Monday, September 12, 2011

Hi! I'm not home right now, but if you want to leave a message....

Following the 9/11 ceremonies yesterday, and the breathless weeks of analysis that preceded it, with the relentless focus on how "we" have changed in the past decade, I went trolling through my archives looking for some answers. We start, appropriately enough, with Spencer Tracy rendering:

Judgment at Erewhon

Simple murders and atrocities do not constitute the gravamen of the charges in this indictment. Rather, the charge is that of conscious participation in a nationwide, government organized system of cruelty and injustice in violation of every moral and legal principle known to all civilized nations. The Tribunal has carefully studied the record and found therein abundant evidence to support beyond a reasonable doubt the charges against these defendants.

Heir Rolfe, in his very skillful defense, has asserted that there are others who must share the ultimate responsibility for what happened here in Germany. There is truth in this. The real complaining party at the bar in this courtroom is civilization. But the Tribunal does say that the men in the dock are responsible for their actions, men who sat in black robes in judgment on other men, men who took part in the enactment of laws and decrees, the purpose of which was the extermination of humans beings, men who in executive positions actively participated in the enforcement of these laws -- illegal even under German law. The principle of criminal law in every civilized society has this in common: Any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime -- is guilty.

Heir Rolfe further asserts that the defendant, Janning, was an extraordinary jurist and acted in what he thought was the best interest of this country. There is truth in this also. Janning, to be sure, is a tragic figure. We believe he loathed the evil he did. But compassion for the present torture of his soul must not beget forgetfulness of the torture and the death of millions by the Government of which he was a part. Janning's record and his fate illuminate the most shattering truth that has emerged from this trial: If he and all of the other defendants had been degraded perverts, if all of the leaders of the Third Reich had been sadistic monsters and maniacs, then these events would have no more moral significance than an earthquake, or any other natural catastrophe. But this trial has shown that under a national crisis, ordinary -- even able and extraordinary -- men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat at through trial can ever forget them: men sterilized because of political belief; a mockery made of friendship and faith; the murder of children. How easily it can happen.

There are those in our own country too who today speak of the "protection of country" -- of "survival." A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient -- to look the other way.

Well, the answer to that is "survival as what?" A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult!

Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.
Except, of course, when we need to torture single human beings in order, we think, to protect others. The problem is:

Torture does not work

After a few days, the contractor attempted to once again try his untested theory and he started to re-implementing the harsh techniques. He moved this time further along the force continuum, introducing loud noise and then temperature manipulation.

Throughout this time, my fellow FBI agent and I, along with a top CIA interrogator who was working with us, protested, but we were overruled. I should also note that another colleague, an operational psychologist for the CIA, had left the location because he objected to what was being done.

Again, however, the technique wasn't working and Abu Zubaydah wasn't revealing any information, so we were once again brought back in to interrogate him. We found it harder to reengage him this time, because of how the techniques had affected him, but eventually, we succeeded, and he re-engaged again.

Once again the contractor insisted on stepping up the notches of his experiment, and this time he requested the authorization to place Abu Zubaydah in a confinement box, as the next stage in the force continuum. While everything I saw to this point were nowhere near the severity later listed in the memos, the evolution of the contractor's theory, along with what I had seen till then, struck me as "borderline torture."

As the Department of Justice IG report released last year states, I protested to my superiors in the FBI and refused to be a part of what was happening. The Director of the FBI, Robert Mueller, a man I deeply respect, agreed passing the message that "we don't do that," and I was pulled out.

As you can see from this timeline, many of the claims made in the memos about the success of the enhanced techniques are inaccurate. For example, it is untrue to claim Abu Zubaydah wasn't cooperating before August 1, 2002. The truth is that we got actionable intelligence from him in the first hour of interrogating him.
Perhaps the contractors could argue he was only following orders. The problem with that, aside from the obvious historical one, is that it also point out that:

The Fish Rots From the Head

Conclusion 1: On February 7,2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President's determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

Conclusion 2: Members of the President's Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA's interrogation program during that period.

Conclusion 19: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld's December 2,2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were
appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.
And what else did that erosion in standards erode?

For Your Reading Pleasure:

KATHERINE EBAN: Well, you don't make an ethics policy by citing a few positive examples. There has been an army or military line and an APA line that are surprisingly similar, which is that psychologists make interrogations safer and more effective. But what my reporting found is that the interrogations they make safer are the interrogations that had been made more dangerous. In other words, you take some very dangerous methods, like reverse-engineered SERE tactics -- it’s basically like letting a tiger loose in the interrogation booth, and then you get in an animal trainer to make sure that the animal doesn't go crazy, but why did you put the tiger in the booth in the first place? In other words, psychologists were initially used in the SERE program in order to prevent against behavioral drift. So what the military is saying and what the APA is saying is, psychologists can play that role in interrogations, but those are the interrogations in which these reverse-engineered SERE tactics are being used. Now, presumably, if you didn't use those tactics, you wouldn't need psychologists to safeguard them.
So, if the erosion of ethical standards reached professional caregivers, we are left wondering:

Is Our Children Learning?

