Inconvenient News,
       by smintheus

Monday, March 08, 2010

  Torturing Americans

Until about six years ago in the US we shared a broad consensus that torture was reprehensible, unjustifiable, illegal, and un-American. Then the public learned that the Bush administration allowed, then that it ordered the cruel treatment and torture of prisoners overseas. Hundreds of years of consensus suddenly began to unravel as Bush’s supporters sought to excuse these horrors. Led by Dick Cheney, who holds that the application of water torture against suspected terrorists is “a no-brainer”, Republicans boldly advocated for increased use of prisoner abuse. Reputable pollsters now regularly ask the US public whether they support torture, something which is prohibited under federal law as well as international treaties.

Central to the new enthusiasm for torture and cruelty – aside from a culture that celebrates sadism and an utter disregard for the rule of law – is the quaint notion that such abuse will be meted out only to foreigners. Torture’s cheerleaders imagine, or would have others imagine, that an impenetrable bulwark of some sort protects Americans from suffering similar abuse at the hands of our own government. That’s historically naivete on a grand scale.

But it’s also wrong as a matter of law. We’ve known or should have realized that long ago. Furthermore, it’s wrong too as a matter of fact. It turns out that two US citizens who voluntarily acted as whistleblowers to the FBI were, for that reason, imprisoned by the government, held incommunicado and without charge, and subjected to the now standard forms of prisoner abuse.

(i) First, let’s talk about the legal standing of the cruel mistreatment of prisoners, thanks to the practices of the Bush administration. The US public does not seem to realize that the infamous “enhanced interrogation techniques” may be applied against Americans because the federal government has determined that they are neither torture nor cruel, inhuman, or degrading treatment (a determination never over-ruled in law). Can an American arrested for conspiracy to defraud, say, be subjected to hypothermia and “stress positions”? I’d venture that he may.

The “torture memo” authors created a golden shield for any government official who inflicted those EITs on prisoners by arguing that the techniques do not qualify as torture under US statute, nor do they meet the constitutional standard of cruel or unusual punishment. The latter ought to be particularly worrying for Americans.

The question arose because when Congress ratified the UN Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT), it attached several reservations and understandings to the ratification. One of these concerned Article 16, which requires signatory states to prevent (without exception) the cruel, inhuman, or degrading treatment of prisoners held under their jurisdiction. The Congressional reservation declared that the prohibitions outlined in Article 16 were already covered by the US Constitution’s guarantees against cruel and unusual punishment (the 5th, 8th, and 14th Amendments), and therefore the US would treat Article 16 as a reassertion of those constitutional guarantees.

Even though the Bush administration and its “torture memo” authors argued that the Constitution does not apply to non-American prisoners held abroad (a position the Supreme Court rejected), it did have to admit that the CAT does apply to them. Therefore it could not inflict mistreatment that violated Article 16, that is to say, that violated the Constitutional ban on cruel and unusual punishment. The “enhanced interrogation techniques”, so argued the Bush administration, did not rise to the level of cruel and unusual punishment.

That is a long way of saying what few in the US dare to acknowledge: That if the government could apply those forms of abuse to non-American prisoners, then it can use the same legal rationale for abusing American prisoners in similar fashion. Any prisoners…for the Constitutional protections don’t have exceptions based on time or place or circumstances. If it wasn’t cruel to subject prisoners at Gitmo to prolonged sleep deprivation and waterboarding, then in principle it would not be cruel to do the same to a common criminal suspect.

(ii) As a matter of fact, Americans citizens have already been subjected to these cruel techniques. Through a federal lawsuit directed against Donald Rumsfeld that is now set to proceed, we learn more (via) about two FBI whistleblowers working in Iraq who were imprisoned in 2006 and mistreated by US forces, though the US military was fully aware of who the two men were. The details of their allegations are laid out in this March 5 ruling by US District Judge Wayne Andersen (PDF). The Judge rejected Rumsfeld’s attempt to have the lawsuit dismissed, holding that his qualified immunity from being sued for his actions as Defense Secretary did not indemnify him against a legitimate complaint such as this one.

