Did AG Eric Holder doublecross his boss?

When I first heard that Attorny General Eric Holder was at this late date considering prosecutions for detainee mistreatment, I assumed that he was again pondering the windown left open to him by President Obama. That is, to consider prosecuting administration officials who developed detainee treatment policies.

... Obama added that prosecutions for those who drafted the memos would be up to Attorney General Eric Holder. "With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there."
(MSNBC)

Holder had appeared to let that window close for the most part by leaving it up to bar associations to discipline administration lawyers for dispensing bad advice.

But Holder seems to have found another window of opportunity.

"For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted," (Obama) told reporters.

The flip side of the president's statement, of course, is that it might be appropriate to prosecute those who strayed from the guidelines for detainee treatment provided by the Bush administration. Those who overstepped the lines drawn by the administration, in other words.

Have we ever had a president so artful in his deployment of English words and phrases? Since Bill Clinton, anyway?

On the one hand, Obama committed to backing the CIA in the name of unity. But he left the door open to prosecuting agents who overstepped the authority granted by the old administration. It is something of a balancing act. One would hope that agents who went beyond their orders have already received in-house discipline. Holder could go well beyond that to charging agents with war crimes, and the CIA might not feel fully supported by the administration if that occurs.

As with Clinton, it helps to keep a magnifying glass on hand to deal with the fine print when the POTUS opens his mouth.


Is it politics?

The CIA, of course, also faces criticism from the left in Congress, stemming from Speaker of the House Nancy Pelosi's charges that the CIA regularly lies to Congress. Pelosi never did much to make her case, but a handful of Democrats recently tried to put a tooth or two in the charge.

Is the Holder story part of a political battle in the federal government among factions in the Democratic Party?

If Obama does not treat carefully, he risks having his CIA turning against him as it did on occasion with President Bush.

SPT attaches editorial to gimpy Laughlin wagon

The St. Petersburg Times published an editorial this week echoing the (non-objective) story it published last Sunday on the Guantanamo detention facilities.

I touched on some of the problems with that story with my previous post.

The editorial causes me to question again the credulity of the Times' editorial staff.

The American prison camp at Guantanamo Bay, Cuba, has always been built on a great lie: that it would only house the "worst of the worst."

I was surprised at the difficulty I found in tracking that "worst of the worst" quotation to its original source. It is commonly attributed to former secretary of defense Donald Rumsfeld. There's a future project for me, but I strongly suspect that the editorial has led with a lie of its own.

But rather than be honest about the tragic missteps of the past and confront the lingering issues over detainee treatment, the Pentagon puts on a preposterous dog-and-pony show when reporters come calling.

As for the supposed "tragic missteps of the past," the reports of detainee mistreatment cited in Laughlin's report, even if we generously supposed their accuracy, occurred well before the date of the 2008 report she used as her source. The Pentagon itself is as able to deal with press inquiries about the past as is the present staff at Guantanamo--perhaps better. How many beatings would Laughlin and the Times' editors give that dead horse?

The editors at the Times have the luxury of debriefing their reporter in-depth. Readers at home lacking that luxury would have detected many signs of anti-Pentagon bias in Laughlin's piece. We expect that the Pentagon will not grant full access to the press, but hope that the press is granted access sufficient to speak to the general conditions at the facility. The resulting story left readers in a poor position to render good judgment after accounting for the reporter's bias. It matters not whether Laughlin acquired her bias before or after doing her investigation, since the reader can't know which is the case.

The demonstration undermines the Pentagon's credibility and makes President Barack Obama's job harder as he wrestles with an intransigent Congress to shutter Guantanamo once and for all.

Again, maybe the demonstration undermines the Pentagon's credibility and maybe it doesn't. All we know for sure is that Laughlin's story tries to undermine the Pentagon's credibility and the editors at the Times back her judgment.

St. Petersburg Times staff writer Meg Laughlin and photographer Chris Zuppa spent two days at Guantanamo recently. Defense Department personnel led them through hours of tightly controlled interviews. Laughlin was not allowed to interview a single detainee, despite having obtained permission from at least six attorneys to meet with their detainee clients.

I can imagine how disappointing that must have been for the Times and for Laughlin, but it is hardly scandalous. The attorneys could give Laughlin permission to carry a gun in to a client, but that doesn't mean the facility is obligated to let her deliver the gun to the client. Is this not a case of press coercion? Give the Times the access it desires or suffer the consequences?

She would only hear the Pentagon's side of the story. And what a whopper of a story it was — short on facts, corroboration and the truth.

The Times resembles that remark.

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My criticism of Laughlin's story focused on its claims of detainee abuse. The Times editorial repeated some of those in its third paragraph:

Pentagon personnel wouldn't discuss the torturing of prisoners with sleep deprivation, wall slamming and exposure to extreme heat and cold, all documented in a 2008 Justice Department report, except to say that these techniques weren't defined as torture at the time.

The story indicated, at least, that it was intimated those techniques are no longer employed at Guantanamo. So what type of discussion should we have expected?