The report found, among other things, that the techniques being used "are outmoded, amateurish and unreliable," and the "interrogation methods — possibly the most important source of information on groups like Al Qaeda — are a hodgepodge that date from the 1950s, or are modeled on old Soviet practices."

" meetings with intelligence officials and in a 325-page initial report completed in December, the researchers have pressed a more practical critique: there is little evidence, they say, that harsh methods produce the best intelligence."
Maybe there's little evidence harsh methods produce anything of value; but we did establish that torture was legal; so long as you accept what the definition of "torture" is. And if you don't, well, then, we're left to wonder is there is any:

Morality for Thee

[The questioner is Dan Abrams; JA=John Ashcroft; AG=Alberto Gonzales, both Attorneys General under George W. Bush]

Let me follow this. The U.S. military prosecuted our own troops for using waterboarding in the Philippines, tried the Japanese for war crimes for using it against the Allies and the U.S. troops in WWII. And yet, we’re suggesting that it’s not torture. [Applause]

JA: First of all, the word waterboarding can be defined in a lot of ways.

Let’s talk about the definition that was used in these memos—this is a legal document—of the definition of waterboarding. “Lying on a gurney that is inclined with an angle of 10-15 degrees from horizontal, with the detainee on his back. . . head toward the head end of the gurney, cloth pasted over the detainees’ face, and cold water poured on the cloth approximately 16-18 inches—this is the definition. The question is—

AG: Dan, the opinions have been withdrawn. There are no longer binding position of the department…

I understand that, but that doesn’t mean, as lawyers, we can’t sit and discuss whether this was a correct legal assessment. Because it seems to me, in my opinion, that it is impossible to explain how this particular procedure would not be considered torture. [Applause]

JA: Members of the department went and underwent the procedure.

Once or twice, not 266 times.

JA: Many members of our military in training undergo the procedure—

Once or twice.

JA: Were you there?

No, the memos explain it. It’s once or twice.

JA: OK. I don’t know how many times they underwent it. Let me just put it this way. We relied—I relied—on the best judgments of the lawyers in the department. There are 110,000 employees in the department, the lawyers are expert, and they came up with an opinion that became part of a memo. Later, some lawyers came to me and said "We’re not confident that that memo best expresses the law here." And I said to myself, "Well, I’m the attorney general, and if we have stuff out there that’s not the best expression, we ought to amend it. We ought to get the best information we can." You know we’re in a war, you give it to the president, you give information to the other individuals, but you say, you know, they deserve the best judgment. They reworked the memo, and they came a second time, these professionals did, and according to the definition of torture, they came to the conclusion that the procedure as provided along with the advice to our personnel did not amount to legal torture.

Did they get it wrong?

JA: I don’t think they got it wrong. It’s different now.

It’s different in what sense?

JA: Because the law has been changed. [John Ashcroft called me after the event to correct a mistake he made. He wanted to let me know that, in retrospect and after conducting more research on the matter, he realized that no such change in the law was ever enacted.]

The definition of torture?

JA: Yes! The definition of torture.

So the answer then, it sounds like, is the only reason you still believe the legal assessment was correct was because there’s been a change in the law?

JA: I believe that the work of the department by these professionals came to the right conclusion.

That waterboarding is not torture.

JA: That, as described, and as commented on in their memorandum, that it was not torture.
This whole topic, frankly, left poor Alberto Gonzales struggling:

Alberto Agonistes

"The only person in the administration who knew as much about presidential wartime powers as Addington was a young legal scholar from Berkeley named John Yoo, who was the deputy assistant attorney general in the OLC. A product of Harvard and Yale Law, Yoo was a whiz kid whose conservative bona fides—he’d clerked for Justice Clarence Thomas—were indisputable. Within weeks of the attacks, Gonzales was asking Yoo for memos outlining the limits of the Geneva Conventions. Yoo was generous: Since Al Qaeda and the Taliban militia did not constitute a nation or a state, he concluded, they had no protections."

All the opposition to Yoo's legal opinions? Alberto has an answer for that, too:

" 'Would it have been nice to invite everyone to these meetings? Sure, but it just doesn’t work that way. Were there times others should have been invited? I have to concede it may have been helpful, but we did the best we could under the circumstances.' "

See, it's not his fault. He couldn't help it. You can't blame him. He didn't try, but trying is hard! Besides, does this sound like torture to you?

"In March 2003 Yoo sent out another crucial memo, this time exploring the limits of prisoner interrogation. He concluded that military interrogators were not subject to federal laws prohibiting assault, maiming, or other uses of force during questioning because the end goal was 'to prevent further attacks on the United States.; The memo suggested that acts like dousing prisoners with scalding water, corrosive acid, or caustic substances; slitting an ear, nose, or lip; or disabling a tongue or limb were not criminal.
And we can make that pesky problem of definitions go away,too!

