A Response to Doug

Doug,

This post is in response to the lengthy comment left by my friend and former colleague Doug.  Because of the length of my response, I felt a new post was justified.

First, Doug, thanks for the thoughtful, though misguided response but you did not grapple with the main thrust of the post—that it is ludicrous to claim that the Speaker is somehow guilty of conspiracy to commit torture by failing object to torture.  In my post, I tried to stay away from the Speaker’s moral culpability in the matter.  But if failure to object is the standard, very few, if any, Congressmen acquitted themselves very well during this period.  To her credit, at least the Speaker voted against the authorization to go to war.

But since you addressed your comment to whether the Speaker has any culpability in this matter, I will address your claims in succession.  I have put what my response in italics.

Part of the problem with Ms. Pelosi is that her story keeps changing. “I was never briefed about EITs.” “Okay, I may have been briefed about them, but I was never told about waterboarding.” “Well, what I meant was, maybe waterboarding was mentioned, but I didn’t agree with it.”

Enter Ms. Pelosi’s fellow Californian Ms. Feinstein: “We shouldn’t blame Ms. Pelosi. Let’s remember that she received the briefings soon after 9/11 when the threats of further attacks were thought imminent.” Exactly! When Jay Bybee et al wrote the memos for which they are now being excoriated by the Democrats, the nation was at a heightened sense of alert. Threats of dirty bomb attacks and additional highjacked planes were frequent. But Democrats are willing to consider Ms. Pelosi’s action (or inaction) in the context of the times, while failing to extend the same benefit to the Bush officials. Typical.

First, as has come to light in the past few weeks, the Bush Administration began torturing detainees even before it got the supposed legal authorization from the OLC.   Therefore, it is little defense to say that the legal justification was flawed because it was rushed.  Here, they did not even wait for that justification.  Furthermore, when the torture was used on Khalid Sheikh Mohammed (“KSM”) it was not used to extract information to protect us from another attack; rather, it was used to gain evidence so that Bush and Cheney could justify going to war with Iraq. Therefore, any argument that they had to torture people to protect us is simply ridiculous.

Second, legal analysis of whether something is torture does not change simply because we might be under attack.  The torture statute, Geneva Conventions and Constitutional protections do not change just because we might be under attack (aside from possibly the 4th Amendment).  In Hamdi, the Supreme Court wrote:

“We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.  Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

In this area, the Congress passed and the President signed into law a ban on torture.  There are no exceptions listed in the statute for wartime.  The President has no power to simply order that the statute be ignored.  This is so even if the Speaker actually, not tacitly, approved of torture.  She has no power on her own to rescind a law.  It takes passage by both houses of Congress and signing by the President to do that.

We–the public–don’t know for sure whether intelligence gained through the use of EITs helped revent additional terrorist attacks. What we do know is that since 9/11, we have not had another major attack on our soil of a similar magnitude. I thank the Bush administration for that. But, if one had occurred, I’m certain that, rather than singing her amnesia-riddled tune today, Ms. Pelosi would be quoting a question she posed to the CIA when she learned of EITs (and waterboarding): “Are we doing enough?” That’s a concern with the sufficiency of the steps being taken, not a concern with the steps themselves.

First, it is not relevant whether we got any useful information as a result of torture.  It is still a crime whether we foiled a plot to kill the President or a plot to bomb the Empire State building.  The statute has no exceptions if we get actionable information.  Under your theory, it would not be a violation of the Constitution for a Sheriff to beat a suspect if it meant the suspect gave up a murder plot.  We have laws and rights in this country; those laws and rights protect both the innocent and the guilty a like.  It is of no moment to say we got useful information from the fact that we committed a war crime.

As was brought to light with from the actual FBI interragotor who interrogated Abu Zubaydah, they were getting an immense amount of actionable information from regular interrogation tactics.  In fact, he was able to elicit that KSM was the mastermind behind 9/11 and the so-called “dirty bomber”  Jose Padilla.  Therefore, there is no evidence that we ever needed to use EITs.  In his testimony yesterday before the Senate, Ali Soufan, the FBI interrogator stated:

Immediately after Abu Zubaydah was captured, a fellow FBI agent and I were flown to meet him at an undisclosed location.  We were both very familiar with Abu Zubaydah and have successfully interrogated al-Qaeda terrorists.  We started interrogating him, supported by CIA officials who were stationed at the location, and within the first hour of the interrogation, using the Informed Interrogation Approach, we gained important actionable intelligence.

The information was so important that, as I later learned from open sources, it went to CIA Director George Tennet who was so impressed that he initially ordered us to be congratulated.  That was apparently quickly withdrawn as soon as Mr. Tennet was told that it was FBI agents, who were responsible.  He then immediately ordered a CIA CTC interrogation team to leave DC and head to the location to take over from us. . . .

We were once again very successful and elicited information regarding the role of KSM as the mastermind of the 9/11 attacks, and lots of other information that remains classified. (It is important to remember that before this we had no idea of KSM’s role in 9/11 or his importance in the al Qaeda leadership structure.) All this happened before the CTC team arrived.

