Cheney and Manning: A Modest Proposal (Repost)

by Henry Farrell on December 9, 2014

I’m reposting this in advance of the release of the torture report, and because (via Digby), the ACLU is making a similar argument in all seriousness.

Consider an effort to measure the misdeeds of the ‘global war on terror.’ On the one side of the balance sheet, we have Richard B. Cheney. This gentleman, now in private life, is a self-admitted and unrepentant perpetrator of war crimes – specifically, of ordering the torture of Al Qaeda detainees. Along with other senior members of the Bush regime, he is also guilty of the outsourcing of even viler forms of torture through the extraordinary rendition of individuals to regimes notorious for torturing prisoners (including the dispatch of Maher Arar, who was entirely innocent, to the torturers of Syria). The Obama administration has shown no enthusiasm whatsoever for prosecuting Cheney, or other Bush senior officials, for their crimes. While Obama has effectively admitted that they were torturers, he has indicated, both through public statements and continued inaction, that he would prefer to let bygones be bygones.

On the other, we have Chelsea Manning. She appears to be a confused individual – but her initial motivation for leaking information, if the transcripts are correct, were perfectly clear. She was appalled at what he saw as major abuses of authority by the US, including incidents that he witnessed directly in Iraq. There is no evidence that her leaking of information has caused anything worse than embarrassment for the US. Yet she is being pursued by the Obama administration with the vengefulness of Greek Furies. While Manning was being kept in solitary confinement, and treated in an inhuman fashion, Richard Cheney was enjoying the manifold pleasures of a well-compensated private life, being subjected to no more than the occasional impertinent question on a Sunday talk show, and the inconveniences of being unable to travel to jurisdictions where he might be arrested.

It would appear then that the administration is rather more prepared to let bygones be bygones in some cases than in others. High officials, who ordered that torture be carried out and dragged the US into international disrepute, are given an _ex post_ carte blanche for their crimes, while a low-ranking soldier who is at most guilty of leaking minor secrets at the lowest levels of classification, was treated inhumanely and sentenced to decades of imprisonment.

So here’s my proposal. It’s perfectly clear that Richard B. Cheney will never be prosecuted because a prosecution would be politically inconvenient. If that’s the Obama administration’s decision (and it’s pretty clear that it _is_ the Obama administration’s decision), then the administration should own it. The president should grant Richard Cheney a pardon for his crimes. Simultaneously, as an acknowledgement that the high crimes of state officials should not go unpunished while the lesser crimes of those who opposed the Iraq war are exposed to the vengefulness of the military tribunal system, Chelsea Manning should receive a complete pardon too.

I can’t imagine that Richard B. Cheney would _like_ getting a presidential pardon. Indeed, I rather imagine that he’d vigorously protest it. It would serve as the best formal acknowledgment that we’re likely to get that he is, indeed, a criminal. Obviously, it would also be an unhappy compromise for those who think that he should be exposed to the full rigors of the law. But I personally think that it would be an acceptable compromise (others may reasonably disagree), if it were applied to both sides rather than just one.

(Originally posted with minor differences here

{ 104 comments }

1

AB 12.09.14 at 3:43 pm

Friendly suggestion: it would be courteous to use Chelsea Manning’s preferred name and gender.

2

Anderson 12.09.14 at 4:05 pm

I believe that one has the choice to refuse to accept a presidential pardon, which is what Cheney surely would do.

3

Anderson 12.09.14 at 4:07 pm

Sorry to double-post, shoulda looked it up 1st: Burdick v. United States, 236 U.S. 79 (1915), person free to reject unconditional pardon.

4

William Timberman 12.09.14 at 4:18 pm

He appears to be a confused individual….

And the rest of us do not appear to be? A helluva presumption, especially if we’re talking about current public discussions of foreign policy in the U.S.

5

Dan 12.09.14 at 4:19 pm

I assume Chelsea’s former name is being used because this is a repost from 2012. It’s a bit jarring to read, nonetheless.

6

Dan 12.09.14 at 4:23 pm

As for confused…judging by Manning’s articles in the Guardian, I’d say she is unusually thoughtful and clear-headed.

7

Blanche Davidian 12.09.14 at 4:28 pm

I think this has great merit. And while we’re pardoning the Great Satan, let’s also pardon him for shooting his friend in the face diring the quail hunt. The SOB should have been charged with that one too.

8

Henry 12.09.14 at 5:00 pm

Yes – the Bradley was from the 2012 original post – in subsequent writings, I’ve referred to her as Chelsea (and had dialogue with sub-editors to make sure that it stuck). Have changed accordingly. Were I writing it today, I wouldn’t have the “confused” language – but since I don’t want to change the substance of the original post, am leaving as is, however with an acknowledgment here that my mind has changed in the interim.

9

Rich Puchalsky 12.09.14 at 5:10 pm

I don’t know the answer to this, so this is a real rather than a rhetorical question: would a U.S. pardon interfere in some way with the ability to charge Cheney et al in an international court later?

10

Rakesh 12.09.14 at 5:13 pm

Perhaps to tie this to the Sassen thread. Sassen has long been interested in extra-territorial authority–that is, whether (as in the case of Pinochet) indictments can be rendered outside (or above) the courts of the nation-state of which the potential defendant is a citizen (or as in the case of Eichmann a legal resident–what was his status in Argentina). A pardon need not be respected in these “extra-territorial” courts.
Hard not to think of Sassen’s work differently in light of the discussion of her father’s activities.

11

Anderson 12.09.14 at 5:44 pm

“would a U.S. pardon interfere in some way with the ability to charge Cheney et al in an international court later?”

Unlikely. Different jurisdiction, different law. President can pardon only federal offenses, not violations of int’l law.

12

Brett Bellmore 12.09.14 at 5:46 pm

“While Obama has effectively admitted that they were torturers, he has indicated, both through public statements and continued inaction, that he would prefer to let bygones be bygones.”

Would prefer to continue the tradition that shields he himself from being prosecuted by the next administration. In shielding Cheney he shields himself, in persecuting Manning he discourages whistle blowers from blowing the whistle on him.

13

Bill Murray 12.09.14 at 5:47 pm

As Cheney was such a proponent during his inter-regnum, I think we should subject him to extraordinary rendition to somewhere he has been indicted for War Crimes. Kuala Lumpur is one such place, but may be too nice.

14

J Thomas 12.09.14 at 5:49 pm

#2 Anderson

I believe that one has the choice to refuse to accept a presidential pardon, which is what Cheney surely would do.

Great! After he refuses to accept a pardon, then prosecute his ass!

15

AB 12.09.14 at 5:54 pm

@Rich + Anderson
Given that the USA is not a signatory to the Rome Statue, and has a veto on the UN security counsel, the chance of prosecution in the International Criminal Court is zero in any case.

16

Rakesh 12.09.14 at 5:56 pm

@15. The Hague Invasion Act?

17

AB 12.09.14 at 6:19 pm

@Rakesh. I had forgotten about that. I stand corrected: less than zero.

18

gianni 12.09.14 at 7:09 pm

having Cheney prosecuted may satisfy our desires to see some sort of ‘justice’ (retribution) for his evil, but I don’t see it doing much in terms of preventing this sort of ish happening in the future. the CIA needs to be cut out, root and branch, and intelligence functions reconstituted with the absolute minimum of influence from the old model. the agency has been actively involved in innumerable foreign policy disasters, so much so that I would contend without any hyperbole that they are the greatest threat to our nation’s security.

did you hear the latest, by the way? CIA sponsored textbooks for Afghan children in the late Cold War actively promoted religious violence against non-believers (paid for by USAID, of course). Stuff like “He does jihad with the gun” and “The Alphabet of Jihad Literacy”. Of course, none of this is that much of a surprise – we all know that sept. 11th was ‘chickens coming home to roost’ and all that. But it is still amazing to me how deep that rabbit hole really goes.

http://america.aljazeera.com/articles/2014/12/7/afghan-fighters-americantextbooks.html || http://www.washingtonpost.com/blogs/worldviews/wp/2014/12/08/the-taliban-indoctrinates-kids-with-jihadist-textbooks-paid-for-by-the-u-s/

19

Barry 12.09.14 at 8:09 pm

Brett Bellmore 12.09.14 at 5:46 pm

“Would prefer to continue the tradition that shields he himself from being prosecuted by the next administration. In shielding Cheney he shields himself, in persecuting Manning he discourages whistle blowers from blowing the whistle on him.”

The moon turns blue, dogs and cats are ___in the streets, and I agree with Brett.

20

Brett Bellmore 12.09.14 at 8:32 pm

Don’t worry, Barry, we’ll doubtless disagree again soon enough, and you can reclaim your self-respect. ;)

Of course this is the obvious explanation, but to accept it can be difficult for people who don’t want to admit Obama might have things he doesn’t want whistle blowers revealing, or may have done things that could plausibly lead to later prosecution.

