Friday, October 24, 2014

3:AM on the Pentagon's Vietnam and the JeffCO School Board

For a new column of mine in 3:AM (the avant-garde literary and cultural journal in London) on the Pentagon's Vietnam and the JeffCO School Board, see

Wednesday, October 22, 2014

How the Presidency corrupts: the pseudo-"legalization" and renewal of torture

Over the course of his term and a half in office, the constitutional lawyer Barack Obama has apparently been converted from an opponent of torture - someone who rightly recognized that this has made America odious in the world; take the pictures of Abu Ghraib including killings and the pictures of IS beheadings and one will not feel that America, despite its occasional affection for human rights, is much more "civilized" - into a protector of torturers. Now he has become someone who might leave the door open - the CIA is pushing - for restored future torture.


Obama quickly became a killer using drones in countries with which the US is not at war (Pakistan, Somalia, Yemen). He makes use of a secret, private (outside regular military command) army with 66,000 troops, the Joint Special Operations Command, doing operations all over the world (see Jeremy Scahill, Dirty Wars) A regime in which the leader has a private army is a called a tyranny.


The JSOC became public a little when these troops took out Bin Laden (the JSOC assistant commander was the one of the phone in the famous shot of Obama, Hilary, Joe Biden and others awaiting word at the White House). This was a rare, decent American use of force, though, of course, the US, a pretty cowardly and lawless country, could not bring him back for trial.

Obama took him out without the use of drones.


America continues to use drones while killing many civilians. Obama's counselor (consigliere?) Brennan (an horrific war criminal under Bush and today) is now the head of the CIA. As Sullivan underlines below, he lied to Congress about the CIA spying on the Committee charged with overseeing it. Under Obama's "leadership", the report of that Senate Committee has till now not been released. The CIA is still gutting it.


As Sullivan's second post reveals, the Senate report contains a document by Leon Panetta, then head of the CIA, acknowledging the ineffectiveness of torture (something long known; Cheney was barraged by this criticism and ignored it). Trust secret tyrannical government and in addition to murder and butchery of innocent people and disgrace, one gets incompetence, and then, comic book or Hollywood efforts (breaks ins at the Senate office) to cover it up.

Brennan makes Watergate look professional...


Is the American government transparent, as Obama promised, to the people, or are the people transparent to the CIA, a secret government, along with the NSA?


As Bertolt Brecht once wrote of the East German government, will the CIA dissolve the people (and the law and the Congress) and elect a new one? Will they be airbrushed by the Pentagon, the JeffCO School Board and others practitioners/apologists for horrors? See here.


American democracy, even under Obama who promised something different and not just Bush-Cheney, is increasingly an alienated police state, the law and any division of powers fading. Note the power of the Senate against the CIA...

This is the opposite of what a democracy, and even the Constitutional design, the separation and balance of powers a la Montesquieu, mandates. It is not fully developed yet. But it is developing rapidly and its increasing consumption of Obama as a comparatively decent public figure is sad.


Howard Koh wrote a 90 page legal memo on what the law on torture is. The New York Times and Sullivan invoke it below. But the Bush/Cheney ("Mr. Dark Side") administration, for evil purposes - torture and murder - and the CIA which carried them out invented a ridiculous doctrine that the US is not legally obligated to obey treaties it has signed (Article 6 section 2 of the Constitution, the Supremacy Clause, makes such treaties the highest law of the land). It says the US is not obligated to obey treaties against torture, the centerpiece of international law, that America has long fought for.


The American military base at Guantanamo, Bush said, was "foreign" territory - any child could point to the naked Emperor's fanciful clothes here - and torture, indefinite detention and murder by American troops/intelligence agents there, are not barred by American law. That Mr. Bush should be undergoing proceedings in a court for his own chance to don an orange jumpsuit - he deserves decent treatment in an American prison - is, unfortunately, obvious.

The Congress led by McCain (who, of course, gave up his convictions to seek the Republican nomination for President - the ring of power, see here - and has been a sad character ever since) said explicitly that American bases abroad are American territory. As Sullivan notes,

"Here, moreover, is the text of the Detainee Treatment Act, pioneered by torture victim John McCain, making it even more explicit:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section."


You might think Congress was writing for belligerent ninnies (and not Constitutional Law Professors from the University of Chicago) with statement b. But that is exactly the nonexistent loophole (see David Luban below) that Bush claimed, the nonexistent loophole that the CIA inside the Obama administration desperately seeks despite many other laws and even this obvious construction (2+2=4 is to be construed as 2+2...).


All of those who participated in these crimes, meaning those who ordered them and those who carried them out including social "scientists" like Mitchell and Jesson, are criminals under international and American law, and need legal proceedings.


The State Department rightly wants to drive a stake through the vampire's (the CIA's) heart. They want to have the rule of law and America to be respected again (why Obama got the Nobel Peace Prize...).


The CIA and some "military" officials are trying to defeat the law. If they can abolish the rule of law, then there is "legally" no crime (lots of murdered people in American custody however, blood on Brennan's hands...).


Colin Powell is the only official in the Bush administration who has a defense on torture because he argued for the standard military rule: "you torture them; they torture you" - who, again, provided the example to IS?


Charles Savage broke this important story (less clearly than he might have) in the New York Times here. Obama is thinking, perhaps his long game, of consolidating the torture apparatus. He is sacrificing the common good and decency, and one of the proudest moments, as the Times puts it, of his Presidency to do this. For if he leaves this loophole, as Sullivan says, certainly a Republican President or a zealous, 3:AM Hillary Clinton might go for it. Rand Paul is the only Presidential candidate so far outside the orbit of this, but he has already moved to support Israel - a wild, torturer state as Occupier of the Palestinians which has influenced the US to adopt torture and naked aggression during the Bush administration (for instance, the Wurmsers and Richard Perle who had been Netanyahu advisers and then came here). Here too, as with Hillary, the corrupting effect of the Presidency is already in evidence (talk about the ring of power, the ring of Gyges...See here).


