Truth, Consequences and Andrew Sullivan

David Broder doesn't get a whole lot of respect in the blogosphere. In more than one case, Border has been viewed as some what bland and grey with his calls for bipartisanship. But of course, Broder has been a reporter for a long time, longer than some of us (myself included) have been alive. He remembers when politics wasn't as nasty as it is now, and remembers when politicians of all stripes worked for the greater good.

Broder wrote an op-ed recently where he called for the President to "stick to his guns" and not move towards the prosecutions of Bush-era officials who sanctioned torture. He thinks (as I do) that Obama was correct in releasing the torture memos, but fears that going after former Bushies will open a Pandora's box:

But having vowed to end the practices, Obama should use all the influence of his office to stop the retroactive search for scapegoats.

This is not another Sept. 11 situation, when nearly 3,000 Americans were killed. We had to investigate the flawed performances and gaps in the system and make the necessary repairs to reduce the chances of a deadly repetition.

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places -- the White House, the intelligence agencies and the Justice Department -- by the proper officials.

One administration later, a different group of individuals occupying the same offices has -- thankfully -- made the opposite decision. Do they now go back and investigate or indict their predecessors?

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice.

Suppose that Obama backs down and Holder or someone else starts hauling Bush administration lawyers and operatives into hearings and courtrooms.

Suppose the investigators decide that the country does not want to see the former president and vice president in the dock. Then underlings pay the price while big shots go free. But at some point, if he is at all a man of honor, George W. Bush would feel bound to say: That was my policy. I was the president. If you want to indict anyone for it, indict me.

Is that where we want to go? I don't think so. Obama can prevent it by sticking to his guns.

It's a fair question. Going down the road towards prosecutions will infuriate the right and you can bet that when a Republican adminstation takes power, they will start looking under rocks for supposed crimes.

None of this impresses blogger Andrew Sullivan. He responds to Broder with a withering answer, full of fury at President Bush:

For an administration to secretly and illegally unleash this weapon - against citizens and non-citizens alike - and to demand that it not be subsequently called to account, that it be allowed to get away with it under some absurd notion that it's too divisive to hold war criminals accountable for their crimes is and was an outrage. Punishing those responsible for war crimes is not "scapegoating". You know what scapegoating is? It's throwing Lynndie England in jail for following orders given by George W. Bush, while leaving him to the luxury of a Texan suburb.

He concludes by saying that the stakes are high in not seeking justice:

If America - America - discovers that its own president has illegally tortured and decides that it simply won't do anything about it, that it doesn't matter, that it's too polarizing to restore the rule of law ... then what hope do those people have? To whom will they look when they fight far more pervasive tyranny, buttressed by the same absolute power to coerce the truth and break the human soul?

I have to say that I lost a lot of respect for Andrew Sullivan a long time ago. My problem with him is that he takes on a cause so passionately that he refuses to see the consequences of his actions. In the run-up to the Iraq War, he was one of the most passionate supporters for the war, damn all the concerns that the war could become a quagmire. Anyone that believed we shouldn't go to war, was basically consorting with evil.

Now, Sullivan wants to see the Bushies, the ones he once supported, prosecuted for war crimes and damn the consecquences. Nevermind if this could rip this country apart in ways we have not known.

I am no fan let alone a friend of the Bush Adminstration. I think they did a lot to destroy the Republican Party and sully America. I think they were wrong to even entertain the thought of torture. But other concerns have to be taken into account before we think we need to have war crime trials. If we start investigating a former adminstration in the way that Sullivan and others want, it will not stop there. We will have opened a nasty precedent that we will have to live with for generations. Investigations will fly like crazy.

Border's approach is not perfect. Yes it would allow the Bushies "to get away with it." But in the real world, we sometimes have to make some calls we don't like. Sullivan's approach might be feel better, wrapped in a cloak we think is justice, but it might end up a phyrric victory: winning the battle of bringing Bush to justice and destroying the fabric of America.

Broder remembers when Republicans and Democrats disagreed but were able to friends. he knows the past and sees the present which is not like that anymore. He also fears what the future brings.

Sometimes the old man has something worthwhile to say. It would be nice if young whippersnappers like Sullivan would listen.