Allegedly the two men, Donald Vance and Nathan Ertel, began working with the FBI to expose corruption by the contractor they were working for in Iraq, Shield Group Security. When SGS all but held Vance and Ertel hostage outside the Green Zone, two US officials they were working with in Iraq arranged for the US military to rescue them. Back in the US Embassy, they then gave further evidence of SGS corruption to an FBI agent and two Air Force intelligence officers.

A few hours later, however, the US military arrested Vance and Ertel, took them to two successive military camps, and began subjecting them to various forms of abuse approved by the Bush administration: strip searching, prolonged solitary confinement, violence (being slammed into a wall), threats of violence, threats of indefinite detention, false allegations, psychological manipulation, extreme temperatures, sleep deprivation, extremes of sound and light, yelling, denial of food, water, and medical care. In other words, they were subjected to many of the standard “enhanced interrogation techniques”.

Vance and Ertel were refused permission to see an attorney, and were told that they were being held as “security internees”. They were given a kangaroo court hearing at which they were denied attorneys, denied the right to know the evidence against them, denied the right to confront witnesses against them, and their requests to have witnesses and evidence introduced on their behalf was denied as well. Nor could they testify for each other.

Ertel was held for a further three weeks, Vance for nearly three months, after these hearings. Neither were ever charged with any crimes.

They are suing Rumsfeld because he specifically and repeatedly (in 2002 and 2003) authorized the interrogation techniques that were applied to them while in US military custody. They also charge Rumsfeld with denying their due process rights.

Judge Andersen found that the plaintiffs made a sufficiently compelling case that Rumsfeld is accountable for these alleged abuses that the case should go forward. With particular regard to their allegations of physical and psychological abuse while in custody, his ruling, he declared, …

…represents a recognition that federal officials may not strip citizens of well-settled constitutional protections against mistreatment…

Andersen may be right that the issue of mistreatment of prisoners has been, well, settled in law. Whether it is also settled in public opinion any longer, however, is more a matter of debate.

Perhaps if this suit against Rumsfeld does go to trial, American citizens will finally begin to comprehend that if torture and cruelty is suitable for anybody, then it is suitable for everybody.

crossposted at

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  Lies are awkward things

Now that many prominent Republicans are denouncing the McCarthyite smear campaign against DOJ attorneys being orchestrated by Keep America Safe, Liz Cheney and William Kristol are scrambling to recast themselves as innocuous good-government types. Indeed. Their attacks were simply misunderstood, they say. KAS never meant to impugn the loyalty or “values” of the lawyers hired by the Obama administration, its leaders began to claim late last week. Instead they just wanted DOJ to release the lawyers names. Later, when the names had been released, it turned out that they just wanted DOJ to explain whether those attorneys were working on any issues related to Guantanamo prisoners. It’s just a call for transparency, you see, not at all a political hatchet job - as Kristol helpfully explained in his characteristically dismissive tone:

THE WEEKLY STANDARD has learned that another left-wing advocacy group, Human Rights Watch, is circulating a letter condemning what the letter describes as “a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy.” The Human Rights Watch letter mischaracterizes the “attacks” as saying “that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees.” In fact, the main issues in the debate have been whether Congress and the public are simply entitled to know who these lawyers are, and the question of whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.

In other words, Cheney and Kristol hope to wriggle free of the McCarthyism charge because the KAS ad smeared the DOJ attorneys with innuendo, which is after all subject to interpretation. Unfortunately for KAS, however, its campaign also dealt in deliberate lies as I pointed out last Thursday here. At the time I emailed KAS spokesman Aaron Harison asking him to explain the assertion in question. Though he’s a veteran of John McCain’s rapid-response team from the 2008 election, Harison still has not responded to my query more than three days after I sent it to him.

Lies must be awkward things to walk back.

The lie, boldly stated by Harison last week, is that the DOJ attorneys under attack had represented “terrorists, many of whom killed Americans”. As I explained here, that is utterly false.

