“I had a choice, but I chose to do what my friends wanted me to,” she said. … “They did it for their own amusement.”

Abu Ghraib was only the tip of the iceberg in terms of US human rights abuses. Investigations of numerous deaths while in US custody in Iraq and Afghanistan demonstrate forcefully that Abu Ghraib was not “exceptional” and that Lynndie England was not merely a “bad apple.” This level of abuse, torture, and death is a pattern.

Where is the accountability from this administration? What have they done? A very few show trials of the smallest number of people that could be blamed for participation in the most widely publicized incident; busting down Army Reserve Brig. Gen. Janis Karpinski to Colonel; and laying a few reprimands & “unspecified administrative punishment” on five other officers. [cbs 5/5] Again, all focused only on Abu Ghraib, and, frankly, only on the most widely publicized incidents at Abu Ghraib. [And among other sorry aspects to this case I am forced to note the sexism in the media coverage of this case, which has turned England into the public face of the Abu Ghraib scandal.]

If this administration took seriously the concept of an “ownership” society it would have taken ownership and responsibility for the war crimes committed on its watch. But in the Bush administration the buck only goes as high as the most conveniently disciplined flunky.

I said it before: repudiating the Bush administration policies on terror and treatment of prisoners and civilians is my most compelling reason for voting for Kerry. The Bush administration is morally bankrupt and to condone in any way these policies is a national shame. The Bush administration, frankly, should have resigned en masse after Abu Ghraib. They have not done so, and it is thus our responsibility to fire them.

And that’s the thing about the military. In loco parentis. They have an obligation to take our children and protect them, not only from land mines but from doing stupid things that could land them in jail.

Salon.com News | Seymour Hersh’s alternative history of Bush’s war [2004-sept-18]

Torture to produce a confession (“Yes, I am a terrorist”) almost certainly is useless; at some point of pain, many people would confess to anything. But torture to elicit specific information (Who told you to do this? Where did the meeting take place? Who else is in your cell? What are they planning to blow up tomorrow?) sometimes will do—clearly, has done—the job. If it hasn’t, many times over the centuries, then why do so many regimes engage in it? Some no doubt do it for the kicks, but they’re not all purely sadists.

Kaplan suggests that we need to begin answering this fundamental question: Is torture effective in some instances? for instance, torturing high-level operatives who reasonably seem likely to have information.

Kaplan thinks Hersh evades the question in his new book, but Kaplan is actually missing the point. The rules against torture are not based on the lack of efficacy of torture. We rarely forbid the government to do the inefficient. [This point could be heavily footnoted by history and law.] The rules against torture are based on the knowledge that torture is most effective as a tool for terrorizing the populace, and that as such, this tool is too dangerous to be permitted.

A few salient points as I work through this issue:

1. Regimes have engaged and continue to engage in torture to elicit confessions, although even by Kaplan’s admission, this is ineffective.
2. Even if states are attempting to be efficient and effective, they may nevertheless be wrong in their information. For instance, assume that torture to elicit information is actually ineffective. Nevertheless, governments may operate under false information and presumptions. Ladies and gentlement, I give you global climate change as Exhibit A. Efficacy is, alas, no guarantee of sound evidentiary-based decision-making. (Point of interest: torture has, in fact, been shown to be ineffective for gathering accurate information!)
3. Torture is effective, although not in eliciting accurate information or confessions. State-based torture is highly effective in intimidating the populace. So regimes have a real, highly effective reason to engage in torture regardless of its effectiveness in eliciting information or confessions &mdash maintenance of their own power.

   Individual torturers may believe that the purpose is to elicit information — indeed, I imagine that most torturers cloak their own actions to themselves, in part, as based not on sadism, or pure abdication of moral responsibility, but on the mental jujitsu that following orders will lead to some greater good because the torture produces information that contributes to the general welfare. This is not to dispute the results of the Stanford experiments or other similar work showing that guard-roles inevitably produce mental disorders, anxiety, and abuse of power.

   But in looking at torture, one wants to look at its real purpose — what is achieved by the inclusion of torture in the arsenal of tools available to a government. Confessions? Admittedly not useful. Accurate information? Kaplan contests it, but no, torture doesn’t get there. What torture is undeniably successful at producing is an intimidated populace, and the maintenance of state power. One need look no further than the obvious for any state’s justification for torturing those under its power.

