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Coming to Grips With Appendix M

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

This week may have foreshadowed the kind of twists and turns we can look forward to as more information about the US torture program becomes public. Jeff Kaye took note of a Washington Times story about how Jonathan Fredman, the top CIA lawyer for the agency’s interrogation program, disputes the record of an October 2002 interrogation meeting. According to the minutes this is where Fredman uttered the immortal words about interrogation, “If the detainee dies you’re doing it wrong.” It seems he or an ally does not wish for that to be the lasting impression of him because the Times article rather remarkably disputes the notes themselves.

Meeting notes seem to me to be fairly uncontroversial things. It certainly is rare for contemporaneous notes of one to spark debate. The usual procedure is basically: Have someone scribble down the main points people are making during the meeting, then afterwards type them up and send them out. Maybe something needs to be sharpened or modified in some way, but according to the Times “Mr. Fredman says the writer of the 2002 memo misconstrued enough of his points that the memo is unreliable.” That gets my antenna up. While I suppose it is possible for someone to get huge swaths of a meeting fundamentally wrong it does not seem very likely. It sounds more like a somewhat desperate and implausible attempt to rewrite history.

Fredman’s efforts to reshape an already-settling record is not what really interested me in Kaye’s post, though. It was his description of how the Army Field Manual (AFM) was lurking below the surface of the torture debate and will sooner or later emerge as yet another large knot to untangle. I had been under the impression that the military had a much stricter standard for interrogations, and once president Obama put the CIA under the AFM we had at least ensured torture would not be an issue going forward. It will not be quite so simple. Kaye pointed out in another post that in September 2006 Donald Rumsfeld ordered the overhaul of the AFM. The revised edition contained a section, Appendix M, which may have been initially intended to be classified. (Given what it contains this is yet another reason to be extremely skeptical of classification claims, for national security or other reasons.) It authorizes a set of interrogation procedures that go by the euphemism Separation. Kaye analyzes them, then arrives at the following commonsense formulation: “The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment.”

It turns out the whole “get it under the AFM=problem solved” calculus doesn’t work. The AFM is not what it used to be, and we now have to look forward to the prospect of people who performed interrogations under what had previously regarded as an unassailably legal set of guidelines now finding themselves on the wrong side of the Geneva Conventions. We can look forward to defenses such as this from Decline and Fall:

If you’re concerned about Appendix M, I suggest working toward an update of the Geneva Convention on Torture to reflect the changed face of combat in the 21st Century. The Army Field Manual is not the problem, the outdated definitions (and only the outdated definitions, in my opinion) of the GC are.

This is the kind of framing I expect to see once the issue becomes more prominent (which I think it will). It puts adherence to the AFM above our treaty obligations, and implies that violating the Geneva Convention is acceptable if policymakers conclude its definitions are outdated. The use of the term “detainee” to specifically avoid Geneva terminology - and the humane treatment such a designation carries - is not a willful effort to violate the law but a legal black hole that those quaint Geneva Conventions are inadequate to address. Expecting for us to formally withdraw from such archaic agreements prior to violating them, or inquiring as to legal jeopardy for those who do so, is a vengeful exercise in criminalizing political differences.

We will probably continue to see issues like this; be prepared for more unpleasant surprises. For as nice as it would be to believe the systematized torture program begun during the Bush years is a thing of the past, key pieces of its infrastructure are still in place. Sometimes they are not in plain view. But if they are not dismantled when brought to light they will make it that much easier for a similar program to be reconstituted at the flip of a switch. We have to deal with them - and the arguments that support them - before the political winds shift again.

This Week In Tyranny

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


I’ve overlooked this for a couple weeks now but Manfred Nowak, the UN’s Special Rapporteur on torture has explicitly said that the US is violating its obligations under the Convention Against Torture (CAT).  As I wrote on Thursday, the question really should be whether to prosecute or withdraw from the CAT.  Happily, on Tuesday Congressmen John Conyers and Jerrold Nadler demonstrated that they understood that.


