The Dish

It’s from Robert Bolt’s "A Man For All Seasons." Replace "the Devil" with "al Qaeda," and consider the arguments this administration has made:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Tom Cruise – in a Bollywood movie. Here’s the trailer:

Heads up: ABC News’ Nightline does South Park tonight.

Orwell would have understood David Addington, the brilliant legal thug behind Cheney’s and Bush’s authorization of torture for the past five years. That’s why you have to read the torture bill very closely to see what it does and does not do. The good news seems to me that the Congress has not redefined the Geneva Convention formally. That would have been a catastrophe; and it has been avoided. The consequences for the moral high ground in this long war, the effect it would have on the entire structure of Geneva, the barbarism it would have helped unleash in the coming years, the threat it would have posed to U.S. soldiers in or out of uniform – this has not yet come to pass, however strongly the president wanted it. The evidentiary rules are also better than what Bush wanted, though removing all judicial oversight and any individual’s ability to cite Geneva in the courts is a major blow to civilized warfare – and to individual liberty in America.

But – and this is a big but – Marty Lederman’s concern about the language in the bill about "cruel" treatment is deeply worrying. Here’s Marty’s point:

More important is the bill’s definition of "serious physical pain or suffering." One would think that, on any reasonable understanding of ordinary language, the "alternative" CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering – and the prospect of ending such suffering by telling one’s interrogators what they wish to hear – is the whole point of using such techniques in the first place. But remarkably – and not accidently – the bill’s definition would not cover all such actual "serious physical suffering."

The definition would require, for one thing, a "bodily injury" – something that would not necessarily result from use of the CIA techniques – even though one can of course be subject to great physical suffering without any "physical injury."

What’s worse, such physical injury would also have to "involve" at least one of the following:

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

As you can see, this definition simply does not cover many categories of actual serious physical suffering, including, naturally, the physical suffering that ordinarily results from the CIA techniques that have been reported.

The result, unfortunately, is a very constrained conception of what constitutes "cruel treatment" – a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide.

And therefore the bill would appear to exclude from the definition of "cruel treatment" many cases of actual cruel treatment prohibited by Common Article 3. And when that occurs, it is likely the Executive will construe the statute — and Common Article 3, as well — to permit some forms of cruel treatment that Geneva in fact proscribes, i.e., the "alternative" CIA techniques. Indeed, it’s happened already: The ink was hardly dry on the draft when numerous Administration spokespersons were gleefully informing the press that the bill is a green light to the CIA to reinstitute the "alternative" techniques that Hamdan had effectively interdicted. Byron York has gone so far as to relate that "both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques," even though such techniques do, in fact, constitue a breach of our Geneva obligations.

So we "formally" leave Geneva alone, but grant the executive branch complete discretion in determining what "cruel" means; and the language of the bill certainly can be construed to allow waterboarding, hypothermia, sleep deprivation, stress positions, and long-time standing. It even allows for a person to be beaten, cut, or near-drowned.

It’s important to note that McCain does not believe that this is the case. He believes that the definition of "cruel" here would bar such "alternative methods". But we know from bitter experience that in any ambiguity, this administration has opted for the more draconian interpretation. So therefore all of these techniques, described in detail in Solzheniytsen’s "Gulag Archipelago," potentially remain available to this president under this proposal. Barring further clarifications confirming McCain’s belief that this bill bars these "alternative methods", I see no legal barrier in this bill to Bush’s continuing to authorize them in the future. Worse, the proposal will have declared these practices not to be "cruel". Worse still, its Orwellian abuse of language contains echoes of totalitarian discourse.

The major step forward in this bill, however, seems to me to be the idea that the president specify in the Federal Register the torture methods he has actually approved. What I don’t understand – and what even now good lawyers tell me they don’t understand – is why these techniques aren’t already published before the bill is passed; or whether they will be published ahead of a torture session or after it; or whether the president can simply withhold this information as he sees fit. Some lawyers say that the president will not be required to issue such regulations and facts; merely permitted to do so. If that’s true, it’s meaningless. My fear is that this is a ruse; my hope is that it is a window for transparency. It is critical that the president tell the American people and the world what techniques he is using and what standards are being applied in the name of the United States. Sources tell me that there is a gentleman’s agreement that waterboarding is now off the table, that sleep deprivation will be restricted to 48 hours (as opposed to 48 days in one case), and that other barbaric practices like hypothermia will cease.

The trouble is: Cheney, Bush, Rumsfeld and Addington are not gentlemen. If we have learned anything these past few years, it is that they are not to be trusted on the torture question, that they have lied repeatedly and knowingly and insistently, that their use of the English language is designed to obfuscate and obscure the reality they are advancing, and the constitutional freedoms they are bent on dismantling. In so far as this bill grants this president discretion in enforcing Geneva, it means that the standards of Geneva will not apply under this president – although they might under a more civilized and competent one.

I should add that it is essential to the integrity of language and law that the word torture not be defined out of existence. Waterboarding, hypothermia, long-time-standing, and various forms of stress positions are torture, have always been torture and always will be torture. What we must do is what Orwell demanded: speak plain English before it evaporates from our discourse, refuse to acquiesce to the corruption of language and decency. In that respect, the press must continue to ask both McCain and all administration representatives whether passing this bill means that waterboarding, hypothermia, sleep deprivation, long-time-standing or stress positions are now illegal and unavailable to the CIA. They must not be allowed to get away with the answer that they will not mention specific techniques. The specifics are everything. And we must not be snowed by abuse of English into saying something is true when it isn’t. Until they are completely forthcoming on these critical details, this bill should not be passed. Moreover, something this complex and this grave should not be rushed into law with round-the-clock haste. We need this to be debated and deliberated slowly. Which means leaving it to the next session of Congress.

