Psyche, Science, and Society

Rice defends torture policy

Condoleeza Rice defends administration torture “enhanced interogation” [a.k.a. "torture"] program to Stanford students, while lying thrugh her teeth. As for her claim about the ICRC, here’s what the New York Times reported they said:

The report of the June visit said investigators had found a system devised to break the will of the prisoners at Guantánamo, who now number about 550, and make them wholly dependent on their interrogators through ”humiliating acts, solitary confinement, temperature extremes, use of forced positions.” Investigators said that the methods used were increasingly ”more refined and repressive” than learned about on previous visits.

”The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture,” the report said. It said that in addition to the exposure to loud and persistent noise and music and to prolonged cold, detainees were subjected to ‘’some beatings.”

And as for the OSCE statement on Guantanamo she refers to, it was made, I believe, in 2007. True or not, it wasn’t describing 2002-2006.

I guess it’s Rice who needs to do some reading. Meanwhile, watch the supreme torture defender:

Here are Jack Balkin’s comments, along with a partial transcript:

In this excerpt, she seems to suggest that (1) President Bush directly ordered enhanced interrogation practices, (2) that she did not authorize these practices, but merely conveyed the authorization to others, and finally, (3) that because the President authorized them, these practices did not violate the Convention Against Torture. Rice did not, however, explain why they did not violate the Anti-Torture Statute or the War Crimes Act, both passed by Congress.

Several people have noticed the eerie resemblance of these remarks to Richard Nixon’s statement to David Frost that “when the President does it, that means that it is not illegal.” It’s worth noting, however, that Rice says nothing about domestic law. (Unless, of course, she is suggesting that if techniques do not violate the Convention Against Torture, they cannot violate domestic law.)

Moreover, by trying to excuse herself on the ground that she was only following Bush’s authorization, she is implicitly suggesting that the responsibility for torture (which, she insists, could not occur “by definition”), must rest with the President himself.

Here are some of the key excerpts:

How are we supposed to continue promoting America as this guiding light of democracy and how are we supposed to win hearts and minds in the world as long as we continue with these actions?

Well, first of all, you do what’s right. That’s the most important thing — that you make a judgment of what’s right. And in terms of enhanced interrogation, and rendition, and all the issues around the detainees. Abu Ghraib is, and everyone said, Abu Ghraib was not policy. Abu Ghraib was wrong and nobody would argue with…

Except that information that’s come out since then speaks against that.

No, no, no — the information that’s come out since then continues to say that Abu Ghraib was wrong. Abu Ghraib was. But in terms of the enhanced interrogation and so forth, anything that was legal and was going to make this country safer, the president wanted to do. Nothing that was illegal. And nothing that was going to make the country less safe.

And I’ll tell you something. Unless you were there in a position of responsibility after September 11th, you cannot possibly imagine the dilemmas that you faced in trying to protect Americans. And I know a lot of people are second-guessing now, but let me tell you what the second-guessing that would really have hurt me — if the second-guessing had been about 3,000 more Americans dying because we didn’t do everything we could to protect them.

If you were there in a position of authority, and watched Americans jump out of 80-story buildings because these murderous tyrants went after innocent people, then you were determined to do anything that you could that was legal to prevent that from happening again. And so I think people do understand that.

Now, as to Saudi Arabia and Kuwait and so forth — I agree with you. We have tried to use the trafficking in persons and all of those measures, human rights reports and so forth, to put a spotlight on the kinds of problems that you have in places like Saudi Arabia or Kuwait or Oman or other places. But you can’t — you don’t have the luxury in foreign policy of saying, alright, I won’t deal with that country because I don’t like its human rights record. You don’t have that luxury. So if you need Saudi Arabia to fight al Qaeda internally — which is by the way where al Qaeda came from — or if you need Saudi Arabia to be part of a coalition that’s going to help bring a Palestinian state, you can’t decide not to deal with Saudi Arabia because of its problems with human rights. Or, if you need to make sure that the Gulf is safe from Iranian influence — you want to talk about human rights abusers? — Iran.

