The NYT Discovers Torture

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A reader writes:

I can’t help but notice that the CIA had no problems using the word “torture” as they devised legal strategies to shield them from the consequences of using it. They knew it was “torture,” and called it such,  but how long did it take The New York Times to use the word?

Another sends the above screenshot:

What a difference a Senate report makes. While the NYT decided to start using the word “torture” again previously, I couldn’t help but be struck by how many times the word occurred on its front web page yesterday. I counted nine instances of the word “torture” on the front page (whatever counts as “above the fold” for a web page). This is a reasonably easy question for a corpus linguist with access to the NYTs archive to answer: how many times in its history has the word “torture” occurred nine times in a single edition, let alone nine times above the fold? This may be completely unique in its 153-year history.

The NYT under Bill Keller revealed itself as a mere appendage to the US government, rather than a vital check upon it. They never had a good argument. They still don’t. Every now and again, the press is presented with a real test of their integrity and independence. On this vital matter, on telling the truth, the New York Times failed.

What The Right Used To Believe

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“We admit to looking forward to a fair trial of the accused [at Abu Ghraib] followed by their harsh punishment. They have endangered any American unlucky enough to find himself at the mercy of our enemies in the war on terror. They have impeded our progress in that war. More fundamentally, they traduced their mission, betrayed their fellow soldiers, and disgraced their country. Anyone up or down the chain of command who was criminally complicit should be prosecuted, too … There’s only one way to drain this poison, and it isn’t further breast-beating, from the administration or its foes. Bring on the trials, and the punishment,” – Richard Starr, for the editors, Weekly Standard.

“What was done [at Abu Ghraib] was against 1) regulations, 2) army convention, and 3) civilized tradition. What do the reformers want? Pre-induction courses for U.S. soldiers in which they are told not to strip and torture captives and photograph them naked? Should there be, also, a course on how they should not fire guns at their own officers? Is there nothing that can be taken for granted?” – William F Buckley Jr. who at the time did not realize that these techniques had been authorized by the president himself.

“The principle is: The response by the nation’s government must express horror, shame and contrition proportional to the evil done to others, and the harm done to the nation, by agents of the government. Americans are almost certainly going to die in violence made worse in Iraq, and not only there, by the substantial aid some Americans, in their torture of Iraqi prisoners, have given to our enemies in this war. And by the appallingly dilatory response to the certain torture and probable murder committed in that prison. The nation’s response must, of course, include swift and public prosecutions. And the destruction of that prison. And punctilious conformity to legal obligations — and, now, to some optional procedures — concerning persons in American custody,” – George F Will. in a column called “No Flinching From The Facts.”

How far they have all fallen. Where is the CIA’s expression of “horror, shame and contrition” today? And what has been revealed in the Senate report is far worse than what happened at Abu Ghraib – and stems from the very same executive branch decisions.

(Illustration from Foreign Policy)

How Obama Backed Impunity For War Crimes

President Obama And Family Arrive In Berlin

Former CIA director Michael Hayden uses the DOJ not bringing charges against any interrogators as evidence of the CIA’s innocence:

John Durham, a special independent prosecutor, over a three-year period investigated every known CIA interaction with every CIA detainee. At the end of that the Obama administration declined any prosecution. [In 2012, the Justice Department announced that its investigation into two interrogation deaths that Durham concluded were suspicious out of the 101 he examined—those of Afghan detainee Gul Rahman and Iraqi detainee Manadel al-Jamadi—would be closed with no charges.] So if A is true how does B get to be true? If the CIA routinely did things they weren’t authorized to do, then why is there no follow-up? I have copies of the DOJ reports they’re using today. The question is, is the DoJ going to open any investigation and the DoJ answer is no. You can’t have it both ways. You can’t have all this supposed documentary evidence saying the agency mistreated these prisoners and then Barack Obama’s and Eric Holder’s Department of Justice saying no, you’ve got bupkis here.

This is evidence that Obama’s weakness and vacillation on the question of torture has done great damage. Hayden is using the Obama DOJ’s own white-washing report to minimize the war crimes in the Senate report. One of the ironies in this, of course, is that Hayden has been criticizing the Senate Report’s failure to interview the CIA torturers themselves, even though the Durham investigation legally precluded that for three years. But the Senate Report had an obvious alternative to such interviews: it had the CIA’s own internal documents, its very internal conversations, in which it is perfectly clear that as they were practicing torture, they knew what they were doing could not be described by anyone as “humane”.  These documents alone are more than sufficient proof of the claims made in the report. They are definitive. More to the point, no documents were included from any other source – either to buttress or to contradict the findings. But in the Durham “investigation”, the torturers were interviewed but not the victims – a clearly rigged process designed to exculpate the war criminals.

There should, in my mind, be no debate about prosecutions for war crimes. Seriously, can you imagine the US opposing such prosecutions if they were in a foreign country? Besides, the US’ clear international and domestic legal obligations admit of no exception for the prosecution of those credibly accused of torture – let alone of those, like Cheney, who have openly bragged about it. It specifically bars any exception in the case of national emergency. Not to prosecute because of such an emergency is therefore to end the Geneva Conventions  – which is what Obama has effectively done. He must not be let off the hook for that fateful step – and what it does to the core meaning of the United States.

