Balkinization: Proof Positive that the Intelligence Oversight System is Hopelessly Compromised

Comments:

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# posted by

Marty:

It is pretty obvious that Harman and every other member of both parties who were briefed on the CIA interrogation program and the videotapes neither believe that the program is unlawful or unwise. Rather, they all appear to be supporters of the program.

Harman's support of the legislation barring "torture, cruel, inhuman, or degrading treatment" and continued silence about the CIA interrogation program either means that she is a complete hypocrite or that she does not believe that the legislation prohibits the CIA interrogation program. I have already noted that this language is too vague to have an objective application, so I will assume that Harman shares my view and is not a complete hypocrite.

Harman's letter suggesting that the CIA should not destroy the videotapes does not indicate that she believes that this action would in any way be unlawful. Rather, she was concerned that it might look bad politically.

Your suggestion that Harman was cowed from acting by the threat of not receiving CIA briefings is not very persuasive. If Harman and her colleagues actually thought that any of this was illegal and disclosed the alleged unlawful activity in legislation to impeach the President, do you honestly think that CIA would stop providing the co chair of the House Intelligence Committee briefings? Such a petty act only makes them look like they are covering up. Usually, in these political kefluffles, the cover up ends up being the only crime and that would be the case in your scenario.

Your suggestion that Harman is too stupid to know how to apply the laws for which her committee is tasked with oversight without legal briefing by the executive is really quite an insult. Rep Harman served as chief counsel and staff director for the Senate Judiciary Subcommittee on Constitutional Rights, special counsel to the Department of Defense and Regent's Professor at UCLA. She is more than qualified to make these determinations for herself. Harman appears to simply disagree with you.

BTW, Harman's letter was properly classified because its refers to the existence of a top secret intelligence gathering program. Classification not only prevents the disclosure of means and methods of intelligence gathering , but also the existence of intelligence gathering programs.

# posted by

Bart DePalma : 6:30 PM

I never thought I'd be the one to defend Jane Harman -- she's my Congresswoman and I've written her some very strong letters on this and FISA -- but I think you're a little unfair to her. Not a lot unfair, but a little.

I think it's easy for us, as lawyers, to recognize the absurdity of the legal smokescreen the Adminstration put up about these issues. In my experience, though, most laypeople, including members of Congress, are somewhat intimidated by the law and have no idea how to approach it. Much the way I feel about, say, heart surgery or my car engine. When I take my car in for repairs, I don't tend to question the recommendations simply because I have no basis for doing so.

That, I think, is what happened with Harman. Now, I have no idea what "techniques" she was told about. Even someone unfamiliar with the law of torture would recognize the rack as torture, but waterboarding is less well-known and not as intuitively obvious to someone unfamiliar with how it actually works, with its history, and with the legal analysis of torture. If, as I suspect, she understandably but wrongly accepted the Administration at its word about the legality, there'd have been no reason for her to have pursued the other steps you mention.

What this says to me is that, again, the real onus is on the Administration. By passing off phony legal analysis as genuine, it effectively lied to Harman and her colleagues. In retrospect, she could have done better. But let's not lose sight of the real evil-doers.

# posted by

Mark Field : 6:33 PM

mark:

What makes you think that CIA lied to Harman about what interrogation techniques they were using?

Those techniques are largely public knowledge now and Harman does not claim that CIA lied to her about the nature of these techniques.

If the CIA are "evil doers" for breaking KSM and Zabaydah with these techniques, then Harman is equally "evil."

The interesting question is whether you will be voting for Harman in 2008?

# posted by

Bart DePalma : 6:51 PM

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# posted by

marginalized : 7:03 PM

Regardless of personal or political consequence, Jane had a duty and an oath to uphold. She failed, horrifically, at both.

If, and when, we as a country choose to hold a modern-day Nuremberg trial, Jane, among many others, deserves the opportunity to hang for her unwise choice between moral imperative and political expediency.

# posted by

marginalized : 7:22 PM

mark:

What makes you think that CIA lied to Harman about what interrogation techniques they were using?

Those techniques are largely public knowledge now and Harman does not claim that CIA lied to her about the nature of these techniques

Hold on. Mark didn't claim that the CIA lied to Harmon about what techniques they used, but rather that she "accepted the Administration at its word about the legality" of those techniques. This claim is apparent in Harmon's letter in the very first paragraph:

"At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review of lawyers at the CIA, DoJ, and the NSC and found to be within the law."

She follows with: "it is also the case, however that what was described raises profound policy questions..."

I agree with Mark that this is an issue of trust and experience. Harmon trusted the legal experts of three separate agencies of the government to come to a valid legal approval of the program. At the same time, she clearly demonstrated her doubt that such practices were consistent with American principles and official policies.

You seem to make the argument that Harmon has forfeited her position by failing to express any reservations publicly. Similarly, others argue that Harman is equally to blame for any abuse that occurred because she failed to expose "possible criminal behavior."

However, if we take her at her word--that she believed that the legal analysis was solid, even if the political and moral implications were still objectionable--why would we expect her to expose criminal behavior at all?

Marty asks about the things that are NOT in the letter, but almost all of them are dependent upon an understanding that what she was briefed about was illegal. If she didn't question the legality out of deference to presumed experts in the field in the CIA, DoJ, and NSA, why should she have followed any of those paths?

She clearly had moral objections, and her record does show continued efforts in correcting what she explicity designated a terrible moral and political trajectory.

So, I agree that the letter may be "not very flattering" to Harman, but only if we place a Marty Lederman or Scott Horton in her shoes.

