Obama’s Early Days Pleasing…To Republicans
What a delicious irony it would be if Barack Obama, the Democratic answer to eight years of the hated Bush, ended up having a higher approval rating among Republicans than Democrats! Now, I don’t really believe that’s the case – actually, rank and file Democrats are quite confident that Obama will be a good president – 91% think so, compared to 36% of Republicans. But among the far-left denizens of the ‘progressive’ blogosphere, Obama has caused almost nothing but grief, spurred mainly by his determination to govern as – gasp! – a pragmatic centrist.
Take Guantanamo Bay (please! Ba-dump-bing! Apologies to Henny Youngman). In the mind of progressives, Guantanamo is symbolic of the racist, inhumane, war-criminal thuggery that is, of course, the secret love of all conservatives. In the real world, Guantanamo is full of very, very bad people who want nothing better than to kill those progressives because they are American devils. Barack Obama wants to close Guantanamo – but as he said this weekend, that’s easier said than done:
“It is more difficult than I think a lot of people realize,” the president-elect explained. “Part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it’s true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, by doing it in a way that doesn’t result in releasing people who are intent on blowing us up.”
Naturally, that’s not enough for ultra-partisan and best-selling NY Times author Glenn Greenwald, the omniscient arbiter of all things progressive:
Obama’s interview today with George Stephanopoulos provides the most compelling — and most alarming — evidence yet that all of the “centrist” and ”post-partisan” chatter from Obama’s supporters will mean what it typically means: devotion, first and foremost, to perpetuating rather than challenging how the Washington establishment functions.
As Talk Left’s Jeralyn Merritt documents, Obama today rather clearly stated that he will not close Guantanamo in the first 100 days of his presidency. He recited the standard Jack Goldsmith/Brookings Institution condescending excuse that closing Guantanamo is “more difficult than people realize.” Specifically, Obama argued, we cannot release detainees whom we’re unable to convict in a court of law because the evidence against them is “tainted” as a result of our having tortured them, and therefore need some new system — most likely a so-called new “national security court” — that “relaxes” due process safeguards so that we can continue to imprison people indefinitely even though we’re unable to obtain an actual conviction in an actual court of law.
Now, you’ll search high and low through Greenwald’s post – feel free, if you’re the masochistic type – for any mention of WHY Obama is hesitant to just close Gitmo – in his own words again, he wants to make sure we create a process that is in America’s best interests by “doing it in a way that doesn’t result in releasing people who are intent on blowing us up“.
Now, I understand Greenwald’s point, believe it or not – it’s the same point that’s been made for years by organizations like the ACLU. Part of what defines America is its condemnation of torture and coereced confessions and indefinite detention and all that good stuff. I don’t disagree. Neither does Obama. But there’s still the matter of what to do with the very bad men who make up the vast, vast majority of the Gitmo population. It would be an abdication of the fundamental duty of the president – to protect America – to just close Gitmo tomorrow and move these guys into the normal prison system. It’s a very sensible approach by Obama to consider the process carefully before taking action – but this sort of sensible ‘centrism’ is anathema to Greenwald and his ilk:
In fairness, Obama has long made clear that this is the approach he intends to take to governing. After all, this is someone who, upon arriving in the Senate, sought out Joe Lieberman as his mentor, supported Lieberman over Ned Lamont in the primary, campaigned for Blue Dogs against progressive challengers, and has long paid homage to the Beltway centrism and post-partisan religion.
Ah, yes, we almost went ten minutes without criticizing Joe Lieberman. How foolish…and curse that Obama for embracing centrism and post-partisanship – because man, what we really need now in America is more braying loudmouths deriding other Americans who believe differently than they do – wouldn’t it be great, for example, if our president was more like – oh, I don’t know, a real patriot and hero like Glenn Greenwald?…
Raise your hand if you hunger for more bitterness and partisan invective from your president – anyone? Hello?