. . . .

So, foreign policy is full of tough choices. Very tough choices. The world is not a bunch of easy choices in which you get to make ones that always feel good.

Even in World War II, as we faced Nazi Germany — probably the greatest threat that America has ever faced — even then…

With all due respect, Nazi Germany never attacked the homeland of the United States.

No, but they bombed our allies…

No. Just a second. Three thousand Americans died in the Twin Towers and the Pentagon.

500,000 died in World War II, and yet we did not torture the prisoners of war.

And we didn’t torture anybody here either. Alright?

We tortured them in Guantanamo Bay.

No, no dear, you’re wrong. Alright. You’re wrong. We did not torture anyone. And Guantanamo Bay, by the way, was considered a model “medium security prison” by representatives of the Organization of Security and Cooperation in Europe who went there to see it. Did you know that?

. . . .

I read a recent report, recently, that said that you did a memo, you were the one who authorized torture to the — I’m sorry, not torture, waterboarding. Is waterboarding torture?

The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against torture. So that’s — and by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency. That they had policy authorization subject to the Justice Department’s clearance. That’s what I did.

Okay. Is waterboarding torture?

I just said — the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture.

Thank you.

Alright.

April 30th, 2009

ANBC News films Mitchell and Jessen refusing to talk.

ABC News has an article on reputed torture psychologists James Mitchell and John “Bruce” Jessen: The CIA’s $1,000 a Day Specialists on Waterboarding, Interrogations.  It seems that it may have been broadcast on ABC World News tonight. It doesn’t say anything new. But they do have video of each of them refusing to answer questions, citing their nondisclosure agreement.

Click here to see Jessen refusing to talk to ABC News.

Click here to see Mitchell refusing to talk to ABC News.

Worth watching if you’d like to know what a torture psychologist looks like. Meanwhile, we should demand that the CIA cancel their nondisclosure agreements, so they can talk about their activities.

The Comments on the article are dominated by the loony right torture supporters. It seems they have organized a Mitchell-Jessen fan club.

1 comment April 30th, 2009

The Mormon connection to US torture

David R. Irvine writes in The Salt Lake tribune of the Mormon connection to US torture:

LDS lawyers, psychologists had a hand in torture policies

By David R. Irvine

An overheard conversation among several women at a local deli: “I can’t believe this country elected Obama as president; it must be a sign of the end times when the Constitution will hang by a thread.” The irony of this uniquely Utah political thread about church elders saving the Constitution might have shocked the lunch bunch had they read The Dark Side by Jane Mayer (Doubleday, 2008).

Reading Mayer’s disturbing book is likely to lead to the conclusion that the Constitution is more imperiled than ever; but it also reveals the troubling fingerprints of several of my fellow Mormons whose handiwork, not the Obama election, did so much to create the present crisis.

Although the decisions which put us in the grim business of torture, body-snatching, extraordinary renditions, making people disappear, indefinite confinement without charges and warrantless wiretapping were made by the president and vice president, members of The Church of Jesus Christ of Latter-day Saints served as helpful enablers. Not only did they provide the legal architecture, they provided the “scientific” patina for the plunge into the barbaric business of torture.

Take Timothy E. Flanigan, deputy White House counsel and LDS father of 14 children, who, along with David Addington, John Yoo, Alberto Gonzales, and Jim Haynes comprised the secretive “War Council” of lawyers — a self-appointed group Mayer describes as having virtually no experience in law enforcement, military service, counterterrorism or the Muslim world.

