Of course the national debate on torture is a bit nuts – it wasn’t really torture even if it had all the elements of torture, as we have memos from real lawyers who said it wasn’t, really, if you looked at things in a new way, and other lawyers, many of them, suggesting these guys should be disbarred because the legal reasoning was a joke – except one of the guys who wrote the memos is now a sitting federal judge, and that complicates things. And of course we prosecuted people in the past for waterboarding, even executed one of them, but those were bad guys – and motive matters. We were protecting America.
And after all it worked – we haven’t been attacked since that one time in 2001. But any kid knows that’s a silly argument – Los Angeles hasn’t had a major earthquake since the first of the three Spiderman movies was released. Cause and effect? You decide. And as for torture, it may be immoral and illegal, and an unforgivable war crime for God knows how long – but we’re told that it worked. Except to prove that you have to prove a negative – we did some awful things, and there was not another attack. Cheney says there are memos that prove this – that people kept awake for eleven straight days and who were beaten within an inch of their lives and waterboarded almost two hundred times did, as all of that reached its peak, gave us wonderful and coherent and true information concerning plots to kill us all – and Senator Russ Feingold says he’s seen those memos and they show no such thing. And what anyone says after eleven days with no sleep at all might be a little incoherent – that tends to disintegrate your personality and you probably don’t even know who you are after the third or fourth day. None of it makes much sense.
And the whole thing was not helped when an FBI interrogator named Ali Soufan, who was involved in all this back in 2002 and read the it’s-all-quite legal memos, went public in the New York Times:
One of the most striking parts of the memos is the false premises on which they are based. The first, dated August 2002, grants authorization to use harsh interrogation techniques on a high-ranking terrorist, Abu Zubaydah, on the grounds that previous methods hadn’t been working. The next three memos cite the successes of those methods as a justification for their continued use. It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another FBI agent, and with several CIA officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.
There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions – all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.
One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the CIA and FBI, similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.
Some of this seems like a turf war between the FBI and the CIA – the White House had decided the FBI weren’t manly men. This was a job for real men, not wimps, and this is just sour grapes from Ali Soufan. He and his soft FBI chums just didn’t have the balls to do what was necessary – except what was necessary didn’t work. But you have Cheney saying it must have worked – you see, we were not attacked again – QED.
Obviously something else might be going on. There was the detailed and carefully-sourced McClatchy story:
The Bush administration applied relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein’s regime, according to a former senior U.S. intelligence official and a former Army psychiatrist.
Such information would’ve provided a foundation for one of former President George W. Bush’s main arguments for invading Iraq in 2003. In fact, no evidence has ever been found of operational ties between Osama bin Laden’s terrorist network and Saddam’s regime.
The win-them-over-with-talk FBI girly men, who wouldn’t play rough, got lots of good information – sure. But the item goes on to document that the White House, and Cheney in particular, was sure that these bad guys we’d captured knew exactly how Saddam Hussein and al Qaeda were closely linked, and knew all about Saddam’s nuclear weapons program. And they weren’t saying anything about that. And at the time we needed that information – to convince everyone the coming war with Iraq was necessary.
So folks in the White House were pissed. It seems many in the FBI and the CIA, and in intelligence services around the world, were saying none of what we imagined was so. It made no sense. Saddam Hussein and al Qaeda had been enemies – they had declared that. So this was not going well. The White House and Cheney in particular knew what they thought had to be so – and these key guys were holding out. That got one of them waterboarded over sixty times in one month, and one of the almost two hundred times in one month. They had to know, they had to know… but it seems they didn’t. How can you tell the difference between when some is withholding information and when they just don’t know the information? They can tell you they don’t know, and could be lying. Or they could really not know, and you think they’re lying. Or in this case, you might not care either way – you’ll get your confirmation of what you believe, and whether it’s true or not doesn’t matter that much, as it’s useful. But these guys weren’t even useful.