Well, I’m not surprised – I didn’t expect to see many hands here. After all, you have the good taste to frequent this blog…
It is vastly easier to be Glenn Greenwald than it is to be President of the United States, it is the difference between the academic and the real. I, for one, am glad to see that Obama takes his job seriously.
I would be far happier if our President took a position on civil liberties that looked a lot more like Greenwald’s, so there’s one for you.
That said, one quibble: the claim that the fundamental duty of the President is to protect America is false. The President swears an oath to “preserve, protect, and defend the Constitution of the United States”. You can claim whatever you want about what he’s doing to protect US citizens, but there is no such thing as America without the Constitution. And since the activities taking place at Guantanamo are unconstitutional, President Bush – and soon President Obama as well – is in direct violation of his oath of office. I’d say impeach him and keep on impeaching whoever takes the office until we get one that actually takes the oath seriously, but I’m just a crazy radical who thinks torture and detention without charges are unacceptable for any reason. Even for “protecting America”, which – as Greenwald and civil libertarians everywhere have been pointing out for years – is the sort of pathetic, inane bull**** you get from people who don’t actually have an argument for their position.
True, true, the presidential oath is to the Constitution…I should have said A fundamental duty, rather than THE fundamental duty…but if you’re already ready to impeach Obama because he won’t promise to close Gitmo in his first 100 days, but rather as soon as it is safe to do so…well, Ryan, you really are nuts…
And I don’t take it as a given that the activities taking place at Gitmo are unconstitutional – have we dissolved the Supreme Court and I missed it? Bush has won some SCOTUS battles related to his detention policies, and lost others…back off the hysterics a moment.
Besides, Obama said he is closing Guantanamo – it just won’t be in the first hundred days, in all likelihood. If it takes Obama eight months to close Gitmo instead of three, that’s impeachable?…
Rather than the sanctimonious Greenwald, who is aghast that Barack Obama, in the midst of the biggest economic crisis since the Great Depression, isn’t going to waste time prosecuting Bush and Cheney for “war crimes”, I prefer to take my cue from Charles Fried, Harvard Professor of Law:
As to Charles Fried, I think Hilzoy adequately demolishes his argument.
I’m with Jacques, Hilzoy, and several others (including Daniel Larison). It seems to me that, if you believe Bush administration officials have committed war crimes – as I do – then you have to believe that the only acceptable course of action is to put Bush, Cheney, et al on trial. Contra Fried and many others, there is nothing “sane” or “moderate” about the claim that war criminals should be pardoned for their crimes by the mere existence of elections. If there is a reasonable suspicion that these people have violated the law, and I have to believe we are well past the point of reasonable suspicion, the only thing a society committed to the rule of law can do in good conscience is put them on trial. Anything else is a spectacular failure of justice.
As for the rest, I don’t object to your post or Obama’s rhetoric because I have a specific time frame in mind. I have no particular argument to make about the constitutionality of a three-month versus an eight-month timeline. My objection is to the idea that Guantanamo represents a problem because it’s full of bad people who we need the President to keep there for our safety. That line of reasoning is completely extra-constitutional. The President has no legal authority to indefinitely detain and torture people simply because he believes, without a trial of any kind, that they’re a threat to my safety. To say that he’s doing it for a good cause is utterly beside the point.
There is, in my opinion, one rationale for not going ahead with such prosecutions, namely if you don’t think you can get a conviction.
That may be the case here. But you’d need to appoint a Special Prosecutor (or, at least, an investigative commission) to explore the feasibility of bringing indictments.
And, remember, these prosecutions don’t necessarily start at the top.
I agree with Ryan and Jacques that O should make war crimes prosecutions a high priority.
I also agree that Gitmo should be closed immediately and full criminal trials held immediately for all those imprisoned.
There is another good reason for not trying Bush and Cheney for war crimes – because they didn’t commit any.
Here’s another one: because we need to concentrate on the economic crisis rather than political revenge.
And another: we…
Oh, hell, what’s the use…I’m not going to convince you guys on this one, so I won’t even try.
