pageok
pageok
pageok
More on the Torture Memos:
Jane Mayer has a long article in The New Yorker about the evolution of the Bush Administration's approach to the interrogation of detainees at Guantanamo and elsewhere, focusing on the role of former Navy General Counsel Alberto J. Mora. The article has a fairly clear viewpoint, but it adds some interesting details to what was previously known. Thanks to Anderson for the link.
Freder Frederson (mail):
It's good to see that at least one lawyer in this administration has a sense of morality and respect for U.S. and international law.
2.20.2006 3:08pm
Anderson (mail) (www):
The article has a fairly clear viewpoint

Not as clear as mine, thankfully! Glad to see your post; the article's focus on lawyers and their duties should make for good discussion.

Here's a link to Mora's memo to the Church Commission. See esp. p. 18, n. 12 on the Yoo/OLC memo, and p. 9 on Mora's coming to suspect that cruelty to prisoners was actually Pentagon policy--a suspicion completely justified by the end of the memo, if I may let my "viewpoint" slip in.
2.20.2006 3:14pm
Anderson (mail) (www):
[Crickets chirping.]

Those without time to read Mayer's article might want to see Marty Lederman's discussion of it.
2.20.2006 5:34pm
colts41 (mail):
Mora, poor fellow, never could shake that pre-9/11 view that the executive branch was not only obliged to follow duly enacted federal laws.

But he also held fast to the pre-9/11 view that world opinion matters.

I think in fairness to the administration, we have to recognize that Mora was just a closet liberal.
2.20.2006 5:54pm
Anderson (mail) (www):
Freder: It's good to see that at least one lawyer in this administration has a sense of morality and respect for U.S. and international law.

"Had," not "has." He's gone to be general counsel for Wal-Mart. So much for "closet liberal," Colt41 ... ;)
2.20.2006 6:18pm
Just an Observer:
When you read the New Yorker article together with the Newsweek article of three weeks ago, you get a deplorable picture of principled, conservative lawyers in the Bush administration being run over when they objected to wartime abuses of power.
2.20.2006 6:52pm
Ross Levatter (mail):
Also worth reading in this regard is the chapter on torture in the newly released "Attention-Deficit Democracy" by James Bovard.
2.20.2006 7:28pm
colts41 (mail):
JoA:

Can you say Cheney/Addington?

These people -- the Cheney/Addington crew -- are absolutely without shame.

But more important, they are without judgment or principles (as in American principles).

I'd put Bush in that category, but it seems more clear every day -- especially after Cheney treated him like a lap-dog last weekend -- that Bush is just a front man . . . the Woody Allen of his own presidency.
2.20.2006 7:30pm
Ross Levatter (mail):
Colts41: "Bush is just a front man . . . the Woody Allen of his own presidency."

Take my President...Please!
2.20.2006 8:08pm
PierreM (mail):
Lawyers give advice to the political branches, which are free to ignore them, and in my opinion, there has already been far too much lawyering of the present conflict.

The determination of the appropriate use of force is a political issue to be decided by the executive, not a legal issue to be decided by the judiciary.

Don't like the Bush administration's policies? Try winning an election instead of seeking an end-run around the political process through the courts.

A large majority of the American people don't give a bison's bum about what was done to terrorists picked up on or near the battlefield. If you want to make terorists' rights your political battle cry, be my guest.
2.20.2006 9:54pm
Katherine:
Since by the Bush administration's definition the battlefield is "the entire earth", saying that these are "terrorists picked up on the battlefield" means that they were picked up on "earth." Since no one thinks we are picking these guys up in outer space, it's not clear to me what information it adds to say they were captured "on the battlefield." I can only conclude that the people who go on about that have either been deceived by the administration and think that "on the battlefield" actually requires you to be at least somewhere in Afghanistan as opposed to the Gambia or Zambia or outside a Bosnian courthouse or O'Hare airport or JFK airport or a prison in New York (those are all references to specific "enemy combatant" cases)--or, they have not been deceived, but they are attempting to deceive others.
2.20.2006 10:20pm
PierreM (mail):
Katherine:

When you are dealing with unlawful combatants who do not wear a uniform, do not follow a fixed chain of command, whose preferred mode of attack is the indiscriminate killing of non-combatants, and who hide among non-combatants, then the "battlefield" does include just about anywhere.

The US is battlefield, or have you already forgotten that?

Outside of Padilla, I can't think of a single US citizen detained as a combatant on US soil, so spare me the moral grandstanding and the 'threat to civil liberties' handwringing.

I mean, what good are Chimpy McBushitler's instruments of repression if they don't, well, repress?

