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This Week In Tyranny

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


Barack Obama seems to be trying to finesse his way out of doing anything about potential criminality or war crimes during the Bush era, but it just comes across as disingenuous dissembling to me.  A statement like “if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen” make me wonder, what would such a clear instance be to him?  To indulge in a little sarcasm, would Dick Cheney have to fall to his knees on Larry King Live and confess “yes, I did it!” for Obama to feel compelled?  There are sufficiently compelling indications right now to justify an investigation.  Quit trying to punt this down the road.  Either say you’re doing nothing or tell Eric Holder to go where the facts take him.  And trust me on this, if you do the former you’re satisfying the wrong people.


On a more positive note it looks like information is slowly starting to leak out on what has been happening in Guantánamo, though it is hard to think of it as good news when it confirms some of our worst fears about what may be happening there:

“In both cases, for example, [prisoners] were handcuffed to fixed objects above their heads in order to keep them awake,” reads the document. “Additionally, interrogations in both incidents involved the use of physical violence, including kicking, beating, and the use of “compliance blows” which involved striking the [prisoners] legs with the [interrogators] knees. In both cases, blunt force trauma to the legs was implicated in the deaths. In one case, a pulmonary embolism developed as a consequence of the blunt force trauma, and in the other case pre-existing coronary artery disease was complicated by the blunt force trauma.”

Also genital slicing, and other acts of torture that make waterboarding “very far down the list of things they did.”


It isn’t just Guantánamo, either. Bagram Air Base in Afghanistan and several locations in Iraq have also been used for large scale civil and human rights abuses.  It is not possible to quarantine disregard for treaty obligations or the law (domestic or international).  Once you start it somewhere it quickly spreads.  And the agents of transmission are at the top.


Please note:  Neither of the preceding items is to be taken as a clear instance of anything.  Thank you.


So Pentagon official Sandra Hodgkinson thinks Guantánamo is being run “fully in accordance with U.S. legal obligations.”  Hardly makes sense to shut it down under those circumstances, yes?  This along with the, um, ambiguous communication policy of the Defense Department policy towards the White House are just the latest indications that the president may not have captured the full attention (or respect) of military leaders.  I wonder if they realize just how destabilizing such an attitude can be if sustained.  Outsized military influence in national politics is more a feature of, say, Pakistan than Canada.  Of course, since it now seems nearly inevitable that sometime in the near future leading lights on the right declare themselves jihadis, perhaps this is by design and not an accident.


A note on our financial troubles.  So now it seems the plan is to give financial institutions lots of money to tide them over until their portfolio of worthless paper recovers some of its value.  Here’s the problem:  That paper is at the moment worth as much as it ever will be.  It will not rally, it will not rebound.  There has been a permanent loss of capital and those who suggest otherwise do so from deep in a well of denial.  This is like telling someone who bought Enron stock at $90 a share in August 2000 to keep hanging on to it after the price collapsed in hopes that it would, say, get back to 50.  (And you technically haven’t lost anything until you sell it!)  The problem with such wishful thinking is that it erects an enormous psychological barrier to moving on.  As long as you keep desperately hoping for some kind of recovery you’ll stay frozen in place.  The first step has to be acknowledging that money ain’t coming back and accepting that painful reality.  Until that happens we will continue to be stuck at a dead end.


UNPACKING JANE:  On page 151 Mayer writes about torture:

It might be banned, but what if the Bush Administration described the psychic stress and physical duress they hoped to exert on captives as something else? Among the euphemisms the President would employ in the years to follow were “enhanced” interrogations, “robust” interrogations, and “special” interrogations.  The redefinition of commonly understood crimes enabled Cheney to describe “waterboarding,” a process of partial drowning and asphyxiation that had been classified as a criminal form of torture in the United States since at least 1901, as “a no-brainer for me,” while at the same time insisting, “We don’t torture.” As William Safire, the conservative language columnist at the New York Times, wrote, “Some locutions begin as bland bureaucratic euphemisms to conceal great crimes.  As their meanings become clear, these collocations gain an aura of horror.  In the past century, the ‘final solution’ and ‘ethnic cleansing’ were phrases that sent a chill through our lexicon.  In this young century, the word in the news…is waterboarding.  If the word torture, rooted in the Latin for ‘twist,’ means anything (and it means the deliberate infliction of excruciating physical or mental pain to punish or coerce), then waterboarding is a means of torture.