A large secret police is a dangerous institution for a democracy (the CIA, the FBI), one which which is very likely to destroy it (consider, for example, Iran-Contra). It is part of the militarism or war complex which dominates American government, something that Obama warned against eloquently in his speech at the National Defense University last year - militarism leads to authoritarianism - and now, making another, a third, foolish war in Iraq is in the thrall of.


The CIA is an anti-democratic institution. It has been since its inception (there are many good people who have gone into the CIA, for example Ray McGovern, but its corrupting effects on America are startling). It has overthrown some 15 non white democracies, aided in torture around the world, for instance, training the Savak in the Shah's Iran, murdering some 20,000 village leaders in Vietnam (Operation Phoenix), become the torturers under Bush, fight right now to carry on torture in plain sight.


The fate of the rule of the law and the decency of America hang it the balance. The Times and Sullivan call Obama out on this. Every one of us should...


"Close the Overseas Torture Loophole
President Obama and the Convention Against Torture

One of the proudest moments of President Obama’s presidency took place on his second day in office, when he signed an executive order that banned torture and cruel treatment in the interrogation of terror suspects.

But apparently some of his subordinates didn’t get the message. As Charlie Savage of The Times reported on Sunday, some military and intelligence lawyers in the administration are pressuring the White House to adopt a Bush-era position that there is no bar against the use of torture by the United States outside American borders. And, unfortunately, the White House is considering the proposal.

The issue has come up because the United States is required to appear in Geneva next month before the United Nations committee that monitors compliance with the global Convention Against Torture, adopted in 1984 and ratified by the United States 10 years later. State Department lawyers want the administration to abandon the position of the George W. Bush administration and state plainly that it will not engage in torture or cruel treatment of prisoners anywhere in the world, including at detention camps on foreign soil.

But military and intelligence officials don’t want the administration to make that public statement. They’re worried that such a declaration could result in the prosecution of the Bush-era officials who did practice torture.

That fear seems misplaced. There should be legal accountability from those who tarnished the country’s reputation by ordering and practicing torture, but it’s hard to see how agreeing to a global ban on torture now would increase the chances for such a prosecution. For one thing, Congress already passed a law in 2005 saying that no one in American custody shall be subjected to cruel, inhuman and degrading treatment “regardless of nationality or physical location.” Mr. Bush reserved the right to bypass the law, but the plain language of the statute is quite clear.

Last year, Harold Koh, then the top lawyer in the State Department, wrote a detailed, 90-page memo explaining why there was no legal basis to claim that the United Nations torture treaty didn’t apply to American officials acting overseas. The White House says it still prohibits torture or cruel treatment anywhere, but considers the treaty question a “technical” matter worthy of review.

Nearly six years after he stopped the practice, President Obama should not consider any legal loophole that might permit an American official to engage in torture or cruelty, no matter where it takes place. A clear position in Geneva would send a strong message that humane treatment isn’t just an Obama administration policy, but rather permanent national and international law."


"Obama And Torture: Another Win For The CIA?
Andrew Sullivan, the Daily Dish
OCT 20 2014 @ 12:15PM
Obama Departs The White House En Route To New York

There have been posts I’ve written over the past decade and a half on this blog that have left me with a very heavy heart. Absorbing the full meaning of what was revealed at Abu Ghraib was one; reflecting on the horrifying child-abuse in the Catholic church was another; reacting to president Bush’s endorsement of a Federal Marriage Amendment or president Obama’s half-assed decision to re-fight the Iraq War one more time were not exactly easy posts to compose. I confess I find it hard to write dispassionately about these kinds of things. The abuse of children; the torture of prisoners; the madness of permanent warfare; and the citizenship and dignity of gay people: these are first order questions for me. I understand, as we all must, that politics is an inherently flawed, imperfect, deeply human and always compromised activity. But some things are not really open to compromise. And torture is one of them.

The mounting evidence that president Obama’s long game may well mean the entrenchment and legitimization of torture and abuse of prisoners is a deeply painful thing to report on. He’ll say otherwise; they’ll reach out and insist otherwise. But the record, alas, is getting clearer by the day. We have seen Obama’s rock-solid support for John Brennan’s campaign to prevent any accountability, even to the point of spying on the Senate Committee tasked with oversight, across his two terms. We have watched as the White House has refused to open up its own records for inspection, as it has allowed the CIA to obstruct, slow-walk and try to redact to meaninglessness the Senate Intelligence Committee’s still-stymied report on torture. Our jaws have dropped as the president has reduced one of the gravest crimes on the statute book to “we tortured some folks,” while doing lots of “good things” as well.

Now for the moment when the stomach lurches. The Obama administration is actually now debating whether the legal ban on torture by the CIA in black sites and brigs and gulags outside this country’s borders should be explicitly endorsed by the administration in its looming presentation before the UN’s Committee Against Torture (which might well be an interesting session, given the administration’s consistent refusal to enforce the Geneva Conventions).

One has to ask a simple question: what on earth is there to debate? Torture as well as cruel, inhuman and degrading treatment has already been banned by the executive order of the president, and it is not bound by any geographical limits. Here, moreover, is the text of the Detainee Treatment Act, pioneered by torture victim John McCain, making it even more explicit:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

Well: here is the explanation, as given by Charlie Savage in the NYT yesterday:

Military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.

