Month: February 2010

Marcy Wheeler, the best torture-blogger out there, finds the following in the OPR:

As I pointed out last week, PDF page 178 of the First Draft includes an unredacted reference to the technique.

Goldsmith viewed the Yoo Memo itself as a “blank check” that could be used to justify additional EITs without further DOJ review. Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute, he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved. [my emphasis]

The twelfth technique–which Mitchell and Jessen wanted approved but which Yoo excluded because of the rush to approve waterboarding–is mock burial.

I know Clive Crook thinks the legal prohibition against torture is so fuzzy he can totally understand why there were such deep good faith discussions about whether using the Khmer Rouge waterboard counted, but "threat of imminent death" is right there in plain English. So even Yoo knew mock burial might be a bit of a problem – but he just needed "more time" to figure out a legal way to defend it, if they needed some kind of legal protection for waterboarding first. Poor guy. Just trying to do his best under difficult circumstances, and the damn Congress never actually clarified specifically that Khmer Rouge techniques memorialized in the Cambodian Museum of Torture were "torture" did they? 

Wheeler:

Now, it’s not clear whether Mitchell and Jessen ever did use mock burial with Abu Zubaydah. Zubdaydah didn’t mention it in the narrative he gave to the ICRC of his treatment.

But there are two more reasons why Yoo’s refusal to approve mock burial is dangerous for the CIA. First, an FBI agent told CIA and DOJ that the technique was borderline torture. Nevertheless, the CIA asked to have the technique available to it.

Also, any legal discussion of why mock burial would be a problem would focus on how torture statutes prohibit the threat of imminent death. Yet after mock burial was specifically excluded as a torture technique, CIA torturers went on to threaten detainees with a power drill and a gun. In other words, someone at that CIA had already been told, specifically, that they could not use the threat of imminent death on detainees. But on at least two occasions, they did so anyway.

It is these threads that Eric Holder has opened up a preliminary investigation into. But once you start pulling on those threads …

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Geoffrey Dunn scrutinizes the Politico scoop:

There have been reports of trouble brewing in Palin's inner-circle for a while–of near breakdowns and dramatic outbursts–as the arrival of more paid political hacks from outside Alaska has created furious infighting for Palin's favors. Ironically, Barr's lone source for his story (other than Stapleton herself) was the Palin sycophant Fred Malek who has apparently found new life and some pep in his step as a source for everything Palin. […] Stapleton's "explanatory" email to Barr begged for some follow-up (of course, there was none)

Alaska blogger Jesse Gryphen:

It is definitely worth noting that there is NOTHING about Meg's resignation from the Palin camp. Not on Twitter, not on Facebook, nowhere! Not to be TOO conspiratorial here, but if Meg really notified her boss [last week] that she was leaving don't you think there would a prepared statement ready to go on the day that it was reported to the media?

Things that make you go hmmm. The closest to a Palin statement came from CNN:

There are no immediate plans to hire a replacement for Stapleton, a source close to the Palin family told CNN. The source noted that the family, which takes pride in their Alaskan identity, are comfortable speaking in their own voice.

(Stapleton is originally from New York.)  Calderone notes the near total shutdown of media-Palin relations.  Another bit of reporting from ADN:

[Stapleton] said there are no plans for her to have any role, either formally or informally, with Palin. "If she asks or needs any advice I'm always happy to give my opinion."

Mudflats provides a comprehensive look at her Alaska tenure and departure:

[I]t’s always a matter of time with Palin’s inner sanctum.  One by one, they fall by the wayside, either frozen out, ignored until they quit, thrown overboard in the night, or publicly chucked under the bus like human speed bumps.  Campaign supporters, loyal friends, her former chief of staff, her former legislative director, her trusted inner-sanctum go-to guy, commissioners of various stripes, the Democrats who helped her pass the only memorable legislation she ever had – all gone and forgotten; all relegated to the dustbin of Palin history, sucked dry, used up and traded in. […]

Let’s see.  Who’s left in that inner sanctum?  Kristan Cole, Kris Perry, and…. Todd.  And then there were three.

