Stop the Torture Carousel, I Want to Get Off

A consensus seems to be forming that what Eric Holder, the Attorney General, has in mind, as far as torture investigations are concerned, is to go after lower level CIA operatives and contractor interrogators who exceeded the Yoo-Bybee-et alia guidelines for permissible torture; that is, those who tortured too much, sometimes to the point of killing their victims. I guess this tendency has become ineradicable in our political culture: the instinct to elevate image over substance. So Holder will investigate whether waterboarders used too much water, hypothermia techs lowered the thermostat too low, wall slammers induced concussion and cerebral hemorrhage instead of just knocking someone silly, etc.

This is a replay of the Bad Apple Theory of Prosecution used in the Abu Ghraib detainee abuse matter. You pick out some low level schlub who didn't read the fine print in the Torture Manual put together by esteemed law professor John Yoo or the Honorable Judge Jay Bybee of the United States Federal Court, who wrote what they did at the instigation of Dick Cheney and his Torquemada, Esq., David Addington, and you wreck the functionary's life by embroiling him in a federal prosecution he can't afford and from which he lacks the political cover of the power elite. This is supposed to show the American people and the world that we just won't stand for torture, that we go after those who commit it hammer and tongs, et cetera ad absurdum ad nauseum.

We've seen this movie and there's no need to produce Bad Apples, the Sequel. We all know what really happened. Bush & Cheney wanted to rough Muslim detainees up, as much as they thought they could possibly get away with; then they commissioned lawyers in the Office of Legal Counsel (that "Little Shop of Legal Horrors," as Sen. Sheldon Whitehouse called it) to write memos justifying torture; then they told the White House-compliant, Republican-controlled House and Senate to include retroactive exonerations for torture in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, once the Supreme Court pulled a fast one on them and ruled that Arabs were, after all, human beings for purposes of the Geneva Conventions. The key feature of such exonerations, which tellingly included "all U.S. officials," was that reasonable reliance on the advice of counsel in ordering or committing torture was a defense to criminal prosecution under the War Crimes Act.

Thus, the circle was complete. Write me a memo, John, that tells me I can waterboard Khalid Sheikh, because I want to; if anyone ever bothers me about it, then I'll point to the memo I told you to write so I could "rely" on it.

This is not, of course, absolutely morally satisfying for anyone whose corpus callosum has not been completely cleaved in twain. It's kinda sickening, actually. Here's what I wish President Barack Obama would simply say in answer to a question at a press conference:

Helen Thomas: Are we going to prosecute anyone for torture?

Pres. Obama: No, we're not.

Thomas: Aren't we required to by the Convention Against Torture, the Treaty we signed?

Obama: Yes, we are, but we're going to breach the Treaty.

Thomas: Why are we going to breach the Treaty?

Obama: Because that's the way we do things in this town now.

This approach has the huge advantage of complete honesty, which the Bad Apple Theory lacks. The Bad Apple Theory creates a confused picture; it makes people think we're coming down hard on torture, which we're not doing at all. We're pretending to give a shit when we don't. We're going to lock some CIA field agent up for getting carried way, by being more illegal than the illegal instructions he was given told him he could be. There's no point in that; if anything, it tends to give the official parameters of permissible torture the patina of legitimacy, which they don't deserve. "See? If the field hand had just stuck to the illegal rules, instead of showing off and killing Abu, he wouldn't have these problems."

If Holder doesn't want to to go the origin of the problem, to the top level decision makers (Deciders) who ushered in the Dark Side in the first place, then just forget the whole thing and accept the inevitable consequences. Let the Bad Apples rot and spoil the whole barrel. Torture without consequences: isn't that what we're really saying anyway?

Give Me That Old-Time...Waterboarding

First, I begin with a disclaimer: I am no grizzled war veteran, and I certainly have no desire to engage in the elaborate combat fantasies of chickenshits like George W. Bush and Dick Cheney, who did everything possible to stay out of harm's way when a war in which they firmly believed, the Vietnam conflict, was raging.  As in the case of, say, 99.9% of the American populace, and even 90% of uniformed cops, I have never fired a shot at a human being and I hope I live my whole life able to make that statement.  I've read a lot of World War II history, and it's my understanding that a majority of even combat troops never actually fired their weapons in an actual battle.

