Such a commission would investigate not just the Bush administration but the government, including Congress. It would give former vice president Dick Cheney a forum to make his case on the necessity of “enhanced interrogation techniques.” It would examine the efficacy of such techniques, if any, and the question of whether, even if they work, waterboarding and other methods long considered torture ever can be justified. [...] But a fair-minded commission — co-chaired by, say, former Supreme Court justices Sandra Day O’Connor and David Souter — could help the nation come to grips with its past and show the world that America is serious about doing so. It could help Americans understand how this country came to engage in what many regard as vile and un-American practices. It might help the country respond better the next time it is frightened.

It’s hard for me to understand how we can outsource a decision about whether or not “torture ever can be justified” to an independent commission. That’s a policy decision that needs to be made by policymakers. And, in fact, it has been made by policymakers. That’s how torture came to be illegal in the United States. The crux of the matter is that we came to have a bunch of policymakers who no longer believed in that principle and thus they broke the law. This leaves us with a legal issue about what to do with them. But it also leaves the policy issue hanging out there. The main position of the conservative movement at this point is that torture is excellent, and something we ought to engage in. It’s important to resolve that argument, but I don’t see any alternative to resolving it through the political process. A commission can’t do it.

The use of National Review Online to identify one of the minotaur advocates is a sweet choice.

(cc photo by furryscaly)

If you want a sense of how sick the torture debate in the United States has become, look no further than Robert Alt’s argument in the LA Times that we can’t investigate perpetrators of past interrogation abuses because it might have a “chilling effect.” But the chilling effect is a feature, not a bug, of investigations. When you set up an intelligence agency authorized to operate in secret, you’re creating a large potential abuse problem. Add a panicky national atmosphere and George W. Bush and next thing you know we’re torturing people.

What would be wanted to prevent this would be, you know, a chilling effect. A little bit of the old “I see what you’re saying boss, but that’s illegal!” This is what we have laws for. Meanwhile, read Chris Hayes on “The Secret Government”.

John Yoo (Wikimedia)

Ady Barkan has a great piece in Slate about the case of Padilla vs Yoo which he characterizes as the best chance going to see some legal accountability for torture. The key point is that a week ago judge Jeffrey Wright rejected Yoo’s requests to dismiss the case, requests that had actually been supported by the Obama administration. Now we’re in a situation where an actual trial might take place, complete with a discovery process and some light being shined on what was going on. But what role will the Obama administration plan?

Barkan says they have three options:

First, it can accept the decision rather than appeal. This would allow Padilla’s attorneys to proceed with the evidence-gathering of discovery: reviewing Yoo’s classified memos, reading his e-mails, and even questioning him under oath. Although the government could try to keep what Padilla gleans from this confidential, Padilla’s lawyers will correctly argue that the public has a strong interest in seeing the material: The American people deserve to know which officials set our interrogation and detention policies. Scores of detainees would then use the evidence from Padilla’s discovery to establish their own plausible legal claims. The administration isn’t likely to go for any of this.

Second would be to continue down the path Obama’s trailed thus far, and keep on embracing the strong, Bush-style conception of the state secrets doctrine. This, he thinks, “would draw international condemnation and would surely give momentum to the Senate’s current effort to roll back the privilege by statute.” Last, they could simply argue that Yoo should be immune from prosecution which would likely wind up pushing this issue to the Supreme Court. In any essence that ought to lead to the torture accountability issue returning to the front pages.

Torture for me, but not for thee.

Eric Cantor loves human rights:

Rep. Eric Cantor (R-Va.), the minority whip who has put out blistering statements about the White House’s response, spoke loudly and emotionally about “America’s moral responsibility to speak out on the protection of human rights wherever they are violated” — hint, hint. “I urge President Obama to follow the lead of this House,” Cantor said.

Adam Serwer wonders where this commitment was when “Cantor voted against the military appropriations bill that banned cruel, inhuman and degrading treatment of terror detainees.”