BTW, I'm probably the only person posting here who has had a close relative detained (not in the US) as a possible terrorist suspect based on his appearance and place of birth. In this case the authorities did do their job and he was released after a day or so.
2.20.2006 10:36pm
Evelyn Blaine:
I can't help wondering how someone who's spent the past half-decade living in Sudan, the Congo, Afghanistan, or Iraq would react to the constantly repeated assertation that "the US is a battlefield" (as opposed to the much more reasonable claim that part of one city was very much like a battlefield on one day four and half years ago). I don't think they'd have a huge amount of sympathy.
2.20.2006 10:48pm
Katherine:
You're missing the point. If the entire world is a battlefield, what information, exactly, does it convey to say that a detainee was "captured on the battlefield"? None. It is an attempt to deceive and confuse. Which is apparently deliberate on your part.

Orin, http://www.newyorker.com/images/pdfs/moramemo.pdf>here's the link to the Mora memo itself--you might want to include it.
2.20.2006 10:58pm
Katherine:
You're missing the point. If the entire world is a battlefield, what information, exactly, does it convey to say that a detainee was "captured on the battlefield"? None. It is an attempt to deceive and confuse. Which is apparently deliberate on your part.

Orin, http://www.newyorker.com/images/pdfs/moramemo.pdf>here's the link to the Mora memo itself--you might want to include it.
2.20.2006 10:58pm
PierreM (mail):
Evelyn:

The truth of the assertion doesn't depend on their sympathy. In addition, the fact that US has not been attacked again within its borders since 9/11 does not mean that the war is over.

How many people went through Bin Laden's camps in the '90's? 10,000? 20,000? 60,000?

Just about all of those men would like to kill as many Americans as possible as soon as they have the first opportunity to do so.

So far we have been successfully keeping them on the run and disrupting their networks in the places they thought they were safe prior to 9/11. As soon as that pressure is off, they'll be back on this side of the Atlantic in a heartbeat.

Katherine:

Unless you are asserting that individuals are being picked up at random, then I don't see your point.

My point is that the detentions are part of a military operation, and that the ultimate limits of what force is 'lawful' to use lie with the President and the military commanders and no one else, for which there is ample historical evidence.

The fact that an attorney's feeling were hurt because his advice was not taken by the administration I find risible. The fact that the admin followed a two-track strategy of formulating the real policy behind closed doors while throwing a deceptive pacifier to the whiners I find commendable.
2.20.2006 11:31pm
Bruce Hayden (mail) (www):
Katherine,

If the whole world is a battlefield, then, what percentage of the detainees at GitMo were not seized in Iraq or Afganistan?

I will suggest that one reason that this isn't resonating with the American people is their awareness that when the terrorists capture our guys, they cut off their heads, but when we capture terrorists, we do even worse - make them wear women's underwear. In particular, I suspect that if Mohammed al-Qahtani is indeed the 12th hijacker, that not a lot of Americans would be all that worried that he had women intrude his personal space as part of torturing him. Rather, I suspect if it came to a vote, they would vote to start by pulling out his nails, one by one, before moving to breaking his bones, one by one. Then, when they run out of bones, whether or not he was still alive, he could then be drawn and quartered. Unfortunately, if he were still alive before that, it is likely that the quartering, at a minimum, would kill him. And that is probably within the Geneva Convention, because if he indeed was the 12th hijacker, he would be an illegal enemy combatant.
2.20.2006 11:49pm
Evelyn Blaine:
PierreM:

Are you seriously claiming that the space in which Americans live and work, day-in and day-out, is a "battlefield" in any sense comparable to the space that those located near the front-lines of persistent conflicts (such as people in the most war-torn parts of the countries I mentioned) have to deal with? Do you think that the risks that an American takes walking to work in a major city are even remotely comparable to those faced by someone in, say, a contested village in the Congo in 2004 (a conflict in which thousands of people died every day)?

I don't think that this is what you're claiming; but if it's not, and you insist on using the word "battlefield", then you should recognize that you're using it a much wider sense than most people who (unlike present-day American civilians) do have experience of the real, perduring danger of violent death would want to accept. In some sense, that is fine; there is no point in arguing over mere terminology. But if you want to expand the use of the term in this way, then you can't expect to gain very much from it. If America right now is a battlefield, then being a battlefield is not historically or geographically exceptional but a pretty unimportant thing that shouldn't have much of an impact on our daily lives or our liberties.
2.21.2006 12:02am
PierreM (mail):
Evelyn Blaine:

I don't know where you work or live.

But I spent two years at least going to work on the bus in one of the biggest financial centers in one of biggest cities in the US thinking almost every morning that where I work is a perfect target. And I know several of my co-workers felt the same.

But most of us have a technical background that informs us that it is ludicrously easy to formulate and pack a truck with explosives.