From the early 1930's until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5% (44 of 54) of articles on the subject and The Los Angeles Times did so in 96.3% of articles (26 of 27). By contrast, from 2002-2008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4%). The Los Angeles Times did so in 4.8% of articles (3 of 63). The Wall Street Journal characterized the practice as torture in just 1 of 63 articles (1.6%). USA Today never called waterboarding torture or implied it was torture.
Which is okay, because if they had, there would have been lawyers and policy intellectuals to explain that you can ignore the bell, since it doesn't toll for me. However, it is still possible that:

It Tolls For Thee:

In 2004 a group of lawyers and policy intellectuals gathered at Harvard, brought there by its Kennedy School, Law School, and the Department of Homeland Security, to draw up rules for coercive interrogation-"torture lite," as The New York Times Magazine would later call it in a respectful consideration of the subject. All but one of the discussants concluded that a little torture was sometimes necessary, provided it was accompanied by appropriate warrants, rules, and strict oversight. The Bush Administration rejected the Harvard team's regulatory proposals; niceties for the application of torture are superfluous once everyone agrees it needs to be done. But euphemisms-"coercive interrogation," "stress"-are appreciated. They allow George W. Bush to declare, "We don't torture."
But if the bell tolls for thee, then you have to put yourself in the position of being the torturer. And then what happens? Then you hit the trifecta of:

Reason, Emotion, and Torture

Cox presented this proposal to his Harvard classes on Moral Reasoning (his experiences in teaching the class are the basis for this book). The class split almost 50/50 on whether or not torture could be justified, even under the Dershowitz proposal. Many agreed with Martha Nussbaum's sentiment: "I don't think any sensible moral person would deny that there might be some imaginable situation in which torture [of a particular individual] is justified." (Cox, p. 240). Cox raised objections to the "ticking bomb" scenario: victims of torture will tell you anything, torture makes their statements less reliable, not more; it is a "slippery slope" toward allowing torture in less critical cases (much as the Supreme Court has allowed unwarranted searches by police in certain cirumstances); etc. Still, the class sticks, 50/50. So he introduces a few new questions.

How many in the class, he asks, would be willing to insert the sterilized needles under the fingernails?

"Only a small number put up their hands. Then I asked those who favored the policy but would not do it themselves to formulate some moral justification for their action, other than mere squeamishness. A sullen silence followed." (Cox. p. 242)

Cox has already pointed out the utilitarianism behind Dershowitz' argument, a "greatest good for the greatest number" the class as a whole is quite willing to accept, secure in the knowledge that they will be among the greatest number, and that, after all, their hands are clean.

"Then I posed another question. Suppose, I asked, the suspect is not talking to you but you have his two children-- aged four and seven--in the room. Would you threaten to torture them to get the information? After all, if it is mere mathematics, what is the temporary pain of two children compared to the possible deaths of five thousand people? Not a single person in the class was willing to hurt the children." (Cox, p. 242)
Our Army, however, was willing to make the threats Harvard students decided was going too far:

The U.S. Army in Iraq has at least twice seized and jailed the wives of suspected insurgents in hopes of "leveraging" their husbands into surrender, U.S. military documents show.

In one case, a secretive task force locked up the young mother of a nursing baby, a U.S. intelligence officer reported. In the case of a second detainee, one American colonel suggested to another that they catch her husband by tacking a note to the family's door telling him "to come get his wife."
So Dick Cheney insists to this day that our hands are clean, and that torture was effective. Even today Steve Inskeep managed to get through an entire interview with Ali Soufani without mentioning Dick Cheney's redemption tour or his baseless claims, claims undermined by the very book Inskeep was interviewing Soufani about. And in case we really, really, finally still don't get it

Everything old is new again....and again....

When CIA officials subjected their first high-value captive, Abu Zubaida, to waterboarding and other harsh interrogation methods, they were convinced that they had in their custody an al-Qaeda leader who knew details of operations yet to be unleashed, and they were facing increasing pressure from the White House to get those secrets out of him.

The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads.

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida -- chiefly names of al-Qaeda members and associates -- was obtained before waterboarding was introduced, they said.

Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda's chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed.

Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources. Rather, he was a "fixer" for radical Muslim ideologues, and he ended up working directly with al-Qaeda only after Sept. 11 -- and that was because the United States stood ready to invade Afghanistan.
And although nobody was noticing, we went to war on this crap:

According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear. Sources say Al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being water boarded and then left to stand naked in his cold cell overnight where he was doused with cold water at regular intervals.

His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons. Sources tell ABC that it was later established that al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.
What has changed in 10 years? We still worship power. We think more than ever that security comes out of the end of a gun. We still think our prosperity depends on treading on the poor, only now the poor are among us, not just overseas or at our borders. And we are still better, more decent, more humane, more caring and compassionate and understanding, than our political leaders.

Now if we could just find a way to transfer those better qualities to them.....

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