Together, they were the brain trust that devised the legal cover that Vice President Dick Cheney needed to work his will. They secretly crafted the warrantless surveillance program which allowed the National Security Agency to intercept telephone calls and e-mails to and from American citizens within the United States. They secretly devised the Bush military commissions, which were essentially kangaroo courts and legally insufficient to satisfy the minimal adjudicatory standards required under the Geneva Conventions, which, as provided by the Constitution and Congress, constitute the supreme law of the land. They secretly conspired to ignore the law and frame interrogation techniques around the methods of the Spanish Inquisition, the Soviet KGB and Chairman Mao.

Flanigan once told his LDS ward congregation that it was gratifying “to work in a White House where every day was begun with prayer.” In 2005, prior to his rejection by the Senate to be Gonzales’ deputy attorney general, Flanigan was asked whether waterboarding, mock executions, physical beatings and painful stress positions were off-limits. “[It] depends on the facts and circumstances… .” He went on: “‘Inhumane’ can’t be coherently defined.”

BYU law school graduate Jay S. Bybee was the assistant attorney general directing the Department of Justice’s Office of Legal Counsel. At the instigation of Addington and Yoo, Bybee issued official legal opinions that redefined the crime of torture to make it all but impossible to commit. Barbarity was not torture unless it created pain equal to death or organ failure. A newly-declassified Bybee memorandum lists 10 previously top-secret interrogation techniques approved for use by the CIA, including waterboarding.

Incredibly, Bybee seems to have been unaware that the United States had prosecuted waterboarding as a war crime after World War II. In 2003, before his role in authorizing U.S. torture was known, Bybee was given a lifetime judicial appointment on the 9th U.S. Circuit Court of Appeals. Had his role in torture been known, it is unlikely he would have been confirmed.

Two devout Mormons also engineered the more grisly wet work. Because the CIA lacked personnel in 2001 with interrogation expertise, the agency turned to two psychologists, James E. Mitchell and John B. Jessen, who had worked with the Air Force’s Survival, Evasion, Resistance and Escape programs. Neither had an intelligence or interrogation background or had experience with Muslim terrorists, but, according to the FBI, they had experience in designing, testing, implementing and monitoring torture techniques that were illegal in the United States and elsewhere in the civilized world.

These two were responsible for “reverse-engineering” the SERE program — which was intended to toughen American pilots against torture (and the false confessions it had produced in the Korean War) — and they built the CIA’s surreal secret interrogation program around the same brutal coercion that had successfully forced American POWs to lie to their North Korean and Chinese captors. In other words, they assumed that the very brutality which had forced American soldiers to lie would magically force a Muslim terrorist to tell the truth, even if he had to be waterboarded 183 times.

Mitchell advised that suspects must be treated like dogs in a cage. “It’s like an experiment, when you apply electric shocks to a caged dog, after a while, he’s so diminished, he can’t resist.” The Mitchell/Jessen methodology became the basis for prisoner treatment at Guantanamo, Bagram, CIA secret prisons and Abu Ghraib. It involved isolation, sensory deprivation, disorientation, nudity, sexual humiliation, waterboarding, painful stress positions, withholding food and medical treatment, extended sleep deprivation and subjection to temperature extremes. These were used singly and, more commonly, in combination with one another.

Retired Air Force Col. Steve Kleinman, a former SERE instructor and interrogator, says of Mitchell and Jessen: “I think they have caused more harm to American national security than they’ll ever understand.”

***********

David R. Irvine is a Salt Lake attorney and former Utah legislator residing in Bountiful. He was commissioned in the U.S. Army Reserve as a strategic intelligence officer in 1967 and retired as a brigadier general. He taught prisoner of war interrogation and military law for 18 years for the Sixth United States Army Intelligence School.

3 comments April 30th, 2009

Kaye on APA-DoD-CIA complicity

Jeff Kaye has a long post — How APA Made a Pact with DoD & CIA over Torture Interrogations — over at FireDogLake. It provides a good summary of this sordid history.

April 29th, 2009

Sign petition for a Commission on Accountability

Sign here.

