The Torture Debate

The national discussion regarding the use of torture and extreme rendition is often cut short by declarations that this is a time of war. Such declarations are not usually followed by any explination as to what significance that should have because most of the time they are made by people that have no interist in actually considering the value or appropriateness of torture. Though now it appears there are legal consequences of the torture that these people had previously been unwilling to think about. Unfortunately these are not the legal consequences of those being responsible facing justice. They are the natural consequences of the unreliable information that is gained from torture. Followed by the that information gained through torture being unusable in court because of the tainted nature in which it was obtained.

Even if you do accept that torture does work and that it is called for by the current situation, the torture debate is more than just an argument over whether extreme measures are acceptable during a time of war. There are at least two other issues.

First, intelligence failures prior to 9/11 indicate that the US intelligence community doea not need more information since they had enough to know the attack was coming, and they are too incompetant to use the information they do have.

Second, there are serious questions about whether the person being detained under suspicion of being a terrorist is actually guilty of anything. People have been spirited away, aparently based on nothing more than a muslim sounding name, tortured, and released after months when it is discovered a mistake was made and that these people were not criminals or if they were, after the CIA had fouled up the investigation.



Many people are not conserned with this because they don't have muslim sounding names and are merely mundane white people living in the heartland. This should consern everyone because it is the start of a slippery slope. If the people responsible for this get away with abducting and torturing innocent people for something as vaguely defined as being a suspected terrorist it is a small step to other criminal suspects and then another small step to the imprisoning and torturing of people for legal but unpopular behavior. And then you have the thought police.

These steps are smaller than most people want to believe because the first step has been so large. That people that are merely suspected of being terrorists are being tortured is highly significant. It causes the ensnarement of innocent people based on unchallenged circumstantial evidence.

Geopolitics: What Goes Bump in the Night

What is a threat? Is it a lone suicide bomber or a million man army on a hair trigger? The basis for this thought exercise, of course, is the size and quality of one's own forces. The quality and status of the American Armed Forces is beyond the scope of this current exercise, though. Therefore, for our purposes, we will assume that the U.S. is indeed the hyperpower beyond compare. So what is the biggest threat to the national security of the United States?

Pentagon general counsel William J. Haynes II feels not obtaining convictions in the military tribunals of terrorist suspects held in Guantanamo Bay's Camp X-Ray would be a threat to our national security. Former head of the prosecution of these prisoners, Air Force Col. Morris Davis, on the other hand, feels that opaque justice is the only way to see justice done. Even if these men were released today, how much would they still believe in the cause after up to six years of the strictly regimented and austere lifestyle afforded by Camp X-Ray's accommodations. I would be willing to bet that most of them would just go home and try to live out the rest of their lives trying to cope with what they've been through.

While Iraq may not be our 53rd state yet, the presence of 140,000 American troops means that our government throughout our continued presence in country will be forced to consider the security ramifications of a country in the middle of the most dangerous region of the world. So what a twisted web we weave when one of our NATO allies, Turkey, is potentially threatening the viability of the state that we're trying to carve out of the remnants of Saddam Hussein's regime. While the Bush administration characterizes the actions of the Turkish government as being responsible, this escalation will invariably agitate other regional powers, and stoke fears that Turkey seeks to impose its own order over Kurdistan.

Another threat that the Bush Administration is keenly aware of is the potential legal ramifications of the application of the Bush Doctrine. Thus, while Iran is alleged to pose a very real nuclear threat, members of the Coalition of the Willing are meeting to write and produce the 'third strike' resolution against Iran, ala the prequel to the invasion of Iraq. This incident smacks of another leading problem in the administration of the American National Security strategy, the human element of information interpretation. Documents the U.S. is using as the "smoking gun" are, predictably, be denounced as complete forgeries by the Iranian government. Curveball told the administration everything that they needed and wanted to hear about Iraq's illicit weapons programs, the accuracy of this information was criticized at the time by German Intelligence, and later by every other respectable intelligence agency that was worthy of the name. Remember this? Perhaps the thinkers in the Administration aren't creative enough to come up with another method to draw the world into another conflict that will further destabilize the energy infrastructure the world economy relies on. At any rate, there probably will be a third UN Resolution denouncing Iran. The reason for this is that the UN Security Council is about the only organization in the world that can legitimately overrule Iran's right to a peaceful nuclear energy program under the Nuclear Nonproliferation Treaty.