Specifically, according to the State Department’s official human rights brief on Iran:

Common methods of torture and abuse in prisons included prolonged solitary confinement with sensory deprivation, beatings, long confinement in contorted positions, kicking detainees with military boots, hanging detainees by the arms and legs, threats of execution, burning with cigarettes, sleep deprivation, and severe and repeated beatings with cables or other instruments on the back and on the soles of the feet.

Now to be clear, neither the scale of abuses nor the intent of the abuses is equivalent in the United States and Iran. But when it comes to techniques, it’s hard not to notice the fact that several of the methods condemned here, most notably including sleep deprivation, stress positions (”long confinement in contorted positions”), and shackling (”hanging detainees by the arms and legs”) were specifically authorized by the Bush administration. Many of the others, though not specifically authorized, appear to have become widespread in several detention facilities in part as a result of the administration’s general habit of throwing out the human rights rulebook. These bad actions don’t justify bad actions on the part of the Iranian regime. But whenever you read about these kind of techniques being applied in Iran or North Korea, it’s immediately apparent to everyone that it’s torture, it’s cruel, it’s inhumane, and it’s wrong. It’s also cruel, inhumane, and wrong when authorized by Dick Cheney.

Via John Chait, it seems that conservative talk radio host Eric “Mancow” Muller decided it would be a fun stunt to have himself waterboarded in order to prove that it’s not really torture. Didn’t work so well:

“It is way worse than I thought it would be, and that’s no joke,”Mancow said, likening it to a time when he nearly drowned as a child. “It is such an odd feeling to have water poured down your nose with your head back…It was instantaneous…and I don’t want to say this: absolutely torture.”

“I wanted to prove it wasn’t torture,” Mancow said. “They cut off our heads, we put water on their face…I got voted to do this but I really thought ‘I’m going to laugh this off.’”

I’m not sure I understand why Mancow wasn’t willing to take Christopher Hitchens’ word for it when he undertook an identical experiment for the same reason and concluded “if waterboarding does not constitute torture, then there is no such thing as torture.” But as Chait says “I think the torture debate would be mighty different if more of the conservatives who scoff at waterboarding would try the same thing.”

The one guy who I want to see at the front of the line for this is Michael Goldfarb from the Weekly Standard who, I think, has really gone above and beyond the call of duty in terms of minimizing torture by referring to it as “dunking”.

After a one-two punch from Newt Gingrich and Dick Cheney, House Minority Leader John Boehner and other Republican lawmakers worry that their party has overplayed its hand on Nancy Pelosi.

The Republicans’ fear: Gingrich’s call for Pelosi’s ouster has set an unattainable goal, and Cheney’s jabs at her during a speech Thursday will allow Democrats to portray the controversy as a partisan attack by one of the GOP’s most polarizing figures.

“If the story becomes about us and not her, it’s a problem for us,” said a senior Republican lawmaker.

When I think of a “polarizing” figure, I think of someone about whom the public has strong, but closely divided feelings. Like if you were at 45 percent “strongly favorable” and 45 percent “strongly unfavorable” with only a few people in the middle. Cheney is just unpopular:

That’s different, I think, from being polarizing. And note that the poll from which I’ve taken that lower-than-Cuba favorablerating for Cheney gave him an unusually high rating. It’s possible that strident public advocacy of torture and law breaking has, in fact, raised his popularity to within spitting distance of an impoverished Communist dictatorship. But it’s also possible that that poll was an outlier and that Cheney’s true favorable rating is considerably lower.

I appreciate that there are some basic political truths that are awkward for most politicians to actually utter. But one reason that it’s good to have some politicians around who are worried about their left flank, is that you can get this sort of thing from Arlen Specter (D-PA):

“The CIA has a very bad record when it comes … to honesty. It goes back a long time,” Specter said in a speech before the American Law Institute at a Washington hotel.

The Republican-turned-Democrat listed a handful of examples in the past where the CIA has withheld key information from Congress.

“It’s a real problem as to how you get the information,” he said.

