Posts Tagged ‘Eric Holder’

Dueling Op-Eds

Tuesday, November 24th, 2009

Last Friday saw two sets of dueling op-eds on the opinion pages of the Washington Post and the New York Times.

At the Post, Charles Krauthammer, professional pundit, accuses the Obama administration of aiding Khalid Sheikh Muhammad in giving “voice” to the “propaganda of the deed” that was September 11. Krauthammer accepts no justification offered and launches one after another attack on the very idea of trying KSM, and most of all, on the Obama administration for bringing him to trial. Reading Krauthammer, it is difficult to understand why Attorney General Holder made the decision he did. It seems unfathomable and downright un-American.

Elsewhere in the section, two former top Bush Justice Department officials – Jack Goldsmith and James Comey – make the case that Attorney General Holder’s decision was reasonable, though there may be reason to disagree with it. They go through some of the advantages of the Attorney General’s decision, and conclude:

The wisdom of that difficult judgment will be determined by future events. But Holder’s critics do not help their case by understating the criminal justice system’s capacities, overstating the military system’s virtues and bumper-stickering a reasonable decision.

Over at the New York Times, David Brooks and Paul Krugman have a more evenly balanced argument over Timothy Geithner.

Brooks’s conclusion was that Geither’s intervention was effective:

On the other hand, you would also have to say that Geithner, like many top members of the Obama economic team, is extremely context-sensitive. He’s less defined by any preset political doctrine than by the situation he happens to find himself in…In the administration’s first big test, that sort of pragmatism paid off.

Krugman though concludes Geither is part of the problem, and even if he got the short-term economics right, the political situation won’t allow for any significant course corrections because the initial steps were so against the popular mood:

Throughout the financial crisis key officials — most notably Timothy Geithner, who was president of the New York Fed in 2008 and is now Treasury secretary — have shied away from doing anything that might rattle Wall Street. And the bitter paradox is that this play-it-safe approach has ended up undermining prospects for economic recovery.

It’s interesting to see such jousting on the same op-ed page. As opposing sides make their case, one can often learn more than from reading mere news.

Framing the Torture Debate

Tuesday, April 21st, 2009

This isn’t a definitive timeline of the debate over torture in America. These are merely some highlights.

On September 11, 2001 we were attacked by militant islamists as they took advantage of the openness of our society and our technology and committed one of the most foul atrocities in history.

By September 12, 2001, everything had changed for those in power – and for many of us – “The sense of danger in the White House was urgent, palpable.” An associate of Condi Rice explained:

We really thought we were going to be attacked – possibly chemical, biological, even nuclear, the potential that they could blow up entire American cities…And then CIA came and said, ‘You know, this is the only way to question these people. Our experts say this is the only program that will work.’ And Justice said that the [Geneva Conventions] didn’t apply…and that the agency program did comply with the torture statute.

Others in the White House described a feeling of panic imbuing all their actions.

On September 16, 2001Dick Cheney appeared on Meet the Press:

I think the important thing here, Tim, is for people to understand that, you know, things have changed since last Tuesday…We…have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.

On August 1, 2002, what becomes known as the Bybee torture memo, written apparently by his deputy John Yoo, re-defines torture as physical pain:

equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

It is not known if all of the techniques justified using this legal shield have been made public – but a partial list includes:

  • Suffocation by water (waterboarding, or traditionally, the water torture);
  • Prolonged stress standing position, naked, held with the arms extended and chained above the head…
  • Beatings by use of a collar held around the detainees’ neck and used to forcefully bang the head and body against the wall…
  • Beating and kicking, including slapping, punching, kicking to the body and face…
  • Confinement in a box to severely restrict movement…
  • Prolonged nudity…this enforced nudity lasted for periods ranging from several weeks to several months…
  • Sleep deprivation…through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noises or music…
  • Exposure to cold temperature…especially via cold cells and interrogation rooms, and…use of cold water poured over the body or…held around the body by means of a plastic sheet to create an immersion bath with just the head out of water.
  • Prolonged shackling of hands and/or feet…
  • Threats of ill-treatment, to the detainee and/or his family…
  • Forced shaving of the head and beard…
  • Deprivation/restricted provision of solid food from 3 days to 1 month after arrest…

Sometime in 2002John Ashcroft exclaims during a meeting of the cabinet-level officials going over the details of how detainees are being interrogated:

History will not judge this kindly.

Donald Rumsfeld writes on 2002 memo describing interrogation techniques:

I stand for 8-10 hours a day. Why is standing limited to four hours?

