The XX Factor: What women really think.

Padilla v. Yoo: A Blow to the Government

Don't Close Guantanamo

Great job, Obama! You've finally succeeded in getting somebody else to take some of those Guantanamo detainees off your hands. Your masterful diplomacy, although strangely ignored by more than 100 of our petitioned allies, has swayed the tiny island country of Palau to generously take a small group of the least dangerous detainees. Perhaps also helpful was the mere fee of $200 million we're paying them, which—as the Wall Street Journal points out—is a practical $10,000 for every citizen of Palau. On the heels of that good news comes yet more: Saudi Arabia is willing to take almost 100 of the most dangerous detainees. Details of that negotiation still to come.

I can't help but wonder if the protesters who raged over America's abuse of detainees in Guantanamo will express the same level of outrage for... (To read the rest of this post, visit our new website DoubleX.com!)

Violence or Porn: Is There Really Any Difference When It Comes to Abu Ghraib?

A post from Double X writer Vanessa M. Gezari:

If the Daily Telegraph is right that the unreleased detainee-abuse photos include graphic images of rape, Obama must have been lying when he said the photos are “not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib.” For all the pain of those earlier images, what they depicted were not generally criminal acts in the same way that rape is. They showed violation, humiliation, the horrific power differential between prisoners and their jailors—war crimes, to be sure—but they tended to document the effects and aftermath of violence more than its... (To read the rest of this post, visit our new website DoubleX.com!)

The Abu Ghraib Photos We Can't Bear to See

Releasing More Detainee Photos Could Make Abuses More Difficult to Discover

A post from Double X writer Vanessa M. Gezari:

Philip Gourevitch’s piece in Sunday’s New York Times adds another compelling argument to the ones I’ve been making recently about why releasing more photos of detainee abuse in Iraq and Afghanistan is a bad idea. Obama first supported the release of the latest batch of photos but subsequently changed his mind, saying that the pictures in question are associated with “closed investigations” in which the perpetrators have already been identified and sanctioned, and that they “would not add any additional benefit” to our understanding of detainee treatment in Iraq and Afghanistan.

Newt Gingrich to Jon Stewart: "Why Don’t You Talk Pelosi and I’ll Smile?"

As Slate columnist John Dickerson pointed out late last week, by saying that the CIA "misleads us all the time," Nancy Pelosi "put the spotlight on herself and has given weakened Republicans a fight they can enjoy, engage in, and possibly win." Newt Gingrich took to the Daily Show last night to promote his new book, 5 Principles for a Successful Life, but before getting into the heart of his shill, he called for... (To read the rest of this post, visit our new website DoubleX.com!)

Will Obama Miss His Own Guantanamo Deadline?

In the heady afterglow of Obama's inauguration, I accepted a bet from Ann Althouse. She bet that the president, in the end, would not fulfill his promise to close Guantanamo within a year, by next January. Testing my hope that Obama could be counted on, I bet that he'd come through. Now I'd say Ann is looking more prescient than I am.

The Secrets We Keep from Ourselves

The Ninth Circuit Court of Appeals has just rejected President Obama’s claim of a wildly-overbroad “state secrets” privilege in Mohamed v. Jeppesen Dataplan, a suit filed by five victims of the “extraordinary rendition” program against the Boeing subsidiary that flew planes for the rendition program. The district court had dismissed the suit after the Bush administration claimed that everything about the program was a “state secret.” Then-CIA-director Michael Hayden told the court that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” The Obama Administration surprised us in February by continuing to assert the same privilege at the court of appeals.

But today the panel that heard that appeal said “no.” Remanding the case back to the lower court, all three judges agreed that the all-or-nothing “state secrets” doctrine advanced by the Bush and Obama administrations “has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad” and that “according to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

The panel added that it was “the central judgment of the Framers” that “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

By sending this case back to the lower courts, the Ninth Circuit has ensured that these rendition victims can finally have a day in court, and that there can be a judicial reality check on executive branch claims of secrecy. Most importantly, the appeals court reminds us today that the widely-known fact of a U.S. torture program can't be deemed a "state secret" just because the government doesn't want to talk about it.

