pretend that the Almighty has marked us as the world's first flawless nation.

One need only point to the uses that Abraham Lincoln and Martin Luther King Jr. made of the core ideas of the Declaration of Independence against slavery and racial injustice to show how the intellectual and moral traditions of the United States operate in favor of continuous reform.

There is, moreover, a distinguished national tradition in which dissident voices identify with the revolutionary aspirations of the republic's founders.

MLK Day is a good time to remember these things. Due process is one of the cornerstones of the civilization, not to be abandoned lightly, and not to be violated without consequences. Of all the human or civil rights, it perhaps the most basic and essential. It's heartening that other nations take American war crimes seriously (and perpetrators are scared to travel abroad), but it's shameful that America doesn't want to account for its sins itself. America's best tradition has been its commitment to improvement and better honoring its stated ideals. In this case, the necessary "improvement" is a reclaiming of principles we once held dear but our elected leaders have since abandoned.

(The ACLU has an excellent infographic on Guantánamo. Follow the link to see the whole thing.)

God Loves My Country

This is the band Balthrop, Alabama with "God Loves My Country," passed on by an old buddy. There are some other great songs that use this theme and tact, but given some of the saber-rattling, rabid spittle and abject stupidity out there - most recently about the Gaza flotilla - it seems pretty timely. Perhaps treating human beings like human beings might be a good start.

Malcolm Nance Challenges Torture Proponent Thiessen

Back in late April, Scott Horton interviewed Malcolm Nance. Nance, a former SERE instructor, has a new book out on Al Qaeda and the Middle East. His October 2007 piece, "Waterboarding is Torture... Period," is superb, and Nance later testified to Congress on torture and SERE training. Meanwhile, Marc Thiessen, a former speechwriter for Bush and Rumsfeld, is one of the most odious and prominent of torture apologists/proponents. Here's Horton's question and Nance's response on Thiessen:

5. You previously served as a master instructor in the SERE program, in which pilots were prepared, among other things, to endure waterboarding. The SERE training program, we later learned, was reverse engineered to produce “enhanced interrogation techniques” for the CIA. Recently a White House speechwriter named Marc Thiessen has played a vocal role in the campaign that the Cheneys have launched to justify the use of waterboarding. He insists that it absolutely is not torture, and he insists that it’s different from the technique used by the Khmer Rouge. Does Thiessen know what he’s talking about?

I spent twenty years in intelligence and four years in the SERE program waterboarding people before I ever opened my mouth on the subject. Marc Thiessen is a fool of the highest magnitude if he thinks he knows anything about waterboarding. His claims are based not on first-hand experience but on a classified briefing from people with an agenda of justifying what was done. That makes Thiessen into a court stenographer for war criminals rather than a person with any real claim of expertise. As for his claim about the relationship between Pol Pot–era waterboarding and what we have done derived from the SERE program, he’s wrong. Before I arrived at SERE, I went to S21 prison in Cambodia. Right next to the Wall of Skulls sits the exact waterboard platform that the SERE program copied for our own use in the training program. Remember, our goal was to prepare pilots for the techniques they might face if they fell into the hands of our enemies. I was waterboarded on arrival at SERE, and then as a senior staffer, I performed the technique or supervised it through hundreds of evolutions.

Thiessen’s central purpose is apparently to glorify the most extreme practices used by the CIA in the Bush era and to argue that each of these practices, including waterboarding, is vitally necessary to our national security–even though no president used them before, and it seems that President Bush himself halted many of these practices over Cheney’s objection. We have prosecuted and convicted men for using these techniques in the past, and we were right to do so.

This suggests to me that, while he may cite Thomas Aquinas, Thiessen has no sense of honor and no moral compass. I give him credit for his loyalty to the Cheneys, but he’s blind to their errors in judgment. The use of waterboarding and other torture techniques was a powerful recruitment tool for Al Qaeda; it spawned thousands of would-be suicide bombers. Thiessen claims that we gained “intelligence” by using these torture techniques. But this shows that he knows nothing about the intelligence process or how our enemy grows and sustains itself.

Thousands of American POWs died and suffered resisting torture practices that we have always called the tools of the enemy. The SERE program was designed to help them grapple with this inhumanity and retain their dignity in the face of it. Now Thiessen and his boss want us to embrace the tactics we used in that program–taken from the Russians, the Communist Chinese, the North Koreans, the North Vietnamese, the Khmer Rouge–as our own. He claims that these techniques are unpleasant but have no long-term physical or mental impact. Really? I challenge him to put up or shut up. I offer to put him through just one hour of the CIA enhanced interrogation techniques that were authorized in the Bush Administration’s OLC memos–including the CIA-approved variant of waterboarding. If at the end he still believes this is not torture, I’ll respect his viewpoint. But not until then. By the way, I can assure you that, within that hour, I’ll secure Thiessen’s written admission that waterboarding is torture and that his book is a pack of falsehoods. He’ll give me any statement I want in order to end the torture.

Thiessen's "evidence" that torture "works" and saved America is almost entirely hearsay from people in legal jeopardy for war crimes. He can't back it up. Some of his claims have been strongly challenged, and others have been outright debunked. Jane Mayer wrote a pretty authoritative debunk of many of Thiessen's claims. Matthew Alexander also challenged him. Dan Froomkin did so back in 2009 here and again here. (Dan Froomkin also took on defenses of torture from The Washington Post's Charles Krauthammer.) Thiessen simply doesn't look good when scrutinized by anyone with any independent knowledge or expertise.

Andrew Sullivan, whatever his other eccentricities, has been very good on the torture issue. He took on Thiessen on Catholic grounds in February. He also spotlighted one of Thiessen's central contortions back in April 2009 – Thiessen claims that America did not "torture" specific prisoners, but simultaneously acknowledges that Americans intentionally inflicted pain and suffering on these prisoners to make them talk. Thiessen's still making this claim, although he's not often confronted with the glaring contradiction of how intentionally inflicting pain is not torture. He's also claimed that somehow, the Geneva Conventions don't apply to certain prisoners, which is flatly false under Common Article 3, which outlines baseline treatment for all prisoners (including, shockingly, a ban on torture). Some of Thiessen's arguments are, like his manner, simply childish. (I previously posted on Thiessen's Daily Show appearance, and it will give you a pretty good survey of his favorite bullshit.)