So I'm strictly using intuition and my imagination on this torture thing to create a hypothetical. I am imagining that I'm with a squad of American soldiers and for some reason we become trapped behind enemy lines during World War II.  We're in France, say.  Something like this actually happened to my uncle, who was a glider surveillance pilot in advance of D-Day. Anyway, we're disoriented, lost, and we come across a lone German soldier.  We capture him. What we want him to tell us is where the Germans are and the right way to move to get back to our own lines.  Under these circumstances, I don't think we're going to worry about the Geneva Conventions.  We need him to talk right away.  If it means pointing a revolver at his head, we'll do it.  Whatever it takes.  We'll also watch him closely to see if we can gauge whether he's telling the truth, because the truth is what we're after.  We're not going to rough him up just to rough him up.

I would not expect my buddies and me to be court martialed or tried as war criminals after the war is over.  I would not expect anyone ever to give it a condemning thought.  There were exigent circumstances and we did what any sane, self-regarding, even compassionate person would do.  I certainly would never think of "prosecuting" such soldiers for anything, so long as what they did was not gratuitous or sadistic just for the hell of it.  But that becomes an atrocity unrelated to the business at hand.

Let's imagine another scenario.  It's 2002 and George W. Bush, at the height of his Unitary powers, decides that Millicent S___, a Jefferson City, Missouri third grade teacher, a pale blonde woman about 28 years old, is an enemy combatant.  American patriots such as Charles Krauthammer, Samuel Alito of the Supreme Court, John Yoo of Cal's law school, Jay Bybee of the Ninth Circuit Court of Appeals, Rush Limbaugh, John Cornyn of Texas - they all think this is bold and great.  For some reason, Millicent is involved in international terrorism - so Bush says, and that's good enough for them.  She is captured, stripped, hooded, placed in an orange jumpsuit and shackled in the hold of a transport plane, then flown to Guantanamo.  She won't talk, however, other than to keep repeating there's been some terrible mistake.  Typical terrorist evasion, of course.  So she's stripped again, placed in a hypothermia cell where the temperature is kept at about 50 degrees, and left there with the lights on for about eleven days.  Occasionally she's brought out, shackled in a stress position, or a towel is placed around her neck so her head can be slammed against a wall repeatedly.  Then she's locked in a tiny box where she can't move, can't see, and can hardly breathe.  Still proclaiming her innocence, she's tied to a waterboard over and over and water is poured into her lungs.

Eventually she starts to talk.  Sort of delirious, she describes Afghanistan by saying it's a "mountainous area" and she wouldn't be surprised if bin Laden is still up there, and if there aren't more plots being hatched by a lot of the Arabs the interrogators have mentioned over and over during the last two weeks or whatever it's been.  She signs a confession and then is placed in a cage where she awaits...the end of the war on terror.

Well, we cracked Millie, at long last.  She was tough, she held out, but we got to her. 

"White evangelical Protestants were the religious group most likely to say torture is often or sometimes justified -- more than six in 10 supported it. People unaffiliated with any religious organization were least likely to back it. Only four in 10 of them did."

Pew Poll, April 30, 2009.

I would assume, therefore, that a majority of white evangelical Protestants in the United States would have no problem with our treatment of Millicent S____.  They would not see it as a sadistic fantasy from a pornographic magazine but as effective interrogation work.  Because, after all, this enthusiasm for torture must be based, in the final analysis, on principle and not on some retributive instinct or prejudice.  Note the similarities: Millicent was never tried and convicted of anything before her brutal treatment, exactly as in the case of the Arab detainees we have tortured.  All the rough stuff, the punishment, has preceded any form of judicial process in a court or tribunal.  No determination of evidence by an impartial judge has ever been made or sought.  We assume they're all guilty.  This was the logic of the Inquisition: we would not be burning your eyeballs out with a white hot poker if you were not an infidel, and if you say you're not an infidel, that only proves that you're a lying infidel entitled to even worse punishment, if we can think of something.

But the key word, the distinction, slipped into my comparison.  "Arab" detainees.  That's the real difference.  What is unthinkable for our demure ingenue from Jefferson City is okay if it's a Muslim Arab, because the profound racism of our white Evangelical population, that backbone of the modern Republican Party, provides for a clear distinction in the justice to which a white female American and an Arab Muslim are entitled.

It's an old story in American history.  It justified the internment of the Japanese, and only the Japanese, during World War II, although we were also at war with Germans and Italians.  Bush and Cheney knew it was okay to pick on Arabs because they could count on their party's base to look the other way.  These weren't Christians we were beating up; they were, to Bush/Cheney fans, untermenschen.  That's why, whenever I have blogged about this, I always specify that Bush and Cheney reserved the right to torture Arabs, or to deprive Arabs of habeas corpus, or to render Arabs to countries where torture was assured.

