Discourse.net

The Kindness (and Notice) of Strangers

I am very deeply grateful for all the kind comments and email that people have been sending me in response to my recent blog posts. And the traffic spike — about four times the old volume — is most welcome. Plus it’s also fun to have so many new links that, however temporarily, discourse.net has been promoted to a Large Mammal in the Truth Laid Bear EcoSystem (#343 on links, #66 (!!) on traffic).

One thing that I especially appreciate is being linked to by Ken MacLeod, who is just an amazingly wonderful science fiction writer. (Pity it has to be part of MacLeod’s elegy for a better nation.) I think MacLeod’s The Cassini Division is one of the best science fiction books of its decade (at least), and the whole series of which it forms a part is wonderful…even if I never did quite fit all the parts together…even if he says in one of his prefaces that we weren’t supposed to be able to…

OK. Enough of that self-referential guff. Off to do some reading. Next post will be substantive, promise.

Florida Talk-Show Appearance Wed. 9am

If all goes according to schedule, shortly after 9am tomorrow morning I’ll be appearing on a West Palm Beach radio talk show hosted by Johnny Trumpet (!) on WPBR, 1340 AM. WPBR has an Internet feed accessible from their homepage so if you want to hear me talk about the torture memos, this is your chance.

I’ve done a few talk show call-in appearances over the years, but oddly almost none in Florida. I think this must be the first one in years.

Michael Moore's 9/11 Rated "R"

The Cosmic Iguana reports FAHRENHEIT 9-11 GIVEN “R” RATING. The MPAA stated that the rating is for the film’s “violent and disturbing images and for language”.

I haven’t seen the film so I can’t say I know this is wrong, but given the violence that gets allowed into PG-13 films — I won’t take my kids to them (yet) — and the fact that the film is about what it claims are real rather than fictional events, I am suspicious. (On the other hand, Passion of the Christ got an “R” rating, and many people consider it to be all about Truth…)

Then again, if the film has, say, images of torture, do we want (older) kids to see it? Half of me says no, half of me says we should encourage them to see it.

New Form of Comment Spam?

I’m getting a series of comments that are like classic comment spam—a vague phrase, out of context, stuck seemingly at random on old posts (e.g. “charity begins at home”). Usually these are just a cover to link to some site that is trying to raise its googlerank. What’s odd about these is that all the “author” links are to pages of the form nohomepage.domain.com where “domain” is a domain that is not registered. So those links don’t work.

The comments also have a ‘hidden’ link to a second domain (usually the period is hyperlinked). But those domains don’t resolve either.

So I think I’ll prune them. But I admit that I can’t see the point of this sort of spam except (1) to bury existing comments or, maybe, (2) to lull bloggers into a false sense of security when they check the domains and find they don’t work…and then activate something in them next week (or sell them) with an increased googlerank.

(nohomepage)[\w-_.]*.[a-z]{2,}

Two Generals Knew (Or Should Have Known)

According to the New York Times, Brig. Gen. Janis Karpinski, the commander of the 800th Military Police Battalion, and Maj. Gen. Barbara Fast, the top Army intelligence officer in Iraq were on notice as to at least some prisoner abuse as early as mid-November: Unit Says It Gave Earlier Warning of Abuse in Iraq.

OLC's Aug. 1, 2002 Torture Memo ("the Bybee Memo")

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

• This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.

• This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.

• Nowhere do the authors say “but this would be wrong”.

• Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo

• This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Dali Lama to Visit U. Miami

His Holiness the Dalai Lama will be speaking here, Wednesday, September 22 on “A Human Approach to World Peace.” He’ll be speaking at several events around town, but tickets for the UM speech on will be restricted to students, faculty and staff. No word yet on how to get a ticket…

For Those Who Came In Late

The New York Times Magazine has a nice feature story on some of the military lawyers representing Guantanamo detainees. Commander Swift Objects won’t tell people who have been following the story closely much that’s new, but it’s well-told, and has a very sympathetic profile of Lt. Cmdr. Charles Swift, one of the lawyers, who is among the group that has sued Rumsfeld claiming the entire system of detainee trials is unconstitutional.

Probably the only things that were new to me was some of the details of the machinations inside the Pentagon regarding who could serve as defense counsel, and what they could do, and the fact that it was Alberto Gonzales who authorized them to file what turned out to be a very powerful amicus brief in the al Odah case, which the Supreme court will be deciding some time in the next days or weeks.

