Bits & Pieces

If you have any doubts that waterboarding is torture, take a look at this article from Salon which summarizes the contents of internal CIA documents recently released.

The documents … lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

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One of the more interesting revelations in the documents is the use of a saline solution in waterboarding. Why? Because the CIA forced such massive quantities of water into the mouths and noses of detainees, prisoners inevitably swallowed huge amounts of liquid – enough to conceivably kill them from hyponatremia, a rare but deadly condition in which ingesting enormous quantities of water results in a dangerously low concentration of sodium in the blood. Generally a concern only for marathon runners , who on extremely rare occasions drink that much water, hyponatremia could set in during a prolonged waterboarding session. A waterlogged, sodium-deprived prisoner might become confused and lethargic, slip into convulsions, enter a coma and die.

Therefore, “based on advice of medical personnel,” Principal Deputy Assistant Attorney General Steven Bradbury wrote in a May 10, 2005, memo authorizing continued use of waterboarding, “the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatremia.”

The entire range of techniques used by the CIA and explicated in the article is beyond sickening and horrifying. I cannot comprehend how this country could have allowed this to have happened, and to have planned the torture sessions in a careful and systematic manner to enhance the discomfort and terror of the victim.

How can the Obama administration continue to take the position that a criminal investigation of these activities is not essential to restore our country to the rule of law, both domestic and international?

To me, the death of a trainer at SeaWorld by the acts of a captive killer whale highlight the problem with using animals purely for human entertainment.  It is wrong, both morally and practically, to imprison a animal meant to cruise the seas in a cement tank solely to make money on displaying that animal. When the animal is a dolphin (yes, despite the name Killer Whales are dolphins) and therefore highly intelligent it is even worse. It is torture, pure and simple. And there is no sufficient justification for such abuse.

Susan Orlean agrees:

I hate to say this, but I loved seeing Shamu perform at SeaWorld last Christmas. Seeing an orca rise up out of a pool in balletic rhythm with a trainer, feeling the seismic thuds as he hit the water, and watching him power his way through the water was stirring and astonishing. Afterward I felt awful. There is probably some valuable research that goes on at water parks, and perhaps audiences who come away as stirred and astonished as I was will be inspired to join a whale group or take up an environmental cause. But none of that balances out the bigger issue, which is that whales don’t belong in captivity, and certainly not in amusement parks.

Further, the practice of training killer whales for pure entertainment is also dangerous for the trainers. Read this chapter from The Peforming Orca: Why the Show Must Stop, part of the background material for a program on PBS called A Whale of a Business. Excerpt:

Since the first orcas were kept captive in the 1960s, there have been numerous “accidents” with trainers, most of which were covered up. Those that have come to light were mostly revealed by disenchanted trainers or members of the public who witnessed the accidents during a show. Marine park public affairs directors always played down such incidents, calling them bizarre accidents, and in some cases denied they had occurred. In recent years, with the proliferation of cheap video cameras, a number of incidents have been recorded. They range from bitings and collisions to near drownings when whales have held trainers underwater. Many of these dangerous incidents happened when the trainers were riding whales around the pool. Some former trainers such as Graeme Ellis believe that orcas, in general, do not like to be ridden. “They may tolerate it when they’re young or new to captivity,” says Ellis, “but later, it can lead to problems.” Yet most marine parks still feature trainers riding orcas during the shows. Only Sealand and the Vancouver Public Aquarium in Canada, Miami Seaquarium in the USA, Marineland in France and Taiji in Japan no longer allow trainers to ride the whales. In recent years, fewer trainer accidents are known to have occurred at these establishments compared to parks that feature in-the-water work. Yet, there have been some injuries and the most serious incident of all occurred at Sealand.

Update: Alexander Cockburn writes that using Orcas for entertainment purposes is a form of slavery.

Call him, just for now, Spartacus. He was two years when the slavers captured him in 1982 and hauled him off to the little town of Victoria, on Vancouver Island, British Columbia, in the far Canadian west. And there he met his fellow slaves, Nootka and Haida. Day after day in slave school they learned their tricks. Day after day, they did their act for the paying customers. And then, on February 20, 1991, in the tank operated by Sealand of the Pacific, the three struck back at their captors.

Okay, not Spartacus, but an orca whale – Tillikum, the one who drowned 40-year old Dawn Brancheau this week in the Shamu tank at SeaWorld, Orlando, after grabbing her by her pony-tail.

