Paul Revere by Cyrus Dallin, North End, Boston

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WHAT DIFFERENCE DOES IT MAKE? NO SCANDAL!

WHAT DIFFERENCE DOES IT MAKE? NO SCANDAL!
NO COVER-UP!

Tuesday, April 21, 2009

Philip Zelikow--Thoughts from a Dissenter on Torture

The OLC "torture memos": thoughts from a dissenter
Tue, 04/21/2009 - 9:17am
By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.

1. The focus on water-boarding misses the main point of the program.

Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time.

The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.


2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.

A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable.

But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods?

For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.
Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK." Well, not really. They say it might be legal. They don't know about OK.


3. The legal opinions have grave weaknesses.

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law.


At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.


Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods; the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

The use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

24 comments:

James Wolfer said...

Wow. Incredible. There just is no justification for what we did.

I Ain't Got No Blog said...

James Wolfer said...
"Wow. Incredible. There just is no justification for what we did."


"no justification for what we did."ARE YOU KIDDING?
In all cases, of Waterboarding interrogation methods, that were used.
They ALL gave up valuable information within seconds of being waterboarded.
And saved American lives!!

YOU liberals better wake up to the facts of life in the real world, and understand that there are people out there who hate and want to kill Americans, no matter how much the current president apologizes and tries to appease them, no matter how many Kings he bows to, no matter how many tin horn south American dictators he jokes with and plays second fiddle to.

TAO said...

If we gained 'valuable information within seconds of being waterboarded" then why did we have to waterboard the same people over and over...

If the information was so valuable then why is Osama Bin Laden still running around free?

Shaw Kenawe said...

IAGNB,

Torture is illegal.

George Bush said we don't torture.

He's a liar and he broke the law.

Remember what Congress did to Clinton for lying?

The Red Head said...
This comment has been removed by the author.
The Red Head said...

Remember what Congress did to Clinton for lying?


Yeah, they slapped his wrist two times and said don't ever do that again!

You or I nor anyone else in America will never know how many American Lives "waterboarding "
saved. I for one thank Bush for having the balls to do what was and still is needed.

The Red Head said...

Khalid Shaikh Mohammed, the planner of the Sept. 11, 2001, was water boarded This was hardly sufficient retribution for a man who killed 3,000 innocent Americans. I'm angered that the CIA didn't water board this terrorist 100 times a week during his time in captivity. There really is no punishment undeserving for a man of such evil.
And by the way,Los Angeles was saved because of this. Thanks to George Bush's courage

Shaw Kenawe said...

To The Red Head:

The waterboarding of Khalid Shaikh Mohammed is often cited as one of the major waterboarding "success stories". ABC News reporter Brian Ross credited waterboarding for the crucial information used to avert the destruction of Library Tower.

ROSS: That has happened in some cases where the material that's been given has not been accurate, has been essentially to stop the torture. In the case of Khalid Sheikh Mohammed, the information was very valuable, particularly names and addresses of people who were involved with al Qaeda in this country and in Europe. And in one particular plot, which would involve an airline attack on the tallest building in Los Angeles, known as the Library Tower.


The US Bank Tower plot was revealed to the public by President Bush on February 9, 2006 in a speech to the National Guard Association:

In the weeks after September the 11th, while Americans were still recovering from an unprecedented strike on our homeland, al Qaeda was already busy planning its next attack. We now know that in October 2001, Khalid Shaykh Muhammad -- the mastermind of the September the 11th attacks -- had already set in motion a plan to have terrorist operatives hijack an airplane using shoe bombs to breach the cockpit door, and fly the plane into the tallest building on the West Coast. We believe the intended target was Liberty [sic] Tower in Los Angeles, California.

Rather than use Arab hijackers as he had on September the 11th, Khalid Shaykh Muhammad sought out young men from Southeast Asia -- whom he believed would not arouse as much suspicion. To help carry out this plan, he tapped a terrorist named Hambali [Riduan Isamuddin], one of the leaders of an al Qaeda affiliated group in Southeast Asia called "J-I" [Jemaah Islamiyah]. JI terrorists were responsible for a series of deadly attacks in Southeast Asia, and members of the group had trained with al Qaeda. Hambali recruited several key operatives who had been training in Afghanistan. Once the operatives were recruited, they met with Osama bin Laden, and then began preparations for the West Coast attack.

Their plot was derailed in early 2002 when a Southeast Asian nation arrested a key al Qaeda operative. Subsequent debriefings and other intelligence operations made clear the intended target, and how al Qaeda hoped to execute it. This critical intelligence helped other allies capture the ringleaders and other known operatives who had been recruited for this plot. The West Coast plot had been thwarted.


