It had to happen eventually, and it was just as well it happened on trick or treat day, Wednesday, October 31 – the chickens come home to roost, or everything comes to a head, or whatever cliché you’d like. It’s like when the absurdly rich and stunningly talentless Paris Hilton gets arrested for driving while pleasantly drunk just down the street, or the Yankees miss even coming close to playing in the World Series once again, or someone puts it to Bill O’Reilly live, on air, and all he can do is sputter – you smile and mutter to yourself that there is reciprocity in the universe. The high and the mighty get their comeuppance.
Of course there really isn’t reciprocity in the universe. The arrogant and dim-witted often succeed at everything fabulously, and die happy, for no reason they can explain. Why should they bother? They just assume they’re special. And crime does pay – there’d be no criminals if it didn’t. And most criminals don’t get caught – what you see on television is supposed to make you feel better. It’s an opiate. Things just don’t work that way. You want justice? You can wait forever, and you won’t be happy. You’ll end up quoting that line from Samuel Beckett – “God doesn’t exist – the bastard!”
But sometimes the old Boethian Wheel rotates a bit –
As the wheel turns those that have power and wealth will turn to dust; men may rise from poverty and hunger to greatness, while those who are great may fall with the turn of the wheel. It was represented in the Middle Ages in many relics of art depicting the rise and fall of man.
Forget the Middle Ages. Try this –
President Bush wants as much flexibility as possible to protect the United States from a repeat of the 9/11 terror attacks.
But does he have the authority to whisk a civilian in the US suspected of being an Al Qaeda sleeper agent into indefinite military detention without charge?
That’s the question on Wednesday confronting all 10 judges of the Fourth US Circuit Court of Appeals in Richmond, Va., in a case examining the treatment of a graduate student from Qatar named Ali Saleh al-Marri.
The case raises one of the most significant unresolved constitutional questions in the war on terror, legal analysts say, and could set the stage for a landmark decision later at the US Supreme Court.
It seems Marri has been held in an isolated wing of the naval brig in Charleston for more than four years, after being designated an enemy combatant by the president in June 2003. The president was told that Marri came to the United States as an al Qaeda sleeper agent – his job was to chip in on a second wave of terror attacks after the attacks that worked so well back in 2001. But that notion was based on information obtained through “coercive interrogations” conducted by intelligence officials overseas, where no one much cared about any rules, And now this –
Coerced statements are not considered reliable enough to be admitted as evidence in an American courtroom. That means it could be difficult to win a conviction against Marri should the government attempt a terror-conspiracy prosecution within the criminal-justice system.
“Coercive interrogations” were a bad idea for many reasons. This is one of them. It’s a bit of reciprocity.
But then it doesn’t change much. It doesn’t give him back those four years, if he is innocent, nor allow us to do much with him if he is guilty. We screwed up.
But some things may change, given this – “A top GOP senator Wednesday warned that Michael Mukasey’s nomination for attorney general is ‘at risk’ because the retired federal judge refused to categorically declare that a controversial interrogation technique is torture.” Arlen Specter of Pennsylvania, the committee’s ranking Republican, is not happy – “I think we need to have a very frank discussion with more facts available, and I believe that can only be done in a closed-door session. I would hope we might do that early next week.”
In answers to questions from the Senate Judiciary Committee about the use of waterboarding against suspected terrorists, Mukasey told senators he found the practice “repugnant” – but he said he just couldn’t answer “hypothetical” questions about whether the technique violates a United States ban on the use of torture. He said he really didn’t know quite what waterboarding was, and didn’t know exactly what we were doing that that seems to be very like what he didn’t know, or so he’s heard, as that was classified, and he didn’t yet have clearance to find out just what we were doing. He’s a clever man.
The committee’s chairman, Vermont Democrat Patrick Leahy, has scheduled a meeting to take up Mukasey’s nomination in six days – “Obviously, many of us felt that the United States – which would roundly and universally condemn the waterboarding of an American held by any other country – many of us had felt that the attorney general nominee should do the same thing.” You’d think so, wouldn’t you?
The tide is turning against the man, or the wheel that Anicius Manlius Severinus Boethius imagined is turning just a bit.
