Discourse.net

Women and Children. On Camera.

Brad reports on a Sy Hersh speech at U.Chicago in Torture and Rumors of Torture.

We’re heavy into hearsay territory here, but if this is really true, we haven’t hit bottom yet:

Bush, he said, was closing ranks, purging anyone who wasn’t 100% with him. Said Tenet has a child in bad health, has heart problems, and seemed to find him generally a decent guy under unimaginable pressure, and that people told him that Tenet feared a heart attack if he had to take one more grilling from Cheney. “When these guys memoirs come out, it will shock all of us.”…

He said that after he broke Abu Ghraib people are coming out of the woodwork to tell him this stuff. He said he had seen all the Abu Ghraib pictures. He said, “You haven’t begun to see evil…” then trailed off. He said, “horrible things done to children of women prisoners, as the cameras run.”

He looked frightened.

At some point, we run out of new horrors, don’t we? Please?

(And at some point, Real Soon Now, mass revulsion takes over, right?)

Why Can't Bush Simply Say "We Don't Do Torture. It's Wrong." ???

Digby points out GW Bush’s non-denial denial when faced with a softball torture question:

Q: Mr. President, I wanted to return to the question of torture. What we’ve learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law.

So when you say that you want the U.S. to adhere to international and U.S. laws, that’s not very comforting. This is a moral question: Is torture ever justified?

BUSH: Look, I’m going to say it one more time. Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you.

We’re a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.

What does it mean when the head of government cannot simply say “Torture is wrong and I would never condone it”? Might it mean that he read a memo or two that suggested the key to making torture legal was giving the torturers reasonable grounds to bleieve that their actions are legal … because the President authorized them?

Major Mori Will Be Busy

Convenient timing? The Pentagon announced today that Australian Detainee David Hicks is being formally charged with three offenses: conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy.

Neither a trial date nor the members of the military commission who would hear the charges have been chosen. Furthermore, Mr. Hicks’s very able military counsel, Major Mori, has challenged the entire procedure. Conceivably the court hearing those challenges might stay the proceeding pending its decision.

The trial will not be open to the public, but — get this! — two, count them two, members of his family will graciously be allowed to attend the Kangaroo court! Wow!

And let’s not forget the Australian claims of torture.

Another Great Internet Thing: Amtrak Discount Codes

I’m in DC at the moment, and tomorow I head off to a wedding in New Haven. I’m going by train and my fare will be 20% less than it might have been thanks to one of these handy Amtrak discount codes. No, it’s not just a toy: this Internet thing is useful.

Lying By Reflex

More depressing evidence that this administration’s first response to anything that looks bad is to lie about it.

• The New York Times > International > Army Now Says G.I. Was Beaten in Role

• Tampa Bay Tribune—TIA now verifies flight of Saudis

• Administration Misled US About Number of Terrorist Attacks in 2003 [Washington Post story]

Justice Dept. Wants to Charge Padilla. Minor Hitch: No Dirty Bomb, No Admissable Evidence

Peter Junger alerts me to this damning report, MSNBC - Facing Defeat?

Justice Department lawyers, fearing a crushing defeat before the U.S. Supreme Court in the next few weeks, are scrambling to develop a conventional criminal case against “enemy combatant” Jose Padilla that would charge him with providing “material support” to Al Qaeda, NEWSWEEK has learned.

The prospective case against Padilla would rely in part on material seized by the FBI in Afghanistan—principally an Al Qaeda “new applicant form” that, authorities said, the former Chicago gang member filled out in July 2000 to enter a terrorist training camp run by Osama bin Laden’s organization.

But officials acknowledge that the charges could well be difficult to bring and that none of Padilla’s admissions to interrogators—including an apparent confession that he met with top Al Qaeda leader Abu Zubaydah and agreed to undertake a terror mission—would ever be admissible in court.

Even more significant, administration officials now concede that the principal claim they have been making about Padilla ever since his detention—that he was dispatched to the United States for the specific purpose of setting off a radiological ‘dirty bomb’ has turned out to be wrong and most likely can never be used against him in court.

(bold added). Locked up for two years in solitary on charges that “turned out to be wrong.” Argued to the Supreme Court that the government should be able to label a citizen an “enemey” and hold him for ever with no court review. And the charges “turned out to be wrong”. How about that.