It's not a coincidence and it's not because all terrorists are Arabs.  It would have been unthinkable to waterboard Timothy McVeigh, or the Unabomber, or members of the Symbionese Liberation Army, or Bill Ayers and the Weathermen.  And here's the interesting part:  this prejudice has not gone unnoticed in the Muslim and Arab world.

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?

Torture? How unthinkable...

I remember the time well because I watched Bush's speech on television in the breakfast room of a hotel in Lyon, France. So Bush was talking in September, 2006. He was agitated and forceful, hitting the podium with the flat of his hand as he often does when his innate paranoia is in overdrive. Congress, you see, was running out of time to pass the Military Commissions Act; "high value prisoners" were on their way to Guantanamo from CIA dungeons in (probably) Eastern Europe, and it was essential to have procedures in place which would allow trials to proceed immediately. And incidentally, included in that statute was another blanket pardon for anybody roughing up Arabs in the mistaken belief it was okay to work them over because they were, after all, Arabs, and not some higher form of combatant entitled to the full panoply of protections under the Geneva Conventions like, for example, members of Hitler's SS.

Bush went on to explain how valuable all the "tough procedures" had been in interrupting myriad evil designs against America, and how absolutely wrong it would be to prosecute a dedicated U.S. employee (like the President of the United States, as one example) for doing something in good faith which the Supreme Court sort of implied in Hamdan vs. Rumsfeld he couldn't do without...well, committing a war crime under international law and the United States Code Annotated. Time was of the essence, and certainly Bush might face the argument by cynics that what made time so essential was that the Democrats were coming, the Democrats were coming, all as a result of the colossal mind-fuck to which L'il George himself had subjected the country during the previous six years or so. No problem; George can handle that kind of static. He can handle anything as long as his retirement plans don't get messed up.

So George got his pardon and America got its Military Tribunals in Guantanamo, and the years passed and we never actually tried anyone. The high value detainees settled in there at the far eastern end of Cuba, still valuable as propaganda trophies from the Great War on Terror, if nothing else. But eventually, after building a new court house and employing all that staff and making all that political noise, and with even people like Robert Gates and Condi Rice saying we ought to close the frigging place, you have to do something. So they put on trial one of the many Arabs who have been called the "20th hijacker." And here's what happened:

"The US has dropped charges against one of the six al-Qaida suspects charged with the 9/11 attacks, bolstering critics of the controversial military tribunal system set up to try the detainees.

"The Pentagon official in charge of military tribunals at Guantánamo Bay dropped the death penalty case against Mohammed al-Qahtani without explanation. Lawyers for al-Qahtani attributed the move to clear evidence that the detainee was tortured while in US custody.

"Mr al-Qahtani never made a single statement that was not extracted through torture or the threat of torture," the Centre for Constitutional Rights, which represented al-Qahtani, said."

Thus reported the Guardian (UK) on May 14, 2008. Naturally, you're as confused as I am, because if there is one thing Mr. Bush has been clear about it's that "the United States does not torcher." If he's said it once (and he has), he's said it a hundred times (and he has).

Now I understand that terrorist suspects are not going to get the red carpet treatment we associate in our minds with an American citizen (other than Jose Padilla) who is accorded the whole drill of Miranda rights, the access to counsel, the advice that he does not need to make any statement at all, and the rest of that Warren Court coddling we've all seen a million times, from Joe Friday to CSI: Miami. But here's what I'm also thinking: this whole procedure is happening down in Cuba, a place chosen for its difficulty of access, a place where the prying eyes of the media never intrude, where the lawyers for the detainees (I was about to say "accused," but that doesn't apply to the vast majority) routinely report, in torrents of affidavits and blogging, that the prisoners are subjected to absolutely horrendous denials of due process; where there are insane rules which prohibit an accused from describing torture to his own lawyer because it's a "state secret;" where a lot of the evidence is anonymous hearsay which the lawyer cannot challenge because the attorney doesn't know who said it and under what circumstances (like torture) the statement was made. And that's if the lawyer and accused are even allowed to know about the evidence.

So if that's the context (and it is, in the main), what kind of brutality must have gone on with al-Qahtani to cause an American military commission to throw out a case against a "9/11 co-conspirator"? To conclude that the whole case was so tainted with coercion and violations of fair judicial process that they couldn't try an Arab in Cuba in front of the military brass? Despite Mr. Bush's assurances, is it just barely possible that the United States does, in fact, commit torcher?

