The Enlightened Despot

Jeffrey Toobin, the only remotely sensible person allowed to speak on television about the news on a regular basis, has a crazy idea: we shouldn’t torture Najibullah Zazi. TNR’s Michael Crowley finds this scheme tempting, but he has his reservations:

It’s a well-argued case, and I think I agree. But, let’s play Devil’s Advocate

If it were up to me, I don’t know what I would do; I would need to know more facts. I am not a proponent of torture, which I think has done enormous harm to America’s image abroad and moral fiber at home. But I ride the subways these guys may have been planning to attack and I would like to be quite sure we’ve found all of them. At a minimum, this is a  good opportunity to stress-test* the debate about interrogation techniques, because it may be that life can imitate 24 after all.

I would genuinely like to know: what does “I am not a proponent of torture” even mean here? It seems clear to me that he isn’t using a euphemism screen here (real torture is inexcusable, of course, but what’s a little waterboarding between friends?). But at the same time, he is obviously on the fence about something, and I don’t know how to interpret this such that that something isn’t the question of whether Zazi should be tortured. But if that’s right, why does he so confidently assert that he isn’t a proponent?

The most likely interpretation I can come up with is that Crowley is saying he isn’t enthusiastic about torture, and thinks we’ve done far too much of it in the recent past, but that he isn’t willing to rule it out altogether. This is a much more honest framing of the pro-torture position than one generally sees, but it is the pro-torture position. It’s not as if there are lots of people saying with a straight face “I think we should torture whomever we can, whenever we can.” Willingness to resort to torture in extreme cases to prevent major acts of mass murder is the most pro-torture position that’s on the table.

Now, not being a crazy person, Crowley disagrees with the Dick Cheney about just how often that situation comes up. That speaks well of him. But - whatever some neocons might feel in their hearts - no one* has embraced a more stridently pro-torture philosophy than the one Crowley appears to be leaning toward here.

* No, commenters on Michelle Malkin’s blog don’t count.

Over the past few weeks, almost every political blog I read that didn’t have an evening link round-up has added one. I suspect they know something we don’t, so I’m jumping on the bandwagon. The plan is to have an installment every week night, and a longer one on Sundays covering the weekend and looking back at the prior week. I’ll include a bit more of a comment on many of the items than one finds in a typical round-up, hence the title.

Tonight’s edition is of bonus length, including all sorts of old news from the past few weeks that I never got around to mentioning. Here we go:

• Nancy Pelosi doubled down on her claim that the briefing she got from the CIA in 2002 did not include the revelation that waterboarding had already been used. She requested that the CIA release its notes on the briefing to verify her claim. If she’s bluffing, I tip my cap to her ballsiness, if not to her torture-enabling. Even generally pro-Pelosi folk agree that the truth about her briefings probably wouldn’t look too good for her. Meanwhile, John Boehner says Pelosi should provide proof that the wasn’t told about the waterboarding or else apologize to the CIA for accusing them of lying. This makes perfect sense. By the same token, I hope Boehner will provide proof that he didn’t tell me how much he likes smoking crack, or else refrain from accusing me of lying about the matter.
• President Obama reversed his position on releasing a series of photos depicting the abuse of prisoners, deferring to the military’s purported belief that they would inflame anti-American sentiment abroad, thus endangering our troops. Needless to say, everybody completely lost it. Deep breaths, guys. Obama might be planning to punt on holding Americans accountable for torture, but the only plausible path toward not punting is necessarily a long, slow affair, with plenty of disappointment along the way. We simply won’t be in a position to judge any time soon.
• Cheerios are now a drug. Seriously. For some time now, General Mills has been advertising that Cheerios are “clinically proven to reduce cholesterol”. That counts as marketing the product as a cholesterol-combatting medication, which requires that the breakfast cereal be subjected to FDA testing. Assuming they don’t want this, General Mills will have to back off the claim. But I fear that we’ll still see off-label Cheerios recommendations from the medical community. There oughta’ be a law!
• Over at Next Right, Max Borders came up with five planks for a revamped GOP platform. Three of them are good ideas on the merits, and of those three, one could conceivably be adopted by a reformed Republican Party: means-test all federal entitlements. It does not make sense, Borders argues, to make direct transfer payments to rich old people simply to bolster the illusion that Social Security is actually a pension plan. No, Max, it sure doesn’t. And taking the lead on taking money away from rich people on solid conservative grounds in a way that would make Democrats uncomfortable would be tactically clever as well. Which is to say, we won’t be seeing this in 2012.
• Speaking of 2012, Utah governor Jon Huntsman, subject of 2012 GOP presidential-candidate buzz, received the nod from Obama to become our next ambassador to China. The near-consensus is that this is a masterstroke from Obama, taking his most dangerous competitor out of the race years ahead of time. This is an incredibly stupid near-consensus. Huntsman has been getting a lot of attention recently because he is a youngish Republican with a serious job who isn’t crazy, and, indeed, seems to be at least somewhat bright. But one thing pretty much all non-crazy, somewhat bright people have in common is that they don’t want to run for president as a Republican in 2012. Mike Allen has reported that some of his advisers think he’d be better of waiting until 2016. Great scoop, Mike!
• The Senate’s newest Democrat, Arlen Specter, said he was confident a compromise on EFCA would be worked out, perhaps by Pennsylvania Senator Arlen Specter. Everyone on earth said this was a massive flip-flop. I hate defending Specter against charges of unprincipled waffling, because he has no principles of which I am aware, and often waffles. But this is entirely fabricated by people refusing to pay attention to details. Specter said he wouldn’t support EFCA as-is, in part because it included a card check provision. The chances of a bill with card check passing went from around 5% to a nice round 0%. Now he says he thinks a compromise bill will pass. That compromise won’t include card check. Where’s the fire?

Quote round-up:

• Andy McCarthy: “If President Obama wanted to refrain from releasing these photos in order to protect the military forces he commands or promote the security of Americans — his two highest obligations as president — he could do so by simply issuing an executive order.” Keeping the military safe is one of the president’s two highest obligations? Maybe we should stop sending them to the middle-east, then. The artists-formerly-known as Blackwater should handle that - I think our troops would be much safer at home.
• Dick Cheney: “We fail to recognize the fact that we’re alone out there in terms of trying to achieve the objective of forcing the Iranians to give up their nuclear weapons … Everybody’s in a giant conspiracy to achieve a different objective than the one we want to achieve.” I’ve always assumed that Cheney only used the apocalyptic line as a means to serve cold, calculated ends. But I’m starting to suspect that he’s genuinely batshit crazy. I’m sorry I misjudged you, Dick!
• Andrew Sullivan: “It is quite something to have a government stamp in your passport, as I do, that will tell any immigration or police officer with a connection to a government database that I have HIV, that I am therefore a threat and can be arrested and detained and deported at the border if necessary.” That really is quite something, an aspect of the HIV ban of which I was unaware, and one that really is appalling. On this issue, though, I’m not sure that there is actual stalling, rather than just the beaurocracy working at the speed at which it works. But the delay on dealing with DADT is the least-defensible part of Obama’s record to date.
• Jay Nordlinger: “In my experience — and I’m just generalizing here — the better the person, the more positive he is about George W. Bush.” I’m not usually in to partisan hacks, but there is something so pure and simple about Nordlinger’s hackery that really appeals to me, and this is a pretty special piece of hackery even from him. But I’m just generalizing here.
  

Yesterday, Michelle Malkin joked about waterboarding Nancy Pelosi to find out what she knew about waterboarding. To expand on this charming idea, she included a mocked up photo of just that - Nancy Pelosi being waterboarded. Leaving the taste issue aside, I argued that her hundreds of thousands of regular readers deserved more from her than a picture that looked like a small child had produced using Microsoft Paint. By way of demonstrating my point, I promised - without first consulting him - that our own Photoshop expert would produce something along the same lines that would put her effort to shame within the next 48 hours. About 24 hours later, he has delivered.