I also have detailed engineering drawings for a variety of ex-Soviet cruise missile designs sitting on my hard drive that I acquired from the internet several years ago.

Don't you feel safe now?

I think our current feeling of relative security is an illusion that has more to do with the hapless stupidity of most (but not all) of our opponents.

Obviously, if you don't think that is the case then you may think that the Bush admin's policy are an inappropriate intrusion on civil liberties. But even in that respect, I don't see any real evidence that there is an atmosphere of intimidation. There has to be a real 'chilling effect' to provide evidence for that, and I don't see it.

From a civili liberties perspective, the detentions, coercive interrogations and NSA surveillance seem excessive.

From a military perspective, they strike me as quite modest.
2.21.2006 12:15am
Evelyn Blaine:
The issue is not whether one feels safe, but what one rationally assesses the objective risks to be. At some point on my drive into New York City tomorrow, I'll probably think about my risk of dying in a terrorist attack; but I'll also know that, statistically, the likelihood of that happening is considerably lower than the likelihood of my being run over by another car on the road or having a spontaneous heart attack. I do not think that a use of language which makes it seem as though what I am going to experience tomorrow and what someone starving amid the piled-up corpses in Stalingrad in winter 1942 was experiencing are merely different degrees of the same phenomenon aids conceptual clarity in any way.
2.21.2006 12:48am
PierreM (mail):
Evelyn Blaine:

As I explained, what I feel is based on what I know:

a) about how easy certain weapons are to build or acquire;
b) the fact that we have already been attacked (not once but several times counting attacks abroad), and that these attacks were not semi-random but were a carefully planned series of escalations;
c) the fact that thousands of people went through Bin Laden's camps who are still out there, loose.
d) the fact that Bush admin's actions (by any historical parallel with which I am familiar) are quite modest.

Now (a) (b) and (c) are somewhat at odds (for me) with (d), which implies either that Bush admin doesn't know what it's doing or that they have a good grasp of what force is a reasonably proportionate response to the threat.

I think the latter is the case; you seem to think it's excessive.

What I worry is that the politically motivated exaggeration of the admin's response will weaken the modest efforts being made, in which case we will return to the pre-9/11 policies and (a) (b) and (c) will come back into play.

I also don't think that you can compare this threat to that of a car accident: the threat is not just to me personally but to the continued existence of the country in its current economic and political form.

That's a much bigger threat (because of its effects), even if the statistical probability is low (and I don't seem to think it's as low as you do).

The fact that we haven't been hit again to me means that we are good at getting the info we need to knock these guys off their feet, not that they aren't trying to kill us.

If we stop doing that, they will kill us again. And I do not think this situation is likely to change in the near or medium term.
2.21.2006 1:12am
Katherine:
I don't know about Iraq--we're not supposed to be sending people from there to GTMO. As far as Afghanistan: based on the National Journal's review of the publicly available detainee files, "One hundred and fifteen of the files also note where the detainees were captured. Only 35 percent of the 115 were arrested in Afghanistan; 55 percent were captured by Pakistani forces in Pakistan."

As far as random, did you know that an overwhelming majority were turned in by the Pakistani security forces or the Northern Alliance? I can't say for sure what the techniques were. We know bounties were offered in some cases, and we know that Pakistani forces sometimes turned in people for, e.g., not paying a bribe. How pervasive this was, I can't say. But neither can you. In fact I'd be curious to know whether you guys knew any of these facts, or simply believe whatever the administration tells you to believe.
2.21.2006 1:46am
minnie:
PierreM,

Are you out of your f****ing mind?

Don't answer. It was a rhetorical question.
2.21.2006 3:19am
Freder Frederson (mail):
Unfortunately, if he were still alive before that, it is likely that the quartering, at a minimum, would kill him. And that is probably within the Geneva Convention, because if he indeed was the 12th hijacker, he would be an illegal enemy combatant.

Even if the Geneva Conventions absolutely do not apply, torture of anyone is still illegal under U.S. law, international treaties, and is a war crime and a crime against humanity. If what you believe is correct, that a good portion of the people in this country would agree with such treatment, then I fear for the morality of this country. We truly have become a terrorist nation.
2.21.2006 7:41am
Grand CRU (mail):
Minnie,

I think PierreM is doing a great job. I much enjoyed his arguments.
2.21.2006 8:18am
Bob Bobstein (mail):
PierreM argues that most Americans don't care if terrorists are mistreated; Bruce Hayden argues that this is true because terrorists are worse than the US.

Even accepting the assertion that most Americans are uninterested in the treatment of detainees, torture's defenders are overlooking the fact that

WE'RE FUCKING AMERICA. THAT'S NOT WHAT WE'RE ABOUT.

