April 27, 2008

Pulling Away the Veil of Euphemism

In Gitmo's Not Going Anywhere, I wrote about the reasons that the Guantanamo Bay prison camp remains operational, despite near-universal condemnation. Because the impact of "stress positions" on the people forced to endure them is greatly reduced when their description is only verbal, I also posted a video from Amnesty International's Unsubscribe Me campaign that depicted visually just how brutal "being forced into an uncomfortable posture" actually is.

Now, with recent confirmation that United States torture policy was not only formulated but actively managed at the highest levels of the executive branch and approved by President Bush, Unsubscribe Me has done for waterboarding what they did for stress positions. Watch it below, and if you don't believe waterboarding - which the C.I.A. has admitted using - is torture afterwards, read this article by a former Master Instructor and Chief of Training at the U.S. Navy Survival, Evasion, Resistance and Escape (SERE) School. It is time to pull away the veil of euphemism that brands what is shown in the video as "harsh interrogation techniques" rather than what it is: torture by Americans.

April 23, 2008

Holding the Media Accountable

Tuesday's Democratic primary in Pennsylvania did not determine whether Barack Obama or Hillary Clinton will claim their party's nomination. When a clear winner does finally emerge - and in all likelihood it will not be until the convention in August - one of the more interesting (and potentially frustrating) questions will be what kind of press coverage the presidential contest receives in the run-up to November. Current reporting is largely dominated by Senators Clinton and Obama, but as journalists move to compare the Democratic and Republican nominees, early indications are that the quality of said reporting is in serious doubt unless the public keeps pressure on the media to both exhibit an even hand and focus on the issues that matter.

To date, for instance, Senator McCain has enjoyed coverage that is difficult to describe as anything other than "extremely friendly." He is routinely portrayed as a straight-talking maverick foreign policy expert with a reputation seemingly unassailable, no matter how many times he misstates the relationship of Sunni Muslim al-Qaeda to Shi'ite Muslim Iran or makes claims about the economy that are demonstrably untrue (see video below). The fact that Mr. McCain divorced his first wife after she suffered serious injury in a car accident in order to marry his current, extremely wealthy spouse - with whom he had been carrying on an extramarital affair - or that he was at the very center of the Lincoln Savings & Loan scandal hasn't seemed to matter. While new developments about Senator McCain's apparent influence peddling continue to be unearthed, Senator Obama in particular has had to deal with insipid "issues" like his bowling score and use of the word "bitter" to describe some voters in Pennsylvania.

Likewise, the Arizona senator's pandering to religious extremists John Hagee and Jerry Falwell goes unchallenged - as does the fact that his supposed anti-lobbyist stance is clearly at odds with both past actions and the staffing of his campaign - but his counterpart from Illinois has been forced to repeatedly address a relationship with firebrand preacher Jeremiah Wright (who is, by the way, a former Marine) and the fact that he has met ex-Weather Underground bomber William Ayers a couple of times in passing. Mr. McCain's longstanding, cozy relationship with the press establishment - extending even to a barbecue for reporters at his house that clearly swayed stories about him - has to date been unshakeable.

Even with a tradition of tabloid coverage that saw 2004 candidate John Kerry mocked for windsurfing and 2000 contender Al Gore falsely smeared as a serial exaggerator who claimed to have invented the internet, the degree to which Democrats have been peppered during this election cycle with nonsense "gotchas" like Sniperfiregate and Lapelpingate and other infuriating wastes of journalistic energy has been exceptional. Nothing better exemplifies the press's obsession with the trivial and the meaningless than ABC News' widely derided presidential debate last week, in which no policy issues at all were discussed during the first 53 minutes of what became a two-hour tribute to the lowest common denominator. But with close to 20,000 comments on its debate blog page excoriating the network for this abysmal performance, as well as more than one open letter to the moderators, there are mildly encouraging signs that the public is both more aware and increasingly intolerant of bias and substandard coverage.