The Dangers of Torture Resistance Training at SERE

Will has expertly shredded the claim in the Bush torture memos that waterboarding and the rest of the abuse didn't do lasting damage to detainees, given that the same techniques were used safely by the U.S. military on its own troops, at its torture-resistance training program, SERE. David Morris, who graduated from SERE and wrote for Slate about how his mind disintegrated there, adds this debunking:

A study published in 2001 in Special Warfare magazine measured cortisol levels for SERE trainees and found the highest levels ever recorded—more than in people undergoing heart surgery for example. Research on PTSD shows that over time, high levels of circulating cortisol can lead to a form of brain damage, specifically to the hippocampus, the part of the brain responsible for the formation of certain types of memory and spatial navigation. This might explain why my sense of time while at SERE was so poor. Perhaps the brain loses its ability to accurately record what is happening under those conditions.

Torture and Competence

Yesterday, in her taxonomy of torture defenders, Dahlia linked to this MSNBC clip in which Joe Scarborough bemoans our lack of support for the clandestine operations of the Central Intelligence Agency. Con Coughlin expresses a similar concern for the blow to the agency's morale here; Ex-CIA director Michael Hayden fears the release of the memos will introduce "institutional timidity," taken to be a bad thing. Thus we learn that the CIA is crippled by its need to answer to those it ought to protect. Left to their own devices—unconstrained by the demands of accountability—the good guys, who are probably very handsome, will roam the surface of the planet dragging bad guys from their respective holes. In Scarborough's words, the CIA operates most effectively when it is told, simply: "Go out and get the job done and dammit you keep my kids safe!"

I am struck by the romanticism of this vision, this willingness to place such faith in a government agency shorn of oversight. Scarborough clearly thinks it's morally acceptable to torture terrorists. But given that no one thinks it's OK to torture innocent people, why assume that the CIA can competently distinguish agents of terror from the general population? Recent history does not instill confidence. Ancient history does not instill confidence. One simply has to believe that the agents of this particular bureaucracy will not be subject to all the incentive-distorting forces that challenge every other bureaucracy.

Joe Scarborough is not a man known for his enduring faith in the capacity of American government to solve complex social problems. And I don't know where he would have gotten his idealized vision of the CIA—those taciturn, hyperacrobatic, brilliant, do-gooder patriots—if not from the Hollywood establishment he so despises.

Obama: Holder's Call

Could the Bush administration lawyers who wrote the torture memos really be on the hook, as I suggested Monday (and plenty of their critics have longed for)? President Obama left that door surprisingly ajar today. From his press conference:

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.  I think that there are a host of very complicated issues involved there.

The Torture Defenders

But Emily, you are so clearly reading the wrong newspapers again! Because on the opinion pages of the Wall Street Journal today we learn that what was done to Abu Zubaydah and Khalid Sheikh Mohammed was not only not torture—since it was being “continuously monitored”—but it also saved America from a a "second wave" of al-Qaida attacks, to be carried out by an "east Asian" affiliate, which would have involved the crashing of another airplane into a building in Los Angeles.” So quite obviously that 179th water-boarding of KSM really was as necessary as the very first.

To me the most interesting development in the torture debate this weekend is that the torture defenders deploy about three different playground techniques in an attempt to minimize the obscenity of what we have learned: Either they go the frat-boy route; the “hahahaha bugs-in-a-box-they-so-did-that-to-me-at-prep-school” defense. Or they trot out the sanctimonious claim that anyone who opposes torture must just hate America. Or, as we learn today in the Wall Street Journal, that it can’t have been torture if lawyers authorized it and doctors were monitoring it. Each argument is more circular than the next. But then I suppose if you're defending the legal principle that "it isn't torture unless we say it is," circular arguments are all you need. 

The End of the Necessity Defense

The only way to understand how the Bush administration could have waterboarded two detainees 266 times is to go back to footnote 27 of this 2005 torture memo, which Scott Shane pointed to in the New York Times. It discusses the “unnecessary use of enhanced” interrogation techniques—unnecessary because “although the on-scene interrogation team judged Zubaydah to be compliant elements within the CIA Headquarters still believed he was withholding information.”