As for the use of the term "torture"--if it is meant to refer to a breach of the law, isn't it libelous to use the term prior to a judicial confirmation of guilt? In the original context of the story, that seems to have been the point of the military's representative. But the Times twisted it into some type of dodge.

As for the claims of abuse, the IG report cited in Laughlin's story made a very weak case for sleep deprivation having been used as torture. It did not mention wall slamming as a technique used at Gitmo (according to my observations, anyway), and the "extreme heat and cold" probably fell within the range of 55-100 degrees fahrenheit, since 95 degrees was the high estimate from the report and the "extreme cold" was produced by leaving the air conditioning running constantly.

There are limits to how cold the room temperature can be made. When operating in a suitably sized room, most air conditioners will cool to around 21c. Mobile air conditioners are designed for peoples comfort. The ideal summer temperature for most people is around 21- 24c.
(allergymatters.com)

Twenty-one degrees Celsius converts to about 70 degrees Fahrenheit. Brrrr!

Sure, we can call anything torture. Including being subjected to the editorial content of the Times. Using the term carries a subjective judgment minus a legal determination.

Is water boarding torture?

It seems to me that "water boarding" has turned into a demagogue's issue lately. The issue came up during Michael Mukasey's confirmation hearing before the U.S. Senate the other day. Democrats (and some Republicans) seem to use the water boarding issue as a political baseball bat.



In that exchange, Mukasey was asked to make a determination on the constitutionality of water boarding.

But how is he supposed to make that determination? If he uses an originalist understanding of the Constitution then on what grounds is he supposed to apply the law to war foes? Even if we ignore the fact that terrorists are not usually citizens of the United States, was water boarding "cruel and unusual" to the framers? It seems doubtful. And if we adopt the "evolving standards of decency" standard, which evolved standards should we adopt?

It seems to me that the entire "evolving standards" rationale is bankrupt. It ends up as rationalization for the judge's personal view. Think about it. Suppose that "Kill the Jihadists" becomes a ultra-popular video game. Everyone plays it, from teen boys to Grandma and even the babysitter. People, by and large, come to accept using a potato peeler to slowly extract information from radical Jihadist prisoners. In other words, the standard of decency has evolved. But you would never hear the "evolving standards" argument used to justify using the technique, would you?

The key to the "evolving standards" argument is its presumption that moral decency evolves in one direction, which (scientifically speaking) is a quaint understanding of evolution (evolution directed toward a goal). Ultimately, the argument boils down to the judge's implicit claim that he or she knows better in this case.

And therein lies the dilemma. Either Mukasey is just supposed to "know better" or else the constitution offers no clear condemnation of water boarding.

Casting the issue on the waters of international law (or treaties) doesn't do any more to resolve the situation. John Yoo quite accurately noted that use of the word "extreme" as a modifier in its descriptions of mistreatment clearly implies some degree of non-extreme mistreatment that will not qualify as torture.

We could use an honest debate about water boarding, one that doesn't rely on emotional appeals such as the fallacy of appeal to outrage. If that debate ever takes place, then let Congress produce legislation that addresses the issue specifically. Spare me the demagoguery.



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Blumner review: torture and stuff

I promised brief commentary on Robyn Blumner's columns. Time doesn't permit detailed commentary every week, but I want to have get at least something said around the time her column is published lest I fall too far behind.

I can always update later.

This week, the SPT Pinata was writing about torture. This time the column deals with psychiatric professionals participating in torture.

The following line was the first one to grab me:

Doctors take a Hippocratic oath to do no deliberate harm, so it is particularly chilling when a doctor is an agent of suffering, even if he's doing so in the service of perceived national interests.
(St. Petersburg Times)

Particularly chilling, eh? Something tells me she's not particularly chilled when a doctor euthanizes a fetus via a late-term "partial birth" abortion--but of course it's different when it's just a fetus, I suppose. Anyway, the right to choose is probably in the national interest.

The gist of the column is Blumner's praise of the APA for courageously condemning torture.

Here's a piece of the APA resolution.

WHEREAS in 2006, the American Psychological Association defined torture in accordance with Article l of the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,

[T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official [e.g., governmental, religious, political, organizational] capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions [in accordance with both domestic and international law];

WHEREAS in 2006, the American Psychological Association defined the term "cruel, inhuman, or degrading treatment or punishment" to mean treatment or punishment by a psychologist that, in accordance with the McCain Amendment, is of a kind that would be "prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984." Specifically, United States Reservation I.1 of the Reservations, Declarations and Understandings to the United Nations Convention Against Torture stating, "the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."ⁱⁱ

^{(bold emphasis added)}

While the APA supposedly accepts the UN definition that John Yoo exploited in a legal memo solicited by the Bush administration, the organization ends up barring almost everything (read on beyond what I quoted for full confirmation). The APA further offers an absolute condemnation of torture. If only that were confirmation that they condemn situation ethics and moral relativism I'd at least partially applaud the move. Unfortunately, it probably means nothing of the kind. The resolution, on its face, appears incoherent. Small surprise that Blumner applauds it.


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