BUT I will make a prediction: if Henry Kissinger hasn’t been prosecuted for war crimes (and he hasn’t) you can bet your butt that Bush and Cheney won’t, either. Obama isn’t going to go down this path. He’s too smart for that…
Torture is a war crime. Waterboarding, sleep deprivation, being subject to extreme heat and cold, and being threatened by dogs are all torture. These are all things which have been authorized by Bush and Cheney. This is simple deductive logic: Bush and Cheney committed war crimes by authorizing torture. QED. There’s no way around it.
The fact that Kissinger was never indicted for war crimes is irrelevant. It’s like saying that if O.J. Simpson can get away with murdering his wife and Ron Goldman, then it’s OK for others to do the same.
You could make the case that President Obama, being sworn to uphold the Constitution, is obligated to have Bush and Cheney prosecuted for deliberately violating the Geneva conventions (which is, in itself, a separate crime: the executive branch does not have the authority to violate treaties passed by the Senate). You could also make the opposite case: that Obama should have the equivalent of prosecutorial discretion, and decline to prosecute.
I think Obama’s remark on Sunday (“it’s time to look forward”) is silly. I don’t think many defense lawyers would have much luck arguing to a judge that their client committed a crime, but let’s forgive and forget because it’s time to move forward.
My view is that there should be a 9-11 type commission to investigate and report on the various illegalities of the Bush administration, and then let chips fall where they may. It would be unconscionable and unconstitutional to simply ignore them.
It’s not at all 100% agreed by legal experts that waterboarding is torture. You can assert it, but that doesn’t make it so.
We discussed this in great detail at the time. But in case you want to make the case that any American leader who consented to waterboarding is guilty of war crimes, you better get ready to put Nancy Pelosi on the dock, too:
Nancy Pelosi consented to waterboarding – she encouraged it – she asked if it was strong enough! Waterboarding is torture. Nancy Pelosi committed a war crime. QED. There’s no away around it.
Or maybe it’s only the people who ORDERED the torture who are guilty of war crimes. Tell that to the Nazis hanged at Nuremburg.
Can we quit this stupid game now? It’s time to get off the high horse. We waterboarded three people – one of them, KSM, is about the most dangerous man alive. I’m not excusing it, and I understand slippery slope arguments, but let’s keep things in perspective. We weren’t running torture chambers like Saddam in the bad ol’ days…
Another thing you guys totally ignore is the partisan rancor that would erupt if Obama’s team went after Bush and Cheney. There would be zero chance – none – of Obama getting any Republican support for anything of consequence if he went after the president in office when 9/11 occurred for harsh interrogation techniques. You may not like it, but if you think about it, you KNOW it’s true…
1) Waterboarding is torture by any definition. It was started in the Spanish Inquisition to force confessions.
2) If Nancy Pelosi countenanced waterboarding, then she should be part of the investigation. Illegality knows no partisan boundaries.
3) So your argument is that Republicans in Congress — who were so eager to impeach Bill Clinton for dissembling about his affair with Monica Lewinsky — are willing to look the other way when one of their own commits a far greater offense?
4) The fact that we weren’t committing torture on the same scale as Saddam Hussein is irrelevant. First, I don’t think that the standard you want to apply is whether or not we were worse than Saddam. Secondly, the law does make a distinction whether you commit one war crime or a thousand war crimes. A crime is a crime, and all crimes come under the purview of the law.
I think we can all agree that Ho Chi Minh committed a war crime when John McCain was tortured as an enemy combatant. Why would George Bush not be guilty of war crimes for torturing people he characterized as enemy combatants?
Sorry, meant to write “the law does NOT make a distinction…”
So, just to be clear: you think the best thing for this country at the present time is to divert attention from the massive job in front of us by prosecuting the outgoing administration, a good chunk of the CIA, Nancy Pelosi, and…
Not going to happen…nor should it…
I don’t think it is a diversion at all — there is no reason why an independent commission investigating these issues impedes the government’s ability to do the many other things it needs to do.
One hopes that our collective ability to walk and chew gum at the same time has not been irreparably damaged.
