This really smart professor suggests something we can do about the Bush regime's war crimes

"Absent a reckoning for those responsible for torture and cruel, inhumane, and degrading treatment -- our own federal government -- the healing cannot begin."

-- David Cole, in "What to Do About the Torturers?"
in the Jan. 15 New York Review of Books

by Ken

It's a relief to find that some really smart people are worrying about some of the same stuff I am. On Friday, you'll recall, I asked, "Is there anything we can do about the criminals Chimpy the Prez and 'Big Dick' Cheney?" Note that I was referring to the full range of crimes committed by the Bush regime, the domestic ones (notably the plundering of the Justice Dept.) as well as the international ones (including what surely need to be treated as war crimes). Since then I've had a chance to look at the above-cited review-essay by David Cole, a Georgetown law professor (and, as he notes in a footnote, a member of the board of the Center for Constitutional Law).

Among the books considered, by the way, is the painstaking investigation of the story of torture at Guantanamo by the amazing British legal scholar-activist Philippe Sands, who made such an impression with his House Judiciary Committee testimony and TV appearance with Bill Moyers last May. Another of the books is The Trial of Donald Rumsfeld: A Prosecution by Book by Michael Ratner and the Center for Constitutional Rights. (This is where Professor Cole has occasion to note his connection to the Center, adding that "I did not take part in the efforts to have criminal proceedings initiated against Rumsfeld.")

Cole isn't optimistic about real war-crimes trials against the Bush regimistas, legally warranted though they may be. For one thing, they took pains to insulate themselves from any such possibility by "grant[ing] retrospective immunity to officials involved in the interrogation of al-Qaeda suspects in the wake of September 11" in the Military Commissions Act. For another, "The Justice Department's 'torture memo' would be a legal defense for any but the lawyers who wrote it."

And while it's technically possible for our suspected war criminals to be indicted and tried by tribunals abroad, Cole doesn't see that happening either: "As a matter of realpolitik, it is difficult to imagine any nation greeting the Obama administration with an international prosecution of former high-level US officials."

Still, Cole insists (bless him!), "Even if criminal prosecution seems unlikely, the acts of the past administration demand accountability." (The boldface is my embellishment.) He goes on to quote a statement from several months ago by Attorney General-designate Eric Holder:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.

Yes, Mr. Attorney General!

Cole argues, "Without prosecutions or an independent investigation, significant progress toward repudiating the administration's approval of cruelty and torture has already been made." He cites the Supreme Court's 2006 rejection of "President Bush's position that the Geneva Conventions do not apply to the conflict with al-Qaeda"; the military's return to the no-torture policy set out in the Army Field Manual; reports of the CIA's abandoning waterboarding; and positions taken by various other government officials against the use of torture.

However, he understands that this still isn't enough:

The United States has never taken full responsibility for the crimes its high-level officials committed and authorized. That is unacceptable. In the long run, the best insurance against cruelty and torture becoming US policy again is a formal recognition that what we did after September 11 was wrong -- as a normative, moral, and legal matter, not just as a tactical issue. Such an acknowledgment need not take the form of a criminal prosecution; but it must take some official form.

"We have been willing to admit wrongdoing in the past," he says, citing the official apology signed by President Reagan in 1988 for the Japanese wartime internments, including payment of reparations. "That legislation, a formal repudiation of our past acts, provides an important cultural bulwark against something similar happening again."

And he concludes:

We cannot move forward in reforming the law effectively unless we are willing to account for what we did wrong in the past. The next administration or the next Congress should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies. If it is to be effective, it must have subpoena power, sufficient funding, security clearances, access to all the relevant evidence, and, most importantly, a charge to assess responsibility, not just to look forward. We may know many of the facts already, but absent a reckoning for those responsible for torture and cruel, inhumane, and degrading treatment -- our own federal government -- the healing cannot begin.

Thanks, professor! That's something.

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Who wants to think about torture, especially on Sunday? Let Philippe Sands explain how it doesn't work, and added 15-20 years to the I.R.A. conflict

And watch for Philippe's "Monty Python moment"
during his House subcommittee testimony!

"What do we do in the face of evidence that [torture] works? But there isn't evidence that it works. The British experience is that it doesn't work, the Spanish experience is that it doesn't work, the Egyptian experience is that it doesn't work -- in the sense of producing meaningful information that is going to protect a country. Sure, it produces information. But as John McCain said in his interview in 1997, it produces the wrong information. Because someone who's subject to that sort of pain and suffering is going to do anything they can to stop it from happening. And they will tell the person who is abusing them what the person wants to hear, and nothing more and nothing less."