Back in February, Andrew Sullivan noted that, shamefully, The Washington Post had hired Thiessen, and remarked that "If you ever believed for a minute that Dan [Froomkin] was fired for anything but challenging the Krauthammer line on torture, think again." I've said before that Thiessen strikes me as both a hack and a zealot, and an eager propagandist for his party and for torture. His tone is rabidly partisan (even in generic pieces), and his factual claims on torture have been significantly, even fatally, challenged. WaPo editor Fred Hiatt could have read Froomkin's pieces and others debunking Thiessen – and maybe he did – but he still hired the man. How? Why? It's a despicable abdication of both critical and moral judgment.

The torture-loving, tough guy wannabes like Thiessen are bad enough, but the actual culprits in the Bush administration he parrots should be forced to make their arguments under oath in court and back up their claims. As Nance says, put up or shut up. Thiessen's tone is as sanctimonious as his stance is monstrous, but his actual arguments are weak and disjointed, and wouldn't fare well under intense cross-examination. For instance, he's argued that (1) Americans intentionally inflicted pain and suffering on specific prisoners, (2) somehow that wasn't torture, and (3) it was legal to abuse them anyway. Even smarter torture apologists, such as David Rivkin and Lindsay Graham, eventually contradict themselves in some fashion. They're incoherent because their position is untenable. Put the actual culprits on the stand, and let them make their case, if they're able.

The torture gang hasn't been forced to account for themselves, but they haven't been silent in exchange for this leniency. It's been demoralizing to see that, if anything, advocacy for torture, abuse and the destruction of due process seem increasingly en vogue. We currently have various idiots and scumbags running around arguing that we need to do away with due process, and many of the same crew has argued that we should torture suspects like the Underwear Bomber. Like Thiessen, they know that torture and abuse "work" because... they saw it on 24 and Dick Cheney said so. That's it. That's really all they've got. And that's enough for them to commit a war crime. They're driven by fear and desire, not necessity, wisdom or expertise. Torture is immoral and illegal, but also endangers American troops abroad and undermines national security. The Obama administration made a grave mistake in not opening a full torture investigation, and ceded the national debate to people like Thiessen and the Cheney family. Meanwhile, while the conditions for some prisoners may have improved, the Obama administration's stance on human rights isn't looking much better, from the matter of Miranda rights to the black site at Bagram Air Field in Afghanistan. Foreign court cases and media investigations can help, but the real pressure for accountability will have to come from the American citizenry.

(I'm still woefully behind on my torture/human rights blogging, but hope to return to it this June. In any case, the folks I've linked above have dealt with Thiessen in detail quite thoroughly.)

Using Justice Against Us

I originally posted this piece on November 7th, 2008 over at the Campaign For America's Future. Obama had won the election, but Bush was still president. Some of the piece is necessarily dated, but I'm re-posting it here for a few reasons. The tiniest one is that CAF has changed their template, and now all block-quoted text is also italicized, which obscures italics used in the original post. The other reasons are fairly straightforward. With the release of the OPR Report (the Office of Professional Responsibility for the Justice Department), there's more focus again on John Yoo and the lawyers who worked to give legal cover for torture and other war crimes. (I'll be posting something on the OPR at some point.)

Meanwhile, in a truly dismaying spectacle, there are pundits and hacks running around casually endorsing torture. True to form, they've been completely ignoring all the experts who have explained why torture doesn't "work" for intel, ignoring what the Bush administration actually did, and certainly ignoring that torture is absolutely illegal and a war crime.

Many in the same crowd has been attacking the very notion of justice itself, with the most prominent being Liz Cheney. Some want military commissions rather than civilian trials for alleged terrorists, even though civilian trials are standard and probably more effective. Some do not want any trials whatsoever for anyone accused of being a terrorist. Without irony, they attack the very idea of a fair justice system as a threat to civilization.

Barack Obama didn't create the current mess at Guantánamo and other sites. However, denying due process to any prisoner is indefensible. Charge the guilty, put them on trial, and let the innocent go free. That situation is bad enough. However, the Cheneys and their allies are fighting to make it even worse.

Meanwhile, I noticed that torture apologist Andrew McCarthy - in addition to living up to his last name - is making some of the same weak and misleading arguments that John Yoo did back in December 2007. While I want to delve into McCarthy further, conservatives Orin Kerr and Conor Friedersdorf have done a fine job challenging many of McCarthy's arguments. But without further ado...
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Using Justice Against Us
(11/7/08)

Among the many decisions facing Barack Obama is what to do about the military prison at the Guantánamo Bay Naval Base, and the many prisoners held there for years, in most cases without trials or charges. On a larger scale, Obama and his team will be judging the Bush administration's very notions of justice, and the world will be watching.

Everything's gotten further entangled in recent months, thanks in part to the Bush administration. On the one hand, a judge ruled that seventeen Chinese prisoners should be released from Guantánamo after being held there for seven years without evidence being produced against them. However, not long ago, the D.C. Circuit Court ruled that the CIA can hide torture allegations. The Pentagon has dropped charges against some Guantánamo prisoners so they can reset the clock to avoid deadlines for bringing them to trial, all with the full intent of reinstating charges later. CIA officers could be put on trial for alleged torture of a British resident. Just yesterday, "a Justice Department lawyer... urged a federal judge to continue the detention of six Algerians at the U.S. military prison in Guantanamo Bay, contending they would "take up arms" and attack Americans if released." Their lawyers claim the men, who have been held for seven years, are innocent. That's not to mention all the issues of torture and general treatment, as well as the problems of a trial system Scott Horton's called "The Great Guantánamo Puppet Theater."