The memo only admits to one instance of that kind of break between the agents on the scene and HQ. But since we know that detainee Abu Zubaydah--83 waterboardings in August 2002, right after an earlier torture memo gave permission--gave up his most useful information in the weeks after he was captured, before or possibly immediately after the torture began. And so that "unnecessary" line stands for a much larger disturbing truth: The people ordering the torture didn’t care about how much pain they inflicted for how little gain. Efficacy, humanity—all of this became beside the point. The Bush administration wasn’t really standing on the ground that torture was a terrible means to the virtuous end of saving lives, as it so often claimed. There simply was no necessity defense.

That footnote also demonstrates why if we’re going to investigate or prosecute anyone, it shouldn’t be the agents on the scene. In the wake of Obama’s carefully crafted statement fending off prosecution for anyone who relied in good-faith on the DoJ memos, some commentators have called for looking into whether CIA agents could go down for torturing before the memos were written in August 2002. This seems wrong to me. If we went that route, we’d get around version of Abu Ghraib: a few low-level scapegoats standing in for their far more culpable superiors. Much more interesting is another possibility Obama left open: going after the lawyers who wrote the memos and the officials who demanded and approved them—David Addington, Alberto Gonzales, Jim Haynes. Rahm Emanuel told George Stephanopoulos on Sunday that Obama believes that “those who devised policy… should not be prosecuted either." But what about disbarment? And impeachment for Jay Bybee, the torture memo author who got life tenure on the 9^th Circuit? It would be a start. If you think these memos are good lawyering, then you don’t deserve to be a lawyer. That’s a lesson the bar should desperately want to impart.

Yes, we tortured. Who is responsible?

But having my current government release the evidence is a strange kind of relief, sunlight coming out of the clouds. A few weeks ago, I attended a panel on the the executive response to 9/11. Ann Compton, the only reporter on Air Force One on 9/11 (after My Pet Goat), moderated Andrew Card, Michael Chertoff, Douglas Feith, Tim Flanigan, and Ari Fleischer—all of whom had been intimately involved in the response to the bombings. (John Yoo was in the audience.) Let me say that it was agony remembering 9/11, feeling again that scorched and distraught feeling we all had from being attacked. I was awestruck as they told what 9/11 had felt like from the inside—believing that there were more planes in the air, ready to hit, and not knowing what to do to prevent more attacks. They told unanimously about being given a single policy directive: This must never happen again. Stop another attack at any cost. There was no countervailing interest.

But that scorched feeling inside me quickly worsened into feeling almost too sick to listen, knowing how that prime directive had forced my country far off course, away from morality. We were a small audience of journalists selected for our interest in constitutional law, and so we were soon drilling them about the constitutionality of their responses. How could the administration have authorized and implemented torture, indefinite detention, the suspension of habeas corpus, the destruction not just of the Taliban but of Afghanistan itself (that last a paraphrase of an Afghani journalist's question)?

My question: How they could have been so certain that anyone they picked up on the battlefield had to be guilty? Why should citizens be expected to believe that our government was omniscient, knowing in advance who should never see daylight again? Chertoff answered that on a battlefield, they would have been permitted to kill anyone there; where should the line be drawn between what was permitted in battle and what was permitted to people picked up in battle? Then Flanigan looked directly into my eyes and said, essentially: We were the lawyers. We did what we were asked to do. If you want to hold someone responsible, look to the policymakers.

That disavowal took my breath away. (As did the moment Feith looked straight into the eyes of the Afghani journalist and said: Our goal was to prevent an another attack on the U.S. We were successful. In other words, your country = not my problem.) Afterward, law professor Sherilynn Ifill, who was sitting next to me, said: If I were to convene a truth commission, Flanigan is the first one I'd call. He's ready to name names.

We Tortured. We Pretended Otherwise.

The Justice Department has finally released four long-awaited torture memos. I've read one of them so far, the Aug. 1, 2002 memo (by then-Office of Legal Counsel lawyer Steven Bradbury. (Correction: OLC lawyer Jay Bybee wrote the 2002 memo. Bradbury wrote three additional memos in 2005.) I understand why the CIA and Bush officials fought hard against its release.