Language of Petition:

Waterboarding. Slamming into walls. Excruciating physical positions. The United States tortured detainees after September 11, 2001. Make sure this does not happen again. Call on the President to create a non-partisan commission to investigate the torture and abuse of detainees. Help protect America’s national security and re-establish its standing in the world.

We call on the President of the United States to establish an independent, non-partisan commission to examine and report publicly on torture and cruel, inhuman, and degrading treatment of detainees in the period since September 11, 2001. The commission, comparable in stature to the 9/11 Commission, should look into the facts and circumstances of such abuses, report on lessons learned, and recommend measures that would prevent any future abuses. We believe that the commission is necessary to reaffirm America ’s commitment to the Constitution, international treaty obligations, and human rights. The report issued by the commission will strengthen U.S. national security and help to re-establish America’s standing in the world.

Sign here.

Note: This call is not opposed to simultaneous criminal investigations. We need both. we need to know exactly what happened and who was responsible. And we need a statement that our elites are not immune from the laws they apply to the rest of us.

Yet, criminal investigations could leave much in secret as the information that is not revealed in court in the course of prosecutions would, by law, be kept confidential.

So we need a Commission and we need criminal investigation.

Investigate. Report. Indict.

2 comments April 28th, 2009

Art imitates Life: Music from the torture memos — waterboarding

From www.rockcookiebottom.com/. A song with lyrics taken straight from the torture memos. Will we soon hear the Senate Armed Services Committee [SAS] report?

Lyrics:

the detainee is lying on a gurney
that’s inclined at an angle: 10 to 15 degrees
a cloth is placed over the detainee’s face
cold water is poured on the cloth

the wet cloth creates
a barrier through which
it is difficult or in some cases not possible
for the detainee to breathe

if the detainee
makes an effort to defeat the technique
by twisting his head to the side and breathing
out the corner of his mouth
the interrogator may cup his hands around
the detainees nose and mouth
in which case it would not be posible for him to breathe!

As we explained
in the Section 2340A Memorandum,
“pain and suffering”
(as used in Section 2340)
is best understood as a single concept,
not distinct concepts
of “pain” as distinguished from “suffering”…

The waterboard,
which inflicts no pain or actual harm whatsoever,does not, in our view inflict “severe pain or suffering”. Even if one were to parse the statute more finely to treat “suffering” as a distinct concept, the waterboard could not be said to inflict severe sufering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

April 28th, 2009

Polish pianist Krystian Zimerman protests US militarism

Polish pianist Krystian Zimerman announced Sunday that he will not perform again in the US in protest of our militarized foreign policy:

“Get your hands off my country,” he said, soft-spoken but seething.  He accused the U.S. military of wanting “to control the whole world,” and made a reference to the U.S. military detention camp in Guantanamo Bay, Cuba.

Here is the complete article from the Los Angeles Times:

Review: Krystian Zimerman’s controversial appearance at Disney Hall

By Mark Swed

In 1978, an unknown, soft-spoken, 21-year-old Polish pianist appeared as soloist with the Los Angeles Philharmonic for its newly appointed music director, Carlo Maria Giulini, in the Dorothy Chandler Pavilion. The performances of Chopin’s two piano concertos were recorded by Deutsche Grammophon. Krystian Zimerman’s eloquence went far beyond his years, and a major career was launched.

In the ’80s, Zimerman became Leonard Bernstein’s favorite pianist, the conductor’s choice to record the Beethoven and Brahms piano concertos.  In 1992, the summer before Esa-Pekka Salonen became music director of the L.A. Philharmonic, he selected Zimerman to perform with the orchestra at the Salzburg Festival.

And now, Sunday, making his Disney Hall debut in a recital sponsored by the Philharmonic, Zimerman, who has become arguably the greatest pianist of his generation, made the surprise and shocking announcement from the stage that in protest to America’s military policies overseas and particularly in Poland, he would no longer perform in the United States.