There are many more sorry tales, of course. Bush spoke last year about shutting down Guantánamo, but unsurprisingly, he's left it to be someone else's problem. And as David H. Schanzer writes:

Bush's decision represents a victory for Vice President Dick Cheney, who, according to reports, believes that keeping the prison open under a new administration would 'validate' Bush's detention policies. But there is no redeeming the detention and prosecution system at Guantánamo -- a system that has produced only two convictions in seven years, has been rebuked by the Supreme Court three times and has caused four military prosecutors to step down in disgust.

I don't see how the Cheney-Bush policies could be "validated," but regardless, the Obama administration will have to confront those policies and their consequences. To that end, I wanted to take a closer look at an older argument by John Yoo that I think epitomizes the Bush approach toward justice.

Yoo, of course, features heavily in accounts of the Bush administration's efforts to legalize torture, and he remains a prominent advocate for their Guantánamo trial system. On December 3rd, 2007, shortly before the Supreme Court heard arguments about Guantánamo and habeas corpus in Boumediene v. Bush, NPR ran arguments from Georgetown professor David Cole and (current Berkeley professor) John Yoo. Cole basically argued that everyone deserves a trial. Yoo argued something very different, employing some interesting rhetoric in the process. You can hear both statements here (it runs 5:22), but I've transcribed Yoo's argument:

Tomorrow, lawyers in the Supreme Court will demand that terrorists held at Guantanamo Bay get their day in federal court. Sounds reasonable. But granting terrorists this right would make for unprecedented judicial micromanagement of war. The writ of habeas corpus has never benefited enemy POWs in war, any war. In World War II, the U.S. held millions of POWs. None were allowed to use our civilian courts against us, except for the rare case of citizens who joined the Axis.

In 1950, twenty-one Nazi war criminals captured in China brought a suit, exactly like this one. They had passed intelligence to the Japanese, even after Germany had surrendered. Justice Robert Jackson, who'd been the Nuremberg prosecutor, wrote for the court that granting their plea would hamper the war effort and bring aid and comfort to the enemy. His words are just as true today.

We can't expect our soldiers in the field to worry about warrants, lawyers and Miranda. Making the military act like a police force will dull the sharp edge of their spears. Until September 10th, 2001, we tried to rely solely on law enforcement to stop terrorism. I don't want the military to hold POWs arbitrarily. I don't want to hold civilians. The Pentagon doesn't want to be the world's jailer. Detainees are screened and reviewed multiple times. Only those who present the highest threat or have the most intelligence are sent to Guantanamo Bay. More procedures will mean less resources and less information for fighting al-Qaeda.

This is not a case of reining in an out-of-control president. The September 11th bombings put us at war. Congress authorized hostilities a week later. But in 2006, for the first the time in our nation's history, the Supreme Court tried to grant review of POW cases. Congress immediately overturned them in the Military Commissions Act. No court has ever challenged the president and Congress during war time. But our judges have already declared abortion, race and religion off-limits from the democratic process. Allowing them to interfere in core military decisions would represent yet another grasp of power by an imperial judiciary. This time, though, it may come at a steep cost.

Yoo's argument can be dissected and challenged many different ways, but I'd argue it's overflowing with implicit assertions that are challengeable, misleading or false. To go in rough order, he suggests that: all Guantánamo prisoners are terrorists, they are all guilty, civilian courts are the wrong method to deal with them, the Nuremberg trials support Yoo's argument, soldiers on a battlefield have to issue warrants and read Miranda rights to enemy combatants, a law enforcement approach to terrorism is ineffective, such an approach allowed the 9/11 attacks, John Yoo wants justice, all Guantánamo prisoners have been reviewed, they are all dangerous, using existing trial systems would endanger the "war on terror," using existing trial systems would somehow "interfere with core military decisions," giving due process to prisoners will somehow lead to "less resources and less information," Bush is not out of control, this is all about 9/11, Bush, Congress and the will of the people are being thwarted by the Supreme Court, which is overreaching as they always do, but this time in unprecedented and dangerous fashion, and it is the Supreme Court, not the Bush administration, that is acting in an "imperial" manner and must be curtailed – or else horrible things may happen. Whew! Shorter version: We know what we're doing, these are really bad guys who deserve to be punished, and don't question us.

It would take a long time to rebut every point of Yoo's thoroughly, and that's a key element to his technique – throw out as many claims as he can, make an emotional appeal, and try to sell some key falsehoods without anybody noticing. It generally takes longer to rebut a misleading claim than to make one. Feel free to challenge any of my characterizations above, or to delve into a different line of Yoo's, but when I first heard his argument, the line that leapt out at me and that has stuck with me almost a year later is: "None were allowed to use our civilian courts against us."

Yoo's got a pretty flat delivery if you listen to the audio, but to my ear it sounds like he's trying to sound wounded here – what a horrible, horrible thing this is – but regardless, it's a bizarre argument. How can a process of justice possibly be used "against us"? Doesn't justice entail punishing the guilty and exonerating that innocent? How can that possibly be bad? Yoo says these men are terrorists. Does Yoo mean that civilian courts can't be trusted to find them as such, to keep them imprisoned, or perhaps execute them? Does Yoo mean these men don't deserve trials, because that would be too good for them? Does he mean civilian courts or the normal military judicial system can't be trusted to punish these (supposedly) evil men sufficiently? I think this last one is precisely what he's implying, but even the most charitable reading doesn't hold up well for Yoo, because of a key, false premise implicit throughout his entire argument. He uses the word "terrorists" twice in two sentences, and later on throws in Nazis and 9/11 for good measure. Yoo is claiming all these men are guilty. They have done or tried to do us harm. He wants us to accept these premises without question. His other points are largely a smokescreen compared to selling this.

Now if only there was a way to determine the guilt or innocence of these men. Hmm.

