Meditations on Torture: Thomas Paine

This meditation on torture is outsourced to Glenn Greenwald:

My email inbox and comment section are filled with King-like accusatory sentiments that to oppose Torture is to defend Terrorists, because Terrorists deserve to be tortured, and that to oppose their abuse is to be treasonous because it’s terrible to care if Terrorists are abused, etc. etc.  In his 1795 essay, which he entitled Dissertations on First Principles of Government, Thomas Paine wrote this as his last paragraph:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Can that be any clearer?

No.

Published in: on August 27, 2009 at 1:10 pm  Leave a Comment  
Tags: ,

Teach the Controversy

controversy - pyramidOn Wednesday, Glenn Greenwald discussed the media’s tendency to call anyone who supports torture prosecutions the ‘hard left’. He makes the good, and self-evident, argument that those who are calling for prosecutions represent a bipartisan range of Americans; that pro-prosecution arguments are based on principle, not politics.

However, I was struck by this passage quoted from the comments of an earlier post:

I want to point out that the main reason, if not the only reason, for this overwhelming media view is because the only lens through which they can see this issue – like every issue – is the Republican/Democrat or conservative/liberal lens. When one’s entire point of reference for even issues of egregious lawbreaking goes no further than fixating obsessively over the identity of the people and parties to the “controversy” and the issue’s putative effect on partisan politics, whether a leader of one party was informed of the crimes of the other takes on a meaning perversely greater than the evil of the underlying conduct itself.

Our establishment media simply cannot get beyond this stultifyingly narrow framework. It is pathological.

In the face of repeated court-rulings, creationists have been unable to formally inject their beliefs into high school science classrooms, whether as creationism or ‘intelligent design’. Instead, they argue that we should ‘teach the controversy’ – if they cannot teach that God created the earth 6000 years ago, they want to teach the debate over whether God created the earth 6000 years ago. It is a crafty argument and finds some measure of support.

It is easy to see why – ‘teach the controversy’ speaks directly to the core beliefs of a liberal democracy. Through vigorous and unfettered public debate the truth, or the best course for the nation, can be charted. It is the premise behind both the 1st amendment and the principle of academic freedom. So, while the application of this kind of  modern disputatio to high school education is dubious, it is not surprising that a similar principle has wormed its way into the media.

In the interests of ‘balance’, we are told, it is necessary for the media to impartially present both sides of any argument. But this is not an arbitration – the adjudication of the truth is left as an exercise to the reader. This, in an open and intellectually honest debate, would be less objectionable. However, like calls to ‘teach the controversy’, the media now seeks out two-sides to all arguments – even those were no real argument exists. They actively present those among the fringe so as to create balance, giving an open microphone to anyone who disagrees with any position – frequently without providing any context whatsoever. Teaching the controversy is the traditional media’s default position. The effect of this behavior can be seen everywhere: evolution, climate change, ‘enhanced interrogation techniques’, even vaccine safety. It is the hallmark of the local news promo: Tonight at 11, why some people are questioning whether your children should eat carrots.

There are innumerable legitimate debates in this country and it is the media’s role to cover them. But, it is also the media’s role to help us learn about the important ones. By teaching the controversy, the media opens itself up to manipulation by any unscrupulous or fringe group that wants to bury a story  – by stirring up a fake debate, they turn real news into a petty his-says-she-says distraction. That the controversies come packaged in an easy partisan format is all the better.

And people wonder why newspapers are dying.

What Did Pelosi Know, and When Did She Know It?

This seems to be a matter of debate even among the pro-prosecution crowd, with Marcy Wheeler on one side with her fabulous timeline and Jonathan Turley and Glenn Greenwald on the other.

Frankly, I don’t care that much. There are, I think, three kinds of culpability Pelosi could have for the Bush torture regime: criminal, political, and moral.

On the moral front, Speaker Pelosi has already admitted to knowing that the administration might torture. Whether or not she knew they were going to or already had tortured, she already carries a great deal of moral responsibility for not speaking out, publicly. My moral calculus suggests she should have publicly opposed the program even if it resulted in a prison sentence. I know it’s existentialist, but she had a choice to make and made the wrong one.

On the criminal front, I doubt she’d have any even if she knew they were torturing. Intelligence briefings inform, but do not ask for consent. And Pelosi is not so oblivious so as to even cautiously support investigations if they were going to turn up her own criminal wrong doing.

So, I suspect that this tu quoque attack on Pelosi from the torture apologists rests largely on the political culpability issue. They believe that by revealing her knowledge they stand to cool the ardor for investigations among Democrats. They’re wrong.