You know, the sort of people who probably think extraordinary rendition isn’t going on anymore…

21

Roger Gathmann 12.09.14 at 8:40 pm

Although I am wholeheartedly for the presidential pardon idea, it would only work if we had a completely other president than Obama. I don’t even think Elizabeth Warren, if she was president, would go for it. Presidents are way way too in the system to perform yippee tricks. And Obama has made it pretty clear that he favors presidentially ordered assassinations, by drone, over torture, which, I dont know, doesn’t sound like a huge advance for world civilization. I’m old enough to remember the scandal when the Church committee showed that the US government plotted to assassinate Castro – now, of course, assassinating the leader of a hostile country would be applauded on both sides of the aisle.

22

novakant 12.09.14 at 9:09 pm

http://www.rawstory.com/rs/2014/12/un-human-rights-expert-us-legally-obliged-to-prosecute-senior-bush-officials-for-torture-crimes/

As a matter of international law, the U.S. is legally obliged to bring those responsible to justice,” Emmerson said in a statement issued in Geneva. “The U.S. Attorney General is under a legal duty to bring criminal charges against those responsible.”

What about that? Ben Emmerson QC and UN special rapporteur on human rights and counter-terrorism

Pace gianni, I think prosecuting Cheney et al could be very effective, as it would hit at the core of the unshakable US moral exceptionalism. I still think the majority of US citizens would have a problem with living in a “rogue state” and the 9/11 excuse is wearing a bit thin.

But hey, I’m probably high … (not really)

23

LWA (Liberal With Attitude) 12.09.14 at 9:15 pm

I’m just wondering what the reaction will be when, inevitably, another power such as Russia or China assumes the right to snatch a US citizen off the streets of Manhattan and whisk them away to enhanced interrogation somewhere.

24

Anderson 12.09.14 at 9:56 pm

“the chance of prosecution in the International Criminal Court is zero in any case”

Signatory nations to the Convention Against Torture have the right and the duty to prosecute offenders in their own jurisdictions.

Apart from the CAT, torture also violates customary international law, so any country can prosecute it. .”.. the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.” —Filártiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

So Cheney could be tried in any other country he visited. He won’t be, of course. But not due to any legal impediment.

25

JM Hatch 12.09.14 at 11:57 pm

Perhaps they can add Henry (Everything that flies on anything that moves) Kissinger to that pardon. The Butcher of South East Asia and South America and Cheney would make good company.

26

Brett Bellmore 12.10.14 at 12:06 am

How about adding Bill (Started this whole extraordinary rendition thing going) Clinton to the arrest list?

27

AB 12.10.14 at 12:26 am

@24 et al.
I think I misunderstood what was being implied by an “international court” in this context. mea culpa.

I absolutely agree that Cheney (and co.) ought to be tried. The reason it is such a good idea is the reason that it sadly won’t happen: it would destroy the presumption that in the conduct of foriegn affairs the state is above the law.

28

Patrick S. O'Donnell 12.10.14 at 1:46 am

All of us should adamantly and loudly refuse to endorse, and call out anyone employing, the fashionable political slogan that asks us, with regard to the public “revelations” about torture, that we “look forward, not backward,” for that shamelessly implies we ignore (i.e., act dismissive of, show contempt for, fail to appreciate the moral and legal significance of, obscure the moral and legal value of…) the fundamental moral and legal (hence also, criminal) importance of notions of accountability, responsibility, and culpability, all of which are, in large measure, “backward looking.”

29

kidneystones 12.10.14 at 2:18 am

From 2006 I advocated impeaching Bush, not because I thought he would be found guilty, but because his defense would surely involve flushing out the pro-Iraq war dems, such as Josh Marshall and Matt Yglesias, who have somehow exonerated themselves from their advocacy of a monumental disaster. The deafening silence of team-blue and team-blue supporters is to me far more troubling than what Cheney says or doesn’t say. His position is clear and one he’s proud to hold.

The last president clearly opposed torture and willing to do something about it was Carter. All other Dem presidents before and after have either turned a blind eye to the practices of the permanent security state, or tacitly supported these practices.

This norm extends to Congress. If you look at Pelosi et al and see Frank Church, a visit to the eye-doctor is probably be in order. Had Bush been impeached, we might have gained a far clearer picture of what Clinton, Biden, et al knew before the invasion, and what the gang of a-holes currently in power knew when they doubled-down on the worst excesses by simply outsourcing the dirty-work more efficiently.

The problem isn’t what happened, although we shouldn’t forget. The problem is what’s happening now. From my point of view, we’re getting the worst of both worlds. Carter-level inefficiency combined with Cheney war powers. But, hey, they’re Dems, so let’s make this all about Cheney and torture up to 2008.

30

Andrew F. 12.10.14 at 2:28 am

Accepting the premise, both Cheney and Manning violated their duties and committed serious crimes. And yet the post argues that allowing both to escape punishment would somehow be more just than punishing at least one of them. I do not see how that is remotely more just; indeed it merely aggravates what is assumed to be an existing injustice.

Let me put it this way. If a mayor instituted an illegal program while in office, but escaped prosecution, that would hardly mean we should excuse the unrelated but serious crimes committed by a low-ranking police officer.

That said, I also don’t think there’s a strong criminal case to be made against Cheney. It’s relatively clear that he relied, and that others relied, reasonably on the continuing advice of legal counsel concerning what interrogation methods are within legal bounds and what interrogation methods are not. This provides him, and others, with a sturdy legal defense, however disgusted some of us may be.

To say the least, the program stretched the law to its outer bounds, and very plausibly beyond – but it was done during a time of national crisis, when one might expect policies to test the limits of law, sometimes for better and often for worse.

So I’d disagree that the Obama Administration’s decision not to pursue criminal charges is driven simply by political convenience. It would be a weak criminal case, and it would therefore come close to using the power of criminal prosecution to penalize former officials not for corrupt violations of law but for policy decisions made in good faith during a crisis, which is a dangerous precedent for any President to set.

31

gianni 12.10.14 at 2:50 am

Romero (ACLU) making the OP case right now on MSNBC

32

gianni 12.10.14 at 2:53 am

typical filth from Andrew F.

33

Cranky Observer 12.10.14 at 2:57 am

Andrew F: “That said, I also don’t think there’s a strong criminal case to be made against Cheney. It’s relatively clear that he relied, and that others relied, reasonably on the continuing advice of legal counsel concerning what interrogation methods are within legal bounds and what interrogation methods are not. This provides him, and others, with a sturdy legal defense, however disgusted some of us may be.”

Not sure how “sturdy” that legal advice was as it apparently did not include a search of the proceedings from the war crimes trials against officers of the Imperial Japanese Army 1946-1951.

By the way Andrew F: are _you_disgusted by the US use of torture as described in this report? Or are you with Yoo, Cheney, and their ilk.

34

Anderson 12.10.14 at 5:02 am

So on Andrew’s theory, had Hitler secured a lawyer’s opinion that the Final Solution was legal, then no crime?

You can’t get yourself off the hook by commissioning a hackwork legal memo contrived for that purpose.

35

bad Jim 12.10.14 at 8:58 am

Pardoning Bush and Cheney would put them on the same page of history as Nixon. Sweet.

36

Collin Street 12.10.14 at 11:11 am

I’m just wondering what the reaction will be when, inevitably, another power such as Russia or China assumes the right to snatch a US citizen off the streets of Manhattan and whisk them away to enhanced interrogation somewhere.

See, it’s been my long-argued position that the key distinctiveness of Right-wing thought can be summed up as “profound empathy problems”.

[this is why they miss collective-action and synchronisation/cultural-change issues, too: the problem of coordination is a problem reliant on knowing what others are thinking, and thus on knowing that others don’t think exactly the same as you do. If you can’t do that you won’t see why cultural systems persist despite acknowledged suboptimality…]

[it’s worth noting that this is a solidly-falsifiable claim; all you’d need is a pattern of behaviour typical of right-wing activists that wasn’t trivially attributable to problems getting inside the head of others.]

37

Sancho 12.10.14 at 11:17 am

I’m kind of gobsmacked by Andrew F.’s comment.

I mean, you see the star-spangled, wrapped-in-a-flag defences of Cheney everywhere. Almost as common is the wheedling, well-it-wasn’t-really-torture-if-you-look-at-it-right plea. And the shut-up-lefist-scum defence gets applied to everything.

None of them, though, approaches the skin-crawling unctuousness of claiming that, since Cheney could possibly escape conviction by lawyering the hell out of plausible deniability and pushing reasonable doubt to its limits, he is therefore an honest public servant who did his noble best in a difficult situation.

Rack off. If there’s any appreciable difference between Cheney and Goering other than time and place, I’d like to hear it.

38

Barry 12.10.14 at 11:28 am

Andrew’s a wh*re, pure and simple. He’s established a reputation which he deserves.

39

Barry 12.10.14 at 11:28 am

Collin Street 12.10.14 at 11:11 am
“See, it’s been my long-argued position that the key distinctiveness of Right-wing thought can be summed up as “profound empathy problems”.”

Combined with a love of hierarchy, and privileges (called ‘rights’) which are tied into that.

40

kidneystones 12.10.14 at 11:40 am

Political and other kidnappings are not as exceptional as one might hope. Self-proclaimed champions of the “left” can ignore North Korean kidnappings of Koreans south of the border, and of Japanese children. Making the state security behemoth about one political party, or political ideology, is frankly infantile. Governments that engage in kidnapping their own and other citizens aren’t/weren’t looking to justify their actions on Dick Cheney. Think Central and South America during the 2oth century.

