Balkinization  

Saturday, February 25, 2006

The Definitive Fox News Screen Cap

Marty Lederman



(Hat tip: Opinio Juris.)

Friday, February 24, 2006

But Jack, Abuse is Not Mistreatment

Marty Lederman

Jack, Jack -- you still don't get it, do you? Yes, of course this sort of abuse was promoted by Geoffrey Miller, and was sanctioned by high-level officials in the Pentagon (who told Miller, but not their own lawyers, about what was legally permissible under their nouveau theory of the Constitution).

But so what?

Apparently you have not yet reconciled yourself to the plain fact that abusive and degrading treatment, such as that described in these e-mails, is not only "humane," but is actually authorized by the Army Field Manual -- which in turn incorporates the standards prescribed for prisoners of war under the Geneva Conventions. It therefore follows that wrapping Muslim detainees in an Israeli flag and forcing them to watch gay pornography under strobe lights is humane treatment, consistent with the Geneva Conventions. Don't just take my word for it -- that's the conclusion of the Pentagon's own Schmidt Report (at least, the Executive Summary, which is all we've been permitted to see). This explains why the Pentagon spokesperson can shamelessly respond that these recent revelations are "old information" -- been there, done that.

Hey, these detainees were lucky -- at least they were not forced to wear a bra and a thong, stripped naked, and tied to a leash and forced to perform a series of dog tricks (all of which is -- repeat after me -- humane and authorized by longstanding Army rules).

So please, Jack, get with the program -- no more of this talk of "mistreatment."

Don't be distracted by the gay porn

JB

The latest revelations about prisoner mistreatment at Guantanamo Bay are both weird and sad. The weird part is that military interrogators posing as FBI agents wrapped detainees in an Israeli flag and forced them to watch homosexual pornography under strobe lights during interrogation sessions that lasted as long as 18 hours.

But that weirdness shouldn't detract our attention from the more important revelations about the far harsher interrogation methods used at Gitmo. And the sad (and far more important) point that has come to light is that the prisoner mistreatment wasn't due to isolated misbehavior by low ranking officers, as the Administration has repeatedly asserted, but went up much higher:

The documents suggest that harsh interrogation methods were approved of and encouraged by high-ranking Pentagon officials and commanders. In an internal FBI memo dated May 2004, an unidentified bureau official complained that Defense Secretary Donald H. Rumsfeld's public pronouncements about interrogation policies were misleading.

"I know these techniques were approved at high levels within DoD and used" on specific prisoners, said the official, referring to the Department of Defense. The names of the author and recipients of the e-mail were blanked out on the version obtained and released by the ACLU, and no information was provided to indicate how the author knew the techniques were authorized at top levels.

In an e-mail from May 2003, Guantanamo's prison commander, Army Maj. Gen. Geoffrey D. Miller, was described as favoring aggressive methods "despite FBI assertions that such methods could easily result in the elicitation of unreliable and legally inadmissible information."


The real story is not the U.S. military's views about gay porn but the Defense Department's attempt to avoid responsibility for policies of prisoner abuse by trying to blame mistreatment on individual soldiers. The Administration is right about one thing: prisoner abuse at Gitmo and elsewhere was ultimately due to a few bad apples, but those bad apples are in the Pentagon and in the Bush Administration itself.

Thursday, February 23, 2006

South Dakota's New Abortion Ban

JB

South Dakota's new abortion legislation has not yet been signed by the Governor. If it becomes law, it will not lead to a challenge to Roe v. Wade or Casey at the Supreme Court. Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.

Why am I so certain that something like this will happen?

First, I am assuming that Justice Stevens will not retire in the next two years. If he does, then there will be only four votes for retaining Roe and Casey, and all bets are off. Indeed, South Dakota legislators may have been banking on precisely this possibility: They may be hoping that the case won't make it from the district court to the Eighth Circuit to the Supreme Court until after Stevens leaves the Court and after his successor is appointed by a Republican President and confirmed by a Republican controlled Congress. But we have no assurances of this happening yet, so we start with the fact that five Justices (including Kennedy) will vote to uphold the basic right to abortion. If that is so, then the most likely result is that the law will be struck down in the lower courts and the Supreme Court will deny cert.

Second, assuming that Stevens remains on the Court, if the goal of anti-abortion advocates is to overturn Roe, the most likely way this will happen is by chipping away at Roe and Casey slowly over time. The 8th Circuit's decision on the Federal Partial Birth Abortion statute, on which the Supreme Court has accepted certiorari, is a far better vehicle for undermining the doctrinal foundations of Roe and Casey through a series of doctrinal distinctions. Only after the Court has heard a number of these challenges, undermining Roe's and Casey's doctrinal basis, will it be likely to accept a case that challenges Roe and Casey head on. So a statute like South Dakota's might be the basis of a full on challenge to Roe in about five years or later, assuming that the Court upholds the Federal Partial Birth Abortion law (which they may do to some extent-- more about that in a later post) and takes a series of abortion cases in the next few Terms that serve to undermine Roe.