The Democrats who don’t want to prosecute need no convincing. “Look forward, not back” is a Democratic motto. However, the Democrats who do want to prosecute are not doing it for political reasons. I do believe that torture prosecutions will be distracting and possibly politically damaging. However, we don’t have a choice. Even ignoring our legal obligations, for the good of the Republic we must confront this massive betrayal of our ideals. Evidence of Democratic complicity or complacency only increases this need. Only slightly less than seeing the torturers behind bars, I’d like to see the Democrats who enabled them shamed out of office.

The netroots gained so many members so quickly precisely because of Beltway Democrats’ refusal to stand-up to the Bush administration on anything. As many have said, now that we have more Democrats, we can focus on better Democrats. Any Democrat who allowed the torture program to proceed unimpeded is not a better Democrat. The Democratic party has a big tent with room for lots of policy differences; but when it comes to torture, I’m an ideological purist.

Published in: on May 16, 2009 at 10:12 pm  Leave a Comment  
Tags: , ,

Meditations on Torture: John Donne

(For links to the other posts in this series, go here.)

I apologize for the delay in this second meditation. I had planned to write on Freidrich von Spee, but was unable to track down Cautio Criminalis in a convenient form. So, instead, we’ll move along this week to John Donne, a contemporary, and return to von Spee later.

John Donne (1572-1631), most famous as a poet of religious and romantic subjects, was ordained in the Church of England in in his forties. On Easter in 1625, as the Dean of St. Paul’s, he delivered this sermon, which discusses human transgressions against God’s dignificaton of the body of man. Donne cites torture as one such transgression. This point, that torture violates the dignity of the body of man, foreshadows the concern for human dignity in modern international human rights law. Indeed, the “inherent dignity of the human person” is cited as the source of human rights in preamble to the Convention Against Torture.

Follow me below the fold. (more…)

Published in: on May 10, 2009 at 2:29 am  Leave a Comment  
Tags: , ,

Meditations on Torture: Michel de Montaigne

As a new feature, each Sunday I am going to present a brief meditation on torture from some historic or contemporary thinker or expert; philosophers, generals, doctors, jurists, etc. The goal is to present the wide-ranging and long-running opposition to torture on both moral and pragmatic grounds in the Western tradition. I don’t intend this as an appeal to authority, but merely to demonstrate that the Bush administration and its current defenders are wildly out of touch with basic traditions of Western thought. I hope that this will become obvious over the course of the coming weeks.

Our first intellectual is one of our earliest – Michel de Montaigne. Montaigne was a French writer and philosopher during the 16th century. He is credited with popularizing the essay as a literary form for trying out or contemplating a particular train of thought. The word “essay” derives from the French “essayer”, meaning “to try or attempt.” Montaigne was a noted skeptic, and his skepticism generally drove him in the direction of tolerance, notably for religious dissidents, witches, and the ‘cannibals’ of the New World. It is in this same vein that he approaches the the question of torture. The full essay, “On Conscience” can be found here, and is chapter five of book two of his Essais.

The putting men to the rack is a dangerous invention, and seems to be rather a trial of patience than of truth. Both he who has the fortitude to endure it conceals the truth, and he who has not: for why should pain sooner make me confess what really is, than force me to say what is not? And, on the contrary, if he who is not guilty of that whereof he is accused, has the courage to undergo those torments, why should not he who is guilty have the same, so fair a reward as life being in his prospect? I believe the ground of this invention proceeds from the consideration of the force of conscience: for, to the guilty, it seems to assist the rack to make him confess his fault and to shake his resolution; and, on the other side, that it fortifies the innocent against the torture. But when all is done, ’tis, in plain truth, a trial full of uncertainty and danger what would not a man say, what would not a man do, to avoid so intolerable torments?

“Etiam innocentes cogit mentiri dolor.”

[“Pain will make even the innocent lie.” – Publius Syrus, De Dolore.]

In the essay, Montaigne considers torture both from without and within – the torture of conscience we inflict upon ourselves and the tortures inflicted upon by others. Of the former, only part of the discussion is relevant to us. Montaigne is considering a form of judicial torture, used to extract confessions. While his emphasis is mostly practical – that the innocent will lie to escape torture, making it unreliable – he nevertheless identifies it as “inhumane”, but its morality is not discussed further.

Montaigne was concerned about uncertainty. We are uncertain that someone is guilty. We are uncertain their confession is true. Torture confounds these uncertainties. It may be possible to draw some kind of belief from a person’s willingness to speak, but only if the speech is uncoerced. But by compelling speech, torture casts doubts on even the most likely of confessions. We should be even more cautious when the goal is not a confession, but operative intelligence.

Published in: on April 27, 2009 at 12:24 am  Leave a Comment  
Tags: , ,

Sunday Torture News

From Calitics, the California Democratic Party has resolved to support an impeachment inquiry into Jay Bybee, author of torture memos and federal judge on the 9th Circuit Court of Appeal. Congratulations to DDay (David Dayen) who launched petition to have the resolution adopted at this weekend’s state party convention. The text of the resolution is below the fold.

