President, War Criminal

In an opinion piece published Tuesday, Joe Scarborough writes:

I suspect [history will be unkind] to those “progressives” horrified by George W. Bush’s anti-terror campaign but mute to the terror of the Obama administration’s savage drone wars. These sensitive souls, so repulsed by the waterboarding of three terrorists ten years ago, now celebrate their administration’s version of a war on terror that swapped out the targeted capture of terrorists with a drone program that all too often kills children, women, grandparents and scores of innocent young men.

Fair point. Barack Obama's record on civil liberties and executive privilege in the so-called war on terror is as bad as Bush's was. He has expanded the use of drones, which, yes, often kills innocent people and serves as a recruiting tool for terrorist groups, and has "embraced" a policy where all "military-age males" in a strike zone are presumed combatants, effectively rendering them guilty until proven innocent. He oversaw the passage of a National Defense Authorization Act (NDAA) that includes, in the words of the ACLU, "an extraordinary expansion and statutory bolstering of authority for the military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world." He even sidestepped the War Powers Act, the most symbolic and perhaps the most unequivocal restraint on executive power, during NATO's intervention in Libya.

Granted, not all liberals have been quiet about Obama's use of drones or other worrisome aspects of his civil rights record. (Glenn Greenwald immediately comes to mind.) But we on the left have far too often been quiet, when loud political pressure is needed if we ever want these policies to change.

So mea culpa, Joe, you are absolutely correct. Until you write:

The release of the movie "Zero Dark Thirty" will surely lay waste to at least one of the left wing's lies: that the CIA's enhanced interrogation did nothing to gain actionable intelligence. “Zero” is generating angst amongst movie reviewers and essayists who were swept away by the film but left conflicted and uncomfortable specifically because this first draft of history accurately shows how the CIA's program played a major role in finding and killing Osama bin Laden.

So let me get this straight. Shame on liberals for being silent on Obama's unacceptable use of drones while loudly decrying Bush's apparently acceptable use of torture? I suppose you could make the moral case that drones are worse. But you cannot claim that torture is acceptable. You can't even claim that torture was effective in gathering intelligence (unless you want to believe a Hollywood movie over a report approved by the Senate Intelligence Committee).

Doing so makes you guilty of the same intellectual dishonesty you just accused us of.

Two Thoughts on the Death of bin Laden

1. I used to wonder how bin Laden could send young men off to their deaths and not be expected to make a similar commitment himself. What heroism was there in running to save his own skin after we invaded Afghanistan? But I realized that al-Qaeda leadership could always have argued that somebody needed to be in charge. Maybe they could've even portrayed hiding in the mountains and caves of Afghanistan/Pakistan as some heroic sacrifice.

Now we know that that would've been a lie. Osama wasn't hiding in caves, but in an expensive compound in Pakistan. He didn't die a martyr; he used his wife as a human shield, trying desperately to prolong his life that much further. Bin Laden wasn't a leader; he was a hypocrite and a coward.

2. Some are jumping on the fact that the tip originated from torturing a Gitmo detainee to argue for resuscitating enhanced interrogation and keeping Guantanamo open. But that assumes we couldn't have gleaned this information otherwise and ignores the other effects of torture. What's more, as I've said before, effectiveness is irrelevant; torture is immoral and illegal. Period.

TORTURE! Part 2: What Should Be Done

So it's clear that the torture authorized by the OLC memos was immoral, illegal, and ineffective. But what should be done about it?

There should be at least an investigation into how this happened. There should be some consequences for the officials responsible for okaying torture. (I would be fine with not punishing the interrogators because their actions were based on what they thought was--and should have been--sound legal advice.) Disagree? Please allow me to refute your counterarguments.

Investigating and prosecuting torture would be looking backwards; we should be "focused on looking forward." Yes, President Obama has a lot he wants to do to improve our future: stabilizing Afghanistan and the economy, reforming health care, energy and education, and investigating and prosecuting torture. To fail to do so would establish a dangerous precedent, sending the message that the President and upper executive officials can flaunt the law and get away with it.

We should not prosecute a previous administration "for policy disagreements." That is what "banana republics" do. Agreed, we should not prosecute for mere policy disagreements. Anybody who says, "No Child Left Behind was a terrible idea. Off with Bush's head!" is as insane as the Queen of Hearts. But that is not what we're saying. We do not wish to establish a law ex post facto that makes what the Bush administration did illegal. What the Bush administration did was already illegal and should consequently be punished.

