Sunday, April 26, 2009

What do they think the Rule of Law means?

Michael Scheuer has written an op-ed for the Washington Post in which he accuses President Obama of "enthroning [his] personal morality as U.S. defense policy." This only makes sense if you define "personal morality" as a belief that the nation's chief executive officer - the president - is obligated to enforce and abide by this nation's laws, including those prohibiting torture and cruel and unusual punishment. Although Scheuer appears to only consider torture's efficacy to be the limiting and defining feature of the debate, there's also the matter of the rule of law and the belief that liberal democracy is incompatible with the use of torture because it erodes and undermines our very conception of human rights. (It is no mere accident that the 8th Amendment of the Bill of Rights prohibits cruel or unusual punishments.)

Lawyers, Guns and Money responded to the absurdity of Scheuer's offering, but this particular passage from Scheuer really irks me

Next, the president used his personal popularity and the stature of his office to implicitly identify as liars those former senior U.S. officials who know -- not "argue" or "contend" or "assert" but know -- that the interrogation techniques have yielded intelligence essential to the nation's defense.
Huh? How is it then that this "knowledge" of torture being an essential defense tool escaped Steven Bradbury's attention ... the same Steven Bradbury who would become one of the Bush administration's torture lawyers at the OLC.

The CIA inspector general in 2004 found that there was no conclusive proof that waterboarding or other harsh interrogation techniques helped the Bush administration thwart any "specific imminent attacks," according to recently declassified Justice Department memos.


It is difficult to quantify with confidence and precision the effectiveness of the program," Steven G. Bradbury, then the Justice Department's principal deputy assistant attorney general, wrote in a May 30, 2005, memo to CIA General Counsel John Rizzo, one of four released last week by the Obama administration.

"As the IG Report notes, it is difficult to determine conclusively whether interrogations provided information critical to interdicting specific imminent attacks. And because the CIA has used enhanced techniques sparingly, 'there is limited data on which to assess their individual effectiveness'," Bradbury wrote, quoting the IG report.
Scheuer seems to believe that persons who played a role in the creation of an illegal torture regime are to be taken as authorities when the merely assert that they "know" torture works, but apparently the testimony of actual interrogators doesn't get the same treatment. Otherwise, something like this might have given him pause

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.
Or what about this

There is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism, and experts believe some painful and coercive approaches could hinder the ability to get good information, according to a new report from an intelligence advisory group.


The report explores scientific knowledge on interrogation in the wake of reported abuse around the globe. The study, sponsored by the Defense Intelligence Agency and the Pentagon's Counterintelligence Field Activity, was posted yesterday on the Federation of American Scientists' Web site, at

In it, experts find that popular culture and ad hoc experimentation have fueled the use of aggressive and sometimes physical interrogation techniques to get those captured on the battlefields to talk, even if there is no evidence to support the tactics' effectiveness.
And I suppose the expertise of Darius Rejali, author of Torture and Democracy, a definitive work on the subject, doesn't exist in Scheuer's mind, either.

When I talked about people under torture saying anything, I was especially interested in the cases where torturers interrogate for true information. That’s what I document doesn’t work. But it seems pretty clear that torture works to generate false confessions, which serve equally as well as true confessions for many state purposes. When judges and juries value confessions as decisive proof, police are happy to generate confessions for convictions. This can happen in domestic crime, as it happened in Chicago in the 1980s where African Americans were sentenced to death on the basis of coerced confessions. They’re also good for international show trials, trials that exonerate the state’s failures. Stalin wanted show trials to demonstrate that terrorists and saboteurs caused his failures, and he wasn’t the last leader who liked show trials to vindicate his decisions. And lastly, states use false confessions as blackmail to turn prisoners into unwilling informants. Torture allows one to collect dependent and insular individuals, spreading a net of fear across a population. This can happen locally (as in a ghetto) or in a whole state, like East Germany.

It’s also true that torturers often hear what they want to hear. In fact that’s one of the big problems with torture that I document in the book and the “Five Myths” article. Even if torture could actually break a person and they told you the truth, the torturer has to recognize it was the truth, and too often that doesn’t happen because torturers come into a situation with their own assumptions and don’t believe the victim. Moreover, intelligence gathering is especially vulnerable to deception. In police work, the crime is already known; all one wants is the confession. In intelligence, one must gather information about things that one does not know.