   The real purpose of torture is to maintain power. Torture and state-murder are the most naked expressions of the fundamental principle that government is based on the exercise of compulsion and power over the governed.

war on iraq:
Will Kerry solve the iraq situation? Will he make it better? Folks might suggest that Kerry will not, or can not. Other folks might reasonably point out that the Democrats are not really better on iraq: What about Clinton who let ~500,000 children die in iraq of malnutrition (and the occasional bombing)? It’s very simple: I have no idea whether Kerry will solve our problems in iraq or whether they’re solvable or how. (I do know that the Bush Administration won’t solve the problems.) So I’m not voting for Kerry because, prospectively, he’ll “fix” iraq. I’m voting for Kerry because i believe he won’t keep us on this path, pushing us into other wars based on an unrealistic view of the world. I do not believe that Kerry would have gotten us into iraq. A Bush administration is very likely to continue to lead us into ill-advised military adventures.

the environment
Really there is nothing that one can say here. Kerry is merely a Democrat and is thus beholden to certain interests. But he is unquestionably better than Bush on environmental issues. Kerry has one of the better records in the senate on the environment, and Bush is like the tasmanian devil — well, just as destructive; not so cute.

civil liberties
There is no question that the Bush administration will continue to appoint extremely conservative judges to the bench, judges who do not respect civil liberties. The Bush administration will also retain Ashcroft as a primary violator of civil liberties.

civil liberties in specific: reproductive rights
Kerry will get rid of the Mexico City policy. Kerry will get rid of the gag rules. Kerry will respect the right of a woman to choose an abortion or a pregnancy — not the right of his administration or a judge to choose for her.

civil liberties in specific: sexual autonomy
Kerry will respect my right to make my own choices about my family life — and Bush won’t. Kerry will endeavor not to discriminate against my family choices legally and financially.

self-respect & shame
Most significantly, I am ashamed of the u.s. government for its unilateral invasion of iraq & its treatment of civilians and prisoners (in abu ghraib and elsewhere). To any extent that I have power over this government–and it’s a very limited extent–I am morally obligated to use that power to try to change the government. Even if voting is largely a symbolic act (or as SS wrote on a list a while back, a religious act), it is nevertheless incumbent on us all to to repudiate those atrocities—that includes the formal act of voting, symbolic or no.

To stand by after those atrocities and evil actions, and to not make the formal statement–as well as all the activist, formal statements I can–against those behaviors would be reprehensible. If voting is power, then I must exercise it, even if it is only a tiny bit of power. If voting is merely symbolism, then it is nevertheless important to be on the record, symbolically, as opposing this administration.

10/23 update: Shrillblog just pointed me to this entry at abu aardvark. A picture’s worth a thousand words. But the words are worth a lot too:

^{update: actually i ended up voting for kerry on the theory that the overall vote total — while irrelevant to who “wins” the election — demonstrates the strength of the voices against Bush and Abu Ghraib.}

Above the Law?

JB

In the past few days there has been much discussion of the recently released secret Pentagon “torture memo”. The report argues that the President, under his powers as commander-in-chief, has the right to order torture of suspects regardless of the Eighth Amendment’s ban on cruel and unusual punishments, existing laws, and international agreements to the contrary. It also argues that people acting at the president’s request can escape prosecution for crimes on the grounds that they are only following orders.

There is a pretty serious problem with the arguments in the memo, given that the Article II, section 3 of the Constitution states that the Executive “shall take care that the laws be faithfully executed.” That suggests that the Commander-in-Chief power described in Article II, section 2, clause 1, however, great it may be, cannot be exercised through violation of law.

In any case, I thought I’d offer some historical perspective on the controversy. To begin with, here, (reprinted from my constitutional law casebook), is Richard Nixon making arguments remarkably similar to those in the torture memo. These come from an interview with David Frost following his resignation as a result of the Watergate scandal:

Mr. David Frost: So what in a sense you’re saying is that there are certain situations . . . where the President can decide that it’s in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President’s decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they’re in an impossible position.

Nixon argued that the President is not above the law because the President determines what the law is, and subordinates who follow the President’s orders are thereby immunized. It follows that if the President determines that torture does not violate the law, it does not violate the law, and if he orders his subordinates to torture people, they are immunized from later prosecution.