“Get your hands off my country,” he said, soft-spoken but seething.  He accused the U.S. military of wanting “to control the whole world,” and made a reference to the U.S. military detention camp in Guantanamo Bay, Cuba.

Approximately three dozen in the audience walked out, some shouting obscenities.  “Yes,” he answered, “some people when they hear the word military start marching.”

Others remained but booed or yelled for him to shut up and play the piano.  But many more cheered.  He responded by saying that America has far finer things to export than the military, and he thanked those who support democracy.

Zimerman (who doesn’t allow photos taken of his performances) had been in a seemingly curious mood all evening.  Normally, the most exacting of pianists, he dispatched with strange impatience Bach’s Partita No. 2 and Beethoven’s Piano Sonata No. 32, Opus 111, in the first half the program.  He quickly walked to the piano and instead of allowing the audience to quiet and the mood to be just right, he launched into each piece, not even waiting for latecomers to be seated before beginning Beethoven’s most visionary sonata.

A program change from Brahms’ late piano pieces, Opus 119, to the Piano Sonata No. 2 by Grazyna Bacewicz, announced over the loudspeakers after intermission, was the evening’s next surprise.  It was premiered in 1953 and is a strikingly modernist, moody and nationalist sonata for Soviet Poland.  Again Zimerman went straight to the piano and immediately attacked the percussive first movement.  The performance was riveting.

Before playing the final work on his recital, Karol Szymanowski’s “Variations on a Polish Folk Theme,” Zimerman more typically sat meditatively on his bench for a moment.  Twice he leaned toward the keys and almost began to play, but then turned to the audience saying he hadn’t planned to speak but decided he could not keep silent.

Zimerman is a magnificent obsessive.  He travels with his own Steinway, is his own piano technician, and even his own truck driver.  He typically spends half a year devising a concert program and will do anything to achieve the sound he desires.  Three years ago at the Irvine Barclay Theatre, he substituted Gershwin for Chopin because the Transportation Security Administration had held up his piano at the airport and he didn’t have time to practice to adjust it properly.  An earlier piano was destroyed by Homeland Security at JFK airport because officials were suspicious that its glue could be an explosive in disguise.

All along, Szymanowski’s Variations had seemed an unusually lightweight end  to a program that contained far-reaching Bach, Beethoven and (originally) Brahms.  An early work by the only internationally famous Polish composer of the early 20th century, the pleasingly Chopinesque Variations were written in 1904 when the composer was 22 and demonstrate none of the erotic mysticism of his mid-career compositions or the folk-inspired nationalism that made him known as the Polish Bartók.

Yet to hear Zimerman play anything in Disney was amazing.  His Bach was richly nuanced and beautiful although pushed in the final Capriccio.  The trills in his Beethoven had a bell-like shimmer that sounded like a newly discovered acoustic phenomenon.

But in the Szymanowski, Zimerman’s meticulous tone, so luminous in the Introduction and theme, ultimately took second place to idealistic patriotic zeal.  It’s a good thing that he can look after his own pianos, because this one will probably want some doctoring after the treatment he gave it.  There was no encore.  Pianist, audience and piano were all spent.  The cheers were deafening.

I hope Zimerman reconsiders his U.S. embargo.  He has, of course, angered some Americans.  But our country is precisely the place where politics are not outlawed from the concert hall.  And I can’t imagine a more compelling case to be made for Polish solidarity than his incomparable performance of these variations.

