Use the Rule of Law to End the Lawlessness

Four more Bush era memos authorizing the use of torture on detainees held by the US in the "war on terror" were released yesterday by the Obama administration. Download the memos here. Before the documents were distributed, only one of which was redacted to any real measure (taking out mentions of agents who participated in the inhuman and degrading behaviors), Obama differentiated between the agents who did the dirty work, and it was disgusting, and the officials who promoted and authorized it:

According to the New York Times: "Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty."

Reading through one of the memos yesterday, written by now federal appeals court judge Jay Bybee, I was horrified at the detailed descriptions of the techniques--walling, sleep deprivation, stress positions, slapping, confinement in small cages, use of insects, and of course, waterboarding. That the Office of Legal Counsel was hijacked to write particularized authorizations for the use of inhuman and degrading interrogation techniques is evidence enough of the abuse of authority conducted by Dick Cheney, David Addington, Alberto Gonzales, Donald Rumsfeld, at a minimum. The role of George Bush himself is less clear.

Consider the Bybee memo on sleep deprivation, which held that it wasn't torture to keep Abu Zubaydah, an allegedly high-ranking al Qaeda member (but he wasn't and they knew he wasn't) awake, so long as it didn't last for more than eleven days: Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

One memo admits that the technique of waterboarding was used too often and too violently: Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

Immediately Senator Patrick Leahy called for a full investigation. America needs more. We need investigations and prosecutions of the principals who authorized and promoted the use of torture. I agree that the agents themselves shouldn't be prosecuted; they should lose their jobs, however. We don't need those kinds of men and women working for our country. But the officials responsible for ordering the abuses, well, they deserve the full force of the rule of law, which they denied to others, in search of the truth.

He's So Damned Smart

On the same day that I deflated over the news that the Obama Department of Justice used the same state secrets defense in the Ninth Circuit Court of Appeals to prevent a full airing in a rendition case that the Bush administration had used, I rushed home tonight to watch the news conference Barack Obama promised this evening. And although I have issues with some of his appointments and some of his policies to date, I have no problems with how he conducted himself at this press conference: intelligent, charming, integrity.

Or is it that we are so relieved that it isn't Bush?

What I focused on was his refusal to talk down to people. Without sounding like a policy wonk, or a professor, Obama spoke clearly about his intentions for the stimulus package and how he would assess its success: creating jobs, loosening credit, stabilizing the housing market, and stopping the job contraction. When asked about foreign policy, Obama was unflinching in his commitment to diplomacy and multilateralism.

Can I exhale yet? Well, not quite.

Without sounding like he was still on the campaign trail, but sounding like he is the President of the United States, Obama refused to answer questions he wasn't ready to answer: like whether there are nuclear arms already in the Middle East, whether Patrick Leahy's "truth and reconciliation" proposal was something he could live with, and whether he had nixed the idea of prosecuting Bush administration officials for violating American law and the traditions we hold dear.

He asked for some time to review Bush era policies and put his own in place. I hope that's true regarding the use of state secrets to defend against rendition, to end warrantless wiretapping of American citizens, including news media, and holding everyone--FBI, CIA, NSA, and the military--to using humane techniques of interrogation.

Dick Cheney is a "has been." He's gone. We need to stop paying attention to his cries of "the sky is falling." He is setting up a defense of "it's a political witch hunt" in the event Obama decides to prosecute Cheney, Addington, Gonzales, and Bush himself for war crimes.

Fear makes people stupid, and it will take time, we must have patience, but I suspect we can change our culture to be more engaged, more cognitive, and more tolerant.

If iPods and iPhones can change how people communicate with each other, don't you think we can change our culture to bring out the best not the stupidest in each other?