A few days after we started questioning Abu Zubaydah, the CTC interrogation team finally arrived from DC with a contractor who was instructing them on how they should conduct the interrogations, and we were removed. Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity. (The harsher techniques mentioned in the memos were not introduced or even discussed at this point.)

The new techniques did not produce results as Abu Zubaydah shut down and stopped talking.  At that time nudity and low-level sleep deprivation (between 24 and 48 hours) was being used.  After a few days of getting no information, and after repeated inquiries from DC asking why all of sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation.

We then returned to using the Informed Interrogation Approach. Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence.

This included the details of Jose Padilla, the so-called “dirty bomber.” To remind you of how important this information was viewed at the time, the then-Attorney General, John Ashcroft, held a press conference from Moscow to discuss the news. Other important actionable intelligence was also gained that remains classified.

I am not even going to elaborate on the fact that those who are most knowledgeable, for example Mr. Soufan, havestated that torture does not work.  Those who are tortured simply stop talking or give us completely wrong information:

The new techniques [“enhanced interrogation] did not produce results as Abu Zubaydah shut down and stopped talking.

[from earlier in the testimony] A second major problem with this technique is that evidence gained from it is unreliable.  There is no way to know whether the detainee is being truthful, or just speaking to either mitigate his discomfort or to deliberately provide false information.  As the interrogator isn’t an expert on the detainee or the subject matter, nor has he spent time going over the details of the case, the interrogator cannot easily know if the detainee is telling the truth.  This unfortunately has happened and we have had problems ranging from agents chasing false leads to the disastrous case of Ibn Sheikh al-Libby who gave false information on Iraq, al Qaeda, and WMD.

A third major problem with this technique is that it is slow.  It takes place over a long period of time, for example preventing the detainee from sleeping for 180 hours as the memos detail, or waterboarding 183 times in the case of KSM.  When we have an alleged “ticking timebomb” scenario and need to get information quickly, we can’t afford to wait that long.

And that leads us to address your concern with Ms. Pelosi’s “misdemeanor” crime of not speaking up. Please.  When did a Democrat not seize upon any and every opportunity to take jabs at the Bush administration?  If she truly had disagreed, she would’ve spoken up. She could’ve attempted to pass legislation banning the EITs with which she “disagreed” or perhaps moved to cut funding for programs that used them.  She didn’t.

I never defended her silence.  In fact, I said she probably committed the political crime of failure to speak up.  But that is a far cry from authorizing and carrying of the federal and war crime of torture.  It is laughable to compare the conduct of the Speaker here to the conduct of the Bush Administration and CIA.  We have those who actively engaged in a criminal conspiracy and someone who failed to speak up.  While the Speaker is disgraceful for not speaking up, it not even close the same amount of legal and moral culpability of those who actively engaged in the underlying conduct.  While FDR acted disgracefully during the beginning of WWII by closing our ports and borders to Jews seeking to flee Germany and by intervening sooner, no one can seriously say that he is as morally and legally culpable as the Nazis.  And he had more power than the Speaker did.

I agree with you, Matt, that the best advice one could give Ms. Pelosi now is: “Keep your mouth shut.” But I’d go on: “Stop wasting time and energy trying to recharacterize the past.  Focus on the future and ensuring that additional terrorist attacks do not occur on our soil.”

The only “Charade” here, Matt, is that being put on by the Democrats.  Never in our history has there been such criticism by the current administration and his fellow party members in office of the former administration. (Please, don’t even begin with the hollow response that there never has there been an administration as bad as the Bush administration.)  For once I agree with Moveon.org: “Move on, people! Move on.”

First, I could not care less about whether a past administration ever criticized their predecessors.  The “its tradition” argument not to do something is meaningless to me.  I have no problem with the fact that VP Cheney is out criticizing Obama.  I think he is flat out wrong.  But I have no problem with him voicing his criticism.  I think it shows just how much of a criminal he is.

Here, we have the allegations and a proof that the Bush Administration committed war crimes.  And, yes, the Bush administration is the one of the worst we have ever seen.  I believe it is worse than Nixon.  I believe that the only conduct that is worse than the Bush’s is FDR’s interning of millions of Japanese during WWII.  If the Eisenhower Administration decided to criticize that conduct, I doubt anyone would have objected to the fact it was criticizing a past President.  I certainly would not have.

I am so glad you brought up Moveon.org.  Moveon was started to protest the possible impeachment of President Clinton.  They argued the impeachment was ridiculous given that it was based on possible lies about sex during a civil suit regarding Clinton’s pre-Presidency conduct.  The advocated, instead that President Clinton should simply be censure and that we “move on.” But in their infinite wisdom, the Republicans decided to impeach Clinton anyway for lying about sex during a deposition.  The lies, as Judge Wright found, did not even reach the level of perjury, because their subject was not material to the case.  So, not only did President Clinton not commit a crime, he did certainly did not commit a “high crime or misdemeanor” as required by the Constitution for impeachment.  Here, we have serious allegations that the prior administration engaged in war crimes.  To compare what Moveon was advocating we move on from to war crimes is laughable.

On whether we should prosecute those involved in torture, I will leave you with the words of President Bush from 2003, just prior to going to war : “War crimes will be prosecuted, war criminals will be punished, and it will be no defense to say ‘I was just following Orders’.”

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