Tortured Logic

As Daniel Schorr indicates, it is absurd that the current dialogue regarding torture is focused on whether and when it is OK instead of what Pelosi knew and when she knew it.

I should probably start out with the basics and define torture. Especially since ambiguity over what is and is not torture is abused by armchair nationalists to cloud the debate.

"torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Art I, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Or if you prefer U.S. law:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

18 U.S.C. §2340. The definitions are substantially similar in the act that constitutes torture is the infliction of severe suffering, though the U.N. treaty requires a particular goal in mind they both define torture as the act of a government. So clearly, any argument based around the ambiguity inherent in the word "suffering" designed to imply that imprisonment qualifies as torture is disingenuous at best. Any reasonable person would agree that water boarding fits under this definition as torture. The argument that the presence of a doctor during waterboarding changes it into something other than torture because the victim is less likely to die cuts decency to the quick. The blatant disregard for both the legal definition of torture and the suffering of the victim lays bare that anyone making such an argument has no respect for those the argument is being made to.

One might raise the argument that such legal protections only extend to uniformed soldiers captured on the battlefield. This ignores the clear intention of the above convention which indicates that it is the goal of the person performing the torture that makes the act illegal, not the identity of the tortured subject. It's simple common sense to say that if we have the jurisdiction to hold a person then they are under the jurisdiction and protection of our laws regardless of whether we find it convenient. Further, though the United States Supreme Court has not decided this narrow issue yet, it has decided a line of cases that a rational person would think extends to cover this situation (a rational person being one who has not set out with the goal of achieving an end result where torture is justified). In a line of cases from Ex parte Milligan to Boumediene v. Bush the Supreme Court has held that even the detainees at Guantanamo Bay fall under the protection of U.S. law and that they can not be deprived of fundamental rights like Habeas corpus. Also, that Congress and the President, even working together cannot simply declare certain people and places to be without those protections.

Though it is yet to be determined if the prohibitions against torture apply to non-uniformed foreign national enemy combatants captured in a foreign country, we have frequently tried to make a clear argument on this blog that the protections of the law should apply to these people. I have tried to make this argument by making the implication that any innocent American citizen could be taken to Gitmo. Of course, any time someone implies that the government could wrongfully imprison an innocent person the notion is labeled as X-Files type conspiracy lunacy. Which is why I have tried to be careful and point to situations that show how easy it is to be mistakenly labeled as a terrorist. Where the no-fly list includes the names of innocent people, or where police label nuns and peace activists, that they admit are innocent of any crime, as terrorists.

If you combine the fact of how easy it is to become labeled a terrorist or an enemy combatant with the fact of how difficult it has been for those in Gitmo to even contest that label, even when they have been found innocent by their own government, you see that torture is being used on people merely for being accused of being a terrorist, having not been found guilty in any court, merely because there is the possibility that they may have some information that could be obtained through torture that could not be obtained as quickly through more conventional interrogation. Even when good old fashioned investigation still works. I am not so foolish as to believe that everyone in Gitmo is an innocent victim of circumstance or that there aren't dangerous terrorists being held there that can never be released without representing a serious threat to the American people. I am just worried about the labels being used and logic being applied to justify locking people up for an indefinite period of time punishing them without the accusations against them(and their accusers) seeing the light of day and I am particularly uneasy about the U.S. torturing anyone, especially in such suspicious circumstances.

Still Cheney is making the political talk show rounds insisting that torture produced valuable intelligence that saved lives. This argument is being picked up and repeated as if anything Cheney says about intelligence to the media can be trusted after the fiasco that was the run up to Iraq and the Valerie Plame scandal. It has even been revealed recently that torture was even used to produce some of that bad intelligence that Colin Powell presented to the U.N. security council.

This is exactly the worst case scenario that comes to mind whenever there is mention of torture. There was no ticking time bomb and the poor sap being tortured didn't know anything and only gave the people committing the torture what they wanted to hear in order to end the torture. That bad information was relied on to put us in an unnecessary war and thousands of people have died. Yet the idea that torture produces effective intelligence continues to be tossed around like it is a valid argument. Even if torture produces good intelligence some of the time, the risk that bad information will be relied on because it is what is politically expedient at the time is far too great a risk for us as a nation to be throwing our morality to the wind.

Even if torture works it is still morally wrong. Unfortunately I don't have any arguments here, just a bald assertion of a moral absolute.