While there are certainly things about which to criticize Mrs. Clinton and Mr. Obama, the presence or absence of American flag pins on a candidate's lapel (Mr. McCain is often seen without one as well, but that fact has yet to be made controversial) clearly falls into the realm of the absurd. Likewise, Senator McCain might grill a mean rack of ribs, but the fact that his proposed tax plan would result in even more massive deficits than under President Bush; that, as a life-long recipient of government insurance, he has shown himself to be woefully out of touch with the health care concerns of most Americans; or that there is substantial evidence that he is tempermentally unsuited for the presidency, should be kept in mind - along with everything else mentioned above - whenever encountering stories about the "straight-talking maverick" from Arizona. Now more than ever, it is incredibly clear that the press cannot be taken at face value, and that single-sourcing of one's election year political information is a recipe for disaster.

What remains to be seen is whether, once the run for the White House is whittled down to two candidates, mainstream media outlets will respond to market demand, or continue the outright collusion with the current rightwing power structure that began with Newt Gingrich and George W. Bush. Although past performance cannot reliably forecast future results, it is the only remotely predictive input available to us, and unfortunately, it strongly suggests continued imbalance in the coverage that will be "enjoyed" by the eventual nominees. With that in mind, it will be more important than ever to be vigilant in holding news outlets accountable for the way they report (or fail to report) on important issues, and it will be even more crucial for Americans - who have a very spotty history in this regard - to actively seek out and learn what they need to know.

Who can tell? Maybe the country has been beaten down and pushed around enough in the last eight years to make it happen. One can only hope...

April 20, 2008

Busy, Busy, Busy

Just a quick note to say that posting will be on the shorter side this week, as I have a full plate at work and some traveling to do on Friday. More to come...

April 18, 2008

A King Crowned By Our Inaction

As described in How We Became Torturers, ABC News reported last week that the National Security Council Principals Committee, a group of President Bush's senior advisers made up at that time of Vice President Cheney, former National Security Advisor (and current Secretary of State) Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former C.I.A. Director George Tenet and former Attorney General John Ashcroft, were directly and explicitly involved in decisions to interrogate prisoners in American captivity using methods legally defined as torture. Two days later, the other shoe dropped, with the president admitting he was aware of what his team was doing: "Well, we started to connect the dots in order to protect the American people. And yes, I'm aware our national security team met on this issue. And I approved."

To date, no one has reacted to any of this on Capitol Hill, and with the involvement of the executive branch evidently so widespread and so thoroughly corrupt, there is no better time to renew focus on a letter the American Civil Liberties Union (A.C.L.U.) sent Congress last December. In it, the A.C.L.U. lays out ten reasons that a special prosecutor must be appointed to investigate White House involvement in torture policy. (Highlights are below; the entire letter can be read here, and if you'd like to make your voice heard on this matter, you can do so here.)

Mr. Bush and his employees clearly cannot be entrusted to police themselves, and the consequences of failing to act are, essentially, to affirm the president's apparent belief that legal constraints do not apply to him. The only difference between a king and a president is that the latter is accountable to the law; if George W. Bush and the people who work for him are not held accountable for their actions - or determined to be innocent of wrong-doing despite mounting evidence - then we are betraying every principile on which the United States was founded, and crowning a monarch through our inaction.

REASON 1: There Is Credible Evidence of Numerous Federal Crimes
There is credible evidence of unpunished federal crimes ranging from obstruction of justice to homicide. Although the current focus of congressional inquiry is on why the C.I.A. destroyed videotapes of interrogations, which reportedly included the filming of detainees being waterboarded and subjected to other interrogation tactics, there is credible evidence of numerous other crimes that have not resulted in any indictments.

REASON 2: Attempts to Shield Government Officials from Criminal Prosecution Were Pursued by the White House, Including by the President and Vice President
From the very start of the torture program, the White House - including the President and Vice President themselves - has had a central role in trying to shield government officials from criminal prosecution. Only an independent prosecutor can avoid all conflicts of interest in investigating, and if appropriate prosecuting, any persons within the White House who committed any crimes.

REASON 3: Attorney General Mukasey Still Refuses to Say Whether Waterboarding and Other Forms of Torture Are Illegal
The Justice Department cannot fully and fairly investigate and prosecute any matter related to the torture and abuse of detainees, as long as Attorney General cannot state what acts constitute torture or abuse. Any investigation or eventual prosecution will be affected by whether the Justice Department believes that the videotape depicted legal conduct or criminal conduct. Destruction of videotapes depicting criminal conduct is a far more serious matter than destruction of videotapes depicting legal conduct - but Attorney General Mukasey does not seem to know the difference between what is legal and what is criminal.

