Tag Archives: Torture Memos

ANewDomain.net Essay: Why America Is So Over

Originally published at ANewDomain.net:

Republicans spent the weekend in a full-court press defending CIA torturers and the Bush administration that authorized them.

Many of the arguments fell apart upon little reflection.

Former VP Dick Cheney, the architect of post-9/11 torture policy for the White House who personally signed off on individual “enhanced interrogation techniques” used on Muslim prisoners kidnapped and held at Guantánamo and other concentration camps, spat:

“Torture is what the Al Qaeda terrorists did to 3,000 Americans on 9/11,” Mr. Cheney said in his latest interview defending the C.I.A. program. “There is no comparison between that and what we did with respect to enhanced interrogation.”

On that second point, he is right. Murder is what the terrorists did on 9/11. On the first, no: it was definitely torture.

Another nonstarter talking point for the far far right – how else to describe people who support torture, which was abolished by most Western nations by the late 1700s? – was the complaint that the Senate intelligence committee’s report on torture imperils America’s relationship with other nations.

“We do a lot of things with friends,” said former CIA chief Michael Hayden.

He wasn’t talking about fantasy football. He continued:

“A lot of these things are edgy, not illegal, but they have a pretty high political risk quotient attached. When you get into a relationship with a partner and you ask them to do something on your behalf or to cooperate with you, you’re giving them a really powerful commitment of your discretion. Now, this report is going to come out and although it is not going to name the countries that were involved with us in this program, there are those people who think they know what countries were involved that will then use the data in this report you and I have already discussed is not accurate, but they will treat it as accurate, treat it as the historical record and cause great problems for countries who are friends of the U.S.”

I love this argument.

Hayden is literally saying that a future CIA or NSA or NKVD or whatever might want to convince some future counterpart intelligence agency in a foreign country to break the law – do something “edgy” – and that in order to preserve that possible future cooperation in lawbreaking, neither the US government nor the CIA itself should ever second-guess itself, much less prosecute wrongdoers. At the risk of violating Godwin’s law, this is kind of like Germany refusing to apologize for the Holocaust because what if they wanted to do something like that again in the future, perhaps with the help of Japan and Italy?

America is done. Certainly America as a nation of laws is done. But not Michael Hayden. He’s anything but done:

Hayden muses: “What CIA officer in the future, after this and after having been indicted and convicted in absentia, is going to raise his hand in the future and say, ‘This is an odd idea, might be a little edgy, but I’ve been thinking…?’”

Oddly, Hayden seems to believe that this is a bad thing. “The final outcome of this report is going to be an American espionage service that is timid and friendless and that really is a danger to the U.S.”

Given the dismal history of the CIA, from its role in overthrowing the democratically elected governments of Iran and countless Latin American countries, to arming and supporting regimes that torture and murder political dissidents, to spying on opponents of the White House here in the United States, to – most recently – kidnap, torture and murder of innocent people – turning the CIA into a “timid” outfit doesn’t seem so terrible.

But let’s get back to that edgy, leaning-in, go-getter Jack Bauer CIA agent.

Whatever happened to personal responsibility?

The Republican Party, after all, is the party of conservatism. Conservatives say that it’s every man for himself, that we’re all responsible for our own actions, and that if we make a mistake we have to be willing to pay the price for it.

That goes double for the man’s men who work on the dark side in covert ops. In the intelligence community, at least as we see it represented on TV and in the movies, torture is the tool of the rogue CIA agent willing to take the risk of breaking the rules. What are the Geneva Conventions compared to the lives of millions of Americans? There are covert operations the US government stands behind and then there are many others that, if they go bad, leave the agent dead or otherwise twisting in the wind, perhaps locked away in some foreign prison.

Those are some cold egg noodles, but for the patriots who keep us safe, it’s a bargain they’re willing to accept.

But not anymore. Just like the banks that are too big to fail, so-called conservatives are upping the moral hazard ante by declaring CIA operatives to patriotic to be prosecuted.