Call me cynical, but I’ve always suspected that a substantial part of the reason why Justice is so hell bent for leather to bury Padillia has to do with the very peculiar circumstances — quickly forgotten — that surrounded his arrest.

AG Ashcroft was in Moscow when Padilla was arrested in Chicago. The arresting agents said they thought he wanted to make a “dirty bomb”. There are in fact two kinds of bombs called “dirty bombs”: the first, the sort Padillia was talking about (and all the evidence is that it was all talk), is a conventional explosive with radioactive dust or material thrown in to further injure people in the blast radius. So instead of taking out, say, a building, you also hurt the people who breath in the dust. Nasty — very nasty — but of fairly limited scope compared to the other type of ‘dirty bomb’, which is a radiologically enhanced nuclear weapon, a city killer.

Somewhere along the route from Chicago to DC to Moscow, wires got crossed and Ashcroft got it into his head that Padilla was planning a city-killer. And he gave a moderately hysterical (in the frightened, not funny, sense) press conference about this in Moscow, which caused the US stock market to drop almost 2%.

Of course it turned out Ashcroft had got it all wrong, which had to be very embarrassing.

It’s sad to even entertain the idea that pique explains a historic assault on the rights of American citizens, but these are sad times.

Torture: Wrong Yesterday, Wrong Today, Wrong Tomorrow

In nothing new under the sun, the Curmudgeonly Clerk notes accurately that many prior administrations have done quite horrible things in wartime. He notes the firebombing of Dresden and Tokyo, and the Japanese internments as examples of FDR’s wartime moral failings. To which one might of course add the general conduct of the anti-insurgency campaigns in the Philippines after the Spanish-American War, the bombing of Cambodia, most of the century-long campaign against Native American tribes, just to name a few.

From this basis, he concludes I was wrong to approvingly quote Kevin Drum saying that “Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong.”

Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I’ve concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

Iraq, the Chicken Version

Juan Cole’s dark sense of humor brings us Iraq-themed chicken jokes. This being about Iraq, things do not usually go very well for the chicken. Let’s hope Heidi Bond doesn’t see these.

Basic Evil

While we lawyers get all het up about how people with a JD and a basic knowledge of the Constitution could sign a torturer’s charter, and whether this is a banal evil or virulent evil, or both, Kevin Drum has his eye on the basics:

But put aside the technical analysis and ask yourself: Why has torture been such a hot topic since 9/11? The United States has fought many wars over the past half century, and in each of them our causes were just as important as today’s, information from prisoners would have been just as helpful, and we were every bit as determined to win as we are now. But we still didn’t authorize torture of prisoners. FDR, Truman, Eisenhower, LBJ, Reagan — all of them knew it wasn’t right, and the rest of us knew it as well.

So what’s different this time? Only one thing: the name of the man in the White House. Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong. It’s time to reclaim it.

And just imagine what those guys will do if they don’t have to worry about re-election.

Pride Goeth Before A Fall

Fellow Citizens: Are you proud of the way your government treats foreign reporters? Or, like me, are you angry and ashamed by this disgrace to our nation, and this offense to our allies? [Update: Link fixed!]

Another How-To-Torture Memo

INTEL DUMP summarizes a Wall Street Journal account of a 100+ page memo that purports to explain how torture of detainees at Guantanamo could be legally justified.

The core of the argument is little more than the old Nixonian one that the President is above the law, so that he can authorize actions that would otherwise be illegal. It’s dressed up with some sophistication, but that’s about what it amounts to.

Phil says all the right things, so I won’t repeat them. But there is one aspect that he missed. According to the WSJ:

The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the “special maritime and territorial jurisdiction of the United States, and accordingly is within the United States” when applying a law that regulates only government conduct abroad.

As summarized by the WSJ, the crux of the government’s position in this memo is that the executive has full unreviewable power in Guantanamo, not subject to check by the courts (at least absent some congressional action?). That this might be legally possible does not make it legally or morally correct.

