The drowning technique called waterboarding

It's good to see that the New York Times has finally decided to call a spade a spade. For years it has followed the Bush administration’s lead in using euphemisms and circumlocutions to describe the notorious and plainly illegal interrogation techniques inflicted on prisoners held overseas and accused of terrorist activities. Though it has expressed some pride in the alleged candor of its terminology, the Times had always avoided calling torture by its name.

In particular, the Times employs several evasive phrases to describe so-called waterboarding: ‘the near-drowning technique’; ‘the simulated drowning technique’; and most bizarrely ‘the controlled drowning technique’. Collectively, they ratify the position adopted by the Bush administration by insinuating that drowning can be something other than drowning in the right circumstances. But drowning describes the filling of lungs with liquid, nothing more or less. It’s not something that can be ‘simulated’ or ‘near’, and ‘control’ is beside the point. You wouldn’t apply any of those terms to castration, say, if the government inflicted that on prisoners and then worked to reverse or mitigate the damage done. So why did the Times try for so many years to soften the plain fact that the US government was having men drowned?

Now at least the Times is starting to find the courage or sense to state the plain truth. In just the last day in an editorial as well as in an article reviewing Donald Rumsfeld’s memoir the NT Times has taken to using the unadorned expression "the drowning technique called [or 'known as'] waterboarding".

It seems that the Times made a recent decision to permit, perhaps even to prefer, honest language in this regard. On Jan. 19th of this year it posted an article on Guantanamo prosecutions by Charlie Savage that also used the same frank expression.

It appears that the Times was feeling its way tentatively toward candor back in November of 2010. On Nov. 14th it referred to "the drowning technique called waterboarding" in an article about an investigation of Dr. James E. Mitchell, a rogue psychologist who promoted torturous interrogation techniques under the Bush administration. However 4 days earlier it had used and subsequently retracted that language in an article on the Justice Department’s failure to prosecute anybody for destroying CIA videotapes of several interrogations that employed torture.

This appears to be an interesting case study in the Times’ timidity in the face of Orwellian language. The article as originally published contained the following details [highlighting is mine]:

The role of once-secret memorandums about interrogation techniques by politically appointed lawyers in the Justice Department’s Office of Legal Counsel has been controversial. The documents, which leaked in 2004 when the torture of prisoners at Abu Ghraib was in the headlines, asserted that the president, as commander in chief, has the constitutional power to override anti-torture statutes. The memos also claimed that certain techniques — like stripping prisoners naked, keeping them awake for long periods, slamming them into walls, and subjecting them to the drowning technique called waterboarding — did not amount to torture

More than two months later (sometime after Jan. 15, 2011) At some later stage the article was revised. Only the newer version is available at the Times’ website. The most extensive alteration, indeed the only one that I find (this is not indicated by the Times), is that the foregoing paragraph was edited down to produce the following:

Mr. Holder was referring to once secret Justice Department memorandums asserting that certain interrogation techniques, like stripping prisoners naked, keeping them awake for long periods, slamming them into walls and subjecting them to waterboarding, would not violate antitorture laws.

In the original version I highlighted the parts that were removed subsequently. You can see how much that is purely factual has been stripped out of the original, all of it quite unflattering to the Bush administration. The later omissions included the phrase "the drowning technique", which was not even replaced by one of the Times' traditional evasive phrases.

It seems that the Times wasn’t quite ready last November to see the stark language of truth being used. But the policy of evasion regarding waterboarding (at least) has now been reversed.

Admittedly, the Times has twice in the past described waterboarding as “the torture technique”, in an editorial from 2008, and in a second one from 2009. But as far as I can determine it has never stated that candidly as a fact in a news story. And in any case it is only quite recently that the Times has become willing to go on record describing waterboarding as “the drowning technique”.

So two cheers for the new found courage of the New York Times’ sort-of convictions.

Update: It's not certain when the editing down of the Nov. 10 article happened, so the wording was revised to reflect that.

crossposted at unbossed.com

The Just-Following-Orders defense

Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel under George W. Bush, offers appallingly bad advice about what to do in regard to "the Bush administration's harsh, abusive and illegal interrogation program". His solution: Let whatever investigations now going on run their course and then forget the whole matter. No Congressional hearings, no special commission, no DOJ task force, no special prosecutor. Just wind down the pitiful few investigations that have occurred, publish some of the documents they turn up, but make sure to turn the lights off when you're done.

The main reason that law-breakers should not be prosecuted, in his estimation, is that the people involved won't take it well. They're already quite unhappy at the prospect of being held accountable, you see, given that they were just following orders.

The investigations and public recriminations of the past few years have led many government lawyers to be more risk-averse and politically sensitive than ever. They have also had a harmful effect on the lawyers' clients, especially in the CIA. In response to the many investigations, CIA officials are "lawyered up" and are drawing down their legal liability insurance. None of these officials are likely to go to jail. But the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one's memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.

And worse, it has spooked the intelligence community. When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.

But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.

You'd have thought that getting a letter from the Office of Legal Counsel authorizing violations of the laws on torture would be good enough to protect you in the future. But oh, no, you'd be mistaken! You can actually get prosecuted for obeying illegal orders. Or nearly as bad, have to rack your memory in order to tell the truth about those orders. That's practically torture, right there.

The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

'Mistakes' must be the terminus technicus at the Office of Legal Counsel for what ordinary civilians call 'crimes'. It's also interesting to learn that the Justice Department considers "reputational losses" to be the most severe penalty, or 'retribution', that can be inflicted on criminals. Once they've achieved that, trials leading to convictions and jail time are pretty much superfluous.

crossposted at unbossed.com