Saturday, April 18, 2009

Hayden and Mukasey Pollute the Wall Street Journal-JIM RESPONDS

The Bush legacy

Deconstructing and responding (in italicized boldface) to Hayden and Mukasey's absurd arguments in favor of torture: Bloviators!

Too bad the Journal would never print a response from anyone (and there are a lot out there, including Glenn Greenwald, Jonathan Turley, and John Dean- who certainly knows a good bit about official lawbreakers who deserve to be in prison) who actually understands history, logic, and the law, to this guest editorial which was full of straw men arguments and lacking in any historical or legal perspective or understanding. Note: the phrase "Nuremberg trials" didn't get mentioned even once! Pretty cool for two guys who should, in a perfect world, be serving lengthy prison sentences.

Jim Finkelstein
Albany, Georgia


The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

Jim Responds: Spoken by persons who are anti-democratic (with a small "d"). In their eyes, the People (as in "We the People") can't be trusted. Only those blessed with security clearances and an unblemished record of patriotism (my country, right or wrong) can be trusted with the information which has long since been made freely available to anyone with a computer or a New York Times subscription.

Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.

In fact, all of those claims survive scrutiny except that part that their disclosure was "legally compelled." Except that if the President orders them disclosed, then I guess that makes the disclosure legally compelled. And there is no question that the use of torture and the illegal detentions at Guantanamo Bay and elsewhere have cost us dearly- in world public opinion, and as a recruiting tool for Islamic jihadists.

Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.

Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president's right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.

Jim calls "bullshit." Think for a moment about the logic of this assertion: if we have any- and I mean any limits on what we will do to captives, then somehow we have lost. So using their logic, our government should be free to capture family members- even infants- and torture and kill them in the presence of detainees to get them to talk. All acts of torture and violations of human rights- even cutting off limbs and such, or blinding them, or bringing a cohort into the room and shooting him in the head to let the detainee know we mean business- all are permissible. Because otherwise, the bad guys will now be aware of "the absolute limit" of what we can do to extract information from them.

In other words: throw out the Constitution (the Eighth Amendment prohibits "Cruel and Unusual Punishments"), throw out U. S. law, which prohibits torture, throw out our treaty obligations under the Geneva Conventions. Bullshit.

Moreover, disclosure of the details of the program pre-empts the study of the president's task force and assures that the suspension imposed by the president's executive order is effectively permanent. There would be little point in the president authorizing measures whose nature and precise limits have already been disclosed in detail to those whose resolve we hope to overcome.

And Mukasey was a lawyer and a Federal Judge!! Amazing. Apparently it never occurred to him that police are restricted by law from beating the hell out of suspects, waterboarding them, stringing them up by their thumbs, and so forth, to extract confessions or important information about future crimes of their colleagues. And every arrested criminal is read his Miranda rights before being interrogated! That must really chap Mukasey. Good thing he never became the Chief Law Enforcement Officer of the United States, a/k/a "Attorney General." Oops!

This conflicts with the sworn promise of the current director of the CIA, Leon Panetta, who testified in aid of securing Senate confirmation that if he thought he needed additional authority to conduct interrogation to get necessary information, he would seek it from the president. By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.

Do these turkeys not understand the chain of command? Panetta is Obama's subordinate- not vice versa. It doesn't matter what Panetta "promised" to do if he thought he needed "additional authority" (i.e. authorization to break the law and torture human beings)- he is subject to the commands of his boss, the President. So how does Obama doing this somehow "conflict with the sworn promise" of Panetta? Sounds like they are implying Panetta committed perjury. Which is absurd- he has to follow orders.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption.

Au contraire. The "outrage" is not "faux." It's real. Outrage that our government, our Constitution, our moral standing in the world, were hijacked by turkeys like these two jerkwads.

It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

Jim calls "bullshit" again. Since when do we make our laws based on the lowest common denominator of the rest of the world? Of course there are bad guys out there. So where is it written that we are losers because we know better than to torture or kill our captives? And talk about a "straw man" argument? When did anyone ever argue that by adhering to our own laws we were going to "shame" the bad guys into giving up violence? Again, Mukasey is supposedly a lawyer and a former judge!! How the hell did he graduate law school and pass the bar with that kind of reasoning? So if any American citizen is arrested in the United States who may have information- such as the location of a kidnapped person- then Mukasey says throw the law out the window. Do whatever, because torturing, beating, and maiming "could save the lives" of an American!!

Which brings us to the next of the justifications for disclosing and thus abandoning these measures: that they don't work anyway, and that those who are subjected to them will simply make up information in order to end their ordeal. This ignorant view of how interrogations are conducted is belied by both experience and common sense. If coercive interrogation had been administered to obtain confessions, one might understand the argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001 attacks, among others, and who has boasted of having beheaded Daniel Pearl, could eventually have felt pressed to provide a false confession. But confessions aren't the point. Intelligence is. Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.

Wow. Sounds like one of these guys actually has read a spy novel. So that's how interrogations are done, huh? By asking questions to which one already knows the answers!

