Psyche, Science, and Society

Reisner loses American Psychological Association Presidential bid

I’ve been too upset to post this news previously. But our candidate, Steven Reisner, was defeated in his bid for the American Psychological Association (APA) Presidency. Rather, the candidate of the status-quo, APA Treasurer Carol Goodheart, won. The APA announcement, designed to magnify the extent of Dr. Goodheart’s victory, is available here. The vote counts presented there are virtually meaningless as they represent the number of votes received at the point that candidate was removed in the complex multistage, Hare-system, vote counting process.

With Reisner’s defeat, the APA has managed for the time being to preserve its status quo position as an unofficial member of the military-intelligence establishment, committed to perverting psychology in the interests of so-called “national security.” If things go well nationally, those interests will soon cease to include legalized torture. Thus, the APA will cease to covertly support psychologists’ participation in detainee abuse through its “policy of engagement.”

Notwithstanding Reisner’s defeat, now is the time for a thoroughgoing review of our profession’s, and the APA’s, sordid recent history.

The failure to transform the organization to make its relationships with the military-intelligence establishment transparent, and to really come to grips with the implications of psychologists playing central roles in US government abuse, will ill-equip the profession to resist the next time “national security” calls. The struggle must continue to transform the Association and the profession so that human rights and human decency are central to our work.

Add comment December 10th, 2008

Could Hayden stay as CIA Director?

Glenn Greenwald comments on the disturbing rumors that Obama is considering asking the man currently in charge of the “enhanced interrogation” [a.k.a "torture"] program, Michael Hayden, to stay on as Director of the CIA:

Gen. Hayden and the claimed irrelevance of presidential appointments

By Glenn Greenwald

A report from U.S. News & World Report today suggests that Obama is considering having Gen. Michael Hayden – Bush’s former NSA Director — remain on as CIA Director.  I have no idea whether that report is true, but here is what I do know:

(1) In May, 2006, Barack Obama voted against confirming Gen. Hayden as CIA Director. Obama was one of only 15 Senators to oppose Hayden.  In his speech on the Senate floor explaining his vote, Obama emphasized Hayden’s role as Bush’s NSA Director in implementing and overseeing Bush’s illegal warrantless surveillance programs — programs Obama has repeatedly decried as an assault on the rule of law.

In fact, Obama, while acknowledging in his speech that Hayden was “qualified,” described Hayden — accurately — “as the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight.”  Obama said his vote against Hayden’s confirmation was necessary “to send a signal to this Administration that even in these circumstances President Bush is not above the law” and “in the hope that [Hayden] will be more humble before the great weight of responsibility that he has, not only to protect our lives, but to protect our democracy.”

If, less than 3 years later, Obama chooses as his CIA Director the very same Michael Hayden — who, during his confirmation hearing, justified Bush’s illegal NSA spying and said how proud he was to help implement it [to say nothing of his (at best) equivocations on torture] — then it should be quite . . . let us, for the moment, say ”interesting” . . . to watch him and his most loyal supporters explain and justify that.

(2) Until five weeks ago, I literally never heard anyone claim — in either party — that it was irrelevant who the President appointed to his Cabinet and other high-level positions.  I never heard anyone depict people like the Defense Secretary and CIA Director as nothing more than impotent little functionaries — the equivalent of entry-level clerical workers — who exert no power and do nothing other than obediently carry out the President’s orders.

In fact, I seem to recall pretty vividly all sorts of confirmation fights led by Democrats over the last eight years (John Aschroft, John Bolton, Alberto Gonzales, Michael Hayden, Steven Bradbury) — to say nothing of the efforts to force the resignation or dismissal of people such as Donald Rumsfeld, Paul Wolfowitz and Gonzales — that were based on exactly the opposite premise:  namely, that it does matter who is empowered to lead these agencies and departments, and specifically, that their ideology not only matters, but can, by itself, warrant rejection.  Nobody ever claimed that Ashcroft, Bolton or Hayden were “unqualified.”  It was their beliefs and ideology that rendered them unfit for those positions, argued Democrats.

When and why did everyone suddenly decide to change their minds about this and start repeating the mantra of some Obama supporters that high-level appointments are irrelevant because only the President counts?   For the people who now make this claim to justify Obama’s appointments, were any of them objecting during any of the above-listed confirmation fights that those fights were wasteful and unjustified because presidential appointments are irrelevant?

Other than Brennan (and Hayden, if that happens), I haven’t felt very strongly about any of Obama’s appointments, mostly because they’re roughly what I expected.   And it is true that a President’s actions matter more than his appointments (which isn’t saying that the latter is irrelevant).  But I nonetheless find it striking how quickly people are willing to spout a position that they never previously believed and even is at radical odds with what they’ve said and done in the past — Cabinet appointments are irrelevant! — simply because the new position justifies what someone they like is doing.

(3) Numerous others have already said most of what needs to be said about the repellent decree issued by Obama deputy campaign manager Steve Hildebrand that “this is not a time for the left wing of our Party to draw conclusions about the Cabinet and White House appointments that President-Elect Obama is making.”  Apparently, we all have to wait just a little bit — just until they “get our economy moving, bring our troops home safely, fix health care, end climate change and restore our place in the world” — before we can opine on our President’s actions and decisions (Bill Kristol issued a similar judgment in 2007 about war opponents who refused to wait and see whether the Surge would work:  it’s ”so irresponsible that they can’t be quiet for six or nine months“).

But what I want to focus on is this justifying claim Hildebrand offers as to why liberal concerns about Obama’s appointments are misplaced:

Some believe the appointments generally aren’t progressive enough. . . . The problems I mentioned above and the many I didn’t, suggest that our president surround himself with the most qualified people to address these challenges.

Since when did “qualifications” become the all-powerful trump card when it comes to political leaders — even more than one’s political beliefs, principles and ideology?  As I wrote before, it’s a complete myth, a manipulative trick, to claim that “competence” and “ideology” have nothing to do with one another.

If “qualifications” were all that mattered, Barack Obama wouldn’t be President.  People voted for him despite his lack of qualifications, not because of his abundance of them.  Does anyone dispute that Donald Rumsfeld, and Dick Cheney, and David Addington, and John Ashcroft and Hank Paulson were supremely “qualified” in every sense that this term is normally meant?  What made them atrocious wasn’t their lack of qualifications but their ideology and belief system, and what made Obama attactive to many people wasn’t that he was “most qualified” but was his ideology and belief system.

This idea that “qualifications and pragmatism matter, not ideology” is a meaningless buzzphrase.  It’s pure nonsense designed to neuter any criticism of Obama’s appointments.  If someone wants to say — as Atrios did today –  that they’re willing to tolerate the exclusion of liberals from Obama’s cabinet and even demonization campaigns against the Left if that’s the vehicle and strategy for enacting a progressive agenda, that at least is a rational assessment (though I think there’s serious costs to encouraging not only Republicans and the media, but also Democrats, to all join together to agree that the one unspeakable bogeyman is the Left).