The impeachment of Bill Clinton was a diversion. Both houses of Congress had to abandon the people’s business for weeks (months?) so the GOP could diminish the stature of a popular President. One yearns for the days when Presidential misdeeds were on the level of stained dresses and Illegal Use of Humidor.
So you think the impeachment of Clinton was a diversion but the trial of the most recent administration for war crimes would not be?
Jacques and Peter, you’re both very smart individuals. You can’t possibly believe that. It would suck the oxygen out of the Congress, the executive branch, the courts, the U.S. media, and the world media. It would be far, far bigger than Watergate.
Think for a moment and you know it to be true – Jacques, this isn’t like walking and chewing gum. It’s like driving and building a new bookcase…
I treally don’t think so. An independent commission meets in private and releases a report. Think of the 9/11 commission or the Baker commission on Iraq. I would imagine that it would get some publicity while they are meeting, as people speculate on what is going on behind closed doors, and there would be lots of attention when the report is released, probably lasting a week or two. Nothing which would prevent the government from functioning normally.
If the report recommends indictments and things go to a prosecutor, then you have a situation similar to when Scooter Libby was indicted and convicted. Again, nothing which would prevent the government from functioning normally.
However, this is all beside the point. You don’t make exceptions to the rule of law because the economy stinks, Gaza is aflame, and Iran is working on a bomb. Things have been done in the past eight years which are shameful at best and possibly illegal at worst. Transparency is the best disinfectant. To simply ignore everything because of exogenous circumstances not only is pointless, but it diminishes the rule of law.
Let’s take the case of Maher Arar, a Canadian who was mistaken for a terrorist at JFK airport and sent to Syria for nearly a year to be tortured. Although he is completely innocent, the Bush administration not only refuses to compensate him for this horrific act, but will not even recognize the fact that it made a hideous mistake.
I find it hard to think of anything in American history as shameful as this. It may be smaller in scale than slavery or lynching, but to think that in this day and age an innocent man can be sent to a foreign country to be tortured by the authority of the U.S. government is an abomination too great to be accepted.
Nobody has ever been held accountable for this, or any of the other cases when innocent men were tortured, at Gitmo or elsewhere. To me, this is a stain which must be expunged. Your argument is that we should sweep it under the rug because leaders in Washington won’t be able to focus on anything else?
No, my argument is you guys need to get some historical perspective and get off the idea that the CIA was growing flowers and singing love songs until George Bush got there and corrupted them.
This is the president who had to respond to 9/11. Does that mean anything goes? In hindsight, no…but I provided you with a link from the Washington Post above, showing that bipartisan support existed for tough interrogation techniques. When the Bush administration briefed Congress (both parties), they said, are you being tough enough?
The president also sought advice from his legal team. You have already tried and convicted him. In your own words, torture was done. It’s so because you say it’s so. Obviously the president’s legal team disagreed. Obviously bipartisan congressional overseers disagreed.
Now everyone wants to wash their hands and blame big, bad Bush and Cheney…but they were clamoring for blood in 2002…
And the briefings explicitly included waterboarding…no objections from Pelosi et al…
Mark, why are you incapable of getting your head around that fact that Nancy Pelosi’s party affiliation is irrelevant to us? If she has authorized torture, then she is guilty and should be in the stockade right next to everyone else. More generally, why are you incapable of understanding that the number of people who approve or write neat position papers about a crime is irrelevant to whether it’s actually a crime?
There is a simple legal question here: did the Bush administration (and anyone else you’d like to throw in, from Nancy on down) commit war crimes? I think the answer is a pretty clear yes, but that’s also beside the point. There is clearly enough evidence to conduct an investigation that will determine whether or not to bring indictments. (I think there’s clearly enough evidence to bring indictments, but again, that’s irrelevant.)
And, though I don’t want to belabor the point, your obfuscations are also irrelevant. I happen to think you’re right that this would suck the oxygen out of the room. But if we are to take seriously the idea that this is a nation of laws and not men, or that there is any moral fiber in this country worth saving, we need to deal forthrightly with the fact that we are about to refuse to investigate possible crimes against humanity because it would be politically inconvenient for us to face our own music. Let’s all keep that in mind next time we go on some damn fool crusade to bring the American way of life to the far corners of the globe.