Tillikum was caught off Iceland. Nootka and Haida, both female, were seized in the Pacific. In fact Nootka was the third orca by that name to be bought by Sealand. The first two died within a year of their capture. At that time enslaved orcas had a life expectancy in captivity of anywhere from one to four years. These days they do a bit better. In wild waters, orcas live to be anywhere from 30 to 60.

I have always been on the record, in fact, since 2003, with the concept of living our values. And I think that whenever we’ve perhaps taken expedient measures, they’ve turned around and bitten us in the backside. We decided early on, in the 101st airborne division, we just said, we decided to obey the Geneva Conventions…

In the cases where that is not true [where torture takes place or international human rights groups aren't granted access to detention sites] we end up paying a price for it, ultimately,” he added. “Abu Ghraib and other situations like that are non biodegradable. They don’t go away. The enemy continues to beat you with them like a stick…. Beyond that, frankly, we have found that the use of interrogation methods in the army field manual that was given the force of law by Congress, that that works.

– General David Petraeus, commander of U.S. forces in the Middle East and South Asia

What can one say? The ethics review of the opinions issued by John Yoo and Jay Bybee conducted by the DOJ Office of Professional Responsibility concluded that the two should be referred to their state bar associations for possible discipline. However, that report was overruled by a career lawyer within the DOJ. As the New York Times notes:

Some of the brutal interrogation methods that Mr. Yoo and Mr. Bybee approved for use on Qaeda prisoners, including wall-slamming and the near-drowning of waterboarding, had never before been authorized in American history, and the United States had condemned such treatment as torture and abuse when used by other countries.

History will be the ultimate judge of these two and the actions their opinions authorized.

Update: The full report (save for some shameful redactions by the government) is available here.

Here is a quote of what Cheney said over the weekend on national TV:

I was a big supporter of waterboarding.

Jonathan Turley points out this is a very dangerous thing to say, since waterboarding is a crime under international law.

We have now come to this: a Vice President who feels perfectly comfortable in bragging out his support for a torture program. It is a moment that is more of an indictment of Obama than (the unindicted) Cheney. It is fruit that comes from an Administration that chose politics over principle — even at the cost of precedent forged in the Nuremberg trials and the Geneva Conventions. Cheney’s statement should be a moment of unspeakable national shame.

Andrew Sullivan has more:

Either this country is governed by the rule of law or it isn’t. Cheney’s clear admission of his central role in authorizing waterboarding and the clear evidence that such waterboarding did indeed take place means that prosecution must proceed.

Cheney himself just set in motion a chain of events that the civilized world must see to its conclusion or cease to be the civilized world. For such a high official to escape the clear letter of these treaties and conventions, and to openly brag of it, renders such treaties and conventions meaningless.

And where is the United States Justice Department in all of this? Why are they not enforcing the law or at least investigating whether a crime has been committed, given this admission by the former Vice-President?

Update: More from Scott Horton at Harper’s Magazine:

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?

Glenn Greenwald, writing in Salon, points out that if a government asserts that someone is a “terrorist” that does not mean that the accused in fact is a terrorist. The idea that if a claim of “terrorist” is made means anything can be done to the accused (torture, indefinite imprisonment, deportation, etc.) is what helps support the use of torture among a large number of Americans. This despite the fact that torture is both illegal and immoral. It is particularly galling that many on the right (but including a growing number on the left), who claim to be against government interference in the private sector because of alleged governmental incompetance, seem to be quite willing to believe that no claim of “terrorist” can ever be wrong.

The whole point of the Bush-era controversies was that — away from an actual battlefield and where the Constitution applies (on U.S. soil and/or towards American citizens wherever they are) — the Government should have to demonstrate someone’s guilt before it’s assumed (e.g., they should have to show probable cause to a court and obtain warrants before eavesdropping; they should have to offer evidence that a person engaged in Terrorism before locking them in a cage, etc.).  But to someone who equates unproven government accusations with proof, those processes are entirely unnecessary.  Even in the absence of those processes, they already know that these persons are Terrorists.  How do they know that?  Because the Government said so.  Even when it comes to their fellow citizens, that’s all the “proof” that is needed.

This despite repeated proof to the contrary.