# posted by

PMS_CC : 7:34 PM

Prof. Lederman:

... Now that the Harman/Mueller letters have been declassified,...

Just to keep confusion to a minimum, it was Scott Muller, then General Counsel of the CIA, not Robert Mueller, current FBI Director.

Cheers,

# posted by

Arne Langsetmo : 9:09 PM

Jane Harman has a law degree from Harvard freaking Law School. Mark Field's claim that she was some hapless lawperson bamboozled by slick lawyers is simply a lie.

# posted by

sean : 9:20 PM

pms:

Harman is not some naif who needs to rely upon the representations of experts, she IS one of the experts.

Harman is a Harvard Law grad who served as chief counsel for the Senate Judiciary Subcommittee on Constitutional Rights, special counsel to the Department of Defense and Regent's Professor at UCLA International Relations before serving over a decade on the Intelligence Committee.

The woman can read and understand a statute, She can also do her own legal research in the subject if she had any question as to the legality of the program.

It is a truism that you can determine where a person really stands based on what they do in private. Based on this measure, where do you think Harman really stands?

# posted by

Bart DePalma : 9:20 PM

I think it is appropriate to give congress and the other two branches a chance to modernize oversight in the information age; I agree with the author that oversight has been diluted despite the vagaries of inevitable politics. I appreciate JB's and SLevinson's posts on the surveillance problem, as well, but differ from SL's proclivities to propell processes toward reinventing the constitution. SHorton's few articles here about Weimar's sorry lessions are germane, not that the current standoff is ethnic based, but the pernicious impact of human polities even in a very good constitutional system like ours with a strong executive, can lead to violations of humane international treaties we have tried to foster as the petri dish of modern civil relations among countries. There is going to be a thread of difficult topic matter whenever we tilt the committee review processes toward addressing the socioeconomic blended message of the current array of terror entities toward a solution which will preserve the integrity of the establishment clause central to our foundation; that was an issue in the seventh century and remains outside of the scope of our national structure. Self exculpations are present in any investigation, but we are at an important promontory of examining how to preserve and enhance oversight. Unfortunately, much of modern geopolitical history is rooted in secret barter, and the US has followed that trend. So, perhaps it is good that this narrow investigation over tapes will begin with looking at the fragmented condition of the intell committee oversight in the legislature.

# posted by

JohnLopresti : 10:20 PM

Professor Lederman

As I have indicated before, I agree with you that there are serious deficiencies in the current system of intelligence oversight. However, criticism of that oversight has to take into account the actual realities that face Members of Congress charged with conducting it.

The second sentence of Harman’s letter states “I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions.”

In your world, there may be no need to balance security and liberty, or to take into account the possibility (however remote it might seem five years later) that congressional interference with ongoing intelligence activities could facilitate another catastrophic terrorist attack. In your world, it is apparently “clear” that waterboarding is illegal (opinions from DOJ, CIA and NSA notwithstanding) and thus no need to consider such possibilities. However, Harman and other members of Congress do not live in that world.

Harman’s letter expresses strong concern about whether the interrogation techniques in question were consistent with the “principles and policies” of the U.S. and specifically asks whether the techniques have been authorized by the President. As I interpret the letter, she has strong moral and policy reservations about the use of these techniques, and is asking whether the executive branch (a) understands the extraordinary nature of what it is doing, (b) has considered fully the implications, and (c) has nonetheless determined that the national security demands it. These seem to me to be the right questions to ask. The question regarding presidential authorization is particularly pertinent because it goes to accountability and would demonstrate how seriously the administration was taking the matter.

It is completely fair to ask what Harman did to follow up on the obviously non-responsive answer from the CIA, and whether what she did or didn’t do was appropriate under the circumstances. One might also ask whether her options in that regard were unreasonably or unnecessarily constrained by the current system of intelligence oversight. But criticizing her letter for failing to take the positions or tone suggested by your post indicates to me that you are more interested in letting off steam than in actually improving congressional oversight of intelligence.

# posted by

mls : 10:53 PM

Harmon and every other member of Congress took an oath to defend the Constitution. The question I'd like her, and others who knew about it, to answer is how, exactly, did her actions after learning about the torture of U.S. prisoners square with that oath?

# posted by

RAM : 11:27 PM

The question I'd like her, and others who knew about it, to answer is how, exactly, did her actions after learning about the torture of U.S. prisoners square with that oath?

This, I think, is a very fair question.

Jane Harman has a law degree from Harvard freaking Law School. Mark Field's claim that she was some hapless lawperson bamboozled by slick lawyers is simply a lie.

Ignoring your manners, you're right that she has a law degree. AFAICT, she hasn't practiced law for nearly 30 years. That does mean that the excuse I offered has less validity, though perhaps not eliminating it entirely.

# posted by

Mark Field : 11:47 PM

Fear and evil can be indistinguishable.
Back then everybody was afraid. They were afraid if they did not show resolve against terrorists they would lose office. And of course, they were afraid of another attack on US soil.
Americans bought the who ball of wax.
Harmon is no more guilty than the rest of America for letting her fears lead her to seemingly evil, or at the least acquiescent acts. (failure to act is an act in and of itself).
This blog goes on and on about interpreting words and deeds in context.
I think a little of that is called for in this case.

# posted by

Beam me up Scotty : 11:56 PM

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# posted by

Bart DePalma : 9:18 AM

ram said...

Harmon and every other member of Congress took an oath to defend the Constitution. The question I'd like her, and others who knew about it, to answer is how, exactly, did her actions after learning about the torture of U.S. prisoners square with that oath?

Alien enemy combatants have no rights under our Constitution for Harman to defend...unless, of course, Justice Kennedy creates some out of whole cloth this term.