Daniel Larison is one of my favorite conservatives because he writes things like this:

Or more precisely, why is the belief that the torture of captured combatants is wrong compatible with anything other than some form of pacifism? I mean this an actual question, not as a passive-aggressive assertion. ~Jim Manzi

One of the things that has kept me from saying much over the last week or so is my sheer amazement that there are people who seriously pose such questions and expect to be answered with something other than expressions of bafflement and moral horror. Something else that has kept me from writing much on this recently is the profoundly dispiriting realization (really, it is just a reminder) that it is torture and aggressive war that today’s mainstream right will go to the wall to defend, while any and every other view can be negotiated, debated, compromised or abandoned. I have started doubting whether people who are openly pro-torture or engaged in the sophistry of Manzi’s post are part of the same moral universe as I am, and I have wondered whether there is even a point in contesting such torture apologia as if they were reasonable arguments deserving of real consideration. Such fundamental assumptions at the core of our civilization should not have to be re-stated or justified anew, and the fact that they have to be is evidence of how deeply corrupted our political life has become, but if such basic norms are not reinforced it seems clear that they will be leeched away over time.

 

Larison seems to usually argue from the principles he claims to champion.  This might not be a novelty in other times - may in fact be the kind of thing one might expect in opinion wholesalers if not politicians - but in the modern conservative movement it is a fabulous curiosity.  However, I suspect it is folks like him who will be the intellectual foundation of the new conservative movement once the current one completes its self-immolation.


Spencer Ackerman (emphasis in original):

if SERE instructors and officials reverse-engineered their program to keep someone awake for extended periods, either they didn’t understand that sleep deprivation is bad for acquiring information or they were interested in extracting false confessions

I hate to argue about torture from a practical standpoint - that we shouldn’t do it since it produces desperate pleadings and false confessions along with/instead of any scraps of actual useful information, and you’ll burn up disproportionately huge resources trying to find the needle in the haystack, or whether a needle is even there.  Once you go there the torture apologists then get to engage in lots of sober reflection and chin stroking over just how much cruelty one may inflict in the pursuit of just how much public good, and down that rabbit hole I refuse to chase.  Having said that, the deeply ignorant or dishonest nature of the torture program architects is a remarkable sight to behold.


So Prairie Weather tipped me off to this, which struck me as really great news, then Avedon brought me back down to earth.  Will he actually do anything about executive power grabs or will he live up to his nickname?  (Quick history lesson:  He was nicknamed Scottish Law because of his “not proven” vote during the Clinton impeachment, which Marcy then downgraded to Scottish Haggis out of her “frustration with his increasing cowardice” during the Bush administration.)  If the past is any guide he either is reluctant to confront the president at all or won’t do so when his party controls the White House.  In other words, it’s probably wise to not hold your breath.


Mark Danner:

torture is at its heart a political scandal and why its resolution lies in destroying the thing done, not the people who did it. It is this idea of torture that must be destroyed: torture as a badge worn proudly to prove oneself willing to “do anything” to protect the country. That leads to the second paradox of torture: Even after all we know, the political task at hand — the first task, without which none of the others, including prosecutions, can follow — remains one of full and patient and relentless revelation of what was done and what it cost the country, authoritative revelation undertaken by respected people of both parties whose words will be heard and believed.

May he publish frequently and prominently in the coming months and years.


I’ve started to think of all financial industry and Wall Street malfeasance under the umbrella term of “bailout.”  It’s a short, useful term, so I’ll use it in the context above and not just for the $700 billion approved by Congress last year.  That said - two bailout items:  How to stack the deck in your favor and how to play a stacked deck.


I feel obliged to note politically motivated murders, so: noted.