One can claim that Blair is not really a liberal, or not really a leftist, or not even Labor. However, the Labor party signed-off, blindly or otherwise, on all the excesses laid at the door of the “right.” Geoff Hoon likely knew about a great deal of what was/is taking place. Sections of the British press are making that case this very moment. One can claim that the governments that ruled eastern Europe and that still rule large populations in Asia are more totalitarian than leftist. But one cannot dispute that communist, soviets, and other abusive political systems are of the left.

Targeted assassinations are and have been state policy in the west for a very long time. They are a function of a realist political outlook, not a left/right paint-by-number world view. Read Robert Farley’s work over the last decade. He’s had to significantly re-calibrate his intellectual identity. I doubt he’s in the Cheney camp, yet. But if you think Biden, Obama, and Clinton aren’t every bit as capable of reaching for the pliers, you’re dreaming.

My guess is they already have.

41

Brett Bellmore 12.10.14 at 11:42 am

“See, it’s been my long-argued position that the key distinctiveness of Right-wing thought can be summed up as “profound empathy problems”.”

This is kind of amusing, in as much as some actual research shows that the right-wing are better at predicting left-wing views than the other way around.

Here’s an alternate possibility: Liberals confuse having empathy with the imaginary people inside their heads with real empathy, and, since they perfectly understand those caricatures, think they’re phenomenally good at empathy.

42

Ronan(rf) 12.10.14 at 11:45 am

“Read Robert Farley’s work over the last decade. He’s had to significantly re-calibrate his intellectual identity. ”

In what way ? Genuine question. I havent read him enough on it, what direction has he re-calibrated to ?

43

Sancho 12.10.14 at 11:49 am

This is kind of amusing, in as much as some actual research shows that the right-wing are better at predicting left-wing views than the other way around.

I’d be very interested to see that actual research.

44

Barry 12.10.14 at 11:53 am

Sancho, I’ve heard of political focus groups where they couldn’t get the people to believe the stated positions of right-wing politicians, because they were just too crazy.

45

Barry 12.10.14 at 11:53 am

kidneystones 12.10.14 at 11:40 am
“Political and other kidnappings are not as exceptional as one might hope. Self-proclaimed champions of the “left” can ignore North Korean kidnappings of Koreans south of the border, and of Japanese children. ”

Yes, there’s not a liberal blog on the ‘net that doesn’t have a banner of Our Dear Leader.

46

kidneystones 12.10.14 at 11:57 am

Hi Ronan, Farley sums up the drift in his self-identity in one of these two discussions. Both are good, I just can’t recall the precise place in the dialogues describes these changes.

47

kidneystones 12.10.14 at 11:57 am

48

Ronan(rf) 12.10.14 at 12:03 pm

I do largely agree with you kidneystones. My impression of the problem with Bush/Cheney et al is that they legitimised the torture by creating a legal backing for it. That they implicitly (id say explicitly) acknowledged it existed (though not as torture but ‘enhanced interrogation’), that they created a legally justified program that enabled individuals in US agencies engage in torture. As everyone here knows, though, the US has engaged in systematic torture before (Vietnam, Latin America) just in those cases there was a plausible level of deniability in US FP institutions. In this case not.
As you say, there is a reasonable argument that assasination has replaced detainment and torture, and evidence that US agencies are complicit again in torure by proxy (in the Middle East, Somalia etc) So these things don’t really go away, just repeat themselves in different forms afaict (although Im open to correction on that)

Just as an addendum – one of the things that made Andrew Sullivan’s campaign against torture so useless and banal was this idea he pushed that the US was unique in that it never tortured (I think he meant torture was never institutionalised in US law, apparently he’s never heard of the antebellum South) Darius Rejali wrote a decent book about that though which showed how torture has often been used by democracies, even in the US, in systematic ways (by police forces etc) Again, not news too anyone here.

49

Ronan(rf) 12.10.14 at 12:06 pm

Thanks kidneystones, Ill check it out (have a post in moderation that crossed with your reply)

50

kidneystones 12.10.14 at 12:08 pm

Barry, both the tenor and content of your reply make my case. Here’s a “man of the center/left” Labor politico Geoff Hoon dodging questions about Labor’s role in renditions.

http://www.independent.co.uk/news/uk/politics/hoon-unhelpful-and-evasive-about-american-rendition-flights-say-meps-419046.html

If the British left were genuinely interested in disconnecting Labor from these extra-legal policies in the wake of the Senate report, they’d be demanding Hoon appear before a parliamentary committee. Not likely to happen.

51

Sancho 12.10.14 at 12:21 pm

And that’s why leftists in Britain and Australia deny their Labor parties are left-wing, and why leftists in America don’t claim the Democratic Party is left-wing. The Dems in particular have been keenly waging an internal liberals-vs-leftists war for the past thirty years.

It’s such a stark divide. For the right, truth is in the institution of the party – whatever the conservative party does is conservative by definition.

The left, meanwhile, adheres to ideas, and an institution that doesn’t travel with the ideas is disowned by the left. That’s why it’s so bizarre when leftists are linked to North Korea, or Stalin, or the neocons of the Democratic Party.

We got off that boat years ago, man.

52

J Thomas 12.10.14 at 12:31 pm

#37 Sancho

If there’s any appreciable difference between Cheney and Goering other than time and place, I’d like to hear it.

Goering was an ace fighter pilot in WWI, a war hero. Cheney chose not to get drafted into Vietnam.

It’s hard to tell about competence. Both were officially put in charge of a series of organizations they had no obvious training for, and it’s hard to tell how much harm they did. Goering officially started the Gestapo and at least did not prevent it from becoming an effective organization. But maybe his main role was political infighting — he collected functioning police, secret police organizations, etc and somehow put them together without destroying their capability. But maybe he mostly did the political maneuvering and left it to others to actually make it work.

Similarly, he was put in charge of the german air force and did a reasonably good job of managing it. There were big mistakes that mostly could have been due to his trust in underlings who were experts at the questions he didn’t know how to answer himself. It looks like a big mistake in hindsight to limit warplane production on the assumption that the war with Russia would not last long, but if that turned into a long war Germany was pretty much sure to lose, and if it had been a short war then they would have had better use for the materials.

He was officially in charge of planning the German economy for awhile. The planning was reasonable, perhaps he stayed out of the way of the experts who actually did it.

Cheney was a political intern, then a political appointee, then a politician. Apart from politics, he became the defense secretary under Bush senior. He did not actually manage the department but mostly looked at the big picture; he worked hard to decrease the defense budget, cutting research programs and reducing the number of military men by about a third. Then when the Gulf war came, he got fascinated with the war and rather than delegate he spent his time asking the military what was going on, requiring the people who were actually planning to spend their time preparing a whole lot of reports for him.

After Bush was out of office, Cheney became chairman of the board and CEO of Halliburton. There is no reason whatsoever to think he knew anything about managing a large corporation, but he was good at getting government contracts. The various scandals and legal issues etc at Halliburton from those days probably had little to do with him, he was probably a figurehead.

As vice president, Cheney’s ability at political infighting stood out, but there was no particular observable competence at anything else. When the CIA was unwilling to create fake evidence for Saddam’s involvement in 9/11 or Saddam’s nuclear program, he tried to create a new group to do it and he forbade CIA etc from criticizing the incompetently-forged data.

Both of them were good at winning in bureaucracies. It’s hard to tell whether either of them was good at anything else, but I’d tend to guess that Goering had some concept how to design effective bureaucracies and Cheney did not.

Morally they are about the same, of course.

53

Sancho 12.10.14 at 12:38 pm

Also, I doubt Cheney would suicide in the face of total defeat. He’d go to the Hague for sure, and fancy his chances.

54

kidneystones 12.10.14 at 12:39 pm

Sancho,

Christmas cards await. Got it. All those people who reject private property, or nationalize industries, or insist upon free national health services (Hoon, Labor) aren’t really “leftists.” You are. Guess those imitation leftists don’t read enough liberal American blogs. Have to get Barry to show them the light.

Enjoy the holidays.

55

Sancho 12.10.14 at 1:19 pm

The Labor Party rejects private property? Democrats are nationalising industries?

You’re much more attached to a definition of the left than any leftist is.

56

Rich Puchalsky 12.10.14 at 1:26 pm

kidneystones: “From 2006 I advocated impeaching Bush, not because I thought he would be found guilty, but because his defense would surely involve flushing out the pro-Iraq war dems, such as Josh Marshall and Matt Yglesias”

This one at least made me laugh. Let’s impeach Bush so we can get at the really important people, Marshall and Yglesias.

We’ve been through the “who is to blame” thing a whole lot of times. The U.S. has a long history of torture, Bush made it official, and Obama made it bipartisan. The people who voted for Obama’s second term have no more real objection to his policies, in any way that counts, than the GOP voters did during Bush’s Presidency. The people who care about torture are a negligible minority, so the only future in civil rights activism in the U.S. is in flattering various partisans that they really are good people unlike those people in power, in alternate Presidential terms.