Again, if Stevens leaves, the Court may accelerate this process, as happened when Powell retired in 1987. This led, first, to Webster, and ultimately, to Casey, which did not overturn Roe but cut back on it significantly.

Nevertheless, the South Dakota bill, if it passes, is important for its symbolic effect. It signals that (some) pro-life forces are trying, yet again, for another all out assault on Roe. To win, they will have to gain a sustained majority of public support for overturning Roe, something they do not yet have, and they will have to ensure that the Republicans stay in power so that Republican Presidents and Republican-controlled Congresses stock the federal courts with pro-life judges. (The reason why sustained public support is important is that if the public is not behind overruling Roe, the Republicans will be far less likely to appoint people who will vote to overturn Roe and Casey). On the other hand, if the next Supreme Court appointment is made by a Democrat, the pro-life cause will be set back for a time, because the swing Justice will remain Justice Kennedy. Then the most that pro-life forces can hope for is a very slow chipping away at Roe.


Monday, February 20, 2006

How the Pentagon Came to Adopt Criminal Abuse as Official Policy

Marty Lederman

In this week's New Yorker, Jane Mayer has written a must-read, definitive article laying out in great detail how certain Pentagon lawyers, led by Navy General Counsel Alberto Mora, stood up to Donald Rumsfeld and Jim Haynes in January 2003 and pleaded that the criminal conduct approved by Rumsfeld be ceased. Mora's efforts, recounted in a remarkable memorandum that he wrote to the Church Commission in 2004, brought an end to the unlawful abuse at Guantanamo on January 15, 2003. But then the efforts of Mora and others were swiftly and unceremoniously undermined by the promulgation of the April Working Group Report, which concluded that many unlawful techniques were in fact legal -- that criminal conduct, including violations of the Uniform Code of Military Justice, could be excused by authority of the Commander in Chief and through doctrines of "necessity" and "self-defense."

The most important revelation of Mora's memo, and of Mayer's piece, is this startling fact:

The Working Group itself, including Mora -- in whose name the Report was drafted -- were never informed that it was finalized and issued on April 4, 2003. Indeed, they were deceived by Pentagon General Counsel Haynes into believing that the Report had been scrapped after their persistent objections. But in fact, the final version of the Report -- based principally on the extreme legal conclusions of the Office of Legal Counsel, which had aroused persistent outrage and objection from the career lawyers in the Pentagon -- was "signed out" on April 4th and "briefed" to Geoffrey Miller before he was assigned to Iraq.

Fancy that: For weeks, Pentagon lawyers complained to Rumsfeld and Haynes that the draft Report's conclusions were legally indefensible, and that the Report would sanction conduct that is plainly criminal. Rumsfeld and Haynes simply stopped speaking to those lawyers about the initiative, and conspicuously announced to the public (in a Haynes letter to Senator Leahy) that the Pentagon's policy is to refrain from torture and cruel, inhuman and degrading treatment. This assauged the Pentagon lawyers, who had been seeking just such a policy pronouncement all along. In the meantime, the Working Group Report is finalized and issued -- unbeknownest to the Working Group! -- and Geoffrey Miller is briefed on it. Miller -- having now been informed that the criminal law is a mere trifle that cannot stand in the way of the Commander in Chief's wishes -- is then sent to Iraq to "GTMOize" the interrogation operations there and to obtain more information from Iraqi detainees. (A further note below on how Miller might have used the Working Group Report.) And what do you know?: The vast majority of the criminal abuse in Iraq occurs between Miller's arrival and December 2003. (In December, new OLC head Jack Goldsmith informed the Pentagon that it should no longer rely on John Yoo's legal analysis.)

Coincidence?

Rumsfeld and Haynes chose to brief Miller on the Working Group Report -- but to keep its existence secret from the lawyers who comprised the Working Group itself, after they complained that it was sanctioning criminal conduct. Moreover, Rumsfeld and Haynes had expressly approved criminal coduct at GTMO back in December 2002. And Mayer's piece, together with the JAG memos from early 2003, demonstrates beyond any doubt that the top officials in the Pentagon welcomed OLC's legal advice that it was permisisble to employ interrogation techniques prohibited by criminal law and longstanding DoD policy -- and they were insistent that such legal advice form the basis of the Working Group Report, notwithstanding the serious objections of career DoD lawyers. Finally, recall the Schlesinger Report's finding that somehow, by hook or by crook, the Rumsfeld-approved directives from GTMO, which the Pentagon had ostensibly reneged in January 2003 when Mora threatened to draw attention to the matter, later "circulated" freely to Afghanistan and then to Iraq.

Just as with the 2002 OLC Torture memo, anyone in the Administration who might have had knowledge of the legal difficulties -- and who might have complained that the interrogation policy was on shaky legal ground -- was cut out of the loop. The only ones who were informed of the governing legal conclusions were those assigned to oversee the interrogations. These dots are not too difficult to connect.