# posted by

Bart DePalma : 10:49 AM

I read Harman's letter and tried, in all fairness, to give her a lenient assessment. I asked myself whether, in early 2003, before just about all we've now seen had come to light, a duty of inquiry of the sort Marty raised in hindsight was apparent enough back then for her to have acted on it. Where was the toehold?

At long last a simple question directed at what proved to be the Yoo torture memo came to mind, one that even stale lawyering skills should have prompted: "How would you compare the legal arguments with those appearing in Bush v. Gore?"

# posted by

Occasional Observer : 11:20 AM

pms:

Harman is not some naif who needs to rely upon the representations of experts, she IS one of the experts.

...

The woman can read and understand a statute, She can also do her own legal research in the subject if she had any question as to the legality of the program.

Two problems here:

1. No one can be an expert in the case at hand unless they are fully aware of the legal arguments made and the facts used to support them. Neither a Harvard education nor a University of Chicago education (sadly so) provides a person with the magical ability to instantly recognize the background information used to formulate secret legal opinions of secret interrogation programs.

The question is: when Congresspeople are faced with something that they suspect is immoral (but have been assured by reputable sources is legal), should their attempt to correct the situation begin with arguing the illegality of the program? Or rather should they take steps to argue the immorality of the program--either through letters or legislation, hoping to spark policy change as a result?

2. I never claimed that she was unable to practice law or assess the arguments being used. I stated--as she states in her letter--that she left the wrangling over such legal issues to the people who had closer contact with the raw data, as well as the obligation to consider the legality of the practices. One expects a congressperson to have a variety of tasks that preclude them from doing full legal analyses of every issue they encounter; allowing specialists to do the footwork is likely a necessity in that line of work, no? That involves trust, not naivete, although Marty's comment in the update regarding credulity is certainly worth considering.

# posted by

PMS_CC : 2:19 PM

"Now that the Harman/Muller letters have been declassified, it is evident that there was no basis for classifying them in the first place."

Speaking of improperly classified material, there was an interesting interview with J. William Leonard, former director of the National Archives' Information Security Oversight Office, in Newsweek just before Christmas. He said, "A number of prosecution exhibits [in the Plame-related perjury trial of I. Scooter Libby, Cheney's former chief of staff] were annotated, 'handle as SCI.' SCI is Sensitive Compartmentalized Information, the most sensitive classified information there is. As I recall, [one of them] was [the vice president and his staff] were coming back from Norfolk where they had attended a ship commissioning and they were conferring on the plane about coming up with a [media] response plan [to the allegations of Plame's husband, Iraq war critic Joseph Wilson.] That was one of the exhibits marked, 'handle as SCI.'.. Let me give you some the irony of that. Part of the National Archives is the presidential libraries….So we're going to have documents [at the libraries] with the most sensitive markings on it that isn't even classified."

When "media response plans" can be labeled same as the most highly classified national security materials, why would you be surprised that Harman's letter wouldn't see the light?

# posted by

steveh46 : 2:49 PM

... So why would a smart leader like Pelosi select Reyes the hack over Harman? ...

Excellent question, I would like to know too. Wasting two years by having this Texas hack running the committee as important as this one is a little bit on the irresponsible side of things because it perpetuates a rather unsatisfactory state of affairs. My theory - the guy was likely the preferred choice of intelligence community and Pelosi felt she had to go with that.

Re Harman, given how the system is setup she did more that could be reasonably expected of her, change the the system if unhappy about it, not complain about her.

(people in Harman's position are told the most dirty secrets of the empire - in theory at least - so imagine what kind of surveillance she must be under to ensure than things aren't leaking out. If she went public with anything that surveillance would become basically unbearable and she would be stuck with it for the rest of her natural life. I still think though, they should be able to go public with "I heard something I'm not very comfortable with, but I cannot discuss it any further and sadly I am not in a position to really dig into it" at least, but that is not currently possible.)

# posted by

wg : 4:28 PM

If it is true that both Harman and Pelosi knew what was going on, and Harman protested and Pelosi did not, that should explain very well why Pelosi chose to replace Harman as Chair of the Intelligence Committe. Because Harman might actually stand up to the Administration and she wanted someone who would go along.

# posted by

Essayist-Laywer : 7:38 PM

Prof. Lederman:

Can we put some kind of limit, say, thirty seven or so, on the number of times a bald assertion can be tossed out here /wo any kind of support?:

Alien enemy combatants have no rights under our Constitution for Harman to defend...

Thanks,

# posted by

Arne Langsetmo : 8:02 PM

It is well known that Pelosi passed over Harman for the HPSCI chairmanship because they don't like each other. Of course, it could be that the real reason was [insert your favorite conspiracy theory here], but I am going to stick with that explanation until there is some evidence otherwise.

# posted by

mls : 8:22 PM

In your world, there may be no need to balance security and liberty

It might be useful to give some more proof of this allegation than offered than disagreement by ML in this particular instance of the balance made. Said disagreement doesn't mean what you imply it means. All or nothing. In fact, it's a pretty cheap shot.

or to take into account the possibility (however remote it might seem five years later) that congressional interference with ongoing intelligence activities could facilitate another catastrophic terrorist attack.

it is unclear, see Glenn Greenwald and others, why we should have a congressional oversight regime at all then, if "interference" in all cases (I too can use hyperbole) is so dangerous. if nothing more than a "um this seems bad" letter will threaten another attack, oversight seems pretty dangerous, huh?

In your world, it is apparently “clear” that waterboarding is illegal (opinions from DOJ, CIA and NSA notwithstanding) and thus no need to consider such possibilities.