57

kidneystones 12.10.14 at 1:50 pm

Hi Rich,

Glad I could make you laugh. Put your way, ’tis certainly worth a chuckle. I suspect you get that sense that I was after bigger game, but point taken. I agree with the substance of much of your concluding paragraph. Hope you’re not offended.

Happy holidays.

58

Mapper 12.10.14 at 1:53 pm

I do get a laugh out of this, as most of us readers work at institutions where “1 in 3, 4, or 5” women are assaulted in a culture that accepts, condones, minimizes or ignores ritualized violence against a class of people …

59

Main Street Muse 12.10.14 at 3:09 pm

I can’t stand the fact that Dick Cheney is running around talking about what a bunch of “hooey” the torture report is. What’s really “hooey” – CHENEY DID WHATEVER HE COULD TO STAY OUT OF VIET NAM…

Then did whatever he could to keep US in permawar AND condoned the use of torture. What a W.T.F. world we live in.

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Barry 12.10.14 at 3:46 pm

kidneystones 12.10.14 at 12:08 pm
“Barry, both the tenor and content of your reply make my case. Here’s a “man of the center/left” Labor politico Geoff Hoon dodging questions about Labor’s role in renditions.”

*A* guy.

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Rich Puchalsky 12.10.14 at 4:00 pm

No, I’m not offended kidneystones, and I understood what you meant.

I don’t think the U.K. context is really like the American one: you can argue about whether the Labor Party is “left” or not according to some kind of defined criteria, but in the U.S., we only have left-of-center and right-of-center parties. Given that most people to the left of center have been socialized to support the left-of-center party no matter what, the “left” as such is negligible in the U.S.

“Targeted assassinations are and have been state policy in the west for a very long time. They are a function of a realist political outlook, not a left/right paint-by-number world view. ”

This use of “realism” is getting more and more detached from how it used to work. It used to be that idealists had impractical moral ideas, denouncing existing conditions as hopelessly corrupt and needing to be replaced, and realists would be ones who’d sigh and then work within existing power structures to get done whatever could actually be done. But we’ve gone through something like an idealist-realist implosion. The so-called realists do not describe reality any more, and have no idea how to actually get anything done. Andrew F. above is a great example: he purports to describe to us how things actually are but he has no idea, just as earlier this year he was telling us the NSA head wouldn’t lie to Congress because he’d get in trouble and that NSA spying wasn’t used to pursue ordinary criminals. The idealists are more in touch with reality than the realists are.

This is just an extension of two Bush-era tropes: that the hippies are comically turning out to always be right, and that the Bush administration was both immoral and incompetent. But people haven’t really come to terms with the exact same things being true now. For instance, I would guess that a substantial and growing percentage of left-to-moderates now has a vague sense that the Occupy protests happened during the Bush administration.

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Ronan(rf) 12.10.14 at 4:55 pm

‘Realist’ is just a semi technical term, there really shouldn’t be any significance put to the label except that it means the person broadly supports a specific theoretical framework (I dont think being a ‘realist’ means that you would support the drone war, btw, there is plenty in realism as an IR concept that could convince you to do the opposite.)

I think some of this ties into the NSA. Post 9/11 one of the arguments coming from those on the left (which I agree with, generally) is that terrorism should be seen as a criminal matter, a nuisance to be countered through the legal system and (some type of) police action. The problem with this, obviously, is that in an international context the law and enforcement mechanism are weak. My impression is that you would need something like the NSA and special forces programs if you wanted to set up a system to deal with international terrorists as a criminal matter, I don’t see what other system is workable for dealing with terrorists coming from ungoverned areas. So for me (and I think liberalism more generally, rather than other people on the left) it more comes down to a question of the specific methods used, rather than as a wholesale objection to the concept.

* Personally, I am a good bit torn on it. The above is obviously a simplified ‘technocratic’ argument, which ignores the politics and power plays at the heart of foreign policy decision making, so I’m ambivalent about how you respond to these threats (inflated as they are)

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Anderson 12.10.14 at 5:13 pm

If anyone’s interested, Just Security has a good post on the “advice of counsel” bit, which the exec summary has blown up:

this section, and in particular the revelation about the April 2002 document in which it is acknowledged that the tactics violate the torture statute, dramatically undermines the credibility of previous claims by the Bush White House and the CIA that they did not know whether the interrogation tactics were legal until they received guidance from OLC. The document cited on page 33 shows that the CIA knew their tactics were illegal before receiving such counsel, but were seeking a legal cover – at first, via an immunity-giving advance declination, but when that failed, apparently the OLC memo. This is legally important because it utterly spoils the potential legal defense of “good faith reliance on counsel,” whereby a person who has committed an illegal act can in some instances escape liability if they show that they were relying, in good faith, on advice from an attorney. Since there is no good faith here – key CIA officials already knew the tactics were illegal before requesting legal counsel – the defense fails. And so does the CIA and White House effort to legalize the illegal.

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Rich Puchalsky 12.10.14 at 5:50 pm

The most striking part of the exec summary on my initial look is:

The Committee reviewed 20 of the most frequent and prominent examples of purported counterterrorism successes that the CIA has attributed to the use of its enhanced interrogation techniques, and found them to be wrong in fundamental respects. In some cases, there was no relationship between the cited counterterrorism success and any information provided by detainees during or after the use of the CIA’s enhanced interrogation techniques. In the remaining cases, the CIA inaccurately claimed that specific, otherwise unavailable information was acquired from a CIA detainee “as a result” of the CIA’s enhanced interrogation techniques, when in fact the information was either: (1) corroborative of information already available to the CIA or other elements of the U.S. Intelligence Community from sources other than the CIA detainee, and was therefore not “otherwise unavailable”; or (2) acquired from the CIA detainee prior to the use of the CIA’s enhanced interrogation techniques.

I’m not in favor of arguing against torture because of lack of effectiveness, but there always was this claim that if we could know about the mysterious cases of saved lives that we couldn’t know about, we’d be convinced. Now someone else has actually looked at these cases.

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J Thomas 12.10.14 at 6:04 pm

#61 Ronan

Post 9/11 one of the arguments coming from those on the left (which I agree with, generally) is that terrorism should be seen as a criminal matter, a nuisance to be countered through the legal system and (some type of) police action. The problem with this, obviously, is that in an international context the law and enforcement mechanism are weak.

One obvious approach then would be to strengthen law and enforcement in an international context. When negotiating with civilized nations about their terrorists, we’d present our evidence in their courts and they would take care of it.

My impression is that you would need something like the NSA and special forces programs if you wanted to set up a system to deal with international terrorists as a criminal matter, I don’t see what other system is workable for dealing with terrorists coming from ungoverned areas.

Maybe, but that’s why we can’t go the international cooperation route. We can’t show foreign courts how we know that their citizens are terrorists, because that would also show them the methods we use to spy on their own governments. So instead we have to tell them “Trust us. We know this Canadian citizen is a terrorist and we demand you give him to us to torture. No, trying him in a secret Canadian court is not good enough. Give him to us and forget about him, or else.” It just doesn’t foster international cooperation.

Since we can’t share our secrets even with friendly foreign governments, we have to go whole hog and kidnap the people we want without their cooperation.

To my way of thinking, mostly terrorists can’t actually hurt us much while they’re in secret bases in third world nations. If they could steal nukes and built ICBMs and attack us that way, they could. But instead they mostly have to come here. So if we got an effective homeland security system, that would just about stop them. Protect the vital targets — that we need to protect from domestic terrorists anyway….

Some people say that’s too big a technical challenge. They say it’s easier to find and kill terrorist recruits while they’re still in Ethiopia, or Sudan, or Somalia, or Chad, or Aghanistan, or Myanmar, or North Korea. I’m not an expert on both sets of techniques, but that claim doesn’t sound plausible to me.

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J Thomas 12.10.14 at 6:06 pm

[sigh] keyword moderation hell. Does this work?

Ethiopia, or Sudan, or Semalia, or Chad, or Aghanistan, or Myanmar, or North Korea

If this works then I’ll post it again with the one change.

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J Thomas 12.10.14 at 6:08 pm

#61 Ronan

Post 9/11 one of the arguments coming from those on the left (which I agree with, generally) is that terrorism should be seen as a criminal matter, a nuisance to be countered through the legal system and (some type of) police action. The problem with this, obviously, is that in an international context the law and enforcement mechanism are weak.

One obvious approach then would be to strengthen law and enforcement in an international context. When negotiating with civilized nations about their terrorists, we’d present our evidence in their courts and they would take care of it.

My impression is that you would need something like the NSA and special forces programs if you wanted to set up a system to deal with international terrorists as a criminal matter, I don’t see what other system is workable for dealing with terrorists coming from ungoverned areas.

Maybe, but that’s why we can’t go the international cooperation route. We can’t show foreign courts how we know that their citizens are terrorists, because that would also show them the methods we use to spy on their own governments. So instead we have to tell them “Trust us. We know this Canadian citizen is a terrorist and we demand you give him to us to torture. No, trying him in a secret Canadian court is not good enough. Give him to us and forget about him, or else.” It just doesn’t foster international cooperation.