“They were successful. That’s historical fact,” Hayden says, counterfactually. “Do I support them? With regard to waterboarding, I’ve made it very clear that I thank God I didn’t have to make that decision. I had easier circumstances when I was director [from 2006 to 2009].”

Cheney says John Yoo’s “torture memos” —  legal opinions issued by the White House Office of Legal Counsel under Bush –  inoculate CIA agents who committed torture from legal repercussions. “All of the techniques that were authorized by the president were in effect blessed by the Justice Department opinion that we could go forward with those [EITs] without in fact committing torture,” Cheney claims.

But legal memos, no matter how well argued, are simply the opinion of a random lawyer. They don’t carry the force of law, even when they’re issued by a lawyer who works for the White House. What they attempt to do is to reassure the lawyer’s client that their actions are probably in compliance with the law and, in this case, international treaty obligations such as the Convention Against Torture. Lawyers can be and often are wrong. The only way to settle disputes over what is legal and what is the legal is to bring the case before a court of law.

The torture memos, however, were leaked early during the so-called global war on terror. Reaction from the mainstream legal establishment was swift and severe: they were crap. “They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments,” Bruce Ackerman wrote.

In other words, any CIA operative wondering whether he enjoyed legal cover for torture, had only to open a newspaper or conduct a cursory Google search to learn that the answer was no. The law had not changed. As far as the American judiciary was concerned, interpretation of the law hadn’t changed either.

Every CIA torturer knew that he was breaking the law.

            So here you have it: a collision between conservative politics and reality. Officially, conservatives hold people responsible for their actions, especially when they break the law. But when those people are goons beating and killing those they deem to be enemies of the state, they deserve the utmost leniency.

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SYNDICATED COLUMN: Professionals Behaving Badly

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The Drone Memo’s Hack Author Should Be In Prison. Instead, He’ll Be a Judge.

Conservatives say, and this is one of their more successful memes, that poor people are immoral. The proles have sex and kids out of wedlock and expect us (i.e., upstanding middle- and upper-class patriots) to pay for them. They steal Medicare and cheat on welfare. They don’t follow The Rules (rules written by, let’s just say, not them). Which makes them Bad.

This was always hogwash, of course. Though it is true that poverty causes people to do bad things, class and morals are uncorrelated. But who’s worse, the poor thief or the wealthy person who refuses to pay him a living wage?

America’s professional class has traditionally enjoyed a privileged position at the top of middlebrow America’s aspirational hierarchy. At the core of our admiration for doctors, lawyers and bankers was the presumption that these learned men and women adhered to strict codes of ethics. Doctors healed, lawyers respected the law and bankers didn’t steal.

When they did, there’d be hell to pay, not least from their brethren.

Evidence abounded that the clay content in the professional class’ metaphorical feet was no lower than anybody else’s. Thanks to recent developments, not least since 2008’s save-the-banks-not-the-people orgy of featherbedding at taxpayer expense, the fiction that we should look up to the technocracy is dying fast.

Not only are some physicians crapping on their Hippocratic oath by carrying out executions of prisoners and participating in the horrific torture of innocent concentration camp inmates, the associations charged with enforcing professional ethics sit on their old-boys-club hands. Big-time judges, depicted in movies as moral giants who love to get medieval on evil dirtbags whether in the mafia or the CIA, act like wimps instead, grumbling under their mint-flossed breath as they sign off on the federally-funded insertion of needles into innocent men’s penises.

Thurgood wept.

I got to thinking about the fall of the professional class after hearing that the White House has finally relented in its incessant stonewalling on the Drone Memo. Finally, we peons will get a peek at a legal opinion that the White House uses to justify using drones to blow up anyone, anywhere, including American citizens on American soil, for any reason the President deems fit.

When the news broke, I tweeted: “This should be interesting.”

I’m a cartoonist, but I can’t imagine any reading of the Constitution — left, right, in Swahili — that allows the president to circumvent due process and habeas corpus. I can’t see how Obama can get around Ronald Reagan’s Executive Order 12333, even after Bush amended it. Political assassinations are clearly proscribed: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” (Yes, even bin Laden.)