But this broader point that pragmatism and “competence” are being valued above ideology is incoherent and manipulative.  When it comes to political power, this claim is devoid of meaning.  Ideology, by definition, always matters when it comes to what political leaders do.  And yet — just like the brand new claim that high-level appointments don’t matter — many, many people have been easily persuaded to recite this “competence-over-ideology” mantra over and over.

UPDATE:  The top diary currently on Daily Kos dismisses criticisms of Obama’s appointments by explaining that Obama is going to be just like Don Corelone in The Godfather — he’s going to issue orders and everyone around him will simply comply (h/t Scientician).  While lots of whiny liberals are running around stupidly mouthing off with their opinions about Obama’s appointments, the diarist excitedly explains:  “Don Obama is sitting calmly at the top working quietly to put his plan into place.”

UPDATE II:  Digby speculates about the interplay between the withdrawn Brennan nomination and this new Hayden rumor, and also documents — significantly — that Hayden has emphatically maintained in the past that the CIA must not be bound to the interrogation techniques in the Army Field Manual and that it cannot effectively do its job if it is.  That would be a very odd posture for a CIA Director in an administration headed by a President who repeatedly vowed to impose the Army Field Manual on the CIA as the most effective way to end the torture regime.

UPDATE III:  Spencer Ackerman thinks “there’s no chance that Obama would actually pick Hayden” and that the report is being floated by Hayden allies inside the CIA.  I, too, would be surprised (mildly, not overwhelmingly) if Obama asked Hayden to remain even temporarily, but as the Brennan incident demonstrated, there is real value in expressing objections to highly objectionable appointments before they are announced.  Reports of prospective nominees are leaked precisely to see if there is formidable and intense opposition.  While it’s important not to assume every one of these rumors is true (which is why I noted in the first paragraph that this one may very well not be), this is the time to express and build opposition to potential appointees, not after the nominee is announced.

It’s worth noting that disagreements and objections directed at political leaders aren’t a bad thing.  An astounding 79% of the public approves of Obama in the transition.  Having “the Left” exert pressure to ensure attention is paid to its political values isn’t going to cause a collapse of the Republic or even the Obama presidency.  To the contrary, as The Atlantic’s Marc Ambinder observes, the Left’s objections have actually been quite muted, but provide an important benefit:  ”to prevent Obama from ruling as a royalist, a little cross-pressure is probably a good thing.”

Even in this New Era of Trans-Partisan Harmony, there’s nothing wrong with citizens objecting to what political leaders do and trying to pressure them to move in directions that they perceive are better.  That’s actually called “democracy.”  As upsetting as that disharmony apparently is to some, it’s actually far preferable than the alternative, where everyone lines up behind a leader and agrees to remain respectfully silent and trusting in his superior judgment.  Between excessive citizen activism and excessive trust or passivity, the former is far preferable to the latter.

Add comment December 9th, 2008

Video: Close GITMO and End Military Commissions

The ACLU and Brave New Films have a new video, Close GITMO and End Military Commissions. Regular readers of this blog will have surmised that I admire Maj. David Frakt for his forceful defense of Mohammed Jawad, leading to discovery of the systematic program of abuse, including an evaluation of his weaknesses by a BSCT psychologist, that has been perpetrated upon Jawad. The video also includes former [as in resigned in protest] Jawad prosecutor Lt. Col. Darrel Vandeveld, as well as Lt. Commander Brian Mizer, another defense attorney:

Now go to CloseGitmo.com and sign the Letter to President-Elect Obama

Add comment December 9th, 2008

Pushback from CIA over John Brennan

The opposition to John Brennan has stirred up a fierce reaction from his CIA friends and the press. Some of this reaction can be seen among the comments in response to our Open Letter to Obama on the nomination.

Scott Horton comments:

Brennan’s press rolodex must be positively bulging, and he and his team have little compunction about accessing it. You’d think someone seeking a Washington post where keeping secrets is of tantamount importance would take a different approach to lobbying for the job.

Glenn Greenwald dissects this reaction and its likely political motives in protecting the CIA :

The CIA and its reporter friends: Anatomy of a backlash

By Glenn Greenwald

The backlash from the “intelligence community” over John Brennan’s withdrawal — which pro-Brennan sources are now claiming was actually forced on Brennan by the Obama team — continues to intensify.  Just marvel at how coordinated (and patently inaccurate) their messaging is, and — more significantly — how easily they can implant their message into establishment media outlets far and wide, which uncritically publish what they’re told from their cherished “intelligence sources” and without even the pretense of verifying whether any of it is true and/or hearing any divergent views:

Jeff Stein, Congressional Quarterly, 12/5/2008:

Anyone connected to post-Sept. 11 “enhanced interrogation measures,” no matter at arm’s length, is apparently disqualified to run Barack Obama ’s spy agency.

Hence the immolation of former National Counterterrorism Center chief John Brennan, the president-elect’s closest intelligence adviser, as the lead candidate to run the spy agency.

The left-wing hit job on Brennan showed that liberals may have a taste for covert action after all, the spooks chuckle. . . .

Can anybody who could do the job, get the job?

“Beats me,” said a well-wired former senior intelligence official. “Brennan’s hands were not very dirty at all. He was apparently thrown under the bus because some ill-informed bloggers thought they were [dirty] and the transition folks didn’t have the will to explain that they were wrong.”

A former national security official and friend of Brennan, who asked not to be identified, is disgusted by what happened.

“Ninety-nine percent of” what the CIA has been doing since Sept. 11 “is not related to torture, but now everybody is tarred with this brush,” he said.

Diane Rehm Show, NPR, 12/5/2008:

Tom Gjelten, NPR:  I understand that it was the Obama team who pulled the plug on John Brennan.

Diane Rehm:  Why?

Gjelten:  I don’t know why.  But Brennan had become a real target of criticisms of all those sectors — largely on the left — who were very concerned about interrogation and rendition and other such –

Rehm:  And it was lots of bloggers who apparently pointed out that he had somehow been involved in the decisions –

Michael Hirsh, Newsweek:  Without any direct evidence, of course — as is so often the case in the blogging world (chuckles). . . .

The people with the most experience in the intelligence world, like Brennan — Brennan was a first-class professional — are getting sidelined because of these controversial issues surrounding detention, interrogation, Guantanamo Bay and so forth — and the risk remains that you have someone there who really isn’t the best candidate.

Shane Harris, National Journal, 12/6/2008 (sub. req.):

Mark Mazzetti and Scott Shane, New York Times, 12/2/2008:

Last week, John O. Brennan, a C.I.A. veteran who was widely seen as Mr. Obama’s likeliest choice to head the intelligence agency, withdrew his name from consideration after liberal critics attacked his alleged role in the agency’s detention and interrogation program. Mr. Brennan protested that he had been a “strong opponent” within the agency of harsh interrogation tactics, yet Mr. Obama evidently decided that nominating Mr. Brennan was not worth a battle with some of his most ardent supporters on the left.