After months of delay the Office of Professional Responsibility report regarding the legal advice provided to the Bush administration is about to be released. Newsweek reports:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The Obama administration needs to conduct a full and open investigation of both the “legal” basis for Bush administration torture and the actual practice of torture. In order for change, there must be a full revelation of the way the country adopted clearly immoral behavior in response to terrorism.

More from the ABA Journal, and this from Andrew Sullivan:

The details of this critical report and the way it was handled at DOJ are little short of infuriating. Here is a critical report whose conclusions were already clear months ago: that Yoo, Bybee at al were guilty of flagrant incompetence in assessing the law in order to allow their political masters to torture at will. And yet, out of some sort of tradition, DOJ hands over the final version to a 70 year-old career Justice Department official who allowed former DOJ officials to dispute and review the report again and again, and then allowed its central conclusion to be watered down. It is one more sign – along with the blanket dismissal of the serious allegations of misconduct at Gitmo – that the Obama administration is circling the establishment wagons on defending Bush era torture and war crimes. They seem either a) incapable of understanding the gravity of what went on or b) deliberately refusing to tackle clear violations of the law out of the usual political cowardice.

The case of Maher Arar, a Candadian citizen, is appalling. David Cole, writing in the current issue of The New York Review of Books, outlines the terrible injustice done by the United States to this man, and the shameful failure of our court system to provide justice for violations of national and international prohibitions on torture.  Here are the opening paragraphs, but read the entire story for yourself if you care about the duties of the United States that have been destroyed in the name of the war on terror

In the fall of 2002, Maher Arar, a Canadian citizen on his way home from Tunisia, was pulled out of line by US officials while changing planes at New York’s John F. Kennedy Airport. He was locked up for twelve days, much of that time incommunicado, and harshly interrogated. When he was finally allowed to make a phone call, after a week in captivity, he called his mother in Canada, who found him a lawyer.

The lawyer saw Arar on Saturday. The very next night—a Sunday evening—immigration officials held an extraordinary six-hour hearing starting at 9 PM, orchestrated from Washington, D.C. When Arar asked to have his lawyer present, they told him that she had chosen not to participate in the hearing. In fact, the only “notice” they had provided was to leave a message on the lawyer’s office voice mail that Sunday night. She got the message Monday morning, and immediately called the immigration service. They told her, falsely, that Arar was being transferred to New Jersey, and she could contact him the next day. In fact, that night federal agents took him on a federally chartered jet to Jordan, and from there to Syria.

In Syria, Arar was handed over to intelligence officials who imprisoned him in a cell the size of a grave, three feet by six feet by seven feet. Syrian security agents tortured him, including beating him with an electric cable, while asking the same questions that FBI interrogators had been asking at JFK—was he a terrorist, was he linked to al-Qaeda, did he know various other persons thought to be associated with al-Qaeda? (The Syrian security forces are widely known for their use of torture, as the US State Department reports every year in its annual Human Rights Country Reports.) After a year, the Syrians released Arar, concluding that he had done nothing wrong.

A federal appeals court in California has denied immunity to a police officer who tasered a driver stopped for driving without a seatbelt. The driver posed no physical threat to the officer. From the New York Times:

In a vividly worded opinion issued by the court this week, Judge Kim McLane Wardlaw described a “bad morning” for Carl Bryan, a 21-year-old Californian who drove over large stretches of Southern California to retrieve car keys mistakenly taken by a friend and ended up being Tasered by a Coronado, Calif., policeman and breaking four teeth when he fell to the ground.

The inappropriate use of tasers is widely known. It is about time that some sort of national standards are set.

Update: More details from Jonathan Turley, who’s blog I highly recommend.

The Constitutional limitations on the Executive branch continue to be ignored, despite President Obama’s promised of change. Gary Wills, writing in the New York Review of Books catalogs the continued damage to the Constitution. The entire essay is worth a read.

George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.

But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

And while you are there, read The Torture Memos: The Case Against the Lawyers, by David Cole.

There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent. [emphasis added]

– Statement of US interrogator to al-Rabiah during his interrogation, quoted by the judge on page 41 of the decision. This was cited in an email from a US Attorney posted at Andrew Sullivan’s blog. Take a minute and read what he has to say.

