Archive for October 5th, 2007

Editorial: Personality disorder discharges save money, sacrifice soldiers

I have reported previously on the military’s use of personality disorder diagnoses to deny claims from disabled soldiers who served years before their “preexisting” diagnosis was “discovered.” The Anchorage Daily News has editorialized against this disgusting practice:

This is betrayal
Personality disorder discharges save money, sacrifice soldiers

(Published: October 2, 2007)

Let’s put ourselves in these shoes for a moment, if we can:

You’ve honorably served in the Army for seven years. You’ve won commendations. You re-enlisted after your first hitch. You’re in Ramadi, Iraq, in 2004 when a rocket hits the building you’re in and leaves you unconscious in rubble. Eventually doctors pull shrapnel from your neck and ear canals. You lose 75 percent of your hearing, suffer depression and nightmares.

You try to kill yourself by dropping a hair dryer in your bath water. The dryer short-circuits. You seek medical help at your Army post.

Eventually, the Army discharges you because you had a “pre-existing personality disorder” before you joined the service.

And what does that mean?

• You can’t get disability pay. That requires a medical board evaluation, and a soldier who signs a personality disorder discharge gets no medical board.

• You can’t get VA medical care — you can’t be treated for post-traumatic stress syndrome — because the VA treats only those wounds and conditions suffered in service. “Pre-existing condition” is the Pentagon’s way of saying the Ramadi rocket had nothing to do with the soldier’s troubles.

• You must pay back part of your re-enlistment bonus for the time you won’t serve because of the personality-disorder discharge.

All of this happened to former Spc. Jon Town of Findlay, Ohio. This spring and summer, with reports in The Nation and ABC News, Mr. Town became a symbol for veterans groups, because he’s not alone.

The military has mustered out about 22,000 service people in the last six years with personality-disorder discharges. It appears that a lot of them were flat-out bogus, as in the case of Mr. Town, or at least contestable.

There’s a gut-reaction word for what happened to Mr. Town, but we can’t use it in a family newspaper.

Why are the services doing this?

Money.

The departments of Defense and Veterans Affairs save money if they don’t have to pay benefits.

God almighty, let us take a deep breath.

A bipartisan group of senators led by Barack Obama of Illinois and Christopher Bond of Missouri has introduced a provision in the defense bill to stop the personality-disorder discharges pending investigations by the General Accountability Office (the GAO already is looking into the practice at Fort Carson, Kan.) and impose tougher standards and limits on such discharges.

Good for the senators.

Where’s the commander in chief? A few words from the White House lawn — strong words, Mr. President, leader’s words — would go far to end this kind of nonsense.

Some personality-disorder discharges are no doubt valid, and those no longer able to function in a theater of war shouldn’t be there. But any soldier who has served in Iraq or Afghanistan should get the benefit of the doubt. Soldiers subject to personality-disorder discharges must be fully informed of their rights and all the consequences of such a discharge before signing one.

You don’t have to be a psychiatrist or a soldier to understand that rockets, IEDs and sniper rounds are not pre-existing conditions. One god-awful argument to justify personality-disorder discharges was that dormant pre-existing conditions surface under the stress of combat; hence such soldiers don’t qualify for treatment of post traumatic stress disorder.

In response, we refer to that word we can’t print in a family newspaper.

The United States has a solemn obligation to those among us who were asked to wage war in Iraq and Afghanistan. Let’s keep it.

BOTTOM LINE: Let’s take care of our wounded troops — not look for ways to deny care.

1 comment October 5th, 2007

Nothing is ever “cruel, inhuman, or degrading,” Congress told ages ago

David Luban, who had analyzed here the limitations of the 2006 American Psychological Association resolution against torture and its grounding in the US Reservations to the UN Convention on Torture and Cruel, Inhuman, or Degrading Treatment or Punishment, discusses the second of the new torture memos ([Torture Memo 3.0"] on the Balkinization legal blog. He makes a convincing argument that Congress had long ago been notified that nothing the government did would ever be considered to “cruel, inhuman, or degrading treatment or punishment,” due to the same US the APA used:

Were You Really Surprised?

David Luban

Now we know about the existence of two hitherto-unknown Office of Legal Counsel memos on torture and cruel, inhuman and degrading treatment (CID for short) – what Jack has called Torture Memos 2.0 and 3.0. Reportedly, number 2.0 approves specific harsh techniques used by the CIA, while 3.0 finds that no technique used by the government is CID. (If it was, the Detainee Treatment Act would prohibit it.)

My subject here is Torture Memo 3.0, and my question is whether we should be surprised. The answer is no, because the Justice Department already told us that no interrogation tactic can possibly be cruel, inhuman, and degrading. In some sense, the only surprise is that Congress now acts surprised. Why the outrage now? DoJ told them its position more than two years ago, in a letter to three Democratic Senators.