But all that must wait for another day, as on Wednesday, May 13, the issue was the practice of torture itself, and its implications. The venue was a Senate subcommittee hearing on the Bush administration torture policies was held by Senator Whitehouse’s Subcommittee on Administrative Oversight and the Courts. The star witnesses was Ali Soufan, the FBI interrogator who actually did get useful intelligence from Abu Zubaydah using legal interrogation procedures, and Philip Zelikow, the former State Department attorney, Rice’s deputy, who wrote a memo in opposition to the Office of Legal Council it’s-not-really-torture memos.
It certainly was interesting:
A former FBI interrogator who questioned al-Qaida prisoners testified Wednesday that the Bush administration falsely boasted of success from extreme techniques like waterboarding, when those methods were slow, unreliable and made an important witness stop talking.
Ali Soufan, testifying to a Senate panel behind a screen to hide his identity, said his team’s non-threatening interrogation approach elicited crucial information from al-Qaida operative Abu Zubaydah, including intelligence on “dirty bomb” terrorist Jose Padilla.
Soufan said his team had to step aside when CIA contractors took over. They began using harsh methods that caused Zubaydah to “shut down,” Soufan said, and his team had to be recalled the get the prisoner talking again.
There is a bit of the Keystone Cops to all that, if it weren’t so nasty. But those memos by the Bush Justice Department did say that waterboarding, sleep deprivation, walling, slapping and all the rest were quite legal under US and international law, and the Democrats said they amounted to torture. Obama has said he wanted to avoid partisan hearings over all this, but he was out of luck:
Subcommittee Chairman Sen. Sheldon Whitehouse, a Democrat, promised at the outset to unravel “our country’s descent into torture” and vowed to expose “a bodyguard of lies” by the Bush administration. Sen. Lindsey Graham, a Republican, asked whether “we would have this hearing if we were attacked this afternoon.”
Graham called the hearing a “political stunt” and said Democrats were trying to judge officials who – soon after the Sept. 11, 2001, terror attacks – “woke up one morning like most Americans and said, ‘Oh, my God, what’s coming next?'”
He also joined in the frequent Republican criticism that members of Congress, including the leader of the House, Speaker Nancy Pelosi, were briefed on the interrogation program and raised no protest at the time.
Graham appeared irate, commenting at one point, “The people we’re prosecuting didn’t rob a liquor store.”
Graham kind of missed the point. These were awful guys, but we were being stupid:
Soufan countered that his personal experience showed that the harsh interrogation techniques did not work even when there was not a lot of time to prevent an attack. “Waiting 180 hours as part of the sleep deprivation stage is time we cannot afford to wait in a ticking bomb scenario,” he said.
Soufan said the harsh techniques were “ineffective, slow and unreliable and, as a result, harmful to our efforts to defeat al-Qaida.”
Soufan also said “many of the claims made” by the Bush folks were a bit odd:
The administration said Abu Zubaydah was not cooperating before Aug. 1, 2002, when waterboarding was approved. “The truth is that we got actionable intelligence from him in the first hour of interrogating him” before that date.
The administration credited waterboarding for Zubaydah’s information that led to the capture of Padilla, who received a 17-year, four-month sentence, although prosecutors did not present any dirty-bomb information. Padilla was arrested in May 2002, months before waterboarding was authorized, Soufan said.
Bush officials contended that waterboarding revealed the involvement in the Sept. 11 attacks of al-Qaida mastermind Khalid Shaikh Mohammed. Soufan said the information was discovered in April 2002, months before waterboarding was introduced.
In short, the whole “enhanced interrogation techniques” thing was a stupid move, and the current claims about how it worked require time to run backwards, like in science fiction movies or something.
And there was the other witness:
Philip Zelikow was a top adviser to then-Secretary of State Condoleezza Rice. He described his efforts within the Bush administration to argue that the harsh interrogations violated the Constitution. In early 2006, Zelikow said, he circulated his own analysis that dissented from the Justice Department view that the methods were legal under U.S. and international law.
“I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed,” he said. “That particular request, passed along informally, did not seem proper and I ignored it.”