April 28th, 2009

Tamanaha: Investigate the torture lawyers to preserve the rule of law

Brian Tamanaha at Balkinization has an excellent discussion the role of the Justice Department Office of Legal Counsel and why an investigation of their development of the torture memos is critical for the future of the country. Of course, this investigation is unlikely as the People Whose Opinions Count believe, as glenn greenwald has been vigorously arguing, that our elites are exempt from the rule of law:

We Must Not Use the OLC Lawyers as Scapegoats on Torture

by Brian Tamanaha

President Obama said Tuesday that Justice Department officials who authorized harsh interrogation techniques are not immune from prosecution. “With respect to those who formulated those legal decisions,” the president said, “that is going to be more of a decision for the attorney general within the parameters of various laws, and I don’t want to prejudge that.” (NPR, April 22)

Many voices are now protesting that a criminal investigation of the OLC lawyers who wrote the “torture memos” would be unfair or improper. The President has already ruled out prosecution of the CIA interrogators who committed the torture (assuming they kept to the guidelines). There has been no hint that the Justice Department plans to investigate the high level officials who ordered the torture (Cheney, Rumsfeld, and company). At least for now, only the OLC lawyers are in the cross-hairs, while those who ordered the torture and those who carried it out breath easy.

It smells like the OLC lawyers are being served up as scapegoats for the bad deeds of others. They were just doing their job. They should not be punished for offering their good faith legal analysis. The fact that they were wrong about the law does not make them guilty of a crime. So say their defenders.

If an investigation into the actions of the OLC lawyers is about finding a scapegoat, it would be indeed be wrong. Let me explain, therefore, why the OLC lawyers must be investigated. Preview: It’s not about the torture. It’s about the special position of the OLC.

The role played by the Office of Legal Counsel within the Department of Justice is this: “By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies” (OLC website). The key words are “authoritative legal advice.” This quasi-judicial power—the power to issue legal opinions that bind the Executive Branch—is unique to the OLC.

Owing to this extraordinary power, the lawyers have a narrowly circumscribed charge and bear special responsibilities. Steven Bradbury spelled this out in a 16 May 2005 memo, Best Practices for OLC Opinions (which he issued just 6 days after he signed two pivotal “torture” memos). The pertinent passages read:

By delegation, the Office of Legal Counsel exercises the Attorney General’s authority under the Judiciary Act of 1789 to advise the President and executive agencies on questions of law….

Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch. Accordingly, it is imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned….

Over the years, OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers. This memorandum reaffirms the longstanding principles that have guided and will continue to guide OLC attorneys in preparing the formal opinions of the Office.

OLC’s interest is simply to provide the correct answer on the law….

That’s an excellent description of the OLC’s role, power, and responsibilities. These standards applied to the torture memos issued by Bybee, Yoo, and Bradbury. The OLC’s very reason for existing is to issue independent, correct, legal decisions. The events surrounding the torture memos provide a perfect illustration of why it is essential that OLC lawyers strive in good faith to meet these standards.

The Senate Report on Detainee Treatment discloses that the top lawyers for the Army, Navy, Air Force, and the Marine Corps, as well as Legal Counsel for the Joint Chiefs of Staff, strongly opposed the use of these abusive interrogation techniques, citing “serious concerns regarding the legality of many of the proposed techniques.” (Senate Report xviii). The military lawyers also worried that use of these techniques would increase the risk that captured U.S. soldiers would be tortured in retaliation. (An example of this opposition is a memo, linked here, issued by the group that supervises SERE training, which bluntly labeled these techniques “torture.”)

But Bush Administration higher-ups wanted the techniques to be applied. The OLC was called upon to issue legal opinions as a means to circumvent and squelch the opposition from military lawyers (never mind that military lawyers were more familiar than OLC lawyers with the techniques and the applicable law). When the OLC officially concluded that the techniques were “legal,” the opposition was silenced. Military lawyers were instructed to consider the “OLC memorandum as authoritative” (Senate Report 119-20), clearing the way for the techniques to become official policy.

The OLC has the power to trump opposing views on the law because, as described above, the OLC is the highest legal authority within the Executive Branch. This is why OLC lawyers must live up to their duty to issue independent, thoroughly researched, soundly reasoned, correct legal opinions. The awesome power to issue binding legal opinions is easy to abuse.

With this background, it is easy to identify the flaw in David Broder’s recent assertion that it would be wrong to investigate the OLC lawyers. Broder writes, “The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.”