One of the most dangerous positions in the world, though, is to be without friends. Thus, Defense Secretary Robert Gates, the best salesman for the Military Industrial Complex, is touring Asia, and is currently enjoying two days of talks with Indian leaders. While the stalled nuclear deal will only be tangentially discussed, one can be sure that the U.S. Military's involvement in Pakistan and India's recent sea-based missile test will be near the top of the agenda, beneath promoting weapon sales. While military relations may be the goal of this trip, see China's agreement to release information on American POWs, one has to wonder whether this will actually be realized with the white elephant of historical tensions between Pakistan and India in the room. The lingering question, though, is whether the United States can successfully balance punishing Iran for violating the NPT while at the same time rewarding India with a nuclear agreement that will allow it to continue to develop nuclear weapons and delivery platforms.

Russia's First Deputy Prime Minister and presidential candidate, Dmitry Medvedev, warned in a campaign speech that the U.S. is placing Europe in a difficult position by recognizing Kosovo, yet is not taking any of the risk because of the intervening ocean. Given Russia's long term plans for Serbia, expect this issue to remain prickly.

But, of course, everyone knows that killer robots will be the primary threat of the 21st Century.

A Tropical Vacation

The recent firestorm of controversy surrounding the forthcoming trials of six inmates has forced the mainstream media to consider the military commissions system, as established by the Military Commissions Act. The disparity between the rights enjoyed by defendants in our domestic criminal legal system and those enjoyed by those tried before a military commission are incredible. Arbitrarily, the president of a commission can cloak the proceedings of a trial in national secrecy, beyond the purview of those accused. Moreover, the rules about what evidence is admissible is also more favorable to the prosecution, as statements made under duress, as in made while being tortured, are admissible as evidence. Unfortunately for the unfortunate souls subject to this system and the American people, said evidence will probably be classified. Here is an amusing response from the fashion community to the system.

On the other hand, if the information no longer exists, then there is no need to bother with the bureaucratic wrangling required to classify thousands upon thousands of hours of operations within the detainee detention facility at Guantanamo Bay, encompassing everything from the routine to the interrogations. All of them. As one might imagine, there are some lawyers and a judge that are justifiably upset. Unfortunately, the judge's question seems worded in such a way as to prevent any sort of burden being placed on the Bush Administration. In addition to receiving an extension on a previous deadline, administration officials only have to reveal whether or not the information destroyed was pertinent to the trial of Hani Abdullah, who is before him. If the Administration is bold enough to claim that the life and times of each and every individual in the facility for the entire time they were at the facility would definitely be pertinent to any trial, if for no other reason than to evaluate the statements made during the interrogation process, our constitutional checks and balances, specifically the checks of the judiciary over the executive, will be further eroded, if not made entirely irrelevant. The aforementioned trial was already made more complicated by Mr. Abdullah's attorneys' allegations that their client's personal effects were seized by the government, in violation of attorney privilege. For some additional reading, try the Executive Order outlining the form and procedure of the Military Commissions or the Executive Order outlining the ways in which the United States will cooperate with Common Article 3 of the Geneva Conventions.

If one follows the most recent rhetoric in the daily White House press feeds regarding Guantanamo Bay and its status, such as June 22, 2007 and Feb. 11, 2008, Ms. Perino says that the Government is working on closing the facility and return the detainees to their home country or other third country. As one might expect, however, there are a few conditions, namely that the detainees have to be held in whatever country they are released to. Why would this matter? Well, if Country X feels that citizen John McY was wrongly imprisoned by Country Y, X might go to the UNSC, b/c pbiab.

For fun, try to come up with other activities that fit the definition of torture according to the U.S. Code and put it in a comment. And, also, a tangentially related article that details the career of the first commander of Guantanamo Bay and his later career in Iraq.

Oh, and the Cuban government wants Guantanamo Bay back to end its role in the War on Terror.

Michael B. Mukasey

Michael B. Mukasey, Mr. Bush's choice to replace Alberto Gonzalez as Attorney General, is the latest name to hit the ears of pundits and the pens of editors all over the United States. The most common talking points about him refer to his service as the Chief Justice of the District Court of the Southern District of New York, a prestigious position, to be sure. He's seen to be smart enough to head up the Justice Department, and yet independent enough to sooth even the most partisan Democratic Senator. He's handed down tough sentences, most notably a life sentence to the so-called "Blind Sheikh" Omar Abdel-Rahman in October of 1995 for masterminding the 1993 World Trade Center bombing. Already, his nomination has served to lay the groundwork for a partisan battle in the Judiciary Committee of the Senate, between Senators Patrick Leahy and Arlen Specter, over issues surrounding the Bush Administration's lack of cooperation with the Congress.