Next, here’s Abraham Lincoln,who wrote the following in an 1863 letter to Ohio Democrats after they passed a resolution denouncing his policy of military arrests and suspension of habeas corpus:

You ask, in substance, whether I really claim that I may override all the guarantied rights of individuals, on the plea of conserving the public safety when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion of Invasion. The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution.

Lincoln’s argument, although flawed in its interpretation of Article I, section 9, is far more subtle than Nixon’s. Lincoln does not assert that he automatically determines what the law is simply because he is President. Rather, he argues that the Constitution specifically contemplates that the writ of habeas corpus can be suspended in time of emergency, but does not specify who must make that decision (he is wrong about that– my view is that under Article I, section 9, Congress must authorize the President; the President cannot do it alone). Someone has to make a decision in times of emergency about suspension of the writ, Lincoln argues, and therefore President is permitted to make a gamble: If he exercises his powers justly, he will be exonerated. If he abuses his powers, then he is subject to sanction, including not only being thrown out of office in a subsequent election, but also impeachment, and subsequently, indictment, and criminal prosecution.

Note that Lincoln is not saying, unlike Nixon, that the Commander-in-Chief power allows him to do anything, and that all of his actions are necessarily legal. Rather Lincoln is saying that Article I, section 9 gives him the power to suspend the writ of habeas corpus and detain people indefinitely if he deems necessary, and that his decision will be subject to political oversight later on. In this passage, Lincoln does not say that he can overturn any existing laws (in another famous statement, he suggests he should be able to disregard a single law to preserve all the others). He does not say that he can violate the Eighth Amendment’s prohibition on cruel and unusual punishments, laws specifically prohibiting torture, or the country’s treaty obligations, or commit what would otherwise be war crimes. He merely says that a particular clause of the Constitution allows detention of people in times of emergency, that in the absence of a clear statement as to who makes this decision, he has the right to make it, and that he will be held to account if he abuses his power. How much more so should he be held to account if he violates the Constitution or the law.

Moreover, Lincoln’s argument requires a certain degree of political transparency. It requires that the people be able to know whether the President has made a difficult decision in order to preserve the country. The problem with the present torture scandals is that, as far as we know, the Bush Administration never wished its policies regarding torture, or its actual practices of prisoner abuse, to see the light of day. Rather, it was merely luck that photographs of what went on at Abu Ghraib were released to the media, which then set the stage for further revelations. And unlike Lincoln, the Bush Administration does not believe that it can be held accountable for its actions if abuse is proved. Indeed, it continues to insist that it should be allowed to do what it wants, however it wants, without interference from Congress or anyone else.

The Bush Administration has been pursuing a logic very much like Nixon’s. The President, because he is Commander-in-Chief, does not violate the law if he thinks a particular action is necessary. Rather, he determines what the law is. This way of thinking twists the Rule of Law beyond recognition. It is a chilling reminder of what people seduced by power and convinced of their utter rectitude will do to justify their actions.

Posted 9:05 AM by JB [link] (0) comments

and now for the ones about arguments that make you feel ashamed to be a lawyer:

Wednesday, June 09, 2004

Arguments That Make You Ashamed to be a Lawyer

JB

I’ve been spending some time thinking about the legal claims made in the Pentagon’s “torture memo.” They sound like legal arguments, to be sure. But they are so mindlessly wrong-headed that you wonder how people can argue themselves into these conclusions.

The key argument in the memo stems from the fact that in order to implement our obligations under international conventions against torture, Congress passed a law making it criminal to engage in torture overseas. The memo then sets out to prove that this law does not bind the President. Why? Because all statutes should be construed to avoid constitutional difficulties. Preventing the President from using torture would pose a constitutional difficulty because it would impinge on his powers as Commander-in-Chief. As the memo puts it, “Congress may no more regulate the President’s ability to detain and interrogate enemy combantants than it may regulate his ability to detect troop movements on the field.” “Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” Taken to its logical conclusion, this argument would suggest that Congress may never place any restraints on anything that the President wishes do do under his powers as Commander-in-Chief because to do so might create a constitutional conflict with his powers as Commander-in-Chief. In short, the argument, taken to its logical conclusion, gives the President plenary power to do anything as long as he believes it is within his powers as Commander-in-Chief.