Since we can’t share our secrets even with friendly foreign governments, we have to go whole hog and kidnap the people we want without their nation’s cooperation.

To my way of thinking, mostly terrorists can’t actually hurt us much while they’re in secret bases in third world nations. If they could steal nukes and built ICBMs and attack us that way, then they could. But instead they mostly have to come here. So if we got an effective homeland security system, that would just about stop them. Protect the vital targets — that we need to protect from domestic terrorists anyway….

Some people say that’s too big a technical challenge. They say it’s easier to find and kill terrorist recruits while they’re still in Ethiopia, or Sudan, or Semalia, or Chad, or Aghanistan, or Myanmar, or North Korea. I’m not an expert on both sets of techniques, but that claim doesn’t sound plausible to me.

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RJB 12.10.14 at 6:36 pm

In the real world, at least the part occupied by America, charging and convicting Bush and or Chaney would have been, and would now be, beyond stupid considering the cultural/political situation as a whole. Burning down the house with everyone inside is not a bright way to solve a domestic dispute even if one side is far more culpable than the other. Having ‘all’ involved recognize the truth and be deprived of any excuse to ignore that truth would be a better first step. That ‘all’ includes the general public.
What might have been both possible and productive is a modified ‘Truth Commission’. Call an investigation in which all witnesses are sworn to testify truthfully and give every one of them immunity which, I believe, could then force testimony that was not protected by the Fifth Amendment. This would be done with the understanding that perjury would be prosecuted to the full extent of the law and any related crime committed by the perjurer would then be open to prosecution. The investigation should be narrowly focused on who ordered what interrogation methods and who carried it them out at each level of responsibility. If this were to be done there would be just as many important figures going to jail as there will be with the way it has been handled but there would be, I think, some positive affects rather than just politically charged bs pushing the polarized charges and defenses which will be bought into one way or the other by most every individual depending on which teams uniform they root for.

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gianni 12.10.14 at 6:56 pm

some of the most prominent ‘realist’ thinkers in IR today are very critical of the War on Terror, and its associated programs.

the idea that we need to wage an unending war the globe over to make the world safe for freedom and democracy is not remotely compatible with ‘realism’ in an IR sense. if anything, this seems to be textbook Wilsonian foreign policy, updated for an age with drones and commercial aircraft.

re: Ronan above, i don’t think you can ever have a reasonable approach to combating terrorism that does not involve a deep inquiry into the source of the practice itself. a law enforcement perspective does not seem to do this, nor does our current model of ‘drone strikes all over the world’. but i guess admitting that terrorism itself has an internal logic goes against our stated conviction that ‘we do not negotiate with terrorists’, and it up-ends our desire to see terrorists as nothing more than fanatical, nihilistic, de-personalized agents of raw destruction.

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Rich Puchalsky 12.10.14 at 7:28 pm

gianni: “some of the most prominent ‘realist’ thinkers in IR today are very critical of the War on Terror, and its associated programs.”

I specified the way I was using the terms “idealist” and “realist”. They have philosophical term-of-art meanings too, which hopefully I won’t have to specify that I wasn’t using either.

For what it’s worth, I don’t see most “realists” (in the IR term of art sense) as having much more clue than anyone else. Ronan(rf), for instance, is still writing above about how “terrorism should be seen as a criminal matter” and that “you would need something like the NSA and special forces programs if you wanted to set up a system to deal with international terrorists as a criminal matter”. The problem with treating terrorism as a criminal matter is that the U.S. is one of the foremost criminal regimes in this regard. Why would other countries cooperate with us as our empire falls and our ability to force them to do so is taken away? Going from “it’s a criminal matter” to “we need to break international law at will, spy on everyone, and intervene at will wherever we want” is just not getting it on a grand scale.

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Rich Puchalsky 12.10.14 at 7:37 pm

RJB: “What might have been both possible and productive is a modified ‘Truth Commission’. ”

The ACLU suggested this a long time back, I believe. There are any number of face-saving ways that a country can acknowledge what happened without having to prosecute high-level officials who are still protected by the political system.

Of course, Obama did not pursue this, even though he probably could have done it as an Executive Branch prosecutorial matter without a Congressional vote. I would guess that he didn’t want to do anything that would anger the GOP and keep them from agreeing to a Grand Bargain of some kind. That is why he’s gotten through so much legislation and his term has been so generally successful.

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Rev Du Rite 12.11.14 at 1:57 am

Some might find interesting Vice’s recent interview with military psychologist James Mitchell:

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Glen Tomkins 12.11.14 at 2:06 am

Prisoner Exchange

The president should announce that unless Congress passes within a month a bill that Ds will introduce that would grant amnesty to both illegal immigrants and all officials engaged in torture, the administration will begin prosecutions of the torturers and he will grant a blanket pardon to all illegal immigrants. Of course the R Congress would not pass the bill, well not until the set date has passed and Bushco prosecutions are under way. At that point the illegals will have already been pardoned, so it’ll all be good.

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kidneystones 12.11.14 at 11:40 am

2 UK MPs demand independent inquiry into Britain’s role in renditions. Problem is they’re both Conservatives.

http://www.theguardian.com/us-news/2014/dec/10/british-mps-demand-inquiry-cia-abductions

Go look to see which British Labour MPs are making similar demands. I can’t find any. Perhaps they’re just hoping these particular “leftists” can just skate away. Just to be clear, the UK already has the kind of national health service American leftists/liberals seem to want: free for all at the point of delivery. Lots of powerful public sector and private unions, and a (past) willingness to nationalize industries. It may be that the British Labour party is keen to put former Labour ministers before the public, and they’re just waiting for the right time. Any thoughts when that time might be? Now? Never?

The New Statesman summarizes the challenges truth presents to the British left:
http://www.newstatesman.com/politics/2014/12/cia-torture-report-uk-must-be-honest-about-its-complicity-these-grisly-crimes

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Andrew F. 12.11.14 at 1:07 pm

Anderson @34: You can’t get yourself off the hook by commissioning a hackwork legal memo contrived for that purpose.

The CIA sought legal advice before beginning the enhanced interrogation program for the purpose of ensuring that its actions remained within the bounds of the law. For obvious reasons, CIA would have been acutely aware of the consequences of breaking the law – remember that this was the post Cold War CIA that had emerged from the 90s. It began its own legal research in 2001, and as they developed the program, sought legal advice from the DOJ.

Simply from the vantage of self-interest, of CYA, there is little reason to think that CIA wanted a “hackwork legal memo” insufficient to provide them with legal advice upon which they could reasonably rely.

Indeed, the CIA twice suspended the program when assessments of the effects of particular techniques changed or when legal analysis seemed poised to shift. The first time occurred in May 2004, following their own IG’s report which recommended the adoption of 13 particular techniques (in May 2005 the DOJ opined that the 13 techniques would not violate applicable law). The second occurred in December 2005, at which point the 13 techniques were reduced to 7. After additional analysis concerning the 7, the suspension was lifted. Finally, in July 2007 the DOJ revised its legal opinion in light of recent developments and advised that 6 of the 7 techniques were not legal, and CIA modified the program accordingly.

These are the acts of an institution that is seeking, and following, in good faith, the legal advice given to it.

The Just Security post you cite @63 is entirely unpersuasive. CIA’s General Counsel had asked if the DOJ would further provide assurance that they would not prosecute for actions undertaken as part of the interrogation program – obviously the GC understood that this was contentious legal territory, and was seeking every possible reassurance. He was told that, as a matter of policy, the DOJ does not make such promises. The author of that post claims that this request establishes that the GC “knew” that the enhanced interrogation techniques were illegal. This is not a strong claim.

I’d add that the current view of the Department of Justice is that those who relied on the advice of the OLC in good faith, and adhered to its guidelines, do not merit prosecution.

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Stephen 12.11.14 at 1:50 pm

Kidneystones: why is it a problem that 2 Conservative MPs demand an independent inquiry into Britain’s role in renditions?

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Rich Puchalsky 12.11.14 at 1:55 pm

I think the problem was supposed to be that no Labour MPs are doing so. But this seems to me to be the same kind of thing that happens in the U.S. (although I don’t know much about the UK, as I wrote above). Conservative MPs are demanding an inquiry because Labour was in power when the renditions happened: had Conservatives been in power, they’d have cooperated with the renditions, and Labour MPs would be the ones demanding inquiries. No one in the system actually cares about renditions per se except insofar as they can be used as a political scandal that disfavors an opposing party.

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Anderson 12.11.14 at 2:06 pm

Andrew, you are inventing the word “further.” CIA focused on two things up front: promise not to prosecute, and the availability of affirmative defenses (necessity). Both are relevant only if one’s conduct otherwise meets the elements of torture – as the NKVD methods in question obviously did.

The lack of prosecution is obviously political, not law-based.

As for the CIA’s supposed good faith, that itself cannot be asserted in good faith. The agency lied repeatedly even to OLC. It routinely exceeded even the broad limits of the torture memos. And no lawyer even slightly familiar with con law and IHL (as one would expect the CIA’s general counsel to be) could accept the memos as serious, perhaps most notoriously because their assertion of executive power to disregard the Torture Act & War Crimes Act never even mentioned, let alone distinguished, the key case on executive wartime power vis a vis Congress, Youngstown Sheet & Tube.