The Bush Administration’s corruption of language had a curiously corrupting impact on the public debate, as well.  It was all but impossible to have a national conversation about torture if top administration officials denied they were engaged in it.  Without access to the details of the CIA’s secret program, neither Congress nor the public had the means to argue otherwise.  The Bush Administration could have openly asked Congress for greater authority, or engaged the public in a discussion of the morality and efficacy of “enhanced” interrogations, but instead it chose a path of tricky legalisms adopted in classified memos.

Who knows, there might even be some clear instances of wrongdoing in those memos.

Changing the Terms of the Debate

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

The Obama administration’s position on the state secrets privilege (SSP) this week strikes me as a continuation of last week’s debate over rendition. It has been very surprising to see people who, for example, explicitly argued in favor of a program that runs entirely without judicial or Congressional oversight come out six days later - six days! - with “It’s a big, big mistake for any branch of government to have the power to simply declare that whole subjects are out of bounds, without any check on its veracity.” Unfortunately it looks like the civil libertarian left is once again shying away from a clear articulation of principle, and is therefore once again setting itself up for a quick reversal. Consider the following.

Marc Ambinder defended the decision, writing “Obama certainly never promised Americans that he’d declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever.” Glenn Greenwald dismissed it (“as though there is anyone who actually believes that”), but I’d like to pipe up from my own little lightly trafficked corner of the internet that I DO believe it. The logic that draws distinctions between asserting state secrets to dismiss individual pieces of information as opposed to entire lawsuits is the same one that says extrajudicial extradition programs are fine as long as they don’t lead to torture. These are differences of degree and not kind. Both stem from the belief that suitably earnest assurances are an acceptable substitute for transparency and a legal framework.

This is not about taking a cynical stance towards our leaders but trying to take as detached an assessment of human nature as possible. The more power people have the more they will be inclined to use it. No matter how close or distant the bounds of that power they will push against it. If the president - any president - has unchecked powers, abuse is inevitable. While the SSP requires judicial review, justification can be incompletely or misleadingly presented. Judges might feel pressure to acquiesce and in any event customarily give “utmost deference” to such claims. And once a decision to exclude is made the evidence simply disappears. It does not get stored away for eventual release to the public domain, it just goes away.

The state secrets privilege is just that: a privilege. It is not a Constitutional guarantee or a law, it is a judicial custom. The privilege has been abused, so courts could simply stop recognizing it. It has in all likelihood preserved as many vital state secrets as torture has defused ticking time bombs. As Kevin Poulsen put it several years ago, “the list of cases in which the state secrets privilege has been invoked seems a pantheon of injustice.” The ability to nearly unilaterally exclude evidence is an irresistible temptation; over time the bad far outweighs the good.

In response to Obama’s position Greenwald and others have mentioned The State Secrets Protection Act (SSPA) as the remedy, but the need for such legislation is an implicit admission that the current program is outside the law. The SSPA would create a civil equivalent of the Classified Information Procedures Act (CIPA). It reads: “Secure judicial proceedings and other safeguards that have proved effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information.” There is no reason - none - for any piece of information to be wiped from the face of the earth. Everything should be recorded. If something truly extraordinary is at stake then keep it secret and assign an expiration date, with the government able to plead for an extension on a case by case basis.

During the Bush years liberals ceded an enormous amount of ideological ground. Whether or not it was necessary is irrelevant now; all that matters is that there is still a tendency to begin debates from a conservative frame of reference. A commentator on the right can simply postulate, say, the necessity of the SSP and the response seems to be to immediately declare no one on the left is taking such an “extreme” position. Why couldn’t the response be, it is not a right, it is a privilege, and it is not for the president to renounce (or continue) but for courts to permit? As Athenae notes we have to be willing to not just trim but entirely override the governing philosophy of the last eight years. That means a fundamental reorientation of our approach: From presuming the executive branch may not be checked to insisting that its activities be subject to truly independent review and made public as soon as possible. That is how a nation of laws operates.

This Week In Tyranny

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Since I’ve already made my points about the president’s plans on rendition I’ll just say that this is another early test for him, and I hope he handles this one better than it appears he did the first.  Pro Publica’s Dan Nguyen and Christopher Weaver write that “the former administration kept far more memos secret than has been previously understood. At least three dozen by our count.”  Will the president release them?