All to well, actually, for my tastes. While pretty much any photo with Dick Cheney in it is hilarious in my book, I have to admit that despite being obvious satire, the resulting photo sort of disturbed me. I said yesterday that nothing should be off limits for humor, but some things are definitely harder to laugh about than others, and visual humor about torture is especially tricky. I regret not thinking up a more light-hearted assignment to make the same point, but a promise is a promise. And in any case, if an obviously fake photo of this practice involving recognizable public figures is still disturbing, that’s actually itself a noteworthy datapoint. So, as a compromise, the impressive work of our Fake Photogaffe technician comes after the jump, for those who’d rather not see even comic book waterboarding.

If you don’t click through, you’ll have to take my word for it on the score - Enlightened Despot: 1, Michelle Malkin: 0

(more…)

This is Lt. General Stanly McChrystal, who has been given the nod to take over our military effort in Afghanistan. The consensus is that he is a pretty neat pick, because he knows a lot about counterinsurgency, and because he’s been in charge of all sorts of black ops stuff that we don’t have the clearence to know about, but that we’re sure is very, very cool. That all seems about right, but it’s not quite hard data. Meanwhile, the downside is that he could be a war criminal:

Not only was McChrystal’s involved in the “shameful coverup of Pat Tillman’s friendly-fire death,” writes Joshua Foust. But “one unit under his command, the now-notorious Task Force 6-26, which was assigned to find HVTs, or High Value Targets in Iraq, is credited with the ultimate death of [al Qaeda in Iraq leader Moussab al-] Zarqawi. The problem is, along the way they faced accusations of running a secret camp that tortured prisoners, and they were implicated in at least two detainee deaths during torture sessions. Their camp, called Camp Nama, became something of a lightning rod after a ‘computer malfunction’ destroyed upwards of 70% of their records and an investigation into their conduct stalled out.”

I have no idea if McChrystal was involved in or knew about any of that, but it’s worth looking into. I’m also hoping to hear what Meiji has to say about the new commander, though, since he (McChrystal) is an of the US Army, I imagine it will turn out that he is an ineffective warrior and a man lacking moral fiber.

The blogosphere’s answer to talk radio, Michelle Malkin, comes through with a pretty representative attempt at humor (I hope), advocating waterboarding Nancy Pelosi to find out exactly how much she knew about waterboarding. Regular readers will know that I am about as receptive an audience as you could hope for for a joke attacking Pelosi and torture, but Malkin failed to make me crack a smile. The most striking thing about her failure, though, is the technical ineptitude of her visual humor:

Honestly, is the worthy of one of the internet’s highest traffic blogs? Does she really have no minions with even a cursory understanding of Photoshop? Without any of her financial resources, the Despot - a humble labor of scorn - has its own dedicated forger of political images, and I assure you, dear readers, we would never run anything so amateurish.

So I am hereby issuing the Michelle Malkin Challenge to our Fake Photogaffe department: within the next 48 hours, our expert will produce a waterboarding-related photo that puts this media-powerhouse to shame. I haven’t even told him yet - that’s how confident I am. Michelle Malkin, prepare to be upstaged.

ABC reports:

House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

The report details a Sept. 4, 2002 meeting between intelligence officials and Pelosi, then-House intelligence committee chairman Porter Goss, and two aides. At the time, Pelosi was the top Democrat on the House intelligence committee.

The meeting is described as a “Briefing on EITs including use of EITs on Abu Zubaydah, background on authorities, and a description of particular EITs that had been employed.”

EITs stand for “enhanced interrogation techniques,” a classification of special interrogation tactics that includes waterboarding.

Case closed, from where Michelle Malkin is standing:

House Speaker Nancy Pelosi knew from September 2, 2002 that enhanced interrogation techniques, including waterboarding, were being used on jihadi detainees.

She knew. From Day One.

That’s what the CIA memo, published at Human Events, shows.