One thing the article doesn’t mention, is that the defense lawyers at Guantanamo are in the same chain of command as the prosecution, instead of the normal situation under which they would be separate. The absence of insulation increases the opportunity for intimidation, and it’s especially to Switf et al.’s credit that they are being as tough as they are.

Anti-Googlebombing

Apparently, right-wing pranksters have googlebombed the term Democratic National Committee so that google points to one of their sites instead. The point of this post is just to fight back.

I’m flying back to Miami today, so normal blogging should resume tomorrow.

Some 'Hotel'

The Washington Post describes tensions between the Red Cross and the US military concerning the harsh conditions at Guantanamo: In Guantanamo, Detainee Fears Recorded

Lawyers vs. Computer Scientists

James Grimmelmann has an interesting pointer to an article purporting to describe the difference between how computer scientists and lawyers think. The core of the article is that legal data has “color”, or provenance.

It’s a fun essay, but as someone who often straddles this divide, I think it’s missing something important. But darned if I can put my finger on what it is. Maybe that law is often about shades of gray, when computer logic is binary?

Two True?

‘Ascription is an anathema to any enthusiasm’ has some cute lines in Two Things
that might be, well, two true. Or not.

Yoo, Unrepentant

Prof. John Yoo published an op-ed in the LA Times today entitled With ‘All Necessary and Appropriate Force’. As Prof. Yoo worked in the Justice Dept. During 2001-03, and by all accounts had a major hand in the drafting of Justice Dept. memos relating to the rules applying to the treatment of al Qaeda and other persons labeled by the administration as non-persons enemy combatants, his comments deserve careful attention.

Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared “to be an effort to redefine torture and narrow prohibitions against it.”

Yes, that’s more or less what it looked like all right. Or, as one pithy letter-writer to the Washington Post put it, “How is it that the Defense Department, the Justice Department, and the White House counsel’s office were all writing lengthy and detailed memos on the laws against torture, how to get around the laws against torture, and the president’s alleged authority to ‘set aside’ the laws against torture, and yet nobody had any intention of torturing anybody?”

This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.

Ok, we’re already at the first disingenuous loophole: “a standard of treatment” tells us nothing about what sort of standard. “Kill them all” is a standard. As for the promise of humane treatment, what is that worth when it’s qualified by “to the extent appropriate and consistent with military necessity”?

This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism.

Actually, this statement is dangerously false. The Geneva Convention does not apply to terrorists on our shores–but the Bill of Rights does. As regards foreign nationals in foreign countries where we are conducting military operations, the Geneva Conventions clearly contemplate a dichotomous world: there are foreign uniformed troops, who get POW status if caught, and there are foreign civilians, who do not, but instead benefit from certain limited protections for civilians. Irregulars who take up arms can be treated as criminals, can be tried, can be shot if there is a death penalty. POWs can’t be tried, and are entitled to a set standard of treatment that in many countries exceeds what civilian prisoners would get. Furthermore the Geneva convention system provides for a system by which military captors must hold a hearing to determine the status of a captured combatant before determining that they are not entitled to POW status. We’ve failed to do this in Afghanistan and Iraq, although we did manage somehow to do it in the first Iraq war.

It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose — inflicting civilian casualties through surprise attack — violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.

By joining Al Qaeda or the Taliban, much less by being accused of joining by Mr. Yoo and others, persons forfeit neither their citizenship nor their humanity. Al Qaeda is not a country. It cannot sign the Geneva conventions. But its fighters often are citizens of signatory countries, or are fighting on behalf of signatory countries. The idea that the US can unilaterally say that accused Al Qaeda and Taliban members are, by virtue of the accusation, removed from the Geneva conventions is dangerous nonsense, and an ugly precedent that will surely come back to haunt us. To the extent that particular fighters violated their rights to POW status by, for example, not wearing uniforms, our obligation under those same conventions is to treat them as POWs until we give them a hearing.

It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” It defined mental pain or suffering as “prolonged mental harm” caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures “calculated to disrupt profoundly the senses or the personality.” Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention — against “cruel, inhuman or degrading treatment or punishment” — because it was thought to be vague and undefined.

Physical and mental abuse is clearly illegal. But would limiting a captured terrorist to six hours’ sleep, isolating him, interrogating him for several hours or requiring him to do physical labor constitute “severe physical or mental pain or suffering”? Federal law commands that Al Qaeda and Taliban operatives not be tortured, and the president has ordered that they be treated humanely, but the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station.