Let’s review the bidding. The U.S. is party to the Convention Against Torture, and Article 16 of CAT requires parties to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” When the Senate ratified CAT, it attached a reservation stating that the U.S. understands the phrase “CID” to mean conduct prohibited by the Fifth, Eighth, and Fourteenth Amendments. The Eighth bans cruel and unusual punishments, the Fifth, as interpreted by the Supreme Court, bans official conduct that “shocks the conscience,” and the Fourteenth applies these to the states. So far, so good. As Abraham Sofaer, the State Department’s legal advisor when CAT was debated, explained (in a January 21, 2005 letter to Sen. Patrick Leahy (sorry, I don't have a link)), the point was to make sure that the same standards that apply within the U.S. would apply anywhere.

Justice loopholed this definition of CID in two ways. First, it seized on the fact that the Court has held that the Fifth and Eighth Amendments apply only within U.S. territory. Ergo, nothing outside U.S. territory can possibly count as CID. This interpretation drew protests from Sofaer, because it turns the point of the Senate’s reservation upside down. The McCain Amendment plugged this loophole by banning CID regardless of geographical location.

But that still leaves the second loophole untouched. In the wake of Gonzales’s confirmation-hearing testimony that sketched out this territorial argument, three Democratic senators wrote to John Ashcroft, requesting all legal opinions on the subject within three days, for purposes of the confirmation debate. Justice ignored the request, but four months later Assistant AG William Moschella finally responded. He refused to turn over any legal opinions, but he did sketch out the reasoning. Here’s the loophole his letter describes:

With respect to treatment of detainees by the United States Government…the pertinent Amendment is the Fifth Amendment. As relevant here, that Amendment protects against treatment that, in the words of the Supreme Court, “shocks the conscience,” such as (again in the words of the Court) “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998).

That’s the loophole. The letter strongly suggests identifying conduct that shocks the conscience with conduct “unjustifiable by any government interest.” Obviously, interrogation of detainees is justifiable by a government interest. If so, it doesn’t shock the conscience, doesn’t violate the Fifth Amendment, and therefore doesn’t count as cruel, inhuman or degrading.

An educated guess suggests that something along these lines lies at the heart of Torture Memo 3.0. The alternative – that Bradbury squinted at a list of tactics and wrote, “Heck, doesn’t sound degrading to me” – isn’t terribly likely.

But here are the problems with the Moschella opinion. First of all, when he quotes Sacramento, Moschella chops off half the quoted sentence to alter its meaning. The full sentence in the Supreme Court’s opinion says that injurious conduct unjustifiable by any government interest “is the sort of conduct most likely to rise to the conscience-shocking level.” That seems obviously true – but of course, it in no way suggests that other conduct doesn’t equally shock the conscience. Second, the proposition that a legitimate government interest means that conduct doesn’t shock the conscience can’t be right. The case that introduced the “shocks the conscience” test, Rochin v. California, found that pumping a drug suspect’s stomach to extract the evidence (which he had swallowed) shocks the conscience – but obviously, evidence-gathering is a justifiable government interest. The Supreme Court never went anywhere near where Moschella seems to think they went. Even the 2003 opinion in Chavez v. Martinez, where three justices of the Court opined that interrogating a suspect under extreme pain or fear doesn’t shock the conscience if the police had a good reason, doesn’t go as far – because, after all, three justices are only three justices. (Justice Kennedy joined that part of the opinion only on the stipulation that the policeman’s conduct didn’t itself contribute to the suspect’s suffering.)

The government has never retracted the Moschella letter, or the positions it sets out. So, in an important sense, we have known for two years that, in the government’s view, nothing it does to obtain terrorist information counts as cruel, inhuman, or degrading. Even if Torture Memo 3.0 uses a different argument than Moschella’s, it can’t reach a more radical conclusion. So where is the surprise?

Perhaps it’s here: we might have thought that the OLC had cleaned up its act after the Bybee Memo embarrassment. Obviously it didn’t. Apparently, after Jack Goldsmith’s departure, it returned to its previous posture of blessing anything the Administration wants blessed, just the opposite of the candid and independent advice that ethical lawyers are supposed to deliver to their clients. That, as much as the government’s position on CID, is the real disgrace. The OLC issues opinions that are, by custom if not law, binding on the executive branch, so this is not simply legal advice – it’s the equivalent of a secret D.C. Court of Appeals decision.

So now the senators are shocked, shocked that gambling is going on in the establishment. Maybe it’s time to start looking at the establishment itself. Is there anything that can be done to restore respectability to the Office of Legal Counsel?

2 comments October 5th, 2007

Torture debate follows torture memos revelations

The New York Times follows up yesterday’s blockbuster story on the 2005 torture memos with reporting on the controversy it stirred up in Washington over the CIA “enhanced interrogation” techniques:

Debate Erupts on Techniques Used by C.I.A.
By David Johnston and Scott Shane

WASHINGTON, Oct. 4 — The disclosure of secret Justice Department legal opinions on interrogation on Thursday set off a bitter round of debate over the treatment of terrorism suspects in American custody and whether Congress has been adequately informed of legal policies.