-- Philippe Sands, on Friday's Bill Moyers' Journal

Yesterday I promised some backup for the blunt proposition advanced by super-lawyer Philippe Sands -- author most recently of Torture Team: Rumsfeld's Memo and the Betrayal of American Values -- that torture doesn't work. (Again, you'll find the whole of his remarkable 40-minute interview with Bill Moyers on the Bill Moyers' Journal website. The video of the Sands interview, with transcript, is here, and just the transcript is here.)

To round out his powerfully Moyers-esque opening, Bill showed a clip from Professor Sands's testimony this week before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee:

BILL MOYERS: Rep. Mike Pence of Indiana chided critics who questioned using tough interrogation such as 9/11 mastermind Khalid Sheikh Mohammed, also known as KSM.

clip of REP. MIKE PENCE: Some, of course, have suggested that relationship-building interrogation techniques are preferable and even more reliable in the long-run than stress methods. They raise the question, though, what about the hard cases? And I can tell by your grin you acknowledge the somewhat absurd thought that you could move people who have masterminded the death of more than 3000 Americans by Oprah Winfrey methods."

PHILIPPE SANDS: I did smile because, frankly, the image that weeks and weeks of rapport-building with KSM is somehow going to produce results is counterintuitive. But the reality is we don't know. And I spoke in my investigation to a lot of interrogators -- military, FBI -- who basically said, "Coercion doesn't work. You get information that they want to give you that they think is going to stop the pain from happening."

In the course of the interview, they got to the heart of the matter:

BILL MOYERS: Did you learn that people will say anything to stop the torture?

PHILIPPE SANDS: Well, actually, I think it's self-evident that that is what happened. If you speak to interrogators, they will tell you that aggressive techniques of interrogation don't work. They don't produce meaningful information. And just the other day, I was listening to a very interesting tape of John McCain. And he explained how he, in the end, had signed a confession, owning up to crimes against children and women in North Vietnam, basically because he had reached a point, he thought he wouldn't be broken, where he had reached a point where he simply couldn't bear it any more, and he wanted the pain to stop. And the only thing he could do was to tell them what they wanted to know. And that's, that's what interrogators will tell you. Abuse produces information that is the information the detainee thinks you want to know, and nothing more than that. It's not reliable.

BILL MOYERS: Going back to the hearings, one member of the committee, Rep. Trent Franks of Arizona, a Republican, said, and I quote: "The results of a total of three minutes of severe interrogations of three of the worst terrorists were of immeasurable benefit to the American people. A full 25 percent of the human intelligence we've received on Al Qaeda came from just three minutes worth of rarely used interrogation tactics."

PHILIPPE SANDS: Well, I remember that very well. And I appreciated very much everything that Representative Franks had to say. But I've described that to my friends in London as a sort of Monty Python moment in the hearing. Because he alleged that there had been three individuals waterboarded. They had been waterboarded for no more than one minute each. And they had spilled the beans. And I was sitting there watching him and thinking, well, that's new information. I've never heard that before. Where on earth does that come from? Counterintuitively, I can't imagine how a waterboarding of one minute is suddenly going to produce useful information. We don't even know if it is useful. But also, imagine the scene. You've got guys there with stopwatches. We're gonna waterboard him for one minute, and then we will stop. And in that one minute, everything will come up. I don't know where he got all that from. I thought he sounded as though he made up on the stop. We don't have any objective evidence that any of these interrogation techniques have produced any useful information. KSM, you've referred to, has owned up to virtually everything under the sun that has happened that is bad for the United States in the last five years. And I find that counterintuitive to common sense. I would say I don't have actual information on KSM. I do have actual information on detainee 063. I spent time, as I describe in the book, with the head of Mohammed al-Qahtani's Exploitation Team. And the bottom line of it was, contrary to what the administration said, they got nothing out of him.

BILL MOYERS: There's another witness who appeared this week when you did, David Rivkin, a lawyer, lots of government experience, lots of experience in the law. And he directly challenged you in his testimony.

clip of DAVID RIVKIN: I think that it is a moral copout to argue that coercive techniques did not work. Because if they don't work, there would be nothing to debate. Coercive techniques do work. There's plenty of evidence to that effect.

PHILIPPE SANDS: Look, Bill, I've spent 20 years during courtroom work as a litigating lawyer. I like to see evidence on things. I like arguments to be based on evidence. David Rivkin is unable to provide any evidence. I have honed in on the interrogation of one man, detainee 063. The administration has publicly declared they got a mass of information out of him that related to all sorts of extraordinarily important things to protect the Americans.

I then spoke to the people who were involved in his actual interrogation and the head of his Exploitation Team. That's not what they told me. If the evidence I had been given had been different, then I would reach possibly a different conclusion. Not as to the legality or the utility of torture, but what do we do in the face of evidence that it works? But there isn't evidence that it works. The British experience is that it doesn't work, the Spanish experience is that it doesn't work, the Egyptian experience is that it doesn't work -- in the sense of producing meaningful information that is going to protect a country. Sure, it produces information. But as John McCain said in his interview in 1997, it produces the wrong information. Because someone who's subject to that sort of pain and suffering is going to do anything they can to stop it from happening. And they will tell the person who is abusing them what the person wants to hear, and nothing more and nothing less.