REASON 4: The Current Head of the Criminal Division Was in Meetings on Interrogations
The Justice Department’s litigating division for criminal prosecutions is headed by a person who has at least the appearance of a conflict of interest. In the absence of an appointed independent prosecutor, all prosecutorial authority for violations of federal criminal law is concentrated in the Criminal Division of the Justice Department and the individual U.S. Attorney offices. The current head of the Criminal Division is Assistant Attorney General Alice Fisher.

REASON 5: The Past Head of the Criminal Division Reportedly Advised on Interrogation Practices, Possibly Including the Interrogation of Abu Zubaydah
The past head of the Criminal Division, Michael Chertoff, also had a significant role in the development of the torture program, which raises further concerns about the conflict of interest for the Justice Department to investigate and prosecute crimes related to interrogations. Specifically, during his confirmation hearing for the position of Secretary of Homeland Security, Chertoff testified that, while Assistant Attorney General for the Criminal Division, he counseled “intelligence officials” on applying the Anti-Torture Act and the August 1, 2002 Office of Legal Counsel torture memorandum. He testified that he provided advice on possible criminal liability under the Anti-Torture Act.

REASON 6: The Justice Department Wrote the Legal Opinions Authorizing Torture
The Office of Legal Counsel of the Justice Department wrote several legal opinions interpreting the Anti-Torture Act, stating the legality of specific interrogation tactics, and interpreting recent statutory protections against torture and abuse essentially as not changing its earlier conclusions. One opinion, the August 1, 2002 memorandum interpreting the Anti-Torture Act was eventually withdrawn and replaced. However, the status and the content of the other memoranda have not been disclosed. In fact, the Justice Department has refused even to let members of the Senate and House Judiciary Committees - which have oversight over the Justice Department - review the memoranda in secret.

REASON 7: The Justice Department Has Failed to Bring Any Indictments Based on Twenty C.I.A. and D.O.D. Referrals of Possible Crimes by Civilians
The Justice Department has prosecuted only one civilian for torture or abuse. On June 24, 2004, then-Attorney General John Ashcroft announced the indictment by a federal prosecutor in North Carolina of civilian contractor David Passaro for assault, and also said that he was transferring all other referrals of alleged civilian crimes of torture or abuse to the U.S. Attorney for the Eastern District of Virginia. The Justice Department subsequently wrote to Senator Dick Durbin that it received twenty referrals from the Defense Department and the C.I.A. Inspector General. The New York Times reported on October 23, 2005 that at least two of these referrals involved deaths related to the interrogations. Nearly three and one-half years after those twenty referrals were made, Passaro remains the only civilian indicted for any torture or abuse crime. Only an independent prosecutor can determine whether the Justice Department made the correct decision in all of those cases, and only an independent prosecutor can be trusted to fully and fairly investigate, and if appropriate, prosecute any other civilians.

REASON 8: Military Prosecutors Have Not Gone Up the Chain of Command
Although a few low-ranking enlisted men and women have been charged and convicted under the Uniform Code of Military Justice for their roles in the use of torture or abuse against detainees, few officers have been charged and even fewer convicted. Despite substantial evidence of top military officers having knowledge of torture and abuse, or having approved illegal tactics, none of these officers have been charged. Only an independent prosecutor could assess whether the lack of prosecutions reflects the weight of available evidence.

REASON 9: Further Delay in Criminal Investigations Could Put Some Crimes Outside the Statutes of Limitation
Further delay in commencing a full and fair criminal investigation of torture and abuse could jeopardize prosecutions by missing applicable statutes of limitation. The federal government began the systematic use of torture and abuse roughly six years ago and, based on documents that we have obtained through the A.C.L.U. F.O.I.A. litigation, its use appeared to escalate at least through the exposure of the torture at Abu Ghraib more than three and one-half years ago. Other acts of torture and abuse have been more recent, the destruction of the videotapes reportedly was in late 2005, and statements made to courts regarding the videotapes have been even more recent.

REASON 10: Congress and the Agencies Have Failed in Holding Torture Perpetrators Accountable
More than three and one-half years after the horrors of Abu Ghraib were exposed, America is hardly any closer to holding the torture perpetrators accountable than on the day that the photos were first shown. Despite several congressional oversight hearings, requests from members of Congress, numerous government inquiries, and litigation under the Freedom of Information Act, the public still does not even have the complete picture on the causes and scope of the abuse.