Meanwhile, at Firedoglake, George Lakoff, a professor of cognitive science at UC Berkeley, makes a novel argument for torture investigations:

President Obama has argued that empathy is the basis of our democracy. It is because we care about others, he has argued, that we have principles like freedom and fairness, not just for ourselves but for everyone.  I have found, in studies of largely unconscious political conceptual systems, that empathy is the basis of progressive political thought, and the basis for the very idea of social, not just individual, responsibility. Conservative political thought is otherwise structured, based on authority, discipline, and responsibility for oneself but not others. The major moral, social, and political divide in America centers around empathy.

[Snip]

Torture violates empathy in the most direct way. The very neural system we use in creating inhuman, unbearable pain in someone you are looking at, hearing, and touching is the same neural system that equips us to feel the pain we are creating. It is the same neural system that creates human connections with others. And the same neural system that lies at the heart of political democracy. Turning it off is turning off humanity, and with it democracy.

It’s interesting. Go read the whole thing.

(more…)

Tu Quoque (Updated)

The lastest pushback from the Republican party on the released torture memos is the claim that Democrats knew about the techniques – waterboarding in particular – and raised no objections.

[A] full-blown battle has opened between House Speaker Nancy Pelosi, D-San Francisco, and her GOP counterpart, Ohio’s John Boehner about how much top Congressional leaders knew about water boarding in 2002. It is being fueled in part by a timeline released by the Senate Intelligence Committee, chaired by another California Democrat, Dianne Feinstein.

Boehner released news reports from 2007 that seemed to contradict Pelosi, and Pelosi’s office fired back with their own. Boehner said Congressional leaders “received an awful lot of information” about interrogations, and that “not a word was raised at the time, not one word. And I think you’re going to hear more and more about the bigger picture here, that … the war on terror after 9/11 was done in a bipartisan basis on lots of fronts.”

I agree entirely. In fact, this has been a long-running complaint among most progressives that the cotton candy ass Democrats in Congress did nothing to stop the erosion of civil liberties and the rule of law over the past eight years. But this misses the point. Whether and when Congressional leaders knew about waterboarding is of no import on the question of whether Bush officials violated the law. It is of political import, of course, and of moral import. It may even be of legal import for those Congressional leaders (see: the Ministry Cases from Nuremberg). But on the sole question of whether war crimes were committed, it doesn’t matter.

I also think that this argument from Boehner evinces a basic misapprehension about what is going on here. Republicans are making a political defense because they believe all of this ‘torture stuff’ to be a political attack. Likely because if roles were reversed it would be a political attack. But it isn’t now. The D.C. political class is frankly doing everything in its power to avoid dealing with this, largely, I suspect, because they do know they face a serious political downside both for being seen as partisan and for having ignored the issue for so long. If not complicit they were at least complacent.

For most, if not all, prosecution advocates, it doesn’t matter who committed the crimes. I would want prosecutions just as strongly if a Democratic administration had been the bad actor. War crimes should never be swept under the rug. And, just to head you off at the pass, the Clinton impeachment was different. I would have been perfectly happy to have had Bill Clinton arrested and tried for perjury the minute he left office, but impeachment is a political process in a way that a criminal investigation and prosecution is definitively not. And, of course, perjury cannot really be compared to war crimes in any meaningful way.

Finally, Speaker Pelosi, this response you’ve developed isn’t going to work.

At that or any other briefing, and that was the only briefing that I was briefed on in that regard, we were not — I repeat, we were not — told that water boarding or any of these other enhanced interrogation methods were used.

What they did tell us is that they had some legislative counsel — the Office of Legislative Counsel [sic] opinions that they could be used, but not that they would. And they further — further, the point was that if and when they would be used, they would brief Congress at that time, A.

B, I know that there are some different interpretations coming out of that meeting. My colleague, the Chairman of the committee, has said, ‘Well, if they say that it’s legal, you have to know that they’re going to use them.’ Well, his experience is that he was a member of the CIA and later went on to head the CIA. And maybe his experience is that if they tell you one thing, they may mean something else. My experience was they did not tell us they were using that. Flat out. And any — any contention to the contrary is simply not true.

Speaker Pelosi, you had at the very least a moral obligation to prevent the administration from violating the law and committing a war crime. The mere fact that they believed they could torture people should have prompted all kinds of outrage. When the first reports about Abu Ghraib came out in January 2004, it should have been easy to connect the dots. By the time the Bybee memo leaked in the summer of 2004, you had no excuse whatsoever for not addressing this. Do not play coy. You hold a great deal of moral responsibility for what happened here, even if it is nowhere near the amount that accrues to the Bush administration. You can begin to redeem yourself by admitting your failures – the public loves a mea culpa. But more than being the correct political move, confession is good for the soul.

Update: Glenn Greenwald makes this same point quite a bit better than I do.