HOW TORTURE EXTENDED THE I.R.A. CONFLICT 15-20 YEARS

"The thinking in the British military and the thinking across the board politically -- it's really not a left-right issue, it's a broad consensus in the United Kingdom -- is that coercion doesn't work. The view is taken in the United Kingdom that it extended the conflict with the I.R.A. probably by between 15 and 20 years."

-- Philippe Sands, in the Bill Moyers interview

Here are Bill and Philippe talking specifically about the British experience with I.R.A. terrorism:

BILL MOYERS: You told the committee this week that the British experience in fighting the terrorists of the I.R.A. actually extended the conflict 15 to 20 years. What's the evidence for that?

PHILIPPE SANDS: The story's a simple one. Back in '71, '72, the British moved as the United States has done now, to aggressive techniques of interrogation. They used pretty much the same techniques: hooding, standing, humiliation, degradation. Five techniques, they were called. And --

BILL MOYERS: What kind of techniques?

PHILIPPE SANDS: Five. They're known as the Five techniques. [After the British domestic law-enforcement-and-spying agency MI-5, one presumes.--Ed.] They went up to court, actually, and they were ruled to be illegal -- in 1978 by the European Court on Human Rights. But there was a bigger problem, even beyond their illegality, in my view. And that was this: That what the use of those techniques did was to really enrage part of the Catholic community, who felt that I.R.A. detainees alleged to be terrorists, were being abused. And it turned people who were perhaps unhappy with the situation into being deeply and violently unhappy with the situation. And if you speak to British politicians who were involved in that period, and the British military, what they'll tell you is that there is a feeling that the use of those types of techniques extended the conflict.

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Just because Americans aren't ever likely to arise en masse against the practice of torture doesn't mean we can relax our efforts to put a stop it

"What hasn't happened before is the abandonment of the rules against cruelty."

--international law expert Philippe Sands, on Bill Moyers' Journal

If you have a chance to catch a PBS repeat of last night's Bill Moyers' Journal, don't miss it -- or check out the video (and transcript) and other coverage on the Journal area of the PBS website. Roughly the first 40 minutes are devoted to a remarkable interview with a remarkable Briton, a breathtakingly articulate law professor and international lawyer named Philippe Sands, who knows more about the subject of torture and probably more about America than anyone you're likely to have heard lately.

Most recently, Sands has (1) published an apparently astonishing new book called Torture Team: Rumsfeld's Memo and the Betrayal of American Values, and (2) testified on the subject before Rep. Jerrold Nadler's Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee.

Here's part of how Moyers introduced Sands:

After 9/11, writes Philippe Sands, our highest government officials sanctioned a "culture of cruelty" that put our troops, our Constitution, and our own standing in the world at risk. This week, members of the House Judiciary Committee began hearings trying to find out how the President came to approve "enhanced interrogation methods" — that's the official code for the use of cruelty in the pursuit of confession. The administration has been fighting to stop a public accounting of the internal decisions behind that policy. The officials who took part in those discussions fear they could one day face prosecution if their actions turn out to have been illegal. Those key officials talked to Philippe Sands for his book, and this week he was asked to testify at those hearings in Congress.

I want to come back to this interview when I've had a chance to look at it again and digest it more fully. Meanwhile thanks to Sam Seder for tipping us off to Sands, whom he had as a guest on his Air America Radio show this week in connection with his House testimony. And Sam sent out a clip (which I tried but failed to embed) of Senator McCranky on 60 Minutes in October 1997 acknowledging that during his POW captivity in Vietnam, he broke under torture and "confessed" to assorted crimes against the Vietnamese people.

It's a point that Sands made again in his interview with Bill Moyers, and in case the point isn't obvious, we'll come back to it.

Now, torture is an exceedingly complex issue. Not on the merits, as Sands points out, because there is remarkably little civilized disagreement that it's wrong from a human and moral standpoint. There is even surprisingly little disagreement among professional interrogators that it's wrong from a practical standpoint: The "information" produced under torture is overwhelmingly likely to be whatever the torturee has to say to get the torture to stop, which is saying what the torturer wants to hear, whether it's true or not. Sands cites the example of Britain's long struggle with Irish separatists, which he argues was prolonged for an unnecessary 15-20 years by the government's use of torture.

