Tuesday, November 15, 2005


I fear that the Bush administration is establishing a disturbing new standard in the realm of the rule of law, detainee treatment and human rights more generally. This is highlighted by Bush's recent statement that "we do not torture" which is lingering in the air rather conspicuously as the Vice President works fastidiously behind the scenes in Congress to undermine an amendment put forth by John McCain that would codify the President's words.

Cheney is seeking a carve out an exemption in the law that would allow the CIA to engage in what is ultimately torture (despite the strained legal reasoning of those in the Bush administration that argued in legal memoranda that interrogation techniques only rise to the level of torture if they cause pain tantamount to "organ failure or death," and, even then, only if such result was the intent of the interrogator) [As an aside, I'm still waiting for someone to explain to me how painful "death" is. Oh wait, anyone in the know is already....dead. How 'bout a seance then?]. Some, however, are not satisfied with the Bush administration's touchy-feely approach. The Wall Street Journal editorial board thinks Cheney is being too soft. That's right, according to the good folks over at the WSJ, it would be unfair to limit the exemption to the CIA: Every government agency should have the same latitude to mistreat detainees.

Marty Lederman provides an excellent overview of the McCain amendment battles, and some insight into what practices, exactly, are being fought over. Remember: not torture.

...in his confirmation proceedings, the Attorney General [Gonzales] represented that "some" techniques from among waterboarding, use of dogs to induce stress, forced nudity, hooding, sensory deprivation, food and sleep deprivation, exposure to extreme temperatures, a face or stomach slap, the forcible injection of mood-altering drugs, mock executions, and threatening to send detainees to countries where they would be tortured "might...be permissible in specific circumstances, if appropriately limited, depending on the nature of the precise conduct under consideration."...Judge Gonzales could not ensure the Senate that reported practices such as forced enemas, infliction of cigarette burns, and binding detainees hand and foot and leaving them in urine and feces for 18-24 hours, are legally off-limits.

Tim Flanigan (then the nominee to be Deputy Attorney General) wrote to the Senate that he was unwilling to say whether waterboarding -- "intentionally inducing a detainee's perception of suffocation" -- is unlawful, because that "depends on all of the relevant facts and circumstances."

....DOJ reportedly has informed the CIA that it may, outside the U.S., lawfully use extreme methods such as waterboarding, the threat of live burial, and threatening rendition to sadistic interrogators in other nations -- and why the CIA reportedly has used at least some of these techniques in its interrogations.

-- And that's apparently why the CIA believed that it was entitled, along with a small team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions, to assault a detainee with fists, a club, a length of rubber hose, and the handle of a sledgehammer. (Senator Stevens apparently intends to exempt foreign agents of the U.S. such as the Scorpions, from the McCain prohibition, too: they are, in his words, persons who "may not be citizens of the United States, but are working for us.")
Many Bush supporters are quick to argue that some of these interrogation techniques (such as waterboarding) are not torture because they are not physical punishment per se, but rather psychological stresses. For those pursuing that line of argumentation, Andrew Sullivan has some graphical depictions of the putatively "harmless" practice of waterboarding. Now tell me this, is that the vision of America that you hold? Sounds more like the Soviet Union or Vietnam. Well, actually, funny I should mention that. From the New York Times noted (via praktike):

The Pentagon effectively signed off on a strategy that mimics Red Army methods. But those tactics were not only inhumane, they were ineffective. For Communist interrogators, truth was beside the point: their aim was to force compliance to the point of false confession.

SERE methods are classified, but the program's principles are known. It sought to recreate the brutal conditions American prisoners of war experienced in Korea and Vietnam, where Communist interrogators forced false confessions from some detainees, and broke the spirits of many more, through Pavlovian and other conditioning. Prolonged isolation, sleep deprivation, painful body positions and punitive control over life's most intimate functions produced overwhelming stress in these prisoners. Stress led in turn to despair, uncontrollable anxiety and a collapse of self-esteem. Sometimes hallucinations and delusions ensued. Prisoners who had been through this treatment became pliable and craved companionship, easing the way for captors to obtain the "confessions" they sought.
Now many of the above listed techniques could also be classified as "psychological" and not physical (to the extent such a distinction is instructive or meaningful anyway). So am I to conclude that Cheney, the WSJ Editorial Board and other Bush supporters think such methods were perfectly legitimate? Not torture? Maybe Dick Durbin was on to something after all.

I wonder what the American soldiers who endured such treatment would say. At least one, John McCain, has already made his opinion known and he is emphatic about his disgust. Sadly for McCain, the rest of the Republican Party doesn't share his distaste for North Korean interrogation techniques. While it's hard to limit one's choices, one of the more disturbing aspects of the "SERE" story is that the methods employed by these Communist regimes were not even designed to elicit actionable intelligence - just force confessions from broken prisoners.