Random Musings on the Toture Memos

I haven't talked about this issue because it is one so fraught with emotion. But I'be decided to wade in the waters and share some thoughts:

• While I think Obama did the right thing in releasing the memos, I think that if one is going to prosecute (something that I am wary of) then you need to not only prosecute the "intellectual authors" but those who carried it out. I will use my only reference to Nazis in saying that what we learned from the Nurmeberg Trials is that simply following orders is no excuse. Yes, I know CIA agents get their orders and act within a legal framework, but there is also a moral framework as well. I also think only going after the lawyers and up from there tends make this all look like a vendetta against the Bush Adminstration than it does trying to find out what happened and how to guard ourselves from it ever happening again.
• On the topic of prosecutions, the whole thing makes me feel uneasy. It might seem trivial, but I wonder if such an adventure would be seen as impartial and willing to seek justice or as a partisan vendetta. Maybe it doesn't mean a lot to try to find ways to bring our nation together, but there is something to be said about trying not further divide the nation with trials that make one side happy and another mad. It's the old conservative nostrum: actions have consequences. Just as those who authorized torture might be facing a judgement day for crimes committed, there will be a consquence for having said trial and it might be a bad outcome for the future of our nation. If there are prosecutions and trials, there has to be a mammouth effort to make sure that there isn't even a trace of partisanship.
• Republican Peter Hoesktra of Michigan says Congress knew of the decisions to torture, but his writings leave out; who in Congress knew? What did they know? Did they know the exactly that the CIA was torturing people? It could be that Republican and Democratic leaders did know about this, and if they did, they should answer for it. But Hoekstra doesn't say anything at all about who knew, what did they know and when did they know it.
• I think it's important to talk about the context in which the decision to torture was made. Jeff Jacoby makes an interesting case in a recent op-ed about in the days and months following 9/11 how American society was wanting for ways to prevent another attack, even if that meant using some harsh methods. Jacoby shares an article by Jonathan Adler in 2001 where he wondered if it was time to use torture ala Israel. Jacoby goes a bit too far in saying that these methods prevented an attack, but he was correct in saying that context does matter, not in excusing the abuses, but at least in understanding why they might have happened. I think in those days after 9/11 many of us entertained thoughts of the "gloves" coming off to protect hearth and home.
• I am bothered by the use on both sides of the issue of using something based on its effectiveness. Many conservatives who favor the harsh techniques think it was worth it since it prevented attacks and well, there are not nice people. Many liberals tend to say that torture never works, saying it is ineffective. It seems that both sides try to make a cost-benefit analysis on the issue, when what matters here is not that as much as it is a moral question. If something is effective, is it moral? Torture might be effective in stopping an attack, but just because it works, does that mean we should use it? And just because we use it on really bad people, does that make it okay? Even bad, evil people have certain rights and good people have certain standards. I agree with Megan McArdle on this one.

So those are my thoughts. I do have one final one: I think that we should have some sort of commission detailing these issues and not do any prosecutions. I think what is important is finding out what happened and how to prevent it.

Not In My Backyard

Per Jennifer Rubin:

If the Republicans are looking for a good issue, here is one: promise to filibuster (with the help of Democrats from affected states) any attempt (and the required funding) to put terror suspects within the confines of the U.S. Why should Democrats’ acute sensitivity about world opinion (emanating from that bastion of human rights, the UN) take priority over the peace of mind of our own citizens? It is baffling.

I frankly don't get this fear of having suspected terrorists being housed in federal prision on American soil. And what's with this manufactured fear about having to pay for these prisoner's upkeep? I mean, aren't we doing that already at Gitmo? Does Rubin really think our government would house these guys in some county lockup and not in some federal prison?

My own take is that we have housed bad men accused of terror in federal prisons before with no fear that somehow they would breakout or something. The thing is, most of these communities that have federal prisons have at times welcomed these facilities for their business and they already house the worst or the worst without these communities fearing they are on the run. If they aren't that worried that these people aren't going get out and rape and pillage, then maybe it' okay to house suspected terrorists in federal prisons.

There might be some legitimate questions concerning the closing of Guantanamo, but this is just a silly smokescreen.

Why Wearing A Bra is Torture

I've always been a bit confused over some aspects of what consitutes torture. The recent admission by Susan Crawford that the goverment did actually torture someone at Guantanamo. Crawford notes what happened:

"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani’s interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."

At one point he was threatened with a military working dog named Zeus, according to a military report. Qahtani "was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation" and "was told that his mother and sister were whores." With a leash tied to his chains, he was led around the room "and forced to perform a series of dog tricks," the report shows.

The interrogation, portions of which have been previously described by other news organizations, including The Washington Post, was so intense that Qahtani had to be hospitalized twice at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which in extreme cases can lead to heart failure and death. At one point Qahtani’s heart rate dropped to 35 beats per minute, the record shows.