ABC News follows.

Emptywheel leaps to Pelosi’s defense:

So Nancy Pelosi, Jay Rockefeller, and Porter Goss have all already identified problems with a document that the CIA itself refuses to vouch for. And who does ABC believe?

One more thing, which is more about CYA at the CIA than outright deception–maybe. For just about every briefing, the CIA lists who from the CIA attended the briefing (by function): for example, it lists CTC (Counterterrorism), DCI (Director), DDCI (Deputy Director), OGC (General Counsel). The exception are six briefings in 2005 and one in 2006. That’s particularly curious, given that Mary McCarthy has said the CIA lied during two briefings in 2005 (though note–that story says the briefings took place in February and June, which doesn’t correlate with the list, which shows briefings in January, March, October,  and November).

I’ll have more to say about this list in the coming days (particularly about the way it shows CIA briefed Republicans on torture a lot more than it did Democrats–and even the CIA never asserts it told any Democrat about waterboarding until after the 2004 IG Report came out).

But for now, suffice it to say it’s clearly full of easily discerned problems. Which might be why CIA won’t vouch for it.

Nevertheless, ABC thinks it’s as great as the story they got about Abu Zubaydah being waterboarded just once.

Marc Ambinder splits the difference:

One can’t help but conclude that while Pelosi might not have known everything, she knew enough. And in today’s political climate, that’s kind of tough. But back in 2002, when more Americans (probably) supported those techniques than they do now (and most Americans support at least some of the EITs), and when Pelosi herself did not have the means or the legal knowledge to perform her own analysis of the legality of the techniques, and when the climate of dissent was quashed — her reaction is understandable… maybe not, from our current perspective, excusable, although there is a range of opinion on that question.

I’d say Ambinder pretty much has the right of it. Pelosi is almost certainly guilty - the idea that she was briefed on legal justifications for EITs but didn’t think to wonder if they would actually be used is absurd - but this latest isn’t much of a smoking gun. Meanwhile, the single-minded focus on waterboarding will continue to confuse this issue, in this case to Pelosi’s benefit. Her defender’s can say - rightly - that, pace the Malkin’s of the world, this doesn’t provide much evidence that she knew about waterboarding specifically. But that is irrelevant: Pelosi has denied knowledge that any of the EITs were being used. If they told her that Zubaydah was being tortured via sleep deprivation and stress positions, she was lying, and she needs to go.

On torture:

Incidentally, PHOKC is, in my seldom-humble opinion, the funniest internet meme to date.

Ambinder’s early reporting on the Justice Department’s investigation into the torture memos does not sound good for Yoo and Bybee:

Ostensibly, Yoo, an attorney for the Office of Legal Counsel and Bybee, that section’s chief, were tasked by Attorney General John Ashcroft with determining whether so-called “enhanced interrogation techniques” violated U.S. law and treaty obligations.  But a draft report, prepared by the Justice Department’s Office of Professional Review,  suggests that, at the direction of the White House, the OLC worked to justify a policy that had already been determined and did not begin their inquiry from a neutral position.

It is not clear — and sources would not say — who in the White House communicated with the two lawyers about the memos, and it is not clear whether Yoo or Bybee felt unduly pressured to provide a legal framework for a decision already made by senior administration officials.

The AP reported that an early version of the draft recommended that the California State Bar Association seek the disbarment of Yoo, now a Berkeley law professor, and Bybee, an appellate judge. A  Justice Department official said that the final decision had not been made.

The headlines for now mostly read something along the lines of ‘Justice Department Won’t Recommend Prosecutions’. Great job, AP! If they explicitly advise against prosecutions, that would be somewhat significant, but we really aren’t at the stage where that sort of thing matters. The important thing is that more and more information be made public. This should be another good development in that process.