The State Department told reporters Wednesday that the memo has been found. Not that it matters:
Earlier, an expert told senators that the legal memos used by the Bush administration to support harsh interrogation techniques represented an “ethical train wreck.” Professor David Luban, an expert in legal ethics based at Georgetown University, said that lawyers were required to give “candid and unvarnished advice.” However, Luban said, the memos “cherry-picked sources” that “twisted and distorted the law.” He said cases suggesting waterboarding was torture were not mentioned in the memos released by the Obama administration last month. Justice Department lawyers had a responsibility not to “rubber stamp administration policies” or “provide cover for illegal actions,” Luban added.
The Zelikow memo is just more of the same. Of course the Republicans then taunted Zelikow, asking him if he was one of those fools who thought the Obama administration’s decision to close the Guantanamo Bay prison was a good idea. But he was ready:
Zelikow said some “far more dangerous” inmates were already being held on U.S. soil.
“Everyone in America had heard of Alcatraz,” he said. “One reason it was closed was because it had become a symbol. Guantanamo Bay had become in world public opinion a toxic problem for the United States of America.”
The Atlantic offers a concise summary of the day:
The Senate Judiciary Committee hears testimony from former lead FBI counterterrorism agent Ali Soufan. Soufan calls “enhanced interrogation techniques” “ineffective, slow, unreliable” and therefore harmful, “aside from the important considerations that they are un-American and harmful to our case and reputation.” Soufan describes the successful non-coercive interrogation of Al Qaeda terrorist Abu Jandal, who “identified many terrorists who we later successfully apprehended.” Soufan describes an interrogation method he calls the “Informed Interrogation Approach,” which seeks to capitalize on the natural fear that a detainee feels as a result of his custody by adopting a posture of openness and respect.
Soufan presents an interesting challenge to the Ticking Time Bomb Scenario. Noting that it took 83 waterboardings to force Khalid Sheik Mohammed to cough up information, he describes that technique as “slow” and therefore unreliable when information needs to be obtained quickly.
But there was pettiness:
Soufan also provides an unclassified chronology of the joint FBI-CIA efforts to question Abu Zubaydah. He says that his early efforts to coax information out of the Al Qaeda operate were successful, and CIA director George Tenet prepared a congratulatory telegram. As soon as Tenet learned that FBI agents – not his CIA team –had taken the lead role in the interrogation, he withdrew the congratulations and sent a team from the CIA’s counterterrorism center to the interrogation site. That team was assisted by a contractor who “instructed” the new CIA operatives in tougher interrogation techniques. According to Soufan, the new team began to use the EITs. Zubaydah stopped cooperating. Soon, the FBI was brought back in. Zubaydah opened up like a book.
These guys are keeping us safe?
And Digby sees broader issues in an exchange between Ari Melber and Joe Morton in MSNBC:
Morton: And yet there are others who would say that the waterboarding helped. It helped provide information…
Melber: But Joe, even if we put that aside and say that might be possible, there are leaders throughout the world who would say that genocide helps security, that cancelling elections helps security, that fascism helps security. At some point here the whole issue is that we have to move beyond the framework of just saying torturing someone or killing someone worked, and be bound by the rule of law.
Digby takes it from there:
This is so obvious to me that I can’t understand why people don’t say it more often. If you can excuse breaking the law to use torture to keep the nation safe, you can excuse breaking the law to do anything to keep the nation safe. That nullifies the rule of law – and civilization.
I actually take this argument a step further and say that by refusing to completely repudiate torture and hold those who devised the regime responsible, we are making ourselves substantially less safe. Superpowers which are seen as tyrannical and which believe that the ends justify the means are not considered trustworthy by the rest of the world. It’s possible that it doesn’t matter if the rest of the world finds us threatening and, frankly, evil. But it is going to cost us a huge amount in blood and treasure to maintain our security under those circumstances. (I won’t even mention the potential economic fallout of becoming a pariah nation.)
So you have a fundamental difference of opinion between liberals and conservatives, about America’s role in the world:
Conservatives think we are a military empire which must constantly prove its toughness and brutally demonstrate its willingness to do whatever it takes to “defend” its interests (which is defined as dominance.) Liberals (would like to) see America as a powerful leader of nations and an example of civilized, cooperative behavior based upon trust and mutual interest. Conservatives believe we must dominate, liberals believe we should engage.