In short, Andrew, if you are going to spew your usual cloud of nonsense, try it where you’re not talking to a lawyer.

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Andrew F. 12.11.14 at 3:09 pm

Cranky @33: By the way Andrew F: are _you_disgusted by the US use of torture as described in this report? Or are you with Yoo, Cheney, and their ilk.

There’s much that is troubling in that report, though frankly I’ve always been more troubled by the rendition of detainees to countries which will use far more brutal techniques in their interrogations.

My view of US interrogation practice in the RDI program continues to change as I learn more. So I’m not in the “any use of the interrogation techniques classified as ‘enhanced’ is always wrong” camp. I know that many here have absolute moral certainty that such techniques are unethical under any circumstances – I do not hold such a view, which means I require more facts about the circumstances than others would, and which means my own assessments will be far more contingent and conditional.

Of the 39 detainees who were subjected to “enhanced” interrogation techniques, some were clearly subjected to unjustifiably abusive treatment. Those cases are obviously troubling. To be fair, the CIA acknowledges those cases, but argues that they occurred early in the program, at a particular site, and that it took corrective actions in response. I have no idea whether that’s true, and even if it is, the cases would remain troubling.

As to the three individuals who were water-boarded between 2002 and 2003, it’s difficult for me to come to a firm opinion as to the ethics of the actions without being much more familiar with the threat-reporting at the time, the basis for believing that water-boarding would be more effective than other approaches, and the basis for believing that critical information could be obtained through the chosen approach.

On the subject of gathering more facts, I found the June 2013 CIA Response to a draft of the SSCI Report to be a far better response to the SSCI Report than those being offered in op-ed pages and brief interviews. The CIA Response focuses dispassionately on what it views as the accuracies, and the inaccuracies, of the SSCI Report without making any attempt to argue that enhanced interrogation was a good policy choice. The CIA Response agrees with many of the SSCI Report’s conclusions, but persuasively rebuts some of them as well. It should be read if one wants a more complete picture of the facts. It’s far more useful than some of the more heated op-eds and snappy interviews one sees by certain critics of the SSCI Report.

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Anderson 12.11.14 at 3:27 pm

“it’s difficult for me to come to a firm opinion as to the ethics of the actions without being much more familiar with the threat-reporting at the time, the basis for believing that water-boarding would be more effective than other approaches, and the basis for believing that critical information could be obtained through the chosen approach.”

IOW, unless Andrew is provided with nonexistent information – because if any of this existed, the torturers would have leaked it ages ago – he can’t decide?

Just possibly, might not the burden be on people who’ve committed torture to justify their actions? For them to explain why, contrary to every teaching of professional interrogation, torture tactics designed to obtain false confessions were necessary? Why psychologists with no training or experience in interrogation were put in charge?

(Leaving aside that none of the considerations he names can be defenses under the CAT or Common Article 3.)

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J Thomas 12.11.14 at 3:33 pm

#79 Andrew F

On the subject of gathering more facts, I found the June 2013 CIA Response to a draft of the SSCI Report to be a far better response to the SSCI Report than those being offered in op-ed pages and brief interviews.

The problem I have with official CIA reports is that the CIA has a history of lying to the US public, and to Congress. Why should we start believing them at this point?

If a personal friend is a CIA agent and tells me things off the record, I might believe him depending on my opinion of him. But an official report written in response to attacks that make the CIA look bad? Why even consider it? An official report written by CIA lawyers? Do they even have the concept of telling the truth?

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Anderson 12.11.14 at 3:41 pm

Anyone interested in the facts may find it interesting that in 2010, Marcy Wheeler (who I’d say has forgotten more about this stuff than anyone else knows, except she doesn’t seem to forget anything), was already able to figure out the context of the advance-declination issue. She set forth a timeline, and then summed up:

Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

Good faith. Yep.

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Rich Puchalsky 12.11.14 at 4:14 pm

The interview linked to @72 is kind of interesting. My takeaways:

1. The SERE water board training pre-disposed military personnel to tell potential future interrogators what they wanted to know right away, because they couldn’t stand the idea of going through something like that again. Basically the armed forces pre-tortured their people and pre-broke them.

2. Mitchell casually says that most people would rather have someone break their legs than waterboard them, because breaking their legs is less distressing.

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Andrew F. 12.11.14 at 4:28 pm

Anderson @78: Andrew, you are inventing the word “further.” CIA focused on two things up front: promise not to prosecute, and the availability of affirmative defenses (necessity). Both are relevant only if one’s conduct otherwise meets the elements of torture – as the NKVD methods in question obviously did.

You’re flat wrong as to CIA’s focus. CIA, and NSC, requested a memorandum from the OLC concerning the limits on interrogation imposed by the torture statute. See page 20 of OPR Report. According to Rizzo (see fn. 17, page 18, of the same), while he thought that the proposed enhanced interrogation techniques did not violate the torture statute, he thought that they were aggressive and would be “close to the line, at a minimum.” He therefore considered the issue “an open legal question.”

The OPR Report makes mention of numerous meetings that occurred during the course of OLC’s research, many involving CIA and other officials. The evidence that CIA sought genuine legal guidance is overwhelming.

As to affirmative defenses, there was no focus on them at all. Indeed, the section on those defenses was not added until later, after the memorandum had been substantially drafted, and apparently at Yoo’s suggestion. See page 30 of the OPR Report. As to the request for a “pre-activity declination letter”, it appears to have been raised at one meeting, while the requested memorandum was being discussed, and quickly dispensed with.

As for the CIA’s supposed good faith, that itself cannot be asserted in good faith. The agency lied repeatedly even to OLC.

With respect to what material fact, and how would this bear upon whether CIA relied on the OLC’s opinion?

It routinely exceeded even the broad limits of the torture memos.

And where those excesses did occur, according to the CIA, the cases were investigated and changes were made to the program. In at least one instance an individual was referred for criminal prosecution.

And no lawyer even slightly familiar with con law and IHL (as one would expect the CIA’s general counsel to be) could accept the memos as serious, perhaps most notoriously because their assertion of executive power to disregard the Torture Act & War Crimes Act never even mentioned, let alone distinguished, the key case on executive wartime power vis a vis Congress, Youngstown Sheet & Tube.

The section on executive power, like that on affirmative defenses, was added late in the process, and apparently (as far as I can tell from the redacted pages) at Yoo’s suggestion. It’s not an issue on which the CIA was relying. The purpose was to determine what was within the law – not whether the executive branch could ignore certain laws. So whether that section is persuasive or not isn’t relevant.

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Barry 12.11.14 at 4:52 pm

I’m seconding J Thomas here, Andrew:

“The problem I have with official CIA reports is that the CIA has a history of lying to the US public, and to Congress. Why should we start believing them at this poin”

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Barry 12.11.14 at 4:53 pm

Andrew F: “Simply from the vantage of self-interest, of CYA, there is little reason to think that CIA wanted a “hackwork legal memo” insufficient to provide them with legal advice upon which they could reasonably rely.”

This, of course, is a lie. Such memos are rather useful (to the elites and well-connected) to argue that ‘we didn’t know it was illegal’.

For us, of course, it’d be evidence of premeditation and conspiracy.

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Barry 12.11.14 at 4:55 pm

Kidneystones: “Go look to see which British Labour MPs are making similar demands. I can’t find any. Perhaps they’re just hoping these particular “leftists” can just skate away. ”

Because Blair drug the Labour Party in to that cesspool.

Please be aware of basic history.

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Anderson 12.11.14 at 5:02 pm

“As to affirmative defenses, there was no focus on them at all.”

False. Senate report, page 19. They were being proposed in Nov. 2001 before CIA had anyone at all in its custody & was already contemplating the use of torture.

As for what Rizzo told OPR years after the fact, I give that little weight compared to the documents at the time. Rizzo by then was a potential defendant, and a lawyer – what else would he say?

The letter from the CIA circulated July 8, 2002 stated that the “aggressive methods” being proposed were violations of the Torture Act, “apart from potential reliance upon the doctrines of necessity or of self-defense,” i.e. affirmative defenses (that do not apply to torture anyway, per the CAT). Senate report at 33. It was circulated internally but there is no evidence that it went to Ashcroft. Five days later, Rizzo met with DOJ & others as per my comment above. If you want to believe he was unaware of the July 8 draft, be my guest.

Various of your other assertions (like the CIA’s self-policing) are exploded by the Senate report.

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Anderson 12.11.14 at 5:12 pm

Just taking a step back, btw … the banality of evil is exemplified here. CIA was concerned from the get-go about being THE agency to conduct interrogations (despite its lack of legitimate experience therein).

The Senate report is clear in its early pages that interagency rivalry was an early concern re: access to prisoners. CIA didn’t want them anywhere like GTMO where they could be yanked away by DOD or FBI.

Reading between the lines, I suspect that the leap into torture, which was not a response to prisoner resistance but rather was contemplated before CIA had any prisoners, was a deliberate effort to hit upon a method of questioning that no other agency would dare conduct. (As the Senate ASC report makes clear, CIA overrated the Army in this respect.) Difficult else to explain the CIA’s deliberate omission to consult with anyone about traditional interrogation methods (which might have involved other agencies like FBI).

