“Crossed The Line”: Even John Yoo Has His Limits
John Yoo’s reputation is well deserved. The conservative law professor at UC Berkeley is perhaps best known as the principal author of the Bush/Cheney “torture memos” – defending the so-called “enhanced interrogation techniques” – during Yoo’s tenure at the Justice Department’s Office of Legal Counsel.
And when it came to torture and national security, the conservative lawyer was largely in the “anything goes” category. But apparently, even Yoo has his limits.
As former Vice President Dick Cheney argued on Sunday that the CIA’s aggressive interrogation of terrorism suspects did not amount to torture, the man who provided the legal rationale for the program said that in some cases it had perhaps gone too far.
Former Justice Department lawyer John Yoo said the sleep deprivation, rectal feeding and other harsh treatment outlined in a U.S. Senate report last week could violate anti-torture laws.
“If these things happened as they’re described in the report … they were not supposed to be done. And the people who did those are at risk legally because they were acting outside their orders,” Yoo said on CNN’s “Fareed Zakaria GPS.”
In an interview on C-SPAN, Yoo added, “Looking at it now, I think of course you can do these things cumulatively or too much that it would cross the line of the anti-torture statute.”
Just to be clear, this is not to suggest Yoo endorses or agrees with the torture report released last week by the Senate Intelligence Committee. On the contrary, it’s quite clear that he does not.
But as a political matter, his willingness to draw legal lines now, in light of the new revelations, creates an interesting dynamic.
We know, for example, that according to the CIA’s records, rectal feeding and hydration were forced on detainees without medical need.
According to former CIA director Michael Hayden, that wasn’t illegal and it wasn’t torture.
According to former Vice President Dick Cheney, that wasn’t illegal and it wasn’t torture.
According to Karl Rove, that wasn’t illegal and it wasn’t torture.
But according to John Yoo, this crossed the line. In other words, a variety of leading Republican voices haven’t just embraced torture as a legitimate tool, they’ve positioned themselves to the right of the torture-memo author who helped give the Bush/Cheney White House the green light in the first place.
By: Steve Benen, The Maddow Blog, December 15, 2014
“Normalizing Illegal Behavior”: Why Are Torturers Being Given “Balance” In The Press?
After the publication of the torture report, the torturers and their enablers have been all over the airwaves defending themselves and the use of “enhanced interrogation techniques.” These “techniques” included horrific acts of rape, threatening family members with rape and death, suspension from ceilings and walls for days on end, forcing prisoners to soil themselves in diapers, and various forms of psychological torture including sleep and sensory deprivation. In many cases the people being tortured had done nothing wrong and had no information of value.
There is simply no defense for any of this. None. “It gave us actionable intelligence” isn’t a defense. It happens to be untrue. We know that torture doesn’t produce valuable information, and it didn’t produce valuable information in any of these cases, either. But it doesn’t matter if it worked or not. Cutting the hands off of thieves works wonders to reduce theft, but we don’t do that. A moral people does not do these things. “We’re not as bad they are” isn’t a defense, either. That’s not the standard by which a moral people judges itself–and besides, most of the rest of the industrialized world does hold itself to a higher standard, despite also being victimized by Islamist terror attacks.
This stuff is obvious. And yet the TV shows and newspaper stories are full of balance given to the pro-torture side. Why? Despite objections to the contrary, journalists do not always give balance to both sides of an argument if the other side is deemed irrelevant or depraved. Whenever the deficit bugbear rolls to the forefront, almost no balance is given to the Keynesian point of view despite their predictions being consistently correct: the idea that one needn’t actually cut the deficit during a recession is treated as so outre as to require no journalistic attention.
More pointedly, when journalists write about torture and depredations of current or former regimes, journalists don’t feel the need to get the torturers’ side of the story. No one is rushing to ask Assad’s torturers in Syria if their tactics are necessary to keep “terrorists” in check. No one is asking North Korean guards if their treatment of their people is OK because some other country is worse. No one rushes to counterbalance the accounts of Holocaust victims with the justifications of Nazi guards. It simply isn’t done, any more than we “balance” stories of child sexual abuse with a hot-take counterpoint from a member of NAMBLA. The reason we don’t provide “balance” in these cases is that to do so would be to normalize those behaviors as part of legitimate discourse.
So why in the world are the torturers who subjected innocent people to anal feedings and dungeon ceiling hangings given the courtesy of “balance” in the press? Where is the line that separates issues that require balance from those that do not?