UNPACKING JANE:  In light of recent events this from page 156 is as current as the front page of today’s paper.  Abu Zubayda is being interrogated by the FBI using standard interrogation techniques (side note - the scumbag behavior attributed to George Tenet in these pages is nauseating as well):

“AZ,” an informed source said of Zubayda, “was talking a lot.” The FBI agents believed they were getting “phenomenal” information. In a matter of days, a CIA team arrived and took over, freezing out the FBI. The apparent leader of the CIA team was a former military psychologist named James Mitchell, whom the intelligence agency had hired on a contract. Oddly, given the agency’s own dearth of experience in the area of interrogating Islamic extremists, he had no background in the Middle East or in Islamic terrorism. He spoke no Arabic and knew next to nothing about the Muslim religion. He was himself a devout Mormon. But others present said he seemed to think he had all the answers about how to deal with Zubayda. Mitchell announced that the suspect had to be treated “like a dog in a cage,” informed sources said. “He said it was like an experiment, when you apply electric shocks to a caged dog, after a while, he’s so diminished, he can’t resist.”

Sincere question: Aside from the price tag of around $1000 a day what did ABC add to the story?  This stuff had been out there for years.  Why is the media deciding it’s worth reporting on now?  Why wasn’t it then?  Pack mentality, laziness and corruption in the form of catering to elites in exchange for access are my best guesses.

The Argument Torture Apologists Refuse To Make

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

Now that we are seeing more and more details about the Bush administration’s torture program, it is forcing those in favor of it do defend in greater detail. Right wing blogs have been the lustiest advocates. Even someone like A.J. Strata who in his own words has “left the conservative fevered swamps” can write of the left: “Their base is adamant that there be public witch hunts against the Bush administration for being aggressive in the war on terror, and for inflicting a faked drowning reaction in established mass murderers tied to 9-11.” The terminology is fascinating - investigations are witch hunts, the gutting of habeas corpus is being aggressive, waterboarding is fake drowning (sounds more like a girl at the beach trying to get a lifeguard’s attention), and Abu Zubaydah and Abd al-Rahim Nashiri have been transmuted through some heretofore unknown Terrorism Philosophers Stone from low level al Qaida functionaries - or potentially even less (via) - into key architects of 9/11. From there, the story goes, these people gave up valuable intelligence. The subtext: They had it coming.

Moving up the conservative food chain, on Tuesday Fox News reported that Khalid Sheikh Mohammed was waterboarded far fewer than 183 times in a single month, and therefore reports of his torture are “highly misleading.” It grants that he was waterboarded but will not acknowledge that waterboarding is torture, allowing only that president Obama banned it because HE thinks it is. The article quotes an anonymous official who breaks down the waterboarding into individual “pours” (you know, like you’d pour yourself a drink) and then tries to compress these pours into single waterboarding “sessions.” And in any event, as David Rivkin and Lee Casey argue (via), as long as it is closely monitored and certain details (such as not allowing water to actually enter the lungs) are observed these sessions are above reproach. This is what I called the strategy of “play, pause and explain” last year - take something horrible, play it back a little, pause the tape and explain why that little bit it isn’t really so bad; repeat. By chopping it up into many little pieces the accumulated violence of the whole event can be rationalized.

Top conservatives were busy, too. This past Sunday George Will said “if we are going to say meretricious lawyering is a crime…what do you do about those who are commissioning the lawyering and whose behalf the lawyering was done. Condoleezza Rice, Don Rumsfeld, Dick Cheney and George Bush.” The main argument at this level is that investigating torture would amount to criminalizing political differences. Teddy Partridge did the honors on that one. Notice the theme of inept counsel too. Administration officials did not solicit and receive criminally negligent advice, but were unknowingly handed bad advice. They then innocently toddled off in blissful ignorance of their legal exposure. Sorting out which it really was would require an investigation, of course, and since we are now looking forward we cannot ever possibly determine that.

