TORTURED EVIDENCE

The latest twist in the torture end-game is a new Graham-Levin-Kyl initiative that would allow evidence procured by torture to be admissable in the military justice system. The proposed language is as follows:

Consideration of statements derived with coercion —

(1) Assessment — The procedures submitted to Congress pursuant to subsection
(a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess —
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of such statement.

Allowing evidence procured by torture to be admissable is exactly the question recently addressed by the British law lords, and they emphatically rejected it as alien to centuries of English common law. If Congress were to pass this wording, it would be the first time in the history of the United States that torture-produced evidence was legally admissable. That’s a big deal. Scott Horton has more analysis here.

VETO-PROOF

By my calculations, the McCain Amendment is now veto-proof. All the more reason for McCain to hold firm.

THE CONSERVATIVE SOUL: Milton Friedman speaks of the spending explosion under the Bush Republicans:

“I’m disgusted by it. For the first time in many years Republicans have control of Congress. But once in power, the spending limits were off, and it’s disgraceful.”

Thank God someone hasn’t lost his principles.

COLD CELLS: Rich Lowry’s latest point is to ask if I object to a prisoner being grabbed by his lapels. Lapels? If one of our detainees has a suit on, and isn’t naked and hooded, I would not be outraged if a guard shook him by his lapels. Please. I’m unaware of the “belly slap” but it doesn’t sound “cruel, inhuman or degrading” to me; and it doesn’t shock the conscience. I do not believe the Army Field Manual and U.S. law would forbid it. As for cold cells, I presumed Lowry was referring to the technique of inducing hypothermia, as alleged against the Navy Seals. But he is asking about milder versions – just plain old, cold and damp cells. Maybe he means something like the following:

No matter how hard it was in the ordinary cell, the punishment cells were always worse. And on return from there the ordinary cell always seemed like paradise. In the punishment cell a human being was systematically worn down by starvation and also, usually, by cold. (In Sukhanovka Prison there were also hot punishment cells.) For example, the Lefortovo punishment cells were entirely unheated. There were radiators in the corridor only, and in this “heated” corridor the guards on duty walked in felt boots and padded jackets. The prisoner was forced to undress down to his underwear, and sometimes to his undershorts, and he was forced to spend from three to five days in the punishment cell without moving (since it was so confining). He received hot gruel on the third day only. For the first few minutes you were convinced you’d not be able to last an hour. But, by some miracle, a human being would indeed sit out his five days, perhaps acquiring in the course of it an illness that would last him the rest of his life.

There were various aspects to punishment cells – as, for instance, dampness and water. In the Chernovtsy Prison after the war, Masha G. was kept barefooted for two hours and up to her ankles in icy water -confess! (She was eighteen years old, and how she feared for her feet! She was going to have to live with them a long time.)

Gitmo? Abu Ghraib? Bagram? Camp Cropper? Nah. This passage is taken from Solzhenitsyn’s “Gulag Archipelago” on Soviet methods.

THE DEEPER POINT: The principle this series of examples illustrates is a relatively simple one. There are almost an infinite number of ways to coerce someone into some kind of confession. Differences in context, degree of violence, nature of violence, etc. can be endlessly drawn out, and opponents of torture, such as myself, can be asked to approve every single nuance, or disapprove. That’s why we have a clear standard in plain English. The standard is that torture is out of bounds, and also that “cruel, inhuman and degrading” treatment or treatment that “shocks the conscience” are forbidden. These are not vague standards in plain English and are actually the sharpest lines we can draw. That’s why it’s important to resist the casuistry of people who try to redefine the plain meaning of these words; and why it’s critical that interrogators do not go near “severe mental or physical pain.” Since these rules have been in place for decades, and their meaning, until the Bush administration, well-understood, I see no reason to change them. The priority has to be much smarter, more labor intensive intelligence-gathering, long-term infiltration of terror groups, and the grooming of sources embedded within communities that harbor religious terrorists but who are not terrorists themselves. This takes time; but it is infinitely more fruitful than the goonish and immoral way some have been carrying on these past few years.

EMAIL OF THE DAY

“Why do you bother with this guy, Levin? You are serving truth. He is serving politics. What good did it do Kerry to talk about facts? If he looked dangerous to the opposition (as I am sure you look to this guy), all they had to do was lie and lie louder to defeat him. I feel like you are falling into a trap. They draw you in because they know you want to talk about facts, and then they beat you up with lies. You can’t win, but they win every time you give them another opportunity to pretend to refute you. This Levin seems to be serving a higher cause in his mind. Even if it is not religious it is like a religion: justify what this administration does, no matter what.”

I disagree. I’m not up for election. And I think that all debate helps flush out the truth. Even if a majority decides to ignore the truth, in the end, it will count. Unlike Kerry, I also believe in fighting back against lies and smears. In fact, I’m delighted that the NRO-Reynolds chorus has finally decided, after months and months of pretending there was nothing to debate, that they have to deal with this question. The trouble is: their long months of denial and evasion have made them lazy and stunningly uninformed. Which is worth flushing out as well.