Broder is wrong because the OLC lawyers were not asked for their opinion on policy. That is outside their charge. They do not have final authority on policy. They were asked to render a legal opinion on the legality of the proposed use of the abusive interrogation techniques. If the policy was illegal, it was the job of the OLC lawyers to say “NO,” as Bradbury asserts in his OLC Best Practices Memo, “even when that advice may be inconsistent with the desires of policymakers.”

Again, the duty of OLC lawyers to render its best independent judgment of the law is directly linked to its binding authority within the Executive Branch. It was by pointing to the OLC’s legal authority that President Bush could declare: “We don’t torture.” The OLC had issued legal opinions concluding that the interrogation techniques were “not torture”. It is for this reason that Bush Administration officials can now say in their defense for authorizing the torture: “We checked with the OLC lawyers, who assured us that this policy complied with the law.” That is why CIA interrogators can now say in their defense for inflicting the torture: “We checked with the OLC lawyers, who assured us that these interrogation techniques were legal.”

Everyone involved in the torture is pointing to the OLC lawyers, and for good reason: It was precisely the job of OLC lawyers to give the policy makers, and those who carry out the policy, independent advice on what a correct reading of the law allows or prohibits.

As this discussion emphasizes, the OLC occupies a pivotal position as the final check on the legality of proposed government conduct. The essence of the rule of law is that government officials are bound by and act consistent with the law. Ensuring compliance with the rule of law is the very point and purpose of the OLC.

If the OLC lawyers do not carry out this role with integrity, the institutional arrangement designed to preserve the rule of law is fatally compromised. There is nothing to stop illegal government activity at the highest levels. More to the point, a compromised OLC can play an affirmative role in aiding and abetting illegal activity because its legal opinions supply a defense to putative law-breakers. This increases the likelihood that the illegal activity will occur (as in this instance, when the CIA agents were reluctant to utilize the interrogation techniques without the “golden shield” provided by the legal opinions).

In opposition to a criminal investigation of the OLC lawyers, Peggy Noonan writes, “As for the memo writers, some of whose constitutional theories were apparently tilted to the extreme in favor of the executive, it is hard to see how it would help future administrations, or this one, to have such advice, however incorrectly formulated, criminalized.”

Noonan is absolutely correct that we must not criminalize erroneous legal advice. The key question here, however, is whether this was “just” bad legal advice, or whether it involved active participation by OLC lawyers in the violation of U.S. laws against torture. If the latter occurred, then a criminal investigation would help future administrations by serving as a reminder that the government must act within the limits of the law, and that it is the special job of OLC lawyers to make sure this happens. It is about deterring lawbreaking–facilitated by lawyers–at the highest levels of government.

That is why there should be a criminal investigation of the OLC lawyers. Lawyers have been held criminally responsible before (for example, German lawyers after WW II, and tax lawyers who construct illegal tax shelters or write bogus opinion letters). It might be true that they did not knowingly facilitate a conspiracy to violate the federal anti-toture statute, and it might prove impossible to establish criminal intent on their part (email exchanges to and from OLC lawyers surrounding the production of the memos will shed light on this). In either case, they won’t be prosecuted. But we won’t know the answers to these questions until after a criminal investigation has been completed.

A criminal investigation into the actions of the OLC lawyers is required not because our country has engaged in torture (as bad as that was). Ultimately, it’s about preserving the integrity of our system of law.

April 28th, 2009

Institute of Medicine calls for reducing influence of drug and medical device companies

In a major development on the corruption of medicine by drug and medical device companies, the Institute of Medicine has called for major reform in the system:

Group Advises Stopping Flow of Gifts to Doctors

By Gardner Harris

WASHINGTON — In a scolding report, the nation’s most influential medical advisory group said that doctors should stop taking much of the money, gifts and free drug samples that they routinely accept from drug and device companies.