April 14, 2008

Uncle Stupid

Raw Story is reporting today that confronting Iran is now the Bush Administration's reason-du-jour for America's continued presence in Iraq, shuffling forward from a crowded field of fallen justifications to replace "weapons of mass destruction," "fighting terrorism" and "installing democracy." As U.S. rhetoric for taking on Iran (unbelievably) increases, Jeff Danziger delivers what is about the pithiest summation of our current relationship with Iraq that I've seen to date:

April 11, 2008

How We Became Torturers

Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture... The definition of torture, as set out in the 1984 Convention, ... is binding on 145 countries, including the United States. Torture includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”
Finally, FINALLY, with the release of the John Yoo torture memo (see A Gulag By Any Other Name), the mainstream press has begun to explore the idea that the ludicrous "just a few bad apples in the enlisted ranks" explanation for the disgraces of Abu Ghraib, Bagram Air Force Base and Guantanamo Bay might not be plausible. ABC News ran a piece on Wednesday that directly ties the National Security Council Principals Committee, a group of the president's senior advisers made up at that time of Vice President Cheney, former National Security Advisor Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former C.I.A. Director George Tenet and former Attorney General John Ashcroft, to interrogation of prisoners in American captivity using methods legally defined as torture.

According to the report, interrogators appear to have known they were skating on the thinnest ice, repeatedly asking for explicit approval from the Principals for the use of torture in an effort to ensure their protection from later prosecution. Tellingly, members of the Committee - or at least Mr. Ashcroft - also seemed aware that they had crossed the line, with the one-time A.G. asking, "Why are we talking about this [approval of torture during interrogation] in the White House? History will not judge this kindly."

I don't agree with John Ashcroft on much, but he unquestionably nailed that one.

While the ABC story is upsetting enough, Philippe Sands' examination in Vanity Fair of the manner in which torture came to be United States policy is downright chilling and profoundly disturbing in its detailed and damning presentation of the machinations involved. Because it is somewhat lengthy - at least in internet terms - I am providing key excerpts below (which are still lengthy, but at least less so). In my opinion, however, this is must-read material, and I urge you in the strongest possible terms to take in every word of the original story. Mr. Sands concludes his article by positing that, for all their apparent invulnerability within the borders of the United States, the authors and perpetrators of American torture policy and the Bush Administration's institutionalized disregard for global standards of human rights, may one day be pursued by international investigators and prosecuted for the war crimes they have committed.

One can only hope.

Excerpted from "The Green Light" by Philippe Sands (Vanity Fair, May 2008)
The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantanamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantanamo?

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration - by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees - lawyers - who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantanamo began, and how it spread.
The authorized version [of the Bush Administration justification for torture] had four basic parts... First, the administration had moved reasonably - with care and deliberation, and always within the limits of the law. In February 2002 the president had determined, in accordance with established legal principles, that none of the detainees at Guantanamo could rely on any of the protections granted by Geneva, even Common Article 3... The second element of the administration’s narrative dealt with the specific source of the new interrogation techniques... The administration pointed to the military commander at Guantanamo, Major General Michael E. Dunlavey... The third element of the administration’s account concerned the legal justification for the new interrogation techniques. This, too, the administration said, had originated in Guantanamo... The fourth and final element of the administration’s official narrative was to make clear that decisions relating to Guantanamo had no bearing on events at Abu Ghraib and elsewhere. Gonzales [former White House Counsel and Attorney General Alberto Gonzales] wanted to “set the record straight” about this. The administration’s actions were inconsistent with torture. The abuses at Abu Ghraib were unauthorized and unconnected to the administration’s policies.
The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib.
[Former Under Secretary of Defense for Policy] Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law... Those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse...To uphold Geneva’s protections, [he posited,] you might have to cast them aside.