Andy Worthington reminds us that while we’re acting like the debate over Guantánamo is just one big Toastmasters International meeting there are real people suffering, some excruciatingly so.  It isn’t just a symbol - there are actual human beings whose lives continue to be affected by this.  Also, memo to David Vitter:  I know you’re eager to make a name for yourself for some other reason, but this really isn’t the one you want.


I missed this almost unrecognizably sensible post from Andy McCarthy last week (boo me) but it turned out not to matter because he quickly returned to form.  The first post takes James Pohl to task which I will admit was a very surprising stance to me.  It may have just been a rhetorical device to set up the stinging dissent.  He concludes, “September 10 America is back.”  When I become King of the Netroots my first command will be to respond as follows to anyone who sneeringly refers to a “September 10th” mindset as former vice president and current asshole Dick Cheney did this week to refer to an attitude of being “more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans” (a perspective currently only held by fictional characters in the fevered dreams of the far right):  George Bush was president on September 10th.  The September 10th mindset does not mean an emphasis on law enforcement and judicial process, which worked just fine for the first World Trade Center attack, but the casual disregard of the hard won experience shared by your predecessors, the death by bureaucratic neglect of their cautions and refusal to take seriously threats when they make it to the top of the chain of command.  The September 10th mindset was wholly created by the Bush administration, and that group received unstinting support from Republicans and conservatives generally in the years that followed.  Physicians, heal thineselves.


McCarthy also brought up a point I’ve been waiting to hear from the right since Inauguration Day: “He is, moreover, the President of the United States and the commander-in-chief of our military forces in a time of war” (emphasis his).  I’m on the side that says the position of CIC is far too often exalted as a role and is used that way to attempt to conflate obedience to the president with patriotism.  I felt that way under Bush - and his predecessors - and feel that way about Obama, so de-emphasizing that now is fine with me, but it certainly seems to have conjured up some cognitive dissonance among the authoritarian right.  McCarthy’s description of the reaction to his column as well as the comment left for me in last week’s post (“The Joint Chiefs of Staff HAVE AN ABSOLUTE CONSTITUTIONAL DUTY to stand behind Guantanamo Military Judge James Pohl UNTIL OBAMA OVERCOMES ‘RES IPSA LOQUITUR’ BY SUPPLYING HIS LONG FORM BIRTH CERTIFICATE AND PROVING HIS ELIGIBILITY TO BE PRESIDENT UNDER ARTICLE 2 OF THE US CONSTITUTION.”) hints that a good number of Americans now believe that the military ought to be undermining, if not openly defying, the president.  Add that to what may be an attempt by Ray Odierno and/or David Petraeus to advance their own agendas and it becomes possible to envision an institutional challenge to his legitimacy and authority.


UNPACKING JANE:  Page 288, and Jack Goldsmith:

The 2004 Inspector General’s report, known as a “special review,” was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply “sickening.” The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, some of whom seemed to have become frighteningly dehumanized. The source said, “You couldn’t read the documents without wondering, “Why didn’t someone say, ‘Stop!’”

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith decline to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was “horrible.”

Rendition, Extraordinary and Otherwise

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The L.A. Times published a story on Sunday claiming that Barack Obama’s recent executive orders (EO’s) largely retained the Bush administration’s rendition policy in spirit, if not in letter. Hilzoy weighed in with several criticisms, noting that the EO’s explicitly required adherence to a list of laws and conventions. She also explained the distinction between rendition and extraordinary rendition, and of the author wrote “It’s not clear whether he knows that rendition includes perfectly normal things like extradition.”

Conservative commentators happily noted the article as well, some with the favored stance of studious ignorance. The next day Scott Horton suggested that intelligence officials and their allies fooled an easily led reporter into furthering “efforts designed to show that Obama is continuing the counterterrorism programs that he previously labeled as abusive and promised to shut down.” The theory goes that the CIA is very concerned about its liability for its actions during the last president, and if it can maneuver the current one into supporting the same policies it will provide a measure of protection. Digby, whose judgment I trust, backed off her initial criticism of the administration and questioned the veracity of any reporting that relies on unnamed intelligence officials (while also noting the administration needs to spell out its plans more clearly). In short, there was a lot of back an forth.