Yoo is trying to sell a bypassing of existing systems of justice here, or really justice altogether. It's similar to what Cheney, Addington, Libby, Feith and others did with manipulating intelligence to sell the Iraq War. The Bush administration has often followed this pattern, asserting that it is right, it is infallible, and don't question it. Most arguments that Bush officials or their advocates have made in defense of Guantánamo (indefinite imprisonment, not bringing charges, the treatment of prisoners, the special trial system) have depended on Yoo's stealth thesis, that everyone they've imprisoned is guilty. I also think Yoo and his colleagues are appealing to fear, a desire for vengeance, and in some cases, bigotry. It's an element that deserves its own post, but their basic pitch is: These prisoners are guilty, they're foreign, they speak a different language, and they don't look like Peggy Noonan. Who can tell them apart? And why should you care about what happens to them? They're the Evil Other, and they're scary.

I'm not going to delve into every other point of Yoo's, but there are a few others I find interesting. His last rush, talking about activist judges and "abortion, race and religion" is rather odd, intentionally vague, and almost nonsensical. It sounds like a pander to right-wing attitudes, but that breaks with the "I'm a reasonable guy" persona he's trying to sell earlier. Still, if taken seriously, is Yoo suggesting fundamental rights should be decided by majority rule? Even if we say that Yoo is somehow defending the 'will of the people,' it contradicts his strong advocacy of unlimited power for the president. Most infamously, he asserted that no treaty or law could prevent the president from crushing the testicles of a child. Meanwhile, the "Miranda" talking point remains as popular as it is ludicrous among many conservatives, and at best is a slippery slope argument. On the war time powers front, in Boumediene v. Bush the Supreme Court somehow disagreed with the Yoo point of view, instead reaffirming that habeas corpus is a fundamental right that can only be suspended in times of rebellion or invasion. Glenn Greenwald has also delved into this issue on many occasions.

It's also noteworthy that Yoo cites Robert Jackson and invokes Nuremberg. (The case he cites, Johnson v. Eisentrager, is here. An overview is here, and refers to "German nationals" and not Yoo's more charged "Nazi war criminals." The Germans, in China, had told the Japanese about U.S. troop movements in China after Germany had surrendered, committing a crime significantly different from what was being prosecuted at Nuremberg.) In actuality, as many observers have noted, the Guantánamo trial system is the antithesis of the Nuremberg trials. Yoo also glosses over the fact that the Germans he mentions actually received a trial, something denied most Guantánamo prisoners for years. Scott Horton put it well when discussing the Hamdan trial at Guantánamo:

The Bush Administration could have handled this matter in the tradition that the nation’s greatest modern attorney general, Robert Jackson, set out at Nuremberg. Jackson personally took charge of the first prosecutions, delivering mesmerizing opening and closing statements and a dramatic cascade of evidence that targeted some of the most heinous criminals from the Second World War. Jackson had two important objectives before he reached the question of the guilt or innocence of the individual defendants: he needed to validate the fairness of the process, and he needed to demonstrate, clearly and convincingly in the eyes of the world, that heinous crimes had been committed which justified this extraordinary tribunal process. Jackson accomplished both goals. He also secured the conviction of key kingpins in the Nazi terror state. He did it all within the first year of the Allied occupation of Germany, through a process that helped transform the German people from enemies to friends. In the end, Jackson and his team demonstrated that the American tradition of justice was a potent tool to be wielded against the nation’s enemies.

By contrast, America has now endured seven years of an administration which fears the rule of law, which operates in the shadows as it contravenes criminal statutes and long-cherished traditions and retaliates mercilessly against civil servants who stand for law and principle. George Bush and his political advisors openly castigate law and justice as weaknesses or vulnerabilities–as public suspicions grow that they have darker reasons to be concerned about the law. Instead of following the historic route and using military commissions that follow the nation’s long-standing traditions, they have crafted embarrassing kangaroo courts. When the Supreme Court brought its gavel down on one of their shameful contraptions, they simply concocted another, equally shameful one, openly proclaiming an inferior brand of justice for those who were “not citizens,” exalting in the right to use torture-extracted evidence and to transact the proceedings in secret.

Or, as Lance Mannion put it, "Nuremberg? Nuremberg? Weren't the torturers the ones on trial in that one?"

Wouldn't have legitimate trials of actual terrorists, years ago, helped the Bush administration's crediblity? No one has ever said that actual, proven terrorists should not be kept in prison. Instead, critics of Guantánamo have pushed for due process, transparency, and humane treatment. They have pushed for justice, in an American tradition that includes Jackson at Nuremberg, but runs far deeper. That push for justice over the past seven years has come from both liberals and rule-of-law conservatives such as former Navy General Counsel Alberto Mora and members of the JAG corps.

Yoo's premises, so central to the Bush administration's approach to justice, don't hold up well to scrutiny. They can be tested in terms of rhetoric and logic, they can be examined in terms of case law - and they can be challenged by reality. A McClatchy series on Guantánamo has shown that the U.S. imprisoned or still holds dozens or even hundreds of men who are innocent. Furthermore:

The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren't "the worst of the worst." From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there.

There are more well known cases, too, but claiming that all these men are guilty - and so should be denied due process – becomes indefensible when one knows of innocent people, and also knows that the Bush administration knows they are innocent. The Bush administration's support for indefinite imprisonment without charges and an "inferior brand of justice" for those who actually receive a trial seems to hinge more on the issue of torture - admitting coerced confessions as evidence, squelching torture allegations, and never admitting blame. It's a subject treated in far greater depth in books such as Torture Team, The Dark Side and Angler, documentaries such as Torturing Democracy and Taxi to the Dark Side, and on quite a few blogs (legal and otherwise). There's a question of whether John Yoo and some of his compatriots could be found guilty of war crimes. Seen in that light, it's not just that they continue to deny prisoners justice – they want to evade justice themselves.

