Sunday, April 19, 2009

The Duties Of Civilization

Image credit: PBS The NewsHour

The New York Times published an editorial today on the Dept. Of Justice (DoJ) memos released last week by the Obama Administration. These memos were an attempt to put legal lipstick on the pig that was the Bush Administration's desire to torture detainees suspected of terrorism. The editorial starts out:

To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity.

Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.

The Torturers’ Manifesto

[link from original]

It may seem odd that, as much as I've written about torture over the last couple of years, that I'm not writing much now. The truth is that I expected the essence of these memos, which that quote from the NYT aptly describes. The other is that, quite frankly, I haven't had the heart to read them for the particulars. I saw some of the more damning excerpts that Glenn Greenwald highlighted of the memos, which is enough to satisfy my curiosity for the moment.

What struck me about the NYT editorial was this passage:

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.

It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.

The Torturers’ Manifesto

What struck me was its similarity to something I wrote nearly two years ago, about Alberto Gonzalez' part in all this:

To understand [why I refer to Gonzalez as "Abu"], I first have to diverge into a brief discussion of one of the previous horrors of our age, the Holocaust. As an engineer, one of the things I've found most appalling about the death camps was the careful design and construction of the places. Someone put a great deal of rational thought into just how to most efficiently kill millions of innocent human beings. Learned people did this. Contrast this with the Pol Pot massacres in Cambodia or the recent slaughter in Rwanda, which were carried out by uneducated people using primitive means. Horrible as they were, at least the inhuman acts weren't carried out with calm and rational forethought by people who could consider alternatives. Being learned doesn't guarantee a person has a conscience. Nevertheless, having the fortune to be well educated does confer a responsibility. The educated don't get to claim that they can't understand the implications of what they're doing.

That's the reason I despise Alberto Gonzalez. He was, in many ways, the legal architect of the network of black sites and of the torture that occurred there. He and other learned people, like John Yoo, discussed the idea of how much torture was legal while he was the White House Counsel. They weren't in danger. They weren't involved in combat, or trying to chase down dangerous criminals. They were sitting in an air-conditioned office discussing whether organ failure meant the torture had gone too far. That people with advanced degrees, who work in a profession whose guiding principle is supposed to be justice for all, could sit around calmly discussing such things is both appalling and alarming. That these people held, and in some cases continue to hold, high places in our government is downright frightening.

He'll Always Be Abu To Me

The analogy is to a different form of evil, but the similarity is obvious. To adequately describe these actions of the Bush Administration, we invoke forms of evil like the Mafia and the Holocaust, where people calmly and deliberatively tried to figure out how to do something that is obviously and necessarily illegal and immoral. The NYT editorialist, like me, was struck by the cold nature of this intellectual exercise conducted by educated, comfortable people.

In a way, I can understand the Obama Administration's decision to not prosecute the people who carried out this torture. When you receive complex instructions like these from the office of your government that is supposed to be an authority on what is and is not illegal, it's mighty difficult to then say to yourself that you understand better than they do what is illegal. Once again, this is what is so horrible about these memos. Learned people did this. They had to have known this was wrong, yet they did it anyway. As the Times editorial goes on to note, one of the authors of these memos is now a federal judge. Another is a law professor at U.C. Berkeley, of all places.

Unfortunately, ignoring these acts is only going to make them more likely in the future. I agree with Glenn Greenwald's assessment:

Needless to say, I vehemently disagree with anyone -- including Obama -- who believes that prosecutions are unwarranted. These memos describe grotesque war crimes -- legalized by classic banality-of-evil criminals and ordered by pure criminals -- that must be prosecuted if the rule of law is to have any meaning. But the decision of whether to prosecute is not Obama's to make; ultimately, it is Holder's and/or a Special Prosectuor's. More importantly, Obama can only do so much by himself. The Obama administration should, on its own, initiate criminal proceedings, but the citizenry also has responsibilities here. These acts were carried out by our Government, and if we are really as repulsed by them as we claim, then the burden is on us to demand that something be done.