Rumsfeld presumably stood at a desk, using it for support and moved around – a very different experience than “forced standing,” a former Communist torture technique which can result in physical effects which Red Cross reports described in detainees:

After 18 to 24 hours of continuous standing, there is an accumulation of fluid in the tissues of the legs. This dependent edema is produced by the extravasation of fluid from the blood vessels. The ankles and feet of the prisoner swell to twice their normal circumference. The edema may rise up the legs as high as the middle of the thighs. The skin becomes tense and intensely painful. Large blisters develop, which break and exude watery serum….

Beginning in 2004, photographs from the Abu Ghraib scandal surface:

Christopher Hitchens – after publicaly calling waterboarding and the other interrogation methods used merely “extreme interrogation” and not “outright torture” – accepts a challenge to undergo it himself. He comes away a changed man:

Here is the most chilling way I can find of stating the matter. Until recently, “waterboarding” was something that Americans did to other Americans. It was inflicted, and endured, by those members of the Special Forces who underwent the advanced form of training known as sere (Survival, Evasion, Resistance, Escape). In these harsh exercises, brave men and women were introduced to the sorts of barbarism that they might expect to meet at the hands of a lawless foe who disregarded the Geneva Conventions. But it was something that Americans were being trained to resist, not to inflict…

[I]f waterboarding does not constitute torture, then there is no such thing as torture.

Deroy Murdok writes in the National Review:

Waterboarding is something of which every American should be proud.

 

Former CIA operative Barry Eisler:

[T]orture is also an excellent way to get the subject to confess to anything at all, which is why it was a wonderful tool for the Spanish Inquisition and for the secret police of assorted totalitarian regimes. But if the goal is to produce accurate, actionable intelligence, torture is madness… To paraphrase Oscar Wilde, torture is worse than immoral: it’s tactically stupid. It produces false confessions, which can be used to confirm mistaken suspicions and even outright policy fantasies; it instills an insatiable thirst for vengeance in most people who are subjected to it, and so creates new, dedicated enemies; it permanently brutalizes its practitioners; and it cuts us off from intelligence from the local populace because so many people will refuse to inform on someone if they fear he’ll be tortured.

On October 15, 2004, Justice John Stevens wrote:

For if this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

On June 14, 2005, Senator Dick Durbin gave a controversial speech in which he read from an FBI report of detainee interrogations:

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime – Pol Pot or others – that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners

Malcolm Nance, a former SERE interrogator explained that Senator Dick Durbin was right:

Now, at long last, six years of denials can now be swept aside, and we can say definitively: America engaged in torture and legalized it through paperwork.

Despite all the gyrations – the ducking, dodging and hiding from the facts – there is no way to say that these people were not authorizing torture. Worse yet, they seem to have not cared a wit that these techniques came from the actual manuals of communist, fascist and totalitarian torturers.

On September 28, 2005, Captain Ian Fishback wrote a letter to Senator John McCain:

…the most important question that this generation will answer [is] Do we sacrifice our ideals in order to preserve security? Terrorism inspires fear and suppresses ideals like freedom and individual rights. Overcoming the fear posed by terrorist threats is a tremendous test of our courage. Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession.I would rather die fighting than give up even the smallest part of the idea that is “America.

On November 4, 2005, Senator John McCain explained his opposition to torture:

I have said it before but it bears repeating: The enemy we fight has no respect for human life or human rights. They don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies, and we can never, never allow our enemies to take those values away.

On January 19, 2009Dick Cheney explained to the Weekly Standard

I think on the left wing of the Democratic party, there are some people who believe that we really tortured…

On January 14, 2009, Bob Woodward interviewed the top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial in the Washington Post:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

On January 22, 2009, a day after taking office, Barack Obama said:

I can say without exception or equivocation that the United States will not torture.

In April 2009, Mark Danner in the New York Review of Books:

[T]he political logic is insidious and, in the aftermath of a future attack, might well prove compelling…

The only way to defuse the political volatility of torture and to remove it from the center of the “politics of fear” is to replace its lingering mystique, owed mostly to secrecy, with authoritative and convincing information about how it was really used and what it really achieved.

On April 20, 2009, Dick Cheney told Sean Hannity:

I’ve now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was, as well as to see this debate over the legal opinions.

In spring 2008, Eric Holder explained:

We owe the American people a reckoning.

On March 18, 2008 Dawn Johnsen, who has been appointed to head Obama’s Office of Legal Counsel which was responsible for the legal opinions cited above wrote in in Slate:

We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

On April 19, 2009, Peggy Noonan on This Week With George Stephanopoulos:

Some things in life need to be mysterious … Sometimes you need to just keep walking.

(All emphases within quotations are my own.)

