Things Can Change

No one can pick out turning points in real time. On June 28, 1914, Archduke Franz Ferdinand of Austria, heir to the Austro-Hungarian throne, and his wife, Sophie, Duchess of Hohenberg, were assassinated in Sarajevo by the totally obscure Gavrilo Princip, one of a group of six Bosnian Serb assassins. This was all part of a plan to break off Austria-Hungary’s south-Slav provinces, so one day there could be a Greater Serbia. Well, we finally got Yugoslavia. And we also got the First World War, and the Second. Historians generally agree this was all Gavrilo Princip’s fault. The assassination of Archduke Ferdinand started World War One.

 

Well, not really – the assassination was only the triggering event, as all the other factors that made war inevitable were nicely in place. But that event put things in motion. You could call it a turning point, but no one knew that at the time, and, of course, if that assassination hadn’t happened, something else would have led to the wars that followed.

 

But it did happen – read all about it here – and looking back anyone could see that was the day everything changed. At the time anyone who even knew it had happened probably thought the assassination troubling, but no more than that. You never know when things turn for the worse, at the time – or when they turn for the better.

 

Obama spoke at the Democratic Convention in Boston in July 2004 – good speech, and now he’s president. Who knew? Back then it was Dopey and Grumpy running for reelection against the dull but earnest Lurch and the happy Breck Girl from North Carolina. But that speech changed everything. Many had the feeling it might, but dismissed that feeling and went about their business. Turning points are like that.

 

So do we have another? Vice President Dick Cheney (Grumpy) just told the Weekly Standard this – “I think on the left wing of the Democratic Party there are some people who believe that we really tortured.” But we don’t – we just used enhanced interrogation techniques, and some waterboarding, which, in spite of law and precedent, Cheney says isn’t really torture any longer, and the rules have changed. And then there’s Susan J. Crawford, the convening authority of the military commissions at Guantanamo Bay. She’s a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general, working for Cheney. On Wednesday, January 14, the Washington Post published this front-page interview by Bob Woodward – she chats with Woodward and states, without any equivocation at all, that the treatment of the guy who is the alleged “twentieth highjack” from 9/11, Mohammed al-Qahtani, was “torture.” Crawford claims that the United States authorized torture – not “coercive interrogation” or “enhanced interrogation” or “abuse.” It was torture.

 

What? Maybe you don’t have to wait a few years to figure out that this is a big deal. In fact, Dahlia Lithwick and Phillipe Sands call it The Turning Point – they say it changes everything we know about torture.

 

Maybe it does – but consider the source of this claim. Philippe Sands QC (Queen’s Counsel) is professor of law at University College London and a barrister, and his new book is Torture Team: the Rumsfeld Memo and the Betrayal of American Values. As for Dahlia Lithwick, see this:

 

Lithwick was born in Canada and she remains a Canadian citizen. She moved to the US to study at Yale University, where she received a BA in English in 1990. As a student at Yale she debated on the American Parliamentary Debate Association circuit. In 1990 she and partner Austan Goolsbee were runners up for National Debate Team of the Year. She went on to study law at Stanford University, where she received her JD in 1996. She then clerked for Judge Proctor Hug on the United States Court of Appeals for the Ninth Circuit. She is Jewish, and keeps a kosher home.

 

Make of that what you will, and these two say you’re right to be skeptical that this changes anything:

 

After all, the Senate armed services committee issued a report just last month pointing the finger of responsibility for the military interrogations at then-Secretary of Defense Donald Rumsfeld and his general counsel Jin Haynes. The committee did not use the “T” word, however. And Crawford is hardly the first high-ranking military official to use the word. Alberto J. Mora, former general counsel of the U.S. Navy, wrote in a letter to the Navy’s inspector general: “The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture.” The 84-page log of al-Qahtani’s interrogation has long been a matter of public record, and there is now little dispute that the treatment it describes rose to the level of torture. As described in Torture Team, London-based clinical psychiatrist and trauma specialist Dr. Abigail Seltzer studied the log and concluded that al-Qahtani had been tortured.

 

So everyone knew what was going on, and this should not be a big deal. But then Crawford is a military lawyer, and “from the very outset of the Bush torture regime, it was the military attorneys who warned him – if they were given a chance – that his program was illegal.” And now that one of them has used the word torture, the actual word, other things follow:

 

First, the administration can no longer hide behind parsing the language of the Geneva Conventions and the torture statute. Whether or not Michael Mukasey is willing to call water-boarding torture – as the president-elect did on Sunday – a reputable senior military official has put that label on conduct that is arguably not as bad and has been widespread in Afghanistan and Iraq.

 

In her interview, Crawford acknowledges that it was “the combination of the interrogation techniques, their duration and the impact on Qahtani’s health that led to her conclusion. ‘The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. … This was not any one particular act; this was just a combination of things that had a medical impact on him. … It was that medical impact that pushed me over the edge’ to call it torture.”

 

Lithwick and Sands call what Crawford has done astounding:

 

She has repudiated the formalistic (and perennially shifting) definitions of torture as whatever-it-is-we-don’t-do. She has admitted that there is a medical and legal definition for torture and also that we have crossed the line into it.