"his" world is the "world" of c. 1900 when this miedeval "torture" technique was criticized as was the "world" of 1945 when Japanese was convicted of war crimes for such acts.

The Bush Administration says something. By what year (2003, at least, I say) do we stop to think it therefore must mean there is no reason for serious concern?

Again, Marty Lederman didn't talk out of his butt here, your ongoing attempts to continue to argue there is soooo much wiggle room about the issues at hand notwithstanding.

However, Harman and other members of Congress do not live in that world.

apparently nor does many others in Congress ... though many in the U.S. by now sorta do ... a world that is a bit more wary of the Administration and wishing to be more proactive.

while still worrying about security too.

# posted by

Joe : 10:59 PM

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# posted by

Bart DePalma : 1:09 AM

Joe

In his original post, ML appeared to be asserting that Harman’s letter was fundamentally flawed because it failed to definitively state that the CIA interrogation technique in question (I assume for purposes of this discussion that we are talking about waterboarding) constituted cruel and illegal conduct and because it failed to demand an immediate halt to this practice. He explicitly noted: “Jane Harman, in other words (and three other members of Congress), had it in her power to blow the lid on -- and end -- the U.S. torture regime in early 2003, or, at the very least, to initiate a congressional and public debate about the issue.”

In no way does my comment suggest that it was “dangerous” for Harman to write a letter raising questions about the use of waterboarding. On the contrary, I think that her letter was quite constructive and raised the right questions about the practice (questions that the administration should have already asked itself). I do think that she had an obligation to consider whether halting the practice (immediately or otherwise) would jeopardize efforts to stop the next terrorist attack. ML’s post did not take this obligation into account (hence my points that you regrettably view as “cheap shots”). Moreover, for Harman to have acted unilaterally to “blow the lid” on the use of a classified interrogation technique would have been, IMO, dangerously irresponsible.

As for the question of legality, this is a very difficult subject to discuss constructively here. I recognize that many people, including you and ML, sincerely and passionately believe that waterboarding is clearly illegal, and that opinions to the contrary, even by accomplished lawyers with degrees from the best schools, are merely rationalizations to justify a desired policy result. Many people (like Occasional Observer, apparently) believe the same thing about the result in Bush v. Gore. Or Roe v. Wade. But a paradoxical result of a system in which no entity has absolute authority to make law is that rules and practices may be treated as legal, even for long periods of time, when they are in fact illegal (or clearly illegal). See Plessy v. Ferguson.

In this case Harman was told that the lawyers responsible for analyzing the executive branch’s legal obligations had opined that waterboarding was legal. It seems apparent from her letter that she believed at the time that these lawyers had done a professional job and reached a defensible conclusion (which is not the same thing as saying that it was the only possible conclusion, the best conclusion, the conclusion that Harman herself would have reached, or the conclusion most likely to be reached by the courts). Perhaps she could have done more to follow up on this aspect of the issue, but, as a practical matter, I doubt that debating the legalities of waterboarding with John Yoo would have been a particularly good use of her time. In any event, the moral and policy questions raised by her letter were, IMO, the proper focus.

Interestingly, ML’s update to his post says that he is “not really blaming” Harman for failing to do more than she did. This leaves me a little puzzled, but perhaps it represents an acknowledgment that his initial post was somewhat intemperate.

# posted by

mls : 9:21 AM

joe said...

In your world, there may be no need to balance security and liberty

It might be useful to give some more proof of this allegation than offered than disagreement by ML in this particular instance of the balance made.

I am sure Marty has some point at which the balance tips to national security over extending further legal protections to foreign terrorists. However, I do not recall Marty even once arguing that an action needed to be taken against the enemy in order to maintain national security. Consequently, one can be forgiven for jumping to the conclusion that damage to national security is never a relevant consideration to Marty.

# posted by

Bart DePalma : 9:32 AM

I snarkily said that apparently Harman could do no more than write a letter, so no, I did not mean to imply you thought even that was a problem. But, since ML also raised the point that she did not raise a red flag (various options suggested), and I don't think that would threaten a terrorist attack etc., I found your comment that he did not weigh safety concerns dubious at best. I also think his overall discussion over the last year or two underlines he doesn't think on practical, legal and moral grounds outlawing waterboarding etc. and having more of a debate over the issues here is a threat. Again, I call cheap shot.

As to the legal matter, I find your tone and methodology a bit tedious. Your appeal to authority ("best law schools" ... well, that's conclusive) is particularly annoying. My overall point was that ML is so sure for good cause and on waterboarding in particular, history has proven him right in particular. I didn't think your comments was a fair negation of his arguments. At times, the implication is that his reasoning is quite controversial, and very open to debate, something in particular to waterboarding questionable. History but one reason for stating that claim.

As to Bush v. Gore, am I supposed to infer that those who think it a rationalization (including many who actually agree with it on pragmatic grounds) are wrong? That's a rhetorical question. And, as to your Plessy point, fine, but it still was wrong, people who continued it worthy of criticism and there was an open debate on it. An oversight role here required more in ML's eyes. The reference to Roe also is not really to point either, though I think those who dismiss it unreasoned ad hoc trash play fast and loose with the facts as well. But, simply put, Roe is more open to debate than waterboarding.

BTW, his update is ill advised. "The system" allows more ... "the accepted limitations" akin to SL's low expectations of Congress is comparable to quitting smoking. The fact it's hard and smoking has become a regular nuisance does not mean you can't stop. And, as recent years have shown, it's quite possible -- with wherewithal -- to do so. He was right the first time and his update is a bit confused (others have noted how she and others could have done more while keeping stuff confidential, etc.).