The memo is chilling for the pain and violence it portrays, and more than that for its efforts to minimize that pain and violence so as to make believe that it did not amount to torture and thus wasn't outlawed by the Geneva Conventions and the Convention Against Torture—treaties that bind the United States (except that obviously they do not). Bradbury recounts 10 techniques interrogators wanted to use against Abu Zubaydah, a high-value detainee they were confident they'd extract big al-Qaida information from. Water-boarding is among them. So is "walling," which means slamming a man's head against a wall while he's wearing a collar so he won't be brain dead from whiplash. Also sleep deprivation and shutting Zubaydah into a small box with an insect, which he'd be made to believe would sting. (The interrogators thought he had a particular insect phobia.)

According to Bradbury's analysis, these techniques are just no big deal. Really? Eleven days of sleep deprivation, the max the CIA asked for? No worries, a night or two of rest and you're back to normal. This is not what historians write about torture. And so the memo doesn't cite them. Instead it relies on officials from the military's SERE school, which teaches resistance to torture, and on stats showing that most SERE students don't actually lose their minds.

Down to many of the last details, the memos confirm the Red Cross report on the experience of Zubaydah and 13 other high-value detainees, made public last month by journalist Mark Danner. And they show us for the first time exactly how the Bush OLC lawyers played doctor and psychiatrist to wave away the reality of what they gave legal approval for. President Obama released the memos today with a promise not to prosecute anyone in the government who relied on them. That was inevitable. It may also be fair. But it won't be the last word. Whether by truth commission or congressional committee, there are more skeletons to be pulled from the government's closets, and much more thinking about them to do, once we can see them.

Jay Bybee Admits He Did Wrong?

Bybee declined to talk about his work at the Office of Legal Counsel. But when he gathered former clerks last year at a Las Vegas steak house for a five-year reunion, he was more revealing.

"He said our work has been well-researched, carefully written, and that he was very proud of the work that we've done and the opinions his chambers has issued," said Tuan Samahon, who was Bybee's first judicial clerk and is now a UNLV professor.

According to Samahon, the judge then added: "I wish I could say that of the prior job I had."

Spain Plays the War Crimes Card

For months, or maybe it's years by now, critics of the Bush administration's wrong turn into torture have been musing that the officials behind it might soon be forced to stop traveling abroad. Behind this fond hope or fear, depending on where you stand, lies the threat of prosecution abroad for war crimes. And now the Spanish may oblige, courtesy of prosecutor Baltasar Garzon, who made his name going after Chilean dictator Augusto Pinochet. Garzon’s list of six high-level American officials is in line with much of the reporting, including ours at Slate, on who knew about and approved coercive interrogation—Alberto Gonzales, David Addington, Jim Haynes, Jay Bybee, Doug Feith, and John Yoo. You can’t fault the Spanish for settling for the low-level bad apples, as the Abu Ghraib prosecutions here in the United States did. Though missing from the list are Dick Cheney and George W. Bush—suggesting that Garzon is bold, but not crazy bold.

Losing the freedom to travel abroad isn’t the more serious curtailment of freedom that some critics of the administration might wish upon these men. But it’s not nothing, either. It’s an embarrassment. It pushes these former officials off the world stage—now they’ll have to think twice about defending themselves before a European audience, even if they want to. The threat of prosecution is also, of course, a challenge to American dominance. At home, it will fuel the criticism of international treaties and institutions that in any way purport to give foreign courts jurisdiction over Americans. Abroad, this news from Spain is of a piece with international defiance of the United States over the financial crisis leading into the Group of 20 meeting this week. How has the United States lost its moral authority abroad? Let us count the ways.