However, how are we supposed to judge whether he is worthy of such a vaunted position as the chief law enforcement office of the United States? Thankfully, the retired judge pubhlished two op-ed pieces in the Wall Street Journal from which we can draw conclusions.

In the first piece, published on May 10, 2004, Mr. Mukasey seeks to redress critics of the USA PATRIOT Act for their "hysteria" in opposing the Act. Hysteria which he went on to describe as "recreational." He goes on to criticize the American Library Association forcriticizing the records disclosure portions of the PATRIOT Act and declining to denounce the Cuban Government for holding 10 librarians in prison, support the "sneak and peek" type warrant that has been the object of much criticism from privacy advocates, and equating Saddam Hussein with terrorism out of the side of his mouth. However, the most interesting and disturbing portion of the piece is the final conclusion in which Mr. Mukasey outlines his vision of the constitution. He argues that since the Bill of Rights is not included in the "boring part" of the Constitution, those freedoms and rights are subordinate to the government established by the body of the Constitution. He goes on to write: "It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them." I quote this entire statement as it stands on its own merits. It seems an interesting side note that he specifically refers to these rights as "God-given." His final conclusion is that the population should give the Government the benefit of the doubt because the same Government is notionally responsible for ensuring that you continue to enjoy the Bill of Rights.

In the second piece, published yesterday, Mr. Mukasey advocates for the creation of a special inferior court expressly for the prosecution of terrorism suspects, as these suspects require special handling and financial considerations that, in his opinion, strain the resources of the judicial system. He then goes on to justify his signature on the material witness warrant for the arrest of Jose Padilla. The arrest under this type of warrant, "used frequently" after 9/11," was necessary as authorities in the U.S. don't have the statute that allows for 'investigative detention on reasonable suspicion." The term almost sounds innocuous. In further critiques of the law of the land, Mr Mukasey critiques the requirements of a conspiracy conviction, that the prosecutor is required to release a list of unindicted co-conspirators to the defendant. Because of this provision, in 1995 Osama bin Laden, while in the Sudan, found out that the United States Government thought he might have something to do with the 1993 World Trade Center Bombing. Perhaps his most interesting point, though is a plea for the reader to "consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases." I would hope, perhaps against hope, that Mr. Mukasey, should he be confirmed as Attorney General, would keep that from happening. The most ominous and threatening statement of the whole piece is last: "Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results." Again, this statement stands on its own merits.

Okay, so his words might not portray him as the best candidate to repair an ailing Justice Department, but perhaps they are only words. The philosophical rantings, if you will, of an otherwise commendable public servant who is beyond reproach.

To reflect on some of Mr. Mukasey's actions, Melanie Lefkowitz of the Newsday, employed the mighty weapon that is the Freedom of Information Act and found some interesting results. To begin with putting this issue in its proper contrast, in 2004, the Inspector General for the Justice Department released a report stating that no federal judge had any credible threats against their lives. All told, the Federal Marshalls Service between 1999 and 2005 spent $22.2 million dollars on a full-time security detail for Judge Mukasey. Some of the highlights are rent that was paid to the judge for space for the security detail in each of his residences, budget categories such as "ATM fees," hundreds of blacked-out invoices, and $407.82 to fix a water pipe that burst in the judge's second home in the Hamptons.

Well, barring any other method, one can surely judge a man's character by the company he keeps.

Bloomberg.com has two articles singing Mr. Mukasey's praises, here and here. For anyone who's keeping score, the editorial board of the New York Times thinks that Senator Leahy should delay the nomination hearings for the former judge. On the other side of the question, the Seattle Post-Intelligencer, the San Jose Mercury News, the Baltimore Sun, the Boston Globe, the Philadelphia Inquirer, the San Antonio Express News, and, of course, the Wall Street Journal believe that Mr. Mukasey is the man for the job in terms that are various forms of glowing.

Mr. Bush, according to some has found the perfect choice for Attorney General. Perhaps they realize they have found the attorney who is smart enough to properly manipulate policy and personnel decisions and cold enough to have allowed U.S. Government officials to take custody of Joseph Padilla in 2002 and consider the Bill of Rights a granted privilege.