I could argue that Alberto Gonzales was clearly wrong at his confirmation hearing when he said we can never be like our enemy's. Or I could parrot the refrain that being seen as abandoning our collective principles encourages extremist anti-Americanism. Or I could point to the damage this does to our international relations. Friendly nations wonder why we have fallen from being Regan's shining beacon of freedom on a hill, and antagonistic nations like Russia and Iran point to our abuses when we criticize them for kangaroo trials or oppressive measures. I could point to truly oppressive regimes across the globe that now simply label as terrorists those they wish to abuse. However all those are pragmatic reasons, and I don't think that is the best foundation for a moral absolute. I know torture is always wrong because I have human compassion. And you know it too.

All that is beside the point. Torture is illegal and water boarding is torture. The only reason I can think of that the MSM has allowed itself to be hijacked by Cheney again is that Obama has decided that the people who committed acts of torture under color of law will not be prosecuted. So that ends that story. Only vague questions of conspiracy remain and the question still appears to be open as to whether those that wrote the torture memos and the members of Congress and the Executive branch who were complicit in authorizing torture will face any kind of consequences.

It is vitally important that we zealously prosecute everyone responsible for the use of torture from the interrogators and their commanders and guards at the camp that knew it was happening to those that wrote the memos and everyone in power who knew it was happening and did nothing to stop it. even if that means throwing half of Congress in prison. This is important for a couple of reasons. First, a full and complete prosecution of everyone responsible will correct many of the above mentioned pragmatic reasons that torture is wrong. Clearly extremists will continue to hate America for irrational reasons. However, by taking pains to correct our misdeeds we will show to friends and enemies internationally and future leaders of America that we are a nation committed to the rule of law and that we can bravely face our own misdeeds and see justice done.

The next reason is that only a full prosecution of everyone that could possibly be complicit is the only way to actually see justice done in this situation. Where the government at all levels and in multiple branches participates in enacting a broad policy that is illegal and immoral and actually produces negative consequences simply rooting out a sacrificial lamb like "Scooter" Libby only perpetuates the sense that those in power who are ultimately responsible for the crime are beyond justice. A full prosecution is also important to avoid domestic political wrangling. If we put Cheney on trial Pelosi needs to go on trial as well. So does every member of Congress that was briefed on the use of torture and everyone in the various agencies that used them, both political appointees and career agents. I am not saying that we need to imprison half the government and military, but in the interests of justice there needs to be a full and impartial investigation that brings charges against those who appear to be guilty of serious crimes against U.S. law.

I understand Obama's order that the interrogators not be prosecuted. Spies and agents in the field are not legal experts and have to be able to rely on the orders of their superiors. Unquestioning reliance on the command structure is vital to successful military operations. Still, there is a point where the guy who has boots on the ground knows something is wrong. That an order is wrong. It is that person's responsibility to say "no." I know it is a hard and cold and frankly unrealistic rule but that is the very same thing we say to accused former Nazi prison camp guards as they are extradited and prosecuted for simply guarding the camp. (No I didn't just fall prey to Godwin's Law)

I further understand Obama's decision not to prosecute the interrogators because doing so would turn our agents in the field into political paws by using them as a sacrificial lamb. An agent in the field has to be able not only to rely on his orders but also to believe that he can effectively carry out his mission even when there is an election coming. They need to know that they won't be hung out to dry just to appease the public when the party in power changes.

Because prosecuting the interrogators is off the table and it is highly unlikely that Congress will enact legislation that could put their own members in prison, and because there is a current sentiment that we need to move on with current troubles and not be concerned with the egregious acts of the prior administration it is highly unlikely that we will see any kind of full and non-partisan investigation that results in justice being done. The most we will see is someone like John Yoo getting a slap on the wrist. I am still too cynical to believe even that will happen.

Guns on the Border

With people turning to gun violence during times of desperation and with the recession increasing incidents of desperation the MSM has been covering incidents of gun violence frequently lately. Of course in the MSM this topic always is an opportunity to discuss gun control. At the same time the Obama administration has been discussing gun control in relation to Mexican drug cartel violence on the border. In the MSM this leads to discussions that assume the return of the Brady Ban. I get the feeling that this is a wag the dog situation. Especially since it seems that reports in the MSM of violence on the boarder are inflated beyond all proportion.

My suspicions are raised even more that the MSM is just getting their gun control rocks off when Homeland Security Secretary Janet Napolitano says that a renewed assault weapons ban would not be effective in reducing Mexican drug cartel violence.

The Afterglow

I have made the analogy before that the campaign was like being hit on by a drunken sociopath. In the aftermath of the election it seems even more so with various special interest groups and media outlets remembering various promises made by Obama while on the road to the White House. They seem like an expectant lover on the morning after, hopeful that this impulsive decision to get in bed with this beautiful person who said all the right things will turn into a healthy relationship. All the while the recipient of the lover's attention hurriedly prepares to move on with his agenda while assuring the lover that, "that was all pillow talk baby." We can at least hope that Obama doesn't spurn the voters like a one night stand. But he is a politician and I won't hold my breath.