From now on, the US is a human rights violator of the first order under international law, a rogue state that has explicitly tortured innocent people and never held anyone legally responsible. I know that sounds terribly harsh. But how is it untrue? And to refuse to prosecute war crimes is to condone war crimes. Not burglary or robbery – but the gravest crimes against humanity that we can imagine. The perpetrators walk among us, many still in the CIA, and some holding presidential Medals of Freedom. Whatever absurd self-congratulations about this report, we should be in no doubt that this makes us no better in this respect than some South American junta before the transition to democracy.

And the fact that we are the most powerful country on earth makes this about much more than just us. It casts a dark and long shadow over humanity. It makes torture everywhere more likely, and more pervasive. It legitimizes evil. It removes from us any moral standing when it comes to Americans being tortured by these very same techniques – as they already have been in Syria, and as they will be in the future. When an American prisoner is tortured by an enemy power in the future, we will have no grounds to complain. Can we just face up to that instead of engaging in so much avoidance and denial? We didn’t just break Iraq; we broke the very structure of basic human rights that this country fought two world wars to establish.

Eric Posner thinks it’s “plain that CIA agents who tortured detainees, and higher government officials who authorized torture (up to President Bush), violated the law.” But he argues that convictions would be nearly impossible:

[T]he CIA agents were told by government lawyers that the law permitted them to use waterboarding and other coercive techniques. And they were acting in the arena of national security, under conditions of great uncertainty about the extent of their powers. The Obama administration has used a legal doctrine called the state secrecy privilege to prevent victims of torture from using evidence of torture in civil actions against government officials. If secrecy concerns driven by national security justify constraints on civil actions, then they justify constraints on criminal actions as well.

David Luban agrees that the “cases would be nearly impossible to win and terrible to lose”:

The law requires proof that interrogators intended to inflict severe pain or suffering. But since the Justice Department’s discredited torture memos assured them that the suffering was not “severe,” it would be nearly impossible to prove that interrogators met the legal test of intent.

Attorney General Holder announced in 2012 that a special prosecutor who investigated 101 cases found that “the admissible evidence would not be sufficient” to convict beyond a reasonable doubt. Perhaps he felt that crucial evidence would have disclosed state secrets, or concluded that victim testimony by accused terrorists would never convince an American jury.

The greatest danger of jury trials would be a string of “patriotic acquittals” of defendants who would say they acted to save American lives, which would create terrible pro-torture precedents to haunt us for years.

That’s by far the best argument against doing so, along with much deeper partisan divisions and political polarization. I see the logic of it – but it is based on an acquiescence to and appeasement of evil.

It also means that countless torture victims – even completely innocent ones – are doubly assaulted: not only did these human beings endure unimaginable suffering, but they are now deemed beneath even a modicum of justice. This is why not prosecuting is such a grave decision. In what other context would we ever decide that an individual who tortured an innocent person to death should receive no legal consequences for it? I submit that it would be inconceivable. That such acts are protected if they are committed by those entrusted with all the might of government power and coercion makes this all the more chilling. By not prosecuting, we are creating an incentive for such awful things to be done again. We are empowering the Leviathan to torture prisoners in future knowing it can get away with anything.

Far from ensuring that these awful crimes never happen again, Obama has all but ensured that they will. That will be part of his legacy: the sounds of a torture victim crying in the dark, and knowing that America is fine with it. It is, in that sense, the end of America as much of the world has known it. As someone who has chosen this country because I revere it and love it so, it breaks my heart, and tears incessantly at my soul.

#RectalFeeding

It’s something so twisted that only Cartman had thought of it really. Marcy Wheeler connects the revelation to force-feeding at Gitmo:

Lawyers for Gitmo detainees, especially for the recently released Abu Wa’el Dhiab, argue the method used for force-feeding hunger-strikers amounts to to torture. Given the apparent use of force-feeding as torture in the past, that claim should receive renewed attention.

Brian Merchant discovers that rectal feeding is “a century-old technique that rose to prominence during World War I”:

It was invented by an American surgeon named John Benjamin Murphy (the apparatus is called the Murphy Drip to this day), and was used to both deliver drugs and to keep patients hydrated when they lost use of their mouth.

Over the course of the century, as physicians became more skilled at administering intravenous therapy, the Murphy Drip fell out of regular use. In ​a 2010 article in the journal Emergency Nurse, the author notes that while rectal rehydration is still occasionally used in Chinese medicine to administer herbal remedies, “With the widespread use of intravenous infusions in contemporary emergency nursing, some might question whether there is a place for proctoclysis.”

But the CIA used it anyway, and often.

Russell Saunders, a doctor, is appalled:

Even if one accepts the highly dubious notion that anyone believed “rectal feedings” were a legitimate means of nourishing someone, there was no reason to consider such extreme measures in the first place. The rule of thumb in medicine is “if the guts works, use it,” meaning that it’s best to use the stomach to hydrate a patient if it’s functioning properly. There is no indication that these detainees couldn’t have had tubes inserted into their stomachs through their noses for the purposes of feeding them, assuming that respecting their right to refuse food had already been thrown out the window. For hydration, an IV would have been effective, as CIA medical officers conceded.