I respectfully disagree with digby, Horton et. al. on this one, though. While I am perfectly willing to discount the sotto voice whispers of intelligence agency sympathizers and am skeptical of the motives of the unnamed administration official (we should be suspicious of any anonymous source not acting as a whistleblower), there is plenty not to like in his/her statement that rendition “is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice.” The phrases “some circles” and “kicked up a big storm” are especially grating because they imply it is an issue that a mere handful of monomaniacal civil liberties advocates are fixated on. It has the ring of someone who, having achieved power, has become newly appreciative of the expansive executive claims of the Bush years. I can easily envision the president looking at things in a new light thanks to his new position.

Also, it is not enough to simply say we are going back to a pre-Bush concept of rendition; the bell cannot be unrung. The very word now conjures up images of torture and dungeons. The well is poisoned. It now sounds more like a semantic game to say we are dropping extraordinary rendition but keeping the regular variety. After all, these are not scientific terms. At what point does it cross the line, and who decides if it does? If we are a nation of laws and not men it is not enough to be guided by our perception of our leaders’ intentions. After eight years of President Wiggle Room at least that much should be clear. Even more troubling, it looks like some supporters are setting up an Osama bin Laden scenario as an analog to the Jack Bauer scenario for torture. I respond to this one as I did the previous one: Keep it illegal and have a trial if the law is broken. If your exceedingly rare situation comes to pass the jury will be kindly disposed.

We need to be out of the rendition business, and instead elaborate on Hilzoy’s “perfectly normal things.” If another country asks us to watch for, track or arrest someone with an outstanding warrant, fine (provided we have an extradition agreement). We should announce when we capture someone under those circumstances as well as a time frame for transfer of control. There should be no need for cloak and dagger once the suspect is in custody. There is no reason, except the obvious and objectionable one, for the administration to pledge not to use it but still want it available. Further, this is not an issue where vigilance is effective - we will know about it, if at all, only long after it has been running.

“Trust us” shouldn’t fly anymore. We were rightly angered by it when the Bush administration used it and we should be careful not to use it now that a Democrat is in the White House. Darren Hutchinson points out that many objected to rendition during the Bush years on several grounds, including lack of judicial oversight and denial of counsel. The careful parsing of extraordinary vs. ordinary or terms like “rendition to torture” only came into the discussion when Obama became president. We need to drop that, or risk being justifiably accused of hypocrisy.

This Week In Tyranny

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Extraordinary rendition was not a creation of the Bush administration; like many of the very bad things it did, it took previous examples at any scale - even very isolated or almost unique ones - as justification for full scale implementations.  This is true of rendition; when Jane Mayer stopped by FDL for its Book Salon series I asked about its prior use.   Later on (in response to another question) she allowed “it was a sham process pre-9/11, but it became not even that, afterwards.”  It looks now like rendition not only won’t be restored to those “better” levels, but might (via) in fact increase:

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism — aside from Predator missile strikes — for taking suspected terrorists off the street.

<snip>

“Obviously you need to preserve some tools — you still have to go after the bad guys,” said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. “The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice.”

Obviously.  Within certain parameters, of course.  It’s not like we couldn’t create some new “tools” that might not kick up a storm in Europe.

Barack Obama is not a constitutional law scholar any more, he’s president.  It shows.  Hope is not Kool Aid.

UPDATE: Scott Horton says the article

misses the difference between the renditions program, which has been around since the Bush 41 Administration at least (and arguably in some form even in the Reagan Administration) and the extraordinary renditions program which was introduced by Bush 43 and clearly shut down under an executive order issued by President Obama in his first week.

<snip>

The earlier renditions program regularly involved snatching and removing targets for purposes of bringing them to justice by delivering them to a criminal justice system. It did not involve the operation of long-term detention facilities and it did not involve torture. There are legal and policy issues with the renditions program, but they are not in the same league as those surrounding extraordinary rendition….In the course of the last week we’ve seen a steady stream of efforts designed to show that Obama is continuing the counterterrorism programs that he previously labeled as abusive and promised to shut down. These stories are regularly sourced to unnamed current or former CIA officials[.]

My concern is with the comments from an unnamed administration official, not the intelligence community.  And the comments that the program is “controversial in some circles and kicked up a big storm in Europe” suggests that what the administration envisions may still be very objectionable.  I don’t like the “some circles” and “in Europe” language either; to me it implies they think opposition to the extraordinary rendition program is limited to a small group of civil liberties zealots when it is a fundamental human rights issue.