"Torture"

Emily, you are absolutely right that we've known for a while, in a vague sort of way, that terrible things happened in the CIA's "unofficial" black-hole prisons. But you are also right that the question of what, now, we are going to to do with the legacy of American-government-sanctioned torture is not fading away. On the contrary, it is growing ever sharper. Just as it usually takes awhile—sometimes a whole generation—for countries that have committed political crimes to come to terms with them, so too will it take some time for all of us to understand that the abuses of detainees that took place during the past seven years in CIA and U.S. government custody were not only immoral but illegal, that they violated both our own Constitution as well as international treaties we signed decades ago, and that the people who gave the orders to use torture on prisoners in American custody knew all of this perfectly well.  

Right now, the Obama administration—and indeed the general public—is inclined to "focus on the future," not the past, and I sense that even Congress would be made queasy by a full-scale prosecution of the torturers. But give it a few more years, and that might no longer be the case. When I read Mark Danner's essay yesterday, I suddenly thought, for the very first time: President Bush might go to jail for this. Eventually.

The Red Cross on Torture

We knew, thanks to Jane Mayer's book The Dark Side, that the International Committee of the Red Cross called the Bush administration's treatment of certain detainees in CIA custody torture. Now we know, from the text of the ICRC's report leaked to writer Mark Danner, about the mountain of specifics behind that label. See here for Danner's shorter New York Times op-ed and here for his longer piece in the New York Review of Books.

The ICRC interviewed 14 high-value detainees in late 2006 at Guantanamo. The Red Cross points out that the "consistency" of their accounts "adds particular weight" to their credibility. Some details also match the stories of former British detainees who described what happened to them after release.

What repeats: a month of standing, arms over the head and shackled, in a frigid room with incessant noise. Little sleep. Face-slapping and head-smashing against walls. Doctors checking for vital signs during water-boarding. The ICRC also picks up on refinements. A towel around the neck of one detainee (Abu Zabaydah) during head-smashing turns into a plastic collar for detainees interrogated later. When Walid ben Attash is forced to stand shackled, the stump of his amputated leg hurts, and he kicks away his prosthesis. Then the pressure on his good leg increases, and he calls his captors to give him back his artificial limb. Afterward, they sometimes take away the prosthesis and then measure the swelling in the leg he has left to stand on.

In Israel in 1999, when a state report came out of the intelligence service's use of cruelly painful stress positions and sleep deprivation on Palestinian detainees, the country's Supreme Court essentially banned torture by forcing the government to plead a necessity defense for any interrogator who used it. Here and now, the Obama administration has forsworn water-boarding and is currently holding the CIA to the standards for interrogation of the U.S. military, which preclude the techniques in the ICRC report. But the government has left open what it will let the CIA do in the future, and at his confirmation hearing, CIA head Leon Panetta signaled that he is open to some harsher techniques, case by case.

Is it better for the executive branch to answer these questions itself, or for a court to step in, as Israel’s did? Does the leak of the ICRC report further the goal of truth-telling for the sake of telling, as Sen. Leahy has been arguing in favor of the truth commission he has proposed for the Senate judiciary committee? Or does knowing what happened mean wanting to know who exactly authorized it, at the highest levels? And then once we know that, how do we thread the president's needle of  “looking forward, not backward” and prosecuting the crimes we have evidence of? The questions are sharpening, not going away.

Holding Up Holder

Just to connect some dots here: Republicans on the Senate Judiciary Committee are holding up the confirmation vote on President Obama’s nominee for attorney general, Eric Holder, in large part because they have “questions for Holder about whether he would favor prosecuting Bush administration officials for their involvement in warrantless wiretapping and harsh detainee interrogation practices.” John Cornyn, R-Texas, says he wants assurances in advance that Holder won’t launch a “witch hunt.”

Anyone else bothered by the fact that America’s top prosecutor is being asked to pledge that he will avoid investigating possible criminal conduct, despite the fact that this newly released Washington Post/ABC poll (h/t Glenn Greenwald) shows the majority of Americans (50 percent to 47 percent) would favor investigating abusive interrogation? As Glenn argues, that polling data pretty much sinks a massive meat fork into the unending false claim that there is no public will to scrutinize these matters. But it's worse than that: These numbers also suggest that some Senate Republicans want advance assurances from the nation’s top lawyer that he won’t even look into a crime most Americans want to see investigated.