Bush’s nominee for Attorney General boldly promises to ban “repugnant” activities such as waterboarding if (and only if) he decides that they are illegal, which he can’t decide until he knows the details, which he can’t know until he’s confirmed because he’s not cleared for them and can’t talk about because they’re classified and might “provide our enemies with a window into the limits and contours of any interrogation program we may have in place and thereby assist them in training to resist the techniques we may actually use.” Nine Republicans on the House Judiciary Committee are fine with that.
Well, yes, those nine Republicans are satisfied. The ten Democrats on the committee are falling, one by one. It will be close.
Hilary Bok tries to be sensible about this –
There is an easy way for Mukasey to get around the fact that he has not been briefed on what the CIA did: just define waterboarding, say whether waterboarding so defined is torture, and add that not having been briefed on what the CIA did, he doesn’t know whether or not what they did meets his definition. That Mukasey has not taken this obvious route suggests that he is not motivated by his own uncertainty, but by the desire to keep people he believes have engaged in torture from being punished for their crimes.
No kidding. Marty Lederman runs down the statutes on torture and shows there really is no wiggle room here, not in the law, and not in the history of the “water cure” since the Inquisition, and Andrew Sullivan chimes in –
The corollary is that those in the administration who have engaged in or authorized torture, under the plain meaning of English and the plain language of the law, must at some point be prosecuted for war crimes. It’s time to take a stand: filibuster this nomination until we have an attorney general who can uphold the rule of law.
Duncan Black is blunt – “Mukasey can’t say that any of the barbaric things the Bush administration has done is a crime because it would be his job, as Attorney General, to prosecute them all for having done them.” Yep, that would be a problem. The man is trapped. He cannot uphold the law.
And in a long and detailed history of how the two key administration figures operate – the two who actually matter – it seems we will never have an attorney general who can uphold the rule of law. Vice President Cheney and his former counsel and now chief of staff, David Addington, just don’t think that way. They can stop that damned wheel from turning. Screw the wheel.
That’s what Sidney Blumenthal explains in this extended history of the two, from the Nixon days through Ian-Contra. They go way back on such matters, but it comes down to this –
Mukasey is not a free agent. He had been strictly briefed and in his testimony was following orders. He has avoided calling waterboarding torture because that is consistent with the administration’s position and past practice. Mukasey’s refusal to disavow waterboarding reveals his acceptance of his assignment to a secondary role as attorney general, an inferior agent, not a constitutional officer, to certain political appointees in the White House.
Those who are responsible for waterboarding have defined and dictated Mukasey’s evasions. His acquiescence demonstrates that no one in his position could take a contrary view to that of David Addington, Vice President Cheney’s former counsel and now chief of staff, who directed and coauthored the infamous memos by former deputy assistant director of the Office of Legal Counsel John Yoo justifying torture, and charged the current acting director of OLC, Stephen Bradbury, to issue new memos rationalizing it.
Yes, that’s the man –
Addington is the reigning legal authority within the administration, presiding over the attorney general no matter who would fill the job. Addington rules by decree and tantrum, intolerant of any alternative opinion, which he suppresses with intimidation and threat. Gonzales, as White House counsel and then attorney general, was the marionette of Karl Rove and Addington. Rove is gone, but Addington remains.
In his confirmation hearings, Mukasey has proved he will dance as the strings are pulled. His positions on waterboarding express precisely the relationship between the Bush White House and its Justice Department. Mukasey’s testimony telegraphs that the White House will continue to call the shots. He has already ceded the essence of his power even before assuming it. His vaunted integrity and independence have been crushed, short work for Addington.
The bulk of the long Blumenthal piece gives the decades-long history of how Cheney and Addington have operated, and how they think. Screw Boethius.
And we are where we are. See Dan Froomkin at the Washington Post site with this assessment –
The stench of torture that permeates the White House has spread to Attorney General-designate Michael Mukasey, putting what had been seen as a surefire nomination at risk and reigniting a momentous ethical debate.
By refusing to acknowledge at his confirmation hearing that waterboarding is torture, Mukasey appeared to throw his lot in with those who embrace an authoritarian strain of moral relativism, one that excuses abhorrent and illegal policies as long as the president declares they’re in the national interest.
See also Scott Shane in the New York Times with this –
Six years after the Bush administration embraced harsh physical tactics for interrogating terrorism suspects, and two years after it reportedly dropped the most extreme of those techniques, the taint of torture clings to American counterterrorism efforts.