Now at first blush, I had honest questions about how this could be torture. I mean, this wasn't waterboarding or burning someone with cigarettes. How could forcing someone to wear a bra constitute torture? The blog, Stop the ACLU regarded all of this as nothing more than hazing.

Being a curious guy, I decided to see what was found in the Army Field Manual. This is their definition of interrogation:

Interrogation is the art of questioning and examining a source to obtain the maximum amount of usable information. The goal of any interrogation is to obtain usable and reliable information, in a lawful manner and in the least amount of time, which meets intelligence requirements of any echelon of command.

It then gets down to business and tells you what torture is:

The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor. condoned by the US Government(emphasis mine). Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear. However, the use of force is not to be confused with psychological ploys, verbal trickery, or other nonviolent and noncoercive ruses used by the interrogator in questioning hesitant or uncooperative sources.

The psychological techniques and principles outlined should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, mental torture, or any other form of mental coercion to include drugs. These techniques and principles are intended to serve as guides in obtaining the willing cooperation of a source. The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.

Additionally, the inability to carry out a threat of violence or force renders an interrogator ineffective should the source challenge the threat. Consequently, from both legal and moral viewpoints, the restrictions established by international law, agreements, and customs render threats of force, violence, and deprivation useless as interrogation techniques.

Scott Payne answered my question about what can be done by interrogators by saying this:

...extreme verbal interrogation is fine: throw facts at the person, make
threats, yell and scream, force them to answer questions for hours on end,
confuse and frighten them. But beyond that, it’s hard to see what is acceptable.
Especially in the absence of clear and present danger (thereby disposing of the
24-Jack-Bauer-ticking time bomb analogy, or, as Chris Dierkes coined it, Cole’s Law).

So yes, forcing someone to wear a bra is a violation according to the Army Field Manual and does indeed constitue torture as would subjecting someone to extreme temperatures or depriving them of sleep.

On one level this does seem more in line with hazing, procedures that while embarassing are not violent. But according the Field Manual, it seems that anything that moves beyond mere words is crossing the line. The minute someone is touched, forced to do something against their will, we have gone from an interrogation to torture.

I think part of the issue here, besides the moral obtuseness of some conservatives, is that most of the general public really doesn't understand the definition of torture. We are thinking of something like applying thumbscrews to people, but I think what the Field Manual is getting at is that anything to demeans the dignity of a person is something that we must not do. So, forcing a man to wear a bra, or calling his mother a whore, is something that demeans the person and is coercive, even if it isn't physically violent.

The person involved in this case was not a nice man. He was accused of being the 20th hijacker on 9/11. Now some will say that because this guy is a bad person, or could be bad person, then it was okay to torture this person. But the Field Manual doesn't make distinctions between the innocent and the guilty. The law is pretty blind in that matter. Treat the suspect with dignity, is what the Field Manual states.

The question that will always remain with me is what made the Bush Administration think it could cross the line. What spooked them to go against past practices?

I don't know that answer.

h/t: John Schewnkler

Inter Arma Enim Silent Leges (II)

Mike over at the Big Stick decided to respond to my recent post on torture and on the Bush Administration should be held accountable for lapses in human rights. Mike agrees that criminal investigations would be vindictive but has some reservations on a "truth commission." He gives his reason, using President-elect Obama as a guide:

As I have mentioned in comments on various blogs, when Obama received his first national intelligence briefing in November, he entered the most exclusive club in the world. He began to learn things that no doubt completely changed the way he would think about the world from that moment forward. The blunt realities of leading the most powerful nation in the world are no doubt eye opening. This is why foreign policy remains the least changed aspect of the federal government with each new President. There is more continuity there than in any other area and for good reason. Foreign policy is a very complicated thing and it can’t be subject to the whims of each new President.

When Obama began to receive executive-level intelligence he also began to see a very different picture than those of us who get our security briefings from CNN and MSNBC. He was probably informed about successes we have had using intelligence gained under duress. He probably learned about the use of torture in every administration since FDR. He probably learned about a lot of rule-breaking under previous administrations that resulted in a safer America. And that is why I don’t think he will pursue investigations of Bush’s administration. Because now he knows why they do what they do.

He then relies to a post by Ross Douthat that talks about terror and the Clinton Administration:

The first time [Richard Clarke] proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: “Lloyd says this. Dick says that. Gore laughed and said, ‘That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.’