Maybe most Americans wouldn't protest abandoning trials for murder suspects when there's lots of evidence against them, or torturing convicted murderers. But we don't do that. We support and defend the rule of law.

The only intellectual justification that I've seen offered for the torture of suspected terrorists is the "ticking time bomb" cliche. But we don't abandon our principles because a Hollywood screenwriter came up with a situation in which adhering to them would be detrimental. Plus, intelligence from torture victims is unreliable.

Also, we've released many of the people we once held in Guantanamo. Not everyone there is there because they plotted against America. Some are there because some rival group turned them in for a bounty.

Intellectual honesty demands that we are willing to entertain facts that we don't like. For some liberals, this means considering Castro's terrible human rights record, or the fact that some regulations interfere with productive activities. For some conservatives, it means accepting the fact that we have detained and abused people who have no connection whatsoever to terrorism. This is morally wrong. It's also counterproductive, as it hurts our standing among people who could otherwise help us out. And I still haven't figured out just when it became conservative to Trust the Government to identify, detain, and torture only the people who really really oughtta be tortured.

A sectarian point, that may or may not be of interest to anyone. Jesus said that we should love our enemies and that we should visit those who are in prison. Now, history demonstrates, to me, that this doesn't mean that war is always wrong. But I'm pretty sure that Jesus didn't mean that we should visit those who are in prison so that we can beat the shit out of them.
2.21.2006 9:23am
Anderson (mail) (www):
PierreM, aren't there any nice totalitarian countries left for you to live in? The Axis of Evil is still 2/3 available.

Mayer:
Cheney's view, Wilkerson suggested, was fuelled by his desire to achieve a state of "perfect security." He said, "I can't fault the man for wanting to keep America safe, but he'll corrupt the whole country to save it."
To our new postmodernist Republicans, "corruption" is just something that happens when Janet Jackson's breast pops out during the Super Bowl, or when gay people have sex.
2.21.2006 9:47am
Medis:
The story in this article, and others like it, makes me very concerned about what could be happening as we speak. Unfortunately, it seems like the internal dissent in the Administration hit a high point around 2003. Since then, those who opposed the Cheney/Rumsfeld/Gonzales/Addington/etc. group have been moved out of the way, and obviously the prime movers in the Cheney et al group have largely remained in place or been promoted.

Incidentally, I have expressed before that in my view, the legal arguments adopted by Cheney et al are simply unsustainable in light of all the contrary authority, including the plain text of the Constitution itself. But even on a pure policy level, the idea that the military "experts" in the Administration deserve deference falls apart when one sees how such experts are treated in practice. In particular, anyone in the DOD or DOJ who has expressed and argued for a view contrary to what Cheney et al has been systematically ignored, undermined, and ultimately dismissed.

So, this nominal deference to the military "experts" is in practice just a deference to one set of views, and ultimately to mostly just one man--Vice President Cheney. And Cheney et al have systematically worked to free the Administration from any consideration of contrary views.

So, do we really believe the best policies will be adopted if we follow such a process? Personally, I highly doubt that is the case--the process of concentrating and insulating decision-making authority in this fashion has a horrible track record in almost every area of human endeavor. More specifically, the track record of this Administration to date--particularly in cases where we know that Cheney et al have forced through their views--should inspire little confidence in their judgment. And yet they remain in place, and if anything have consolidated their power even further.

And that is why I am deeply concerned for my country.
2.21.2006 10:26am
Bruce Hayden (mail) (www):
Even accepting the assertion that most Americans are uninterested in the treatment of detainees, torture's defenders are overlooking the fact that

WE'RE FUCKING AMERICA. THAT'S NOT WHAT WE'RE ABOUT.
Maybe this is the America you want, but it isn't the America that has been for the last 200+ years. The rules have always been different for illegal combatants than for prisoners of war. These are not remotely prisoners of war. Illegal combatants have always been subject to summary execution if caught in the act, far longer than we have had formal rules of warfare. Not on American soil (except during the Civil War), maybe, but clearly on the battlefield. Of course, Gitmo is not in the U.S., for obvious legal reasons.
Maybe most Americans wouldn't protest abandoning trials for murder suspects when there's lots of evidence against them, or torturing convicted murderers. But we don't do that. We support and defend the rule of law.
But you are asking for more. I have no trouble with staying within the letter of the law, but little of what has been claimed to have been done at Gitmo crosses that line. Rather, it crosses the line that you would like to be there, but isn't (yet) or wasn't (then).
The only intellectual justification that I've seen offered for the torture of suspected terrorists is the "ticking time bomb" cliche. But we don't abandon our principles because a Hollywood screenwriter came up with a situation in which adhering to them would be detrimental. Plus, intelligence from torture victims is unreliable.
The answer to the time bomb scenerio is, IMHO, the same as for the illegal leaks of the NSA information - civil disobedience. If it is important enough, you break the law, and willingly suffer the consequences, i.e., you willingly do the jail time.