This is an assertion of power that would make Richard Nixon proud. (See the post below on Nixon’s theory of presidential power.). Even the Iran Contra conspirators during the Reagan Administration did not make so strong a claim. They argued that the Borland Amendment, which prevented the expenditure of funds to the contras, did not apply to the activities of the National Security Council. Whether that argument was correct or not is besides the point. What is important is that they did not presume that Congressional legislation related to the conduct of war and foreign policy could not bind the President. The torture memo takes a much stronger position. It truly makes the President a King, someone who must be presumed to do no wrong. If the President adopted this position, and acted upon it, it would be grounds for impeachment.

The second argument is that people engaged in torture at the direction of the Executive may not be prosecuted for war crimes because they were following the orders of a superior. The memo recognizes that following orders is not a defense under both American and international law if the subordinate knows or has reason to know that the order is unlawful. After reciting various authorities to this effect, the memo then twists that legal formulation and concludes that “In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogiations except where the conduct goes so far as to be patently unlawful.”

Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.

What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo’s first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President’s power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may– indeed, you must– presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.

Clearly it takes a highly trained legal mind to reach conclusions like these.

There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration’s dirtiest work– apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

Posted 12:14 PM by JB [link] (0) comments

Torture: A last recourse we may require sooner and sooner

The Medium Lobster has been disquieted of late at by the latest round of Iraq torture scandal news. There has been much uproar – among that irritating minority which have not been studiously scrutinizing the week’s top story, the beatification of Ronald Reagan, at least – regarding the powers of the president and the incompatibility of torture with a liberal democracy. In the midst of all this, the Medium Lobster would like to offer those with cooler heads some perspective as to the merits of harsh interrogation.

Imagine there is some weapon of mass destruction planted by terrorists in the heart of a city, ready to go off – a “ticking bomb,” if you will. Would it be wrong to torture a terrorist to find the location of such a device and save the millions of lives at risk? Hardly. Now, what if instead of torturing a terrorist, interrogators had to torture a confederate of that terrorist – some associate who would know where the terrorist was so they could locate that ticking bomb? Is that dirtying of our hands such a high price to ask in the goal to protect millions? I think not. Now, what if instead of a terrorist’s comrade, interrogators have a terrorist’s relative or neighbor? Is it still justified to go as far to save innocent lives? I should hope so! And what if that terrorist has a lot of relatives and neighbors – hundreds, even? Would it be wrong to grant blanket authority to torture hundreds of prisoners knowing full well that any of them could have the crucial information required to save a city? Certainly not! And what if the threat we’re faced with is not a bomb at all but an even more pernicious threat – a rogue nation with the potential capability to someday construct that bomb? Would it not be America’s right – no, her duty – to invade that country, occupy it, and set up a system of torture-like interrogations to rid that country of terrorists and weapons of mass destruction once and for all? Absolutely!

Indeed, the most unsettling question being raised by these latest news items is not the issue of torture itself, but the question of whether America will be strong enough to use that torture to defeat the enemies of life and liberty. The Medium Lobster can only hope that this great nation will retain its nerve.

Q: Mr. President, I wanted to return to the question of torture. What we’ve learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that’s not very comforting. This is a moral question: Is torture ever justified?

BUSH: Look, I’m going to say it one more time. Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We’re a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.

… I’d just like to add that, as ever, it’s much more instructive to read or hear Bush speak without the artful ellipses so often inserted in pullquotes …

The roots of the Abu Ghraib prison scandal lie not in the criminal inclinations of a few Army reservists but in a decision, approved last year by Secretary of Defense Donald Rumsfeld, to expand a highly secret operation, which had been focussed on the hunt for Al Qaeda, to the interrogation of prisoners in Iraq. Rumsfeld’s decision embittered the American intelligence community, damaged the effectiveness of élite combat units, and hurt America’s prospects in the war on terror.

And concludes with this quote from Kenneth Roth, the executive director of Human Rights Watch:

“In an odd way,” Kenneth Roth, the executive director of Human Rights Watch, said, “the sexual abuses at Abu Ghraib have become a diversion for the prisoner abuse and the violation of the Geneva Conventions that is authorized.” Since September 11th, Roth added, the military has systematically used third-degree techniques around the world on detainees. “Some jags hate this and are horrified that the tolerance of mistreatment will come back and haunt us in the next war,” Roth told me. “We’re giving the world a ready-made excuse to ignore the Geneva Conventions. Rumsfeld has lowered the bar.”