The blog deck proclaims that the bloggers at CFLF have been loaning out brain cells to those in need. Apparently they're overextended, perhaps because they're just lending the cells to each other in a poverty-sticken community. But an explanation is in order.
First, appreciate the awe of Scott Horton:
Scott Horton calls it a “train wreck,” and it sure is. She is clearly not used to being challenged so directly and forcefully about the Bush administration’s policies — and in her intense focus on defending herself, she says a lot of things that are just not true. Horton — who for anyone who doesn’t know, is a lawyer and an expert in constitutional issues who teaches at Columbia University and writes a column at Harper’s — gives us the facts.The supposed "train wreck" was Rice's interaction with a student at a Stanford University function.
According to "Kathy," Rice was "pwned" by the student. All analysis comes courtesy of Horton, via Harper's. Perhaps he's the one carrying the borrowed brain cells?
(1) She perpetuates the Abu Ghraib myth (“Abu Ghraib was not policy”), even as the Senate Armed Services Committee report demolishes it.If Horton and I are reading the same report, then he appears to be either a very confused legal expert or a liar. The report does suggest that techniques used at Abu Ghraib were descended from the practices approved for use at Gitmo, but that simply isn't the same thing as the treatment amounting to policy. Policy at Gitmo, maybe. Not policy in the case of the Abu Ghraib abuses.
(2) In Condiworld, the threat of Al Qaeda was greater than the threat faced by the United States in World War II, as demonstrated by the 9/11 attacks.Horton calls Rice's assessment "an astonishing failure of reasoned judgment," and then supports it with the curious method of giving casualty totals from WWII. Evidently we are supposed to compare those with the death toll from the 9-11 attacks. As if that is reasonable. Apparently Horton does not realize that the American death toll from WWII could be rapidly eclipsed by a group of terrorists using biological weapons or dirty bombs. It wasn't that 9-11 itself demonstrated the threat of terrorism. The attacks established the ability of terrorists to cause far greater casualties using other methods.
(3) Rice insists that no one was tortured at Guantánamo. She cites an OSCE report that called it a “model medium security prison.” But, as the report’s author stressed, this was a characterization of the physical facility. How about the treatment of the prisoners? On that score, the OSCE had a different conclusion: it was “mental torture.”During the exchange on the video, one should note that Rice identified the root of the "mental torture" complaint accurately, though she did seem to misattribute the reasoning to the Red Cross reports instead of the OSCE. The reason, of course, was the prisoners' uncertainty as to how long they would be detained. All that would seem to show is the remarkably low threshold some folks need in order to cry "Torture!"
Horton also cites two Red Cross reports that supposedly concluded that detainee treatment was torture. He cites one ICRC report that called treatment "tantamount to torture." I believe I have the direct link to that document, and the full quotation occurs on page 23 (item 59):
This ICRC report documents serious violations of International Humanitarian Law relating to the conditions of treatment of the persons deprived of their liberty held by the CF in Iraq. In particular, it establishes that persons deprived of their liberty face the risk of being subjected to a process of physical and psychological coercion, in some cases tantamount to torture, in the early stages of the internment process.Come to think of it, Horton's complaint rings a tad hollow in the first place:
The Red Cross did complete two studies of detainees at Guantánamo, and Condi’s characterization of them is false. The first report concluded that the treatment of prisoners, particularly isolation treatment, was “tantamount to torture.”Note to Horton: Iraq and Guantanamo are geographically distinct locations. Not a particularly good reference to use to prove torture at Guantanamo.
Aside from various problems with the report, such as its reliance on uncorroborated detainee testimony, this Red Cross report is soft on conclusions. We know from Abu Ghraib (battery attached to genitals? Ouch!) that detainees risked degrading treatment "tantamount to torture." Was it policy? The examples in the document are all over the map and often fail to accord with approved harsh interrogation methods. But this Horton guy teaches at Columbia. He couldn't be wrong, could he?
There's always the second report to check. Horton presents the second one as an unqualified judgment of torture. Here is the key graph:
The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.So once again we're dealing with allegations, and even supposing the accuracy of the allegations the ICRC does not have the authority to proclaim the treatment torture in a legally relevant sense. That said, it was fair of Horton to state that Rice's characterization of the latter report was inaccurate.
(4) Rice claims that the Bush Administration’s efforts to try the Guantánamo prisoners were blocked by the Supreme Court.Horton goes on to argue that the Bush administration is at fault, but that amounts to a semantic argument as regardless of where one detects fault Rice's statement is quite true. The Bush administration tried to use military commissions to try the detainees and the Supreme Court blocked it. Horton appeals to the recommendations of "an overwhelming majority of legal authorities" as to what the administration ought to have done, but it seems facile for him to claim that following that course would unquestionably have worked. It is not a bad argument for Horton to make, but in logical terms he overstates the certainty of the outcome. And his argument fails to contradict Rice despite his use of language suggesting as much.
(5) Rice insists that waterboarding is not torture. Why? Rice pulls a Nixon. It was not torture because the president authorized it.It seemed to me that Rice said quite a bit more than that, so I reviewed the video to see what Horton left out.
My transcript of the relevant exchange:
Q:While it is fair to say that Rice did not answer the question directly, I would suggest that her answer amounts to trusting the legal evaluation of the administration. And rather than Rice saying that if the president says it is legal it is therefore legal, I think it much more likely that she was saying that the president had committed to doing things legally and by the manner the administration's actions were defined by the president they would be legal actions. That makes good sense of Rice's transitional use of "and so." Horton's interpretation is probably best counted as sadly uncharitable.
Is waterboarding torture?
Uh, the president instructed us that nothing we would do would be outside of our obligations--legal obligations--under the Convention Against Torture. So that's--and by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization subject to the Justice Department's clearance.
That's what I did.
Is waterboarding torture in your opinion?
I just said the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president it did not violate our obligations under the Convention Against Torture.
(6) Whereas the Senate Intelligence Committee’s summary shows Rice giving authorization for waterboarding, Rice has a different recollection. “I didn’t authorize anything. I conveyed the authorization of the administration to the agency.” This is dicing things very finely.As I understand it, the agency in question requested presidential authorization to use techniques its agents wanted to use. As Rice is not the president, I don't see that she could have given the authorization herself. But she would have been able to report to the agency that the president had approved the measures. That seems like a fair distinction given that the Senate Intelligence Committee's summary makes it appear that Rice somehow held the authority to OK the harsh interrogations and used it--as though the buck stopped with her.
Horton, it seems to me, twists that distinction into a legal defense strategy or something. I think it counts as uncharitable to think Rice was mounting an echo of a would-be legal defense.
Revised title to slightly snazzier form moments after publishing