I sent Harison an email at KAS asking for an explanation of that comment: "Which terrorists specifically are you referring to, and which DOJ lawyers represented them?" No response has been forthcoming.

Little wonder. The lie is not incidental. It’s a bald-faced lie. It is a gross escalation of the campaign by Keep America Safe to evoke public fear and loathing of the DOJ attorneys. And it has nothing to do with transparency, or what issues these attorneys are working on, or whatever other plausible sounding rationales that KAS might dream up in the future to try to justify its egregious attack. KAS won’t address this lie because it cannot and maintain the fiction that it has been misunderstood.

Lies are very awkward things.

crossposted at

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Sunday, March 07, 2010

  Further Annals of Illiteracy

The knee-jerk analysis of Instapundit is generally so slipshod as to merit no notice, but this op-ed is remarkable by even his own low standards. Glenn Reynolds argues that whereas the vast majority of Americans think the federal government lacks the consent of the governed, nearly two-thirds of our political rulers imagine that they do have this consent. And the other third who don’t “presumably, are comfortable being tyrants.” He construes a revolutionary scenario from this alleged chasm in perceptions (which somehow he likens to Schlitz beer), though Reynolds holds out hope that America can be “transformed” now without violence.

The chasm into which he thinks the country’s political structure is tumbling, however, is a figment of his own illiteracy.

Reynolds bases his argument on a poll that he hasn’t read carefully. The right-winger Scott Rasmussen produced a survey last month on public perceptions of whether the government has the consent of the governed. Only 21% of his respondents overall thought so, though 63% of a group he terms the “Political Class” believe that it does. Reynolds assumed for no apparent reason that the “Political Class” are politicians in Washington. That’s simply false.

Rasmussen for some time has been pushing the Republican-friendly notion that the nation is divided between a group of “Mainstream Americans” who have a “populist” distrust of government, and a group Rasmussen tendentiously calls the “Political Class”, that is to say people who have considerable trust in government. To identify these notional groups, Rasmussen regularly asks the following three loaded questions of poll respondents - the apparent intent being to show that a large proportion of the public has negative views of the (Democratically controlled) federal government.

The questions used to calculate the Index are:

-- Generally speaking, when it comes to important national issues, whose judgment do you trust more - the American people or America’s political leaders?

-- Some people believe that the federal government has become a special interest group that looks out primarily for its own interests. Has the federal government become a special interest group?

-- Do government and big business often work together in ways that hurt consumers and investors?
To create a scale, each response earns a plus 1 for the populist answer, a minus 1 for the political class answer, and a 0 for not sure.

Those who score 2 or higher are considered a populist or part of the Mainstream. Those who score -2 or lower are considered to be aligned with the Political Class. Those who score +1 or -1 are considered leaners in one direction or the other.

Simplistic, leading and manipulative, yes, but clear in any case. Reynolds didn’t bother to read Rasmussen’s description of who comprised his “Political Class”. Either that or Reynolds decided it would be fun just to make things up and see how many fools fall for the stunt.

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Friday, March 05, 2010

  VA Attorney General: Colleges have no authority to renounce bigotry

The proudly homophobic new Attorney General of Virginia, Kenneth Cuccinelli, didn’t waste much time in trying to force Virginia’s public colleges and universities to eliminate the protections against discrimination that they’ve extended to sexual orientation. The Washington Post has obtained a letter dated March 4, 2010 that he sent to every public institution of higher learning. In it, Cuccinelli advises them that they lack the authority to foreswear such bigotry without explicit approval from the state’s General Assembly and from him. Since the Assembly has considered and rejected attempts to extend anti-discrimination protections for sexual orientation to all state employees, says Cuccinelli, by adopting their own policies the colleges and universities are flying in the face of the Assembly’s deliberate acceptance of bigotry against homosexuals.

Cuccinelli is a real piece of work. Here is the Virginia Pilot’s assessment of his candidacy last October:

He sponsored a bill to waive unemployment compensation costs for companies that fire workers for not speaking English on the job. The measure would have affected only legal workers because illegal immigrants don’t qualify for unemployment benefits.

