Wednesday, December 17, 2008

Cheney, the Dark Lord of torture

Paul Krugman writes at TPM Cafe:

The big test for the next few months will be whether policymakers here and abroad can wrap their minds around this Alice-in-Wonderland world. If they can't, nobody knows how deep the rabbit hole goes.
He was referring to the world economic crisis. But the same notion applies to the twisted approach to governance of the Cheney-Bush administration, which combined the Predator State with the Permanent War State and the Torture State.

As the transition from the Cheney regime proceeds, I keep getting the grim feeling that we're only now in a position to start understanding how truly bad this has been.

The Dark Lord himself seemed to be taking things to a qualitative new level in his interview this week with ABC News. He was parsing his words carefully, and one could argue that he doesn't quite admit explicitly that his government used waterboarding, which hereafter I'll refer to by its traditional name of "the drowning torture". But he at least comes about as close as you can without saying it explicitly. In my reading, he's admitting it explicitly.

He also explicitly said that he had been part of the discussions on authorizing the torture techniques used on Khalid Sheikh Mohammed, which we know from solid reporting included the drowning torture, and that he had supported it. And he encourages the Obama administration to continue it.

I shared some of my initial reactions to this in the comments to Digby's post Confessions 12/16/08. I'll work some of those into a subsequent post. Here I'm trying to look at what this latest development means in news and legal terms.

ABC News titles the transcript Cheney Defends Hard Line Tactics 12/16/08. The newspaper online site for the online Argentine paper Clarín headlined its story Para Cheney, la tortura del "submarino" es "notablemente exitosa" (For Cheney, the "submarino" torture is "notably successful") 16.12.2008. "Submarino" is the Argentine term for the drowning torture. It is well known as one of the most notorious practices of the vicious junta that ruled Argentina from 1976 to 1983. That period is remembered there, among other names, as the period of "el terrorismo de Estado": "the terror of the state" or "state terrorism". I'm going to be looking to see if any mainstream American news service will use the appropriate word "torture" in their headlines on this interview.

Here are some key passages from the Cheney interview with Jonathan Karl:

On the question of so-called torture, we don't do torture. We never have. It's not something that this administration subscribes to. Again, we proceeded very cautiously. We checked. We had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross.

The professionals involved in that program were very, very cautious, very careful -- wouldn't do anything without making certain it was authorized and that it was legal. And any suggestion to the contrary is just wrong. Did it produce the desired results? I think it did.

I think, for example, Khalid Sheikh Mohammed, who was the number three man in al Qaeda, the man who planned the attacks of 9/11, provided us with a wealth of information. There was a period of time there, three or four years ago, when about half of everything we knew about al Qaeda came from that one source. So, it's been a remarkably successful effort. I think the results speak for themselves.

And I think those who allege that we've been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don't know what they're talking about.
This administration has based its very thin legal excuse for violating the anti-torture laws by essentially defining any torture practice they authorized as not qualifying as "torture".

Those Justice Department alibi memos to which he refers were criminal acts in themselves. They really were like Mob lawyer acts meant specifically to facilitate breaking the law.

No one should need to argue the pragmatic point that Cheney makes alleging that the torture was effective. Torture is criminal, it's a fundamental violation of human rights, it's incompatible with the basic rule of law, and it's just plain wrong.

But in the world in which we now live, opponents of torture will also have to wrestle with the practical argument. So it's important to recognize that the only "evidence" we have that the Cheney-Bush torture policy has been practically useful in any way in combating terrorism comes from characters like Cheney and Bush who have a vested interest in justifying their torture policy, and who are without meaningful credibility on any such claim.

Jimmy Carter, by contrast, has immense credibility on human rights issues. He reminded us in Our Endangered Values: America's Moral Crisis (2005), "The primary goal of torture or the threat of torture is not to obtain convictions for crimes, but to engender and maintain fear."

Cheney continued:

KARL: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?

CHENEY: I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn't do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.

KARL: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?

CHENEY: I don't.

KARL: What is your advice to President-elect Obama then on this? Because he's been quite critical. And he might have supported...

CHENEY: He has.

KARL: ... FISA. But President-elect Obama has been very critical of the counterterrorism policies of this administration.

CHENEY: Well, counterterrorism policy's designed to defeat the terrorists. It turns on intelligence. You can't do anything without collecting first-rate intelligence. And that's what these programs are all about.

I would argue that, for the new administration, how they deal with these issues are going to be very important, because it's going to have a direct impact on whether or not they retain the tools that have been so essential and defending the nation for the last seven-and-a-half years, or whether they give them up.
It's significant that so secretive a man as Cheney is being so explicit about his complicity in criminal acts. I'm not sure what that significance is. But his explicit statement - even if carefully worded in light of his legal vulnerability - is surprising.

He's demanding that the Obama administration continue his and Bush's criminal torture policy.

KARL: And on KSM [Khalid Sheikh Mohammed], one of those tactics, of course, widely reported was waterboarding. And that seems to be a tactic we no longer use. Even that you think was appropriate?


KARL: More than two years ago, President Bush said that he was - wanted to close down Guantanamo Bay. Why has that not happened?