Thus, it appears that the memo somewhat undermines the argument that the government made before the Supreme Court, where it argued that Gitmo was outside the jurisdiction of the courts because, being subject to residual Cuban sovereignty albeit US control, it was not part of the US for jurisdictional purposes. It’s not impossible to have different conceptions of ‘domestic’ jurisdiction for the reach of a statute and judicial review — but it’s uncomfortable and IMHO presumptively wrong.

This memo may also strengthen the case, set out by Eric Muller, that Deputy Solicitor General Paul D. Clement knew or (more likely) should have known that he was making a false statement when he said “[i]t’s … the judgment of those involved in this process [of interrogating POW’s and enemy combatants] that the last thing you want to do is torture somebody or try to do something along those lines.”

Someone — Congress? — really needs to get to the bottom of all this.

Movies as a Campaign Finance Law End-Run

Daily Kos says,

Farenheit 9/11 will one day be the subject of a thousands acedmic papers, especially if Kerry wins the White House. The movie’s first trailer is already the most effective anti-Bush commercial ever made.

Of course, that trailer won’t be shown on TV. It’s a 2-minute piece designed for movie theaters, not television (though it’ll bear watching whether theaters show the trailer). The real fireworks will hit, I’m sure, when this movie’s ad campaign hits television.

Done right (and I do trust Moore to do it right), those 30-second movie commercials, run nationally, could be some of the most effective political advertising of the season (without being, legally, political advertising). Watch stations try to block the ad, in the face of a concerted GOP effort to suppress its showing.

Meanwhile, Digby points to the trailer of The Hunting of the President, which I see as another example of the same phenomenon. This movie is apparently only showing in a few cities, but the DVD is promised to be out by election time.

Kos again:

If the movie has a measurable impact on the elections, watch the concept become a new CFR loophole. Say we have President Kerry in office. A bunch of rich Republicans (the “haves” and the “have mores” or, as Bush likes to call them, his “base”) make an anti-Kerry movie in 2008, and release it, oh, at about this time. Then they run $100 million in ads promoting the anti-Kerry bit, all outside the reach of campaign finance laws and the FEC.

A loophole it will be next to impossible to close.

Medals Update

not only is the administration trying to lump the Afghanistan and Iraq wars under a single global ‘war against terrorism’ rubric for the purpose of campaign medals — a break with tradition — but that it also wants the backroom armchair warriors in that ‘war’ to be able to get the same medal as people who got shot at.

Looks like half of this is getting fixed: there will be separate campaign medals for Iraq and Afghanistan. Don’t bet on the other half, though.

Let's Translate This Phoenix International School of Law Ad

This ad popped into my mailbox:

Faculty Positions. Phoenix International School of Law (PISL) seeks candidates for full-time and visiting faculty positions. Applicants should be (1) student-centered; (2) skilled instructors and effective mentors; (3) comfortable with change; (4) attracted by the unique challenges and opportunities of a start-up institution; (4) multiculturally competent; and (5) committed to management and faculty development based on a best practices model. They also should have the capacity not only to educate but inspire, share the institution’s priorities of graduating practice-ready lawyers, possess interpersonal skills that contribute to positive group dynamics, and appreciate the need for processes that facilitate a nimble and agile institution. PISL is committed to meeting all standards necessary for approval by the American Bar Association, including those governing job security and academic freedom. It seeks to attract individuals, however, who understand that these interests are optimized not by formal safeguards but upon the quality of group dynamics. PISL anticipates commencing operations with a small part-time division in Spring 2005 and full-time and part-time divisions in Fall 2005. Please submit applications to Donald E. Lively, Dean, at cwarner@carolynwarner.edu.

Despite the stuff about “meeting all standards necessary for approval by the American Bar Association, including those governing job security and academic freedom” this doesn’t sound like they believe in tenure, does it? That should set the cat among the pigeons.

As it happens I agree that it’s group dynamics — esprit de corps, shame even — that keeps some tenured people being good citizens, teaching well, and being productive long after their salaries have maxed out in real dollar terms. (For most, though, it’s their natural obsessive-compulsive tendencies.) But an ad that feels a need to make a point of this stuff, plus the reference to “comfortable with change” and “committed to management and faculty development based on a best practices model,” well, that looks like code for something I don’t think I’m going to like the looks of.