The administration has a standard answer to queries about its interrogation practices: 1) We do not torture, and 2) we will not say what we do, for fear of tipping off future prisoners. In effect, officials want Al Qaeda to believe that the United States does torture, while convincing the rest of the world that it does not.
But that contradictory catechism is not holding up well under the battering that American interrogation policies have received from human rights organizations, European allies and increasingly skeptical members of Congress.
… President Bush has repeatedly defended what the administration calls ‘enhanced’ interrogation methods, saying they have produced invaluable information on Al Qaeda. But the administration’s strategy has exacted an extraordinary political cost.
So this nomination, once expected to sail through the Senate, has run into trouble as a result of his equivocation about waterboarding, or simulated drowning – “Mr. Mukasey has refused to characterize the technique as torture, which would put him at odds with secret Justice Department legal opinions and could put intelligence officers in legal jeopardy.”
Also see this in Time –
George W. Bush has always wielded moral clarity as a weapon, beating Democrats by declaring his high purpose and principled resolve. But in recent months, as critics have shined new light on domestic spying and harsh interrogation techniques in the morally ambiguous world of counter-terrorism, Bush has had to retreat to gray-area defenses, using tailored definitions and legalisms to dodge questioners. And now, as Democrats raise the pressure on embattled Attorney General nominee Michael Mukasey to state his opinion on whether or not waterboarding constitutes torture, it is the president’s opponents who are using moral clarity against him.
The jig is up, les jeux sont fait (just like in the the Sartre book) – or whatever. We may want al Qaeda to believe that the United States really does torture, and convincing the rest of the world that we do not, but you cannot have it both ways. And you may claim moral clarity, but when you’re selling smoke and mirrors, the same applies. The wheel turns. Chickens come home to roost.
And you almost feel sorry for Mukasey, but the Time item adds this –
Harold Kim, a former Specter staffer who works in the White House Counsel’s office, has been negotiating with Judiciary Committee Democrats, trying to find language they can live with. But attempts to compromise with Congress have met resistance from Cheney’s office, and when it comes to interrogation techniques, the Vice President and his chief of staff, David Addington, have notoriously pushed for Presidential authority to go unchecked by the legislative branch.
Ah yes, you remember Cheney’s position on waterboarding – October 24, 2006, in an interview with radio host Scott Hennen –
Hennen: “Would you agree a dunk in water is a no-brainer if it can save lives?”
Cheney: “It’s a no-brainer for me.”
Yeah, well, the editorials are not with him, as in the Washington Post –
It’s a sad day in America when the nominee for attorney general cannot flatly declare that waterboarding is unconstitutional. The interrogation technique simulates drowning and can cause excruciating mental and physical pain; it has been prosecuted in U.S. courts since the late 1800s and was regarded by every U.S. administration before this one as torture.
… The fault for this evasion lies as much, if not more, with President Bush and Congress as it does with Mr. Mukasey. Mr. Bush authorized waterboarding in the past, most notably against al-Qaeda leader Khalid Sheikh Mohammed. If Mr. Mukasey now condemns the interrogation method as unconstitutional, he would probably be in conflict with Justice Department memoranda that implicitly endorse such techniques and that have been used by CIA interrogators and others to cloak their actions in legal legitimacy. The president could also be legally implicated for approving the method.
That’s just how things work. The wheel turns.
Waterboarding is torture. If he cannot unambiguously define it as such, he should not be confirmed.
… The president should have leeway to appoint cabinet members who share his views. But like-mindedness in an appointee on the matter of torture is no virtue. It is difficult to imagine how such a person, taking such an expedient view in the nomination process, could be independent enough to stand up to the president if need be.
Well, that’s the whole idea.
Law professor Marty Lederman –
There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment.
But Waterboarding is a paradigmatic example of torture. It is inconceivable that anyone involved in drafting, negotiating, signing, ratifying or enacting the Torture Act or Common Article 3 would have thought otherwise.
But leave it to USA Today to see the even bigger picture, as “of far greater concern is what Mukasey said about the limits of presidential power. While the president cannot act illegally, he said, ‘illegal’ is a fuzzy concept when it comes to the president.”
The fellow did tell the senators that the president has broad and rather ill-defined powers to ignore a law “when he believes his constitutional authority to defend the nation empowers him to do so.” Senate Judiciary Chairman Patrick Leahy, said that was “a loophole big enough to drive a truck through.” It might be nice if the man were to say that no American is above the law, not even the president. But Cheney is still angry about how Nixon got screwed over.