Cuccinelli’s views on reproductive rights don’t align with those of most Virginians. He favors legislation that would grant legal rights to fetuses at conception. He has sponsored bills requiring strict regulations that would put most abortion clinics out of business. He voted against a bill stating that contraception is not abortion.

He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: “ My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. ... They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

To put it politely, Cuccinelli’s election would bring embarrassment to Virginia, instability to the state’s law firm and untold harm to the long list of people who don’t fit his personal definition of morality.

Cuccinelli’s letter is available here (PDF). It is a fiercely determined attempt to bend the state college administrations to his will. Cuccinelli admits hastily that their Boards of Visitors “have the authority to make needful rules and regulations”, but proceeds to ignore that power in his discussion of why they should overturn their anti-discrimination policies. They “are, at all times, subject to the control of the General Assembly.” Hence, Cuccinelli argues, if the Assembly hasn’t ordered them to renounce discrimination against homosexuals then they’re actually overstepping the limits of their authority to regulate themselves if they do renounce it.

Besides, Cuccinelli asks, what would happen if homosexuals take these anti-discrimination policies seriously and get all uppity and legal on you when you do discriminate against them?

If you think that this right wing nut’s argument is preposterous, then you aren’t alone. The opening of his letter is revealing. Cuccinelli is very coy about what inspired him to raise this issue in the first place. He refers vaguely to “several inquiries” that “have been made” (by whom?) into the colleges’ authority to develop their own non-discrimination policies, and to “more questions” that arose (from?) about the application of his office’s advice. So, he says, the current letter is being sent out to “ensure that no confusion exists” about, well, what he wants the colleges to do.

In other words, Cuccinelli decided it was high time to meddle. He's an angry sort of man and he should succeed in stirring up more anger before he's finished.

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Thursday, March 04, 2010

  Another lie from the McCarthyites at Keep America Safe

This week Keep America Safe released a video broadly impugning the loyalty of several lawyers hired by Obama’s Justice Department. The lawyers had represented or otherwise contributed to court filings on behalf of several prisoners held at Gitmo. Keep America Safe, led by Liz Cheney and William Kristol, demanded that DOJ release their names and dubbed them ‘the al Qaeda 7’. The video asked “Just whose side are they on?”, implying clearly that the lawyers cannot be trusted to place the interest of the US above those of the ‘terrorists’ they once advocated for. Said KAS spokesman Michael Goldfarb:

“They have propagandized on behalf of our enemies, engaging in a worldwide smear campaign against the CIA, the U.S. military and the United States itself while we are at war.”

After this crude smear campaign by KAS caused widespread revulsion, another spokesman, Aaron Harison, and Cheney herself tried to deny that the ad “question(s) anybody’s loyalty”. But of course McCarthyism is exactly the game that KAS is up to. Harison drove that point home today by adding a shiny new lie to the gross innuendo and fear-mongering that KAS specializes in.

The DOJ lawyers in question, Harison said, had chosen to defend “terrorists, many of whom killed Americans”. No matter how you look at it, that allegation is false.

The DOJ lawyers represented or contributed to filings for various Guantanamo prisoners, but none of them have been convicted of killing anybody.

Only one of those prisoners, Omar Khadr, even faces such an allegation. But Khadr hasn’t been proven to be a terrorist – and he’s certainly not “many” terrorists. The allegation is that while a boy he killed a single US soldier, not multiple “Americans”. Furthermore, the unproven allegation is based on flimsy evidence and a seemingly coerced confession.

So even if you assume that each and every Gitmo prisoner is indisputably and most definitely a terrorist and that all allegations are true (as Dick Cheney and his brood have tried to train us to do), you still can’t back up the claim that “many” of the men represented by these DOJ lawyers “killed Americans”. It’s a lie.

Not a simple lie. There’s nothing simple about the elaborate smear campaign that KAS is orchestrating. Just a damned lie.

crossposted at

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