Well, Pelosi’s party affiliation is important in one respect: Democrats are far less likely to push too aggressively for an investigation that could bring down one or more of their own. It’s important in another respect: it shows that Bush’s policy was a reaction to 9/11 that went beyond one party or administration. We pushed back hard after the Trade Centers fell – maybe we went too far, but we did it with our eyes open, both parties. No one wants to admit they were for it now, but they sure didn’t have a problem with it at the time.
That’s not far-fetched – it’s stating the obvious…
Surely, even you would agree that not everyone is guided by petty partisan calculation.
Good luck getting the government to convict other members of the government (and maybe themselves) based on one lawyer’s subjective interpretation of whether or not torture occurred:
“the techniques. . .used were all authorized but the manner in which they applied them was overly aggressive and too persistent.”
“it was not one particular act [but] just a combination of things that had a mental impact on him, that hurt his health.”
I don’t disagree that crimes should be tried and if proved, punished. I just don’t see, as Mark says, how you can expect any sort of fair and proper result (see: wolves guarding henhouses).
Jacques, I read that article – it’s troubling. I’m not an apologist for torture, believe me…but even the ACLU says Crawford’s statement smells of CYA…
Just to show I don’t have my head in the sand, this article is also very troubling:
http://www.washingtonpost.com/wp-dyn/content/article/2009/01/14/AR2009011402319.html?nav=hcmoduletmv
Clearly, there has been more abuse going on at Gitmo than I was aware of. It’s not a good thing…
At what point, Mark, do you graduate from being “concerned” to believing that this is a matter that ought to be pursued?
Putting aside any manby-pamby notions of “justice” or “the rule of law”, I seem to recall that conservatives were big on the notion of the deterrent effect of criminal prosectutions. Is this the sort of behaviour that ought to be deterred? If not, why not?
I believe much as Obama appeared to signal he believed: where we have evidence of outright criminality, of course, we most prosecute. If we have policy differences, we shouldn’t engage in witch hunts. It’s a thin line, but it is discernible.
For example: Bush decided to waterboard three high value targets. He did not do it in secret – he consulted his legal staff, he consulted Congress (at least the bipartisan oversight members of Congress), and he did it in a limited fashion, as far as we know.
I realize that many, perhaps most, people view this as torture – but it was a policy that was pursued semi-publicly, a policy that was later abandoned, and anyone who participated in the waterboardings, in my view, should not be prosecuted.
However, if you have situations like Abu Ghraib, or the latest Gitmo allegations, that’s entirely different.
Now, someone may object and say: torture is a war crime subject to such things as the Geneva Convention. Quite right…but I still don’t think the waterboarding of three detainees rises to the level of a war crimes trial. At the risk of sounding like a complete cynic, I believe war crimes trials should be very few and far between; they should stand as the ultimate public spectacle to condemn a regime that systematically terrorizes entire populations through indiscriminate, random violence with no regard for human rights…the obvious examples of Nuremburg and the Eichmann trial come to mind.
The deterrent for the continuation of these techniques was a political one, as Fried noted above: the Republicans were soundly defeated, the new administration is going a different route, and Gitmo will be closed…
Waterboarding is torture under International Law, and it is torture under US statute. This country has, within living memory, tried, convicted and executed people for the crime of waterboarding prisoners.
And, no, this was not pursued publicly at all. The Administration, for years, expressly refused to acknowledge what “enhanced” interrogation techniques were used. And the CIA only, reluctantly, admitted to having used waterboarding years after the fact, when it became impossible to deny it any longer.
Those allegations are not new. They have been known for years and have been elaborately documented in books by Philippe Sand, Jaffer and Singh, and others.
Again, you are confounding politics with criminality.
Losing an election is not a punishment for jay-walking, let alone war crimes.