The CIA’s lawyers want more time to study whether banning torture and cruel, inhuman or degrading treatment of prisoners in line with the law and Obama’s executive order would have “operational impacts”. But how could it when torture and mistreatment are hereby forever banned? Doesn’t it imply that the CIA still sees an option for restoring torture in the future, especially if a pro-torture Republican wins the presidency?

A strong case for this interpretation can be read here in a post by David Luban. It’s essential, if complex, legal reading for anyone concerned that Obama, by taking the CIA’s side in this debate and promoting and exonerating those implicated in past torture, has actually left open the real possibility of this darkness descending again.

Savage has tweeted in response that “operational impacts” could merely refer to conditions of confinement, or force-feeding, rather than to torture and abuse more broadly understood. But the question is still vague – and we know enough about the appalling record of the CIA in this matter to suspect that even the tiniest loophole in the anti-torture regime – like those dutifully carved by Yoo, Bybee et al. – can lead to more war crimes, whose very existence can be suppressed.

You can see the inherent danger here:

Bernadette Meehan, a National Security Council spokeswoman, said Mr. Obama’s opposition to torture and cruel interrogations anywhere in the world was clear, separate from the legal question of whether the United Nations treaty applies to American behavior overseas.

Say what? Is she really saying that all that matters is that Obama personally opposes torture, regardless of whether the law says so or not? Does the administration think we’re that easily placated? Does the president think that another empty rhetorical gesture to his base will suffice – even though his administration intends to be mealy-mouthed about torture in front of the UN Committee and leave a gaping loophole for the next president to exploit?

Presidents come and go; Congressional majorities go back and forth; but the CIA remains. Because this administration never even considered enforcing the Geneva Conventions on the US – by refusing to investigate and prosecute acts of torture and abuse by government officials under the previous administration – the CIA knows it can get away with war crimes in plain sight. Emboldened by that knowledge, and eager to prove that its previous actions were completely legit, it seeks now to find ways to cover up the record, and get the Obama administration to endorse a loophole for the perpetuation of torture, thus cementing a bipartisan protection of war criminals and of war crimes and prisoner abuse. It does all this for the future: so that it will never be held accountable by any body, domestic or international, and so that it can torture and abuse again, if it decides it’s in the country’s best interests. And only it will make that decision. We know by now it needs no other sanction – just some legal shenanigans to cover its own ass.

So we have a true test of what this president is made of, as the administration preps for its first appearance before the UN Committee. Is this president serious about torture? Or is he a pawn, like so many before him, of a rogue agency that is accountable to no one?"


"Andrew Sullivan
The Daily Dish

The Struggle For Accountability On Torture
OCT 22 2014 @ 11:26AM
Redacted Document - see here.

A new story in the Huffington Post confirms what I’ve been fearing for a while now: that the Obama White House, in particular chief of staff Denis McDonough, is now pulling out all the stops to protect the CIA as far as humanly possible from any accountability over its torture program. If you want to know why the report has been stymied, and why something that was completed two years ago cannot even get the executive summary in front of the American people, the answer, I’m afraid, is the president.

You’d think his chief-of-staff would have better things to do right now than plead with Senators to protect and defend John Brennan, the CIA director who has put up a ferocious fight to avoid any accountability. But no:

During the last weeks of July, the intelligence community was bracing itself for the release of the Senate investigation’s executive summary, which is expected to be damning in its findings against the CIA. The report was due to be returned to the Senate panel after undergoing an extensive declassification review, and its public release seemed imminent.

Over the span of just a few days, McDonough, who makes infrequent trips down Pennsylvania Avenue, was a regular fixture, according to people with knowledge of his visits. Sources said he pleaded with key Senate figures not to go after CIA Director John Brennan in the expected furor that would follow the release of the report’s 500-page executive summary.

Weird, huh? What is at the heart of this Brennan-McDonough alliance? And then this staggering detail:

According to sources familiar with the CIA inspector general report that details the alleged abuses by agency officials, CIA agents impersonated Senate staffers in order to gain access to Senate communications and drafts of the Intelligence Committee investigation. These sources requested anonymity because the details of the agency’s inspector general report remain classified. “If people knew the details of what they actually did to hack into the Senate computers to go search for the torture document, jaws would drop. It’s straight out of a movie,” said one Senate source familiar with the document.

All of this is out of a really bad movie: CIA goons torturing prisoners with abandon, destroying evidence of war crimes, hacking into the Senate Committee’s computers, impersonating Senate staffers and on and on.

What really seems to have set off the alarm bells is what’s called the Panetta Report, an internal CIA review of its own torture program that somehow (almost certainly accidentally) got included in the document dump given to the Committee. That report is, by all accounts, damning about the torture program, especially its vaunted “effectiveness.” And you can see why Brennan panicked. How will the CIA attack the Senate report if its own report had come to the exact same conclusion? That’s what set off this drama – because Brennan knew at that point that the CIA was busted. Since then he and McDonough have done all they can to bury the truth, even as they are “debating” whether to allow a loophole for torture if conducted overseas.

What’s also disturbing is the weakness of the Democrats, with a few exceptions (thank God for Wyden and Udall). Feinstein seems to have retreated to her usual supine role, and there’s a sense that the political climate – with ISIS hysteria at epic levels – makes this kind of accountability politically toxic. You get a flavor of how the CIA will play this from this quote in the HuffPo piece:

“At a time when ISIS is on the march and beheading American journalists, some Democrats apparently think now is not the time to be advocating going soft on terrorists. The speculation I hear is that the Senate Democrats will wait until the elections are safely over,” said Robert Grenier, a veteran CIA officer who was the top counterterrorism official from 2004 to 2006.