Democrats in Congress would be prosecuted too. Good. I don't care. This is not a partisan issue. Anyone who advanced the case for torture or consented to it should be investigated and prosecuted in accordance with the law.

Accountability advocates have "an unworthy desire for vengeance." Maybe I do. Maybe it's even true of the 62% of Americans, every last one of them, who favor some sort of investigation. But motives are irrelevant here. The significant question is not "What are their motivations?" but "What's right?" And what's right is upholding the law.

Prosecuting is "too divisive." I'll let Hilzoy of Obsidian Wings answer this:

I think that upholding the rule of law is more important than avoiding divisiveness, and besides, since any prosecution of high administration officials is always divisive, this principle would seem to me to imply that no high official should ever be punished for breaking any law. I think this would be disastrous.

Moreover, not to prosecute would be illegal. The U.S. is required by "the UN Convention Against Torture to prosecute those who engage in it."

So I think I've established that at least some sort of investigation is necessary. The only question is what sort.

The right special prosecutor (Patrick Fitzgerald?) would be considered non-partisan and would "ensure genuine accountability," (h/t) but might not be able to expose the whole truth. (h/t) A Congressional investigation, such as the one currently being undertaken by the Senate Intelligence Committee under Dianne Feinstein, might work, but would probably be seen as too political by the right and too deferential to secrecy by the left. A bipartisan commission (like the 9/11 one) would practically guarantee "that there [would be] no major political repercussions."

For me, then, the best option would be the two-course meal: a bipartisan commission followed by a special prosecutor. Establishing the truth without the taint of bias is paramount. It would then be up to us to take the commission's findings and apply the political pressure needed to get a special prosecutor appointed.

But I sincerely doubt that this will come to pass. Simpler consequences, however, are more easily achieved. Jay Bybee now sits on the Ninth District Court and can be impeached. Bybee, Yoo and Bradbury could be disbarred. Their actions demonstrate either gross incompetence at best or a nearly complete disregard for the law and established legal precedent at worst. Either way, they are unfit to keep practicing law.

TORTURE! Part 1: What Was Done

On April 16, the Obama Administration released the memos authored by Bush's Office of Legal Counsel that provided the legal rationale for torture.

Though this comparison seems a little over the top, the 2002 memo from Jay Bybee authorized "attention grasp, walling (hitting a detainee against a flexible wall), facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and waterboarding."

Some in the CIA felt betrayed, "broken and bewildered" by the release of the memos. President Obama tried to allay these fears in his statement on the memos' release, saying:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Not one, not two, but three scientists cited in the memos objected to their work's inclusion. The scientists researched the effects of sleep deprivation, and their conclusions were used to support using sleep deprivation as an interrogation technique. But those who participated in their studies were (a) not deprived of sleep for as long as prisoners were (40 vs. 180 hours), (b) were in perfect health, and (c) were not simultaneously subjected to anything else.

The Bybee memo predicted that walling and cramped confinement would not constitute "serious physical injury." Compare to the Red Cross report:

Abu Zubaida's [often romanized as 'Zubaydah'] attorneys said he "has suffered approximately 175 seizures that appear to be directly related to his extensive torture -- particularly damage to Petitioner's head that was the result of beatings sustained at the hands of CIA interrogators and exacerbated by his lengthy isolation."...

"The stress on my legs held in this position [crouched in a confined wooden box] meant my wounds both in my leg and stomach became very painful," he told the ICRC.

The "learned helplessness" that psychologist James E. Mitchell believed was integral to a successful interrogation (even though he had never personally conducted one) leads to depression. ("You put an animal, human or non-human, in a situation in which bad things happen that it can neither escape nor control, and eventually it just gives up.") Furthermore:

Most of the released detainees, to this day, live with severe anxiety, depression, and post-traumatic stress disorder, including intrusive recollections of trauma suffered in detention, hyperarousal (persistent symptoms of increased arousal, e.g., difficulty falling or staying asleep, anger, and hypervigilance), avoidance and emotional numbing behavior. PHR’s clinicians determined that these symptoms were directly related to the torture and ill-treatment reported having taken place while in US custody.

Sounds like "severe physical or mental pain or suffering" and "prolonged mental harm" (which constitute torture under US law) to me. So it's illegal, but was it, at least, effective?

Dick Cheney thinks so, and, bastion of openness that he is, thinks we should declassify "the memos that showed the success of the effort" so we could have an "honest debate."

However, it seems clear from items already in the public domain that torture techniques are ineffective and unnecessary. These techniques had, after all, solicited false statements when they were used on Americans in the Korean War.