Yes, torture is unreliable, but when you resort to it, you don't want certainty, but, rather, leads. And, as a lead, they are most likely better than nothing. If you have a ticking bomb, get a lead to a location through torture, you just send one team to check it out, but don't pull your other teams using more conventional means.
Also, we've released many of the people we once held in Guantanamo. Not everyone there is there because they plotted against America. Some are there because some rival group turned them in for a bounty.
Many of those released were released because they had no further information to give. Maybe some were sent because of the rival groups turning them in, but I have (yet) seen no evidence that those are kept very long.
Intellectual honesty demands that we are willing to entertain facts that we don't like. For some liberals, this means considering Castro's terrible human rights record, or the fact that some regulations interfere with productive activities. For some conservatives, it means accepting the fact that we have detained and abused people who have no connection whatsoever to terrorism.
Or, maybe the opposite, that those wrongfully detained were not abused. You seem to be making an unwarranted jump of logic, i.e., Some of the detainees sent from Pakistan were turned in by rival groups; Some of those had no connection with terrorism; and Some detainees were abused at Gitmo, leads to the conclusion that: Some of the detainees at Gitmo were wrongly accused and then abused there. It does not logically follow. To make that assertion you would either need (a) proof that all the detainees at Gitmo were abused, or (b) proof that specific detainees were wrongfully seized, transported there, and abused.
This is morally wrong. It's also counterproductive, as it hurts our standing among people who could otherwise help us out. And I still haven't figured out just when it became conservative to Trust the Government to identify, detain, and torture only the people who really really oughtta be tortured.
First, it's not torture. Making a guy wear woman's undercloathing is not torture. None of what was outlined in the letter probably rises to that level. No one's finger nails were pulled out. No one's bones were broken. No fingers or toes were cut off. No one was permanently disfigured. Arguably abused, but not tortured. Indeed, by all indications, the worst of what was done to detainees at Gitmo is significantly less than what our elite troops voluntarily endure in training.

Secondly, just as you can't understand why conservatives would trust the military to make these decisions, the contrary is also probably true - why should someone who believes in big government not believe that those closest to the situation are best qualified to make these decisions? After all, if the government is smart enough to tell me what medicines to take, whether to wear a seat belt, how fast to drive, what my kids should be learning in school, surely it is smart enough and noble enough to make this sort of decision.
A sectarian point, that may or may not be of interest to anyone. Jesus said that we should love our enemies and that we should visit those who are in prison. Now, history demonstrates, to me, that this doesn't mean that war is always wrong. But I'm pretty sure that Jesus didn't mean that we should visit those who are in prison so that we can beat the shit out of them.
Which, of course, isn't happening.
2.21.2006 12:28pm
Anderson (mail) (www):
The rules have always been different for illegal combatants than for prisoners of war. These are not remotely prisoners of war. Illegal combatants have always been subject to summary execution if caught in the act, far longer than we have had formal rules of warfare.

What are you calling an "illegal combatant"? And your "far longer," etc. proves nothing. "Women have been chattels far longer than we have had formal rules of sexual equality."

little of what has been claimed to have been done at Gitmo crosses that line.

Forgive me if I credit Alberto Mora's word over your own.

Maybe some were sent because of the rival groups turning them in, but I have (yet) seen no evidence that those are kept very long.

Depending on what you're calling "evidence," take a look.

First, it's not torture.

Cruelty is also illegal. Even the stunts with panties are reminiscent of how Nazi toughs used to entertain themselves with Jews. At least, for those of us with any historical memory, or conscience.

why should someone who believes in big government not believe that those closest to the situation are best qualified to make these decisions?

You didn't actually read the Jane Mayer article, did you?
2.21.2006 12:38pm
Bob Bobstein (mail):
Bruce, thanks for replying.

A few quick responses:

These are not remotely prisoners of war.

Some of them are entirely unconnected to the war. That is somewhat unusual. The battlefield is, legitimately, the whole world, but that means we have to be very careful that people we pick up who are not visibly engaged in warfare against us are actually engaged in warfare against us. Hauling people halfway across the world to put them in a detention center when there is zero credible evidence (see Anderson's link above) linking them to terrorism is by itself mistreatment.

The answer to the time bomb scenerio is, IMHO, the same as for the illegal leaks of the NSA information - civil disobedience. If it is important enough, you break the law, and willingly suffer the consequences

I agree. I'm not sure if "civil disobedience" is the term I'd choose, but I agree with your analysis.

Or, maybe the opposite, that those wrongfully detained were not abused.