No one is advocating “going soft” on terrorists. We’re advocating the rule of law and core adherence to the Geneva Conventions and a thorough review of war crimes under the last administration. Those are not weaknesses in a democracy’s fight against Jihadist terror. They are strengths. And they are not negotiable.

What I worry about is if the Republicans win the Senate next month, they could bury the report for good. I simply have to hope – remember that? – that the president means what he has always said, and that massive evidence of war crimes is not buried, even if no one in the CIA or the Bush administration will ever be held accountable for anything.

Release the report. And if it is so damning that Brennan has to go, that’s the price of democratic accountability. No one is indispensable. And no one should be somehow claiming in a democracy that they are.

(Image: A heavily redacted document from the CIA released in 2008)"


"Just Security
Just looking for loopholes…

By David Luban
Sunday, October 19, 2014 at 5:05 PM

…is what W. C. Fields supposedly said when someone found him leafing through the Bible. Apparently some lawyers in the Obama administration are following Fields’s lead, and may succeed in returning to the kind of loophole lawyering of the Bush administration’s “torture memos,” in order to fend off constraints on prisoner abuse abroad.

In today’s New York Times, Charlie Savage reports that the Obama administration is debating whether to circle back to a Bush administration interpretation of the Convention Against Torture’s ban on cruel, inhuman, and degrading treatment (CIDT) that doesn’t rise to the level of torture. The relevant treaty language is this (article 16 of CAT):

“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

The Bush administration understood this to mean that there are no obligations to prevent CIDT outside the territorial jurisdiction of the United States — in particular, in U.S. interrogation facilities abroad. Congress closed that loophole in 2005, and so did President Obama in Executive Order 13491, issued in his first days in office. The executive order requires that prisoners must be treated humanely and not subjected to cruel treatment, torture, or outrages on personal dignity, including humiliating and degrading treatment – and it applies everywhere, provided the prisoner is in the custody or effective control of the United States or its agents. Savage reports that some lawyers within the intelligence and military communities favor interpreting the CAT prohibition on cruelty in the Bush manner, as applying only within U.S. territorial jurisdiction. (Lest this seem obvious: Congress has extended U.S. jurisdiction to cover U.S. military bases and other U.S. “entities” in foreign states, which seems clearly to include interrogation facilities.)

So the current debate is about whether U.S. treaty interpretation should walk back from one of the signature Obama achievements: the end of torture and cruelty in our treatment of prisoners abroad. Savage reports that the State Department wants to maintain the global CIDT ban. Readers may recall that last March, a 90-page memo written in 2010 by then-State Department Legal Adviser Harold H. Koh was leaked, which argued strongly that U.S. obligations under CAT apply anywhere the U.S. has “effective control” — a broad reading of “jurisdiction” that includes occupied territory and U.S.-run facilities abroad. The memo apparently never gained sufficient traction to prevail, but at least some of it seems to be the position of the State Department today. But apparently the opinion is by no means universally shared. Savage writes:

But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts.
This indicates an unrepentant pro-torture (or at least pro-CIDT) contingent within the “military and intelligence” legal communities. The key sentence is the second: “They say they need more time to study whether it would have operational impacts.” What “operational impacts” are they talking about? [UPDATE: In response to what follows, Charlie has clarified on twitter. See the end of this post for his update and my further reflections.]

The geographically broad CIDT ban would have operational impacts only if the military and intelligence communities want to reserve the option of abusing prisoners abroad. And the implication is that they are worried about being legally constrained, and want their desired result (permission to engage in cruel, inhuman, or degrading treatment abroad) to dictate the legal interpretation. In other words: more result-oriented, if-we-want-to-do-it-let’s-twist-the-law-to-let-us-do-it lawyer games. Just looking for loopholes….

Of course, CIDT would violate the President’s executive order, so a further implication is that the (unnamed) military and intelligence lawyers are unabashedly looking toward a new day when some future president would lift the ban. The extraordinary thing is Savage’s report that the position has any traction at all in the administration.

What makes it all more puzzling is that the ban on CIDT is not a product solely of the Obama executive order. Congress wrote it into law in 2005 in the Detainee Treatment Act:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.
Not only does the DTA prohibit CIDT by the United States everywhere on the planet, it prohibits loophole lawyering to evade the ban. Its second clause is, almost in so many words, an anti-loopholing prohibition. So, regardless of how CAT’s CIDT prohibition is interpreted, prisoner abuse remains prohibited by U.S. law.

Here’s the puzzle: if U.S. domestic law clearly prohibits CIDT anywhere in the world, how could geographical interpretation of CAT’s prohibition “have operational impacts” on the United States?

What follows is a dark speculation: perhaps the “military and intelligence lawyers” think they can loophole the DTA, notwithstanding its anti-loopholing prohibition. That is because the Bush administration loopholed the CIDT ban in three different ways, and narrowing the geographical scope of the ban was only one of them.

The second loopholes the very definition of CIDT. When the Senate ratified CAT, it attached a reservation defining “cruel, inhuman, and degrading” treatment to be the cruel treatment prohibited by the Fifth, Eighth, and Fourteenth Amendments. The Eighth Amendment pertains to punishment, not interrogation, and it is not the main issue. The pertinent point is the Due Process Clause of the Fifth and Fourteenth amendments. The Supreme Court has held that it does not apply abroad. The Bush administration seized on this point to argue that nothing the US does outside the territorial scope of those amendments is cruel, inhuman, or degrading, as the terms are interpreted in U.S. law. (This argument appears in one of the torture memos, pp. 21-25 — although this memo predates the DTA, and was withdrawn by the Obama administration.) And therefore the DTA doesn’t prohibit it, nor does it prohibit loopholing interpretations.