Chris Cillizza counts the people left in her political circle. While non-Alaskan blogs are muted over Stapleton's exit, the comments section at the ADN has erupted:

I remember Meg Stapleton. She's the one who talked trash about Walt Monegan. Walt Monegan is a Marine and was a patrolman for APD and an outstanding commissioner for DPS before Palin fired him because he has character and refused to be Palin's henchman and fire her ex-brother-in-law. Meg Stapleton should move back to the east coast. She isn't welcome in Alaska anymore.

Another commenter:

It amazes me how it's always about the family. Wasn't the family important before people take these jobs?

Shannyn Moore:

BOOK DEAL in 3-2-1…

We're all ears, so to speak.

(Image: Stapleton first entered the national spotlight in 2003 when she was tackled by a reindeer while reporting a live segment in Anchorage.)

It's one of George Orwell's most famous formulations; and I used it myself in defense of the Iraq war. Neocons have it in their portable tool kit of agit-prop. But Mike Kinsley pointed out to me the other day in the office that Orwell actually recanted it.

And sure enough, he did (via Gene Volokh):

The same propaganda tricks are to be found almost everywhere. It would take many pages of this paper merely to classify them, but here I draw attention to one very widespread controversial habit: disregard of an opponent's motives. The key-word here is "objectively".

We are told that it is only people's objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are "objectively" aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant.

I have been guilty of saying this myself more than once.

The same argument is applied to Trotskyism. Trotskyists are often credited, at any rate by Communists, with being active and conscious agents of Hitler; but when you point out the many and obvious reasons why this is unlikely to be true, the "objectively" line of talk is brought forward again. To criticize the Soviet Union helps Hitler: therefore "Trotskyism is Fascism". And when this has been established, the accusation of conscious treachery is usually repeated….

In my opinion a few pacifists are inwardly pro-Nazi, and extremist left-wing parties will inevitably contain Fascist spies. The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like.

It is this habit of mind, among other things, that has made political prediction in our time so remarkably unsuccessful.

One of the more disgraceful uses of it recently was my own shameful argument that opposing the war against Iraq was objectively pro-Saddam. But, following Orwell, I do not think it a failure to admit error and explore why. among current offenders, those who somehow suggest that those member of the Obama administration who acted as lawyers defending terror suspects are objectively pro-Jihadism seem to me among the worst of the worst, so to speak. Or those who say that Obama, by ending the torture regime, is somehow objectively endangering the country.

Excitable Eric. Always worth re-reading.

Clive Crook reads the OPR report and protests that American law against torture is "still not as clear as it should be, and Congress has let that state of affairs persist." In my view, it could not be clearer. The whole point of Geneva and the UN Convention and US domestic law is that the infliction of "severe mental or physical pain or suffering" to extract confessions is illegal under any circumstances, especially military emergencies. Anything that comes anywhere near this kind of treatment is barred. Much that falls short of torture is barred as well. Categorically. The expansiveness of the law is not the same thing as vagueness. It is a declaration that this is a third rail never to be gone near.

Somehow, no one had this debate about the lack of legal clarity about torture or inhumane treatment in the US before 2002. No one. Why? Because it was unthinkable.

What changed is that for the first time in American history a president of the United States chose to cross the Rubicon and under his sole and secret authority decided to torture prisoners under the mistaken belief that this was a way to get accurate intelligence. He did this not in the classic ticking nuclear bomb scenario as an emergency exception to the clear rule – but as an ongoing program with respect to individuals seized with no due process, innocent and guilty, in a war without end. This was not a close or even faintly ambiguous legal call. As the OPR Report clearly states:

Former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

OPR finds professional misconduct when an attorney intentionally violates or acts in reckless disregard of a known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy.

