The good, the bad, and the ugly news
The Good News: It appears that the Obama Administration has released four memos detailing torture techniques that were authorized at Gitmo.
From the President's statement on release:
The Bad News: Not surprisingly, the Administration is making a promise it shouldn't keep, specifically the promise not to prosecute the CIA agents who relied on the bad and unconscionable advice of the DOJ. Look, I'm not going to belabor the point: regular readers are familiar with what I've said here in the past and new readers can scroll through easily enough or click the tags applied to this entry. The bottom line is that I do not believe the law on prosecuting torturers is optional, and I am disappointed but not surprised that the Obama Administration will, out of political expediency, dishonor the nation's laws by ignoring their legal obligations under Federal law and the United States Constitution. In essence, the Obama Administration is furthering a criminal conspiracy in not even taking a pass at what our treaty obligations (the law of the land under our Constitution) require us to do.
Perhaps a future administration will do a better job of respecting the law. Though I'd be surprised.
I feel obligated, since our national discourse has become such a grotesque self-parody, to add that I believe the President is doing an exceptional job under trying circumstances in nearly every other area of his Presidency to date. One can be simultaneously supportive and critical of the actions of one's leaders.
One more thing I do have to add: the fact that CIA agents or their designees acted in "good faith" on bad legal advice is stunningly irrelevant. The number of tax evaders who would love to seize that "defense" must be stunning. That what the CIA indulged in was unconscionable should have been self-evident; that it was illegal was apparently obvious to the FBI and shouldn't have been a big surprise to anyone else, either. But even if it wasn't: a legal brief isn't a license to go out and do every awful thing that some lawyer said you could; it might mean the lawyer shares some degree of blame (the consequence of which might be anything from censure by his Bar or prosecution as a co-defendant), but it doesn't give you carte blanche.
Let's hope other countries don't follow our shining example: tyrants, despots and blood-soaked genocidal maniacs have attorneys, too.
From the President's statement:
The Ugly News: Spain will not, for the moment at least, be picking up our slack. The Spanish courts will not be authorizing a prosecution of the "Bush Six" at this time, the official grounds being that none of them were physically present at the time the incidents took place.
My recollection is that this defense was rather unsuccessful at Nuremberg, but I suppose one shouldn't expect the law not to evolve.
I have little doubt, despite no proof, that this decision had more to do with political expediency and some transatlantic phone calls than it had to do with a sudden realization that Douglas Feith wasn't personally wrapping someone's head in a sheet and pouring water over it to simulate the sensation of drowning. Surely, surely, surely the Spanish National Court didn't think that the torture-advocates would actually get their hands dirty and risk ruining their tailored suits.
Maybe half of that statement reflects any kind of reality whatsoever: it's certainly possible a trial would have become a circus or "plaything." But alright, then. I really shouldn't have expected more.
The released documents (which I haven't read yet) can be found here.
And now for the part that makes me really fucking proud to be an American:
From Jay Bybee's August 1st memorandum to John Rizzo, Acting General Counsel for the CIA:
While this is not necessarily the worst technique endorsed by Judge Bybee--all of the techniques the CIA asked about were approved, including "walling" (slamming someone into a wall), waterboarding and stress positions, it is the one that brings me closest to tears for my country. It ought to sound familiar:
From the President's statement on release:
First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program -- and some of the practices -- associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
The Bad News: Not surprisingly, the Administration is making a promise it shouldn't keep, specifically the promise not to prosecute the CIA agents who relied on the bad and unconscionable advice of the DOJ. Look, I'm not going to belabor the point: regular readers are familiar with what I've said here in the past and new readers can scroll through easily enough or click the tags applied to this entry. The bottom line is that I do not believe the law on prosecuting torturers is optional, and I am disappointed but not surprised that the Obama Administration will, out of political expediency, dishonor the nation's laws by ignoring their legal obligations under Federal law and the United States Constitution. In essence, the Obama Administration is furthering a criminal conspiracy in not even taking a pass at what our treaty obligations (the law of the land under our Constitution) require us to do.