And which of the alleged perpetrators — George W Bush, Dick Cheney, Donald Rumsfeld, David Addington, CIA officials and military commanders up and down the chain of command, … — lost an election?
Well, we’ll just have to agree to disagree on this one.
I think a war crimes trial would be terrible for this country. I truly believe that. I don’t say it as a partisan. It would raise the partisan temperature to the boiling point, it would be an exercise in scapegoating, given top Democratic complicity, it would suck the oxygen out of the room for the world media, and it would be an enormous distraction at a time that we cannot afford to be distracted.
Again, I repeat my main point: war-crimes trials should be directed at regimes that systematically terrorize entire populations. You would search high and low for a president who could not have been prosecuted for war crimes. In the twentieth century, only Jimmy Carter comes to mind…and I might be wrong about him. But certainly FDR (firebombing civilians), Truman (the second atomic bomb, if not the first), Eisenhower (fighting an undeclared war in Korea), Kennedy (the Bay of Pigs), Johnson (Gulf of Tonkin, napalm on civilians), Nixon (Cambodia invasion, negotiations with South Korea while still a candidate, etc., etc.)…okay, maybe not Ford, either…Reagan (Iran/Contra), Clinton (bombing pharmaceutical factory to distract from Lewinsky trial), and now Bush.
Yet we have prosecuted none of these men for war crimes…and we won’t prosecute Bush, either…and as I said before, in my view, but clearly not yours, and I understand that, that’s a good thing…
Mark, you are 100% correct.
The politically expedient thing to do is to ignore the evidence gathered to date, to decline to investigate further, and to quash any attempt to bring legal proceedings against the perpetrators. To do otherwise would endanger the fragile political comity that we now enjoy.
My concern is elsewhere. I worry about the message this sends to future generations of would-be torturers. What it tells them is that they may proceed with impunity. No matter what they do (up to and including killing the detainees in their custody — as happened at Abu Ghraib, at Baghram AFB and elsewhere), they will get off scot-free, because it will never be politically expedient to prosecute them.
In fact, I expect that they will look back on this episode and conclude that the one mistake made by this torture regime was to fail to plan ahead for the pesky problem of what to do with the detainees, once they’re done torturing them. With proper planning, that too has a solution.
Now, that’s not quite what I said…if a detainee is killed in custody, there is no debate about what has to be done there…you must prosecute, absolutely. I don’t want to see a war crimes trial, but that doesn’t mean I don’t want criminal proceedings brought in cases that clearly warrant it…
More on the subject in today’s New York Times:
http://www.nytimes.com/2009/01/19/washington/19gitmo.html?_r=1&hp
I am not sure I understand the distinction you are making. But if you are saying that these actions should be prosectuted under domestic law, rather than international law, then I can assure you that the first defence motion, in each case, will be for summary dismissal, on the basis that US courts do not have jurisdiction to try crimes against foreign nationals, committed on foreign soil.
The whole point of envoking International Law, in these cases, is to give US courts jurisdiction that they would not otherwise have.
If we proceeded as you suggest, under domestic law, then essentially none of these acts would be prosecutable.
Perhaps that’s your intent…
No, no, my distinction is not based on venue, sorry if I wasn’t clear – I just don’t think (I realize you disagree) that waterboarding three high-value detainees with the full knowledge of the government rises to the ‘war crimes’ level. However, clearly, actions that result in the premature and unnecessary death of detainees are prosecutable under any theory…
I may be riding down that slippery slope full gallop, but that’s still my stance.
Am I comfortable with waterboarding? No, I’m not. Most people think it’s torture, and a good-sized body of law, too.
Am I glad we put a stop to it? Yes, I am.
Do I have a solid leg to stand on here? Probably not.
However, given the totality of the circumstances, and the ‘mood’ in Washington post-9/11, I’m not going to support going after anyone based on waterboarding.
However, that doesn’t mean anything goes – and in your example of detainees dying under duress, then absolutely those responsible must be brought to trial…
I’m not going to win any awards for coherent arguments here…nevertheless, this is truly how I feel on the issue…
Sorry if I am being obtuse.