Right on. Not that we should be acting like the CIA is just somehow full of dishonest people. But it’s an agency that’s well-equipped to do things in secret. Sometimes presidents like to use it because they want to do something legitimate that requires secrecy. But the secrecy capabilities are also useful if you want to do something that’s illegal or immoral. Like torture people. But when the CIA is being asked to do illegal and immoral things in order to keep them secret, that naturally tends to extend toward keeping congress in the dark. There are many historical instances of this, and it shouldn’t surprise anyone if the CIA’s briefings on the Bush torture program turn out to have been less-than-thorough.

Good for Specter.

It is, of course, borderline treasonous to suggest that anyone would mislead anyone about their barbaric and illegal torture activities:

Then-Vice President Dick Cheney, defending the invasion of Iraq, asserted in 2004 that detainees interrogated at the Guantanamo Bay prison camp had revealed that Iraq had trained al Qaida operatives in chemical and biological warfare, an assertion that wasn’t true.

Cheney’s 2004 comments to the now-defunct Rocky Mountain News were largely overlooked at the time. However, they appear to substantiate recent reports that interrogators at Guantanamo and other prison camps were ordered to find evidence of alleged cooperation between al Qaida and the late Iraqi dictator Saddam Hussein — despite CIA reports that there were only sporadic, insignificant contacts between the militant Islamic group and the secular Iraqi dictatorship.

And this is the practical problem with torture. If you know what you want people to say, you can torture them into saying it. But that’s not a process that actually enhances the quantity of accurate information in your possession.

In a new Daily Beast column I argue that even though the right’s effort to change the subject on torture away from “what did the Bush administration do?”, to “what was Nancy Pelosi briefed about?” has been an incredible tactical success, it stands a huge chance of backfiring:

And here’s where the right’s tactical acumen comes up short. Various conservative commentators have expressed their hope that gunning for Pelosi will blunt progressive calls for a “truth commission” to thoroughly investigate what really happened on Bush’s trip to the “dark side”. Fox’s Neil Cavuto said we might be in a “Mexican standoff” wherein Pelosi would agree to drop the idea of investigations to prevent herself from attracting scrutiny. Steven Hayes, Dick Cheney’s official biographer, said, “Democrats who have been so enthusiastic about truth commissions have to be stopping and saying, OK, wait a second.” What conservatives are missing here is that this is a fight they were winning before they started gunning for Pelosi. Their best ally in this fight was Barack Obama, whose desire to “move forward” rather than focusing on the past had been the subject of much consternation. Had conservatives simply reached out to grab the hand that was being extended to them, they could have gotten what they wanted.

But in their zeal to score a tactical win, the right has made a truth commission more likely not less likely. Obama wanted to avoid a backward-looking focus on torture in part because it distracted from his legislative agenda. But if we’re going to be looking backward anyway, thanks to conservatives’ insistence on complaining about Pelosi, then the move forward strategy lacks a rationale. And far from forcing a standoff in which Pelosi will abandon her support for an investigation, the right has forced her into a corner from which she can’t give in to moderate Democrats’ opposition to such a move without looking like she’s cravenly attempting to save her own skin.

I’ve seen polling which suggests that the public is reasonably sympathetic to the pro-torture position. But I’m quite certain the public isn’t generally aware of facts that would certainly come out in a truth commission process. For example, that the Bush administration’s torture techniques were specifically modeled on techniques employed by Chinese forces during the Korean War for the purpose of extracting false confessions. That the experts in the techniques whose advice was sought in designing the torture program warned interrogators that the methods were illegal and unlikely to produce reliable information. That one principle purpose of the torture program appears to have been to generate false information about links between al-Qaeda and Iraq. Or that abusive detention practices occurred far beyond Abu Ghraib and have led to the deaths of many people.

Pelosi, to her credit, has stood firm against this. She’s consistently not only defended herself, but defender her position in favor of establishing a truth commission to get to the bottom of all of this. But the right is hoping to scare her into tossing her principles overboard in an effort to keep herself out of controversy.