Mr. Obama’s search for someone else and his future relationship with the agency are complicated by the tension between his apparent desire to make a clean break with Bush administration policies he has condemned and concern about alienating an agency with a central role in the campaign against Al Qaeda.

Mark M. Lowenthal, an intelligence veteran who left a senior post at the C.I.A. in 2005, said Mr. Obama’s decision to exclude Mr. Brennan from contention for the top job had sent a message that “if you worked in the C.I.A. during the war on terror, you are now tainted,” and had created anxiety in the ranks of the agency’s clandestine service.

Tom Gelten, NPR, 12/3/2008:

Brennan’s withdrawal, offered in a Nov. 25 letter to Obama, came after liberal bloggers mounted an opposition campaign against his possible appointment. They said he was tainted by his service in the CIA at a time when the agency was employing coercive interrogation methods, including “waterboarding,” on detainees.

Mark Mazzetti, The New York Times, 11/25/2008:

The opposition to Mr. Brennan had been largely confined to liberal blogs, and there was not an expectation he would face a particularly difficult confirmation process. Still, the episode shows that the C.I.A.’s secret detention program remains a particularly incendiary issue for the Democratic base, making it difficult for Mr. Obama to select someone for a top intelligence post who has played any role in the agency’s campaign against Al Qaeda since the Sept. 11 attacks.

This is why I went through that long, arduous exercise with NPR’s Gjelten the other day — culminating in his admission that he should have reported the Brennan story more accurately (”Okay. That would be fair. That’s how I should have said it. You’re absolutely right. I should have said it that way“):  it’s because these inaccurate themes, along with the coordinated planting of these storylines and the shoddy reporting which enables them, are everywhere.  And this matters for reasons far beyond the specific controversy over John Brennan.

* * * * *

All of this illustrates the unparalleled power which the “intelligence community” exerts over our political debates, how easy it is for them to manipulate intelligence reporters who depend on cooperation with their intelligence sources and who thus identify with them and happily amplify whatever they are fed, and — most of all — how profoundly unrealistic is the expectation that, now that Democrats are “in control,” they’re just going to blithely proceed to impose all sorts of new restrictions on the CIA and the rest of the Surveillance State — let alone launch probing investigations and impose accountability for past crimes — without much of a major fight.

Just consider what all of this “reporting” has in common:

(1) All of these reports rely exclusively on pro-Brennan sources, allies and friends of his in the CIA who have fanned out to plant their storyline with their favorite reporters.  This truly excellent and amply documented critique by Columbia Journalism Review’s Charles Kaiser of The New York Times‘ reporting on these matters is applicable to all of these reports, not just the ones in the NYT:

If you’ve only been reading The New York Times, you’re probably aware of these battles — but almost everyone you have seen quoted about them has similar points of view. Most of the Times’s sources don’t think that anyone who formulated or acquiesced in the current administration’s torture policies should be excluded as a candidate for CIA director, or prosecuted for possible violations of criminal law.

The story, by Mark Mazzetti and Scott Shane, noted that John O. Brennan had withdrawn his name from consideration for CIA director after liberal critics attacked his role in the agency’s interrogation program, even though Brennan characterized himself as a “strong opponent” within the agency of harsh interrogation techniques. Brennan’s characterization was not disputed by anyone else in the story, even though most experts on this subject agree that Brennan acquiesced in everything that the CIA did in this area while he served there.

“I was aghast reading this,” said Scott Horton, a professor of human rights law at Hofstra and a contributing editor at Harper’s, whose blog was instrumental in framing the opposition to Brennan’s appointment. “The Times doesn’t even do a reasonable job of presenting the conflicts — their principal source today was John O. Brennan. They have not reached out to the other side. It looks like Mark and Scott have decided that it’s payback time for a couple of their sources at the agency.”

In all of these accounts, Brennan’s false claims of unfair persecution — that he was attacked simply because he happened to be at the CIA – are fully amplified in detail through his CIA allies, most of whom are quoted at length (though typically behind a generous wall of anonymity).  But Brennan’s critics are almost never quoted or named (of all of the above-cited reports, only the National Journal article includes a quote from a named Brennan critic:  a couple vague snippets from one of the pieces I wrote about Brennan).  The “reporting” is all from the perspective of Brennan and his CIA supporters.  None of these journalists even entertain the idea of disputing or challenging the pro-Brennan version.

(2) None of this reporting even alludes to, let alone conveys, the central arguments against Brennan and the evidence for those arguments.  Unmentioned are his emphatic advocacy for rendition and “enhanced interrogation tactics.” None of the lengthy Brennan quotes defending these programs are acknowledged, despite the fact that not only bloggers, but also the much-cited psychologists’ letter, emphasized those defenses (that letter complained that Brennan “supported Tenet’s policies, including ‘enhanced interrogations’ as well as ‘renditions’ to torturing countries”).  The seminal article on these CIA programs by The New Yorker’s Jane Mayer — who interviewed Brennan and identified him as a “supporter” of these programs despite “the moral, ethical, and legal issues” — does not exist in the journalists’ world.

What instead pervades these stories is the patently deceitful claim typified by Newsweek’s Michael Hirsh, who asserted that the case against Brennan was made “with no direct evidence” and then chuckled that this is “common for the blogging world” — an ironic observation given that Hirsh himself is either completely ignorant of the ample evidence that was offered or is purposely pretending it doesn’t exist in order to defend the CIA official Hirsh lauded as “the first-class professional.”  That’s how the persecution tale against Brennan is built — by relying on mindless reporters to distort (when they weren’t actively suppressing) the evidence against him.

(3) In these accounts, Brennan is described in reverent terms (”first-class professional”; a “natural candidate”; “the guy who’s most qualified for the job”) while his critics remain unnamed and unseen though dismissed with derogatory, demonizing terms (”some ill-informed bloggers”; “ill-informed but powerful activists”; ”a few obscure blogs”; “bloggers” who don’t “have that familiarity”).

(4) Concerns over torture and rendition — despite being widespread among countless military officials and intelligence professionals — are uniformly depicted as nothing more than ideological idiosyncrasies from the dreaded Left (”left-wing hit job on Brennan”; “largely on the left”; “left-leaning bloggers and columnists”; “Obama’s liberal base”; Obama’s “most ardent supporters on the left”; “liberal critics”; “liberal bloggers”; “confined to liberal blogs”; “the Democratic base”).