I have no doubt that David Barron, who is a professor at the very fancy Harvard Law School and held the impressive title of Former Acting Chief of the Justice Department’s Office of Legal Counsel, and who furthermore is President Obama’s nominee to fill a vacancy on the United States Court of Appeals for the First Circuit in Boston, did his very bestest with his mad legal skillz to come up with a “kill ’em all, let Obama sort ’em out” memo he could be proud of.

Still, this topic prompts two questions:

What kind of human being would accept such an assignment? Did anyone check for a belly button?

How badly would such a person have to mangle the English language, logic, Constitutional law and legal precedent, in order to extract the justification for mass murder he was asked to produce?

I haven’t seen the drone memo, but Senator Rand Paul has. Whatever legal hocus-pocus Barron deployed didn’t convince Paul. “There is no legal precedent for killing American citizens not directly involved in combat and any nominee who rubber stamps and grants such power to a president is not worthy of being placed one step away from the Supreme Court,” Paul said in a statement.

I’ll bet my next couple of paychecks that Paul is correct — and that Barron’s sophistry wouldn’t withstand a serious court challenge, not even before a panel of a dozen Antonin Scalias. After all, we’ve been here before.

Shortly after 9/11, Dick Cheney and his cadre of neo-con fanatics ordered the White House Office of Legal Counsel, the same entity behind Barron’s drone memo, to come up with a legal justification to give Bush legal cover for torturing suspected terrorists. When they emerged, the Torture Memos were roundly derided by legal experts as substandard, twisted and perverse readings of the Constitution, treaty obligations and case law. Read them. You’ll see.

In 2010, the Justice Department decided not to file charges against Torture Memo authors John Yoo and Jay Bybee on the grounds that the two men weren’t evil — just dumb. (Can’t they be both?) The Torture Memos, they ruled, were shoddy. That, I’m as sure as I can be about something I haven’t seen yet, will be the case with the drone memo.

As with Yoo and Bybee, both of whom went on to prosper in the legal profession rather than warm the prison cells they both richly deserve, Barron probably won’t lose anything as the result of his work on the drone memo. He’ll be a federal judge.

Yet another heavy stone on the grave of America’s once-vaunted professional class.

(Ted Rall, staff cartoonist and writer for Pando Daily, is author of “Silk Road to Ruin: Why Central Asia is the New Middle East.” Support independent journalism and political commentary. Subscribe to Ted Rall at Beacon.)

COPYRIGHT 2014 TED RALL, DISTRIBUTED BY CREATORS.COM

 

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SYNDICATED COLUMN: Men of Dishonor

A Congress of 21st Century Cynics Dodges 19th Century Rules

People are calling the recently adjourned 112th Congress “the most dysfunctional ever” and the least productive since the infamous “do-nothing Congress” of the 1940s. There’s lots of blame to go around, but one cause for congressional gridlock has gone unnoticed and unremarked upon: we no longer have a sense of honor.

Back in the late 18th and 19th centuries, when our bicameral legislature and its rules were conceived of by a bunch of land-owning white males, a gentleman’s word was his most precious asset. Integrity and the lack thereof were literally a matter of life and death; consider the matter of Alexander Hamilton and Aaron Burr. As Thomas Jefferson and his de facto wife Sally Hemings could attest, civility was far from guaranteed under this old system. It certainly could have worked better for Charles Sumner, the abolitionist Massachusetts senator who was nearly beaten to death by a proslavery colleague on the floor of the Senate in 1856. (He was avenging what he considered libelous rhetoric against his family.)

Though less-than-perfect, there was a lot to be said for a culture in which a person’s word was his bond, legalistic quibbling was scorned, and a legislator was expected to stake out and defend a principled position, even in the face of political and personal adversity.