In other words, the wording of the DTA might allow lawyers not only to loophole its CIDT prohibition, but also to loophole its prohibition on loopholing. They would do this by an argument that no prisoner abuse short of torture can be cruel, inhuman, or degrading if it is done abroad. Therefore the anti-loopholing clause doesn’t apply.

In real-world terms, this is crazy stuff: whether conduct is cruel, inhuman, or degrading does not depend on where it’s committed. The argument’s trick is to focus on the jurisdictional reach of the Fifth Amendment, rather than its substantive standard. When Alberto Gonzales floated the argument during his confirmation hearings for attorney general, Abe Sofaer, the State Department Legal Adviser when CAT was ratified, wrote to Senator Patrick Leahy that this was not at all the point of the Senate reservation. The point was to guarantee that the same substantive standard would govern CIDT both in and outside the United States — not to create a geographical double standard.

That still leaves a third method loopholing the DTA. A practice violates the Fifth Amendment if it “shocks the conscience,” and Bush administration lawyers interpreted some Supreme Court dicta as establishing a “sliding scale” whereby the more important the government purpose, the less the activity shocks the conscience. Then-OLC head Steven Bradbury used this argument in his CIDT memo (pp. 27-30). The interpretation of the Court’s cases is wrong, as my colleague David Cole has shown (pp. 459-61). But the problem is more basic. As I’ve written in my book Torture, Power, and Law (pp. 122-23), under this argument, whether prisoner abuse is cruel, inhuman or degrading depends not the abuse, but on the motive of the interrogator. That’s like arguing that a justified killing is not a killing. Just like the argument that cruelty and degradation abroad are not cruel or degrading, the argument that cruelty and degradation for a good purpose are not cruel or degrading wires untruthfulness into the very meaning of words.

It’s important to understand that the Obama executive order withdrew all these memos and repudiated their elaborate sophisms. But without resurrecting their arguments, it is hard to see how the military and intelligence lawyers Savage reports about could get around the domestic law against CIDT — both the Obama executive order and the Detainee Treatment Act. Only if they think they can get around this law would the interpretation of CAT’s ban on CIDT have any conceivable operational impact.

It’s alarming, but not entirely surprising, that there are lawyers in the military and intelligence communities who would like to roll back the legal bans on abusive interrogations abroad. What is more surprising is that they have enough confidence and temerity to take on the President’s own strongly-maintained policy so directly; and what’s more alarming is the possibility that his administration might cave.

UPDATE, Monday Oct. 20: In response to this post, Charlie Savage has tweeted: “Re CAT: doubt operational impacts=interrogations bc DTA/EO. Other treaties w/ similar applicability? Confinement conditions?” It is relieving to know that the “operational impacts” Charlie’s sources were referring to probably don’t pertain to interrogation. It would be more relieving if the sources had said explicitly what they were talking about. His two speculative questions about what those operational impacts are raise puzzles of their own. If the worry is about the implications of a broad reading of the “territory under its jurisdiction” clause for a panoply of other treaties, why would the State Department be on the opposite side from the military and intelligence communities? Presumably, only if the other treaties specifically pertain to military or intelligence activities. It would be useful to know which those are. The most obvious candidate is the International Covenant on Civil and Political Rights (ICCPR). A quick glance through the rights it enumerates reveals a couple that might be potential sore spots: the article 10 right of persons in custody to “be treated with humanity and with respect for the inherent dignity of the human person,” which might be thought too vague; and the articles 14 and 15 fair-trial rights, which might be thought to impose standards that the Guantanamo military commissions could be accused of not meeting, although obviously the U.S. government would disagree. Charlie’s query about conditions of confinement might also raise questions about Guantanamo, in particular force feeding of inmates, which many believe is cruel, inhuman, or degrading. The trouble with this speculation is that Guantanamo is territory under U.S. jurisdiction, so article 16 of CAT applies to it no matter how broadly its geographical scope is interpreted. Or is the worry about potential detention of enemies elsewhere, who might hunger-strike and be force-fed? This too would be puzzling. As I pointed out in the main post, the U.S. has interpreted “cruel, inhuman, or degrading” to incorporate the substantive standards of constitutional protections in U.S. domestic law. U.S. domestic law permits force-feeding of prisoners to save their lives, so — once again — the geographical scope of CAT’s prohibition on CIDT would not have operational impact.

In short: if Charlie is right, my “dark speculation” about interrogation can thankfully be rejected. But the questions raised by his story are themselves puzzling enough that — pending some further illumination — I don’t see many alternative explanations that aren’t troubling in their own right.


David Luban is University Professor in Law and Philosophy at Georgetown.

Tuesday, October 21, 2014

Sahar's prose poem on war and home

Sahar is an Afghani-American who speaks in a prose-poem of war and desolations (h/t Wynn Walent):

Father jokes, your birth was a curse. I had ushered in the Soviet Invasion. The fabric is much longer than me, but it's true, too: as long as I've been alive, the single cord of war peals.

I know, too, the ease of reflecting from this position, this location, these years we watched through the screen. How, then, to say my heart is with you? And say it without taking anything from you? To say, no, I do not know either, I do not know either the way through, but surely, it cannot be this.

To say to my cousins there and who live in service, who are the youth, the next, the ones always inheriting. To say to the youth, to the artists, to the writers, to the journalists who die trying. Say yes in the dark.

To say to Mama Rahmat, who hoped with his entire life to see the day the flowers would return. To Shakila jan, who burned her body out of red despair. To Baxto jan, whose husband is forbidden from selling fruit. To Zaynab jan who measured time by the sound of rockets. To Shaima jan whose spirit is a broken mirror we snatched our reflection from.

Millions sent across the earth, beneath the earth, outside the Indian Consulate begging for a visa. May the ministers have fruit and polished shoes.