 

Lithwick and Sands see further consequences:

 

Crawford also told Woodward that the charges against al-Qahtani were dropped because he was tortured. This has devastating consequences for the Bush administration’s entire rationale for the new techniques of interrogation: that they would make the United States safer, by producing intelligence and keeping dangerous individuals off the streets. We now know they do neither. The torture produced no useful information from al-Qahtani, and the cruelty heaped upon him will make it more difficult, if not impossible, to justify his long-term incarceration.

 

But wait! There’s more!

 

There is a third major consequence to the Crawford interview: Her principle objection to detainee abuse is not ephemeral or spiritual, but a damning indictment of the impact it will have on American troops and the prospects for America’s authority abroad: “If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.”

 

But then Lithwick and Sands get to the real turning point, which is a matter of changing minds:

 

Whatever her reasons for speaking now – the fact that she chose to do so with a journalist whose name resonates around the globe and is indelibly associated with presidential criminality – itself changes the terms of the debate. Whether torture occurred and who was responsible will no longer be issues behind which senior members of the administration and their lawyers and policymakers can hide. The only real issue now is: What happens next?

 

That’s where things get interesting, once you define, as a matter of law, what we did as torture, when a key member of our own government just ups and does that:

 

Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to “ensure that all acts of torture are offences under its criminal law.” These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

 

We’re boxed in. If Obama wants to look forward and let this all slide, then any of 145 other parties to the 1984 Torture Convention can demand extradition to another country where someone will submit the case, and try those responsible. Those are the rules. We agreed to them. And this changes things:

 

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level.

 

For the Obama administration, the door to the do-nothing option is now closed.

 

That’s why this may be the turning point no one really expected. It was torture. Now what?

 

Andrew Sullivan is relieved:

 

Notice that torture renders bringing terror suspects to justice legally impossible. So we get bad information; and they get to avoid true legal or moral accountability for their acts of terror (if they committed any).

 

What Crawford grasps is that torture is not defined by some cartoonish Jack Bauer-style sadism. It need not leave any physical marks (that’s why some of the techniques used by Bush were studied and used by the Gestapo). Things that might seem banal on paper – “sleep deprivation,” for example – in practice when maintained for a sufficient amount of time can be among the worst torture there is. Put these techniques together – hypothermia, sleep deprivation, repeated beatings, constant nudity, sensory deprivation – and they become something often worse than an electric shock.

 

The definition of torture is when the victim has no effective choice but to say something, true or false, to end the ordeal. You can bring a victim to that point of surrender of his or her soul and will in many different ways. Maybe Bush was in denial; maybe Cheney wasn’t. But the objective truth of what they did cannot be denied – and must be faced.

 

Kevin Drum is a bit worried:

 

There’s one thing I’d be interested in seeing first, though, that I don’t think I’ve seen before: a sober legal analysis of whether torture prosecutions are likely to succeed. The fact that Qahtani’s case has been tainted is based on a certain set of legal principles, and Crawford almost certainly made the right ruling here. But there’s a whole different body of statutory law and evidentiary requirements that would come into play if a prosecutor were trying to prove beyond a reasonable doubt that a specific person was guilty of breaking US law by ordering or carrying out the torture of Qahtani. That’s a much, much harder case to make.

 

I guess this is my worst case scenario: we end up bringing charges against Bush administration officials and then they get off. That would be tantamount to an official sanction for this stuff.

 

Here’s his question:

 

Now, obviously no prosecution is ever certain, and fear of failure is a poor reason for doing nothing. But I’d still like to know that there’s a decent chance that the legal case here is strong enough that convictions are at least likely. And I’d like to hear it from someone without a huge vested interest one way or the other. Without access to all the evidence this would be something of a whiteboard exercise, but still, has anyone with the appropriate background ever scoped this out?

 

And do you use a Larry King interview on CNN as evidence? See this:

 

KING: So there’s nothing you’ve done in the area of treatment of prisoners that causes you any kind of pause?

 

G. BUSH: No. No. Everything we did was – you know, it had legal – legal opinions behind it. Look, you’re sitting there, you’ve captured Khalid Sheikh Mohammed. He’s the guy that ordered the September the 11th attacks. And we want to know what he knows in order to protect the United States of America. And I got legal opinions that said whatever we’re going to do is legal. And my job is to protect you, Larry. And I’ve given it my all. I’ve given it my all.

 

Sullivan wonders about that:

 

Isn’t that an admission that he demanded legal cover for illegal acts? And had “lawyers” like John Yoo and Jay Bybee all too willing to write and say anything for their boss.

 

Well, that’s a thought – criminal conspiracy. And Sullivan adds this:

 

One more thing: no pause. No reflection. Not even a smidgen of doubt or wrestling with the profound legal, constitutional and moral issues involved. What a pathetic excuse for a president. What a sad, callous, callow man.