Secretary Condoleezza Rice said goodbye to Karen Hughes this morning at the State Department, ending Hughes’ two-and-a-half years in charge of America’s public diplomacy. Hughes will officially be off the job in mid-December.
While Hughes’ record as head of public diplomacy is very mixed – her aides insist this decision is not about any disagreement with Rice or the White House rather Hughes wants to return to her husband and her family, who she has been regularly commuting to see in Texas. Rice and Hughes are very close, and Hughes still advises Bush, aides say.
Rice told the assembled State Department staff that Hughes carried out her public diplomacy work in “spectacular fashion.”
Some train wrecks are spectacular too. Rice listed the efforts – Muslim outreach and a few public diplomacy programs like a rapid response unit to counter negative stories about America, and setting up regional media hubs around the world that deployed Foreign Service officers into local communities. No one noticed –
Hughes has remained largely behind the scenes after her first high-profile inaugural trip to the Middle East in 2005, dubbed as a “listening tour.” With 16 reporters in tow, Hughes was caught off guard at nearly every city stop. She was attacked about the Iraq war by Turkish women leaders; she caused controversy in Saudi Arabia by saying women should have the right to drive and “fully participate in society;” and she was shaky in press briefings about Middle East issues.
But the president likes her. Some say he often calls her Mommy.
See Digby, Idiot Abroad –
Ezra Klein once asked something to the effect of “why would Bush send a seven foot tall white woman to aid our public face in the Islamic world?” It’s a good question, but more importantly, why would you send a seven foot tall white woman who speaks like a 6th grader to aid our public face in the middle east and convince the entire world that all Americans are as dim-witted as the president and that Osama bin Laden is right?
Sidney Blumenthal has more –
Hughes appeared to be one of the pilgrims satirized by Mark Twain in his 1869 book, “Innocents Abroad,” about his trip on “The Grand Holy Land Pleasure Excursion.” “None of us had ever been anywhere before; we all hailed from the interior; travel was a wild novelty to us … We always took care to make it understood that we were Americans – Americans!”
And he elaborates –
Hughes’ simple, sincere and unadorned language is pellucid in revealing the administration’s inner mind. Her ideas on terrorism and its solution are straightforward. “Terrorists,” she said in Egypt at the start of her trip, “their policies force young people, other people’s daughters and sons, to strap on bombs and blow themselves up.” Somehow, magically, these evildoers coerce the young to commit suicide. If only they would understand us, the tensions would dissolve. “Many people around the world do not understand the important role that faith plays in Americans’ lives,” she said. When an Egyptian opposition leader inquired why President Bush mentions God in his speeches, she asked him “whether he was aware that previous American presidents have also cited God, and that our Constitution cites ‘one nation under God.’ He said, ‘Well, never mind.’”
With these well-meaning arguments, Hughes has provided the exact proof for what Osama bin Laden has claimed about American motives. “It is stunning … the extent [to which] Hughes is helping bin Laden,” Robert Pape told me. Pape, a University of Chicago political scientist who has conducted the most extensive research into the backgrounds and motives of suicide terrorists, is the author of “Dying to Win: The Strategic Logic of Suicide Terrorism,” and recently briefed the Pentagon and the National Counterterrorism Center. “If you set out to help bin Laden,” he said, “you could not have done it better than Hughes.”
Here’s why –
Pape’s research debunks the view that suicide terrorism is the natural byproduct of Islamic fundamentalism or some “Islamo-fascist” ideological strain independent of certain highly specific circumstances. “Of the key conditions that lead to suicide terrorism in particular, there must be, first, the presence of foreign combat forces on the territory that the terrorists prize. The second condition is a religious difference between the combat forces and the local community. The religious difference matters in that it enables terrorist leaders to paint foreign forces as being driven by religious goals. If you read Osama’s speeches, they begin with descriptions of the U.S. occupation of the Arabian Peninsula, driven by our religious goals, and that it is our religious purpose that must be confronted. That argument is incredibly powerful not only to religious Muslims but secular Muslims. Everything Hughes says makes their case.”
Well, she’s gone. You smile and mutter to yourself that there is reciprocity in the universe. There just isn’t enough of it.