Keep this in mind when you consider all we are giving up in exchange for the carve-out allowing us to torture and "disappear" prisoners. As I've argued before, torture isn't even particularly effective as an intelligence gathering tool - especially when you're copying methods that weren't even designed to serve such a purpose in the first place. But, as Mark Kleiman and others have argued, any marginal successes in intelligence gathering gained from torture are vastly outweighed by the damage done to our image and standing in the world. For the sake of preserving our legal access to this tactic of dubious value and certain costs, Cheney and his supporters would sacrifice our already tattered image at a time when winning hearts and minds is of paramount importance. Some strategy.

Another measure rattling along the legislative conveyer belt in Washington at this time (though comparatively under the radar) is a measure that would strip statutory habeas corpus rights from detainees at Guantanamo and presumably elsewhere. Katherine and Hilzoy at Obsidian Wings are all over it in far more detail and insight than this post would allow. The purpose of such legislative moves is to push the envelope in the direction of empowering the Executive branch to implement indefinite, unrestricted detention of suspects - a matter of heightened concern given the recent revelation of "black sites" across Eastern Europe in what appears to be some sort of variation of extraordinary rendition theme. A loss of such habeas corpus rights would also, not coincidentally, limit a prisoner's access to courts to make claims of abuse, torture and mistreatment - or to forestall imminent deportation under the rendition regime.

A look at the justifications offered for such practices is telling, and it reveals the crux of how the Bush administration is setting a new, lowered standard in so many areas that the United States used to lead in - rhetorically and by example. Time and again, Bush administration officials take pains to deny that they are employing "torture" or that they are abandoning the principles and values associated with our respect for the rule of law, human rights, humane detentions and treatment of the accused. Yet, in practice, they are betraying our ideals across the board. If one pays attention to the denials, there are coded justifications and an underlying rationale being communicated.

The exchange between a reporter and State Department spokesman Adam Ereli at a recent press briefing (excerpted by Laura Rozen) is a perfect example. In Ereli's attempt at the feint and dodge of the half-denial, he relies on all the usual suspects: we are fighting terrorists in an unconventional war, they are out of uniform, they deliberately target civilians, they represent a grave threat, they are evil, the Geneva Conventions don't apply and the President must use any and all power to defeat them.

What is interesting is that these justifications are raised by pundits, administration officials, Scott McClellan and even Bush himself in the context of denials of torture and other activities that run contrary to our stated principles. But if we really don't torture, and really don't support policies that deviate from the norm, why describe the enemy in such exceptional language - language that creates the basis for justifying a utilization of new, "special" tactics? What difference does it make who we are fighting if the answer really is: we do not torture no matter what, and we will not compromise our values no matter who the enemy is. Why raise these points repeatedly when asked about torture and denial of rights if there is no connection?

The truth is, these interjections are not just a randomly repeated non-sequitur. There has been an elaborate legal edifice for a new regime of laws and practices erected on just that premise: the old "quaint" rules don't apply because of who and what we are combating. A new code of conduct for a new enemy. The broader implications of this radical standard are frightening.

Think about it: If we are saying that torture, indefinite detention without trial, ghost facilities, suspension of habeas corpus rights, denial of access to attorneys, denial of access to the Red Cross, etc., are all acceptable measures to take when a nation confronts a terrorist threat, then we will surely have to water down or withhold our condemnations of foreign nations that engage in the same practices. Maybe Egypt isn't so bad, at least when it's torturing and repressing Islamist extremists. Same goes for Syria, and Tunisia. Uzbekistan too. China, sorry for all the bad press. Why, after all, should we be free to engage in these practices but not these other nations? Surely the existential threat from terrorist forces, and other armed resistance, is no greater for us - much less in fact considering the size and strength of our nation. The bar has been lowered.

To some extent, our case was already weakened by the practice of extraordinary rendition anyway. It becomes increasingly hypocritical to condemn others for torture when we are asking those same nations on our list of offenders to, er, aggressively interrogate some of our prisoners for us - wink, wink - and, here's a list of questions to ask. But now, we could be entering a fuller, more complete hypocrisy.

Maybe we'll just have to draw the line between acceptable torture and denial of human rights, and the unacceptable variety. We'll decide who should and shouldn't be tortured domestically, and abroad. We'll serve as the arbiter of this moving target, and adjust the goalposts as we see fit. I'm sure the rest of the world will view such parsings and rationalizations in a positive light. The city on the hill and all that. As Kleiman noted:

Isn't it extraordinary how it's the people who reject "moral relativism" and insist on the black-and-white difference between good and evil who argue for making exceptions when it comes to torture?
Unless the Republican Party rises to defeat its leaders on these issues, there will be one more casualty from the Bush administration's tragically incompetent handling of the war on terror: Our moral authority. Rest in peace.

<< Home

This page is powered by Blogger. Isn't yours?