In 2005, landing home for the first time in 25 years, father kissed the ground.


Sahar Muradi is an Afghan-born, Florida-grown, NY-based writer and performer. She is co-editor, with Zohra Saed, of One Story, Thirty Stories: An Anthology of Contemporary Afghan American Literature (University of Arkansas Press, 2010). Sahar has an MPA in international development from New York University, a BA in creative writing from Hampshire College, and is currently an MFA candidate in poetry at Brooklyn College.

Saturday, October 18, 2014

Poem - Nam: 40 years

For two other poems in this series, see here.


One took his own life

one drank his way

out of this world

one became University President

mourning the women and

children he shot

in a village

one thrown out of school

at night

fighting the war

gathered himself against the storm

Wednesday, October 15, 2014

Two poems: between

1. Hades

FDR enthusiast


“Big Red

from death

tookalanterntothedark latrin e

flippedbackwards into



and little Red,” he said

veno m ous

“Red, you’re covered in

like c o b r a

shiverin g

2. Off to Korea!

Marvin Purpur lent me Peanuts
Charlie Brown’s
to keep
Americanshootup in Asia


did not return

Tuesday, October 14, 2014

The JeffCO School Board and the Pentagon's "Vietnam"

“You can’t separate this effort to justify the terrible wars of 50 years ago from the terrible wars of today,” said Phyllis Bennis, a Middle East expert who has known Mr. Hayden since the early 1970s. “When I saw this (the Pentagon's version of Vietnam, what the JeffCO School Board dreams of), I thought immediately, ‘We’ve got to stop this.’ ”


A week ago Thursday night, the infamous JeffCO School Board, isolated by a large group of determined students, teachers and parents - voted its censorship resolution (literally, a committee to make recommendations for "correcting" history courses to the School Board). They had to have lots of police and guards and monitors, polite but doing an awful job. For they kept hundreds of students and teachers outside, allowing only a handful of people to come up.

The Board had a fifth floor room for but 200 people (including - perhaps - 30 supporters of theirs) and kept more than a thousand outside.


If you want to airbrush history, you have to exclude a lot of people...


Given the protest, the Board allowed two hours of testimony - an extension from the 30 minutes promised - but only allowed most of us to speak for a minute with a timer, representatives of groups for 3 minutes (they had put on their website 3 minutes for each person if you signed up).


Many students and parents - the teachers had had a march and were in a crowd outside but not admitted to speak - were eloquent. Paula Bard, my wife, testified and so did I. I was admitted to the main room through persistent effort (asking over and over...), and sat down front in a little group of what turned out to be mainly the Board's supporters. They were disruptive (hooting at people who spoke when the 1 minute deadline was up or groups of students when 3 minutes were up) and motivated by hatred of the teacher's union...


Given their loudly expressed terror, I asked: how come the only teacher who has spoken is a supporter of the School Board?


They saw demons but provided no answer.


That curriculum be set by historians and not by McCarthys or nativists for anti-educational purposes was thrown aside by the School Board's 3 to 2 vote. "American exceptionalism," suggested by a disgruntled Pennsylvania teacher named Larry Krieger, echoed by the Republican National Committee, and bankrolled by reactionary money means: don't say that the Founders not only pressed for the Bill of Rights but were often also slaveowners; don't say that across the country, starting in 1638 Pequot massacre, American cities were founded and universities built on the wiping out of indigenous people...


Krieger is the author of an ap "text." Perhaps he would have to revise it...


To congratulate itself for bad things and repress or disappear some of its citizens, every country says its history is "exceptional."

Germany, on the contrary, has memorials about the Holocaust (and look what it took...).


Sometimes, a country does things that are new, inclusive and genuinely good, i.e. the fight for unions, the civil rights movement, the women's movement, the fight against bigotry toward gays and lesbians...

Note that these struggles - fight for and embodying democracy and the defense of basic rights - wells up from below.


As a people, we are slowly coming to honor the Bill of Rights and freedom of speech and conscience, to respect the truth, to listen to the voices of those previous enslaved, slaughtered, demeaned and still courageously present.


Inclusion, fighting for the truth and trying to become a more democratic, mutually recognizing of each person society - a society which has defeated the sense of "nobodiness" (King, "Letter from the Birmingham City Jail"), recognizing the dark side and fighting to overcome it - that gives people a wonderful feeling of having done something important.


This School Board - and the Republican National Committee - represent only exclusion (suppress those voters, exclude that history).


Serious conservatives often stress small government, the rule of law (no torture, preservation of basic rights, no police murders of Michael Brown in Ferguson and others), no crusading wars on far sides of the world to impose America's will on other (Vietnam, the now three wars in Iraq, as chaos grows...).


In contrast, those on the Board puff themselves up as A Censoring Big Government, limited only (they are now a nationwide laughing stock...) by protest.


They, like the Republican Party (Ron Paul excepted), are imperial authoritarians, not, as they are often mislabeled in the corporate press, "conservatives."


What is good in Jefferson County - democracy and openness to the truth- is represented by the students, by the teachers who called in sick or marched and by 2 members of the School Board (Lesley Dahlkemper, Jill Fellman).


Aside from mass nonviolent resistance, there is, and will now be, no decent education in Jefferson Country (the largest school district in the country) while this school board majority survives (and it has 3 years to go unless removed by recall - see here).


Paula Bard, my wife testified at number 92. Here is her original statement - timed for 3 minutes - which she cut down to 1 minutes speaking at the Board:

"To the Jefferson County school board:
We have been parents of children in this district for 20 years.

I do NOT want to see a committee formed to review texts to make sure that materials "promote citizenship, patriotism, essentials and benefits of the free-market system, respect for authority and respect for individual rights" and don't "encourage or condone civil disorder, social strife or disregard of the law.”