The Guantánamo prison has long been some nightmare out of Orwell and Kafka. Men and women in power who fear justice are not likely to want to see it pursued. Perhaps when John Yoo said, "none were allowed to use our civilian courts against us," he didn't mean "us" as in "Americans," but rather "us" as in "me and my colleagues." The Obama administration will have plenty of messes to clean up, but this one can go far in restoring America's image in the world. It may in fact be one of the starkest contrasts an Obama administration can make, re-establishing the American tradition of humane treatment, due process and justice for all, in opposition to the perverse notion that some are infallible, unaccountable, and "more equal than others."

Equality in Maine

This is easily the coolest damn thing I've seen today. I lived in Maine for a few years, and while New England certainly has its busybodies, there's also a strong live-and-let-live contingent. This comes via DougJ at Balloon Juice, who writes, "Why does this hippie want to undermine the sanctity of marriage?"

Investigate, Disclose, Prosecute

With the CIA report on interrogations, prisoner abuses and torture released today, we're bound to see a new flurry of old arguments that the heavens shall fall if anyone dares to prosecute the perpetrators. A Washington Post op-ed today touches on these very issues, although the author is more nuanced and with a more narrow focus than many other WaPo writers on the subject. (I'd be shocked if we didn't get some raving torture apologists shortly.)

I'm not going to recap every argument (and re-use every link) in "Torture Versus Freedom" and other torture pieces here, but there needs to be a full investigation and disclosure of everything possible (the CIA report will help, but may have a more narrow focus). Prosecutions should certainly be brought where appropriate. Granting blanket immunity would be irresponsible before further facts are known, especially given what is already known. We do know over 100 prisoners were killed in detention, that abuse was widespread, and that abuses were the result of deliberate policies from the highest levels versus the work of a few "bad apples." Based on the timeline and narrative currently available, there are CIA agents – and more likely, government contractors – whose offenses were so grotesque they should investigated and probably prosecuted. However, the bigger issue is those higher up who made the decisions. That group would include Bush, Cheney, Rumsfeld, Addington, Yoo, Gonzales and others (Marcy Wheeler's "The 13 people who made torture possible" provides a splendid overview). It would be a travesty if, as with Abu Ghraib, the lower-level personnel got all the blame while the real culprits got away scot-free.

With all this in mind, I wanted to go through "CIA Accountability: 6 Reasons Not to Prosecute Interrogators." I'll go through the whole thing paragraph by paragraph, but it might be better to read the whole thing and form one's own impressions first. The author was general counsel for the CIA from 1995 to 1996.

CIA Accountability
6 Reasons Not to Prosecute Interrogators

By Jeffrey H. Smith
Monday, August 24, 2009

The CIA inspector general's report on "enhanced interrogation techniques," scheduled to be released today, is said to provide disturbing details about interrogations CIA officers conducted from 2002 to 2004. It will be painful reading. Although the Obama administration has banned the techniques, Attorney General Eric Holder is reportedly considering prosecuting some of the officers who conducted the interrogations.

We lost our bearings in the wake of the attacks of Sept. 11, 2001. The United States, long a leader in human rights and the law of war, adopted policies and practices that squandered our credibility. Over time, President George W. Bush recognized that and reversed some of those policies. In one of his first acts, President Obama went further and banned the enhanced techniques, closed the secret CIA prisons and pledged to close the prison at Guantanamo Bay.

I'm not sure how accurate it is that 9/11 caused a madness that lead to abuses. Meanwhile, Bush "recognized" legal jeopardy more than the obvious immorality and inefficacy of torture and other abuses. "Madness" is probably the best defense, but as I've written before, the timeline doesn't really support a good faith defense (more on this later). The attacks on 9/11 didn't change the thinking of the neocons, imperialists, monarchists and authoritarians inside the Bush administration so much as it gave them more justification for their already existing, radical views.

Have we done enough to restore our credibility and correct past wrongs, or are prosecutions also needed? We don't yet know what has caused the attorney general to consider prosecution. Enforcing the law is an important function of government. But the government also has broader responsibilities. Here are six reasons prosecutions are not in the nation's best interests:

It's nice that Smith admits we don't know everything yet. Conservative torture apologists generally claim, without offering any proof, that torture saved lives. However, in the eyes of the world, there's simply no question we must prosecute to "restore our credibility and correct past wrongs." A significant percentage of the American people feel the same way, and that number would likely rise if the torture story was reported more accurately.

-- First, these techniques were authorized by the president and approved by the Justice Department. The relevant committees of Congress were briefed. Although the Justice Department's initial legal opinions were badly flawed, the fact remains that the agency responsible for interpreting and enforcing the law said the techniques were "legal." That alone will make prosecutions very difficult.

This is mainly an argument not to prosecute lower-level CIA agents. That seems to be Smith's main concern, and his take on prosecuting those higher up is less clear. I suspect that Washington Post op-ed editor Fred Hiatt might not note the distinction. I wish Smith was more forthright on this, since I think this op-ed will generally be flogged to shut down all prosecutions.

The OLC (Office of Legal Counsel) memos supposedly "authorizing" torture were issued as cover-your-ass measures, after torture and other abuse had already started. As it is, the guidelines they outlined, illegal though they were, were exceeded. But the memos also ignored glaringly relevant legal statutes and case law. A lawyer saying "murder is legal" obviously doesn't magically make it so, although this is essentially the Bush administration position – and one Smith voices as well. The torture memos were neither legally sound nor written in good faith.

As for congressional disclosure, as Angler documents and the Pelosi-CIA briefings story earlier this year show, the While House and the CIA both routinely deceived Congress when they told them anything at all. In fact, just today Scott Horton wrote about the role Blackwater played in Cheney's assassination program, which was one of the major stories of the past week. As Horton notes, Cheney ordered that Congress not be briefed on the program, and that part was known months ago even if Blackwater's involvement wasn't. It's hard to believe Smith didn't know about these stories.