CHENEY: It's very hard to do. Guantanamo has been the repository, if you will, of hundreds of terrorists, or suspected terrorists, that we've captured since 9/11. They - many of them, hundreds - have been released back to their home countries. What we have left is the hard core.

Their cases are reviewed on an annual basis to see whether or not they're still a threat, whether or not they're still intelligence value in terms of continuing to hold them.

But - and we're down now to some 200 being held at Guantanamo. But that includes the core group, the really high-value targets like Khalid Sheikh Mohammed. Now, the question: If you're going to close Guantanamo, what are you going to do with those prisoners?

One suggestion is, well, we bring them to the United States. Well, I don't know very many congressmen, for example, who are eager to have 200 al Qaeda terrorists deposited in their district. It's a complex and difficult problem. If you bring them onshore into the United States, they automatically acquire a certain legal rights and responsibilities that the government would then have, that they don't as long as they're at Guantanamo. And that's an important consideration. [my emphasis]
Cheney does think long term when it comes to destroying the Constitution. And along those lines, he's trying to do a couple of things here: (1) to persuade the Obama administration to continue the lynch-law system he established with the "Bush Gulag" (Al Gore's term) and the torture policy to provide "bipartisan" validation for those criminal enterprises; (2) to set a line of Republican attack when Obama shuts down the Gulag which will also serve as a political excuse for the next Republican President to re-instate it.

It's long past time for everybody to start asking themselves how we "know" that any of the prisoners at Guantánamo or other stations of the Bush Gulag are guilty of anything? None of them have so far been through any judicial process worth the name. Basically all we have to rely on is the more-than-dubious word of Cheney, Bush and their spokespeople.

Some of the independent reporting we have on a few of them may be reliable in alleging they have been involved in terrorism against Americans. But remember the "dirty bomber" who in the end wasn't charged with anything to do with a "dirty bomb"? The one who basically only went to prison because he had previously been tortured out of his mind and couldn't mount a meaningful defense of himself? If they have actual evidence, they should have presented it in legitimate trials.

Republicans love to ask this question about what if we let them go? But I've yet to hear one Republican, not even one, ask what's going to happen when all these torturers we've trained return to civilian life? I'm assuming that with few exceptions, the torturers willingly agreed to participate. What happens when most of these guys (they are mostly men, it appears) are put back in society? After learning to get off on stripping guys down, tying them up, inserting foreign objects into their rectums or performing other abusive sadomasochistic acts on them, is it really going to do it for them to just come home and sleep with their wives or girlfriends? Or will they look for outlets for their less conventional acquired tastes? Would you date someone who you knew had been an interrogator at Guantánamo? What would your reaction be if your son or daughter was getting involved with someone like that? (This is one big reason that I think it's important to prosecute the torturers themselves as well as those who designed and authorized the torture program.)

Cheney's interview provides vivid illustration of the reasons that it is imperative to have a thorough criminal investigation of the torture policy and war crimes, in particular. The torture policy voids the rule of law in a fundamental way that no "truth commission" is going to remedy.

It's going to take real trials to impress on the minds of everyone how very serious this has been. And it's going to take real trials and also seeing some of these high-level perpetrators like Cheney and Rumsfeld actually go to prison in order to discourage the next Republican administration from doing the same, and worse.

Defenders of torture argue that if the perpetrators are prosecuted, then in the future soldiers or CIA officers or contractors may be reluctant to carry out their assignments if they are afraid of being prosecuted.

But that's the purpose of having a law. When they are ordered to torture someone, anyone in the service of the US government or any government agency should be thinking twice and three times that no matter what Mob-style legal loopholes their commanding conspirators have set up, there's a very good chance they will be prosecuted, exposed to the public as grotesque sadists and sent to prison.

No "truth commission" or Congressional investigation is going to accomplish that. The Obama administration has a solemn obligation to enforce the law and to see that such egregious violations of the law as torture are prosecuted. It's most important to prosecute the senior perpetrators. But it would be much better to prosecute them from top to bottom, with the usual considerations of allowing more junior members of a criminal enterprise to get more lenient treatment if they flip on the higher-ups.

Only real prosecutions have a chance of fixing this. And only real prosecutions are going to lay the evidence out publicly in such a way that even Republicans and even some of our esteemed Great Pundits will find it difficult to overlook what a gruesomely awful thing this torture policy is.

And unless he wants to continue the Cheney-Bush lynch law, Obama's most straightforward approach to shutting down the Bush Gulag would be to follow the existing rules that were in place on 9/11. Put the prisoners in front of an independent court as international law requires to determine whether they are prisoners-of-war. If they are, treat them according to the Geneva Convention which prohibits torture and requires their release once the conflict is over.

If they are not prisoners-of-war, then process them through the American court system. If Cheney and Bush managed to collect enough legitimate information on them that's not tainted by their thoroughly sick torture program to convict them, then they will be sentenced according to the law. If they are acquitted, they're free. If sending them back to their home countries would subject them to personal danger from their home government, they can find some place where they can resume regular life, for those to whom it would still be possible.

The Republicans will howl in fake outrage. But putting them through a process that the world and all American citizens can see as legitimate is the best way to go. And part of what such procedures would surely make clear is just how outrageous bad the Cheney-Bush process has been.

For additional comments on the Cheney interview, see Memeorandum.

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