Which aspects of this plot could Khalid Shaikh Mohammed's waterboarding have revealed?


We learned about Al Qaeda's interest in flying planes into buildings on September 11, 2001.


We knew about Al Qaeda's use of shoe bombs from Richard Reid, captured in December 22, 2001.


We knew about Jemaah Islamiyah at least since the Bali Bomb attack on October 12, 2002.


The "key al Qaeda operative" and pilot for the plot, Zaini Zakari, was arrested by Malaysian authorities in December 2002.

Khalid Shaikh Mohammed was captured in Rawalpindi, Pakistan on March 1, 2003 — after the plot was discovered, after the plot was "derailed", after the pilot of the plane was captured. Khaled Sheikh Mohammed could not have "provided valuable information and saved lives" when all aspects of the plot were well-known and the attack had been foiled prior to his capture.Source:

http://waterboarding.org/success_story

Arthurstone said...

Hey Red Head-

Didn't you get the memo? Torture wasn't used but if it were it would not have been used for punishment but rather to extract information regarding threats requiring immediate action on our part.

That is if the US had engaged in torture.

But it's coming to light that some of these baddies were tortured, sorry harshly interrogated, over and again to provide a link between Saddam & Al Qaeda which never existed but that apologists for the misbegotten invasion of Iraq continue, in the face of all reason, still insist existed.

Some Americans just seem to enjoy an exercise of imperial military might.

Nothing new there as people from Cuba to Nicaragua to Laos to Iran to Guatemala to Vietnam to the Phillipines, etc. etc. can attest.

James Wolfer said...

Also, remember this:

1. In 1947 we convicted a Japanese Officer for waterboarding.

2. Congress said its illegal. That means that the President cannot overturn it and do what he wants anyway. Its called Checks and Balances.

3. We are a signator of the United Nations Convention Against Torture, which means we agreed to be subject to the explicit prohibition on torture under any condition. This was affirmed by Saadi v. Italy in which the European Court of Human Rights, on February 28, 2008, upheld the absolute nature of the torture ban by ruling that international law permits no exceptions to it.The treaty states "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture".

4. The European Court of Human Rights ruled in February 2008 that local considerations do not negate the absolute torture prohibition under international law.

I'm sure they are more, but in this, George W. Bush and all those that helped with this are war criminals and should be prosecuted.

James Wolfer said...

Also, Red Head, we impeached Clinton. That's no slap on the wrist. He was the second US President ever to be impeached. And this was all about a lawsuit regarding sexual harassment.

Bush broke domestic, consitutional, and international laws, and lied about it, and used Judicial Privilege to cover it up.

He should be imprisioned.

TRUTH 101 said...

As I alluded to in my last post. These jokers (Bush,Cheney, Wolfowitz, Addison,etc.) based theier governance on deluded fantasies and myths like James Bond, Jack Bauer, The Books of Daniel, Revelation, and writings of Nostradamus. For whatever reason, their apologists, Ms. Redhead for one, still blindly defend the actions of these criminals.

To make it simple for the simple minded, torture is not what the good guys, that's us, do.

TAO said...

That's right! Who needs details when you just know you are right!

Leave thinking and debating to something called "liberals" which I guess is the term to use on anyone who thinks, questions, and debates....

Now I know why the Red Head thinks I am liberal...

James Wolfer said...

Tao, you are a liberal because you aren't one of "them"...anyone who strays from the Neo-Con party line is now a "liberal"...myself included. If that means I can think for myself and realize that today's "conservatives" are nothing but a bunch of followers of greedy sonsofbitches (excuse the word, I couldn't think of something better that conveyed this) instead of what Conservatism used to be...then sure. I'll be a liberal. Its better than idiocy.

Johaly Maybeth said...
This comment has been removed by a blog administrator.
Shaw Kenawe said...

To the person whose post I deleted:

I make it a practice not to allow rabid, abortive, rooting hogs to post here.

Your opinions belong in an outhouse, not on a blog.

You're angry because Mr. Obama is president, and because this country has come to its senses.

Too effing bad.

jackesq said...

Shaw Kenawe said...

To the person whose post I deleted:

I make it a practice not to allow rabid, abortive, rooting hogs to post here.

Your opinions belong in an outhouse, not on a blog.

You're angry because Mr. Obama is president, and because this country has come to its senses.
Too effing bad."