Thus:  non-ideological, pragmatic, Serious centrists (which, as everyone knows, is what we need now) are free of this nattering fixation on all this “torture” talk.  Serious adults know that it’s time to move on and not hold grudges.  It’s only the shrill ideologues on the Left who care about such things and want to hold it against those who defended these programs.  Depicting one’s critics as confined to “the Left” is a time-honored Beltway method for rendering the criticisms unserious, and it’s in full force here (and, as Digby ironically notes, it is the Right, far more than the Left, that has waged war against the CIA in recent years; the Left has largely defended the CIA against manipulation and abuse by the Bush White House).

(5) What all of this is — more than anything else — is a clear warning to Obama from the CIA about the dangers of paying heed to anti-torture and pro-civil-liberties factions, and they’re not really even hiding that.  They’re explicitly expressing the message as a warning:  ”the President-elect risks sending a troubling signal to the intelligence community.”  As Mazzetti and Shane put it after speaking with their favorite sources:    Obama risks “alienating an agency with a central role in the campaign against Al Qaeda.”

Those warnings are issued with an eye towards the events they know full well are imminent:  debates over how legally restrained the CIA should be in its interrogation and detention powers; demands that light be shined on what the CIA spent the last eight years doing at the behest of Dick Cheney and with the legal imprimatur of David Addington’s cabal; and, most of all, efforts to hold those who committed war crimes accountable (efforts which would and should be directed at high-level Bush policy makers and legal advisers who enabled those crimes, not lower-level intelligence agents, but which the CIA nonetheless fears).

* * * * *

What happened with John Brennan is very straightforward and ought not be particularly controversial.  This is someone who explicitly defended some of the most controversial Bush interrogation and detention policies.  Everything that Obama said about such policies, and everything his supporters believe about them, should, for that reason alone, preclude Brennan from being named to any top intelligence post, let alone CIA Director.  It’s just as simple as that.

But, as has been historically true, many in “the intelligence community” are outraged by what they perceive as outside “interference” — as though the CIA shouldn’t be subjected to the same set of oversight, limitations, and democratic accountability, debate and restrictions as every other part of government.  That something as straightforward as the John Brennan controversy can produce this level of backlash from the intelligence community is a very potent sign of the formidable barriers to real reform of our interrogation and detention framework and, especially, to the prospects for meaningful disclosure of, and accountability for, past crimes.

Add comment December 8th, 2008

Accountability: Bloomberg columnist Woolner - Investigate torture!

Bloomberg columnist Ann Woolner joins those calling for torture investigations. Woolner thinks these investigations need to focus on the lawyers who wrote and authorized the memos and opinions that effectively legalized torture.

Bush Bailout for Rumsfeld, Torturers Might Be Next

By Ann Woolner

Dec. 5 (Bloomberg) — The season of forgiveness is here, and federal felons everywhere are hoping some of it will alight on them.

The period from about Thanksgiving until precisely noon on Jan. 20, is prime time for pardons in a president’s last term.

Junk-bond baron Michael Milken wants forgiveness, ex- WorldCom chief Bernard Ebbers a shorter prison term. More than 2,000 applications have flooded the White House and the Justice Department, most from run-of-the-mill crooks.

Then there are those people not yet charged, much less convicted, who nervously look for pardons, too. Suspecting the future might bring indictments, those within President George W. Bush’s administration who may have broken laws to carry out Bush- Cheney policies could use the boss’s protection.

Beyond the wiretappers, the perjurers, the obstructers of justice in the U.S. attorney firings are those who promoted the notion that torture isn’t torture, and even if it is, it isn’t necessarily illegal.

Will Bush preemptively pardon them? If he doesn’t, what are the chances some of them might wind up behind bars?

It would be pleasant to turn our back on the shame of the recent past, fervently denounce torture as un-American and, with a new president and a world eager to trust him, say it won’t happen again.

There is something to be said for forgiving the excesses of public servants, some of whom were risking their lives, who believed they were protecting their nation even if skating close to the law’s edge.

‘Not Even Past’

The problem with just moving on is, as William Faulkner put it, “The past is not dead. In fact, it’s not even past.”

We can’t expect the enemy to respect anti-torture laws when they capture some of our guys, if we have flouted those same laws.

“It’s a question of protecting future military personnel in future conflicts,” says Scott Horton, a New York lawyer to whom military lawyers turned when they couldn’t get the ear of the civilian leaders at the Pentagon. Now he writes for Harper’s magazine, often on torture.

Nor can we allow to rest undisturbed the precedent Bush set for his successors. We can’t simply forget that an administration assumed it had authority to violate the law and human rights.

When the torture at Abu Ghraib prison was exposed in 2004, then-Defense Secretary Donald Rumsfeld told a Senate committee he should be held accountable, if only because it “occurred on my watch.”

Lack of Accountability

Held accountable?

Rumsfeld stayed on the job for another two years without so much as a reprimand from the president. It was as if the torture that killed at least one man, humiliated others and brought shame to the U.S. wasn’t sufficient grounds to kick him out of the Pentagon.

There has to be some sort of accountability for what happened. I am not talking about vengeance or political retribution. I mean a somber, thorough look at what happened and how to make sure it doesn’t again.

If, in the course of that, evidence turns up criminal conduct, we can take it from there.

I’m not especially worried about punishing interrogators who stripped detainees naked, forced them into contorted poses for hours at a time, hosed them down and refrigerated them.

True Investigation

Nor am I focused on those who waterboarded Khalid Sheikh Mohammed, for example, to make the al-Qaeda leader think he was drowning, or who drugged and flew suspects to secret Central Intelligence Agency sites or countries like Egypt for more expert torture.

(But I wouldn’t rule out prosecution for anyone up or down the line, depending on what a true investigation shows.)

More than zeroing in on interrogators, I’m interested in those who declared that sort of conduct legal in the face of clear law that forbids it. This crowd includes former White House Counsel Alberto Gonzales, Rumsfeld, some of Rumsfeld’s top aides and a slew of lawyers at the White House, the Justice Department and the Pentagon. One of them, Jay Bybee, who used to run the Justice Department’s Office of Legal Counsel, now works as a federal appeals court judge.

They crafted memoranda that said interrogators could essentially ignore the Geneva Conventions, international treaties and U.S. law barring torture. They said the president can authorize it in time of war, even though he can’t legally. And they laid out a defense for those interrogators who engage in torture, bogus as that argument was.

Wise Counsel

To accomplish this, they had to reject the wise and persistent counsel of career military lawyers and leaders. These experts insisted time and again that in permitting torture, government lawyers would be breaking the law, making torture more likely for captured U.S. troops, giving the enemy recruiting material and inflicting irreparable damage to the U.S.’s reputation.

Writing a bad legal opinion doesn’t make the author a criminal conspirator. But it’s another matter if a lawyer whose duty is to guide government agents in behaving legally, instead writes memos intended to distort the law and gives cover for illegal conduct.

So far, none of the investigations have led to a definitive account of what happened, though more are under way. If none produce a complete picture, the next president should empanel a commission that will.