# posted by

Joe : 10:23 AM

"I do not recall Marty even once arguing that an action needed to be taken against the enemy in order to maintain national security."

No open flames! Too much straw! Quite dangerous given the flame wars prevalent on these sort of comment threads. PSA.

I kid, but seriously, I find such comments of little value to the debate. Still, some comments (on each side) is a useful indicator of some of the mind-set out there. But, a little of this goes a long way.

# posted by

Joe : 10:29 AM

As for the question of legality, this is a very difficult subject to discuss constructively here. I recognize that many people, including you and ML, sincerely and passionately believe that waterboarding is clearly illegal, and that opinions to the contrary, even by accomplished lawyers with degrees from the best schools, are merely rationalizations to justify a desired policy result. Many people (like Occasional Observer, apparently) believe the same thing about the result in Bush v. Gore. Or Roe v. Wade. But a paradoxical result of a system in which no entity has absolute authority to make law is that rules and practices may be treated as legal, even for long periods of time, when they are in fact illegal (or clearly illegal). See Plessy v. Ferguson.

This is moral nihilism. I can't understand how the reference to Plessy helps your cause. Might as well cite to slavery itself, which existed in this country far longer than segregation and with far more extensive legal and public support. Does that mean we have to take seriously arguments in its favor?

# posted by

Mark Field : 11:39 AM

Given that all civilized countries prosecute waterboarders as criminals and are bound to do so by treaty and that a formerly civilized country did so, I take GLS's statement that smart lawyers can justify this action as a good reason to take Shakespear at his word.

# posted by

EliRabett : 11:46 AM

Joe, Mark and Eli- I warned you that it would be difficult to have a constructive discussion on the issue of legality. I take your responses as confirmation.

# posted by

mls : 12:05 PM

I'll second this, this is moral nihilism of rather grossly unpleasant kind.

-----

Here is what I would do if I was in Harman's shoes.

First I would demand from all three agencies involved formal opinions produced by their lawyers. Secondly would request the explanation why waterboarding which was grounds for summarily executing Japanese in 1945 is now OK and why so-called "seven techniques" (stress position, hypothermia, hooding, etc) British delegalized 30 years ago are all of the sudden kosher again. Thirdly I would demand the number, the number of people who died as a result of those interrogation techniques, if any. And finally would demand to know if International Red Cross had access to those people, and demanded a copy of their report to our government if so.

Reading Yoo memo would necessarily lead me to the same conclusion Gonzo finally arrived at, legal junk, so junky even Gonzo saw no option other than to dump it.

This plus all those dead bodies accumulating in CIA/DoD interrogation chambers, plus denial of access to IRC, plus all those past prosecution of people who did precisely the same things, plus, last but not least, images of what happened in Abu-Ghraib would lead me to this.

Gentlemen, it appears to me you are engaged in criminal activity here, in torture, in violation of our laws and international conventions; it is now my responsibility as a citizen and as a US congressman to do everything in my power to stop it so tell me what legal options, per your lawyers, are open to me given the fact we are dealing here with a classified situation.

And I would request a meeting with my three colleagues in Congress to present my conclusions and seek their advice on the proper course of action.

She did little of above, but what little she did was much more than anybody else was willing to do. And she deserves some credit for that.

# posted by

wg : 12:07 PM

MLS Nope. The central point is that you are defending torture. There are three truths in this:

1. Water boarding is and has always been torture.

2. The Department of Justice has justified water boarding as legal for the US.

There are some conclusions that flow from those two facts. They are not pleasant to contemplate.

# posted by

EliRabett : 12:42 PM

I think we can all agree with Honorable DePalma that terrorists are mean
people. The argument seems to rest on the level of evidence required
to establish identity.
joanandfarris@windstream.net

# posted by

Farris W : 12:43 PM

joe:

BD:"I do not recall Marty even once arguing that an action needed to be taken against the enemy in order to maintain national security."

No open flames! Too much straw! Quite dangerous given the flame wars prevalent on these sort of comment threads. PSA.

The theme of the Harman letter was how to best balance our national security and the liberty interests of interrogated foreign terrorists. Marty's attack on Harman's balancing test begs the question of whether he himself balances our national security and the liberty interests of interrogated foreign terrorists. This is a perfectly topical and legitimate question and not a flame.

IMHO, Harman misspoke when she spoke of a balancing test involving "liberty interests." Foreign enemy combatants have no liberty interests whatsoever under our laws. Rather, foreign enemy combatants are extended a quantum of privileges when they are captured. Privileges are not rights and must be earned through reciprocal conduct. In all cases, such privileges must be balanced against our national security.

# posted by

Bart DePalma : 12:57 PM

BD writes: "Rather, foreign enemy combatants are extended a quantum of privileges when they are captured."

Apparently, the ability to confront one's accusers in a court of law is now a privilege, rather than a right.

# posted by

Cxyz : 1:18 PM

Joe, Mark and Eli- I warned you that it would be difficult to have a constructive discussion on the issue of legality. I take your responses as confirmation.

It's not difficult at all. This is not a close call; it's why God invented Rule 11.

Now, if you want to be honest here, you can admit that waterboarding is now and has been illegal and considered as torture for a long time. You can then argue that the merits of waterboarding are such that the law should be changed.

What you canNOT do is pretend that there is "serious debate" about existing law using the "everyone is entitled to their own opinion" nonsense. That's the same level of disingenuity as the "teach the controversy" crap we get from creationists.

# posted by

Mark Field : 2:03 PM

mark field said...