I saw this from Jim Manzi just before I went away, and didn’t have time to comment on it, but it’s without a doubt the best pro-torture piece I’ve seen, despite being from someone who (I believe) is anti-torture:

Maybe I’m morally obtuse about this (again, I mean that non-rhetorically), but I don’t see how a non-pacifist makes the moral case against torturing captured combatants. Of course, there are at least two ways to interpret that. One is that torture of captured combatants is not morally wrong. The other is to see this as an example of why we should be skeptical about moral reasoning as a way to answer the question; that is, of why we must rely on moral intuition and the traditions of our society.

I’m broadly on Manzi’s side on moral reasoning in general, but I don’t think his case here holds up. I don’t have the stamina to get into it now, but for now, here are some reax.

This time from Kevin Drum, who is usually too sensible to appear in this feature:

David suggests an independent commission of some kind as the best way forward, and I’m tentatively inclined to agree.  Unfortunately, President Obama seems distinctly non-thrilled by the idea, and I doubt that Congress is especially eager to move forward either.  Porter Goss’s op-ed last Friday in the Washington Post, where he insisted that both Democratic and Republican members of Congress knew what the CIA was doing and didn’t object to it, may have been disingenuous in places, but I wouldn’t be surprised if he’s right about his essential point — or at least, close enough to right to make a genuinely independent commission as frightening a prospect for Dems as it is for the GOP.  It’s probably the right thing to do, but if Obama’s opposed and Republicans are opposed and Democrats are mostly running for cover, who’s going to make it happen?

You! I really like Kevin Drum, but this makes me so angry I can hardly type. That Democrats are also guilty makes it less likely that the political classes will respond to torture on their own, but it also makes it much easier for those who aren’t culpable to yield to public outrage without coming across as partisan hacks. A serious response to this ugly chapter in our history would hurt the Republican party very badly, but it would also end the careers of some very important Democrats. That is good news for those who think presidents should be constrained by the rule of law, but bad news for those who think the current window for enacting key left-wing policy objectives is too important to spoil by holding Nancy Pelosi and other Democrats accountable for enabling war crimes.

I am, in my way, a right-wing lunatic, but I’m very sympathetic to much of Barack Obama’s agenda, and I supported his campaign to the best of my ability. Over the past few months, I’ve found myself agreeing with left-wing intellectuals more than at any other time in my life. And, as much as I disagree with much of what they have to say, I’ve grown to think of them as far more intellectually honest than all but a few of the conservatives with whom I share more common ground. If Drum, Judis, Klein, Yglesias, and the rest cannot bring themselves to put real pressure on the Democratic leadership on the issue of torture, and call for the heads of their heroes when necessary, they will prove themselves as useless and reprehensible in the Obama age as the National Review was in the Bush age.

This is welcome news, but very odd:

Pelosi on Wednesday seized on Obama’s openness to prosecuting top Bush administration lawyers who formulated policies to strip, slap, shove and waterboard detainees said to be among Al Qaeda’s worst in U.S. custody after 9/11.

“It gives further impetus among members to have some kind of truth commission as to what happened,” Pelosi said. “I do not think immunity should be granted to everyone in a blanket way,” she added.

Perhaps she is so convinced that this isn’t going to happen that she feels safe coming out in favor of it. I’d like to think she wants America to get serious about holding people accountable for torture, but I’m almost positive she’d like to keep her job. Those goals are incompatible. In a way, it’s a good thing that important Democrats are complicit - though most of the blame lies with Bush administration officials, it would be difficult to paint torture backlash as a partisan witch hunt if it cost the Speaker of the House her job. But if Pelosi really wants something done, it’s probably a witch hunt she has in mind.