-- Second, the CIA provided the inspector general's report to the Justice Department in 2004. Justice has not prosecuted any CIA officers but did successfully prosecute a contractor who beat a detainee to death, an incident that was initially reported to the department by the CIA. What has changed that makes prosecution advisable now? No administration is above the law. But the decision of one administration to prosecute career officers for acts committed under a policy of a previous administration must be taken with the greatest care. Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers.

Torturing and killing prisoners are not mere "policy differences." The Bush Justice Department's refusal to prosecute abuses is further proof of its corruption, not an exoneration of the perpetrators.

-- Third, after Justice declined to prosecute, the CIA took administrative action, including disciplinary action against those officers whose conduct it deemed warranted such responses. This is standard procedure; reports of possible criminal activity must be referred to Justice. If it declines to prosecute, the matter is sent back to the CIA for appropriate administrative action.

Disciplinary action under the corrupt Bush administration isn't necessarily sufficient, especially given the severity of the crimes – torture and death. This should be further investigated and probably decided on a case by case basis, though. The bigger concern is not individual CIA agents, but those higher-up who authorized these policies.

-- Fourth, prosecuting CIA officers risks chilling current intelligence operations. This country faces an array of serious threats. A prosecution or extensive investigation will be an unmanageable expense for most CIA officers. More significant, their colleagues will become reluctant to take risks. What confidence will they have when their senior officers say not to worry, "this has been authorized by the president and approved by Justice"? And such reactions would be magnified if prosecutions focus only on the lower-ranking officers, not those in the chain of command. Such prosecutions are likely to create cynicism in the clandestine service, which is deeply corrosive to any professional service.

Emphasis mine, above. I don't think it takes a high degree of intelligence or conscience to recognize that torture and murder of a prisoner is illegal and immoral, and not just another order to obey. But I agree with Smith on the bolded section. Those lower down should be investigated, partially to further establish the evidence. But those in the chain of command should be the main targets.

-- Fifth, prosecutions could deter cooperation with other nations. It is critical that we have the close cooperation of intelligence services around the world. Nations often work together through their intelligence services on matters of mutual interest, such as combating terrorism, even if political relations are strained or nonexistent. The key to this cooperation is the ability of the United States to be a reliable partner and keep secrets. Prosecuting CIA officers undermines that essential element of successful intelligence liaison.

This argument is largely bullshit. Most other nations aren't happy about the CIA or other American agencies and contractors torturing and killing people. Investigations are proceeding in Spain and other countries. The human rights abuses perpetrated under the Bush administration, and the Obama administration's insistence that it can still hold prisoners indefinitely without trial or evidence, have hurt foreign relations and our national security, not helped it.

-- Sixth, President Obama has decisively changed the policies that caused so much damage. He recognizes that it is vital to our security to have an effective intelligence community that is not distracted by looking backward and coping with congressional investigations and grand jury subpoenas.

The CIA is not a monolithic entity. It has tortured in the past, while others in the CIA have opposed this. Most in the FBI favor rapport-building techniques, as do some military interrogators such as the decorated Major Matthew Alexander. That's why the newly-announced High-Value Detainee Interrogation Group (HIG), with different agencies represented but FBI predominance and White House oversight, may prove to be a good idea.

Smith has consistently argued for years that CIA agents need clear guidelines, and he's absolutely right on that. HIG may provide that, and could be a useful buffer against torture apologist bullshit. Smith also has a point about not just going after lower-level CIA operatives. However, yet again, when torture and murder are involved, these are not mere "policy differences." It's pretty damn important for national security and "effective intelligence" that everyone in the CIA to understand that the Nuremberg defense doesn't hold and some orders must be challenged.

If media reports are accurate, the conduct detailed in the inspector general's report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.

The writer, a partner at Arnold & Porter, was general counsel of the CIA from 1995 to 1996.

This is more of the same. Again, there should be a full investigation, and some of those "who actually carried out that behavior" probably should be prosecuted. However, the big problem is those who authorized it, and they should remain the main focus. I don't think Smith is necessarily averse to prosecuting the chain of command, although some torture apologists have made similar arguments as a smokescreen to try to protect key members of the Bush administration. It's basically the "Criticize the Bush administration and you hate the troops" bullshit, except adapted to excuse war crimes. Let's also not forget – and the CIA would do well to remember this, too – that the Bushies have shown themselves perfectly happy to trash the CIA repeatedly for their own mistakes, and for doing things that the Bushies told and browbeat the CIA to do. (See these excerpts from The One Percent Doctrine, for example.) I don't blame Smith too much for sticking up for his former colleagues at the CIA in general principle, but I wish he'd recognize that part of the game, and be more forthright about his stance on prosecuting Bush, Cheney, Rumsfeld, Addington, Yoo and the gang.

Based on his past writings and statements, Smith is strongly for clear guidelines for the CIA, army and other government entities, he's for agency coordination, and appears to be anti-torture.

For instance, here's his list of articles.

From mid-September 2001, here's a PBS interview.

He's written other op-eds for The Washington Post on this general subject. From June 2005, there's "Regaining Respect."

From November 2005, there's "Central Torture Agency?: Exempting the CIA From the McCain Amendment Sends the Wrong Signal to Our Officers."

From February 2007, there's "A War Under Law: Congress Must Address U.S. Detainee Policies."

I'm less concerned about Smith specifically, but did want to put his arguments in context.

Currently, the investigation is set to be only of low-level personnel. As Scott Horton and others have pointed out, if the law is followed, such an investigation will necessarily lead upward. The big worry is a whitewash. And Horton today raises serious concerns about Holder not releasing the Office of Professional Responsibility (OPR) report. (Marcy Wheeler has similar concerns.) It's important because, as Horton writes, that report:

...Could therefore provide ample reason to doubt whether anyone with legal training—or indeed, anyone with a functioning mind and the ability to read—would find the memos to be persuasive statements of the law. That matters, because the law requires someone relying on them to have done so “in good faith.”