There is no lack of clarity there by legal professionals, the internal watchdog of DOJ. In fact, the term used is "unambiguous". Crook is arguing that 9/11 somehow changed two centuries of American presidential scrupulousness in this regard, rendered Geneva irrelevant, and somehow shifted the burden of proof against those who insisted on the plain meaning and intent of the law. Moreover, this was to be perpetuated by memos going well into Bush's second term, and Cheney is still aggressively arguing to continue them for ever. But an event does not change the plain meaning of the law. And there is and was no reason for Congress to change a law whose meaning had been crystal clear for decades.

Yoo's belief that the president has permanent super-powers in wartime and that wartime can be a permanent condition against a concept such as "terror" are not legitimate let alone "legal" views. They are insane. They render the United States an elected fascist dictatorship, where the law is what the president says it is and he has the power to torture evidence out of suspects to prove whatever case he wants. The idea that this is what the Founders of this country wanted when they allowed for an energetic executive in times of emergency to act with dispatch – as in shooting three Somali pirates – is such an over-reach it boggles the mind that any reasonable person can begin to contemplate it.

It makes a total mockery of a constitutional democracy and limited government. It creates a permanent Schmittian dictatorship with the torture power. To claim, as Yoo did, that the Geneva Conventions and domestic law permit prisoner mistreatment up to the point of death or loss of major bodily organs is equally insane. There is not a shred of legal reasoning here – there is rather quite obviously a desire to invert an unambiguous prohibition into an open-ended writ to do anything to defenseless captured human beings, with a painstaking and cynical legal cloak to prevent these war criminals from being brought to justice. To cite Goldsmith as an independent source when he was in the same administration tasked with the same area and enmeshed in the same legal responsibilities is like looking to Pat Buchanan as an independent observer on Watergate.

Except this makes Watergate look petty. But then we had a working press with balls, and now we websites seeking hits by sucking up to power.

(Photo: Robert Giroux/Getty.)

"I look at it like this. I have a cat, I love my cat and it's like someone coming in and saying, 'Hey, is that cat a Republican or a Democrat?' He's my fucking cat, leave him alone," – Trey Parker.

Well, it seems quite clear that if the right is going to start cutting something, foreign aid is the one thing they can just about agree on. So how about that $5 billion a year to Egypt and Israel? Any takers?

Crickets.

Catherine Rampell evaluates:

[E]ven if the job bill were perfectly designed it could still end up worsening the job market if it encourages employers to delay hiring because they’re waiting for the best possible deal.

Maj. Douglas Pryer wants more ethics training for soldiers:

"Law is nothing unless close behind it stands a warm living public opinion," Wendell Phillips, the great abolitionist, once said. Among our political and military leaders, a warm opinion that has embraced the Geneva Conventions and how these conventions are expressed in U.S. law, military regulations, and doctrine has been too often absent since 9/11.

Just as the Civil Rights Act of 1964 did not immediately end (or even reduce) racism, the Detainee Treatment Act of 2005 has not ended the belief of many leaders that it is okay for Americans to torture if it might save lives.

Above all, what we need now are strong ethics programs that teach military leaders how to reason toward professionally acceptable solutions to moral dilemmas. Sadly, although such programs now exist at Fort Huachuca, West Point, and a few other military institutions, their existence is hardly uniform across our military.

The Economist’s Bagehot asks:

In [Gordon] Brown’s case, it isn’t only his temper. He is dangerously workaholic, sometimes indecisive, and he struggles to delegate. A lifetime in politics has enthralled him to its machinations and short-termism—though he also possesses an almost superhuman resilience, which has helped him to withstand the serial meltdowns and coups of the past few years. These traits may indeed help to explain some of his government’s failings, if they mean he intimidates his staff and wastes his own energy. Perhaps his alleged propensity to throw mobile phones and punch car seats is somehow connected to Britain’s gargantuan deficit and the severe recession he has presided over.

Or perhaps it isn’t. History suggests that sometimes bad manners and habits are destructive; sometimes they are not. And ultimately it is the facts of the deficit and recession that matter, not rumours of hurled phones and stapled hands, etc; it is the record, not the irruptions. If Mr Brown’s record were better, people would probably be less interested in his mood swings.