But it’s just really hard to see any examples of this “ticking time bomb” scenario playing out in real life.

Steve Benen observes that given two weeks to think up a concrete example of the utility of torture, Charles Krauthammer came up with some very weak sauce. It seems that at some point in the 1980s, the IDF took a captive who they thought had knowledge of the location of an IDF corporal who was being held prisoner. The captive was tortured, he coughed up the location, and the IDF found the corporal there, already dead.

What I think this primarily illustrates is how quickly and severely this particular slippery slope slips. We start out saying we would be willing to torture someone in order to save the lives of millions. We end up saying we would be willing to torture someone in order to maybe save the life of one soldier. Needless to say, however, there are lots of situations in which better investigative methods might save one person’s life. Which brings me back to the point that the logic of the conservative view is that we ought to be torturing routinely in all walks of life.

Obviously, that raises the question of whether or not there might be mistakes in the CIA’s official record of its briefings of Nancy Pelosi. After all, if I had a legal mandate to brief people about something, but was also under orders from the President of the United States to participate in a cover-up of an illegal and barbaric campaign of torture, I might fudge my records. Spencer Ackerman tried to do some reporting: “I asked CIA spokesman George Little whether Graham is telling the truth and he declined comment.”

That’s very strange. Presumably the CIA either did make this concession to Graham, in which case their account of what transpired vis-a-vis Pelosi is suspect, or else the CIA did not make this concession and Graham is slandering them. Seems like the public ought to know which.

Nancy Pelosi’s allegations that she was misled by the Bush administration in the secret, you-can’t-discuss-this-with-anyone, briefings she was treated to as the ranking House Democrat on the Intelligence Committee has taken the torture debate to a new level. Greg Sargent has former Senator Bob Graham, who was Pelosi’s opposite number on Senate Intelligence, saying something similar:

Former Senator Bob Graham, who received a classified briefing on terror detainees during the same month in the fall of 2002 as Nancy Pelosi, was not briefed about the use of either waterboarding or enhanced interrogation techniques during the meeting, he claimed in an interview with me.

Graham’s assertion — his first public comments since the release of the intelligence document detailing torture briefings given to members of Congress — directly contradicts the document’s claim that he had been briefed on enhanced interrogation techniques, or EITs. Graham is now the second Dem official to deny on the record the document’s contents and raises questions about its claim that Pelosi had been told, which she has denied.

You can see more along these lines from the award-winning Marcy Wheeler.

Can I say that in a larger sense I think the idea that congressional oversight can be established by briefing a number of members of congress that you can count on one hand seems a bit absurd on its face. The government sometimes needs to do something in secret. But if the reasons for keeping it secret are sufficiently un-compelling that operational security requires it to be kept secret from members of congress then that sounds a lot more like a cover-up than a legitimate national security concern.

Of course if you want to think about why this is happening, ask yourself when’s the last time a politician lost an election because he was too deferential to the attitudes and institutional prerogatives of the national security apparatus of the United States. I don’t think it’s happened since the early 1970s. And it’s a not a coincidence that back then we got FISA and the Church Committee and so forth. But until it happens again, things will get worse and worse and worse in general even if there are spots of improvement.

Hilzoy cautions us against thinking that sleep deprivation is a kindler, gentler form of torture:

The various kinds of psychological torture, of which sleep deprivation is one, are just as disturbing as physical torture; possibly more so, since their aim is to induce regression and learned helplessness, which is a way of inflicting serious psychological damage. Keeping someone awake for long periods of time, or using sensory deprivation, isn’t awful in the obvious ways that, say, beating someone to a pulp is. But even though it does not leave visible scars, it’s profoundly wrong.

Another point I would make is that you’re obviously not going to use extended sleep deprivation in a “ticking bomb” scenario to prevent an imminent attack. Doing enough sleep deprivation to break down someone’s personality is a days-long process.