Here is the problem with all of those arguments: Waterboarding has been universally regarded as torture for hundreds of years - this is no “some say…” debate - and the United States is a signatory to the Convention Against Torture (CAT). As Andrew Sullivan points out, the CAT is explicit - any act of severe pain, no exceptions. As Glenn Greenwald points out, Article VI of the Constitution states that treaties we sign are the supreme law of the land (legalism to watch for: the CAT and Geneva Conventions are not technically treaties so they are not binding). Therefore, even if those tortured were key players, even if they gave us a trove of fantastically valuable intelligence and even if it was only done one time it still is a war crime that we are obligated to prosecute. Even if we discovered some novel wrinkle to waterboarding that distinguishes it from what was done by the Khmer Rouge or during the Spanish Inquisition, we are still obligated to prosecute. Even if the decision came as a result of the worst lawyering in the history of law and threatens to lead all the way to the Oval Office, we are still obligated to prosecute.

All the arguments from torture apologists amount to an insistence against that. If they were honest they would not be approaching it from any of the points of view above. They would not be trying to convince us that waterboarding isn’t torture, that it wasn’t done very often, that it wasn’t real according to Hoyle waterboarding, that the lawyers screwed up or that it would be terribly difficult to hold the previous administration responsible. Instead they would simply argue that we withdraw from any agreement that obliges us to do anything about it.

This Week In Tyranny

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


Torture was all over the news this week.  I thought we knew enough details to merit this kind of attention years ago, and I’m not sure why the complete refusal by the Bush administration to submit to any kind of oversight (or Congress to demand it) was not an ongoing scandal when it started, but whatever the reason it’s nice to see so many media outlets willing to give it the time now.  Two points that don’t receive nearly the attention they should:  One, the US is obligated to investigate and if necessary prosecute torture.  Investigations should begin immediately, and if the authoritarian right wants to argue that we should withdraw from the Geneva Conventions and the Convention Against Torture then we should have that discussion.  But enforcing international law that we have freely agreed to isn’t really up for debate.  Two, torture involves a mental as well as physical component.  US soldiers being waterboarded as part of SERE training experience it in a different psychological universe than prisoners at the mercy of captors with an unknown capacity for cruelty.  Saying that any SERE techniques are by definition not torture, and fine for use on detainees, is inaccurate - and at best disingenuous.


I wrote about seeing new sides of familiar faces on Thursday but didn’t have room for this as well.  I want to type these words now because it may be the last time they can be written:  This week Antonin Scalia came out forcefully in defense of the Fourth Amendment and in a concurring opinion wrote “I would hold in the present case that the search was unlawful.”  (Strange days indeed.)


Marc Thiessen wrote that torture worked.  A roundup of takedowns here and here.  “The job of the interrogator is to safely help the terrorist do his duty to Allah, so he then feels liberated to speak freely” may be as pure a formulation of evil as you will see published in a major newspaper Op-Ed.


About a year and I half ago I wrote that bloggers like Marcy Wheeler and Josh Marshall are this generation’s Woodward and Bernstein.  I’ve had Marcy on my blogroll since I’ve had a blogroll and I can’t tell you how happy I am for her recent recognition.  She has a big, fat brain and has been using it for years to painstakingly put together plausible timelines and make educated guesses about how various forms of suspicious behavior and potential criminality might have gone down.  She has been doing the kind of work I complained about news outlets not doing in the first item above.  Imagine how much better her work would have been if she’d had access to the kind of resources those outlets have refused to employ lo these many years - ability to work at it full time, proximity to the major players, a legal and investigative infrastructure to fight (and stand behind) her, etc.


Jane Harman got religion this week.  Glenn responded.  Those of us who were losing our minds about the attempts to gut FISA - itself a less than robust surveillance monitoring program - can only marvel.  You really didn’t think this stuff wouldn’t be used against you, dumbass?


Fusion centers:  Force multipliers.  Sound good?


Lots of prisoners unaccounted for.  Probably will not qualify for personhood status if found alive, anyway.