Who can speak more persuasively than Vladimir Bukovsky? Money quote:

I have seen what happens to a society that becomes enamored of such methods in its quest for greater security; it takes more than words and political compromise to beat back the impulse.

This is a new debate for Americans, but there is no need for you to reinvent the wheel. Most nations can provide you with volumes on the subject. Indeed, with the exception of the Black Death, torture is the oldest scourge on our planet (hence there are so many conventions against it). Every Russian czar after Peter the Great solemnly abolished torture upon being enthroned, and every time his successor had to abolish it all over again. These czars were hardly bleeding-heart liberals, but long experience in the use of these "interrogation" practices in Russia had taught them that once condoned, torture will destroy their security apparatus. They understood that torture is the professional disease of any investigative machinery.

Apart from sheer frustration and other adrenaline-related emotions, investigators and detectives in hot pursuit have enormous temptation to use force to break the will of their prey because they believe that, metaphorically speaking, they have a "ticking bomb" case on their hands. But, much as a good hunter trains his hounds to bring the game to him rather than eating it, a good ruler has to restrain his henchmen from devouring the prey lest he be left empty-handed. Investigation is a subtle process, requiring patience and fine analytical ability, as well as a skill in cultivating one’s sources.

When torture is condoned, these rare talented people leave the service, having been outstripped by less gifted colleagues with their quick-fix methods, and the service itself degenerates into a playground for sadists. Thus, in its heyday, Joseph Stalin’s notorious NKVD (the Soviet secret police) became nothing more than an army of butchers terrorizing the whole country but incapable of solving the simplest of crimes. And once the NKVD went into high gear, not even Stalin could stop it at will. He finally succeeded only by turning the fury of the NKVD against itself; he ordered his chief NKVD henchman, Nikolai Yezhov (Beria’s predecessor), to be arrested together with his closest aides.

So, why would democratically elected leaders of the United States ever want to legalize what a succession of Russian monarchs strove to abolish? Why run the risk of unleashing a fury that even Stalin had problems controlling? Why would anyone try to "improve intelligence-gathering capability" by destroying what was left of it? Frustration? Ineptitude? Ignorance? Or, has their friendship with a certain former KGB lieutenant colonel, V. Putin, rubbed off on the American leaders? I have no answer to these questions, but I do know that if Vice President Cheney is right and that some "cruel, inhumane or degrading" (CID) treatment of captives is a necessary tool for winning the war on terrorism, then the war is lost already.

It is one of history’s great tragedies that American conservatism, born in part in resistance to Soviet torture, should end by endorsing it in America, by Americans. And not just endorsing it, but brandishing the use of it as a tool to gain re-election and maintain power. If there is a conservative soul, and I believe there is, the current "conservative" leadership is bent on destroying it. And the resistance must not waver. I’ll post my take on the torture compromise bill shortly.

Forget the spin. Read the primary source. Here it is. My thoughts soon.

"The man … I wouldn’t call him nuts. He’s not crazy. He’s crazy like a fox," – Maurice R. Greenberg, who spills the beans on the discussion with Ahmadinejad at the Council on Foreign relations. Money quote:

He has been quoted many times, including last evening, that the Holocaust needs to be explored as to whether or not it really occurred. And he says, "Well you know, every time somebody tries to do that, they get imprisoned." Well, the reason some have been imprisoned is because it’s against the law in some places to deny that the Holocaust occurred.

Of course it occurred. And when he said that, I responded: "Listen, I went through Dachau during the war. To suggest it didn’t occur is simply a lie." So he turned around and asked me how old I was, to determine if I was old enough to have been there. And then he changed the subject.

A reader writes:

Begin has a nasty image problem outside of Israel. But it should be noted that his torture policy was noteworthy. As soon as he assumed office, after the general elections of 1977, he summoned the head of the GSS (AKA Shin Beth), and told him simply, "you must stop using all methods of torture. This is an order". The director protested: "Not even a slap to the face?"; "Not even that," replied Begin.
It should be noted that when he did so, the country was under a deadly wave of terror attacks. Not yet suicide attacks, but deadly nevertheless. And he stuck by his order.

When you have actually confronted what torture is, like McCain and Begin, you know how cancerous it is to a free society. The sign of a strong conservative is his disavowal of torture. The sign of a weak one is his embrace of it.

I haven’t posted on the torture bill yet because of its complexity, language and political implications, and because this matter is easily the most important moral decision made yet in the war on terror by the Congress, and I want to make sure I understand it entirely and have thought it through. Blogging can be instant and maybe should be instant. But I’m trying to read the actual text rather than the spin. I’ve learned these past few years that Cheney’s legal aide, David Addington, is absolutely ruthless in making sure that the United States continues to have the capacity to torture prisoners. I’ve also learned that if you do not read every comma, adjective and sub-clause, you may get taken to the cleaners by this guy. I’ve taken my time honestly to avoid getting trapped in the spin zone, and to listen and read carefully what both sides have said. Bear with me.