Senate report at 32 n.138: CIA said Mitchell & Jessen “had the closest proximate experience CIA sought at the beginning of the program, specifically in the area of non-standard means of interrogation. Experts on traditional interrogation methods did not meet this requirement. Non-standard interrogation methods were not an area of expertise of CIA officers or of the US Government generally.” That’s from the June 2013 CIA response which Andrew admires.

But as the report goes on to observe, CIA didn’t seek out the shrinks after deciding to torture; “rather, [they] played a role in convincing the CIA to adopt such a policy.” Yet another instance of the CIA’s misleading & rewriting the truth.

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Ronan(rf) 12.11.14 at 5:15 pm

Wow Rich @70 – I never said that I was a ‘realist’ nor that I knew more than anyone else. Perhaps if you read people with the slightest bit of generosity this could actually develop into a conversation rather than a lecture ? Anyway, I’m not derailing the thread here so I’m not responding to anymore.

JT @67- I don’t neccesarily agree with all you said there, but the disagreements aren’t big enough to get too deep into. Also, this might be of interest (particularly 50-52 mins)

https://www.youtube.com/watch?v=TEkfdlFFX6E

gianni- I don’t disagree. I think adopting a more nuanced perspective on the motivations and goals of terrorist organisations, and negotiating with them when possible, makes sense. But I think also that good policy makers and intelligence agencies *do* generally do this.
The problem is political, because negotiation (from both sides) isn’t always possible. (whether because the T’s demands are unreasonable, there isnt the support for doing so within the elite/public, it’s geopolitically impossible etc ) The compromises that we have seen happen are usually at the end of a long battle where hardliners have been isolated (within the organisation and the country targetted) , where the public/elite are tired of the war and where the demands of the terrorist organisation have changed.
But I think policy makers and intelligence professionals pay attention to things like internal power struggles in the org and look to manipulate those divisions where possible. (a lot of times through specifically violent actions such as targetted assasinations, informants etc) The problem is with policy. What policy is possible at time X – in both the terrorist organisation or the country targetted – does it stress negotiation and compromise or continued war ? (for example I think the Israeli’s should negotiate seriously with Hamas, but doing so with al Qaeda isn’t feasible. British negotiation with the IRA was made possible by wearing down the organisation that enabled/encouraged space for actors who wanted to shift strategy from armed struggle to politics) So timing is important. Both actors strategies are dynamic not static.

Anyway this is off topic so I’ll leave it there.

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Andrew F. 12.11.14 at 6:46 pm

Anderson @88: False. Senate report, page 19. They were being proposed in Nov. 2001 before CIA had anyone at all in its custody & was already contemplating the use of torture.

This is a great example of where the SSCI Report goes astray. I’m going to quote the language from it directly:

On November 26, 2001, attorneys in the CIA’s Office of General Counsel circulated a draft legal memorandum describing the criminal prohibition on torture and a potential “novel” legal defense for CIA officers who engaged in torture. The memorandum stated that the “CIA could argue that the torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm,”adding that “state smay be very unwilling to call the U.S.to task for torture when it resulted in saving thousands of lives.

As any lawyer should know, it’s not a good thing when your legal theory is “novel.” So without even consulting other sources, the implication that this is an endorsement of a necessity defense, much less that CIA should make policy premised upon it, is highly dubious. Instead it reads to me like an attorney exploring all aspects of a criminal law, including the weakest defenses.

And, indeed, the CIA provides the context (by quoting other portions of the six-page draft memorandum, which served as an appendix to the Memorandum of Notification related to the development of the RDI program) that demonstrates the draft memorandum to be precisely what it sounds like: not an endorsement of a legal theory, but a quick exploration of applicable criminal law and legal defenses, including implausible ones.

The author of the draft memorandum notes that the US courts had not considered the necessity defense in such a context, and pointed out that where it had been used (Israel), legal authorities expressly found it could not be used to initiate a program of interrogation that systematically used torture. See page 28 (of the PDF, not as numbered) of CIA Response.

So this doesn’t come close to establishing that the CIA was focused on the necessity defense as the legal foundation for an interrogation program. If anything it would tell us why, given the weakness of such a defense, CIA would be eager for authoritative legal guidance as to what is within the law and what is illegal.

As for what Rizzo told OPR years after the fact, I give that little weight compared to the documents at the time. Rizzo by then was a potential defendant, and a lawyer – what else would he say?

The vast weight of the correspondence and notes regarding the requested memorandum indicate quite clearly that they were not focused on affirmative defenses.

The letter from the CIA circulated July 8, 2002 stated that the “aggressive methods” being proposed were violations of the Torture Act, “apart from potential reliance upon the doctrines of necessity or of self-defense,” i.e. affirmative defenses (that do not apply to torture anyway, per the CAT). Senate report at 33. It was circulated internally but there is no evidence that it went to Ashcroft.

You’ve missed the purpose of the draft email to the AG that you’re quoting. Quite clearly it was drafted as a possible argument to be used to persuade the AG for advance formal declination (note that it gives little weight to affirmative defenses). It was not drafted as legal advice or guidance. It was never sent to the AG. And it has no bearing at all on whether CIA followed the OLC’s legal opinion in good faith, which was sought months before this draft email was written.

Five days later, Rizzo met with DOJ & others as per my comment above. If you want to believe he was unaware of the July 8 draft, be my guest.

Anderson, the CIA and NSC had asked the OLC for a legal opinion on the subject months earlier. The first draft of the opinion was completed April 30th. On July 8th, at the scheduled meeting, the 4th draft was circulated to Rizzo and others at the meeting.

So frankly, I have no idea why you think a draft email of an appeal to the AG, which was never sent (and was likely drafted as a possible contingency), which was not legal guidance or a legal opinion, is at all representative of what Rizzo thought, much less how this has any bearing whatsoever on the OLC opinion.

Various of your other assertions (like the CIA’s self-policing) are exploded by the Senate report.

Thus far the facts you’ve picked out of the SSCI Report haven’t done your theories much good. They’ve only demonstrated, in fact, carelessness by the authors of the Report in compiling certain facts.

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kidneystones 12.11.14 at 9:19 pm

Barry, You peddle a fiction belied by historical fact. Labour tabled support for the attacks on Iraq. British Labour MPs championed the invasion in public debates before the public. 244 invididual British Labour MPs voted in favor of invading Iraq.

All Lib-Dems voted against the invasion, as did others, disproving your claim that voting against invasion was not an option. You are evidently as ignorant about the way parliamentary democracies work as you are on other issues. Had British Labour MPs not wanted to vote for the Iraq war they could resigned their seats, joined the Lib-Dems, or called for a vote of no-confidence to (possibly) trigger an election. The only coercion at work was that of “solidarity” with the Our Leader. 244 British Labour MPs voted to attack the government of Saddam Hussein and are now part of history for their actions.
Here’s the entire list:
http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmhansrd/vo030318/debtext/30318-47.htm#30318-47_div117

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Anderson 12.11.14 at 9:24 pm

Andrew, I’m glad you find yourself persuasive. It’s not working on me, though.

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kidneystones 12.11.14 at 9:53 pm

Stephen,

You’ll find the answer to your question in the subsequent paragraphs of the same post and in more detail in the two articles linked. Hope this helps.

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Andrew F. 12.11.14 at 11:00 pm

J Thomas, and Barry, re: why read the CIA Response:

Yes, the CIA has spoken deceptively in the past. And they have a motive here for placing themselves in the best light. Of course, Congressional Committees, shockingly, have not always been the most honest or objective in their reports they have issued either, especially if their investigation begins with the conclusions already determined (whether by politics or emotion or some mixture of both). So a balanced amount of skepticism is useful in reading either source.

The CIA’s response is somewhere around 140 pages, and is thick with factual claims. If it is all a fabrication, then it is truly a massive work of deception, one which Brennan would have little interest in being tied to, and one which would easily be exposed by the SSCI. This is all the more true since the SSCI had the ability to read the CIA’s response before issuing their final report (which includes the SSCI’s responses to CIA’s response).

So I think, given the interests of both parties (CIA and SSCI) in exposing weaknesses and falsehoods in the other’s report, one is more likely to find additional context by reading both reports, and competing interpretations, than one is likely to find outright lies and distortions.

Given the complexity of the events, the difficulty that the SSCI would have had with certain aspects of its investigation, the difficulty that CIA would have had in publicly assessing its own, I think it’s very likely that there are mistakes in both reports, and that the additional context supplied by the combination of reports would result in a more accurate understanding of the truth.

Anderson@93: I’m glad you find yourself persuasive. It’s not working on me, though.

lol well likewise, and I’m fine agreeing to continue to disagree (though perfectly happy to continue discussion).

Anderson @88: Reading between the lines, I suspect that the leap into torture, which was not a response to prisoner resistance but rather was contemplated before CIA had any prisoners, was a deliberate effort to hit upon a method of questioning that no other agency would dare conduct.

That’s an interesting possibility, and one does sense some interagency competitiveness, reading between the lines of certain interactions and reports.