A footnote in the 2005 Bradbury memo notes that:

The CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have information. . . . On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques.

Those who believe that information was acquired from torturing Khaled Sheikh Mohammed and used to foil a plot to attack the Library Tower in Los Angeles are completely wrong. The plot was foiled a full year before Sheikh Mohammed was even captured. (h/t)

And a former FBI agent (h/t) who interrogated Abu Zubaydah argues that:

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions.

But effectiveness is ultimately irrelevant:

If “effectiveness” is all we care about, any form of torture would necessarily be ok. One could, for instance, drag in a detainee’s child and begin torturing him or her in front of the detainee. I assume that even the most hardened torture advocates would draw a line there. If they didn’t, that tells you pretty much all you need to know.

But if they do concede that certain methods go too far (i.e., that such things are relevant), then they’re stuck having to argue that the methods we used simply
aren’t that bad. In other words, if they concede a line exists, then they’re forced to argue that these methods don’t cross it.

Sundry items of note:

• The memos were only lightly redacted, in contrast with documents released by the Bush administration, which were so heavily redacted that the Onion joked that the CIA had been accidentally using black highlighters.
• Glenn Greenwald: "Finally, it should be emphasized -- yet again -- that it was not our Congress, nor our media, nor our courts that compelled disclosure of these memos. Instead, it was the ACLU's tenacious efforts over several years which single-handedly pried these memos from the clutched hands of the government." (h/t)
• Andrew Sullivan: "If you want to know how democracies die, read these memos." (h/t)

A Rainbow of Actions

I'm going to start something new. I get a lot of emails requesting me to write or petition someone for this or that reason, and I wanted to share some of them with you. There is one for each color of the rainbow. Ish.

Red: Last Tuesday, women's rights activists distributed roses outside of Zimbabwe's Parliament in a Valentine's-themed demonstration. This being Robert Mugabe's Zimbabwe, many were arrested. So Amnesty International wants you to write Valentines for Mugabe. Or you can email Zimbabwe's Minister of Justice and Ambassador and urge the release of Jenni Williams and Magodonga Mahlangu, the founders of Women of Zimbabwe Arise. The two were arrested on October 16 for "disturbing the peace" and their bail hearing has been postponed a total of three times. The court is "very busy."

Orange: The International Criminal Court has issued an arrest warrant for Sudan's president, Omar al-Bashir, the first time a sitting head of state has been indicted by the ICC. Save Darfur is worried that Bashir will lash out and wants you to email President Obama and have him name a "point man" on Darfur.

Yellow: Implore your Senators to investigate how the United States began to torture. (From Amnesty International.)

Green: For those affiliated with the University of Michigan, undersign this letter to President Mary Sue Coleman, urging her to reduce the university's environmental impact and encourage the research and promotion of sustainability. (From the Student Sustainability Initiative.)

Blue: MoveOn.org wants you to sign this petition to counter conservative flak and convince President Obama to appoint a progressive Secretary of Health & Human Services who can reform the United States' health care system. (MoveOn is particularly worried about Tennessee Governor Phil Bredesen who made a fortune running an HMO and cut TennCare.)

Indigo: Amnesty International wants you to email Secretary of State Clinton, urging her to create an upper-level position dedicated to gender equality.

Violet:

Ken Starr, yes that Ken Starr, has filed a legal brief seeking to forcibly divorce gay California couples who married before the passage of Prop 8. Sign this petition to do something about it. (From the Courage Campaign.)

Take action!

Back to Work

President Obama gets right back to work after Inauguration festivities signing some pretty serious executive orders. The first, a salary freeze on top executive branch officials (such as the national security adviser, press secretary, and White House counsel) earning more than $100,000 per year. Says President Obama, "Families are tightening their belts, and so should Washington."

The second act declared Guantanamo Bay and other secret prisons abroad to close within a year. The act also banned harsh interrogation methods, such as waterboarding, and directed interrogators to follow the guidelines in the Army Field manual which explicitly ban threats, coercion, waterboarding, and physical abuse.

"The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals," the president said.

I think little Sasha says it all.


For more information, please click here.

For information from the New York Times, please click here.

New Precedent Could Lead to Release of More Prisoners from Gitmo

A new precedent could release more prisoners from Guantanamo Bay, and it only took 7 years to realize that you actually can't carry out a racially and prejudiced policy of holding people indefinitely and without charges, torturing them in the meanwhile. Please check out the article in its entirety from the Associated Press below.