In a decent moral universe, torturers don’t get the benefit of explaining themselves to the press any more than serial killers do, except potentially out of morbid curiosity.
By: David Atkins, Political Animal, The Washington Monthly, December 14, 2014
“A Future Cheney Could Do It All Again”: The U.S. Will Torture Again—And We’re All To Blame
Reliably enough, out came Dick Cheney to trash the Senate torture report and to say of the use of torture: “I’d do it again in a minute.” None of us doubt that he would. But the more interesting and challenging question is: Could he?
More precisely, could a future Cheney, after a future terrorist attack on the U.S. mainland, get away with it? Could a future administration set up the whole fraudulent and immoral apparatus—a Department of Justice defining torture so narrowly that it somehow magically doesn’t include sleep deprivation or rectal hydration or waterboarding, followed by a CIA and military saying “Hey, what’s the big deal? It’s all legal!”? (Even in his press conference Thursday, CIA chief John Brennan acknowledged that it all could happen again: “I defer to the policymakers,” he said, as to what might occur.)
People like me are supposed to say something like: No, we’re better than that. Alas, I say we are not better than that. It could happen again. Easily.
In fact, let’s go further. Cheney is a figure of horror and ridicule these days (although by no means to everyone—to the Fox News audience to which he spoke the above words Wednesday, he’s oracular). But can we honestly say that back in 2002, 2003, 2004, he wasn’t carrying out the people’s will? We get the government we deserve, de Tocqueville said. And in the Bush-Cheney regime, we got exactly that.
There exist four mechanisms in our democracy by which the state can be compelled to live up to what we call, rather farcically in a gruesome week like this one, “our ideals.” There is the will of the people; the resolve of the political class; the courage of the media; and the authority of the courts. With regard to our torture regime, all four failed, and failed completely.
The people were, in theory, against torture. I have on my screen here a study from Reed College (PDF) that asserts that from 2001 to 2009, majorities of public opinion consistently opposed torture, by averages of about 55 to 40 percent. That may be, in the abstract. But were Americans ever so worked up about the practice that they demanded it not be undertaken in their name? Never.
In fact, for most of the Bush era, the opposite was the truth. I remember very clearly the public mood after the 9/11 attacks. There was appropriate anger and shock and sorrow. But it bled into other less honorable manifestations, a paradoxical combination of, on the one hand, a lust for revenge in any form among a certain segment of the populace, and on the other hand a tremulous fear among a different segment that sanctioned anything being done in its name. Too many people reverted to a childlike state, and they wanted a daddy-protector. And no, this wasn’t understandable under the circumstances.
As for the political class, I doubt I need to give you a very hard sell on its failure. It was thoroughgoing and bipartisan. The timorous Democrats, with a few noble exceptions like Robert Byrd, largely bought into the global war on terror. The Republicans, well, you know about them. The foreign-policy establishment of Washington and to some extent New York lined up behind the administration on nearly every important question. The urge among this class is always to swim with the tide: In 2003, when the Council on Foreign Relations was casting about for a new leader, it settled on Richard Haass, who had been in Bush’s State Department. He has said since that he was 60-40 against the war, but one would have been hard pressed to know that then, back when his boss, Colin Powell, was warning us about those weapons of mass destruction that didn’t exist. On the torture question, this class was outraged when it was easy to be outraged, like when the Abu Ghraib story broke, but the outrage was never sustained.
Among the media, there were to be sure many brave journalists—Jane Mayer, Robin Wright, many others—who broke story after story about torture. We’re in their debt. But their great work was more than balanced out by the equivocation caucus—well, we can’t really be sure it’s torture. And then there was the segment of the media that actively cheered it all on. More broadly, the media as a whole were afraid to break ranks. I have had a number of conversations with prominent media people—in TV and radio, names you’d know—who, by way of trying to defend their lack of zeal and confrontation in those post-9/11 days, tried to explain how many furious emails they got when a report diverged modestly from the accepted line.
And the legal system? Again, there were some courageous judges who tried. A Virginia federal judge named Gerald Bruce Lee ruled in 2009 that four Abu Ghraib detainees could sue CACI, the private military contractor in Iraq. But overall the legal system has done little to say “this was against the law.” Much of the fault for that, of course, lies with Barack Obama, who chose early on not to seek prosecutions of Bush administration officials. And even now, in the wake of this report, what is your level of confidence that anyone will be prosecuted as a result of the release of this report? I thought so.