However, I think there may be a more mundane explanation. I’d have to look closer to confirm, but it appears to me that the RDI (Rendition, Detention, Interrogation) program was ordered as a covert (in the legal sense, as opposed to clandestine) operation by the President in November 2001. This would likely have given CIA authority to render, detain, and interrogate individuals meeting criteria specified in the Memorandum of Notification. A necessary, though perhaps not sufficient, condition for CIA to assert authority to introduce an individual into the RDI program appears to have been that the individual poses “a continuing, serious threat of violence or death to US persons or interests, [or who is] planning terrorist activities.”

This means that CIA, as the organization that ordinarily is given responsibility for covert actions, had primary control well before a decision was made to explore the use of “enhanced interrogation techniques.” There was no need from the vantage of bureaucratic interest for CIA to push for the adoption of those techniques.

I’m therefore inclined to believe they made the decision on a genuine belief that rapport-building and other techniques, even if ultimately effective, would take too long, and that “enhanced interrogation techniques” would be more effective, in less time, and would be justifiable, when used on certain individuals who were likely key to learning whether additional 9/11-scale operations were in motion.

Sadly I also think that this will not be the last time that the US is faced with circumstances that renders such a question “live” again. I wish the public discussion were more focused on learning from this program, and less focused on acrimonious recrimination.

In any event, I’ve written quite a bit on this thread, so I’ll bow out for a little while, though I’ll continue to read whatever discussion continues. I’ve enjoyed (almost) all the comments.

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J Thomas 12.12.14 at 12:07 am

#95 Andrew F

The CIA’s response is somewhere around 140 pages, and is thick with factual claims. If it is all a fabrication, then it is truly a massive work of deception, one which Brennan would have little interest in being tied to, and one which would easily be exposed by the SSCI.

I would be more concerned that CIA might lie by omission.

Say for example that they had three parallel programs, run by different people. One, the scaredy-cat program was deeply interested in making sure they had legal justification for everything they did, and didn’t do much until they were covered.

A second program, the normal program, did whatever they thought would get the quickest results knowing they could possibly get into trouble if their bosses chose to hang them out to dry.

A third, the innovative program, did whatever might get interesting new results. electrical brain stimulation, surgery to create brain lesions intended to change personality to something that wouldn’t want to keep secrets, etc. This group euthanized their test subjects and disposed of the bodies when they were done, avoiding issues about trial and possible release etc.

If they had three programs like that, and later they released information about only the first one, how would you find out?

(Oh yeah, they would not expect to get results from the first program. So they would not send high-value detainees to it. The real high-value detainees would probably go first to program 2, and later to program 3. It would be hard for the CIA to document actual successes using those techniques, because if there were successes they came from the programs which are still secret. So we can’t be sure that it didn’t work, just because CIA gives us no evidence that it worked.)

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Consumatopia 12.12.14 at 2:48 am

If all you want is to make members of a terrorist network–or any other network of political enemies–name names about the rest of their network, and you don’t care all that much about whether innocent people are also sometimes captured or tortured, you don’t care about what damage this does to your reputation or to institutional norms, you don’t care that interrogators might “discover” fake information that enhances their political power, and you don’t care about undermining democracy, then it’s not that hard to make a torture program that would “work”. Prosecutors trade lighter punishments for true information all the time. Credibly promise to make someone’s family suffer if they refuse to talk or lie. Sometimes they’ll tell you the truth. If you don’t care about making innocent people suffer, sometimes will be good enough.

A torture program that “worked” would be a bigger threat to the American people than terrorism. But few Republicans and not very many more Democrats seem to understand that. The future is terrifying.

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Anderson 12.12.14 at 4:02 am

Read the report, folks. (The 2013 response is rebutted at various points.) Good people fought for years to get it released; take an hour sometime to look it over. Or you could just let the Andrew F’s tell you what to think about it.

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Brett Bellmore 12.12.14 at 11:40 am

” and you don’t care all that much about whether innocent people are also sometimes captured or tortured,”

The current administration doesn’t much care about whether innocent people are sometimes killed by drones, so I can’t see how they’re going to care about innocent people being tortured, but living. A secret program got exposed, and we are now assured it has been ended.

Yeah, right.

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Glen Tomkins 12.12.14 at 5:22 pm

Half right (@95)

“Yes, the CIA has spoken deceptively in the past.”

Speaking deceptively is the CIA’s job.

We don’t have a CIA because we need an agency that operates in secrecy in order to understand the world outside our borders. Openness and accountability are the necessary to understanding anything, so of course the State Department’s analysts are right about the world outside our borders more often than the CIA. Their analyses are open to critical review, how could they fail to be more accurate?

We have a CIA because we want to avoid accountability. Of course they’re lying about what they did. That’s their job. Their job is to befuddle the US electorate into continuing to fund them. That, and continuing to issue them a license to kill and other such perks of the job of being a nation’s secret police. Oh, maybe at some point in the dim unremembered past when they were new, they tried to understand the world around us. But we made the basic constitutive mistake of setting them up to operate without openness and accountability, so of course the path of least resistance has led inexorably down into ignorance and brutality. Does secrecy and the absence of accountability ever lead anywhere else?

Good luck trying to parse when they might have slipped up and said something actually true in their own defense. I think neither your posts nor the CIA rebuttal are nearly long and detailed enough for that purpose. If there is anything true in anything the CIA has ever said or done, you can be sure it’s well-protected by a multi-layer bodyguard of lies.

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J Thomas 12.12.14 at 5:55 pm

#199 Glen Tompkins

We have a CIA because we want to avoid accountability. Of course they’re lying about what they did. That’s their job. Their job is to befuddle the US electorate into continuing to fund them.

Of course, we don’t really know that. They’re secret. We can’t know what they’re really doing in secret because it’s secret.

It’s even possible that the various scandals that seem to show the CIA doing awful things were mostly forged by various CIA factions, trying to make other CIA factions look bad in the vicious infighting for rank in the organization. Maybe hardly any of it was real.

In the absence of real knowledge we tend to read in whatever comes natural to us.

A naive do-gooder like Andrew F might instinctively believe that they are good people like him and they wouldn’t betray the public trust just because they can get away with it.

While a hard-nose realist like me will tend to imagine that they are primarily trying to look after themselves.

But we don’t really know. We just imagine what seems most plausible to us.

So, what would happen if we lobbied to get CIA de-funded, and we succeeded? My best guess is that whatever good stuff the CIA is doing would get shut down, and the bad stuff would continue on a private basis, funded by their drug income (how much of the drug trade money goes to the CIA?) and their fraudulent bank income (how much bank fraud goes to CIA?) and so on.

It would probably be an improvement, still. But maybe that’s just my realist bias.

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Glen Tomkins 12.12.14 at 6:00 pm

The solution

Start up an intelligence agency to try and figure out what the CIA is really up to. Of course it will have to operate in secrecy…

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Blissex 12.14.14 at 6:16 pm

«The U.S. has a long history of torture, Bush made it official, and Obama made it bipartisan. The people who voted for Obama’s second term have no more real objection to his policies, in any way that counts, than the GOP voters did during Bush’s Presidency. The people who care about torture are a negligible minority,»
«Why psychologists with no training or experience in interrogation were put in charge?»

As to psychologists an interesting point has been made:

http://econospeak.blogspot.co.uk/2014/11/a-reverse-milgram.html
«Professional psychologists were brought in to assist the Bush administration’s torture program, and there was apparently no shortage of willing participants. But the American Psychological Association has a code of ethics that would seem to make torture a form of professional misconduct. To address this problem, the APA amended its code in 2002 to say that whenever ethics come into conflict with legally issued instructions, psychologists could just follow orders.»

That’s a sign of how popular torture is with USA voters.

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Blissex 12.14.14 at 6:36 pm

«and you don’t care all that much about whether innocent people are also sometimes captured or tortured, you don’t care about what damage this does to your reputation or to institutional norms,»

The story is as a previous commenter says is about USA *voters*: they love the idea that they are “protected” by torture, it is a very popular policy: “take the gloves off”, “better safe than sorry”, “safety at any cost”, “you can never be too safe”. They are also delighted that even random torture sends the message that if someone ever threatens their safety and gets caught, they will suffer atrociously for years. “Hit someone to educate some others”.

The popular idea is that the potential targets of torture are disposable, insignificant, “untermensch”, especially those with darker or yellower skin. Why would any “brave” USA voter worry that much about what happens to some “untermensch” nobodies they don’t care about? If the voter is for example a middle aged or older suburban lady concerned about her safety, she knows she will never be targeted, and then why should she worry about making mistakes with “untermensch” nobodies who looks nasty? “you can’t make omelette without breaking some eggs”. And she has the right to be safe, as long as someone else pays the price.

So when for example some blonde, suburban looking “terrorist” has been caught, they get cocooned by the best guarantees, when some Padilla style character gets caught, years of horrifying abuse happen to them. Many USA voters care about their own, about people who may look like their naughty nephew, and extend them a lot of indulgence, especially if they wear blue or work in banks, but that does not extend to “untermensch” nobodies.

In Real American effective legal rights, as someone else said, depend on popularity, and “untermensch” nobodies are not popular.

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