Whether through full disclosure or actual prosecutions, there must be acknowledgement of past sins, a determination not to repeat them and accountability for any sinners.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

Add comment December 7th, 2008

Burt Neuborn on the need for a Shaming Commission

TPMtv interviews Burt Neuborne, Legal Director of New York University’s Brennan Center for Justice. He talks about the ability (and thus responsibility) to immediately change some of the ruses- — such as the state secrets defense — that have been used to cover up official wrong-doing. He also presents a new wrinkle to the idea of a torture Truth Commission, by referring to it as a Shaming Commission:

Add comment December 6th, 2008

BBC TV interview with former Guantanamo prosecutor Lt. Col. Vandeveld

Here is the complete BBC TV broadcast on former Guantanamo prosecutor Lt. Col. Darrel Vandeveld. I posted a link to a written version with brief clips the other day. The clips are more meaningful as part of the complete broadcast:

Add comment December 6th, 2008

Accountability: Law professor-citizen says indict torture plotters

Ben Davis, Associate Professor of Law at the University of Toledo College of Law has written an Open Letter from a Citizen to President-Elect Barack Obama: No Bailouts for Torturers. [See also his soon-to-appear law review article.] A key section:

Now some will say to you that we need to heal. I agree we need to heal. But, in healing we need to make sure that the law applies to the high and mighty as it applies to the two bit crack dealer at 7th and U in Washington D.C.

The full letter:

Open Letter from a Citizen to President-Elect Barack Obama: No Bailouts for Torturers

By Ben Davis

Dear President-Elect Barack Obama:

I am a citizen from Toledo, Ohio a place you have come to know as where Joe the Plumber lives.

Notwithstanding everything advisors are saying to you, I write to urge you with all my heart, mind and soul to criminally prosecute in U.S. domestic courts a small group of U.S. high-level civilians and generals for torture and cruel inhuman and degrading treatment in the past seven years of the War on Terror. I have written a 156 page law review article coming out in the next weeks in the St. John’s Journal of Legal Commentary which gives a longer presentation of my reasons. A copy is available at my faculty website.

I originally submitted this to the Washington Post because I suspect that you and the political, business and academic class read it. I want them to also hear this plea, and hope that they read AfterDowningStreet.org.

Long before Abu-Ghraib broke, on January 21, 2004, I stood in the snow in Toledo, Ohio at Owens Community College when President George Bush came to speak. I had a small cardboard sign that said, “Indict Bush War Crimes.” For four years in every forum to which I have been allowed access, I have urged criminal prosecution of these people (see my website). I led the effort to have the American Society of International Law pass its historic 2006 Centennial Resolution on the Laws of War and Detainee Treatment - the highest international law organization in the United States.

I urge criminal prosecution of these high-level civilians and generals because their conduct broke U.S. federal law, U.S. international law obligations, the Uniform Code of Military Justice and state laws.

I urge these criminal prosecutions because U.S. soldiers have been convicted for doing the bidding of these persons.

As has been recounted in numerous places, the soldiers who did these horrendous things were told that this torture was approved on high - whether in Gitmo, in Iraq, or in Bagram. We know that this torture was done with the aid of many allies in many countries around the world. Even here in Toledo we know this.

These soldiers were rightly convicted for betraying their oaths but it does not end there. Even after leaving prison, they are serving a life sentence because of those convictions.

Those persons who put in place the policy of cruelty should not be allowed to not face a jury of their peers also for the crimes committed. Allowing them not to face a jury of their peers would mean that the life sentences for these awful acts are only to be born by the low-level non-general officers - the Americans from places like Toledo who make up the backbone of our services.

Sir, when the four top uniformed military lawyers asked the head lawyer of the Joint Chiefs of Staff to do a full review of the detainee policy, then Chairman of the Joint Chiefs of Staff Myers blocked that effort at the request of then General Counsel William Haynes. That, I submit, is conspiracy to torture and conduct unbecoming an officer and a gentleman by General Myers. It is conspiracy to torture by William Haynes.

Sir, when John Yoo wrote those memos where he made up from thin air definitions of torture, that was not legal analysis, that was conspiracy to commit torture.

Sir, when the National Security Principals sat around and approved specific torture techniques that was conspiracy to torture.

The conduct has been done. The persons I list below are the persons of interest that should be referred for investigation and criminal prosecution. Some may become defendants, all are witnesses to the conduct that is the crime.

If by some happenstance on his last day, President Bush issues a blanket pardon to all these people making it impossible for a U.S. prosecution of these persons, I would ask that you submit their names for a United Nations Security Council referral to the International Criminal Court. Presidential pardons in any country - whether Pinochet in Chile, the generals in Argentina, or George Bush in the United States - are of no consequence for international criminal tribunals. At the same time, I would urge Congress to impeach the former President George Bush under our Constitution.

That will be the best we can do to say to ourselves, to say to any person who has been tortured anywhere in the world, and to say to all people in the Middle East that torture is not the American way.

Now some will say to you that we need to heal. I agree we need to heal. But, in healing we need to make sure that the law applies to the high and mighty as it applies to the two bit crack dealer at 7th and U in Washington D.C.

I will send you a copy of my article when it comes out. I recognize you are busy and would ask that you give it to someone to read.

The list of the persons of interest is as follows:

• President George W. Bush
• Vice President Richard Cheney
• Attorney General Michael B. Mukasey
• Vice President Chief of Staff David Addington
• Former Attorney General and White House Counsel Alberto Gonzales
• Former Deputy to the White House Counsel, Timothy E. Flanigan
• Fran Townsend, Former Assistant to the President for Homeland Security and Counter-Terrorism
• L. Paul Bremer III, Former U.S. Administrator of Iraq
• Former Attorney General John Ashcroft
• Former Assistant Attorney General for the Office of Legal Counsel Jack Landsman Goldsmith,
• Former Deputy Assistant Attorney General for the Office of Legal Counsel John Yoo
• Former Deputy Assistant Attorney General for the Office of Legal Counsel, Patrick Philbin
• Deputy Assistant Attorney General of the Office of Legal Counsel, Stephen Bradbury
• Secretary of State and former National Security Adviser Condoleezza Rice,
• Department of State Legal Adviser and former Chief Counsel of the White House National Security Council, John B. Bellinger III
• Former Secretary of State Colin Powell
• Former Chief of Staff to the Secretary of State Lawrence Wilkerson
• National Security Adviser Stephen Hadley
• Secretary of Defense Richard Gates
• Former Secretary of Defense Donald Rumsfeld
• Under-Secretary of Defense for Intelligence Stephen Cambone
• General Counsel, Department of Defense, William J. Haynes II
• Judge Jay S. Bybee, United States Court of Appeals for the Ninth Circuit, Former Assistant Attorney General for the Office of Legal Counsel
• Former Director of the Central Intelligence Agency George Tenet,
• Former Director of the Central Intelligence Agency Porter Goss,
• Director of the Central Intelligence Agency, General Michael Hayden
• Former Executive Director of the Central Intelligence Agency, A.B. Krongard
• Former Deputy Director of the Central Intelligence Agency, John C. Gannon
• Former Director of the National Clandestine Service of the Central Intelligence Agency, Jose A. Rodriguez, Jr.
• Inspector General of the Central Intelligence Agency, John L. Helgerson
• Acting General Counsel of the Central Intelligence Agency, John Rizzo
• Former General Counsel of the Central Intelligence Agency, Scott W. Muller
• Secretary of Homeland Security and former head of the Criminal Division, Department of Justice Michael Chertoff
• Director of National Intelligence John Mike McConnell
• Former Director of National Intelligence, John Negroponte
• Former Chairman of the Joint Chiefs of Staff Richard Myers,
• Former Chairman of the Joint Chiefs of Staff Peter Pace
• Former General John Abizaid
• Former Lieutenant General Ricardo Sanchez
• Major General General Barbara Fast
• Major General Walter Wojdakowski
• Former Army Major General Geoffrey Miller
• Former Army Brigadier General Janis Karpinski
• U.S. Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency of the United States of America