THANKS, MR PRESIDENT

Something remarkable has been going on these past few weeks. The president has begun to be a real war-leader. He is conceding mistakes, he is preparing people for bad news, he is leveling with the American people, he is taking questions from audiences who aren’t pre-selected or rehearsed. Some of us have been begging him to do this for, er, years. Now that he is, his ratings are nudging up. The truth is: most Americans want to win in Iraq. They will back a president who is honest with them and dedicated to victory. And those of us who have been deeply critical of the war’s conduct thus far are fully prepared to back the only commander-in-chief we’ve got, if he’s honest with us, corrects mistakes, and has a sane plan for progress. With Casey and Khalilzad and Rice, I think we have the best team we have yet deployed in the war. Let’s pass the McCain Amendment and put the abuse and torture issues behind us, and fight this war the way Americans have always fought: humanely but relentlessly, for a better, freer world.

NO DICE: McCain won’t give in on immunity for those who have broken the law. At this point, the Bush administration is trying to protect itself from prosecution. I have a feeling that Donald Rumsfeld won’t be leaving the United States very often in the future.

LEVIN DIGS IN

This is just embarrassing. But at this point, what choice do I have? Here’s Mark Levin again, who openly admits he hasn’t read a single one of the government reports on abuse and torture. Here’s his latest repetition:

[Sullivan] says he linked to several government reports. He did in an earlier post, which I addressed, i.e., that they deal almost exclusively with Abu Ghraib, which has nothing to do with the debate about allegations of systemic torture involving unlawful enemy combatants. Andrew wishes Abu Ghraib had relevance to this debate, but it does not.

Let’s just look at the titles of the actual reports. The Taguba Report is an “Investigation of the 800th Military Police Brigade.” That brigade operated at Abu Ghraib, but also, according to the report, “Camp Bucca, Camp Ahraf … and High Value Complex/Camp Cropper.” The Schlesinger Report’s title is “Final Report of the Independent Panel To Review DoD Detention Operations.” It deals with much more than Abu Ghraib. It’s a vast report on policies and “leadership failures” across every theater of combat. It’s ok if Levin doesn’t want to examine any of the evidence. It’s another thing when he accuses those of us who have of lying or misrepresenting what is in the public domain. Levin goes on:

He threw up a flurry of news stories, including one reporting on secret prisons in Europe (which has nothing at all to do with torture). By looney links I meant not that the sources themselves were looney, but the use of them was looney since they are not evidence. Perhaps I should have been more clear.

The Washington Post story Levin refers to specifically pointed to the fact that these secret sites were authorized to use waterboarding. The evidence in the Danner book contains every single government memo relating to detention policies, all the official government reports, and dozens of depositions of detainees. The reports are also the first to use the term “migration” of torture policies from Gitmo to Iraq. I didn’t come up with that idea. The government did. Last time I checked, this kind of thing is considered “evidence.” Levin has no idea what he is talking about and is allowed by National Review to charge those who do with lying.

COLD CELLS: Lowry wants my view on “cold cells:” creating freezing rooms where water is constantly doused on naked prisoners to induce near-death hypothermia. He wants to know if I think it’s torture. No reasonable person would ask such a question. Of course it’s a form of torture. Which is why it’s banned under U.S. law and in the Army Field Manual. The illegal acts authorized by the president are one reason he is trying to negotiate immunity for the crimes that he has instigated. If it weren’t torture, he wouldn’t be seeking immunity. By the way, don’t you think it’s odd that the theocons at NRO have yet to note the Pope’s condemnation of torture? Actually, not odd at all.

OUR LEARNING CURVE

Fascinating and encouraging piece by Lawrence Kaplan in TNR on the emergence of a real, actual strategy to defeat the insurgency in Iraq. Change is finally happening:

Battalion commanders who prepared against a conventional enemy at the National Training Center in Fort Irwin, California, prior to their first deployment to Iraq say that, when they returned to prepare for their second deployment, nearly all of the exercises involved guerrilla warfare. From West Point to the War College, the service schools have all added courses on the subject. As well as releasing a counterinsurgency field manual last year, the Army’s Training and Doctrine Command has a draft counterinsurgency doctrine waiting to be approved, and, last month, a counterinsurgency school even opened in Iraq, which incoming company and battalion commanders will attend as soon as they arrive in theater. Meanwhile, at the top, despite Casey’s insistence that “we’re applying counterinsurgency doctrine to the situation in Iraq, and doing it fairly well,” his approach is, even now, undergoing a profound revision. Tellingly, the shift comes as much at the behest of retired officers, think tanks, and civilian policymakers as it does from the accumulation of the Army’s own experience. The impetus also comes from two reviews of military strategy in Iraq, one commissioned by Casey himself and one by U.S. Ambassador to Iraq Zalmay Khalilzad. Casey’s review, launched this summer, concluded that U.S. forces “generally have it about it right,” in the general’s own telling. Khalilzad’s review, also launched during the summer, concluded they don’t.

I have a feeling that Zalmay Khalilzad may one day be seen as the critical figure who turned the tide in Iraq.