Horton, Marcy Wheeler (Emptywheel), Spencer Ackerman and several other blogs will all be useful to read over the next weeks. Here's the Washington Post article on special prosecutor John Durham. Wheeler isn't thrilled about him. Eric Holder's statement can be read here.

From Wheeler, I'd also recommend "Cheney’s Cherry-Pick," "Reposted: The CIA IG Report on the Inefficacy of Torture," and"Reposted: The CIA IG Report’s “Other” Contents."

Ackerman has "Collected Lowlights Of The 2004 CIA IG Report Into Torture" and another look at Cheney.

KCRW radio show To the Point today was on "A New Look for America's Terrorism Interrogations."

I imagine Dan Froomkin will have more in the days to come as well.

There's plenty to sift through, and much more to come out besides that.

I Have No Mouth and I Must Scream

(Photo from Abu Ghraib.)
The title of Harlan Ellison's horror sci-fi story came to mind when I read about this story from Iran:

Mowj Camp reports that a deaf and mute man was tortured in Evin prison for several days before he was released. “A detainee, who was suspected of pretending to be deaf and mute, was severely tortured for several days to make him speak until finally he was released after a doctor confirmed that he was really deaf and mute.”

It's a short item, but stop to imagine the horrible reality behind it and what this man must have endured. This comes via Eric Martin's post "Mute Witness," which deserves a full read. In it, he quotes from an older post reviewing a book by A.J. Rosmiller of the Defense Intelligence Agency, which includes a portrait of American mistreatment of Iraqi civilians in custody:

It actually gets worse. Throughout the grueling and time consuming processing, as several of the detainees try in vain to ascertain the charges against them, some begin to ask, out of concern, about another detainee (the brother of some, cousin of others) who is mentally handicapped and/or deaf and mute. Later in the evening, Rossmiller sees some soldiers attempting to interrogate a detainee who stands mute, confused and otherwise fits the description of the mentally challenged detainee. Rossmiller tries to intervene and explain the situation, to no avail. "Naw, he's fuckin' faking. I'm sending him to Abu G," is the only response he gets. Perfect.

Toward the end of the night, one of the detainees asked for permission to speak, and was eventually granted that right. What he said left an indelible mark on Rossmiller:

"When you came to our country, we hoped law would return. We still have that hope."

From a USA Today article quoted by Digby:

Police in Mobile, Ala., used pepper spray and a Taser on a deaf, mentally disabled man who they said wouldn't leave a store's bathroom.

The family of 37-year-old Antonio Love has filed a formal complaint over the incident on Friday.

Police tell the Press-Register of Mobile that officers shot pepper spray under the bathroom door after knocking several times. After forcing the door open, they used the stun gun on Love.

Police spokesman Christopher Levy says police didn't realize Love had a hearing impairment until after he was out of the bathroom. The officers' conduct is under investigation.

The newspaper says the officers attempted to book Love on charges including disorderly conduct, but a magistrate on duty wouldn't accept the charges.

There are different levels of abuse in these three accounts, of course, but they are all abuse. And in each case, the abusers are convinced they are correct, justified and perhaps even righteous. And they are all completely wrong.

John McCain's told a story of explaining Easter to one of his captors in Vietnam, that the man finds the idea of resurrection incredible, and eventually becomes angry and accuses McCain of lying. I don't know how true or accurate McCain's tale is, but especially given the power dynamics, there's a big difference between calling someone's religious beliefs wrong or silly and calling the person a liar. Former SERE instructor Malcolm Nance describes meeting a Cambodian torture victim who explains how, "in torture, he confessed to being a hermaphrodite, a CIA spy, a Buddhist Monk, a Catholic Bishop and the son of the king of Cambodia." In Orwell's 1984, O'Brien doesn't even want Winston to say this or that, despite Winston's desperate attempts to say the right thing; O'Brien wants Winston to submit completely to his will (see the last video here). There are many, many more stories like this throughout the history of torture. A May post, "Torture Versus Freedom" (and its many links) goes through the dynamics of torture, how torturers sometimes force the victims to confess things the torturers know are not true, how they sometimes get carried away and forget to ask questions, and how they often can't look their victims in the eye afterwards. Most of all, it covers what should be common knowledge - how torture is cruel, one of the greatest violations of a human being imaginable, and that "telling the truth" - or even being innocent - often doesn't matter. It will not save the prisoner. What matters is what the torturer thinks is true, and/or what he or she wants to hear.

As decorated interrogator Matthew Alexander's explained, in interrogation lingo "breaking" a prisoner means getting accurate information and establishing a rapport. Meanwhile, for authoritarians (and 24 fanatics), "breaking" means getting a prisoner to submit to their power. Some torture apologists disingenuously conflate the two, but I think some of them honestly mistake one for the other. They think "learned helplessness" produces the truth, as opposed to the dynamics of Winston with O'Brien, or the Cambodian torture victim, and many others throughout history. But as Alexander and others have repeatedly explained, rapport-building techniques are much more effective than anything abusive. If an interrogator enters into the power dynamic over a prisoner with any vengeance, bigotry or need to assert dominance or humiliate, it's counterproductive, but also dangerous. Entering in with certainty about the truth – say, an non-existent Iraq-9/11 connection – can be even more lethal. As John Kerry said of Bush in one of their debates, it's possible to be certain - and wrong.