Perhaps a future administration will do a better job of respecting the law. Though I'd be surprised.
I feel obligated, since our national discourse has become such a grotesque self-parody, to add that I believe the President is doing an exceptional job under trying circumstances in nearly every other area of his Presidency to date. One can be simultaneously supportive and critical of the actions of one's leaders.
One more thing I do have to add: the fact that CIA agents or their designees acted in "good faith" on bad legal advice is stunningly irrelevant. The number of tax evaders who would love to seize that "defense" must be stunning. That what the CIA indulged in was unconscionable should have been self-evident; that it was illegal was apparently obvious to the FBI and shouldn't have been a big surprise to anyone else, either. But even if it wasn't: a legal brief isn't a license to go out and do every awful thing that some lawyer said you could; it might mean the lawyer shares some degree of blame (the consequence of which might be anything from censure by his Bar or prosecution as a co-defendant), but it doesn't give you carte blanche.
Let's hope other countries don't follow our shining example: tyrants, despots and blood-soaked genocidal maniacs have attorneys, too.
From the President's statement:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
The Ugly News: Spain will not, for the moment at least, be picking up our slack. The Spanish courts will not be authorizing a prosecution of the "Bush Six" at this time, the official grounds being that none of them were physically present at the time the incidents took place.
My recollection is that this defense was rather unsuccessful at Nuremberg, but I suppose one shouldn't expect the law not to evolve.
I have little doubt, despite no proof, that this decision had more to do with political expediency and some transatlantic phone calls than it had to do with a sudden realization that Douglas Feith wasn't personally wrapping someone's head in a sheet and pouring water over it to simulate the sensation of drowning. Surely, surely, surely the Spanish National Court didn't think that the torture-advocates would actually get their hands dirty and risk ruining their tailored suits.
"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out," Conde-Pumpido said in a breakfast meeting with journalists. He said a trial of the men would have turned Spain's National Court "into a plaything" to be used for political ends.
Maybe half of that statement reflects any kind of reality whatsoever: it's certainly possible a trial would have become a circus or "plaything." But alright, then. I really shouldn't have expected more.
The released documents (which I haven't read yet) can be found here.
And now for the part that makes me really fucking proud to be an American:
From Jay Bybee's August 1st memorandum to John Rizzo, Acting General Counsel for the CIA:
You would like to place [al Qaeda member Abu] Zubaydah in a cramped confinement box with an insect. You have informed us he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a harmless insect such as a caterpillar in the box with him.
While this is not necessarily the worst technique endorsed by Judge Bybee--all of the techniques the CIA asked about were approved, including "walling" (slamming someone into a wall), waterboarding and stress positions, it is the one that brings me closest to tears for my country. It ought to sound familiar:
'You asked me once,' said O'Brien, 'what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.'
The door opened again. A guard came in, carrying something made of wire, a box or basket of some kind. He set it down on the further table. Because of the position in which O'Brien was standing. Winston could not see what the thing was.
'The worst thing in the world,' said O'Brien, 'varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.'
He had moved a little to one side, so that Winston had a better view of the thing on the table. It was an oblong wire cage with a handle on top for carrying it by. Fixed to the front of it was something that looked like a fencing mask, with the concave side outwards. Although it was three or four metres away from him, he could see that the cage was divided lengthways into two compartments, and that there was some kind of creature in each. They were rats.
'In your case,' said O'Brien, 'the worst thing in the world happens to be rats.'
A sort of premonitory tremor, a fear of he was not certain what, had passed through Winston as soon as he caught his first glimpse of the cage. But at this moment the meaning of the mask-like attachment in front of it suddenly sank into him. His bowels seemed to turn to water.
'You can't do that!' he cried out in a high cracked voice. 'You couldn't, you couldn't! It's impossible.'