And since when is the efficacy of torture a proper argument? People who are civilized, who believe in the Constitution, in the rule of law, already know that a perfect crime fighting model would be to arrest every suspicious person on sight, jail them indefinitely without a hearing or access to a lawyer, and torture them mercilessly until they give up everything they know. By the way- that's not a theoretical model. It was already accomplished at least twice in the 20th century, once under Stalin in the Soviet Union, and again under Hitler in Germany. Boy, these turkeys aspire to put the United States in some hallowed company!

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.

Hmmm. So Mukasey and Hayden are now letting their real poker hands show- their aces in the hole are the facts that a lot of Congressmen and Senators already knew the dirty secrets years ago. And again, they are arguing that if something works- no matter how illegal or morally reprehensible, that's all that matters. Which brings me back to: kidnap their families- torture their wives, their daughters, and their infant children before their eyes. Hey, if it works, then what unpatriotic American could possibly complain?

The techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions. As already disclosed by Director Hayden, as late as 2006, even with the growing success of other intelligence tools, fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations.

So if Timothy McVeigh had only killed one or two children in the day care center of Oklahoma City, that would have been OK? Because morality is only a matter of numbers? And again, the "ends justifies the means" is the continuing theme of these jerks and their argument. So how about locking up every American who ever thought of committing a crime- forever! That would be the perfect crime fighting model, right? And as to foreign policy, let's use those nukes! We could wipe out Iraq, Afghanistan, Pakistan, Saudi Arabia, and any other country which is harboring any of them there terrorists. Cause the ends justify the means, and boy, wouldn't that really show them we mean business? Those that haven't been turned into a glowing cinder, that is.

Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits.

Boy, aren't you proud of that accomplishment. You "successfully resisted" lawsuits which would have allowed the American people to find out how low you have sunk and what crimes were committed in their names.

Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government's argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.

You really, really, don't trust the people do you? The rest of us who aren't in the know should just go shopping, goto church, praise Jesus on Sundays, while you superspooks do all the dirty work in our names. How kind of you to take on our sins like that- and to go the extra mile and keep us from being discomfited by finding out how you have dragged our names in the mud.

There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world.

No, it wasn't "self fulfilling." You guys fulfilled it. Don't try to duck your responsibility now, boys. Stand up and be proud about the dishonor you have brought to your country (and by Mukasey: to the legal profession, the Justice Department, and the judiciary.)

Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering.

Right. And murdering suspects in those prisons after they were interrogated by the CIA, or "rendering them" to disgusting foreign countries that had fewer qualms about torturing them- that had everything to do with intelligence gathering, right?

The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue. Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees. Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.

Wow. So the Army field manual only applies to corporals or lower. If you're a Major, a Colonel, or a General- or any case officer of the CIA fresh from a stint at Yale, then the Federalist Society or American Enterprise Institute, bombs away! Anything goes! Get out those nail pullers and thumbscrews and electric wires connected to genitalia! What wowsers.

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001. Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America's role as a superpower. Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein's Iraq, or the many other purported grievances asserted over the past eight years.

Your point, gentlemen? That we somehow managed not to throw away the rule of law, even after Timothy McVeigh bombed the Oklahoma City Federal Building? And how did you guys miss including that one? Oh yeah, a white, Anglo-Saxon, Christian, American, ex GI committed that atrocity- kind of makes it difficult when you are trying to demonize people before you torture and kill them, so just ignore white American Christians like McVeigh and Terry Nichols. Or are you guys suffering from "Rudy Guliani-itis" by saying "9-11" and "terrorist" as much as you can, since your arguments don't hold a thimble of water?

The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits.

Right. And Hitler's minions were "just following orders." Or did you guys forget that illegal orders (and Hitler had his lawyers, too, don't forget) wasn't a defense at Nuremberg?

Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.

Works for me. Let them get their hands dirty. And let them be the ones to go to prison for life.

Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.

Did you guys not get the memo? The OLC was just as corrupt as the Justice Department under Alberto Gonzalez and Michael Mukasey. Oh yeah- one of you is Michael Mukasey. Sucks to be you, doesn't it?

In his book "The Terror Presidency," Jack Goldsmith describes the phenomenon we are now experiencing, and its inevitable effect, referring to what he calls "cycles of timidity and aggression" that have weakened intelligence gathering in the past. Politicians pressure the intelligence community to push to the legal limit, and then cast accusations when aggressiveness goes out of style, thereby encouraging risk aversion, and then, as occurred in the wake of 9/11, criticizing the intelligence community for feckless timidity. He calls these cycles "a terrible problem for our national security." Indeed they are, and the precipitous release of these OLC opinions simply makes the problem worse.

The rest of us sane people call episodes like Nixon and Watergate and Bush and his whole eight years "criminals breaking the law" and the period following "a restoration of the rule of law" after they are gone. Timidity indeed! So that's what the former Attorney General of the United States, a former federal judge, thinks of people who respect the Constitution and the laws and treaties of the United States.

Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009.

Sad, isn't it? We couldn't do better than those two chuckleheads?


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