Update 2: It is worthwhile to remember that whatever Congresswoman Harman’s other flaws, she did protest the torture program.

Prosecutions: Now or Later?

Elizabeth de la Vega, a former federal prosecutor, was on Countdown tonight arguing that we need to delay the appointment of a special prosecutor, at least for a while. She cited the following concerns:

  • A special prosecutor would allow both Congress and the administration to bury any torture investigation, sending it into a “black hole”. She specifically cited the Scooter Libby investigation as an example.
  • There is no guarantee of an indictment from a grand jury, meaning that the full story may never be known without an initial public investigation. Again, she cited the Libby investigation, where he was only indicted for perjury and we still don’t know the full story.
  • The need for a full public narrative regarding torture, which is unlikely to arise without a public investigation and report.
  • And, finally, now that the law establishing the Office of the Independent Counsel has expired, special prosecutors aren’t really independent and their appointment is essentially a PR move. She again cites the Libby case, but also investigations into the destruction of the CIA torture tapes and the US attorney firings.

The video of the interview can be found here (I still do not know how to embed MSNBC video in wordpress). An article she wrote making the same argument is here.

We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess – just as any lawyer would do when contemplating choices of action in a case – what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it’s smarter to wait before taking a prosecutive step and this is one of them.

Read the whole thing and watch the interview – it is a good argument and immediately cooled my blood. However, I’m not convinced. The reason rests largely with this point made by Christopher Anders, the ACLU’s senior legislative counsel during a live chat at Crooks & Liars.

Holder doesn’t have to appoint an independent prosecutor today, but he can’t waste too much time. The Anti-Torture Act has an eight-year statute of limitation, but Abu Zubaydah (who was waterboarded 80+ times in a single months) was captured in March 2002, and FBI agents who observed the CIA interrogating him from April-June 2002 described it as “borderline torture” and comparable to SERE tactics. The statute of limitations for those particular interrogations runs out in about a year. And that’s a very important set of interrogations because they occurred before the OLC opinions were issued—so no OLC opinions there to complicate a prosecution.

This is a point that bears repeating. We should not allow the statute of limitations to expire on this, as has happened for some of most clearly illegal warrantless wiretapping. There can be no good faith reliance on advice of counsel defense for acts that occured prior to the receipt of advice from counsel, which could be key in getting mid-level officials to testify against their superiors. In January, John Conyers proposed extending the statute of limitations on torture and warrantless wiretapping, among other crimes, to 10 years. It is unfortunate his proposal was not quickly acted upon. It is too late for the March 2004 wiretaps, but not for the April-June 2002 interrogations or the August 2002 Bybee memo.

I do not believe that de la Vega is in any way disingenuous about believing that the best possibility for a full public accounting of the torture program and a successful prosecution of those involved requires a more measured public approach. However, indictments will take time, even in the aftermath of a full public report from a commission; a report that will take considerable time in of itself. In the absence of congressional action, the clock is ticking and the questions may need to be asked: would we rather a full public accounting or a prosecution? Are we willing to let some people involved go free by virtue of their early departure from the administration, like Jay Bybee, in order to make the case against others stronger? These are not questions that I feel comfortable answering, but someone will need to – sooner rather than later.

On a broader note, it should not be possible for the statutes of limitations for any crime committed by executive branch officials in their official capacities to expire during a two-term presidency, meaning that they all must be longer than 8 years or they should be tolled until the end of the current administration. This seems like a common sense good government reform, though I’d be willing to hear arguments saying otherwise.

Tinfoil is the New Black

In many ways, this is a conspiracy theorist’s dream come true (as articulated by Paul Krugman):

Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link.

Published in: on April 22, 2009 at 11:02 pm  Leave a Comment  
Tags: , , ,

Impeach Jay Bybee

I wrote yesterday about David Dayen’s petition to have the CDP adopt a resolution calling for Judge Bybee’s impeachment. Today, the Courage Campaign has joined the call. Sign their petition here. The deadline is Friday 9am – so sign now.

When President Barack Obama released the contents of President Bush’s torture memos, America learned the full extent of the horror that was unleashed at Guanatanamo Bay on detainees. One of the memos was written by Jay Bybee in August 2002. It authorized the use of waterboarding, “cramped confinement”, “walling” — where a detainee’s head is repeatedly pushed against a wall — and even putting insects into a confined space with a detainee.

Jay Bybee is now a federal judge here in California, serving on the important Ninth Circuit Federal Court of Appeals, based in San Francisco. He has not been held accountable for the lawbreaking he committed and enabled.

The California grassroots are determined to change that. Los Angeles Democratic activists John Heaner, Agi Kessler and Richard Mathews have sponsored a resolution calling on the House of Representatives to begin impeachment proceedings against Jay Bybee.

Update: And here is a petition to John Conyers, Chairman of the House Judiciary Committee from the People For the American Way.