You may well be right. I can't research right now to figure it out. I was thinking of some people we've tortured not in Guantanamo-- sloppy on my part.

the worst of what was done to detainees at Gitmo is significantly less than what our elite troops voluntarily endure in training.

Totally irrelevant, if true. Our troops know they are being trained for a purpose, and know that it's going to end sometime. Not so for detainees.

After all, if the government is smart enough to tell me what medicines to take, whether to wear a seat belt, how fast to drive, what my kids should be learning in school,

All those decisions are (1) subject to the political process and (2) contingent on scientific review of the standards the government is imposing. Neither is true for Guantanamo. Info about what's going on leaks out in irregular drips and drabs. When Congress passed a law saying, "hey, no torture, we really mean it!", the president signed it and said, "this law only binds me when I say it does."
2.21.2006 1:20pm
Medis:
Bruce,

Many of your points are addressed or contradicted by Mora's memo. To highlight just a few important points:

(1) International law, U.S. law, and the UCMJ all prohibit more than just torture, but also other deliberately painful, cruel, or degrading treatment. These prohibitions are not limited to signatories to the Geneva Conventions.

(2) Torture and other deliberately painful, cruel, or degrading techniques are not only inefficient, but also counterproductive. That is because the most productive interrogation techniques involve building positive relationships between the interrogators and the detainees, and deliberately engaging in torture and other painful, cruel, or degrading behavior undermines those relationships.

(3) Rumsfeld et al apparently disregarded the problem of "force drift" and related phenomena. The basic problem is that once an interrogator is told that a little pain, cruelty, and/or degradation will be productive, people naturally assume that more pain, cruelty, and/or degradation will be even more productive. Accordingly, interrogators in the field will tend to go further and further along these dimensions, particularly as they become frustrated with a lack of results at earlier stages. This problem was compounded by a number of aspects of the policy in question: that it was used by inexperienced personnel with little training; that the policy lacked clear guidance on the limits of its practical, moral, and legal reasoning; that the policy lacked clear guidance on the authorized magnitude of the techniques and their ability to be combined; that it was not always clear what, if anything, the detainees might know; and so on.

(4) Much of the reasoning behind the policy seemed to assume that the only relevant question was whether there would be jurisdiction for legal review of these cases, and, if so, whether the people engaging in this behavior would have legal defenses. Even the reasoning on those issues has since been repudiated, but as Mora points out, there are much broader problems that should have been taken into consideration. In short, as information about these policies leaked out (compounded by further excesses--see point #2), great harm to our national interests could occur in many ways. And yet those articulating these harms were ignored because apparently the decision to go forward with this policy had already been made at a "high level".

In general, the picture that emerges from Mora's account is that these decisions were first made at a "high level". The process at lower levels was subsequently devoted to finding justifications (legal, moral, policy, etc.) for these decisions. If people tried to raise legal, moral, or policy objections at these subsequent stages, they were ignored and ultimately dismissed from further participation in the process.

How could anyone believe that this is a good way to make crucially important decisions? And why would we want to defer to the outcome of such a process?
2.21.2006 1:32pm
Anderson (mail) (www):
Too good to limit to my humble blog:

Atrios dryly notes, apropos of the opposition to letting a UAE-owned corp. handle our port security---
Bush does, of course, have inherent authority under Article II to make all decisions relating to national security.
Well, that resolves that. Surely the defense of our ports during war is quintessentially the province of the commander-in-chief? So he doesn't need Congressional approval, and his veto threats are beside the point.

(Memo to White House: aren't you undercutting yourselves by even condescending to veto the legislation?)
2.21.2006 5:10pm
PierreM (mail):
Minnie, Anderson:

Thank you for typifying the condescending arrogance of the left so well. In light of the past few elections, please keep up the good work.


Bob Bernstein:

It seems to me you are conflating two arguments:

a) you are asserting that American norms prohibit torturing terrorist detainees;
b) you are asserting it is counterproductive to torture detainees, because the inevitable disclosure will incline Arabs or Muslims to withhold assistance;

Regarding (a), I think you ignore the pragmatic streak in both American history and national character, i.e., you do what military necessity dictates as long as it is truly necessary (Lincoln's suspension of habeus, the Emancipation Proclamation, the destruction of Southern cities and summary execution of Southern partisans, the India Wars, the Phillipine Isurrection, Wilson's imposition of the Sedition Act, the WWII internments and destruction of German and Japanese cities, etc).

Most Americans don't have a problem with the coercive interrogation of detainees, not because they are moral cretins, but because they are pragmatists and have a rough sense of retributive justice (see below).