Movement conservatives' public support for torture has contradicted even their own cherished mythology. The only constant has been their unyielding conviction in their own righteousness. Consider – they love to invoke WWII, if simplistically and inaccurately, yelling that every new threat is a new Hitler and anything less than belligerence is "appeasement." Yet they ignore that during WWII, we prosecuted the same torture and abuses they've defended under Bush. The Cult of Saint Ronnie still worships the poor policy and cartoonish morality of Reagan denouncing the Soviet Union as an "evil empire." (In his recent Reagan book, Will Bunch relates that Reagan himself regretted using the phrase, and later the far right accused Reagan of being Chamberlain for dealing with the Soviets.) Yet the torture program instituted under Bush borrowed directly from the hated Soviets. The key reason given for invading Iraq was that it had WMD and was an imminent threat, but Saddam Hussein was also depicted (fantastically) as the next Hitler and (accurately) as a dictator and torturer. The Hussein regime's victims were invoked more often after the invasion as a way to browbeat Iraq critics. So how is it that what made Hussein evil became good when done by the United States? When Iraqi Muntadar al-Zaidi threw a shoe at Bush, several far-right conservatives approved of the broken hand and ribs he received in prison. As Roy Edroso quipped, “I always suspected that when they were denouncing Saddam’s torture chambers, they were just angry that they didn’t get to say who got tortured.”

The disconnect from professed Christians on the torture "debate" is particularly astounding. Given how central the crucifixion story is to Christianity, and that it depicts Jesus tortured and then executed in one of the most cruel methods ever devised, it's mind-boggling to see anyone claim that supporting torture and Christianity are compatible - or that Jesus would support waterboarding. According to Christian doctrine, Jesus' suffering redeemed him and the world - but it's not the Romans who Christians are supposed to emulate in the story! "Turn the other cheek," "Do unto others as you would have them do unto you" and "As you have done to the least of my brethren, so have you done unto me" are hardly pro-torture slogans. But in the hearts and minds of movement conservatives, not even Churchill, Saint Ronnie or Jesus himself can compete with the comforting violence of Jack Bauer.

As it is, all of this is being charitable, assuming that the torturers know not what they do, and aren't deliberately seeking the false confessions torture has always been infamous for producing, or that they're not so callous and evil they simply don't care if a confession is true or not if it serves their purposes. Waterboarding, also known as "the water cure" and "water torture" throughout the ages, will eventually make anyone "break" – in terms of submitting to power. But it's notoriously unreliable for producing accurate intel. In addition to a commitment to human dignity, the strong laws against torture were in put in place because the dynamics and "efficacy" of torture have been known for millennia. The law is in place to protect us all from people in power whose certainty, vengeance or political need drives them to abuse others.

Whatever one's feelings about how to treat actual terrorists, we have imprisoned, tortured and murdered innocent people. Prisoners were tortured when there was no ticking time bomb. The abuses at Abu Ghraib, Bagram and Guantanamo were not the result of "bad apples" but instead deliberate policies of abuse dictated from the very top. And the Bush administration received plenty of warnings before, during and after those decisions that they ignored, squelched or even punished.

We can debate the motivations of the torture proponents in the Bush administration, and the precise dynamics of panic, authoritarianism, callousness, ignorance, zealotry and evil. Some of that's come out, although plenty more can. As I've written before, it was impossible for them to arrive at that dark place without monumental arrogance, dehumanization of all potential victims, and a deep and utter contempt for democracy. The Cheney plan to violate Posse Comitatus and deploy military personnel domestically, the warrantless surveillance systems, indefinite detention, torture and abuse – all of these radical measures are all on a continuum. (And seriously, if you haven't read Angler by Barton Gellman yet, do so.)

However, the crucial thing is to keep nailing down the facts, and bringing up what is known in public. Bush defenders almost always try to change the subject, ignore major reports and the timeline, or make unsubstantiated claims about how they saved the nation from sure destruction. The evidence known already forms an utterly damning narrative, and obliterates a "good faith" defense, no matter how much torture apologists - and blissfully uninformed commentators such as Chuck Todd - assert otherwise. However, plenty of details remain to be revealed. Legally, credible allegations of torture must be investigated. Logically, such an investigation would exonerate the torturers if they were telling the truth. Realistically, such unchecked power will be abused again if there are no consequences this time. Morally, the truth must come out and justice must be done.

Like the abused Iraqi Rossmiller describes, we still have hope the law will return – but as Americans, we have much greater ability and responsibility to make that a reality.

There's a great line in Arthur Miller's The Crucible from Justice Danforth, who's in Salem to preside over the witch trials. John Proctor has brought his servant Mary Warren to confess that she, Abigail and the other girls have been faking their demonic torments. Danforth, who has sentenced people to prison and death, is flabbergasted at this challenge to everything he's believed. How could anyone doubt that dangerous witches have been working to topple the land, and that these girls acting so tormented are telling the truth? Certain in his righteousness, clear perception and fair judgment, he tells Proctor that "the pure in heart need no lawyers." The line often draws sardonic chuckles and head shakes from audiences. It's a very tense scene as Danforth questions Mary. And under the threats and powerful weight of authority unjustly wielded by Danforth, and the social pressure of Abby and the other girls' relentless lies, Mary forsakes her conscience and succumbs once again to a madness spun of fear, ambition and intimidation.

Almost every argument from Dick Cheney, John Yoo and the Jack Bauer Junior Wannabes boils down to, "investigate us, dare to prosecute us, and you'll all die horribly in a terrorist attack." Contrary to their dissembling and claims of super-powers and secret decoder rings, justice cannot be used "against" us, and due process should be absolutely non-negotiable (something the Obama administration also must be made to remember). The entire modern conservative movement really amounts to little more than a massive protection racket, with some parties played against each other. This gang has little left to offer other than threats and lies, and little to protect themselves except omertà and a compliant media. There's great irony in the torture crew calling any investigation into their very real wrongdoing a "witch hunt" when they bullied Bush critics as unpatriotic, and effectively ordered that heretics be put on the rack to confess – all for their unnecessary war, and monarchial powers. But then, they're not a reflective lot, and those that do have self-awareness have never been known for feeling the twinges of conscience, let alone shame. In their own minds, torturers and their apologists may not be Orwellian villains or ancient Romans; like many a crusader, they are Certain and they are Righteous - and like Jesus, they can make the mute speak.


(A snap from an Amnesty International video on torture.)

Update: I reworked the Matthew Alexander paragraph for clarity.