Failures top to bottom. Now, one would like to say that we as a society have learned the lessons of these failures and would not permit this to happen again. Don’t count on it. If there is another terrorist attack on the U.S. mainland, the odds are strong that we will reenact this grim tragedy from start to finish, if a neoconservative regime happens to be ensconced in the White House. The people would respond with the same fear, which would give license to the same behavior, and the political class and the media and the courts would probably go along.
So yes, it’s a moral horror that Cheney says he’d do it all again. But it’s also all too likely that a future Cheney could do it all again. That’s the far greater moral horror, and the one we don’t want to face, because it implicates us.
By: Michael Tomasky, The Daily Beast, December 12, 2014
“Bush’s Willful Ignorance”: Why He Wanted To Know As Little About Torture As Possible
It’s happening more than 10 years too late (and in a better world it wouldn’t need to happen at all), but now that the Senate Intelligence Committee has released its so-called torture report, the American people are finally having an informed debate over their government’s use of “enhanced interrogation” during the presidency of George W. Bush. The process is not always pretty — at times, in fact, it is downright chilling. But now that we know some of the harrowing details of what was done in our name, it’ll be easier for us Americans to step a bit closer to the mirror and see what we’ve become. As Glenn Greenwald put it earlier this week, “Everybody’s noses got rubbed in [the torture program] by this report.”
Still, the human brain has an awesome capacity to reject information it finds upsetting — like proof that one’s leaders embraced practices refined by the Bolsheviks and the Gestapo. At least that’s my explanation for why some people would rather talk about alleged partisanship than “rectal rehydration.” Or why there’s been increasing focus on the question of whether the CIA “misled” President Bush about the effectiveness of the program, as well as its essential nature. The whining from conservatives over the Committee not interviewing CIA agents is a red herring, of course (as Chris Hayes has noted, arguments about process are almost uniformly disingenuous). But I think the chatter about Bush the Younger really being Bush the Clueless gets to something deeper.
Before we get into that, though, let’s lay out the basic thrust of the Bush-as-patsy narrative. The key data point for the argument, which the report’s authors say is based on the CIA’s own records, is the fact that Bush wasn’t officially briefed on the agency’s use of waterboarding until 2006. By that point, CIA agents had been subjecting “more than three dozen prisoners” to a series of “near drownings” for years. The report also found that when the president was told of some of the program’s details — specifically, the practice of chaining alleged “evildoers” to the ceiling and forcing them to soil themselves — he “expressed discomfort.” He was, after all, the ultimate compassionate conservative.
Admittedly, there’s much in this formulation that’s seductive, confirming as it does a few widely held beliefs about Bush and his administration. For one thing, it jibes perfectly with the trope that depicts Bush as little more than a figurehead, the emptiest of suits. For another, because the torture program has been so vociferously defended by the former vice president, the story also seems to confirm the related suspicion that, for most of the Bush era, Dick Cheney was the real president. Last but not least, the idea that Bush was kept in the dark (not literally; that was reserved for detainees) lines up with another popular Bush motif: that he was, at least for a commander-in-chief, a “regular guy,” just like us, and not a sadistic authoritarian.
To paraphrase CIA Director John Brennan’s remarks this week, what Bush knew and when he knew it is “unknowable” to the rest of us. And to some extent, depending on how much “discomfort” he feels over being a war criminal, it may not even be knowable to him. All the same, there are a few signs that the Bush-as-patsy explanation is a little too pat. And there are historical reasons to believe that he not only knew enough to be culpable, but that he purposefully avoided finding out more than the bare minimum of what he needed. As Andrew Sullivan put it recently, there was “a desire not to know, not to have direct and explicit knowledge of what was actually being done, because of the immense gravity of the crimes.”
The first, most obvious, reason to question whether Bush really knew so little is the fact that in “Decision Points,” his listicle-cum-memoir, he claims to have directly given the thumbs-up in 2002 when the CIA asked if Abu Zubaydah, a high-ranking al-Qaeda detainee, could be waterboarded. “I thought about the 2,971 people stolen from their families by al Qaeda on 9/11,” Bush writes. “And I thought about my duty to protect my country from another act of terror.” After so judiciously weighing his duty to protect Americans from harm (which up to that point he hadn’t done so well) against his obligation not to be a war criminal, Bush came to his conclusion: “’Damn right,’ I said.”