Berkeley's Professor of Torture

I've never read any of the Anne Rice novels, or even much of Stephen King, but I can say I've read one horror classic cover to cover: Boalt Hall law professor John Yoo's 81 page memorandum on torture written while he was with the Office of Legal Counsel in March, 2003. I will not undertake any sort of in-depth analysis of this repugnant piece of rationalization; the legal heavyweights at Balkinization.com, linked to the right, deconstruct it brick by slimy brick. Everything about the memo is wrong. It is wrong in its most basic premises (the War Crimes Act and the Convention Against Torture do not apply to "stateless actors" such as al-Qaeda, for example). It's morally wrong. It's ethically wrong. It's disgusting. It's beneath contempt. It's a piece of shitty scholarship.

The Regents of the University of California keep this guy Yoo on the payroll. Well, I was in or near the Berkeley campus during the great controversies over Herbert Marcuse and Angela Davis. In their situations, the case of academic freedom was framed in terms of the right of faculty members to espouse frankly Marxist or radical theories or tactics. So the issue is now framed the other way: shouldn't the Academic Senate go to bat for a guy who looks for ways to introduce the ideas of the Spanish Inquisition into a modern American administration? Who argues for the creation of a presidential dictatorship in a "time of war?" Who argues that in a time of (perpetual) war, the Fourth Amendment does not stop U.S. soldiers from entering American households and tossing the place? I guess they should. John Yoo's a big name now. He belongs in that starting lineup with the Four Lawyers of the Apocalypse, alongside Gonzales, Jay Bybee and David Addington. Yoo was probably the star because it was he who wrote the brief, this 81-page instruction manual on how to beat a federal rap for "maiming" by pouring acid on the correct part of the prisoner's body. That's just barely a mischaracterization. That's what the memo is about. How can the CIA and the military get around all these inconvenient laws against war crimes and torture? Where should you do it? Just how far can you push it? If you cause severe pain, if the prisoner screams and cries and begs for mercy (like al-Qahtani at Guantanamo) but he doesn't die and no "organ fails;" and even if he goes insane, what if the defense can prove that the torturer lacked "specific intent" to bring about insanity? It's all there in Yoo's memo. How to torture and get away with it.

Jack Balkin calls the memo and its conclusions "outrageous." Many other legal scholars have much stronger words for this piece of dreck. A lot of Yoo's memo went by the boards when the Supreme Court took up the issue of Geneva Convention protections for war-on-terror detainees. As a result, Congress was asked to provide (and of course complied) a pair of exonerations in the Detainee Treatment Act and the Military Commissions Act for U.S. personnel who thought they were torturing prisoners the way the President and his lawyer told them they could. That must have been kind of embarrassing for Yoo. Most lawyers who commit malpractice pay money damages; they don't require an Act of Congress to clean it up.

Not that such a consideration bothers anyone at Berkeley. Yoo's a celebrity; now that his March, 2003 Memo has been declassified, all American citizens (and the world community) can see his work in detail. Maybe his star has risen; maybe the Academic Senate feels constrained because they sense any action against Yoo would be seen as the result of professional envy. Wow, they think; Yoo was in on the ground floor of Abu Ghraib and Guantanamo, and all that stuff that went on in the CIA's black sites. How cool to be that influential!

I remember a remark from George W. Bush when he was asked what he would do when he gained access to the Oval Office. "Give it a good cleaning," he said, in a prissy put-down of Bill Clinton's shenanigans. I think after Bush that won't be good enough. No amount of Comet or Lemon Pledge or carpet cleaner is going to fix what this guy has done to the office. They should declare it a toxic site under the Superfund law, tear it down and build a new one.

Why Mukasey doesn't want to come clean on waterboarding

Early in his confirmation hearing, Judge Michael Mukasey seemed to be sailing along on an incoming tide of goodwill and bonhomie, that sort of vaguely nauseating insider reach-around that the Senate, particularly senators like Joe Biden, love to indulge themselves in when they are feeling good about anointing another public servant as rightful heir to a governmental sinecure replete with hefty salary, lots of bennies, and of course heavy-duty stature. In other words, making the supplicant just like them. All of this is done in the hope the public will see the Judiciary Committee in a halcyon light of statesmanship and nonpartisan magnanimity. It is, in other words, to puke.