The report by the Institute of Medicine, part of the National Academy of Sciences, is a stinging indictment of many of the most common means by which drug and device makers endear themselves to doctors, medical schools and hospitals.

“It is time for medical schools to end a number of long-accepted relationships and practices that create conflicts of interest, threaten the integrity of their missions and their reputations, and put public trust in jeopardy,” the report concluded.

The institute’s report is even more damning than a similar one released last year by the Association of American Medical Colleges, which proposed tough new rules governing interactions between companies and medical schools.

In the wake of the association’s report, many schools and medical societies toughened their policies. The institute’s imprimatur is certain to accelerate this process.

“With the I.O.M.’s endorsement, issues that were once controversial now are indisputable,” said Dr. David Rothman, president of the Institute on Medicine as a Profession at Columbia University. “Conflicts of interest in medicine are no longer acceptable.”

The report calls on Congress to pass legislation that would require drug and device makers to publicly disclose all payments made to doctors. Senator Charles E. Grassley, a Republican from Iowa, and Senator Herb Kohl, a Democrat from Wisconsin, have co-sponsored legislation that would do just that.

Both senators said they welcomed the institute’s endorsement.

“It’s a shot in the arm to the reform movement to have the prestige and policy heft of the Institute of Medicine on the side of transparency,” Mr. Grassley said. “The more disclosure, the better, for holding the system accountable and building public confidence in medical research and practice.”

Drug companies spend billions of dollars wooing doctors — more than they spend on research or consumer advertising. Much of this money is spent on giving doctors free drug samples, free food, free medical refresher courses and payments for marketing lectures. The institute’s report recommends that nearly all of these efforts end.

The largest drug makers agreed last year to stop giving doctors pens, pads and other gifts of small value, but company executives have defended other marketing tactics as valuable to both doctors and patients. Medical device and biotechnology companies have yet to swear off even pens and free trips.

A 2007 survey found that more than three-quarters of doctors accept free drug samples and free food, more than a third get financial help for medical refresher courses and more than a quarter get paid for giving marketing lectures and enrolling patients in clinical trials

Among the most controversial of the institute’s recommendations is a plan to end industry influence over medical refresher courses. Presently, drug and device makers provide about half of the funding for such courses so that doctors can often take them for free. Even as they have acknowledged the need for other limits, many medical societies and schools have defended subsidies for education as necessary.

“As science progresses, it’s going to get harder and harder to get doctors to keep pace,” said Dr. Jack Lewin, chief executive of the American College of Cardiology. “I think industry has some responsibility toward education.”

By contrast, the American Psychiatric Association recently announced that it would phase out industry funding for medical refresher courses at its conventions.

The institute acknowledged that many doctors depend on industry funding for refresher medical courses but said that “the current system of funding is unacceptable and should not continue.” The report recommended that a different funding system be created within two years.

Senator Kohl said that he has been investigating refresher medical courses, and he said the industry’s funding has biased some courses.

Dr. Bernard Lo, the director of the Program in Medical Ethics at University of California San Francisco who served on the institute’s committee that wrote the report, said in an interview that doctors “need to do a better job in addressing conflicts of interest that would lead to bias or threaten public trust.”

Dr. P. Roy Vagelos, a former Merck chief executive, said that he has worried for years that drug and device companies wielded too much influence over doctors.

“I think medical centers and companies will start to listen to these recommendations and to take them very seriously,” Dr. Vagelos said.

The institute recommended that doctors stop giving free drug samples to patients unless the patient is poor and the doctor can continue to provide the medicine to the patient for little or no cost. By contrast, many free drug samples go to patients with insurance coverage or to doctors and their families, the report stated.

1 comment April 28th, 2009

Horton and Ackerman on Jay Bybee

Law professors Scott Horton and Bruce Ackerman discuss Jay Bybee, the torture lawyer who is currently a federal judge:

April 27th, 2009