It’s hard to imagine the “fiscal cliff” showdown unfolding in the 1800s or even the first half of the 1900s for two simple reasons. First, the general fiscal health of the country would have come ahead of partisanship. Second, and more importantly, members of the two political parties would have stuck to the deal that they struck a decade earlier. When George W. Bush and his Republicans pushed for a set of income tax cuts that primarily benefited the wealthiest Americans in 2001, they argued the standard GOP trickle-down economics talking point that the tax cuts would pay for themselves by stimulating the economy so much that revenues into government coffers would more than make up for the cost. In order to get enough Democratic support for passage, the Republicans agreed to a five-year time period, after which taxes would revert to their Bill Clinton-era levels.

By 2006 there was still no evidence to show that the tax cuts had stimulated the economy. In fact, by many measures, things were worse. The housing bubble was beginning to burst; unemployment and underemployment had increased. If this had been the 19th century, Republican legislators would have acknowledged that their experiment had failed and that would have been that. A gentleman didn’t run away from the facts or his mistakes.

Voters seemed to agree. Unhappy with the invasion of Iraq as well as the state of the economy, Americans returned Democrats to control of Congress in 2006. Republicans had a pretty good idea—the polls were damning—that their unpopular policies were driving them toward a decisive defeat in the midterm elections. For men and women of honor, this would have been a time to reassess and back off.

Nevertheless the GOP jammed through an extension of the 2001 Bush tax cuts for the wealthy months before the midterm election. No honor there.

Here we are nearly 12 years later, and the verdict is in: the Bush tax cuts failed miserably. No doubt about it, it’s absolutely ridiculous that President Obama and the Democrats agreed to extend them for all but the richest one-half of one percent of American income earners. But the debate should never have gotten this far in the first place. Had the Republicans who proposed it in the first place possessed an iota of good old-fashioned 19th-century honor and integrity, this misbegotten legislative abortion would have died in 2006.

Robert’s Rules of Order and other quaint traditions of parliamentary procedure don’t translate to a quibbling little time like ours, when White House lawyers torture widely understood words like “torture” and “soldier” or claim that a US military base in Cuba is in no man’s land, neither in Cuba nor under US control, and that members of both major political parties say anything in order to get their way. Consider, for example, the current push to reform the filibuster, in order to clear the logjam on judicial nominations and other business that used to be considered routine.

The Senate, the only house of Congress that permits a filibuster, draws upon a tradition of principled minority protest that goes back to Cato in ancient Rome. Until the 1970s, filibusters were a rarity, averaging one a year. Senators viewed them as a bit of a nuclear option and only considered deploying a one-man block on debate of a bill a few times during a long political career, to take a stand on an issue where he felt it mattered most. Now the filibuster is not only a daily routine but gets deployed in an automated way so that the Senate has effectively become a body in which nothing gets done without a 60% vote in favor.

Everyone in the Senate understood what filibusters were for. No one abused them. It was a matter of honor.

But honor is too much to ask when even the most basic of all political considerations—ideology and party affiliation—bend like a reed in the winds of change.

Last week the Republican governor of New Jersey and a Republican congressman from Long Island, New York were so incensed by their party’s refusal to approve disaster relief funds for their states after hurricane Sandy that they went public with disparaging remarks about the Republican leadership in Congress. Fair enough. Standing up for your constituents against rank parochial self-interest is what integrity is all about.

On the other hand, the immediate willingness of some so-called liberal and progressive Democrats to welcome Chris Christie—a Tea Party favorite—and Peter King—a notorious nativist and anti-Muslim bigot—into their party’s ranks indicates a willingness to overlook basic principles that would have startled most self-described gentlemen of a century or two ago, much less those who’d entered public service. Back then, of course, the American political party system wasn’t as settled as it is today, so there were mass changes of party affiliation as parties appeared, metastasized and vanished. Still, it wasn’t acceptable behavior to change parties over a minor spat like the hurricane aid or for a party to accept members who didn’t adhere to its principles.

It’s almost enough to make you wish for a duel.

(Ted Rall is the author of “The Book of Obama: How We Went From Hope and Change to the Age of Revolt.” His website is tedrall.com.)

COPYRIGHT 2013 TED RALL

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