'Do you remember,' said O'Brien, 'the moment of panic that used to occur in your dreams? There was a wall of blackness in front of you, and a roaring sound in your ears. There was something terrible on the other side of the wall. You knew that you knew what it was, but you dared not drag it into the open. It was the rats that were on the other side of the wall.'
'O'Brien!' said Winston, making an effort to control his voice. 'You know this is not necessary. What is it that you want me to do?'
O'Brien made no direct answer. When he spoke it was in the schoolmasterish manner that he sometimes affected. He looked thoughtfully into the distance, as though he were addressing an audience somewhere behind Winston's back.
'By itself,' he said, 'pain is not always enough. There are occasions when a human being will stand out against pain, even to the point of death. But for everyone there is something unendurable -- something that cannot be contemplated. Courage and cowardice are not involved. If you are falling from a height it is not cowardly to clutch at a rope. If you have come up from deep water it is not cowardly to fill your lungs with air. It is merely an instinct which cannot be destroyed. It is the same with the rats. For you, they are unendurable. They are a form of pressure that you cannot withstand, even if you wished to. You will do what is required of you.
'But what is it, what is it? How can I do it if I don't know what it is?'
O'Brien picked up the cage and brought it across to the nearer table. He set it down carefully on the baize cloth. Winston could hear the blood singing in his ears. He had the feeling of sitting in utter loneliness. He was in the middle of a great empty plain, a flat desert drenched with sunlight, across which all sounds came to him out of immense distances. Yet the cage with the rats was not two metres away from him. They were enormous rats. They were at the age when a rat's muzzle grows blunt and fierce and his fur brown instead of grey.
'The rat,' said O'Brien, still addressing his invisible audience, 'although a rodent, is carnivorous. You are aware of that. You will have heard of the things that happen in the poor quarters of this town. In some streets a woman dare not leave her baby alone in the house, even for five minutes. The rats are certain to attack it. Within quite a small time they will strip it to the bones. They also attack sick or dying people. They show astonishing intelligence in knowing when a human being is helpless.'
There was an outburst of squeals from the cage. It seemed to reach Winston from far away. The rats were fighting; they were trying to get at each other through the partition. He heard also a deep groan of despair. That, too, seemed to come from outside himself.
O'Brien picked up the cage, and, as he did so, pressed something in it. There was a sharp click. Winston made a frantic effort to tear himself loose from the chair. It was hopeless; every part of him, even his head, was held immovably. O'Brien moved the cage nearer. It was less than a metre from Winston's face.
'I have pressed the first lever,' said O'Brien. 'You understand the construction of this cage. The mask will fit over your head, leaving no exit. When I press this other lever, the door of the cage will slide up. These starving brutes will shoot out of it like bullets. Have you ever seen a rat leap through the air? They will leap on to your face and bore straight into it. Sometimes they attack the eyes first. Sometimes they burrow through the cheeks and devour the tongue.'
The cage was nearer; it was closing in. Winston heard a succession of shrill cries which appeared to be occurring in the air above his head. But he fought furiously against his panic. To think, to think, even with a split second left -- to think was the only hope. Suddenly the foul musty odour of the brutes struck his nostrils. There was a violent convulsion of nausea inside him, and he almost lost consciousness. Everything had gone black. For an instant he was insane, a screaming animal. Yet he came out of the blackness clutching an idea. There was one and only one way to save himself. He must interpose another human being, the body of another human being, between himself and the rats.
The circle of the mask was large enough now to shut out the vision of anything else. The wire door was a couple of hand-spans from his face. The rats knew what was coming now. One of them was leaping up and down, the other, an old scaly grandfather of the sewers, stood up, with his pink hands against the bars, and fiercely sniffed the air. Winston could see the whiskers and the yellow teeth. Again the black panic took hold of him. He was blind, helpless, mindless.
'It was a common punishment in Imperial China,' said O'Brien as didactically as ever.
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