Let's start with what I agree with here: I do understand and appreciate that once someone becomes President, they are made aware of all threats that the United States face. When someone is elected and asked to sit in the Oval Office, they are tasked with trying to protect a nation of 300 million. I can also understand that in some cases, Presidents have stretched the law in order to protect the nation. It would be foolhardy to believe that no other President has considered or even looked the other way while harsh methods were used. President Bush was caught allowing torture, but I don't doubt that others have done it in the past as well.

Presidents are not called to be Boy Scouts. But neither are they called to be some kind of modern day Machiavelli, cynical to the core.

While I tend to believe that other Presidents have been engaging in unethical practices, that doesn't mean that it should go unnoticed all in the name of national security. It's one thing to get ones hands dirty while in leadership, it is another to play in the mud.

The problem here is that by not allowing a reckoning, allows the CIA or the military to do what they please and what they need to do. It allows for no oversight, to allow things to happen under cover of night.

In a post back in 2007, Dyre Portents had this to say about torture:

Torture elicits false confessions and information from the innocent, it produces false information from the guilty/knowledgeable who have been properly trained or should either their loyalty or pain threshold be high. It does however provide actionable intelligence from those that lack loyalty and/or a high endurance for pain/discomfort. If I had the numbers to crunch I'd bet that the percentage of soldiers or terrorists that fall into that last group is really low. What we need to figure out is if the percentage of real information were getting from torture is worth the sacrifice of America's moral authority. I don't believe it is. We're supposed to be the good guys and it's high time we started acting like it.

I know there is a lot of grey in this issue of security. But I worry that allowing torture and other extreme measures will mean losing any authority to tell totalitarian regimes that they need to stop hurting detainees. As I said before, the law can't remain silent in the area of national security. It's one thing to allow for some flexibility, but we can't just try to gag the law. We are a nation of laws.

The whole torture debate is not so cut and dry. But even when life is grey, there has to be some standards, or we will lose any sense of authority.

Inter Arma Enim Silent Leges

As the Bush Presidency winds down, the debate raging among folks, is if the President or his underlings should face prosecution for using torture. During the Christmas holiday, Mort Kondracke stated that for the sake of national unity, President-elect Obama should pass on prosecuting or investigating the Bush Adminstration for "war crimes" done in the name of the war on terror. His reasoning is that such activities are not done in the name of "justice" but in reality, done in the name of political vengance.

Kondracke says:

Republicans hated President Clinton and a GOP House impeached him. Many Democrats hate George W. Bush with equal or even greater passion, but they demurred on the idea of impeachment -- mainly because the action against Clinton hurt the GOP more than it hurt Clinton.

But now Bush haters are calling for the Obama administration to investigate Bush officials for alleged war crimes and other misdeeds connected with the war on terror.

Obama should make it clear right now that he opposes such action -- and also that he opposes the "compromise" idea of a "truth commission" to investigate alleged Bush-era wrongdoing.

The main reason has less to do with "turning the page," uniting the country and letting bygones be bygones -- all good Obama impulses -- than with preserving the morale of intelligence professionals in wartime.

He then goes on to say that any investigation or "truth commission" would case interrogators to be too cautious in the future.

I both agree and disagree with Kondracke on this issue. On the one hand, the calls for seeing Dick Cheney in chains are politically motivated, in my opinion. I'm not saying that Cheney isn't responsible for allowing the US to venture down a road it shouldn't have gone. I think he's a bad apple. But I also believe that those who are calling for arrests and the like are not as interested in righting the stain that torture has created on America's reputation, than they are in scoring partisan points. Many of those people never liked Bush and hated him with a passion. Any action that would seek to bring the President down would be seen by many as nothing more than taking down a Republican, and it would tear the nation apart.

But I disagree with Kondracke that we should not hold investigations or commissions to learn what went on. While Kondracke says this isn't about letting bygones be bygones, that's just what would happen if Obama allowed to happen. It would allow a future President to understand they could get by international law and other agreements all for the sake of national security.

The phrase "Inter arma enim silent leges" is a latin phrase that roughly translates to "In times of war, the law falls silent." The question for Obama and for all Americans is if this phrase is true. Does the law fall silent in times of war? Should it?

I can understand that it isn't easy to try to protect the nation from threats. But the values that make this nation great, can't simply be silent during times of stress. They have to mean something.

I think that we do need to have some sort of truth telling, to find out what happened, and to figure out ways to prevent such abuses from happening again. That's what matters, not seeing George Bush or Dick Cheney in chains.

Is it still a gamble? I guess. But to me Kondracke's gamble is bigger:it would cost America its soul.