__________________________________
Maybe we are angry because a Marxist Idiot is the President
I’m going to say just like the asswipes at the Daily Kos say , and call for the Impeachment of the sitting President, who we all can see now is an idiot. Lets run down his idiot-ness (is that a word?) and see how well he’s done in his first 90 days in office…

* ObaMessiah takes office and announces his desire to spend trillions of future tax dollars to *level the playing field*. Wall Street reads between the lines and sees it as a ploy to *redistribute the wealth*. Investors start panic selling.
* On those days that the ObaMessiah holds press conferences, the Dow plummets by triple digits. On the days that he keeps his yap shut, Dow languishes with no gain nor loss.
* ObaMessiah has more gum-flapping days than he does quiet days, leading to a severe downward slope in the curve.
* Businesses lose market value, and need to perform serious retractions to remain in business. This nutcase was one of the victims of the retraction in the business sector, and was laid off/fired.
* Nutjob is now distraught, and takes it out his frustration/aggression by killing family members and innocents on the street.

See? Its OBambi’s fault. Its quite clear to me, as it should be to all of you.

AdamS said...

Wow, think Obama is ending torture? Think again.

http://www.newser.com/story/48196/obama-will-ban-torture-but-considers-a-loophole.html

http://www.latimes.com/news/opinion/editorials/la-ed-torture18-2009apr18,0,5961666.story

http://www.globalresearch.ca/index.php?context=va&aid=12041

Sorry, but anyone who truly believes that torture saves lives...well, I don't really know what to say to that. Such are the warped morals of our time.

James Wolfer said...
This comment has been removed by the author.
James Wolfer said...

Wow. Let me put you in your place.

Maybe we are angry because a Marxist Idiot is the PresidentWhat, are you McArthy now? He's not a Marxist. Unless Bush was a Nazi (neither is true).I’m going to say just like the asswipes at the Daily Kos say , and call for the Impeachment of the sitting President, who we all can see now is an idiot.Actually, its only Republicans sore about losing all these elections that think of him as an idiot. I don't see Obama making up words on camera. I don't see him with a "Mission Accomplished Banner." Also, what has he done for impeachment? We've only impeached two presidents ever.Lets run down his idiot-ness (is that a word?) and see how well he’s done in his first 90 days in office…Sure. Let's dive right in, shall we? * ObaMessiah takes office and announces his desire to spend trillions of future tax dollars to *level the playing field*. Wall Street reads between the lines and sees it as a ploy to *redistribute the wealth*. Investors start panic selling. Really, you are using Wall Street and investors as a gauge for how good a President is? Didn't Wall Street cause this mess in the first place?* On those days that the ObaMessiah holds press conferences, the Dow plummets by triple digits. On the days that he keeps his yap shut, Dow languishes with no gain nor loss.Again, you are still using this excuse? The DOW has been sleadily climbing since Mid March, and is continuing up.* ObaMessiah has more gum-flapping days than he does quiet days, leading to a severe downward slope in the curve.Again, you're uninformed. The DOW has been on an upward slope for more than a month!.

* Businesses lose market value, and need to perform serious retractions to remain in business. This nutcase was one of the victims of the retraction in the business sector, and was laid off/fired.
* Nutjob is now distraught, and takes it out his frustration/aggression by killing family members and innocents on the street.
Not really sure which nutcase you're talking about, but this is a stupid argument. Many businesses have failed. Most due to bad business practices. That in no way is Obama's fault. Its called personal responsibility.See? Its OBambi’s fault. Its quite clear to me, as it should be to all of you.Actually, I believe I just refuted your stupid, baseless arguments.

Im Here To Say It said...

You are too freaken stupid to put ME in my place awipe!

James Wolfer said...

Good one, IMHTSI. Good one. You sure got me. Wow. I especially loved the misspellings. You're awesome.

Shaw Kenawe said...

James Wolfer,

This is my philosophy when it comes to dealing with the angry, unhappy, malignancy that passes as conservative "thought" in these comments

[I do not label all conservatives in this way, only the minority of rabid Obama haters.]

"Do not attribute to malice that which can more easily be explained as stupidity."

I feel sorry for these nutjobs. It's going to be a long, long 3 years 9 months--or longer.

TAO said...

The recent AP poll basically puts all the trolls in their place: They represent about 15% of the US population.

Thats basically the threshold percentage for irrelevance.

Now, if the Conservatives could spin off that bunch and build a new coalition of conservatives and moderates we could return to a two party system; as long as they continue to play to this fringe they will continue their march to irrelevance.

Right now I will accept the label 'liberal' with pride rather than continue to try to drag conservatism out of the swamp of stupidity and hatred that it finds its self in