It would be ridiculous to try to teach US history without reference to social strife and civil disorder, they have been the bedrock of the country since its inception, from the revolution to the fight for women’s rights, civil rights, native genocide, Vietnam, immigrant and gay rights.

This current right wing take over of the board has caused enormous disruption, conflict and wasted money. They have no business dismantling a perfectly functional school district with their code words for extremist -- anti union -- anti intellectual -- rah rah free-market capitalism -- bring back Ronald Reagan -- dismantle the New Deal -- agenda. This is about turning US history into high school 'classrooms for propaganda', nothing more. And we have certainly seen a long sordid history of propaganda in classrooms — a standard tool for every totalitarian government the world has ever known.

But to quote the National Coalition on Censorship, “Decisions about instructional materials should be based on sound educational grounds, Not because some people DO or DO NOT agree with the message, ideas, or content of a particular book or lesson. (They and I) strongly urge you to adopt policies and procedures that focus, not on molding patriots or citizens in a particular image, but on educating students to be informed, knowledgeable, thoughtful, and engaged participants in their communities.”

As we have seen this past week, I might add. . . !"


Some of the students pointed out that those who do not learn from history are doomed to repeat hopeless aggressions. And here is Chuck Hagel's (used to be a smart guy about Vietnam) Pentagonizing that War by celebrating decorated veterans who did not protest (and missing the many who did), suppressing any recognition of American genocide against some 3 million Vietnamese (those killed as a result of American aggression), and omitting anti-war protest.


During Vietnam, some 70% of American students polled thought a violent revolution was needed in this country.


In three separate wars, the US government now destroyed the Middle East (IS is the latest incarnation of the chaos and barbarism unleashed by the Project for a New American Century/Bush administration/Democratic sycophant project to remake the Middle east by war. It has been "remade" (fortunately, Americans are not just gearing up to march in a hopeless imperial enterprise...).


Even the Democrats, including Obama's assistants, are mongers of "endless war" and Obama is now emulating, the vapidity of neocons, Hillary, Panetta et al. For a commentary on the rapacious Leon Panetta, see here.


But according to the JeffCO School Board "Three," Vietnam protest did not exist and the Iraq wars are a source of pride, perhaps even "exceptional"...


"Pentagon’s Web Timeline Brings Back Vietnam, and Protesters

The New York Times
Oct. 9, 2014

Tom Hayden, part of a group objecting to the Pentagon’s history of the war. © Emily Berl for The New York Times Tom Hayden, part of a group objecting to the Pentagon’s history of the war.

WASHINGTON — It has been nearly half a century since a young antiwar protester named Tom Hayden traveled to Hanoi to investigate President Lyndon B. Johnson’s claims that the United States was not bombing civilians in Vietnam. Mr. Hayden saw destroyed villages and came away, he says, “pretty wounded by the pattern of deception.”

Now the Pentagon — run by a Vietnam veteran, Defense Secretary Chuck Hagel — is planning a 50th anniversary commemoration of the Vietnam War. The effort, which is expected to cost taxpayers nearly $15 million by the end of this fiscal year, is intended to honor veterans and, its website says, “provide the American public with historically accurate materials” suitable for use in schools.

But the extensive website, which has been up for months, largely describes a war of valor and honor that would be unrecognizable to many of the Americans who fought in and against it.

Leading Vietnam historians complain that it focuses on dozens of medal-winning soldiers while giving scant mention to mistakes by generals and the years of violent protests and anguished debate at home.

The website’s “interactive timeline" omits the Fulbright hearings in the Senate, where in 1971 a disaffected young Vietnam veteran named John Kerry — now President Obama’s secretary of state — asked, “How do you ask a man to be the last man to die for a mistake?” In one early iteration, the website referred to the 1968 My Lai massacre, in which American troops killed hundreds of Vietnamese civilians, as the My Lai Incident.

The glossy view of history has now prompted more than 500 scholars, veterans and activists — including the civil rights leader Julian Bond; Daniel Ellsberg, who leaked the top-secret Pentagon Papers; Lawrence J. Korb, a former assistant secretary of defense under President Ronald Reagan; and Peter Yarrow of the folk trio Peter, Paul and Mary — to join Mr. Hayden in demanding corrections to the Pentagon’s version of history and a place for the old antiwar activists in the anniversary events.

This week, in a move that has drawn the battle lines all over again, the group sent a petition to Lt. Gen. Claude M. Kicklighter, the retired Vietnam veteran who is overseeing the commemoration, to ask that the effort not be a “one-sided” look at a war that tore a generation apart. General Kicklighter declined to be interviewed, but a Pentagon spokesman, Lt. Col. Tom Crosson, said in an email that the mission of the commemoration, as directed by Congress, is to “assist a grateful nation” in thanking veterans and their families. He said the Pentagon was willing to make corrections “when factual errors or potential mischaracterizations are brought to our attention,” and that “there is no attempt to whitewash the history of the Vietnam War.”

The team has already changed some facts: After Nick Turse, the author of a book on Vietnam, noted the My Lai Incident reference in a February article on the website TomDispatch, the language was revised to read, “American Division Kills Hundreds of Vietnamese Citizens at My Lai.” It still does not use the word massacre.

Daniel Ellsberg, who leaked the Pentagon Papers. © Leon Neal/Agence France-Presse — Getty Images Daniel Ellsberg, who leaked the Pentagon Papers.
Mr. Hayden, 74, and other 1960s-era activists who helped him gather signatures, say they do not quarrel with honoring the sacrifice of soldiers. But they object to having the military write the story.