Obama To Release OLC Torture Memos

[link from original]

If the legal "justification" that the DoJ's Office of Legal Counsel (OLC) produced is an extenuating circumstance for those who labored under the impression that what they were doing was legal, then that will have to be determined by a proper legal review of the case. We lock up drug traffickers for distinctly less criminal activities all the time. What's worse, we have an obligation to investigate these things under treaties we've signed:

[I]n an interview with the Austrian newspaper Der Standard, the UN Special Rapporteur on Torture, Professor Manfred Nowak, explained that Obama's grant of immunity is likely a violation of international law. As a party to the UN Convention Against Torture, the U.S. is obligated to investigate and prosecute U.S. citizens that are believed to have engaged in torture:

STANDARD: CIA torturers are according to U.S. President Obama not to be prosecuted. Is that decision supportable?

NOWAK: Absolutely not. The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found.

Indeed, Article 2 of the convention on torture explains that “no exceptional circumstances whatsoever” can be used to legally justify torture. Further, the convention states that an “order from a superior officer or a public authority may not be invoked as a justification of torture.”

UN Rapporteur On Torture: Obama’s Pledge Not To Pursue Torture Prosecutions At CIA Is Not Legal

[links and emphasis from original]

We're bound both by treaties we've signed and as a civilized nation to investigate these crimes. Doing any less will not only be a stain on our honor as a society, but will probably encourage more such crimes in the future. If we don't behave by these rules now, we can't expect that anyone else will do so later when they are holding our people.

What's worse, if we don't do our duty as a civilization, there are others who will do it for us. Should that happen, we will be forced to choose between extraditing former Bush Administration officials as Article 7 of the U.N. Convention Against Torture demands, or not living up to that treaty obligation, as well. History won't be kind if others are required to clean up the mess we've made, especially if we refuse to cooperate in that effort.

One thing you can do to demand that these crimes be investigated is sign this FireDogLake online petition that demands that a special prosecutor be appointed to investigate these memos and decide if charges should be brought.

UPDATE: You can also sign the ACLU's online petition. (h/t Dana Hunter)

UPDATE 2: also has an online petition against, as they put it, giving amnesty to torturers. This one goes to Congress, asking them to impeach Jay Bybee, the federal judge I mentioned, and demand a special prosecutor.

UPDATE 3: Not that effective retrieval of information would have made these offenses OK, but emptywheel makes a rather startling observation today:

I think I've finally gotten some folks to to pay attention to the OLC Memo revelation that KSM was waterboarded 183 times in a month.

In that post, I suggested that if it took 183 uses of waterboarding to make KSM comply with interrogators wishes, then waterboarding is far less effective than the CIA would like us to believe. It appears the CIA IG was raising the number of times KSM was waterboarded in the same context I am--to question the efficacy of waterboarding someone that many times.

As I described last night, Steven Bradbury spends four pages of the May 30, 2005 memo trying to prove that enhanced interrogation is effective. He appears to be responding to a six-page passage in the CIA IG Report addressing the efficacy of enhanced interrogation.

I dealt with that section in some detail last night. But by reconstructing that section best as we can from the fragments Bradbury gives us (see my work below), we see the IG Report was tying the number of times KSM and Abu Zubaydah were waterboarded with its judgment of waterboarding's (in)efficacy.

The CIA IG Report: Is Waterboarding KSM 183 Times Really Effective?

Holy shit, Batman. One hundred, eighty-three times? I'll say it's not effective. They could have used the pillow and the comfy chair to better effect. Hell, Elmer Fudd could have used them to better effect, even with Bugs Bunny offering suggestions.


Dana Hunter said...

Bravo. I'm highlighting this tonight.

Cujo359 said...

Why, thank you. I just found your link to the ACLU petition and added it here. Thanks for that.

Eric said...

I cannot agree more that torturers MUST be prosecuted. As a lawyer the torture memos make me sick. This is the very worse of my profession. The lawyers who wrote them, including a current federal judge, should be disbarred and then prosecuted.

As for those who followed orders, the United States has told the rest of the world that "I was just following orders" is not an excuse. Just because it was US personnel this case should not be an exception. I know this sounds harsh, but I believe the only way to stop torture is to prosecute from top to bottom.

Cujo359 said...

Ironically, last week there were numerous headlines about how we extradited a former Nazi prison guard back to Germany to be prosecuted. If we can send an 89 year old man back to face trial for something he did as a low-ranking NCO, we can prosecute the Americans who tortured people.

The OLC memos might constitute extenuating circumstances, but that should be determined on an individual basis either by prosecutors or a court, not by a mass Presidential directive.