The Dick's Faulty and Tortured Logic

America's most overrated smart guy, Dick Cheney, has been taking to the airwaves lately to insist that if the Obama Administration is going to release the quack legal memos which justified the Bush Administration's lawless reign of torture and mayhem, then the CIA should also declassify the reports of the "testimony" "elicited" during the torture chamber sessions.  So that we get a balanced picture.

The Dick never fails to amaze me.  A lawyer somewhere, knowing he's going to have to defend Cheney someday, is squirming right now, wishing the Dick would just shut the f*** up, head to some ranch in Texas and shoot someone with a shotgun.  Whatever.  Just stop talking to The Dick's "friends" at Fox News, because this is not helping.

In a very dark way, there is something comical about Cheney.  He never loses that growling gravitas, that heavily serious way he has of taking himself absolutely seriously; and yet, over and over and over again, he's wrong.  Not just sort of wrong, either.  Fundamentally, hilariously, unbelievably wrong.  And still, there he is again, holding forth.  Setting the record straight.  The guy who was Vice President when the worst terrorist attack in American history occurred lectures everyone on how to keep America safe.

The Dick is missing a very fundamental point with his justifications for torture: the Convention Against Torture, to which the United States is a signatory, does not permit any form of justification. 

"No exceptional circumstances whatsoever may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict. Torture cannot be justified as a means to protect public safety or prevent emergencies. Neither can it be justified by orders from superior officers or public officials. The prohibition on torture applies to all territories under a party's effective jurisdiction, and protects all people under its effective control, regardless of citizenship or how that control is exercised."  

Summary of Article 2 of the Convention.  What The Dick has done, by extolling the benefits of pouring water into the lungs and wall-slamming the heads of various Arab captives, and stuffing them into tiny boxes with bugs and the rest of his Marquis de Sade wish-list, is to establish the necessary mens rea (state of mind) for convicting him (and Bush) of war crimes and violations of various anti-torture statutes in the federal code.  He has established that the torture was deliberate and calculated and achieved the effect he was after; yet, as noted, the "justification" he offers cannot be used to defend, exonerate or even mitigate his crimes.  It's not even admissible.  Not a bad day's work for The Dick.  

So he's left with a single defense: all this stuff he and the High Command put into action, probably as early as the summer of 2002 as part of an effort to establish the nonexistent link between Saddam Hussein and 9-11 -- you see, it wasn't really torture.  Thus the flurry of legal memos after the fact, attempting to define torture out of existence.  Thus the reinvention of history, pretending that the United States has not itself prosecuted as war crimes the very acts which Bush and Cheney authorized.

Bush is either being smarter or his lawyer is better at client control.  He's not saying anything. Bush & Cheney missed their chance on January 19, 2009; they should have done the Pardon Two-Step.  The Dick is doubling down on that mistake by running his mouth (or at least one side of it).  For what they authorized, ordered and approved was in fact torture.  And now the Obama Administration is administering a water torture of its own: the slow drip of disclosures. First the release of the legal memos.  Now the additional photos of detainee abuse.  And the Big Enchilada will happen when one of those videotapes of a screaming, struggling captive finally gets smuggled out and scores one billion hits on YouTube.  And then The Dick will see it never really mattered whether he could convince Sean Hannity or not.

Has Obama Seen the Light?

So what's this about Barack Obama suddenly being "open" to the idea of prosecuting Bush Administration officials for waterboarding Khalid Sheikh Mohammed 283 times in one month?  Of course, that's just the headline story designed to fit within a limited public attention span.  Probably much, much worse was the American practice of rendition, where terrorist suspects were delivered to countries, such as Egypt, for the express purpose of subcontracting out murder and mayhem that Americans find repugnant, yet still cheer on when other countries do it.

Before leaving Khalid, the Gurgling Confessor, behind, I pause to bring up a question I have adverted to before.  If one takes the time to read the 9-11 Commission Report, and particularly the novelistic, highly readable Executive Summary concerning the plot, one may be struck, as I was, by how much of the Commission's investigation depended on the testimony of this one man. References to things that "KSM" said run throughout the narrative, including tales of meetings between Osama bin Laden and the actual hijackers.  As I've written before, Dore Gold wrote a book about Saudi Arabia's involvement in terrorism in which he specifically opined that "there was no evidence" that any of the actual 9-11 hijackers ever traveled to Afghanistan or ever met with Osama.  Quite a bold statement for a reputable, esteemed author and statesman to make if he was not sure of his ground.  You have to wonder how a guy who is waterboarded 283 times in one month had the chance to gargle up information about anything; but one thing's certain, it's ludicrous to imagine that such evidence is reliable.  With that many sessions where people are putting a hood over your head and pouring water into your lungs (12 minutes at a time), you're going to say anything they want to hear, and it's obvious if you have a war going on in Afghanistan premised solely and exclusively on the "harboring" of Osama bin Laden by the Afghanistan government, then the most valuable thing that KSM could possibly gurgle about would be all the connections between OBL and the hijackers.  

If the 9-11 Report had not been so demure and sanitized, we might have learned, for example, that Atta's meeting with Osama was described in Session #177 of KSM's waterboarding torture. This would have given a different "feel" to the whole narrative, would it have not?  What are the odds, however, of our lazy-ass press ever going back to the Commission Report and lining up KSM's "testimony" with these new revelations?