This was not a statement pulled from the transcripts of the Nuremburg trials, nor archival evidence taken from reports smuggled out of one of Stalin’s gulags.  This was a statement made by an agent of this government less than 7 years ago to a detainee.  The enormity of that is nearly incomprehensible.

But even worse – far worse – is the fact that the government would nevertheless still seek to convict based on the resulting confession.

To those of us who read that passage and who vowed and make it our vocation to serve and protect the Constitution of the United States, that fact is a gut-punch.

Andrew Sullivan tackles US torture head on. This is not alleged torture, nor is it “enhanced interrogation techniques”. Such torture has now been confirmed in a Federal court judgment:

We now know that torturing a human being to get proof that he deserved to be tortured was not just a theoretical fear of mine. It happened. If it happened once, it almost certainly happened more often. The temptations are just too great; and when you have clear evidence that Bush and Cheney knew some inmates to be innocent but tortured them anyway to manufacture evidence of their guilt, we know that there was nothing in the character of those two men to restrain the true nightmare scenario.

Go here and read Scott Horton’s vital account of what the case of Fouad al-Rabiah tells us about the abyss the last administration threw us into. Here is the actual judgment, which provides a meticulous and unanswerable account of the extent to which the torture power corrupted the American government in ways usually found in totalitarian regimes. Read too how the Obama administration – far from turning the page on this matter, as it openly pledged to do – is up to its neck in the same disgrace, pursuing charges against a man they also knew was plainly innocent of all charges, simply to prevent embarrassing the government.

Obama had a chance to draw a line between his administration and the last. While he deserves credit for ending the torture going forward, he has essentially embraced and defended the torture of the past. Which makes him and Eric Holder complicit in it as well. May God and history forgive them. I sure won’t.

And here is a release from the law firm that defended the victim.

Shameful.

Several former directors of the CIA have asked the Obama administration to drop the Department of Justice inquiry into detainee torture. Why?  They give three reasons: (1) charges should not be brought based on a change in administration, (2) continuing the investigation would help Al Qaeda, and (3) the results of the investigation may cause foreign intelligence agencies to distrust the US to keep secrets.

Each of these reasons is no reason at all. In terms of the new administration, it seems pretty clear to me that the prior administration’s basis for approving torture was incorrect and immoral. One reason administrations change in a democracy is to allow faulty policies to be changed. In this case, given the extreme secrecy of the Bush Administration, digging in to find the true story of what happened is central to helping the country avoid such vile actions in the future.

How it would help Al Qaeda to apply American justice to American citizens is beyond me. And even if prosecutions to help Al Qaeda, restoring the country to a sound moral footing is worth the cause. Any damage done can be laid at the feet of those who approved the American use of torture.

Finally, I am more interested in the US citizens being able to trust our government follows the law even if that means some disclosure clandestine interactions with foreign governments (who presumably have their own torture problems to worry about, at least if they are governments to whom we moved detainees for such purpose).

One approach that might help mitigate the issues raised by the former CIA directors would be to re-focus the investigation away from the front line interrogators and dig in to the real issues as to who devise, and ordered, the use of torture at the higher levels. In some respects, the front line operations are less important going forward that what sort of flawed decision-making allows the entire mess to happen.

The New York Times calls for a full investigation of torture programs conducted by the Bush administration, under the guidance of Dick Cheney.

In Mr. Cheney’s view, it is not just those who followed orders and stuck to the interrogation rules set down by President George Bush’s Justice Department who should be sheltered from accountability. He said he also had no problem with those who disobeyed their orders and exceeded the guidelines.

It’s easy to understand Mr. Cheney’s aversion to the investigation that Attorney General Eric Holder ordered last week. On Fox, Mr. Cheney said it was hard to imagine it stopping with the interrogators. He’s right.

The government owes Americans a full investigation into the orders to approve torture, abuse and illegal, secret detention, as well as the twisted legal briefs that justified those policies. Congress and the White House also need to look into illegal wiretapping and the practice of sending prisoners to other countries to be tortured.

Chalk this one up to a real surprise. Alberto “Whatever the President Wants” Gonzales comes out in favor of Attorney General Eric Holder’s decision to investigate a limited number of torture accusations.  Sort of.

We worked very hard to establish ground rules and parameters about how to deal with terrorists. And if people go beyond that, I think it is legitimate to question and examine that conduct to ensure people are held accountable for their actions, even if it’s action in prosecuting the war on terror.