Pruning Shears

No Associated Press content was harmed in the writing of this post

The big news this week was obviously the release of the torture memos.  It was a strong, principled move by president Obama and he deserves a lot of credit for making what was an unpopular move with much of the Washington establishment (it isn’t just a select few higher-ups in the CIA we’re talking about - think about how poorly this reflects on the press corps as well, for example).  It was gratifying to see the wide range of response too.  For once it felt like more than just the usual suspects were outraged.  It may well have been a turning point.  I don’t have anything to add to all the commentary; most of it was excellent.  My favorite take came from Spencer Ackerman:

These are medieval documents, these Office of Legal Counsel memos. And not just in the sense that torture techniques like the waterboard date back to medieval times, but in the way that the OLC acted for the CIA. These memos are basically colloquys between John Rizzo, then the acting CIA legal counsel and either Jay Bybee (in 2002) and Steve Bradbury (in 2005), the OLC chiefs, in which Rizzo asks OLC what the CIA can legally inflict on detainees. OLC, like a medieval priest, finds the right incantation to transform a dark act into a holy one.

And God bless the ACLU.

Two more responses from the memos are worth noting.  First, let me back up a bit.  In “Our Dumb Century” by The Onion there’s a running gag after V-E day that major events get sub-headlined with “France Surrenders”, as in “US DROPS ATOMIC BOMB ON JAPAN (France Surrenders)” or “MAN WALKS ON THE MOON! (France Surrenders)”, etc.  I feel like “Leahy Calls For Hearings” is approaching similar territory.  Is there a politician in America that seems more ineffectual or impotent?  Seriously.  I’d like to know.

Meanwhile, Michael Hayden and Michael Mukasey checked in with the special flavor of crazy we’ve come to associate with the Bush era.  Some quotes and my off the cuff thoughts on them:

• “[P]ublic disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.” Maybe some of us don’t want to exceed those limits.  Maybe we can get what we need without exceeding them.
• “Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption.”  Only a sociopath could so casually dismiss revulsion at torture as false, and if the subject was so easily consumed by media then perhaps the “newspaper of record” might have been willing to actually use the word “torture” when discussing this issue!  To suggest the media has been eager to discuss this is to be almost entirely ignorant of how it has strenuously tried to ignore it when possible and soft pedal it when not.
• “Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.”  First, it’s not about them - it’s about us.  Second, name one life such techniques have saved.  Third, anyone making this argument ought to be in favor of a full and public investigation, since it will surely reveal the value of torture to our national security and end the debate once and for all.  That last point seems to me to be key:  If you insist it works you should be eager for everyone to know it.
• “Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.” Some examples, please. How did it work? When?  Again: Let’s have an investigation so the whole world can see how great it is.
• “The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which — when combined with what was learned from Abu Zubaydah — helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S.” See here.  Zombie lies.

I forgot to link to this last week, but here is yet another example of why fusion centers are so dangerous to civil liberties.  The whole setup seems to take the accumulated fears and paranoia of all involved and inflate them further:

“There is an appalling lack of oversight at these fusion centers and they are becoming – as the ACLU has repeatedly warned – a breeding ground for overzealous police intelligence activities,” said Michael German, ACLU Policy Counsel and former FBI Agent, in a release. “The Virginia threat assessment isn’t just disturbing for encouraging police to treat education and religious practices with suspicion, it’s bad law enforcement. Lawmakers from all levels of government need to enact legislation to protect against these spying activities that threaten our democracy while doing nothing to improve security.”

Memo to right wingers still hyperventilating over the DHS report:  Consider sparing some energy for this as well.  Think of it as the next step in your rehabilitation.

If you want to know what kind of nonsense can happen with overbroad monitoring that that outlined above, see here.  Clearly something as inscrutable as “ls -lrt” can only be some kind of secret terrorist language.

From Raw Story, “Cybersecurity Act would give president power to ‘shut down’ Internet” and “Judge allows suit against Cheney’s Secret Service detail to proceed.”  The first refers to a bill co-authored by Jay Rockefeller, who did not exactly cover himself in glory in the telecom immunity debate last year.  The second is yet another reminder of what a scumbag Dick Cheney is.  I’d forgotten about that episode and I’m glad to know it’s still alive and kicking.  Telling an elected official you are disgusted with his policy is called free speech.

Joe Biden is one of those people (Chuck Schumer is another) who seems almost compelled to comment at length on just about anything anyone asks him about, so his silence on any issue is telling.  The State Secrets Protection Act looks like completely reasonable legislation, particularly in light of the executive branch’s abuse of it in the last few years.  This should be an easy call for the administration.

Given the good news from the president this week I’ll give the happiest possible spin to the news that he’s taking a hard line towards the denial of habeas corpus for detainees.  Lawyers will often search for test cases to challenge up to the Supreme Court - ones where the particulars seem especially favorable for the highest court establishing a new precedent or repudiating an old one.  It’s possible - not likely, but possible - that the administration wants to take a hard line on Bush administration detainee policy with the goal of having it overturned by the Supreme Court, thereby creating a much more durable repudiation.  Reversing a predecessor’s policy is relatively easy; getting the Supreme Court to establish new case law is not.  The more likely explanation is that he supports the policy, but I’m now willing to at least consider that a longer and more subtle strategy is playing out.  Of course, even if that is the case it doesn’t change the miserable facts of the detainees’ existence.  They may not be especially enthusiastic about continuing to have their lives pass them by while the president pursues his preferred legal outcome.

One of those detainees proved surprisingly resourceful this week, calling a media outlet when he was supposed to be calling a relative - and had some surprising claims about mistreatment:

“This treatment started about 20 days before Obama came into power, and since then I’ve been subjected to it almost every day,” he told Al Jazeera. “Since Obama took charge he has not shown us that anything will change.”

At least some of those who engaged in abuse during the Bush administration appear to want to make sure Obama is implicated as well. If Obama continues to do nothing, mission accomplished.  Just something he might want to keep his mind as cases wind their way through the legal system.

UNPACKING JANE: On Jack Goldsmith’s encounter with the torture memos after he took over the OLC.  From pp. 266-7:

The memos clinically parsing the legal boundaries of permissible pain were fairly bloodless and sterile on one level, but astonishing on another.  The idea of torture scared and repelled him.  He knew very little about it, other than what everyone knew, which was that it was among the last nearly universal moral taboos, forbidden by every major religion and civilized government.  But Yoo’s bureaucratic nit-picking about ways around the torture ban was weirdly numbing.  On paper, the techniques didn’t look so bad. Also, Goldsmith worried that perhaps the national security experts had reason to take these aggressive steps.  He didn’t want to be the one second-guessing them, especially in the event of another attack.  Bit by bit, Goldsmith convinced himself that it would be best to set aside his personal qualms. The moral trade-offs between torture and security were so difficult, he saw them as questions for the President.  His job as a lawyer, he told himself, was simply to provide legal analysis. His political and moral opinions were irrelevant.  He hadn’t yet realized that it was the lawyers, however, who were defining the counterterrorism policy, since the elected officials wanted to do everything that the law could possibly be said to allow.