But back to the idea of prosecuting Bush "officials."  First, I hope Prez O sticks with the idea of laying off the actual field operatives who poured water or stuffed people into boxes.  That's how Bush, Cheney, Rummy & the Gang got away with Abu Ghraib: by pretending it was a bunch of out of control "bad apples" instead of official policy dreamed up by the barbarians hanging around the Oval Office.  Second, I think Bush's bad luck comes from the dawning realization in the Obama camp that this Depression we're in is not going away anytime soon.  Leaking out of the banking underworld is the news that the big mortgage companies are maintaining a "shadow inventory" of foreclosed homes which are vacant but which they are holding off the market in an effort to arrest the steep decline of housing prices.  This shadow inventory measures in the hundreds of thousands of empty homes.  Since the housing slump is the root of this malaise, since without equity in their homes Americans lack the wherewithal to get the consumer economy going again, we're in a vicious cycle of deflation and unemployment that is going to consume most if not all of Obama's first term.  

So, quite counterintuitively to O's naive pronouncements about the "distraction" of Our Own Private Nuremburg, Barry needs a circus and he needs it bad.  And absolutely the very best circus he can bring to town is the highest of high profile prosecutions: a "Commission" to try Bush, Cheney, Rumsfeld and Gonzalez for war crimes and systematic violations of the Convention Against Torture.  (I actually don't care about the lawyers who wrote those pathetic memos; those were opinions for hire which reached preordained conclusions.)  

Wall-to-wall coverage, every night of every week for a year or more.  Boffo ratings!  An entertained public!  Come on, O: man up.  We need this show.  More to the point, you need this show.  Listen to that little angel whispering in your ear, who happens to be named Rahm: go get 'em!

The Judge, the Coffin Box and the Stinging Insect

He certainly looks like a nice guy, this Judge Jay Bybee of the Ninth Circuit Court of Appeals.  I guess his judgeship was a reward for his tireless work in providing legal cover for the CIA's torture regime, particularly when it came to Abu Zubaydah and Khallid Sheikh Mohammed.  The recently disclosed "torture memos" written while Judge Bybee was working in the Little Shop of Legal Horrors (the Office of Legal Counsel) are case studies in pushing things to the brink of absurdity, such as Judge Bybee's solicitous attitude about what kind of stinging insect could be put into a coffin-like box with Abu in order to get him to start talking.  

Abu, it turns out, had a morbid fear of stinging insects, which, I have to say, doesn't really surprise me.  I think most of us share a similar phobia.  My guess, based on the idea that most of these great legal thinkers despite their gaudy credentials are actually dumbshits, is that Judge Bybee really wanted to talk about stinging "arachnids."  Certainly there are insects which sting, such as the honeybee or wasp, but for downright fear, give me an eight-legged entomological specimen anytime, such as a tarantula, scorpion or brown recluse spider.  We'll get the facts on that 9-11 plot in no time.

Well, who cares about precise classification of arthropods?  It could be a centipede too, for that matter.  I can't help but feel that the CIA and the OLC got their ideas from Nineteen Eighty-Four and Winston Smith's morbid fear of rats.  Nothing about the Bush-Cheney crowd ever struck me as being very original. 

"In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. . . . [Y]ou must inform him that the insects will not have a sting that would produce death or severe pain...An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. . . . Thus, we conclude that the placement of the insect in the confinement box with Zubaydah would not constitute a predicate act," [i.e. violate the anti-torture statute. (p. 14)] "[T]hough the introduction of an insect may produce trepidation in Zubaydah it certainly does not cause physical pain." 

That's the OLC's version of reading a suspect his rights: he must be told whether the insect spending time in the coffin with him for a couple of hours can kill him or not.  If you don't say, then he could "reasonably" feel threatened with severe physical pain or suffering of a lasting nature, and now you've violated the Convention Against Torture.  On the other hand, if Zubaydah (who was recovering from wounds at the time) chooses to go ahead and "unreasonably" fear being stuck in a box so cramped he can't move for a couple of hours with any kind of insect -- well, that's his problem.

After this sophistry, waterboarding and banging someone's head against a wall were really easy to laugh off.  The key is "specific intent:" the CIA operative (or sociopathic contractor hired for the well-paid job) must not only intend the predicate act of messing with someone, he must also have the specific intent of causing great physical or mental harm of a lasting nature.  Legal reasoning is great, isn't it?  If I pick up a baseball bat and take a swing at your head, I must not only intend to swing the bat and knock you into next week but intend that this harm be lasting and severe.  This approach, as far as gaining the greatest possible latitude, would seem to favor hiring the dumbest, meanest interrogators you could find, to go along with the dumbest, meanest lawyers you can find to stock the Office of Legal Counsel with, which Bush certainly succeeded in doing.

Bybee may get impeached.  I can kind of feel that one coming.  Impeaching Bybee, disbarring him, disgracing him, would placate a lot of people who want Obama and Congress to do more, which they're not going to do.  There is really only a small band of Americans who actually care about this stuff, or at least pretend to care.  In reality they just like writing about it.  Glenn Greenwald is up in arms, but hell - he lives in Brazil.  Torture is interesting as a subject because it's full of legalisms, international law and relative precision.  Bush also wrecked the world economy, but that's too diffuse a topic.  Denouncing torture allows American critics to wax self-righteous (such as Keith Olbermann) without actually doing anything about it, because they can't.  And Obama has made it pretty clear he's never going to prosecute anyone.  It would upset people, and that's too much for him.

We should just face it and realize we're a nation which tortures people, a lot, and we have a lot of company in the world. And after we torture people, we don't care if the Convention Against Torture, a ratified treaty and supreme law of the land, requires us to investigate and prosecute where appropriate.  So we don't follow the Treaty or our own Constitution? What else is new? At least we write memos before we slam your head into a wall or pour water into your lungs.  How civilized can you get?