Torture, of course, stands alone as a despicable betrayal of decent human values. But as the argument evolves, we are seeing the foreign policy implications start to emerge as well. I always assumed that the Obama administration understood this better than anyone and it is one of the things about which I was truly optimistic. But it’s looking less likely that we are truly going to see a break with the bipartisan consensus on American military power and substantive change in our approach to world leadership.
People around the world do like Obama and still have great hopes. But it won’t last forever if the only thing they get is lip service and it appears that the administration is driving down America’s hawkish road, just like the ones who came before him. To persuade them that America has truly repudiated the Bush years, he’s going to have to do more than simply assure everyone that “America doesn’t torture” and leave it at that. After all, George W. Bush said exactly the same thing.
Well, Senator Whitehouse had narrower aims for the day:
We accomplished three things today. We showed that the factual predicates in the OLC memos about what had happened were false. We showed that administration lawyers who got a look at the OLC opinions were horrified and tried to push back, and instead of engaging in a debate to see if they were right or wrong they were just squelched and shut down. And we showed that by the standards against which attorneys should be judged for malfeasance experts agree that the OLC opinions don’t cut the mustard and that they qualify for sanction.
You have to start somewhere.
But as for how odd this all was, Slate’s Dahlia Lithwick adds more here:
Sen. Lindsey Graham of South Carolina loves the law. Nuts about it. We know this because he tells us this many, many times at this morning’s Senate subcommittee hearing on “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration.” We know he loves the law because he says “[t]he fact that we embrace the rule of law is a strength” and that “the only way is to operate within the law,” and he says these things mere seconds after he explains that in the desperate days after 9/11, when the lawyers were crafting legal arguments to legalize conduct that was illegal, they did so because “they saw law as a nicety we couldn’t afford.”
So the real question for the committee, the one we never get to, is how much rule of law can we afford, and what happens to the rule of law when you’re getting it for 10 cents on the dollar?
By way of contrast:
Former State Department counselor Philip Zelikow is also thinking about how we will all go crazy after the next terror strike when he testifies: “We could be hit again and hit hard. But our decision to respect basic international standards does not appear to be a big hindrance in this fight. … Others may disagree. They may believe … that America needs an elaborate program of indefinite secret detention and physical coercion in order to protect the nation. The government, and the country, needs to decide whether they are right. If they are right, our laws must change and our country must change. I think they are wrong.”
So it’s really very simple. If torture and indefinite detention and wiretapping are justified, says Zelikow, we need to make them legal now, before the next attack. But nobody – not even Graham – is willing to say that these things are justified.
There’s more, but it comes down to this:
All morning, Graham clings to the argument that he believes in the rule of law. And as he does so, he explains that the lawbreaking that happened with respect to torture: a) wasn’t lawbreaking, b) was justifiable lawbreaking, c) was lawbreaking done with the complicity of congressional Democrats, d) doesn’t matter because al-Qaida is terrible, or e) wouldn’t be lawbreaking if the Spanish police were doing it.
It was all a bit nuts.
And of course the big news of the day was Obama seeks to block release of abuse photos – more nasty photos, the ACLU suing for their release, Obama reversing himself and saying now’s not the time, they add nothing new, as we all know what happened, and the liberals unhappy, the conservatives pleased. But this will only put our troops in danger, or so Obama claims, and Andrew Sullivan reluctantly agrees:
Right now, it seems pretty clear that the military knows that Afghanistan is going under, Pakistan is on the brink, Iraq looks fine but probably will fall apart if we withdraw, and they sure as hell don’t need more grief or demoralization right now.
But Anonymous Liberal explains the whole day best:
…let’s review the basic GOP position. Torture (sorry “enhanced interrogation”) is good and saves lives. It does not incite or radicalize the Muslim world or help al Qaeda recruit. Releasing pictures of it, however, does do all of these things. Also, if we stop torturing people, this leads to an al Qaeda recruiting bonanza.
To say that none of this makes any sense is an extreme understatement.
And more will follow. It’s the Bush legacy. And it drives men mad.