And let’s remember, torturers aren’t chosen for intelligence; they are chosen for devotion and loyalty, and they are terrible at spotting the truth when they see it. In the “Five Myths” piece I talk about how the Chilean secret service lost valuable information in that way when they broke Sheila Cassidy, an English doctor, and she told them everything but they didn’t believe her. And one can just repeat dozens of stories like this. My favorite is when Senator John McCain tried to explain the concept of Easter to his North Vietnamese torturer. “We believe there was a guy who walked the earth, did great things, was killed and three days later, he rose from the dead and went up to heaven.” His interrogator was puzzled and asked him to explain it again and again. He left, and when he came back, he was angry and threatened to beat him. Americans couldn’t possibly believe in “Easter” since no one lives again; McCain had to be making this up.
And the hundreds of thousands of people who died as a result of a tortured confession that was used to fabricate evidence of a link between Iraq and Al Qaeda have become unpersons who do not factor into the debate.

And before we go on to take note of another Post columnist arguing against the Rule of Law, let's pause and examine for a moment the claim that because our particular abusive interrogation methods have been disclosed "the enemy" now knows how to prepare for torture and coerced interrogation. Darius Rejali debunked this canard in his "5 Myths" column

5 You can train people to resist torture.

Supposedly, this is why we can't know what the CIA's "enhanced interrogation techniques" are: If Washington admits that it waterboards suspected terrorists, al-Qaeda will set up "waterboarding-resistance camps" across the world. Be that as it may, the truth is that no training will help the bad guys.

Simply put, nothing predicts the outcome of one's resistance to pain better than one's own personality. Against some personalities, nothing works; against others, practically anything does. Studies of hundreds of detainees who broke under Soviet and Chinese torture, including Army-funded studies of U.S. prisoners of war, conclude that during, before and after torture, each prisoner displayed strengths and weaknesses dependent on his or her own character. The CIA's own "Human Resources Exploitation Manual" from 1983 and its so-called Kubark manual from 1963 agree. In all matters relating to pain, says Kubark, the "individual remains the determinant."

The thing that's most clear from torture-victim studies is that you can't train for the ordeal. There is no secret knowledge out there about how to resist torture. Yes, there are manuals, such as the IRA's "Green Book," the anti-Soviet "Manual for Psychiatry for Dissidents" and "Torture and the Interrogation Experience," an Iranian guerrilla manual from the 1970s. But none of these volumes contains specific techniques of resistance, just general encouragement to hang tough. Even al-Qaeda's vaunted terrorist-training manual offers no tips on how to resist torture, and al-Qaeda was no stranger to the brutal methods of the Saudi police.
Now onto the next apologist for lawlessness.

David Broder is psychic. How else could he write the following in good conscience?

Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.
See what he did there? He dismissed the "plausible-sounding rationale" that torture critics want our laws enforced because otherwise our laws won't be enforced on the basis that he knows that they are not interested in justice but revenge. How could Broder know such a thing? Secondly, and more importantly, the grounds and motivations for an argument are not the same thing - Broder does not even entertain the possibility that the notion that unless we enforce our laws against torture we essentially have no laws against torture is correct.

Broder continues on, stating that criminal prosecutions "would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice. "

You can't tell, but I've paused and counted to ten because my first instinct is to type out a string of profanities. How can this possibly be so difficult for Broder to understand? We have a system of government known as liberal democracy, where we believe in a thing known as the Rule of Law. It means that there is not a two tier justice system, one for the peasants and one for the ruling class. Instead, it means that all are accountable to the law. Government officials, even top ranking government officials in the Court of Versailles D.C. do not get to decide to break the law. Breaking the law is not a "policy disagreement" - IT IS A CRIME. Ok? It isn't injust to hold criminals accountable for their crimes. In fact, that's actually what we call justice, but it's revealing that Broder considers expecting members of the political elite to abide by the laws of this nation an injustice.

Glenn Greenwald has further commentary on Broder and links to several other posts responding to his failure to understand how our justice system is supposed to function. And Media Matters points out Broder's inability to recognize that if you believe politicians should be granted immunity for criminal acts then criminal acts may follow.

Of course, it's worth remembering that Broder thought that Bill Clinton should resign because of his lying in regards to his sexual affair with Monica Lewinsky. Obviously, lying about consensual sex is a much graver danger to Constitutional governance than extensive illegal domestic surveillance or war crimes such as torture.

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