Which leads to another part of this scandal that should not be overlooked: The Church Commission chose not to connect them. During his investigation of these events, Admiral Church was given the Mora memo, the JAG memos, the OLC documents, and much more. He also presumably interviewed officers such as Mora and Miller. Therefore he has known for quite a while that Miller was briefed on the Working Group Report -- but that Mora, et al., were not even told that it was finalized. He also likely knows much more than he has let on about who briefed Miller, and how the legal judgments in the Working Group report were transformed into operational policy in Iraq. The fact that Church's Report, and, more importantly, the underlying documents supporting that report, including the various interrogation policies issued in Afghanistan and Iraq in 2003-2004, have not yet been made public -- and that the Congress has not made any effort to disclose those documents -- is, as far as I can tell, indefensible.

What I've written above barely scratches the surface. For anyone interested in the torture and abuse scandal, Mayer's piece and Mora's memo are indispensible reading. So go and read them.

For those interested in further details of the torture scandal as it relates to events in the Department of Defense, GTMO, Iraq and Afghanistan, see Posts Nos. 6, 11, 18-22, 25-28, 34-35, and 38, under my name over at our "Anti-Torture" Page.

NOTE on the "migration" of GTMO techniques to Iraq:

The Executive Summary of the Church Report -- which is all that has been made public -- reports that on September 14, 2003, Lieutenant General Ricardo Sanchez published the first CJTF-7 interrogation policy for Iraq, a policy "heavily influenced by the April 2003 JTF-GTMO interrogation policy, which MG Miller had provided during his visit." We don't know precisely which April 2003 GTMO "policy" influenced Sanchez's Iraq policy. In addition to the April 4th Working Group Report, Secretary Rumsfeld promulgated a more moderate memoradnum on April 16, 2003. Rumsfeld's memo approved only 24 of the 35 Working Group techniques, and reiterated that they must be applied "humanely." As we now know, the promise of "humane" treatment was worthless, since DoD considers virtually any technique, no matter how degrading and grotesque, to be "humane." Still, if Rumsfeld's memo were read narrowly, and if interrogations were limited to only what that memo approves, most of the abuse in Iraq would never have occurred. I suppose it is theoretically possible that Miller was instructed to adhere strictly to Rumsfeld's memo, and that Miller advised Sanchez to abide strictly by the letter of that memo. But I doubt it. Why, in that case, was Miller briefed on the much more aggressive legal conclusions of the Working Group Report? And why, when Sanchez promulgated his Iraq interrogation policy, did CENTCOM's Staff Judge Advocate almost immediately conclude that it was "overly aggressive"?

Sunday, February 19, 2006

After Neoconservatism

JB

Francis Fukayama's autopsy of neoconservatism is well worth reading, and makes many sensible points about the direction that American foreign policy should now take. What struck me though, in reading it, was how many of his claims about what was wrong with the Bush Administration's policies were available in 2001, and, indeed, were stated over and over again by critics of the Administration in the run up to the Iraq war. People in power simply didn't want to listen, or if they did listen, they discounted the advice because they were completely convinced of the correctness and righteousness of their own world view. They ridiculed their critics as naive, cowards, sore losers, weak-willed conciliators, unconcerned with America's national security, and sometimes even as traitors. And much of the country, which likes strong leadership, simply went along, trusting that its leaders had the knowledge, the wisdom, and the expertise to back up their bluster.

Fukayama makes the excellent point that neoconservatives were perhaps seduced by the ease with which Communism fell in the late 1980's and early 1990's. The fall of Communism was, after all the great confirmation of neoconservatives' fervent anti-communism and their belief that promoting American ideals of democracy and freedom could make the world better. But that very example also shows why the Bush Doctrine was so deeply unrealistic. The fall of communism began with Truman's policies of containment in the late 1940's, which were continued with various fits and starts along the way by every U.S. President thereafter for 40 more years. Only after a long and sustained strategy of opposition and containment, in which military force played only one role (and often, as in Korea and Vietnam, not an entirely successful one), did Soviet-style Communism finally give up the ghost. Neoconservatives were right to believe that it was worth fighting the Cold War, but they had forgotten why it was called a "cold" war-- that it did not primarily rely on the use of direct military force to topple your enemy.

That does not mean that the best way forward is the model of the Cold War in all of its aspects. The current struggle is different in many respects. What the failure of neoconservatism does teach us is the inevitable limits of an ideological approach to foreign policy, and indeed, to human betterment generally. Neoconservatives first emerged as disillusioned leftists who criticized the naivete of American liberalism, arguing that it was not enough merely to have good intentions to make the world better place; that society was far more complex than human foresight could comprehend, and that direct and massive interventions into social arrangements would inevitably produce unintended consequences. How ironic that this lesson of the first generation of neoconservatives was lost on the next generation, who boldly, blindly, and smugly led the United States into a foreign policy disaster.


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