But that way of thinking didn’t square with the Geneva system itself, which was based on two principles: combatants who behaved according to its standards received P.O.W. status and special protections, and everyone else received the more limited but still significant protections of Common Article 3.
... How had the administration gone from a commitment to Geneva... to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3 - but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.
... The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law... and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers [then-Chairman of the Joint Chiefs of Staff General Richard Myers] continued to believe Geneva’s protections remained in force - he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.
“This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.” Feith, for his part, had told me that he knew nothing about any specific interrogation issues until the Haynes Memo [a document written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense at the time, authorizing specific "enhanced interrogation techniques"] suddenly landed on his desk. But that couldn’t be right - in the memo itself Haynes had written, “I have discussed this with the Deputy, Doug Feith and General Myers.” I read the sentence aloud. Feith looked at me. His only response was to tell me that I had mispronounced his name. “It’s Fythe,” he said. “Not Faith.”
The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it - they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Qahtani. [Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker.] If they did, then the administration’s official narrative - that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the “aggressive major general” and his staff lawyer - becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo.
Not everyone at Guantanamo was enthusiastic. The F.B.I. and the Naval Criminal Investigative Service (N.C.I.S.) refused to be associated with aggressive interrogation. They opposed the techniques. One of the N.C.I.S. psychologists, Mike Gelles, knew about the brainstorming sessions but stayed away. He was dismissive of the administration’s contention that the techniques trickled up on their own from Guantanamo. “That’s not accurate,” he said flatly. “This was not done by a bunch of people down in Gitmo - no way.”

That view is buttressed by a key event that has received virtually no attention. On September 25 [2002], as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantanamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of al-Qahtani. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.”

... Do “whatever needed to be done.” That was a green light from the very top - the lawyers for Bush, Cheney, Rumsfeld, and the C.I.A. The administration’s version of events - that it became involved in the Guantanamo interrogations only in November, after receiving a list of techniques out of the blue from the “aggressive major general” - was demonstrably false... The common theme was that the techniques were fine “so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm.” That is to say, the techniques are legal if the motivation is pure. National security justifies anything.
When we spoke, Myers confessed to being troubled that normal procedures had been circumvented. He held the Haynes Memo in his hands, looking carefully at the sheet of paper as if seeing it clearly for the first time. He pointed: “You don’t see my initials on this.” Normally he would have initialed a memo to indicate approval, but there was no confirmation that Myers had seen the memo or formally signed off on it before it went to Rumsfeld. “You just see I’ve ‘discussed’ it,” he said, noting a sentence to that effect in the memo itself. “This was not the way this should have come about.” Thinking back, he recalled the “intrigue” that was going on, intrigue “that I wasn’t aware of, and Jane [Jane Dalton, counsel to General Myers] wasn’t aware of, that was probably occurring between Jim Haynes, White House general counsel, and Justice.”

Further confirmation that the Haynes Memo got special handling comes from a former Pentagon official, who told me that Lieutenant General Bantz Craddock, Rumsfeld’s senior military assistant, noticed that it was missing a buck slip, an essential component that shows a document’s circulation path, and which everyone was supposed to initial. The Haynes Memo had no “legal chop,” or signature, from the general counsel’s office. It went back to Haynes, who later signed off with a note that said simply, “Good to go.”
Mike Gelles, of the N.C.I.S., had shared with me his fear that the al-Qahtani techniques would not simply fade into history - that they would turn out to have been horribly contagious. This “migration” theory was controversial, because it potentially extended the responsibility of those who authorized the Guantanamo techniques to abusive practices elsewhere. John Yoo has described the migration theory as “an exercise in hyperbole and partisan smear.” ... [However] three different official investigations in the space of three years have confirmed the migration theory. The August 2006 report of the Pentagon’s inspector general concluded unequivocally that techniques from Guantanamo had indeed found their way to Iraq. An investigation overseen by former Secretary of Defense James R. Schlesinger determined that “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”
As the consequences of Hamdan [Hamdan v. Rumsfeld, a U.S. Supreme Court decision overturning the military commissions system implemented by the Bush Administration to try prisoners held at Guantanamo Bay] sank in, the instinct for self-preservation asserted itself. The lawyers got busy. Within four months President Bush signed into law the Military Commissions Act. This created a new legal defense against lawsuits for misconduct arising from the “detention and interrogation of aliens” between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Signing the bill on October 17, 2006, President Bush explained that it provided “legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs.” ... In a word, the interrogators and their superiors were granted immunity from prosecution. Some of the lawyers who contributed to this legislation were immunizing themselves. The hitch, and it is a big one, is that the immunity is good only within the borders of the United States.
The Altstötter case had been prosecuted by the Allies to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes. Sixteen lawyers appeared as defendants. The scale of the Nazi atrocities makes any factual comparison with Guantanamo absurd, a point made to me by Douglas Feith, and with which I agree. But I wasn’t interested in drawing a facile comparison between historical episodes. I wanted to know more about the underlying principle.
Mohammed al-Qahtani is among the first six detainees scheduled to go on trial for complicity in the 9/11 attacks; the Bush administration has announced that it will seek the death penalty. Last month, President Bush vetoed a bill that would have outlawed the use by the C.I.A. of the techniques set out in the Haynes Memo and used on al-Qahtani. Whatever he may have done, Mohammed al-Qahtani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantanamo, and they were supported by legal advice from the president’s own circle.

Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.

It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999 - in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes - and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantanamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country - one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantanamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

April 7, 2008

Economic Data Versus Economic Opinion

As the economy continues its slide into recession, some interesting data has popped up recently that's both edifying and food for thought.

On March 14th, President Bush spoke about the economy, but while he conceded that "times are tough," he also focused on the extension of his tax cuts for the wealthy - due to expire in 2010 - as the sole remedy for the country's doldrums. He reiterated his "optimism" and declared that the "foundation is strong," touting the trends in the metrics for employment, wages, productivity, exports and the federal deficit as proof. On March 16th, the New York Times debunked Mr. Bush's claims, point by point:
Mr. Bush boasted about 52 consecutive months of job growth during his presidency. What matters is the magnitude of growth, not ticks on a calendar. The economic expansion under Mr. Bush — which it is safe to assume is now over — produced job growth of 4.2 percent. That is the worst performance over a business cycle since the government started keeping track in 1945.

Mr. Bush also talked approvingly of the recent unemployment rate of 4.8 percent. A low rate is good news when it indicates a robust job market. The unemployment rate ticked down last month because hundreds of thousands of people dropped out of the work force altogether. Worse, long-term unemployment, of six months or more, hit 17.5 percent. We’d expect that in the depths of a recession. It is unprecedented at the onset of one.

Mr. Bush was wrong to say wages are rising. On Friday morning, the day he spoke, the government reported that wages failed to outpace inflation in February, for the fifth straight month. Productivity growth has also weakened markedly in the past two years, a harbinger of a lower overall standard of living for Americans.

Exports have surged of late, but largely on the back of a falling dollar. The weaker dollar makes American exports cheaper, but it also pushes up oil prices. Potentially far more serious, a weakening dollar also reduces the Federal Reserve’s flexibility to steady the economy.

Finally, Mr. Bush’s focus on the size of the federal budget deficit ignores that annual government borrowing comes on top of existing debt. Publicly held federal debt will be up by a stunning 76 percent by the end of his presidency. Paying back the money means less to spend on everything else for a very long time.
Which brings us to the food for thought.

Harvard University professor Dani Rodrik recently published on his blog a very interesting graph (at left - click for full size) from an upcoming book by Princeton economist Larry Bartels, and the data it describes is truly arresting. In summary, it shows that U.S. income growth - measured in dollars adjusted for inflation - is not only more progressive (i.e. more real purchasing power accrues to poorer segments of the population) but higher for everyone during Democratic presidencies than during Republican ones. This might be a common opinion for many who have lived through the Reagan or either of the Bush administrations, but this is no recent trend; it is true going all the way back to 1948.

It is important to point out that correlation does not equal causation - that just because two sets of data move together doesn't mean that one is the motivating factor for the other - but Professor Rodrik makes the following important point:
Bartels shows in his book that this difference is not a statistical artifact or a fluke. It is not the result of Democrats coming to power during better economic times, or of Republicans reining in the unsustainable excesses of Democratic administrations they replace. (It turns out that the same pattern prevails even when a Republican president is succeeded by another Republican.) These numbers are real and they are the outcome of partisan differences in policy. So if you are one of those who have bought the story that income distribution is the result of pure market forces and technological changes, with politics playing no role - think again.
There are, to be fair, literally millions of tiny acts of causation within the broad framework of political and economic policy that must combine to produce the results in Professor Bartel's graph. It is difficult, therefore, to make the case that any one person - the president for instance - has the power to directly create the outcomes depicted, but there is undoubtedly something going on here. It may be that underlying causation rests in the tone of the leadership, decisions and general character of each administration - which then ripple out to touch all aspects of the ecnomy - but there is no question that the output is clear, because while everyone is entitled to his own opinion, everyone is not entitled to his own data. And the data speaks for itself.