Democrats on Capitol Hill demanded to see the classified memorandums, disclosed Thursday by The New York Times, that gave the Central Intelligence Agency expansive approval in 2005 for harsh interrogation techniques.

Senator John D. Rockefeller IV, the West Virginia Democrat who is chairman of the Senate Intelligence Committee, wrote to the acting attorney general, Peter D. Keisler, asking for copies of all opinions on interrogation since 2004.

“I find it unfathomable that the committee tasked with oversight of the C.I.A.’s detention and interrogation program would be provided more information by The New York Times than by the Department of Justice,” Mr. Rockefeller wrote.

The ranking Republican on the panel, Senator Christopher S. Bond of Missouri, said Thursday night in a statement that the committee had been briefed on the administration’s “legal justifications” for interrogation.

Mr. Bond said he understood that the administration did not want to turn over the opinions themselves because they had confidential legal advice.

Administration officials confirmed the existence of the classified opinions but said they did not condone torture. The White House press secretary, Dana Perino, said she could not discuss C.I.A. methods but added, “What I can tell you is that any procedures that they use are tough, safe, necessary and lawful.”

One 2005 opinion gave the Justice Department’s most authoritative legal approval to the harshest agency techniques, including head slapping, exposure to cold and simulated drowning, even when used in combination.

The second opinion declared that under some circumstances, such techniques were not “cruel, inhuman or degrading,” a category of treatment that Congress banned in December 2005.

Administration officials said Thursday that there was no contradiction between the still-secret rulings and an opinion made public by the Justice Department in December 2004 that declared torture “abhorrent” and appeared to retreat from the administration’s earlier assertion of broad presidential authority to conduct harsh interrogations.

At a briefing, Ms. Perino said that it was “quite a testament to this country” that six years after the Sept. 11 attacks “we are still having a debate” about treating prisoners, but that “we don’t torture them.”

President Bush, she added, “has done everything within the corners of the law to make sure that we prevent another attack on this country.”

Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee, said the 2005 opinions had “reinstated a secret regime by, in essence, reinterpreting the law in secret.” Mr. Leahy said his panel had sought information on the opinions on interrogation for two years without success.

Mr. Leahy also said his panel would hold confirmation hearings on Oct. 17 on Michael B. Mukasey’s nomination as attorney general. Several senators said they would closely question Mr. Mukasey, a retired federal judge, at the hearing about his views on interrogation.

Mr. Leahy and Representative John Conyers Jr., a Michigan Democrat who is chairman of the House Judiciary Committee, also demanded that the administration turn over the 2005 opinions.

Mr. Conyers wrote a letter to Mr. Keisler saying, “The alleged content of the opinions and the fact that they have been kept secret from Congress are extremely troubling.”

The letter, also signed by Representative Jerrold Nadler, Democrat of New York, asked the Justice Department to make available for a hearing Steven G. Bradbury, acting head of the Office of Legal Counsel, who signed the opinions.

In an interview, Senator Arlen Specter of Pennsylvania, the top Republican on the Judiciary Committee, said that in light of the administration’s apparent retreat from its legal embrace of the harshest tactics in 2004, the 2005 opinions “are more than surprising.”

“I think they’re shocking,” Mr. Specter said.

He added members of Congress voted to ban “cruel, inhuman and degrading treatment” in December 2005 without knowing that the Justice Department had already decided that the C.I.A.’s methods did not violate that standard. “I think the administration had a duty to inform Congress about these opinions,” Mr. Specter said.

Intelligence officials have said the agency has dropped some of its harshest practices, including the simulated drowning called waterboarding. But the 2005 memorandums show that the administration has secretly continued to maintain that their use would be lawful.

A senior administration official who insisted on anonymity said the opinion on the “combined effects” of different techniques was approved in May 2005.

The opinion that the methods were not cruel or inhuman was approved later in 2005, the official said. Officials have said both opinions remain in effect.

Both documents were written by the Office of Legal Counsel after Alberto R. Gonzales became attorney general. Mr. Gonzales’s arrival effectively ended a rebellion in the department in 2004 by lawyers who had found fault with the legal justifications for interrogation and surveillance.

In a statement, a spokesman for the department, Brian Roehrkasse, said he could not comment on classified legal advice, but said any department opinions were consistent with the administration’s “strong opposition to torture.”

Mr. Roehrkasse also expressed the department’s support for Mr. Bradbury, whose nomination to be permanent head of the Legal Counsel office has been blocked by Senate Democrats since June 2005. Mr. Roehrkasse said Mr. Bradbury had “worked diligently to ensure that the authority of the office is employed in a careful and prudent manner.”

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