Thursday, April 16, 2009

Shining a Light on the Dark Side
At some point I stopped following the legal questions around our national embrace of torture during the Bush years. Maybe it's that I can handle pure evil on its own, or lawyerese on its own, but the combination is just too much for me. So it was with some surprise that I read earlier this week that today marked a deadline for the release of Office of Legal Counsel memos from the Bush administration detailing what was and was not allowable in terms of techniques for "enhanced interrogations"--as Orwell reminds us, it always starts with language--under a Freedom of Information Act lawsuit filed by the American Civil Liberties Union. Bloggers like Andrew Sullivan and Glenn Greenwald presented the question of whether the Obama administration would release the memos without enormous redaction as a threshold test for how sincere the former Constitutional law professor was in his professed embrace of transparency and determination to move the country beyond the shameful practices embraced by his predecessor.

He passed.

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

In the same statement, in a move that probably frustrated many on the left, Obama also declared that there would be no prosecutions of CIA personnel who conducted the torture. On balance--and viscerally distasteful though it is--this is the right decision: his point that intelligence operatives must be able to carry out orders without concern for their own legal jeopardy is correct.

If anyone should stand in the dock, it's the OLC lawyers who drew up the memos, as well as their political masters in the Office of the Vice-President. That seems unlikely, though, considering Obama's language that "this is a time for reflection, not retribution." I still want to see the moral monsters who drew up these policies called to account, but simply having the truth out there represents an important first step to reclaiming something of our good reputation in the world.

And the memos themselves? I haven't read them closely--in fact I just skimmed through, before reading any of the other coverage, to get a sense of how much blacked-out blocks of text there was. But one thing that did catch my eye in passing was the extensive language regarding what interrogators could and could not do in one psychological torment planned for suspected terrorist Abu Zubaydah: putting an insect into a "confinement box" with the suspect:

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce
death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death. [REDACTED] so long as you take either of the approaches we have described, the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position. An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. Further, you have informed us that you are not aware that Zubaydah has any allergies to insects, and you have not informed us of any other factors that would cause a reasonable person in that same situation to believe that an unknown insect would cause him severe physical pain or death. Thus, we conclude that the placement of the insect in the confInement box with Zubaydah would not constitute a predicate act.

Consider the baseline absurdity of that phrase: "a reasonable person in his position."

It should be mentioned that Abu Zubaydah is a clearly evil guy, whose least offenses included running a terrorist training camp and recruiting for al Qaeda; he's no innocent by any stretch. But he's also fucking nuts, a truth that was known before they started torturing him:

As part of his look into the capture and interrogation of Zubaydah, Suskind quotes Dan Coleman, the FBI agent who was the bureau’s first case agent on Osama bin Laden in the 1990s, and who had been working the terror beat since the 1980s. Soon after his capture, Coleman described Zubaydah as “insane, certifiable, a split personality” — an opinion, according to Suskind, that was shared by the CIA’s top brass, and conveyed to the president and vice president. Despite this, Suskind reports that when the president learned that Zubaydah was mentally ill, he told then-CIA director George Tenet, “I said he was important …You’re not going to let me lose face on this, are you?” Tenet, ever the company man, replied, “No sir, Mr. President.”

But more to the point is the case of Zubaydah’s diaries, seized during his capture in March 2002. In making the case that Zubaydah was mentally ill, Suskind explains that his diaries were written in the voices of three people, Hani 1, Hani 2 and Hani 3. Hani 1 was a boy, ten years younger than Zubaydah, Hani 2 was the same age as Zubaydah, and Hani 3 was a decade older. “What was being observed,” Suskind writes about the diaries, “by three pairs of eyes, meanwhile, was often less than compelling — what people ate, or wore, or trifling things they said … in page after page. Zubaydah was a logistics man, a fixer, mostly for a niggling array of personal items, like the guy you call who handles the company health plan, or benefits, or the people in human resources. There was almost nothing ‘operational’ in his portfolio. That was handled by the management team. He wasn’t one of them.”

Despite this, every bit of information extracted from Zubaydah through torture (Suskind recounts the particulars of his treatment in gruesome detail) sent teams of FBI agents and local law enforcement officials scrambling across the country, trying to put out fires that didn’t really exist.

Orwell wrote in 1984 that "the purpose of torture is torture." In this case, if Suskind is to be believed, the purpose of torture was to save face for the president, and its consequence was an enormous amount of man-hours and money expended on false leads from a madman who probably was just trying to blurt out anything to get the caterpillar out of the box. That at least we're starting to come clean about this deep stain is the only redeeming element; we'll take it.


Anonymous said...

Dave - I am not at all sure how you get to the point of saying CIA operatives shouldn't be accountable for the legality of orders they're given. Clearly, the order-givers should be accountable themselves, but don't the operatives have a duty to do the right thing? Most people in any war are following orders. It seems to easy to let most of them off the hook.


David said...

I think the question is whether the operatives could reasonably believe that what they were doing was legal. In the abstract,

I agree that each individual should have the strength of character to disobey immoral orders. But I'm not sure this is feasible, or reasonable to expect. And as depressing as it is to consider this, there are downsides to a hierarchical organization in which each actor is assumed to have his/her own moral agency.

Not a very satisfying answer, I admit.