This is where we stand today – thanks to the courage of heroes within the Bush administration and the military who stood for American values in a time of crisis and against preemptive surrender of our way of life and thanks to the courage of journalists from Mark Danner to Andrew Sullivan to Glenn Greenwald to Dana Priest to Jane Mayer who exposed these secret actions.

(more…)

The Games Obama Plays

Thursday, February 19th, 2009

Thesis: Obama is a systematic thinker – and given some of his clearly expressed views on the presidency – he may be setting up a situation where the other branches of government will be able to definitively limit the powers of the presidency. This is preferable to the president voluntarily renouncing powers – as it places the responsibility for checking the executive branch on the system rather than on the chief executive himself.

The Rest: In his inaugural address, Barack Obama seemed to clearly repudiate the Bush administration’s lawless approach to the War on Terror with this oft-quoted line:

As for our common defense, we reject as false the choice between our safety and our ideals.

In this, and in many other instances, Obama made clear that he would restore the Rule of Law – and that he considered himself, as president, to be subject to the law. This may seem to be a fundamental and basic understanding for any chief executive in a liberal democracy, but for the last eight years, the Bush administration advanced arguments and pursued policies as if it were not subject to the law.

Every time the Supreme Court ruled against the Bush administration, Congress passed a law to restrain the executive branch in some way,some quasi-independent parts of the executive branch opposed him –  it was always uncertain what Bush would do – whether he would simply ignore the attempts to check his power; whether he would declare the checks unconstitutional and then ignore them; whether he would secretly ignore them and prosecute anyone who informed authorities that he was breaking the law; or whether he would attempt to force Congress to pass a legislative justification for his actions. In fact, Bush at one time of another did all three of these. Obama has made clear that he not only respects the Rule of Law but considers checks and balances on the presidency to be part of the democratic process set out by the Constitution. Obama is mindful of the chief executive’s role is in this system – and that, as Gregory Craig, White House Counsel explained:

[Obama] is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

Combine this statement with Obama’s decisions regarding rendition, the state secrets privilege, and investigating abuses of the Bush administration – and many civil libertarians and critical observers of the Bush administration from Glenn Greenwald to Andrew Sullivan to Charlie Savage are preparing to be disappointed.

Let’s take a step back for a moment and postulate that Obama holds these three relatively uncontroversial and related positions that he has articulated on numerous occasions:

  1. He believes the president is subject to the law and is committed to upholding the Rule of Law.
  2. He believes that correct processes should be followed and that, “Each branch of government is balanced by powers in the other two coequal branches.”
  3. At the same time, he has little desire to use his political capital and energy prosecuting Bush administration officials.

Obama articulated these three sentiments in a response to a question by Sam Stein of the Huffington Post at his February 9, 2009 press conference:

My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.

Dahlia Lithwick, another chronicler and critic of the Bush administration’s legal abuses, interpreted Obama’s statements and actions this way:

…by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that “nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I’m more interested in looking forward than I am in looking backwards.” The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

But to me, this sounds like an invitation to push him to do what is right – as FDR said to numerous audiences who came to ask him to pay attention to their issue (and here I paraphrase):

I agree with you, I want to do it, now make me do it

Supporting this, aside from Obama’s many statements on these matters, are the public opinions of many of those he appointed to key positions in the Justice Department, including the attorney general:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning. [my emhpasis]

Here is where the speculation really starts though – and only time will determine if these guesses are correct. Obama, as president, does not believe it is his role to give up executive power. For one, by doing so, he is antagonizing certain elements of the executive branch that he needs to bring to his side – in the state secrets case, for example, the CIA.

Secondly, by voluntarily renouncing a power, he is in some sense affirming the inherence of this power. Bush believed he had the power to say an entire subject matter was a state secret and thus have an entire lawsuit revoked; if Obama claimed he didn’t have this power, and the Courts then ruled he didn’t, the Court would not be “checking” the president so much as deferring to the new president’s view of his own powers. However, if Obama maintains he has this power – and the Court rules that he does not – it does provide a check. If Congress passes a law restraining the president’s use of this power, it will again provide a check. Each of these scenarios provides a firmer check on presidential power than does Obama’s giving up of these powers. It places the responsibility for checking executive powers not on the President, but within the system, where it should be.

Third, Obama has a number of crises to deal with right now and realizes that there are significant elements who feel strongly about these balance-of-powers issues. What he wants then – is for those groups that are passionate about these issues to prepare the public and to force him to act on them. This way, he can preserve his political capital – and by merely responding to issues forced upon him can avoid charges of looking like he is merely out for retribution.

If this is Obama’s thinking, then we can expect him to not oppose efforts to reign in his powers too strongly – and to accept those limits once they have been legitimated by the Courts or the Congress. If this isn’t Obama’s thinking, we can still attempt to force him to act but the outcome will be less certain.