Sincerely,

Benjamin G. Davis
Citizen
Toledo, Ohio

Add comment December 5th, 2008

Two more on NYT refusal to take torture seriously

UPDATE: I inadvertently included only the first page of Charles Kaiser’s article. This has been fixed. I have also added his update article at the end.

Wednesday’s New York Times article — on the problems faced by Obama’s transition team as they deal with the repercussions of the rejection of John Brennan as CIA Director — is coming under increasing attack. It is seen by many as one of the most blatant examples of the Times’ marginalizing and trivializing of torture opponents. I have already posted several pieces on this by Spencer Ackerman and Andrew Sullivan. Here are two more by Scott Horton and Charles Kaiser [in the Columbia Journalism Review].

Scott Horton:

The Gray Lady’s Torture Problem

By Scott Horton

On Wednesday, the New York Times had another psychotic episode. The paper’s editorial page has been an eloquent voice on the national stage regarding torture. But often enough the news it relies upon for its editorials never finds its way into its reporting–and its reporting on the issue is not only consistently left in the dust by its competition (particularly by the Washington Post), but, often enough, is not much more than half-baked gossip. That’s the case with this piece by Mark Mazzetti and Scott Shane. The story could have grappled with the many subtle and complex policy issues that the incoming administration faces in implementing its no-torture pledge at the CIA. Instead, however, the authors treat us to what sounds suspiciously like an extended pouting session from the camp of John O. Brennan.

Brennan and his friends obviously believe that rejecting him is a slap in the face to all veterans of the war on terror–an absurd proposition that the Times then proceeds to treat as indisputable fact. But the Times’s language is even more revealing. As Andrew Sullivan points out, the Times chokes and sputters and is unable to mouth the word “torture.” As I discovered in studying the paper’s reporting over a period of year, when a neighbor plays his stereo too loudly in the apartment next door, that is “torture.” But when a man is stripped of his clothing, chained to the floor in a short-shackle position, subjected to sleep deprivation and alternating cold and heat, and left to writhe in his own feces and urine—that, in the world of the Times, is just an “enhanced interrogation technique.” Shane and Mazzetti do us one better in this piece. Figures who criticize torture and Brennan’s fitness to be DCI are, we learn, the “left wing of the Democratic Party.” That’s a remarkable characterization for a group that is led by retired generals and admirals, as well as many of the nation’s most prominent religious leaders.

But the most striking thing about the piece is that the authors obviously don’t have a clue about what’s going on inside the Obama transition team. And on that, I extend my congratulations to camp Obama, which is doing a laudable job of keeping its deliberations to itself.

I discuss the piece further with Charles Kaiser at Columbia Journalism Review here.

Update: Senator Feinstein Was Misquoted

But wait: it gets even better. The Times writers were busy yesterday explaining that the key news value of their story was its disclosure that two senators, most notably Californian Diane Feinstein, the incoming chair of the intelligence committee, were backing off the Obama team’s “no torture” pledge. Spencer Ackerman checked the quote attributed to Feinstein in the Times article, and discovered that one key sentence had been hacked off, creating the false impression that Feinstein was opposing the uniform anti-torture approach for which she had voted in the current session. Here’s the text that the Times elided: “my intent is to pass a law that effectively bans torture, complies with all laws and treaties, and provides a single standard across the government.” So when will the Times correct its distorted reporting? And what exactly were Mazzetti and Shane up to with this very bizarre submission?

Charles Kaiser:

Above the Fold: Slanting the Torture Story

Everything you won’t learn about torture in The New York Times
By Charles Kaiser

There is a fierce battle going on over what kind of a CIA director Barack Obama should appoint, when he should close the prison camp at Guantanamo, and whether there should be a full scale investigation (and possible prosecution) of the torture advocates in the Bush administration.

If you’ve only been reading The New York Times, you’re probably aware of these battles—but almost everyone you have seen quoted about them has similar points of view. Most of the Times’s sources don’t think that anyone who formulated or acquiesced in the current administration’s torture policies should be excluded as a candidate for CIA director, or prosecuted for possible violations of criminal law.

The story on the front page of Wednesday morning’s New York Times provides the most recent and the most dramatic example of this syndrome. The story, by Mark Mazzetti and Scott Shane, noted that John O. Brennan had withdrawn his name from consideration for CIA director after liberal critics attacked his role in the agency’s interrogation program, even though Brennan characterized himself as a “strong opponent” within the agency of harsh interrogation techniques. Brennan’s characterization was not disputed by anyone else in the story, even though most experts on this subject agree that Brennan acquiesced in everything that the CIA did in this area while he served there.

Brennan’s self-defense was followed by a quote from another ex-CIA man, Mark Lowenthal, who claimed that Brennan’s downfall “sent a message that ‘if you worked in the C.I.A. during the war on terror, you are now tainted,’ and had created anxiety in the ranks of the agency’s clandestine service.”

“I was aghast reading this,” said Scott Horton, a professor of human rights law at Hofstra and a contributing editor at Harper’s, whose blog was instrumental in framing the opposition to Brennan’s appointment. “The Times doesn’t even do a reasonable job of presenting the conflicts—their principal source today was John O. Brennan. They have not reached out to the other side. It looks like Mark and Scott have decided that it’s payback time for a couple of their sources at the agency.”

Horton also disputed the idea that an investigation of agency abuses would “would demoralize the line officers of intelligence and the military.” The people saying that are “very very skillfully pointing to the interrogators as being the targets—because they know they would not be the targets. The people who would be the targets are policy makers like [Cheney chief of staff David] Addington, who have the same ability to attract sympathy from the public as cockroaches. I’m not sure that the early part of the story is going to be so embarrassing to the company. There was push back at the beginning; you had pretty high level opposition and Cheney decided to cram it down, which is why they went to get that Department of Justice memo” authorizing the torture of prisoners.