Then some tricky questions came up about America's new pastime, the routine torture of Arabs and Arabesque-types, like Afghanis, all of whom we can fairly lump together as "Arabs," because the Bush Administration does not strain itself to find distinctions without a difference. They're brown, Muslim and from the Third World. That's a sufficient taxonomy; let's not get anthropological about all this. A large cohort in the Bush Administration enjoys torturing Arabs. They have tortured many of them in many ways, and for a long time they thought they could do so with complete impunity. Arabs (all of whom we labeled "terrorists") are not actually people in Bush's species classification system; they are unlawful combatants, non-state actors, etc., or at least become so once they are detained by the U.S. and stuffed into Guantanamo or Bagram Air Base in Afghanistan or in a CIA black site in Poland or somewhere. At least, this was Bush S.O.P. until the disquieting case of Hamdan vs. Rumsfeld came along and ruled that Arabs were in fact people, that they were entitled to protection under the Geneva Conventions, including that nettlesome Common Article 3, and that you couldn't try them in Guantanamo any old way you wanted, but actually had to provide a modicum of due process. Imagine that: if this ultra-conservative Supreme Court thought Bush had pushed things too far, how bad was it?

The Hamdan case marked a kind of turning point in the Bush reign of barbarity. For the first time, it dawned on L'il George that his ass might be in a sling for ordering routine violations of international standards of human decency. He never thought it could come to that; they were only Arabs, for crying out loud. Thus, Bush had to add a second agenda item to the business plan for his presidency. The first, which was still in place, was to spend as much as Americans paid in taxes, and as much as he could borrow from abroad, on war, and specifically on funneling federal revenue to Halliburton, Blackwater, Boeing, Bechtel, United Technologies, Sikorsky, Bell Helicopter, Northrop Grumman, subsidiaries of the Carlyle Group and other insiders benefiting directly from the the security state. Compare the stock prices of these companies between 2002 and 2007 to the performance of the stock market in general. Mission Accomplished. But Bush now had to add a second to-do box, in some ways complicating the first. He had to guarantee he could leave office without the "Pinochet Perplex," meaning, a carefree retirement without prosecutions for violations of the Federal Anti-Torture Statute and the War Crimes Act. The Hamdan case screwed this up royally.

While he sat moping, either wishing he could drown his misery in five gallons of beer or actually doing so, Dick Cheney brought his trusted accomplices, David Addington and other members of the Pennsylvania Avenue Inquisition, to his rescue. True, all that waterboarding and torture violated the War Crimes Act and the Anti-Torture Statute as they read now. But laws can be amended. In fact, we've got a new twist, an innovative torque, as in Torquemada. We'll make what we did, which was illegal at the time, legal now. We'll take the Torture Memo of 2002 and smoosh it into federal law by redefining torture, and for good measure we'll write it up so that even if what we did, what you ordered, Mr. President, was a violation of the Geneva Conventions even as extended by our CYA redefinition, we'll say that's okay too, as long as "advice of counsel" made you think it was okay. And since the "advice of counsel" we're talking about is the advice given by the creepy, necrophiliac lawyers who wrote the Torture Memo in the first place, it's a closed loop. Huh?, Mr. Cheney said to W. Who loves ya, baby?

But, spluttered W, like a little boy caught in a horrible mess who's afraid to hope. Congress won't go along with something that stupid. Of course they will, said Darth. But you gotta hit the hustings and sell this sucker right now, because Congress changes in November, 2006. The American people are slowly awakening to the idea we're a bunch of self-serving, merciless assholes, and we're going to lose control. And you know what that could mean in 2009.

How? How to do it? Bush wanted to know. Cheney whispered in his ear. Now's the time to transfer Khalid Sheikh Mohammed to Gitmo. Which means we've got to have that Military Commissions Act presto pronto, because we have to try him. Now! Now! And we'll stick in the mother of all exoneration clauses, retroactive to the signing of the Declaration of Independence if we have to. So get to it!

Bush did. Congress, of course, had no problem with giving American officials a free pass on torture and inhumanity to man. To do otherwise would have been "soft on terror." And, you'll note, not a single trial of a detainee in Gitmo has proceeded since Bush's breathless exhortations to prompt passage of the MCA in September, 2006.
Funny, huh?

So when Mukasey faltered on that first day, the Bush team took him aside and explained how it was. We did a lot of hard work, they told him, to make a clean getaway. You ain't messing it up. If you go in there and declare unequivocally that waterboarding is torture, you screw up our artful re-writing of the War Crimes Act and the Anti-Torture Act, and, worst of all, you could undercut our "advice of counsel" defense on which we're counting for a blissful sojourn in retirement. And that, ol' Mike, just ain't gonna happen.