Now, if you want to be honest here, you can admit that waterboarding is now and has been illegal and considered as torture for a long time. You can then argue that the merits of waterboarding are such that the law should be changed.

What you canNOT do is pretend that there is "serious debate" about existing law using the "everyone is entitled to their own opinion" nonsense.

Of course you can. Indeed, your points are easily distinguishable.

1) There are a wide spectrum of different techniques which you are lumping into "waterboarding." They range from force feeding water into the subject to cause serious bodily injury to covering the subjects mouth with cellophane and running water over the celophane for a moment or two to induce panic. The former has been declared a war crime in the past, the latter which the CIA uses has not been ruled upon.

2) Differing enemy combatants have differing privileges under the law of war. You cannot impose any coercive interrogation on regular uniformed soldiers or civilians of a power which follows the law of war. There is not such restriction against unprivileged enemy combatants who do not follow the laws of war. Thus, the war crimes trials of Japanese for their actions toward our privileged POWs are not precedent for unprivileged al Qaeda.

3) You are also comparing different laws. The slaps on the wrist we gave Army personnel for imposing a "water cure" on Moro civilians in the Philippines during the Moro Insurrection were political show trials based on alleged violations of Army regs providing for good order and discipline in the forces. The Vietnam incident was contrary to specific army regs.

The CIA has no such prohibitions. Rather, these techniques were approved up and down the executive and were at least tacitly approved by briefed members of Congress like Harman.

In this case, we are dealing with the treaty and statutory definition of torture as the intentional infliction of severe physical or mental pain and suffering, where the mental pain must be prolonged.

To start, it is scientifically impossible to objectively define a what is and is not severe pain or suffering. Thus, the statute is too vague to objectively apply. Its application is completely subjective.

Even under its own subjective terms, the definition of torture does not appear to cover a technique which does not impose any quantum of physical pain and suffering and whose imposition of several seconds of panic is not prolonged mental pain or suffering.

BTW, Marty's attempt to distinguish pain and suffering to argue that waterboarding imposes physical suffering fails because suffering is simply the state of undergoing pain over time. Without pain, there can be no suffering.

As you can see, the argument degenerates rapidly down to subjective opinions and self rightousness as to whether waterboarding is what one should consider to be torture rather than an objective certainty derived from the application of actual law with actual facts.

# posted by

Bart DePalma : 3:13 PM

john said...

BD writes: "Rather, foreign enemy combatants are extended a quantum of privileges when they are captured."

Apparently, the ability to confront one's accusers in a court of law is now a privilege, rather than a right.

You are confusing constitutional due process rights applying to the People and those aliens who have joined the citizenry with the laws of war for foreign enemy combatants warring against the People. The latter simply provides for a status hearing, not a full blown trial.

# posted by

Bart DePalma : 3:16 PM

Bart Depalma is arguing that

1. Foreign enemies are subhuman
2. Anyone who is not a US citizen in the custody of the US is a foreign enemy
3. They can be slaughtered and tortured at well.
4. God will know his own

Welcome to the Holy Wars. Don't object when your kid's head is cut off.

# posted by

EliRabett : 5:47 PM

It would serve DePalma well to read one of these days the Universal Declaration of Human Rights a set of principles accepted by all civilized nations.

He should start with Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

This Mr. DePalma applies to EVERYBODY, you and me, your kid and theirs, Muslims and non-Muslims, Arians and non-Arians, white and non-white, Americans and non-Americans, CIA interrogators and their interrogees, unsuspected and accused, ....... .

Among those rights are:

(3) Everyone has the right to life, liberty and security of person.

(5) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

(10) Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Again those rights are absolute, binding Syrians as well as us, they apply to you and your kid when held in Syrian prison as well to any Muslim held in ours. Sleep on it.

# posted by

wg : 7:36 PM

-wg- said...

It would serve DePalma well to read one of these days the Universal Declaration of Human Rights a set of principles accepted by all civilized nations...

(3) Everyone has the right to life, liberty and security of person.

You a misapplying a document which, like our Constitution, is supposed to apply to the relationship between the government and its citizenry, not between the combatants in a war.

The objective of war is diametrically opposite to the normal relationship between a government and its citizenry.

There is no right to life, liberty and security of person between combatants in a war.

Rather, the objective of war is to murder, wound and imprison the enemy and to destroy his property until all the enemy is murdered or surrendered.

Thus, the application of the Constitution or, in your case, the Universal Declaration of Human Rights to war simply has no basis.

# posted by

Bart DePalma : 9:29 PM

Bart,

You keep focusing obsessively on "severe pain," which you say is so subjective that it is impossible to define. But you have also condemned sexual abuse, even if not specifically painful. So maybe the obvious follow-up question I should have asked back then is why? If it does not cause severe pain, why do you also condemn sexual abuse? What common category of forbidden to severe pain and sexual abuse belong to? And can you think of anything else you would include in that prohibited category?

# posted by

Essayist-Laywer : 10:24 PM

"Bart":

Please. Before you trot out the same old stale, bald assertions once again, would you please just go and answer your critics back on the countless stale threads where we've heard your assertions so many times before, and answered them? Repeating them ad nauseam in every new thread for the thirty-sixth time does nothing to further the conversation.

If you feel some compulsion to say these things over and over again every couple of days, then I think that your own blog would be the best place to do so, rather than irritating people with just more iterations of stuff they've all seen quite enough times before.

Thanks in advance.

# posted by

Arne Langsetmo : 10:33 PM

There you go again. Looking at this one response by one person... and thinking you understand what is or was happening.

It must be a lawyer thing.