UNPACKING JANE: From page 236:

[Former General Counsel of the Navy Alberto] Mora went on, “It seemed odd to me that the actors weren’t more troubled by what they were doing.” Many administration lawyers, he said, appeared to be unaware of history. “I wondered if they were even familiar with the Nuremburg trials - or with the laws of war, or the Geneva conventions. They cut many of the experts on those areas out. The State Department wasn’t just on the back of the bus - it was left off the bus.” Mora understood that “people were afraid that more 9/11s would happen, so getting the information became the overriding objective.  But there was a failure to look more broadly at the ramifications. For as long as these policies were in effect our government had adopted what can only be labeled as a policy of cruelty,” he said. “Cruelty disfigures our national character. It is incompatible with our constitutional order, with our laws, and with our most prized values…Where cruelty exists, law does not.”

Investigate Torture - After The Deluge

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

During the Bush years it seemed as if the stifling of debate on torture caused a great tension to build, but that pent-up frustration has finally started to release. The last few weeks have seen a dizzying series of developments, starting with Mark Danner’s first article on torture at CIA dark sites. That, along with his subsequent publication of the International Committee for the Red Cross’ report on it, may have removed any remaining arguments against releasing the torture memos. So they were released, all hell broke loose, and we now may be in the early stages of a circular firing squad.

With details of the horrors we engaged in emerging it has become vital for anyone implicated to shift blame. Omertà has been violated, and it has started to look like the political equivalent of the paradox of thrift - actions that benefit individuals harm the larger group. It leads to exchanges like the one detailed here, where Nancy Pelosi claims that she was never told any of the torture methods the CIA briefed Congressional leaders on were actually going to be used (did she think it was a purely academic discussion?) and Porter Goss emphatically contradicts her.

The cascade of revelations has been somewhat disorienting, though. In addition to the sheer volume are the startling new sides of some familiar figures. Dick Cheney has become downright voluble, for example, and made the positively eye-popping request that additional torture documentation be released. Problem is, he has very little credibility left. His assertions are casually dismissed to scattered laughter, not regarded as the sober judgment of a master bureaucrat. Maybe that is the appropriate way to remember him, and for him to know he is thought of: An object of scorn and ridicule, not some kind of dark genius. He should be accountable for his actions, obviously - they were anything but trivial - but as a thinker maybe he is best remembered as a lightweight and a clown.

Perhaps he is talkative because details are emerging far differently than he imagined. Former federal prosecutor Elizabeth de la Vega is an extremely persuasive voice (via) for this new dynamic: Hold off prosecutions for now and let the revelations keep leaking. Why? Well, we need to have a public debate about torture; for as uncomfortable as it may be at times we need to go through the details and arrive at a firm consensus on whether or not to torture, and how to implement it if so. I will yet again invoke Jane Mayer’s “tricky legalisms adopted in classified memos” argument - This is the discussion the Bush administration should have started with the country around December 2001. Let’s have it now, better late than never. As de la Vega notes, a grand jury investigation would largely shut down the public debate.

Holding off on legal action also allows what she describes as an “irrefutable and cohesive factual narrative” to form, which would greatly assist any future investigation. She pointed out on Countdown that the Libby investigation was ultimately unsuccessful because it failed to get at the truth. Would using the same tool against the same people have a good chance at succeeding? Cheney appears to have conducted himself in a way that maximizes his insulation from exposure in just such a criminal investigation. In that sense launching one now gives him home court (har) advantage. What he did not seem to anticipate was a bunch of people blabbing to journalists to save their own skins in a highly irregular form of unsworn public testimony. Having the narrative assemble that way is something he probably never anticipated.

Why not let it continue for a while? Do not forswear investigations or prosecutions, just hold off for maybe a few more months. The system that we trusted in - both in Congress and in the courts - failed to deal with these issues while the principals were in office. Why go back to them in exactly the same way now? Letting everyone whisper to their preferred sources may produce a durable public opinion on torture and aid legal action down the road. At the beginning of last month I wrote strongly in favor of an independent prosecutor and against a Congressional “truth commission”, but de la Vega has persuaded me otherwise. Let everyone get their stories out there, then have Congress hold public hearings. Let their immediate self interest work against their collective long-term interest. Let human nature take its course. There will be plenty of time for criminal investigations after the dam has burst and revelations slow to a trickle.