Regarding (b): this is an urban legend firmly planted in the minds of the bien pensant class. The fact of the matter is that a sufficiently ruthless (and intelligent) application of torture is one of the quickest and most efficient methods to roll-up a guerilla operation. I suggest you check out this

In addition, war is a matter not of sentiment but of interest. We will succeed if there are enough Arabs or Muslims who perceive their interests coinciding with ours. In regards to sentiments, the may hate our guts: but if they see that they can benefit from cooperating with us and protect themselves better by siding with us than with the jihadis then we have a much better chance of winning. We will not 'persuade' them in an ideological war to side with us (it's not accidental that the idea of ideological warfare is a media-driven notion: if you only have a hammer, every problem looks like a nail). The ideological struggle in the Muslim world will be decided by its internal dynamics, in which are a player through our armed forces and through our money. We will gain nothing except a dangerous contempt if we keep apologizing for doing what is necessary for our defense.

The only important ideological struggle is internal to the West, and the Bush admin is not doing a very good job of explaining itself. We have very much the same dynamic that existed in the French war in Algeria and in Vietnam, with a substantial plurality cheering (wittingly or unwittingly) for the other side to win.


Regarding (a) again I have two other points to make:

First, most discussions of this issue pass seamlessly from the notion of coercive interrogations, to torture, to abuse cases. They are not the same in fact. What the admin approved were coercive interogations, not torture. I know there is a problem with international 'law' and treaty obligations regarding coercion, but that's not my point. There is a difference between sleep deprivation, prolonged exposure to cold, use of drugs, etc., and gross physical violence that to me distinguishes coercive interrogation from torture. Most of what we have heard about are abuse cases: the gratuitous application of blunt force in a semi-random manner that was never, in fact, authorized by anyone with the authority to do so. These cases are also distinguished by being limited to time, place, and specific persons— how many times have we seen Graner's grinning mug in the Abu Ghraib photos? That's not coercive interrogation, it's just stupidity and sadism. Some cases in Afghanistan were similar.

That being said, the number of deaths among the tens of thousands detained by the US armed forces in the past 4 years is stunningly low by any reasonable historical standard. And as Medis points out, the admin forgot about the problem of "force drift": in a vain attempt to satisfy it's critics (internal and external) it left the coercive interrogation policy sufficiently vague as to allow a some individuals to go far beyond what was originally intended. It should be noted, however, that what was originally intended included waterboarding, which is pretty damn close to the physical abuse that would, in my opinion, constitute true torture.

Second, on moral grounds I object to the admission of these scum into my moral and legal community, with the same rights as a citizen or those of an (honorable) lawful combatant. It is not moral to grant these rights to terrorists because of a swollen and delusional desire to engage in moral grandstanding, to a pretend to a 'virtue' which is in fact a vice that diminishes the meaning of moral and legal equality by granting the protection of the law and morality to those do not deserve it.

I am not a Kantian, nor a Christian. My primary moral obligations are to my family, my friends, and my fellow citizens. I have some moral and legal obligations to those who share my understading of the rule of law (which includes knowing when those rules do not apply) and who live in regimes similar to mine.

But to these people I owe nothing. They are, to me, like the persons declared to be traitors and outlaws by the Roman Republic, the enemy of all mankind and fit to be hunted down like animals.

So my moral defense of torture is not utilitarian but driven by considerations of distributive and retributive justice: torture is what these scum deserve. And I do not mean this as a general rule, but a moral imperative that falls upon those who have sworn to defend us: explain to me how it is moral for an official of the United States to place his own sense of morality above his duty to extract information that can save the lives of his fellow citizens, soldiers or innocent non-combatants?
2.21.2006 10:34pm
PierreM (mail):
How could anyone believe that this is a good way to make crucially important decisions? And why would we want to defer to the outcome of such a process?

I have seen decisions made in precisely the manner you describe in every academic, governmental or business position in which I have ever worked.

Sometimes it's a disaster. But most of the time it worked, because the ones making the decision knew what they were doing.

That's why they were the decision makers and not the advice givers.
2.21.2006 10:43pm
Porkchop (mail):
PierreM,

You are aware that France LOST the war in Algeria, aren't you? Algeria is an independent country now; it is no longer a French colony. Hardly proof that "[t]he fact of the matter is that a sufficiently ruthless (and intelligent) application of torture is one of the quickest and most efficient methods to roll-up a guerilla operation." Indeed, one might think that it proves the opposite. In any event, I read Soldier of Fortune Magazine for entertainment, not moral guidance or profound wisdom.

As a former naval officer, I never thought much of the NCIS until I read the New Yorker article. I've changed my mind. They're standup guys. I'm an attorney. I've read the Yoo memo and I had the same general reaction as Mora -- legally weak, glib, poorly reasoned, result-oriented. Alberto Mora is to be commended as an attorney and as a human being.
2.22.2006 12:17am
Medis:
PierreM,

I don't believe you.