Horton added that people in the CIA say Brennan is “absolutely correct he wasn’t responsible for shaping this policy; but when he suggests he was a vigorous opponent, they laugh.”

Asked by Full Court Press about Horton’s suspicions that the piece he had co-authored was payback for his sources at the CIA, Mark Mazzetti replied, “What am I going to say to that? It’s like absurd.”

The Times piece also framed the debate as a contest between CIA veterans and the “left flank of the Democratic Party.” But the only opponent to the Bush administration’s torture policy quoted in the piece was retired general Paul D. Eaton, who oversaw the training of Iraqi forces for the Army in 2003 and 2004.

Eaton, who is one of a group of forty retired admirals and generals opposed to torture, told the Times, “This administration has set a tone problem for the military. We’ve had eight years of undermining good order and discipline.”

I asked Mazzetti if he thought Eaton and his fellow retired generals and admirals regarded themselves part of the “left flank” of the Democratic Party. The Times reporter replied, “I wouldn’t want to comment on that. I think our piece pretty much stands for itself.”

A veteran human rights advocate in Washington explained the press’s dilemma this way:

The people who are doing the transition aren’t talking to anyone. And the people who are talking don’t really know what’s going on. The reporters are under enormous pressure to write stories; so what they inevitably do is go to these people outside of the circle who are either exaggerating their knowledge to make themselves look important, or are advancing an agenda.

(Scott Horton also observed that another piece in the Times Week on Review last Sunday, about how Americans should think about Guantanamo, relied almost exclusively on quotes from supporters of the current administration.)

The piece on the front page of Wednesday’s Times struck me as so unbalanced, I sent this e-mail to four top editors there: “This morning’s torture story on the front page is 1174 words long, of which 147 words are devoted to the anti-torture position, which the reporters writing the story obviously disagree with. I would like to know on what basis you believe this equation meets traditional New York Times standards for fairness and balance.”

Executive editor Bill Keller replied:

Your e-mail is 67 words long, of which zero are devoted to the substance of the story. The story is not a roundup of the debate over the use of torture. It is about the dilemma facing the Obama administration as it seeks a new head of the C.I.A. and tries to decide what level of association with the recent past might disqualify a candidate. One potential choice to head the agency has already withdrawn his name after coming under attack. Now, the piece reports, “Mr. Obama’s search for someone else and his future relationship with the agency are complicated by the tension between his apparent desire to make a clean break with Bush aministration policies he has condemned and concern about alienating an agency with a central role in the campaign against Al Qaeda.” This is a balancing act Obama has not yet resolved, and the article in no way rescribes how he should resolve it…It’s a little unfair to criticize an article for not being some altogether different article you might have written.

Washington bureau chief Dean Baquet told me, “Your take is sort of ridiculous. Your’re reading a point of view on the part of the reporters that is not there. You should read their past stories before jumping to conclusions.”

Since torture is the subject that I have written about more frequently than anything else since I started this blog one year ago, I have indeed read previous stories in the Times about torture, including a particularly egregious one last spring by Scott Shane, which suggested a kind of moral equivalency between opponents and proponents of torture: “Certainly the debate is rich in emotion, with each side claiming the moral heights: You approve torture! You’re coddling terrorists! But the arguments have been scant on science to back them up.”

Then Shane revealed the crucial science which had been ignored in the debate: “…[T]he [Army Field] manual’s inherited wisdom has not been updated to reflect decades of corporate analysis of how to influence consumers. Behavioral economists have dissected decision-making, and academic psychologists have studied political persuasion, but their lessons have not informed the interrogator’s art either.” (I told Baquet that this was one of the oddest observations I had ever read in a newspaper.)

In that same piece, Shane also quoted Benjamin Wittes, a fellow at the Brookings Institution and a longtime defender of the Bush Administration: “We don’t have any idea — other than anecdote or moral philosophy — what really works.”

That is flatly false.

The one story on this subject that should be required reading for everyone is the piece by a former senior interrogator in Iraq in last Sunday’s Outlook section of The Washington Post, entitled “I’m Still Tortured by What I Saw in Iraq.”

Like every one of those retired generals and admirals who has fought against the current administration’s torture policies, the author of the Post piece DOES know what works:

I taught the members of my unit a new methodology — one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they’re listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of “ruses and trickery”). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi. Over the course of this renaissance in interrogation tactics, our attitudes changed. We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shiite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money. I pointed this out to Gen. George Casey, the former top U.S. commander in Iraq, when he visited my prison in the summer of 2006. He did not respond.

This piece also includes the best description anywhere of the immorality—and absolute counter-productivity—of the single worst policy in which the United States has engaged since it annihilated most of the Native American population in the 18th and 19th centuries:

Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there’s the pragmatic side: Torture and abuse cost American lives. I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me – unless you don’t count American soldiers as Americans.

Those are the words Barack Obama needs to remember—and those are the ideas and the facts that you have not read in The New York Times.

Charles Kaiser’s follow-up:

Above the Fold: Sins of Omission
NYT strategically chops Sen. Feinstein’s statement on torture

By Charles Kaiser

Yesterday, FCP focused on a New York Times story about Barack Obama’s search for a new CIA director. Top candidate John O. Brennan had removed himself from consideration for the post after being accused of complicity in the policy which allowed the torturing of prisoners by CIA agents.

I attacked the story because I thought I thought it read like a press release written by past and present CIA officials, determined to head off an investigation of torture abuses.

When I interviewed Mark Mazzetti, who wrote the Times piece with Scott Shane, I told him that one reason the piece struck me as deficient was that it barely balanced the views of the CIA officials it quoted. Mazzetti replied by pointing to the middle section of the story: “We quoted two leading Democratic senators who, we were interested to hear, that they professed some—you know—a degree of flexibility on this subject. Not flexibility—they seem to take a different stance, or a slightly more nuanced stance than they had over the past year—so we quoted both of them.”

The senators were Ron Wyden of Oregon and Dianne Feinstein of California—but it turns out that Feinstein is not as flexible as the Times indicated. This was what was presented in yesterday’s story as evidence of Senator Feinstein’s new “flexibility” toward allowing torture in interrogations:

Senator Dianne Feinstein, the California Democrat who will take over as chairman of the Senate Intelligence Committee in January, led the fight this year to force the C.I.A. to follow military interrogation rules. Her bill was passed by Congress but vetoed by President Bush. But in an interview on Tuesday, Mrs. Feinstein indicated that extreme cases might call for flexibility. “I think that you have to use the noncoercive standard to the greatest extent possible,” she said, raising the possibility that an imminent terrorist threat might require special measures. Afterward, however, Mrs. Feinstein issued a statement saying: “The law must reflect a single clear standard across the government, and right now, the best choice appears to be the Army Field Manual. I recognize that there are other views, and I am willing to work with the new administration to consider them.