The bush administration infected the system with a virus that cut loose every agency so they felt they could act without accountability. Previously it was a "gentleman's agreement" that congress had a role in oversight. You can't alienate the people you're supposed to work with (and monitor) and expect to be effective (unless you can hurt them if they fail to cooperate). That's what the zeitgeist was and is in congress.

Rock the boat and you're ignored. Play along, and maybe you can make a difference. Like Colin Powell tried to do.

That's what the real world is like.

I'm all for fixing that which doesn't work. We'll start with getting an executive branch that respects the constitution.

# posted by

Beam me up Scotty : 10:36 PM

Technically correct but for active combatants only, not anyone else. In other words most of the rules of the Universal Declaration of Human Rights I cited above do apply fully to nonactive combatants - see, e.g., the 3rd Geneva Convention, Article 3:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples....

Read it again and aloud this time so it sticks if still confused :

... the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons

# posted by

wg : 10:42 PM

enlightened layperson said...

Bart, You keep focusing obsessively on "severe pain," which you say is so subjective that it is impossible to define. But you have also condemned sexual abuse, even if not specifically painful. So maybe the obvious follow-up question I should have asked back then is why? If it does not cause severe pain, why do you also condemn sexual abuse?

To start, I focus on "severe pain" because that is the one and only treaty and statutory definition for torture.

Next, sexual abuse is a separate category of forbidden act and is not barred because it is torture. Pain is not a necessary element of the definition of sexual abuse.

What common category of forbidden to severe pain and sexual abuse belong to? And can you think of anything else you would include in that prohibited category?

GC3, Article 3(1) covers the standards of forbidden acts towards all captured combatants - lawful or unlawful:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Torture falls under subsection (a).

Sexual abuse falls under subsection (c).

# posted by

Bart DePalma : 11:28 PM

wg:

Now you are on the right track. The law of war, not the Constitution nor the Universal Declaration of Human Rights, apply to enemy combatants.

You are also correct to apply the GC3, Article 3(1) minimum standards for the treatment of captured enemy combatants - lawful and unlawful.

However, we once again come back to the treaty and statutory definition of torture as severe pain which I originally discussed above before we took this detour.

# posted by

Bart DePalma : 11:35 PM

forget the torture for the while DePalma, go and bitch slap a cop next time you see a deserving one and see what kind of legal qualification that will get you. Rest assured it will be something with violence in it like aggravated assault.

Now bitch slapping is one of the presently authorized interrogation techniques despite the fact that Article 3 says "violence to life and person" is and shall remain prohibited at any time and in any place whatsoever.

Re waterboarding - to any normal person including some CIA people waterboarding is a far more drastic abuse than any bitch slapping, it is in fact a torture if you ask me, but that's irrelevant, however you classify it, however you slice it it is a crime under US law domestically (presumably) and under the 3rd Geneva Convention.

What you are doing here is a morbid, sicko Yoo style legal dance and I'm tired watching it. Legal casuistry at its worst.

Have a better one.

# posted by

wg : 12:06 AM

It seems to me a mighty long stretch to say that waterboarding is neither "violence to person" nor "cruel treatment."

I am also disturbed by Bart's view that (1) no matter how immoral an act, there is no reason to refrain from it unless it is specifically illegal and (2) even when it is illegal, laws are merely something to be parsed and evaded.

# posted by

Essayist-Laywer : 12:47 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 1:15 PM

"I take your responses as confirmation."

Mark Field and others underline the shoddiness of your response. I have dealt with this before on this blog alone ... I don't just supply a passionate response, but spell out some reasons for it. This is how things productively go on this medium, flawed as the arguments might be in many cases.

In return, the reply is in effect a sneer. Bart takes the time to (however badly) sorta reply to the points made at least. A bad foil is better than none at all.

# posted by

Joe : 1:21 PM

enlightened layperson said...

It seems to me a mighty long stretch to say that waterboarding is neither "violence to person" nor "cruel treatment."

Conversations with you are always interesting and to the point.

Subsection (a) reads: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

Violence and cruelty as used in the GC does not extend to the full scope of the common definitions of those terms if they stood alone.

"Violence to life and person" is the main clause of this passage followed by examples of what the authors meant by this clause. "Cruel treatment" lies among the examples. Consequently, I would suggest that the quantum of violence and the cruel treatment forbidden here is the equivalent of murder, mutilation and torture, which is the intentional infliction of severe pain.

In contrast, there are a wide range of normal acts or omissions against POWs which do not fall under my suggested interpretation of Article 3(1)(a) but might be considered "violent" or "cruel" in the potential full scope of those terms standing alone.

For example, when the enemy would approach our positions appearing to surrender during the Persian Gulf War, we would seize them, push them to the ground spread eagled, search them, truss them up, blind fold them, and then transport them in uncomfortable positions for long periods because we simply did not have room for them in our Bradleys. When the MP's took them, high value targets were isolated in solitary while they were being interrogated for intelligence.

Under civilian criminal conditions, all of this could be considered "violent" or "cruel." However, the GC3 was not drafted that expansively. It provides examples which place the bar pretty high because war is a naturally violent and cruel state.

I would suggest that waterboarding and the other coercive techniques do not rise to the level of murder, mutilation and the intention infliction of severe pain.

I am also disturbed by Bart's view that (1) no matter how immoral an act, there is no reason to refrain from it unless it is specifically illegal...

That is a strawman. This is a legal blog discussing the law. I have limited my responses on this subject to rebutting the unsupported categorical claims that waterboarding is unlawful torture. You raise an interesting moral question which I have not addressed.