I have also observed many decision makers over time. The good ones encouraged debate and sought information from many sources. The ones who relied purely on their own intuition and then only listened to people who agreed with them were usually much worse at making good decisions. Of course, all this is confirmed by many studies on decision making.

And the reason why that is the case is pretty obvious. No one can possibly know everything, and everyone in a sufficiently high position has to rely on other people for information and expertise. Of course, people in high positions ultimately have to use their own judgment, but the idea that they can make good decisions without any prior input from experienced specialists and experts is frankly ridiculous.

But I understand your point--this isn't really about truth, knowledge, experience, expertise, track records, empirical studies, or anything wussy like that. This is about the Strong Man who has a Clear Vision about all matters of What Should Be, and why should we care about the petty objections of career military experts when such a Strong Man speaks?
2.22.2006 12:19am
PierreM (mail):
Medis:

No, that wasn't my point at all. I was referring to the fact that those in leadership positions (unless you want to argue they arrive there by lottery) are usually there for a reason. And nothing I said advocated not receiving advice: only that the advice received can also be rejected, and in many instances it is, and the subsequent activity is nevertheless successful.
2.22.2006 10:33pm
PierreM (mail):
Porkchop:

Yes, I am well aware of the fact that France lost the Algerian war. But my point is to examine the reasons why, which had less to do with action on the ground (much of which was successful if brutal) than with the political situation in France itself.

Mitterand was a socialist minister in the French government (if I remember correctly) who strongly supported keeping Algeria as an integral part of France. Even the communists in the pre-war and immediate postwar period supported the French presence as a necessary precursor to the achievement of true communism in North Africa.

What changed? The Soviet Union found supporting colonial insurrections to be a useful way of opposing the NATO powers. So the same group who had turned on a dime to support Hitler in 1940 on Stalin's orders essentially did the same thing in the 1950's. As other elements of the French left gradually became more radicalized (including members of the press), they all adopted more or less the same treasonous attitude as the communists.

Sound familiar?

Be careful of accepting every cliche regarding the history of the past 50 years carefully crafted by those who have every interest in hiding their disgusting collusion in the defeats of the their own countries on behalf of a murderous foreign ideology.
2.22.2006 10:53pm
Noah Klein (mail):
Pierre,

Wasn't De Gaulle president during the Algerian war? This is would tend to indicate that it wasn't the communist that forced the French to quit, but the drastic casualties for no discernable purpose. We were the ones insisting that France, England, Holland and other nations decolonize, weren't we? Thus I wouldn't say that it was the communists who pressured the French to give up, but I admittedly don't know that about French history.

Noah
2.23.2006 1:58am
Porkchop (mail):
DeGaulle became president of the new French Republic because of the Algerian problem. He was became on the basis that he would "take care of" the situation. (Kind of like Eisenhower said, "I will go to Korea" during the presidential campaign of 1952 and Nixon's "plan" to end the war in Vietnam.) He took care of it by withdrawing.

The French public was willing to go along with the withdrawal from Algeria because they were just plain tired of the mess (and also still tired from the just concluded war in Indochina). Some didn't like it, especially the French settlers displaced from Algeria, and there was even domestic terrorism and an unsuccessful coup attempt. (Ever read Day of the Jackal? That's the milieu for the novel. The novel is fiction, the background was not.)

So, let's see, there were allegations of torture, a not particularly popular war, and a government that was so unpopular that they drafted a new constitution to put in a stronger executive. The armed (right-wing) opposition within France was hunted down mercilessly under de Gaulle.

If there are lessons to be drawn from this I would say that where there are (1) allegations of torture, (2) a public that thinks that the war was a "mistake" or, more extremely, based on false statements by the government, and (3) a president that most polls say has the disapproval of the majority of voters, the incumbents ought to be looking very hard at their future prospects of government employment come the next election or two, if we follow the French example.

In any event, since when do hardcore supporters of the war in Iraq look to France for anything other than things not to do? I don't get it -- we change French fries to "freedom fries," but you are willing to sign on to pulling out fingernails because some French army officer did it in the 1950's and '60's in Algeria? Really? The French haven't fought a war right since before Napoleon decided to invade Russia. We bought half of North America from them becuase they were broke and couldn't afford to defend New Orleans and the Mississippi River Valley. They were chased out of Mexico, chased out of North Africa, chased out of southeast Asia, chased out of their own country -- why follow their advice now, Pierre? Casuistic advantage, maybe?
2.23.2006 5:31pm
Porkchop (mail):
Uh, forgot to delete "was" before "became" when I edited the second sentence of my post.
2.23.2006 7:02pm