No, where the complexity of torture kicks in is in the perception. I don't want to say "most people," but certainly a lot of people think it's just fine under the right, admittedly extreme circumstances, and that it produces life-saving, even civilization-saving results,

There are even professionals who hold this view, but they are the sort of professionals who, for example, will pontificate about waterboarding being a perfectly acceptable procedure, even claim to have undergone it themselves, when of course they knew from the first drop of water that entered their throat that it would stop, which is exactly what the actual waterboarding victim does not know -- and therefore makes their experience in no imaginable sense waterboarding. In other words, these macho morons who imagine that they have firsthand knowledge of the subject actually know less about the subject than anyone on the planet, because everything they think they know is 100 percent, no 200 percent wrong.

And of course the ordinary Americans who reflexively don't mind or even, deep down, approve of torture are just as wrong. I realize this blunt statement will cause a lot of screaming, but let's come back to that another time -- with some documentation from Philippe Sands. (Actually, there is an extended exchange in the Moyers inteview that makes the case remarkably succinctly. Maybe we can get to that later today.)

For now, though, I just want to make two points.

(1) TORTURE IS UN-AMERICAN

First, there's Sands's extended title: Rumsfeld's Memo and the Betrayal of American Values. He argues that official acceptance of torture as acceptable is in fact profoundly anti-American, and that this isn't just theoretical -- that in fact some of the most important backlash against abuses like those occurring at Guantanamo and Abu Ghraib came from within the U.S. military itself, where there was apparently a deep and widespread revulsion against the wholesale overturning of the U.S. Army Field Manual, with its careful incorporation of the principles of the Geneva conventions.

The revulsion against torture, it turns out, is deeply embedded in American principles, and not least in the military itself. Of course, Sands acknowledges, torture has taken place before under U.S. government auspices. However, from an official government standpoint, "What hasn't happened before is the abandonment of the rules against cruelty."

For the book, Sands talked to the people actually involved in the revolution in U.S. torture policy. He worked his way up the government legal chain, from the lawyers "on the ground" all the way up to Jim Haynes, "Mr. Rumsfeld's lawyer." If you're dying of suspense, I can tell you that all fingers point to one legal architect of the new policy, David Addington, who of course is Dick Cheney's lawyer, and can be presumed to have been acting on the instruction of his master.

(2) McCRANKY KNOWS THAT TORTURE VICTIMS LIE

Okay, so torture is deeply un-American. It's still true that an awful lot of Americans don't know that torture is deeply un-American. And for this reason, I have to part company with some of the blogospheric denizens (and other commentators) I respect most deeply and say that I don't think torture is now or is ever going to be a productive political issue. Yes, it's outrageous, but the mass of Americans don't care and don't want to know.

Oh sure, there was a lot of revulsion to those amateur photos of the sickening goings-on at Abu Ghraib. But did you notice how that stopped, how it all went away?

A lot of Americans who were paying some attention managed to explain it away. Oh, it's faked, or exaggerated, or taken out of context. Oh, that sort of thing always happens. And in the extreme case, they applied the equivalent of a solution that the Car Talk guys [that's Ray and Tom at right] often suggest when a caller reports having an annoying noise in his/her car: Can you turn the radio up? If your goal is just not to hear the noise, there are almost always of managing it.

So I have to say to colleagues of mine who are waiting for great waves of popular revulsion to arise at the disclosure, for example, that Chimpy the Prez himself participated in meetings where new horizons in official American torture were thrashed out: It's not going to happen. The people who watch that dumb, utterly unbelievable, and thorouhgoingly dishonest pile of crap 24 think torture is not only selectively OK but effective, and it's what, y'know, really manly men do.

Which doesn't in any way change the wrongness of it, and that is absolutely an issue we have to fight tooth and nail, even understanding that, while we may try to elevate the level of public awareness and understanding, we aren't ever likely to rally any kind of mass revulsion.

However, on some level even the manly-mannest proponents of torture do get it. Which brings us back to the example of McCranky. His public record on the subject is frankly terrible. But nobody has more concrete knowledge than the senator that people under torture say whatever they have to say to make the torture stop.

It's interesting that in McCranky's public career no reasonable person has ever blamed him for the "confessions" he made under Vietnamese torture. I think we all understand that we would likely have broken a lot sooner than he did. Still, break he did. It's certainly possible that he told his tormentors some things that were true, but no one knows better than he does that his "confessions" were not true.


UPDATE: TORTURE TEAM ONLINE

Reader Woid notes in the comments:

Vanity Fair ran a long, chilling, excerpt from the Philippe Sands book in their May issue.

It's online at http://www.vanityfair.com/politics/features/2008/05/guantanamo200805?printable=true&currentPage=all

In case the link hasn't come out right, what with all the copying-and-pasting, just work your way to the May Vanity Fair (www.vanityfair.com).


SUNDAY UPDATE: TORTURE TOO, THE FOLLOW-UP

I've finally posted the follow-up to this post, in which Philippe provides the basis for his assertion that torture doesn't work, and explains how the British government's use of it is now generally thought to have extended the I.R.A. conflict by 15-20 years.

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