April 3, 2008

A Gulag By Any Other Name

Earlier this week, the American Civil Liberties Union (A.C.L.U.) successfully sued the federal government under the Freedom of Information Act (F.O.I.A.) for the release of numerous documents regarding the Bush Administration's approach to torture. Among those documents was a memorandum (part one is here; part two is here) from then-Deputy Attorney General John Yoo, the worst constituional law professor in the country, that outlined this approach, and which made the ridiculous claim that the laws of the United States do not apply to the President and the executive branch:
If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.
By coincidence, just days earlier, 60 Minutes profiled Murat Kurnaz, a German of Turkish descent who was swept up by Pakistani security forces in the months immediately after 9/11, and the world got to meet a man whose fate was a direct product of John Yoo's policy advice.

Traveling through Pakistan to study Islam in preparation for marriage to a bride who was more strictly religious than himself, Mr. Kurnaz was labeled a suspected terrorist, and sold to the U.S. military for a $3000 bounty. He then spent two months in a secret American facility in Afghanistan before being sent to the prison camp at Guantanamo Bay, Cuba. Despite the fact that official documents show U.S. and German authorities had determined as early as 2002 that he was innocent, he endured five years of interrogation, abuse and torture, and he was only released in 2006 because of a personal plea by German Chancellor Angela Merkel to President George W. Bush.

Murat Kurnaz has just published a memoir of his imprisonment and torture by the United States entitled Five Years of My Life: An Innocent Man in Guantanamo, and conducted an interview with Amnesty International about his experiences . In the latter - as well as in the 60 Minutes video, below - the interviewers note the reserved and outwardly calm demeanor of their subject, and Mr. Kurnaz describes his release this way:
I embraced my mother. She was crying, and I embraced her until she stopped... Everybody cried. I did not. I do not know if I can still cry. Perhaps I forgot how to cry in Cuba... On the journey to Bremen we stopped at a car park. I got out to breathe in the air. And I looked up above. I realized that it was the first time in five years that I could look up at the sky and see the stars. Then it became clear to me what had been taken away from me.
Done supposedly to "keep us safe," what was inflicted on Murat Kurnaz's is - to put it mildly - a complete outrage, only made worse by the rhetoric of "freedom" endlessly repeated by the White House until it has lost all meaning. In 2005, Amnesty International called the Guantanamo Bay camp "the gulag of our times," spawning blustery outrage from sources like the editorial board of The Washington Post:

Worrying about the use of a word may seem like mere semantics, but it is not. Turning a report on prisoner detention into another excuse for Bush-bashing or America-bashing undermines Amnesty's legitimate criticisms of U.S. policies and weakens the force of its investigations of prison systems in closed societies. It also gives the administration another excuse to dismiss valid objections to its policies as "hysterical."

The Soviet gulags, however, while dwarfing the facility at Guantanamo Bay in scale and characterized by forced labor, were unquestionably built to deny their inhabitants basic human rights without due process, and they offered an environment that was tailor-made for the abuse of prisoners, both systematically and incidentally. As noted by historian Kate Brown in a 2006 article in Harper's:
Indeed, American editorialists grounded their rejection of the Gulag metaphor in numbers. Soviet officials routed millions through the Gulag over several decades (3.7 million according to archival records). In the American case, we are talking about a mere 500 prisoners in Guantanamo, and roughly 30,000 in U.S. detention centers in Iraq. Human Rights Watch estimates that 50,000 people are currently held in domestic prisons without charges. It is undoubtedly true that the torture of tens of thousands is better than the torture of millions. But this defense becomes rather weak, not only if one believes in universal civil liberties and human rights, but also if one considers history.
Perhaps one day Murat Kurnaz will be given the opportunity to have John Yoo and The Washington Post explain why what he endured didn't happen at a gulag, and why he - and we - shouldn't bash President Bush or the America that continues to tolerate the existence of the Guantanamo Bay prison camp. That's unlikely however, because despite his release and the complete dearth of evidence against him, Mr. Kurnaz is still a declared "unlawful enemy combatant," and cannot travel to the United States.