Waterboarding, Consent, and Rape
Former Vice President Dick Cheney appeared at AEI today to promote his book and again made the claim that waterboarding detainees is not torture because we use this technique on our own troops. As he put it:
“Another key point that needs to be made was that the techniques that we used were all previously used on Americans,” Cheney went on. “All of them were used in training for a lot of our own specialists in the military. So there wasn’t any technique that we used on any al Qaeda individual that hadn’t been used on our own troops first, just to give you some idea whether or not we were ‘torturing’ the people we captured.”
This isn’t a new argument. Plenty of other folks have argued that, because we subject members of the military to waterboarding in Survival, Evasion, Resistance, and Escape (SERE) School (the military’s POW prep course), waterboarding detainees is not mistreatment.
It’s also a nonsensical argument.
The difference is consent. What one person consents to in one set of conditions does not make the same treatment, without consent and in other conditions, somehow less invasive or less illegal under domestic and international law. I was not waterboarded when I attended SERE school, but I endured treatment I wouldn’t willingly accept in other circumstances. If you want to waterboard me, you’d best be ready for a fight.
Waterboarding, Again
I have an article in today’s Los Angeles Times pointing out that waterboarding is dead as a tool for U.S. interrogators. So get over it. I also make the point that it died under Bush’s watch, so the next time Dick Cheney trots out a proposal to bring back waterboarding, he’s quarreling mostly with his old boss and not the current commander-in-chief. Over at the Washington Post, Allen McDuffee thinks this is unfair:
It may well be the case that Cheney has unfinished business with Bush over dropping the so-called enhanced interrogation techniques, but it is at least a selective reading for Rittgers to suggest that Cheney’s words are not directed at Obama with the hope that they carry political consequences for the administration. It is unlikely that even Cheney himself would make such a suggestion.
Of course Cheney’s comments are directed at Obama, as a rearguard action intended to make it politically impossible to prosecute those that made waterboarding and other coercive interrogation techniques our policy. Mission accomplished.
Waterboarding died in 2004 when the Office of Legal Counsel withdrew the memoranda supporting it, with other nails in the coffin provided by the Detainee Treatment Act and the Hamdan decision. Bush didn’t make these changes by himself. The OLC withdrawal was Jack Goldsmith’s doing, and a signing statement on the DTA showed Bush’s reluctance to accept limits on his power. But accept them he did. On the same day that Bush issued an executive order finessing the Geneva Conventions Common Article 3 as applied to the CIA, his OLC issued legal advice on what enhanced interrogation techniques are still on the table. It’s no human rights wishlist (sleep deprivation, reduced calorie diet, and four slapping/holding techniques), but waterboarding is nowhere to be found.
Yes, Obama restricted the intelligence community to the Army Field Manual. Waterboarding was long gone by that point. It has been resurrected as a talking point in defiance of legal reality, good policy, and core principles, but will not and should not be American policy. Again, get over it.
Monday Links
- It is false to assume that GM’s earnings report means the auto bailout was a success.
- It is false that, among other things, failing to raise the debt limit means defaulting on our obligations.
- It is false that Osama bin Laden’s death means torture is a good idea.
- It is false that international institutions can deliver what they say they can deliver.
- It is false that oil speculators are to blame for fluctuating oil prices:
On Prisoner Treatment and Interrogation
Matthew Alexander, former senior military interrogator in Iraq, says the abuse and torture of prisoners hurt the U.S. by giving up the moral high ground. He says the policy also helped al-Qaeda recruit and very likely slowed the effort to find bin Laden.
What Not to Learn from bin Laden’s Killing
The tendency to treat Osama bin Laden’s killing as national holiday akin to V-E day is both understandable and unfortunate. Everyone with a sense of justice appreciates the death of mass murderers, particularly the terrorist sort. But celebrating as if we killed Hitler or won a war plays into al Qaeda’s self-serving myth. Paul Pillar put it well:
An unfortunate irony of the huge reaction to the killing of Bin Ladin is that it continues to give him in death what he worked so hard to achieve in life: the status of arch foe of the most powerful nation on earth. It is a status that conforms with Bin Ladin’s narrative of himself as the leader of the Muslim world, protecting that world against the predations of the Judeo-Christian West, the leader of which is the United States.
We should also avoid drawing sweeping conclusions about our counterterrorism policies from Osama bin Laden’s death. We typically overgeneralize about important events. After the September 11 attacks, for example, even defense analysts tended to interpret al Qaeda’s capability largely through the purview of that plot, rather than treating it as a particularly important data point in al Qaeda’s history. The myopic take made al Qaeda seem far more capable than it was. With that in mind, here are several things that bin Laden’s death either cannot tell us much about or will not tell us much about until more information surfaces.
1. The war in Afghanistan. There are many reasons we should draw down in Afghanistan, but the bin Laden raid offers little intellectual ammunition for either side of the war debate. The intelligence that led to Abbottabad came years ago, from prisoners outside Afghanistan and operations in Pakistan. The helicopters flew from a base in Afghanistan, but it didn’t take a decade of war and a massive ground force to get that. The fact that bin Laden was living in an area of Pakistan where the state was relatively strong does nothing to support the idea that we should fight wars trying to build authority in ungoverned regions lest terrorists gain haven there.