“All of us remember that the Pentagon got us into this war in Vietnam with its version of the truth,” Mr. Hayden said in a recent telephone interview from Berkeley, Calif., where he attended a rally to mark another 50th anniversary, that of the free-speech movement. “If you conduct a war, you shouldn’t be in charge of narrating it.”

Vietnam historians are also troubled. Fredrik Logevall, a Cornell University professor whose book on Vietnam, “Embers of War,” won the 2013 Pulitzer Prize, said the website lacked context and that the timeline “omits too many important developments, while including a significant number of dubious importance.” Edwin Moise, a Vietnam historian at Clemson University, said he found numerous minor inaccuracies on the site.

The presidential historian Robert Dallek, meanwhile, said he would like to see the anniversary effort include discussion of “what a torturous experience” Vietnam was for presidents. "It’s hard to believe this is going to be an especially critical analysis of the military,” he said.

Congress authorized the commemoration in 2008, when it adopted a bill that directed the Defense Department to “coordinate, support and facilitate” federal, state and local programs associated with the 50th anniversary of the war. On Memorial Day 2012, President Obama issued a proclamation establishing a 13-year program, lasting until 2025, “in recognition of a chapter in our nation’s history that must never be forgotten.” That day, he spoke at the Vietnam Veterans Memorial in Washington.

Few details of the plans have been made public. But in a 2012 interview with the website HistoryNet, General Kicklighter said the commemoration would begin on Memorial Day 2015, when “we will begin to recruit the nation to get behind this effort in a very big way” and that the most active phase would conclude by Veterans Day 2017.

He promised “educational materials, a Pentagon exhibit, traveling exhibits, symposiums, oral history projects and much more.” The mission, he said, is to “help the nation take advantage of a rare opportunity to turn back to a page in history and to right a wrong, by expressing its honor and respect to Vietnam veterans and their families.”

But in antiwar and peace advocacy circles, unease has been percolating for some time. Veterans for Peace, an antiwar group based in St. Louis that includes many Vietnam veterans, has been talking since Mr. Obama’s speech about an “alternative commemoration,” said its executive director, Michael McPhearson.

Mr. McPhearson was unaware of the Hayden petition. “One of the biggest concerns for us,” he said, “is that if a full narrative is not remembered, the government will use the narrative it creates to continue to conduct wars around the world — as a propaganda tool.”

Mr. Hayden said he was particularly incensed at timeline entries like one that describes the Pentagon Papers as “a leaked collection of government memos written by government officials that tell the story of U.S. policy, even while it’s being formed” — without noting the Nixon administration’s effort to prevent their publication, or that Mr. Ellsberg and another leaker, Anthony Russo, were tried as traitors. And while the website does mention some protests, the references are often brief and clinical.

On Nov. 15, 1969 — when 250,000 antiwar protesters jammed Washington in what was then the largest mass march in the nation’s capital — the timeline entry simply states, “Protesters stage a massive protest in Washington D.C.”

Mr. Hayden’s petition grew out of conference calls with others in his antiwar network, including David Cortright, now a scholar at Notre Dame, and John McAuliff, a former conscientious objector who runs a nonprofit organization devoted to reconciliation between the United States and Vietnam.

The effort is also something of a reunion for the group. After scanning the list of signatories, Mr. Ellsberg, 83, exclaimed, “God, I’m glad they’re all alive!”

Many of the longtime activists also see the petition as deeply relevant today.

“You can’t separate this effort to justify the terrible wars of 50 years ago from the terrible wars of today,” said Phyllis Bennis, a Middle East expert who has known Mr. Hayden since the early 1970s. “When I saw this, I thought immediately, ‘We’ve got to stop this.’ ”

Friday, October 10, 2014

Bill Arthrell's poem: America

Bill Arthrell, a veteran of Kent State, who has continued, as a dedicated teacher in Ohio, to note some truths about America. perhaps here missing Langston Hughes' grand "America will be" for the promise, in America as elsewhere, is not a false promise (it is perhaps implied in his line "Whitman said it Right...") - has also worked on a kibbutz (he wrote to me of some joy in the collective experience, of exploitation and that Israel was the most racist society he had seen):


The Aggressive,
The Flamboyant.
All Ego and Ambition.
It is Not Whitman’s
Rolling farms of Ohio
Or the Vibrant Docks of Manhattan—
Or Thomas Wolfe’s
Of Sun
Piercing Divinity
To light up Carolina’s
Broken Back of Tobacco.

It is not Thomas Jefferson’s Documents,
Thomas Jefferson’s slaves.
Even though
Were liberated 150 years ago
They were recast into
Jim Crow, lynchings,
Unjust incarcerations.

Then came immigrants—
Russia, Poland, Slovenia—
The Chains of Factory Labor,
12 Hours, 6 Days a Week—
7 Days even.
Or Simple Farmers
In Minnesota, Iowa—
Not Whitman’s Majestic Prairies,
But harsh winters, harsh summers,
The harshest work
Of Endless Wheat.


And the Blind Streets of New York, Philadelphia—
Sightless of Poverty,

Whitman said it Right,
But got it Wrong—

The Dazzle of America
The Strip in Vegas—
Foreclosure of homes,
The Crash of Wall Street—
Golden Parachutes for Them,
Golden Arches for us.

The Pentagon
Bringing down the Mist
On Iraq, Afghanistan.
The Mist
Of Smart Bombs,
Another Dead Wedding Party.

The bones of Cochise,
The Navajo
Are roads now—
Interstates delivering
The Oil
It takes to drill for More Oil.

Endless Cycle of Avarice—
That America,
The Dead America—
The Glory of the Constitution,
The Grandeur of the Declaration—
The America that Isn’t,
The America that Never Was.

-Bill Arthrell, June 7, 2012,
Cleveland Hts., Ohio.