Of course, just because Bush had his ghostwriter Christopher Michel include this anecdote in his book doesn’t make it true. As a New York Times article on Bush’s response to allegedly being misled suggests, it’s quite possible that Bush is lying about giving the go-ahead to torture Zubaydah in order to shield the CIA — as well as to mitigate his embarrassment. “I suspect,” Sullivan writes in the post I mentioned previously, “Bush decided that, in his book, he had a duty to provide cover for the people who worked for him.” But even if you reject that explanation, there’s still good reason to doubt Bush was on the periphery — or, to be more precise, he was more marginalized than he may have wanted.
That reason has a name: Richard Bruce Cheney, also known as the United States’ most powerful vice president. The theory here isn’t that Cheney was doing a whole lot of dirty work behind Bush’s back, but rather that he had taken the gloves off with the tacit encouragement and approval of the president. As Cheney-watchers — especially the Washington Post’s Barton Gellman and former Cheney co-worker John Dean — have noted, Cheney’s experience in the Nixon administration during its final days did not lead him to the same conclusion as most of us, that an unchecked president is dangerous for American democracy, but instead to conclude that Watergate was proof that if you’re going to break the law, you’d better do it in a way that insulates the president. And as Greenwald noted in my interview with him this week, and historian Sean Wilentz wrote about in a 2007 New York Times op-ed, Cheney reached a similar conclusion after Iran-Contra (which, like Watergate, he believed to be a power grab by Democrats).
Plausible deniability, in other words, is the key phrase to understand what Bush “knew” about the global network of torture chambers and dungeons that will stand as one of the most enduring legacies of his tenure as president. And I suppose in a bitter, depressing way, that’s all too fitting. Because while Bush is the American who bears the most responsibility for the evil unleashed by the United States in the wake of 9/11, the truth is that all of American society let fear and panic overwhelm its values and senses; all of American society was desperately willing to believe that impossible promise: that it had nothing to fear. And when the true costs of its panic and its terror began to float to the surface, all of American society was content to ask no further questions, and to look the other way.
By: Elias Isquith, Salon, December 13, 2014
“In The Wrong Line Of Work”: Justice Scalia’s Unfortunate Entry Into The Torture Debate
When it comes to the issue of torture, it’s been a discouraging week. Not only was the Senate Intelligence Committee report a heartbreaking indictment of an American scandal, but the argument surrounding the revelations started breaking far too much along partisan and ideological lines.
Antonin Scalia isn’t helping. The Associated Press reported today that the far-right Supreme Court justice joined the debate, such as it is, “by saying it is difficult to rule out the use of extreme measures to extract information if millions of lives were threatened.”
Scalia tells a Swiss radio network that American and European liberals who say such tactics may never be used are being self-righteous.
The 78-year-old justice says he doesn’t “think it’s so clear at all,” especially if interrogators were trying to find a ticking nuclear bomb.
Scalia says nothing in the Constitution appears to prohibit harsh treatment of suspected terrorists.
The interview took place at the court on Wednesday, the day after the release of the Senate report detailing the CIA’s harsh interrogation of suspected terrorists. Radio Television Suisse aired the interview on Friday.
I think some caution is probably in order. The AP ran a five-paragraph article, and it seems entirely plausible, but there’s exactly one, six-word quote in that piece. Everything else is a paraphrase, and to offer a detailed response to Scalia’s take, we’d need to know exactly what the justice argued.
That said, if the AP report is accurate, Scalia’s perspective is deeply ridiculous.
For one thing, opposition to torture need not be the result of self-righteousness. Brutally abusing prisoners is about humanity, basic decency, and the existence of a moral compass. For another, the “ticking bomb” argument is childish and unserious.
As for the Constitution, it’s true that the document is silent on the issue of treating suspected terrorists, but it’s not silent on “cruel and unusual punishment.” And according to the CIA’s records, rectal feeding and hydration were forced on detainees without medical need – and the leap from that point to “cruel and unusual” seems quite small.
I’d still like to see a more detailed transcript of Scalia’s comments, but let’s just make this plain as part of the larger conversation: torture is wrong, it’s immoral, it undermines our security interests, and it’s illegal.
If Scalia is prepared to publicly argue otherwise, he’s in the wrong line of work.
By: Steve Benen, The Maddow Blog, December 12, 2014
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