Tyler Cowen says attempting to prosecute torture would be counterproductive:

At many blogs (Sullivan, Yglesias, DeLong, among others) you will find ongoing arguments for prosecuting the torturers who ran our government for a while. I am in agreement with the moral stance of these critics but I don’t agree with their practical conclusions. I believe that a full investigation would lead the U.S. public to, ultimately, side with torture, side with the torturers, and side against the prosecutors. That’s why we can’t proceed and Obama probably understands that. [...] Pushing for prosecution would more likely endanger rule of law than preserve it, which is a sorry state of affairs.

I don’t really consider myself an enthusiast for torture prosecutions. In part for reasons related to what Cowen says, I’m less interested in seeing the guilty punished than in seeing at least some of them and their political supporters admit that they were wrong and acting unwisely under the influence of the atmosphere of panic that prevailed in the aftermath of 9/11. How exactly you achieve that isn’t totally clear to me. But I think it’s plausible that some threat of prosecution, coupled with the ready availability of clemency for people prepared to come clean, plays a role.

I also think that, contra something else Cowen says, the fact that Democrats didn’t cover themselves in glory on this from 2002-2005 makes the case for action stronger. If it were the case that the torture system were just implemented by “a few bad apples” in the White House we could say, well they lost the election so now it’s time to move forward. But that’s not really the situation.

Michael Scheuer sets about to prove that torture is awesome:

In surprisingly good English, the captive quietly answers: ‘Yes, all thanks to God, I do know when the mujaheddin will, with God’s permission, detonate a nuclear weapon in the United States, and I also know how many and in which cities.’ Startled, the CIA interrogators quickly demand more detail. Smiling his trademark shy smile, the captive says nothing. Reporting the interrogation’s results to the White House, the CIA director can only shrug when the president asks: “What can we do to make Osama bin Laden talk?”

Of course all this really proves is that you can prove a lot when you get to stipulate facts. For example, I think that if I put forward a general proposition “allowing FBI agents to murder little girls is a bad idea” then few people would disagree with me.

But wait! Suppose we have Osama bin Laden in captivity and he says “Yes, all thanks to God, I do know when the mujaheddin will, with God’s permission, detonate a nuclear weapon in the United States, and I also know how many and in which cities and I will tell you in time for you to disarm them all but only if the FBI murders two little girls in cold blood first.” Now I guess I also get to stipulate that for some reason Osama is credible in making this threat and also credible in making the promise, and I also get to stipulate that it’s actually the case that little girl murdering is the only way to prevent the detonation of multiple nuclear weapons in American cities.

What happens then?

As it happens, qua former philosophy major I do think this is a powerful conception challenge to certain kinds of deontological ethical systems. But it’s obviously not a serious policy argument about whether or not we should write some kind of “it’s sometimes ago to murder innocent girls when doing so is an expedient investigatory tactic” provision into the law. To make a policy argument requires a whole different set of considerations to be put into play and the argument can’t crucially hinge on arbitrary sets of stipulated facts.

The orthodox conservative position at this point, it seems to me, is that waterboarding is not torture. Nor is having someone dangle from his shackled arms in a manner so painful as to prevent sleep for a period of days. What’s more, these non-torturous “harsh techniques” are highly effective at gathering intelligence. But if that’s true, and these are legal and effective means of securing reliable information, why are we doing so little of it?

After all, people doing organized crime investigations face a lot of challenges in terms of getting information from people. Maybe cops should do routine undercover drug buys, build a case against low level dealers, and then waterboard the guys they’ve arrested and move further up the food chain. Maybe waterboarding and “stress positions” should become routine treatment for battlefield detainees in Iraq and Afghanistan. Why not?

Well I would say because it’s wrong. And also because it’s very unlikely to work. And also because this is the mentality that gave us Abu Ghraib and abuses at Bagram and all kinds of other horrible problems throughout the system. But if you take the view that these “enhanced techniques” aren’t illegal torture, and that “enhanced techniques” are highly effective, and that systematized approval of torture doesn’t inevitably lead to abuse, then why not?