Judge: Let Chinese Muslims from Guantanamo into US

By HOPE YEN, Associated Press Writer

WASHINGTON - A federal judge ordered the Bush administration Tuesday to immediately free 17 Chinese Muslims from Guantanamo Bay into the United States, rebuking the government in a landmark decision that could set the stage for the release of dozens other prisoners in Cuba.

U.S. District Judge Ricardo M. Urbina said it would be wrong for the government to continue holding the detainees, known as Uighurs (WEE'-gurz), who have been jailed for nearly seven years, since they are no longer considered enemy combatants. Over the objections of government lawyers who called them a security risk, Urbina ordered their release in Washington D.C. by Friday.

"Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful," Urbina said in a ruling that brought cheers and applause from a standing-room only courtroom filled with dozens of Uighurs and human rights activists.

He also ordered a hearing for next week to decide where the Uighurs should be permanently settled. Until then, members of the Uighur community in the D.C. area have offered to take them in and will help care for them.

Justice Department attorney John C. O'Quinn said the government would consider whether to appeal the decision. O'Quinn's request to delay the decision pending a possible appeal was denied Tuesday by Urbina, who said the detainees had waited long enough.

At issue is the scope of a federal judge's power to order the release of a Guantanamo prisoner, who was unlawfully detained by the U.S. but who cannot be sent back to his homeland. The Uighurs, who are Turkic-speaking Muslims in western China, have been cleared for release from Guantanamo since 2004 and ordinarily they would be sent home.

But the Uighurs cannot be sent back to China where they are considered terrorists and could be tortured, and the Bush administration says no country is willing to accept them. Albania accepted five Uighur detainees in 2006 but has since balked on taking others due partly to fears of repercussions with China.

Urbina's decision also has broader implications for the future of the Guantanamo prison, which the Bush administration has said it would like to shut down after "working with other countries to take people back under the right circumstances." A federal judge is set later this month to hold hearings on other Guantanamo prisoners challenging their detention as so-called enemy combatants.

About 20 percent of about 250 detainees who remain at the military prison fear torture or persecution if they return to their home countries, according to the New York-based Center for Constitutional Rights, raising similar questions as to where they should go if other countries refuse to take them. The U.S. has long maintained they should stay at Guantanamo.

"How many times does the Bush administration need to be told that detainees are entitled to essential rights? All the remaining detainees in Guantanamo Bay must be either charged and tried or released immediately," said Larry Cox, executive director of Amnesty International USA.

On Tuesday, the Bush administration argued a federal judge did not have the power to order the release of a foreign-born detainee into the U.S., saying would undercut immigration laws that dictate how foreigners are brought into the country. Until a country accepts the Uighurs, they would stay in special housing that includes TVs, air-conditioning and recreational activities such as soccer, tennis and volleyball, government attorneys said.

O'Quinn also said federal judges had no power to order the detainees' release and should defer to the executive branch, who he said would be in a better position in light of the delicate relations with China. In Beijing Tuesday, before Urbina's ruling, the government demanded that all Uighurs held at Guantanamo be repatriated to China.

"The court should be circumspect because of the potential for interference with foreign relations," O'Quinn said.

Sabin Willett, an attorney for the Uighurs, countered: "I've never heard anyone argue our relations with other nations are a basis for holding someone."

The Uighurs have been at Guantanamo Bay, a naval prison in Cuba, since the U.S. military took custody of them in Pakistan and Afghanistan in 2001.

Chinese Foreign Ministry spokesman Qin Gang said before Tuesday's court hearing that the Uighurs are suspected of being members of the East Turkestan Islamic Movement, which the United States lists as a terrorist organization.

"China has urged the U.S. to repatriate these Chinese terrorist suspects to China on many occasions. We hope the U.S. will take our position seriously and repatriate these persons to China sooner rather than later," he said.

A spokesman at the Chinese Embassy in Washington did not immediately respond to a request for comment about Urbina's order.

Uighurs are from Xinjiang — an isolated region that borders Afghanistan, Pakistan and six Central Asian nations — and say they have been repressed by the Chinese government. China has long said that insurgents are leading an Islamic separatist movement in Xinjiang.

Rebia Kadeer, president of the World Uighur Congress, called the decision a victory for oppressed Uighurs in China.

"This is our destiny. This our people's win. This concerns our freedom. China accuses us of being terrorists, but we are not," she said through a translator as other Uighurs in the courtroom cried for joy.

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As the saying goes, one man's terrorist is another man's freedom fighter. All in all a great ruling by the federal judge and hopefully, the United States can work out an arrangement where the detainees will no longer face the daily threat and reality of torture at the hands of any country.