John Stewart made the observation to Obama that the country isn't what it was when he started this race. Truly Obama is inheriting a sloppy shit sandwich from one of the most hated presidents in history. Unfortunately for the discontent, Bush is scheduled to leave office and they will loose a symbol of everything they dislike about U.S. policy. But the problems he created will remain. What happens if Obama fails? Do we loose the meager gains we have made in race relations? Does the country swing wildly back to the politically extreme right? Will there be much left of the country after four years if he can't get a hold on these various crises?

Parts of the country started to reflect Bush's low approval ratings by going blue this election. My question is whether these states who were red in 2004 have an indelible sin on them for causing the last 4 years of unnecessary downward spiraling of the nation. Ohio and Pennsylvania, I am looking at you.

As usual, I have nothing positive to say.

Surveillance

I just thought I would try to document all the cameras I pass in a normal day. There were twenty three that I noticed but was unable to get pictures of. I could use this series of images to try to make a point about how we have become so desensitized to constant surveillance that it should not have been surprising that few people were outraged by the warrentless wiretapping. One thing I would like to point out is that these images were taken in Ohio during "golden week" where voters could register and vote in the same place at the same time a month early, and that some of the cameras that I noticed but was unable to get pictures of were in areas where people were exercising this right.

The Walk of Shame

In the past I have posted articles detailing problems at the TSA to illustrate the problems with too much "security" and power in the hands of government, or as examples of why the innocent do have something to fear from the depths our privacy has been invaded by the Bush administration. However I have never specifically intended to attack the TSA as an institution. I always assumed the problems were a bottom-up problem resulting from the quality of person they hire and the low wage they pay. Based on this article, it seems that I was mistaken and perhaps it is time to attack the TSA.

Probable Cause

Kenneth Wainstein was on NPR today discussing the warrentless wiretapping bill currently stalled in the legislature. The man must be an excelent litigator, he never became distressed even when faced with difficult questions or confrontational or callers. The part of the interview that sent me into a patriotic rage was his explination as to why FISA is insufficient to aquire necessary intelligence on terrorists. Unfortunately no transcript of the interview is available currently but audio file of the show should be on NPR's website tonite. So I will be forced to paraphraze.

Mr. Wainstein explained that FISA is insufficient because it requires them to show probable cause. Showing probable cause to a judge requires expendature of manpower and time. Those intelligence analysts and lawyers could be doing other things.

So basically the justice department finds it inconvenient and cumbersome to deal with our justice system designed to protect innocent people from abuse of police power. Or in other words, the warrentless wiretapping bill, in its avoidance of probable cause, is designed to circumvent our Fourth Amendment rights against unreasonable search and seizure. Or to put it another way the government wants the ability to spy on anyone with or without probable cause.

In discussions of this nature the question is often raised, "Why do you care?" or, "You should not have anything to worry about if you are not a criminal." These kinds of statements being based in a naive trust not just in the institution of government but in the individuals acting as agents of the government.

Honest, law abiding people have reason to fear not only of being wrongly accused by mistaken identity, beureucratic error, mistake from lazyness or stupidity, intentional framing by the real perpetrator of the terrorism, but we also have reason to fear simple corruption in the hourly employees of the various agencies handeling the information. For example, if you purchase anything over the internet, use internet banking, or speak about your financial information on the phone, you put your account numbers and pin numbers at risk of simple opportunistic theft by the employee handling your info.

For a real world example of things "going missing" after being handled by agents responsible for national security. boingboing

More pertinent article outlining other reasons to be conserned.

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.

The Numbers of Iraq

In the course of investigating this report about the most recent attempt to gauge the death toll in Iraq, I stumbled into a twisted web of public opinion companies. The organization responsible for the report, the ORB, is a member of the British Polling Council, which in turn is modeled on the National Council on Public Polls, an American organization. Thankfully, to help navigate this heady mix of numbers, acronyms, and propaganda, the NCPP on its homepage was nice enough to publish this list of 20 Questions That A Journalist Should Ask About Poll Results. The most significant question on the list for determining whether the poll is strong or not is #11, dealing with the notion of margin of error. According to the pollsters at the ORB, the aforementioned report on Iraq had a very strange +2%. I say strange in that normally, this measurement would be a plus or minus type of operation, but thankfully for the people of Iraq or the propagandists who will publish these data for their own ends, the results are only positive.