But the fact that Sunday’s events do not serve pro-war arguments does not show logically, the correctness of the anti-war position, which is mine. The pro-war argument, flawed as it is, depends on other claims (i.e. terrorists will gain haven in Afghanistan if we draw down) that bin Laden’s death does not affect. That something is not an orange does little to tell you whether it’s a pear. Hopefully, however, bin Laden’s death may make it easier, politically to get out of Afghanistan.
Egypt’s Iraq Connection
Overall, President Obama was right to applaud the Egyptian military for defending (at least for now) rather than killing Egyptian civilians, potentially avoiding the Arab world’s Tienanmen Square. Whether Obama’s rhetoric could have been more supportive, as we saw with Tunisia, is up for debate. But it appears that Egyptian President Hosni Mubarak’s attempt to shape an orderly transition is running into trouble.
The New Yorker’s Jane Mayer reports that Mubarak’s recently appointed Vice President, Omar Suleiman, was “the C.I.A.’s point man in Egypt for renditions—the covert program in which the C.I.A. snatched terror suspects from around the world and returned them to Egypt and elsewhere for interrogation, often under brutal circumstances.” Suleiman used to be head of the Intelligence Services (al-mukhabarat).
According to U.C.S.B. Professor Paul Amar, the mukhabarat, which detains and tortures foreigners more than Egyptians, is less hated than the Interior Ministry’s State Security Investigations (SSI) (mabahith amn al-dawla), and different than the Central Security Services (Amn al-Markazi), “the black uniformed, helmeted men that the media refer to as ‘the police.’” Mayer reports that Suleiman Suleiman was also the C.I.A.’s liaison for the rendition of al Qaeda suspect Ibn Sheikh al-Libi. “The Libi case,” Mayer reports, “is particularly controversial, in large part because it played a role in the building of the case for the American invasion of Iraq.”
How ironic that America’s attempt to export democracy to Iraq was aided by a repressive government like Egypt’s.
Destroying Evidence = American Hero
That’s what the attorney for former CIA officer Jose Rodriguez is saying about his client. Rodriguez and other CIA personnel destroyed videotapes of detainee interrogations. The Justice Department announced that Rodriguez will not face criminal charges, but did not elaborate on the reasoning behind the decision.
Rodriguez’s decision to get rid of the tapes came after White House lawyers, responding to a court order, instructed the CIA not to destroy any evidence associated with detainee interrogations.
I know that the term “slippery slope” is overused, but it’s clearly evident here. Thwart the rule of law by declaring torture legal, thwart it again to cover up your actions.
Obama Administration Wins in State Secrets Case
A split panel of the 9th Circuit Court of Appeals decided, on a 6-5 vote, that a lawsuit filed by extraordinary rendition and torture victims is barred by the State Secrets Privilege. Over a year ago, a three-judge panel ruled that the case should proceed with traditional application of the Privilege — individual pieces of evidence would be excluded based on their secret nature, but other evidence would remain available for litigation.
Robert Chesney has some thoughtful commentary on how the current state of the law deals with rule of law versus individual justice concerns. By any measure this is, as Glenn Greenwald notes, a broad victory for the government and further evidence of continuity between the Bush and Obama administrations’ approaches to terrorism.
Wednesday Links
- Is there a place for gay people in conservative politics? We’ll be discussing it today at Cato. Watch here live at 12 PM EST.
- President Obama announces $8 billion in loan guarantees to build a new nuclear power plant in Georgia. But are government subsidies for pet energy projects a good idea?
- What happens when the Olympics don’t go completely according to plan.
- Podcast: “Lessig, Schumer and Citizens United” featuring John Samples.
Greenwald on the Arrar Ruling
Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day. Here’s an excerpt:
Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing. I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.
Read the whole thing. Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.
The Strategic Corporal
Retired Generals Charles Krulak and Joseph Hoar have an op-ed over at the Miami Herald making some important arguments against using “enhanced interrogation techniques.” Krulak served as Commandant of the Marine Corps and Hoar served as CENTCOM Commander. CENTCOM is short for Central Command, the regional military command responsible for the Middle East.
Krulak and Hoar endorse the Interrogation Task Force’s recommendation that all future detainee interrogations be conducted within the guidelines in the Army Field Manual on Interrogation. In doing so, they make a point that may be difficult to see unless you have been a leader in the military: condoning torture, or any mistreatment of prisoners, erodes discipline in a military organization.
Rules about the humane treatment of prisoners exist precisely to deter those in the field from taking matters into their own hands. They protect our nation’s honor.
To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.
Krulak is no stranger to this topic. In a 1999 article, The Strategic Corporal: Leadership in the Three Block War, Krulak highlighted the difficulty of deploying to low-intensity conflicts and the challenges that enlisted Marines (and soldiers) will face. In a single conflict, a unit could be engaged in humanitarian aid on one block, quelling a riot on the next, and fighting pitched urban combat on the third. Small units led by a corporal may have to take on captain-sized problems. Krulak stressed the importance of leadership and character at the lowest level so that when an officer is not present, low-level leaders will act with the necessary initiative and decision-making skills. The cornerstone for all of this is character.
Honor, courage, and commitment become more than mere words. Those precious virtues, in fact, become the defining aspect of each Marine. This emphasis on character remains the bedrock upon which everything else is built. The active sustainment of character in every Marine is a fundamental institutional competency — and for good reason.
Torture apologists may be found aplenty inside the Beltway, but those who have worn the uniform know better.
State Secrets, State Secrets Are No Fun
Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.
That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.
That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.
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