Guantánamo is a total mess (though it didn’t necessarily have to be, with the caveat that articles like this may consist largely of rationalization, butt covering and retroactive fantasizing).  Instead of case files “they found that information on individual prisoners is ‘scattered throughout the executive branch,’ a senior administration official said.”  It wasn’t set up to be a legal system, but an indefinite detention facility.  Of course, the total inadequacy of the facility for due process is not stopping intrepid military judge James Pohl from plowing blindly ahead.  This is also a good time to give a big one finger salute to the 109th Congress for passing the Military Commissions Act.  Because of it the proceedings there are largely self-contained, and not subject to any manner of influence or review.  The 111th Congress could presumably change that state of affairs quickly if it wanted to, but it will probably decide to just let a sleeping dog lie.


Authoritarianism is a mindset.  Get people to agree to totalitarian methods “over there” and you prepare the ground to get them to accept it over here (via).  Remember, if you aren’t doing anything wrong you don’t have anything to worry about.


“If you don’t pay your best people, you will destroy your franchise.” - John Thain.  Memo to John:  Your best people destroyed your franchise.  You have no idea how much I want to go on an unhinged rant over this.  (Deep breaths, count to 10….)


I have never met Josh Gerstein but I know he is a horrible human being, because only a horrible human being would include the following quotes in a single article:

  • “subject Padilla to aggressive interrogation techniques”
  • “raise the question of how aggressively the Obama administration intends to defend alleged legal excesses of the Bush administration in the war on terror”
  • “the Bush war-on-terror team inspires particular antipathy in the liberal legal set”

From the same article:

“When they go back to the privacy of their offices, they may wish that someone would draw and quarter John Yoo, but they have to wave the flag,” said a former federal terrorism prosecutor, Andrew McCarthy. “What they have to do is appear as if they are defending all the prerogatives of government that people want them to defend. … That’s the job of the Justice Department.”

A former lawyer in Bush’s White House, Brad Berenson, said he expects the new Obama officials not only to defend against the suits but to win them. “There are just all kinds of doctrines that protect government officials, even when they’re wrong,” he said. “The dirty little secret here is that the United States government has enduring institutional interests that carry over from administration to administration and almost always dictate the position the government takes.”

“Enduring institutional interests” is a useful phrase.


John Yoo is not horrible, he is evil.  Plenty of folks took a turn whacking his execrable Op-Ed in the Wall Street Journal, but my favorite was from Larisa Alexandrovna.  (Can we retire the “Berkley is a wild-eyed liberal bastion” stereotype now?)


In case you didn’t know, Larisa is a terrific investigative journalist for Raw Story.  In the wake of the ongoing radio silence about Russell Tice’s explosive revelations it is increasingly safe to say that only those organizations with a demonstrated willingness to challenge authority are to be trusted.  The fact that virtually all major outlets have ignored a scandal of epic proportions - the wholesale bugging of entire news organizations - tells you why it is not only nice, but important to get your news from alternatives.  And it also tells you one of the big reasons why confidence in them has eroded.


UNPACKING JANE:  Since I started with rendition, I’ll end there.  From page 108:

Renditions were not invented for the war on terror.  The U.S. government had carried out renditions since at least the Reagan era.  But they were originally used on an extremely limited basis and for a different purpose.  After September 11, the program expanded beyond recognition, becoming what John Radsan, a lawyer in the CIA’s Office of General Counsel during the first years of the Bush Administration, later admitted to be “a nightmare.”

What began as a program aimed at a small, discrete set of suspects - people against whom there were outstanding foreign arrest warrants - came to include the wide and ill-defined population that the administration termed “illegal enemy combatants.”  Many of them had never been publicly charged with any crime.  Before September 11, the program was aimed at rendering criminal suspects to justice, but afterward it was used to render suspects outside the reach of law.  Instead of holding suspects accountable for previously committed crimes, it was used to gather evidence of future crimes not yet committed - for which there was not sufficient evidence to prove guilt under the ordinary rule of law, which all over the civilized world requires transparency, fairness, and independent review.  Rendition thus became an enforcement mechanism for the Bush Administration’s preemptive criminal model, disrupting and punishing suspects before they were provably guilty.

People against whom there are outstanding foreign arrest warrants can be handled by extradition.  Whatever benefits rendition might have offered as an alternative are clearly not legally, morally or ethically sustainable long term.  Men being men, abuse like the Bush administration engaged in is nearly inevitable, and sooner rather than later.