What those same medical officers acknowledge is that using the rectum to hydrate prisoners (which would, in contrast to feeding, at least work) was an effective means of behavior modification. These procedures weren’t undertaken because they were necessary. They were done to give a thin patina of ersatz legitimacy to what is otherwise flagrant sexual assault. The details differ but the intent is the same as in a high-profile case of police brutality.

A reader imagines the response to this news:

The phrase “rectal feeding”, which I for one have never heard before (has anyone?), is what will ensure the viral power of the Senate Committee report. Whatever it takes I guess.

Take it away, Twitter:

Should Obama Pardon Bush?

Anthony Romero’s made the argument in yesterday’s NYT:

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

Eric Posner rejects this rationale:

The logic is faulty; interrogators who use torture in the future will expect to be pardoned just like their predecessors.

Whether you call non-prosecution a “pardon” or not, it amounts to the same thing. But what is most odd is that a civil libertarian believes that the president should tar people as criminals without giving them the benefit of a trial. Romero, like the supporters of torture, do what people always do when Congress or the courts can’t, or won’t, do what they want. They turn to the president and demand executive action.

Jonathan Bernstein, on the other hand, advocates for pardons:

This step is critical to keep the issue from becoming partisan, with Democrats being against torture and Republicans allowing it.  If torture is to remain banned, it’s going to take reviving the consensus of the elite against it that was broken in the Bush administration. Pardons take care of the legal jeopardy part for the officials; generous pardons might lessen their reputations as bad guys.

A final step has to be a truth and reconciliation commission to detail what happened and how counterproductive it was.

Julia Azari puts such pardons in historical context:

Like Ford’s pardon of Nixon, the act of pardoning would also acknowledge the wrongdoing, even while closing off the possibility of punishment. At the same time, it would depart from the logic that has informed many other politically visible pardons: while breaking from the past, it would acknowledge his opponent’s – not his own party’s – legitimate role in the polity despite serious transgressions. In the current political climate, that might actually be a radical move.

My core problem with this is that a pardon should only be given if the recipient has expressed remorse. Not only have Bush and Cheney and Tenet and Rumsfeld and Hayden expressed no remorse, they have aggressively defended their record, embraced the value of torture, lied about its effectiveness and refused even to acknowledge its appalling amateurism, gross miscarriages of justice and even deaths. There is no way such unrepentant war criminals can be pardoned against their will.

We have a rogue party in this country – a rogue party unlike any other in the West. There isn’t a single political party in the Western world that supports torture, except the GOP. There has never been a political party in American history that has openly supported torture. You cannot and must not appease this tendency. It is a deep threat to our democracy and to our way of life. By allowing the executive branch to do anything it wants, outside of any reasonable interpretation of the law, beyond any moral concerns, and to contract out torture sessions to amateurs is so egregious attack on the rule of law and the West that it cannot be tolerated, let alone pardoned.

Obama’s record in all this is a disgrace – a moral, political act of sustained cowardice and co-optation. It would be compounded by any attempt to formally pardon the guilty for crimes for which there is no statute of limitations and which place the US outside the norms of civilization. It would, moreover, destroy what’s left of the Geneva Conventions, turning their imperative for prosecuting war criminals into an actual pardoning of them. I’m ashamed of living in a country where this is even considered as an option.

What The Torture Apologists Aren’t Disputing

Steven Taylor makes a simple but essential observation:

So far the only critique of the Senate report has been that the techniques deployed by the CIA did, in fact, produce good and useful intelligence. Setting aside whether that is true or not, keep in mind that such an argument is a defense of torture. I have not seen anyone disputing the actual content of the report. If you are going to be upset about the report, keep in mind what you are defending.

American Support For Torture Has Grown

This is beyond depressing:

Data shows that popular opinion on the use of torture by the U.S. government has subtly shifted since 2004, when Pew Research Center began polling Americans on the subject. Pew asked whether torture used against suspected terrorists to gain important information is justified, finding a majority of respondents (53 percent) said torture could never or only rarely be justified. But over the next five years, public opinion slowly reversed.

By November 2009, a slight majority of Americans said for the first time that torture could sometimes be justified. In Pew’s 2011 report — its most recent — 53 percent said the U.S. government’s use of torture against suspected terrorists to gain important information can often (19 percent) or sometimes (34 percent) be justified, marking a turnaround from 2004.

But Aaron Blake finds that not all polling is in agreement:

Pew in 2011 showed 24 percent of Americans said torture should “never” be used — little-changed from the 25 percent who said that same in 2009. But also in 2009, a Washington Post-ABC News poll showed Americans were actually about evenly split on torture, with 48 percent saying it could be used “in some cases” and 49 percent saying “never.”

The reason for the even split? Probably because people were given just two options rather than four. And so people who might otherwise say torture should “rarely” be used are temped to say “never,” because they really don’t like the idea of it. … So in sum, depending on how you ask the question, support for using torture in at least some cases — even rare ones — has polled at 70 percent-plus, around 50 percent, and also at just 38 percent.