Another disingenuous move. Neither six hours sleep nor “several hours” of interrogation are illegal acts. But that’s not what we’re talking about. We’re talking about scaring people with dogs, about contests to see how many detainees could be so terrified they peed on themselves. We’re talking about 16 hours of continuous interrogation, and suicide attempts. We’re talking about telling people they were about to be killed. We’re talking about simulating telephone conversations in which detainees were told their families were being held on the other end of the line and would be harmed if the detainee didn’t talk. We’re talking about not jjust threatening but abusing kids to make parents talk. We’re talking about raping women and children of both sexes. We’re talking about atrocities.

Treating “captured terrorists as if they were guests at a hotel”? The word “offensive” is really too mild for this sort of argumentation.

Finally, critics allege that the administration wants to evade these laws by relying on the president’s commander-in-chief power. But the 1994 statute isn’t being evaded, because the president’s policy is to treat the detainees humanely.

WHOOPS! What happened to “to the extent appropriate and consistent with military necessity”?

Besides, that statute does not explicitly regulate the president or the military. General criminal laws are usually not interpreted to apply to either, because otherwise they could interfere with the president’s constitutional responsibility to manage wartime operations. If laws against murder or property destruction applied to the military in wartime, for instance, it could not engage in the violence that is a necessary part of war.

Non-sequitur. Straw man. No one has suggested that the statute prevents military operations. Just military torture. And since the statute is part of our observance of the Geneva Conventions, it’s hardly odd to read it to apply to the military - since that’s to whom the Geneva Conventions apply.

But suppose Congress did specifically intend to restrict the president’s authority to interrogate captured terrorists.

Ok, back to reality.

As commander in chief, the president still bears the responsibility to wage war. To this day, presidents from both political parties have refused to acknowledge the legality of the War Powers Resolution, which requires congressional approval for hostilities of more than 60 days. (President Clinton ignored it during Kosovo.) And in the war on terrorism, Congress has authorized the president to use “all necessary and appropriate force.”

Non-sequitur again. No President has ever previously suggested that the Torture Statute was either unconstitutional or didn’t apply in wartime.

By exploring the boundaries of what is lawful, the administration’s analyses identified how a decision maker could act in an extraordinary situation. For example, suppose that the United States captures a high-level Al Qaeda leader who knows the location of a nuclear weapon in an American city. Congress should not prevent the president from taking necessary measures to elicit its location, just as it should not prohibit him from making other strategic or tactical choices in war. In hearings this week, Sen. Charles E. Schumer (D-N.Y.) recognized that “very few people in this room or in America … would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

This is so wrong on two levels. First off, not one of the memos at issue is about the rare hypothetical ‘terrorist known to have an a-bomb in NY’ (TABNY) scenario. Rather, they are about the care and torture of all so-called ‘enemy combatants’. Not a single one of these people has ever been alleged to have WMDs in the US. It may be that many people got tortured for denying knowledge of the existence of WMDs in Iraq, but the evidence points rather strongly in the direction that these weapons never took the trouble to exist.

Prof. Yoo’s resolution of the TABNY scenario is wrong on its own terms too, because it legitimates a torture regime that, even judged by its own starkly utilitarian morality, will inevitably err on the side of excessive torture . Explaining why that is is a little complicated, so I’m going to defer that to another posting that I’ll put up no later than Monday.

Ultimately, the administration’s policy is consistent with the law.

“Consistent with the law” because (although Prof. Yoo has soft-pedaled it in this op-ed) the memo says that the Constitution allows the President to do what he wants if he justifies it by miliary necessity.

If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.

True. But you left one out: the courts can find that your interpretation sounds in Nuremburg.

Useful Info on How to Choose Supermarket Fruit

Jill Hunter Pellettieri of Slate offers up timely advice in Eat a Peach - How do you choose the sweetest, ripest summer fruit?. Of course all the fruit at our local Publix which is larger than a grape tomato is also rock hard, so this article is more useful for daydreaming than actual shopping, but still…

Deconstruction of Torture Memo's Analysis of Criminal Intent

One of the weirder parts of the Torture Memo, which I didn’t write about earlier, was the attempt to suggest that a torturer might be able to benefit from what we lawyers call a ‘pure heart, empty head’ defense: ‘Honest, judge, I didn’t think it was torture.’ The memo tries this on in two implausible ways: (1) The guy doing the damage honestly believes it’s legal; (2) the guy doing the damage isn’t sure it’s really going to be that damaging. Both arguments seem completely inapplicable to the circumstances, neither is convincing, and the legal analysis is muddled. But don’t take my word for it, it’s not my field. Instead, have a look at these three posts by experts.

Update (6/11/04): Also don’t miss Eric Muller’s excellent comment, Manipulating Doctrine.

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?