Let us leave aside, for the moment, the question of whether waterboarding is torture. It clearly is, both under international law and under US law, but that’s not the point.
You now say that killing a detainee is a prosecutable offence.
Is torturing a detainee (under whatever legal definition of “torture” we can agree upon) a prosecutable offence ?
If not, why not?
And what does “the mood in Washington” have to do with whether or not crimes were committed?
Under the prevailing policy that the CIA personnel worked under at the time, waterboarding was one of six special enhanced interrogation techniques available to them. They didn’t just wake up and say, I know – let’s try waterboarding!
I refer specifically to this link:
http://abcnews.go.com/WNT/Investigation/story?id=1322866
1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
The same article says that the CIA did not consider the techniques torture, but does refer to several detainee deaths:
Now, three questions arise here: one, if the technique can cause death, should it even be in the arsenal available to the interrogator? I don’t think it should.
Second, is a technique consistent with international and national legal standards, including the Geneva Conventions? Most if not all of the 6 techniques fail here, so another good argument for getting rid of them.
Third, is the answer to two is positive, and for most people it is, do you prosecute?
This is where you and I have a disagreement. Had the techniques been used haphazardly, that would be one thing, but they were used after clearance from superiors and under monitored conditions. I have a hard time prosecuting the underlings in that scenario, except in cases where death occurred.
And if you go after the big cheese, you have to go all the way up the chain, and that means Bush, Cheney, Pelosi, Harman, and anyone else ‘in the know’. Now we’re right back where we started…and right back where I made the assertion that I think war crimes trials should be reserved for systemic terrorizing of a community.
It’s enough for me that the practice has apparently ended. You and many, many others disagree. Very well…let the chips fall where they may. But I think a President Bush who stood in the docket, raised the specter of 9/11, described the threats he was facing, related the conversations he had with members of oversight committees, and said forthrightly, “I authorized the techniques based on the threat facing our country and advice from my legal staff on their legality, and I stand by that decision” would not be convicted…
Clearly, the CIA personnel were in the same position (but to a far lesser extent) as Nazis who were ‘just following orders’, in the sense that if orders are morally and legally wrong, and you follow them, you are culpable. But this is not Poland in 1940, and the incidents were isolated, not directed in a random, terroristic fashion at the general populace. There IS a difference in degree, and thus, while I have previously admitted to being on the proverbial slippery slope, I am prepared to go after a Saddam Hussein for war crimes when he used chemical weapons on Kurds in Northern Iraq, where I am NOT prepared for going after George W. Bush for okaying the waterboarding of three high-ranking al Qaeda detainees…
And if that leaves me open to charges of rank hypocrisy, I invoke Whitman:
Do I contradict myself?
Very well, then, I contradict myself;
(I am large—I contain multitudes.)
First, can we dispense with the pretense that all we are talking about are three isolated instances of waterboarding?
Even the article you cite makes clear that the CIA engaged in many more “enhanced interrogations,” than those three instances. You seem to agree that any interrogation regime which, not infrequently, results in the death of the interrogatee probably counts as torture.
And the CIA was not the only branch engaged in torture. We have recorded instances of torture by the US Military, by private contractors, and we have scores of people “rendered” to third countries where it was clearly understood that they would be (and where they, in fact, were) tortured.
Now, you raise the perfectly valid point that it make little sense to prosecute the underlings who actually carried out the torture, while letting those, who ordered it, get off scot-free.
I agree with you that that poses the politically uncomfortable prospect of putting high cabinet officials if not the president, himself, in the dock. You say that’s a non-starter (and President Obama, apparently agrees with you). I say that’s a mistake, precisely because, as you say yourself
This wasn’t a one-off improvisation by some CIA field officer. This was organized and deliberate.
And our children will rue the day when we decided to sweep the whole thing under a rug.
Well, it’s not a given that it will be swept under the rug…many Democrats are making noises about investigating. We’ll see…