 

But being a sad, callous, callow man is not a crime, even if thirty-three prisoners at Guantanamo are now involuntarily attached to feeding tubes, as we won’t let them starve to death in the despair we’ve induced, and now none of them is likely to be prosecuted successfully. What we finally got them to admit is so tainted – they would say anything – that even the administration’s lawyers won’t have anything to do with the fake trials.

 

But Cheney has no regrets at all. And after all, on the Fox show “24″ Jack Bauer saves the world each week, by using torture to get the bad guys to reveal the plot and where the bomb is. That show is back, and Kevin Drum not impressed:

 

So I watched the 24 premiere last night, and it’s obvious that the show is going to deal head on with the subject of torture this season. Episode 1 opens with Jack testifying before a Senate committee about his past transgressions, which he wearily but defiantly confesses to, and then rolls through two hours of FBI agents wondering “how far he’ll go” – because, you see, Jack’s exploits with the dark arts are apparently the thing of legend in the hallways of the Bureau.

 

Is there any way for this to end other than badly? After all, here in the blogosphere we opponents of torture like to argue that we don’t live in the world of 24, guys. And we don’t. But Jack Bauer, needless to say, does live in the world of 24. And in that world, there are well-heeled terrorists around every corner, ticking time bombs aplenty, and torture routinely saves thousands of lives.

 

What are the odds that it won’t do so again this season – except this time after lots of talk about the rule of law blah blah liberals blah blah it’s your call blah blah? Pretty low, I’d guess. Hopefully the writers will surprise me.

 

They won’t, and Sullivan says this:

 

I watched my first episode of 24 on Sunday. Seemed like silly Hollywood drama to me, with the usual relationship to reality. Enjoyable enough – but do people take this stuff seriously?

 

Yes they do, as one of his readers reminds him of these comments from Justice Scalia:

 

“Jack Bauer saved Los Angeles … He saved hundreds of thousands of lives … Are you going to convict Jack Bauer?” Then, “I don’t think so… So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

 

Some people do believe in those absolutes. You don’t torture. It doesn’t work. It makes actually prosecuting the guy impossible. It’s illegal.

 

But maybe it doesn’t really matterr:

 

A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.

 

Darrel Vandeveld, a former lieutenant colonel in the Army Reserve, filed the declaration in support of a petition seeking the release of Mohammed Jawad, an Afghan who has been held at the military prison in Cuba for six years. Jawad was a juvenile when he was detained in Kabul in 2002 after a grenade attack that severely wounded two U.S. Special Forces soldiers and their interpreter.

 

Darrel is fed up:

 

Vandeveld, who has served in Iraq and Afghanistan, was the lead prosecutor against Jawad until he asked to be relieved of his duties last year, citing a crisis of conscience. He said the case has been riddled with problems, including alleged physical and psychological abuse of Jawad by Afghan police and the U.S. military, as well as reliance on evidence that was later found to be missing, false or unreliable.

 

Vandeveld said in a phone interview that the “complete lack of organization” has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, “it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name.” …

 

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or “simply piled on the tops of desks” of departed prosecutors.

 

“I further discovered that most physical evidence that had been collected had either disappeared” or had been stored in unknown locations, he said.

 

It’s all absurd now, along with being ineffective and illegal.

 

Of course there was the Pentagon statement that sixty-one former detainees from the Guantanamo Bay facility “appear to have returned to terrorism since their release from custody.” No, really:

 

Pentagon spokesman Geoff Morrell said 18 former detainees are confirmed as “returning to the fight” and 43 are suspected of having done in a report issued late in December by the Defense Intelligence Agency.

 

Morrell declined to provide details such as the identity of the former detainees, why and where they were released or what actions they have taken since leaving U.S. custody.

 

“This is acts of terrorism. It could be Iraq, Afghanistan, it could be acts of terrorism around the world,” he told reporters.

 

Morrell said the latest figures, current through December 24, showed an 11 percent recidivism rate, up from 7 percent in a March 2008 report that counted 37 former detainees as suspected or confirmed active militants.

 

Of course he declined to provide details. For those consult the folks at the Seton Hall School of Law:

 

Just as the Government’s claims that the Guantanamo detainees “were picked up on the battlefield, fighting American forces, trying to kill American forces,” do not comport with the Department of Defense’s own data, neither do its claims that former detainees have “returned to the fight.” The Department of Defense has publicly insisted that at least thirty (30) former Guantanamo detainees have “returned” to the battlefield, where they have been re-captured or killed. To date, however, the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. More strikingly, data provided by the Department of Defense reveals that:

 

- at least eight (8) of the fifteen (15) individuals identified alleged by the Government to have “returned to the fight” are accused of nothing more than speaking critically of the Government’s detention policies;

 

- ten (10) of the individuals have neither been re-captured nor killed by anyone;

 

- and of the five (5) individuals who are alleged to have been re-captured or killed, two (2) of the individuals’ names do not appear on the list of individuals who have at any time been detained at Guantanamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantanamo detainees but who, after his death, has been alleged to have been detained under a different name.

 

What can we make of all this?

 

It seems the absurd has met its turning point. It happens, even if it doesn’t seem like a big deal at the time.