But that wasn’t everything Feinstein told the Times. Spencer Ackerman reported today in The Washington Independent that the Times omitted the final sentence in the statement Feinstein issued—a sentence which alters the thrust of her remarks quite dramatically:

“However,” Feinstein said, “my intent is to pass a law that effectively bans torture, complies with all laws and treaties, and provides a single standard across the government.”

A spokesman for Feinstein told FCP today that the senator is now demanding a “clarification” from the Times to learn why that sentence was omitted.

Harper’s contributing editor Scott Horton, who has blogged extensively on this subject, said this about the Times’s omission: “I think this disclosure only serves to underscore the overarching question about this piece. What was the news purpose of this piece? It seems to have been the vehicle for manufactured or false news.”

FCP queried executive editor Bill Keller, Washington bureau chief Dean Baquet, standards editor Craig Whitney, and reporters Mazzetti and Shane about who had made the decision to distort the senator’s remarks by omitting that sentence. FCP also asked if there would be an editor’s note in tomorrow’s paper explaining what had happened. So far, only Whitney has responded, saying he would “find out” if there would be an editor’s note tomorrow, “but it might take longer than that….”

A former top editor of the Times told FCP today that the error required a corrective story, not just an editor’s note. FCP is quite sure about what would happen to the editor or reporter responsible for distorting Feinstein’s position if his former boss, the late Abe Rosenthal, were still the executive editor of The New York Times.

That person would be fired.

Postscript: Scott Shane called FCP after this was posted and said he didn’t see how the omission of that sentence changed the meaning of Feinstein’s statement. Which led to this exchange:

FCP: Why did you leave it out?Shane: Well, we left out tons of things. She talked for a long, long time.

FCP: Well, the trouble with leaving out this sentence is that it makes your whole story look phony. And I’m sorry that you don’t understand that.

Shane: Well, you guys are all dicing and slicing this story in various ways. But a couple of your blogging colleagues read it the other way, and said that the last sentence reinforces…

FCP: They’re entitled to their opinion, and you’re entitled to yours.

Add comment December 4th, 2008

Harvard Law students take on Jack Goldsmith’s protection of US torturers

Recently, Jack Goldsmith wrote a Washington Post op-ed opposing any further investigations or accountability for US torture. Goldsmith is well known as the attorney, who as head of the “Justice” Department Office of Legal Counsel rescinded the Yoo-Bybee memos legalizing torture. Less well known is that, in the process, Goldsmith said that all the actions ["torture" in normal language] were still legal, though the rationales under which they were undertaken were flawed. thus, tortre was fine, but Yoo-Bybee’s legal reasoning was not. Unfortunately, as a consesequence, Goldsmith got an undeserved reputation as an torture opponent. He is now using that reputation to help protect the torturers and keeep their secrets secret.

It has fallen to a few brave Harvard Law School students to denounce Goldsmith’s argument in the Harvard Law Record [Note: Goldsmith is now a professor at Harvard Law School]:

Obama administration must investigate Bush era conduct in the War on Terror

By Katherine Glenn, Anna Myles-Primakoff, and the Board of the HLS Advocates for Human Rights

Last week, Professor Jack Goldsmith published an opinion piece in the Washington Post in which he argued that the Obama administration should not conduct any new investigations into the Bush administration’s authorization of its “harsh, abusive and illegal interrogation program.” Goldsmith, who was an United States Assistant Attorney General for the Office of Legal Counsel during the Bush Adminstration, believes that new investigations into this authorization of torture are unnecessary because we already know most of the story behind the approval of this program and, worse, any new inquiries could compromise national security by “spooking” the intelligence community, making them hesitant to undertake important counterterrorism actions. He also believes that those who “made mistakes” have already been held accountable through severe criticism and loss to their reputations and finances.

Goldsmith’s piece has already been critiqued by a number of analysts and commentators. But his article is particularly troubling for some of us at Harvard Law School who do not share his views. It misrepresents the actions that led to the authorization of torture, it ignores the legal significance of those actions, and it neglects the value that proper investigation and punishment of those actions would have.

Claiming that there is no reason to investigate because those likely to be implicated have already suffered enough is not particularly convincing, given the gravity of the wrongdoing in question.

Reading the now-infamous “torture memos,” in which U.S. and international laws were stretched, bent, and twisted in order to put a legal varnish on the use of interrogation methods well-established as torture, suggests more than a simple “mistake.” The men and women who crafted the legal arguments justifying the use of torture as state policy are intelligent and highly-trained lawyers, who knew and understood the law well. Signing off on interrogation techniques like waterboarding and the use of attack dogs cannot be credibly characterized as actions that “seemed reasonable at the time but now seem inappropriate.” These facts all suggest deliberate distortion of the law to justify patently illegal actions.

The torture memos in particular indicate that, at the very least, the ethical obligations of the legal profession were breached. However, approving the use of torture during interrogations is more than just an ethical violation; it is a war crime that, under the laws of this country, calls for prosecution. An investigation is required to determine who, if anyone, should be charged. The fact that some of the individuals involved have suffered damage to their reputation and finances is no substitute for appropriate punishment if a crime has been committed. To argue otherwise is to suggest that the rule of law does not apply to those at the highest levels of government.

Furthermore, Goldsmith’s argument that further investigation will lead the decision-makers in our military and intelligence agencies to “lawyer up” and behave more cautiously, to the detriment of national security, ignores the fact that the “airtight legal opinions” given by the Justice Department were clearly distorted interpretations of the law. One of the lessons we have learned from the machinations of the Bush administration during the War on Terror is that legal practitioners must be able to give advice-even on highly sensitive issues-without undue political influence.

The Office of Legal Counsel is intended to advise the president on what actions he or she may legally take, not to craft shamefully twisted legal arguments to justify whatever action the president wishes to take. An investigation into what went on sends the message that legal advice must be reliable, consistent and non-politicized. Rather than making national security officials skittish, investigation and prosecution of those responsible for the authorization of torture should have the opposite effect: in the future, officials could feel confident that the legal advice they were given would stand up to future scrutiny, because distorted, “rubber stamp” legal advice will no longer be acceptable.

In claiming that further action on these issues would bring “little benefit,” Goldsmith fails to recognize the value that thorough investigations, followed by prosecution where required, would have both at home and abroad. Notably absent from Goldsmith’s analysis is the potential benefit that such an investigation might have for the many people who were illegally detained and tortured at the hands of United States officials. Investigations would provide an opportunity to begin to make amends to those who were harmed-and in some cases, killed-by the illegal actions of our government. Moreover, investigations would provide the American public with the truth about what exactly was done in their name, and by whom. Such a process can further enhance security by restoring our badly damaged international reputation.

We must reaffirm our commitment to the rule of law, not only to demonstrate that no one in this country is above it, but also to show the world that fighting terrorism does not require the abandonment of our most dearly-held principles.

Add comment December 4th, 2008