My bright line for forbidden torture consists of acts intended to cause both severe pain and some quantum of physical injury because, unlike pain, physical injury can actually be measured. To take John McCain as an example. beating his broken leg, switching him with a cane and dislocating his shoulders all qualify as forbidden torture in my book. I would suggest that this is what the authors of the GC back in 1948 were referring to in Article 3(1)(a).

IMHO, waterboarding as the CIA reportedly does it (cover the mouth and nostrils with cellophane and run water over the cellophane) falls in the hazy borderline area between standard interrogation and torture because it neither inflicts pain or bodily injury. Waterboarding inflicts very uncomfortable, though brief, panic.

Waterboarding also appears to be very effective in breaking the hardest prisoners and get them to provide timely and actionable intelligence which can and arguably has saved hundreds if not thousands of lives.

If I were King performing the moral balancing between the prevention of mass murder and the infliction of waterboarding on a prisoner, here is how I would come down:

I would have the interrogators initially use standard Army or FBI interrogation techniques on all prisoners. This works most of the time.

However, in the few cases where you have a high value target like KSM who you know has substantial amounts of actionable intelligence which is time sensitive and he is not responding to standard interrogation, then the interrogators should be able to come to the President or her designee to get permission to use coercive techniques all the way up to waterboarding.

These techniques should NOT be used to gain "confessions" to establish that the prisoner is a high value target when there is no other corroborating evidence. People will lie under duress and our objective is to get true actionable intelligence. Rather, these techniques should be used only to gain the dispositions of the enemy which can be verified by reconnoitering the locations given.

On my moral scale, saving even one life is weighs heavier than inflicting 35 seconds or so of severe panic on a terrorist.

How about on yours?

...and (2) even when it is illegal, laws are merely something to be parsed and evaded.

NO.

Laws need to clearly and objectively define forbidden behavior so the citizen knows what is and is not forbidden and the State cannot arbitrarily persecute citizens on subjective grounds for often political reasons.

When I was a prosecutor, I took my moral obligations in this regard very seriously and had a number of discussions with my supervisors over whether to prosecute under vague and often nutty laws.

As a defense attorney, I do my damnedest to hold the state to this same standard. I am defending a felony case now in which the prosecutor actually told me in private that she knows the charges against my paroled client lack evidence, but she still wants to send him and the community a message that "enough is enough" by sending him back to prison.

I am going to take her to task in every way possible the same way I do those who blithely post here that our war fighters should be made an example of and tossed into prison to send a message to world opinion.

# posted by

Bart DePalma : 1:22 PM

On Jane Harman, how about not being happy with her for lying to me in April 2005 when I asked HER a direct question on this at Duke. See my comment at Jurist "Congress, Torture and Romain Gary's 'Chien Blanc'" at http://jurist.law.pitt.edu/forumy/2007/12/congress-torture-and-romain-garys-chien.php and please play the video link to the q and a I did with her then.

Best,
Ben

# posted by

Benjamin Davis : 9:06 PM

Ben:

Videos like yours are what make the internet great. I wonder when politicos will ever learn that nearly everything they say is being recorded and their lies will bite them in the ass.

# posted by

Bart DePalma : 9:24 PM

On my moral scale, saving even one life is weighs heavier than inflicting 35 seconds or so of severe panic on a terrorist.

How about on yours?

On my moral scale, the assurance that waterboarding and the like makes us X% safer when no one knows what X is, is not sufficient to justify it.

# posted by

Essayist-Laywer : 10:08 PM

On my moral scale, the assurance that waterboarding and the like makes us X% safer when no one knows what X is, is not sufficient to justify it.

# posted by

Mark Field : 11:23 PM

On my moral scale, the assurance that waterboarding and the like makes us X% safer when no one knows what X is, is not sufficient to justify it.

Hmm. Something messed up. Let's try again:

Especially when we don't even know if X is a postive number.

# posted by

Mark Field : 11:24 PM

Or even a positive number.

Sheesh.

# posted by

Mark Field : 11:25 PM

@ Mark Field:

On my moral scale, the assurance that waterboarding and the like makes us X% safer when no one knows what X is, is not sufficient to justify it.

Hmm. Something messed up. Let's try again:

Especially when we don't even know if X is a postive number.

While I understand your concern, I want to vigourously oppose even any mention of such a "utilitarian" calculus in deciding when outrageous and inhumane behaviou8r is in fact allowed.

On such a basis, we'd find coercive "interrogations" of suspected murderers and child rapists acceptable too. There has to be some line you draw where you say, I don't care if it's 100% effective, I just don't want to go there.....

Cheers,

# posted by

Arne Langsetmo : 12:32 AM

1. Has the ticking time bomb scenario ever occurred in
recorded history?
2. Is it a given that, before we torture, the subject has
information that we do not have and If we do not have the
information, how can we be sure who has it? Do we
torture on the off chance? I see that, once the information
has been revealed, it can be verified, but I see no way
of determining that a person has the information desired
before torture begins.
3. Suppose 35 seconds of simulated drowning does not produce
the desired results; is it permitted to go to 36?--or more?

FW

# posted by

Farris W : 7:49 AM

While I understand your concern, I want to vigourously oppose even any mention of such a "utilitarian" calculus in deciding when outrageous and inhumane behaviou8r is in fact allowed.

Agreed. I was just pointing out that the calculus itself includes an implicit and dubious assumption.

# posted by

Mark Field : 11:43 AM

FW:

I've dealt with TTB here. One needs to keep in mind that the question of whether torture is "effective" and whether it should be done under extreme circumstances (or whether you personally would do so) is separate from whether it should be legal.

Cheers,

# posted by

Arne Langsetmo : 12:30 PM