Scare quotes are bad, and air quotes to indicate that you’d love to be using scare quotes if only you were writing instead of speaking are simply inexcusable. Nonetheless, this is pretty funny, in a dark, decline-of-our-nation’s-moral-standing kind of way:

As I’ve argued before, the only way Obama can bring about prosecutions for Bush-era war crimes is by continuing to release information until an angry electorate demands in investigation. Even then, it will be much easier, politically, for a bipartisan group of legislators to take the lead than it would be for the administration. I said before that the natural person to lead such an effort would be torture victim and detractor John McCain. There still may be some hope of that happening, but this is not a good sign:

U.S. Senators John McCain (R-AZ), Joseph Lieberman (ID-CT), and Lindsey Graham (R-SC) today sent the following letter to President Obama strongly urging him not to prosecute government officials who provided legal advice related to detainee interrogations, and to move forward in a constructive fashion to address the significant challenges our country faces on the detainee issue:

“We write with concern about proposals to prosecute previous administration officials for their legal analysis related to the CIA interrogation program.  Pursuing such prosecutions would, we believe, have serious negative effects on the candor with which officials in any administration provide their best advice, and would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward.

…

We disagree, however, with Administration statements suggesting that the lawyers who provided such counsel may now be open to prosecution.  Some of the legal analysis included in the OLC memos released last week was, we believe, deeply flawed.  We have also strongly opposed the overly coercive interrogation techniques, including waterboarding, that these memos deemed legal.  We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest.  Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client – the U.S. Government – with their best legal advice.  Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime.

Given the great challenges that face our country in dealing with detainees currently held at Guantanamo Bay, Bagram Airfield, and elsewhere, along with detainees that will undoubtedly fall into U.S. custody as the result of future operations, we have every interest in looking forward to solutions, not backward to recriminations.  That is why we do not support the idea of a commission that would focus on the mistakes of the past.

‘Making legal advice with which we may disagree into a crime’ is a fairly dishonest way of framing the issue. No one, so far as I know, is proposing going after anyone for issuing opinions that were merely wrong - the issue is whether or not Bybee, Yoo, et al were trying to interpret the law at all, as opposed to constructing the most plausible argument they could come up with to fit the conclusion they wanted. There is a legitimate argument to be made that prosecuting people for giving bad faith advice will still frighten future OLC staff from giving honest advice that might be perceived as having been given in bad faith. But there is nothing shocking or even unusual about the question of intent being relevant to criminal culpability. Since there is clear evidence that legal advice unamenable to the administration’s aims was short-circuited and surpressed, it isn’t difficult to argue that they were not honestly interpreting the law , and to do so in a way that doesn’t lead down any slippery slopes toward cutrailing the free expression of legal opinion.

On a more general level, it’s odd that the letter from the Senator - and indeed most of the discussion on both sides of this question I have seen - makes no mention of the laws at issue. The decision to prosecute is generally not made on the basis of whether or not it seems like a fun thing to do, but rather whether or not some particular law has been broken. But Eric Holder hasn’t actually suggested that anyone will be charged with anything, so there isn’t anything to argue about yet.

I don’t imagine that will change any time soon. He will presumably give a non-committal statement, emphasizing that no charges are in the works or that no doors have been shut, depending on demands of the politics. Meanwhile, more information will be released. And hopefully, eventually, people will get very, very angry.

In the meantime, take a minute out of your day to sign this petition calling for the impeachment of Jay Bybee. I don’t know if he’s broken the law, but there is no question he lied about it so that others could break it. He has no business on the bench.

… but we still have a ways to go:

The Times has one too:

In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned.

This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved — not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush, not the leaders of the Senate and House Intelligence Committees — investigated the gruesome origins of the techniques they were approving with little debate.

Nonsense. Whether or not these people knew about the history of waterboarding is not particularly relevant, because torture isn’t wrong for historical reasons. The ‘gruesome origins’ of these techniques has exactly zero bearing on their moral legitimacy. People love to make a big deal out of the parallels between Bush-era torture and the behavior of the Khmer Rouge, the Nazis, the Soviet Union, and so on. But that’s pretty much empty rhetoric. That bad people engage in an activity does not make that activity bad. Of course, the historical fact that we have always condemned people for waterboarding and the rest would no doubt have been instructive. But it should hardly be necessary. If someone describes waterboarding to you and you approve, learning that America has thus far considered the practice torture may alert you to the fact that you are an asshole, but it doesn’t change the fact that you are, indeeed, an asshole.