Such-another-victory-and-we-are-lost Dep’t

The Ninth Circuit rules that the Obama Administration can continue to cover up the war crimes of its predecessor. The NYT calls that “a victory for Obama.”

In what the front-page headline in the New York Times calls “A Victory for Obama,” a closely-divided Ninth Circuit has decided that the State Secrets Privilege prevents torture victims from suing corporate accomplices to their torture.

The plaintiff in the case had his personal torture partly outsourced to the Moroccan secret police, who abused him in ways that the RBC’s “family-friendly” policy forbids me from relating. He was then shipped back to Afghanistan, where officials of the United States Government spent your money and mine on less imaginative, but not less vicious, forms of torment. He was then released, suggesting he was something far short of “the worst of the worst.”

Of course, that’s from the complaint. We’re not to be allowed to know how much of it is true.

I’m told by someone in a position to know and who wouldn’t lie to me that we’re no longer practicing torture, even torture-by-proxy. (And his definition of “torture” comes from the English language and not the Yoo and Bybee memos.) So the “victory” for Obama consists in the continuing capacity to cover up the war crimes, crimes against humanity, and felony (perhaps capital) violations of domestic U.S. law by the collection of thugs hired by his predecessor.

I can imagine three forms of damage to the national security that might come from a trial: aiding terrorist recruiting and damaging the American image abroad as the facts came out (think of Abu Ghraib, squared); subjecting current and former U.S. officials and contract personnel to obloquy and perhaps criminal prosecution; and blowing the cover of the Moroccan and other contract torturers, who no doubt were promised anonymity. None of that is the sort of order-of-battle information – stuff that would help an enemy plan strategy and tactics – that the “State Secrets” doctrine was invented to protect (by the courts, as recently as the 1950s).

And of course all the torture voters are voting straight Tea Party this year, and people like Dick Cheney – who in a just world might well have wound up in the gas chamber, if it could have been shown that someone died as a result of the torture he ordered – will feel free to continue to abuse the President as soft on terror.

Not, all in all, such a good day to be an American.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

24 thoughts on “Such-another-victory-and-we-are-lost Dep’t”

  1. Leaving aside for the moment the collective silence of the US media, how much of the first form of damage has already been done? The people who were tortured certainly know that they were tortured, and have been telling reporters and others about it for years. Certainly the official release of information in a lawsuit will make a difference in the US, but overseas, among people who already don't believe in the US as a force for good, how much difference will it make?

    (That's not a rhetorical question; I'm sure it would make some difference, but quantification could be useful.)

  2. I think you left out the most important negative impact, at least the one that I imagine would have been conveyed to Obama by Important Heads of Three-Letter Agencies: "If we investigate what employees of XXX have done, and [potentially] apply the law against them, the Morale of the Agency will suffer–and the Agency's continued effective functioning is vital to national security". Everything I think I know about Obama suggests that he believes in listening to experts; these are experts; therefore they should be listened to.

    I think the assessment of how Agency XXX would be affected might be right, but see that as a feature not a bug, as providing more resistance the next time fools in high places (eg the Office of the Vice President) want to do stupid and illegal things because they "work on TV".

    (For anyone who thinks torture works for gathering information, as opposed to getting confessions, go study the European witch-craze).

  3. Even if the state secrets were applied correctly here (and it's not), there's no excuse for the failure of Obama and the Dems to set up an administrative process that handles the whole process secretly and still gives aggrieved people some compensation.

    And Anderson: the Republicans want more people to think just like you do. I learned a different lesson from Bush v Gore when I was torn between Nader and Gore.

  4. Brian, if the Dems are going to act like the GOP, I see no need to support them vs. the GOP.

    As a correspondent put it at TNR: "Obama hasn't been partisan, so why should he expect to readily rally partisans?"

  5. What Anderson said. And Brian, I don't remember Al Gore, imperfect as he was, being responsible for anything nearly as egregious as Obama's policies on torture, state secrets, civil liberties, etc. Maybe the Republicans want us to think like Anderson, but these are Obama's policies, what did he expect us to think? Oh, of course, we should give him a pass, because the other side is worse (at least on other issues).

    A generous reading is that Obama is pursuing his immoral policies in these areas because he doesn't want to tear the country apart. I think the only choice he ever actually had was where the tear was going to be. And he chose to tear it in such a way that he's over there on the wrong side with the torturers, staring across the gap at a group of his one-time supporters, wondering why they can't muster any enthusiasm to continue that support, and hoping that he's picked up enough right-leaning centrists to make up for it. A less generous reading is that he really believes in the Bush/Republican approach to these issues. Mark's anonymous informant's assertion that he's not doing torture or torture by proxy anymore (I guess that includes at places like Bagram) suggests otherwise, but I've learned in recent years not to put much stock in such statements by anyone with the government connections to know.

  6. The NY Times, the London Independent, and other media have reported that Obama is maintaining a secret prison in Afghanistan to which the Red Cross does not have access, and at which torture is alleged to have occurred. (Google "torture secret prison afghanistan.") The military denies the existence of the prison, but I've not heard that Obama has denied it. If Obama had ended the use of secret prisons and torture, then one would expect that he would have ordered an independent investigation to demonstrate that he was serious.

  7. Henry, the reason you haven't heard much about it is because the allegations are a lot less serious when you read the fine print. You are correct, the Red Cross does not have access, but they are notified of each prisoner taken there, by name, so they do not just disappear. They are only held there for two weeks, and then transferred to other prisons to which the Red Cross does have access. There have been allegations of torture, but I don't find them terribly convincing. The Defense Department has acknowledged that they do use sleep deprivation, but under rules that make it nothing like what Bush did: prisoners are not forced to stand, and they can be kept awake for a maximum of 32 hours. I'm sorry, but that's not torture. Obama hasn't responded to it personally, because even the accusations don't rise to a sufficient level to merit it, unless you think the President needs to respond to every complaint anyone makes about US government policy.

  8. Michael, after eight years of Bush's crimes, allegations of torture are something to which Obama should be sensitive and respond. (I agree that he needn't respond to "every complaint anyone makes about US government policy.") Also, after eight years of Bush's crimes, I don't know how you can expect anyone to take the Defense Department at its word, especially when it is run by the same guy who ran it under Bush. As I said, these allegations demand an independent investigation.

  9. I realize that an independent investigation is out of the question, because whom we torture is a "state secret" (except to the victim).

  10. Just off the top of my head, Al Gore was a supporter of the clipper chip (an encryption chip with a backdoor to allow government evesdropping). Then there was one time when a lawyer was explaining to Clinton that a proposed covert operation would violate international law. Al Gore's take? "Of course it violates international law; that's why you make it a covert operation."

    If you are a liberal, you aren't necessarily going to agree with the policies of centerist / DLC types like Bill Clinton, Al Gore, and Barack Obama. But there were huge differences between the Bush Administration and the Clinton Administration which can be summed up as follows: the Bush Administration was a disaster for the country and the Clinton Administration was not. I'm old enough (barely) to remember Richard Nixon, and I used to think that he would prove to be the worst president in my lifetime, but today we can only pray that the next Republican president proves to be no worse than Richard Nixon.

  11. Here's another such victory from earlier this year:

    "A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight."

    The first definition of torture in Merriam-Webster is anguish of body or mind. Under that standard, do you think indefinite detention qualifies as torture?

  12. they do use sleep deprivation, but under rules that make it nothing like what Bush did: prisoners are not forced to stand, and they can be kept awake for a maximum of 32 hours

    Omigod. Assuming for the nonce that said limitations are actually followed (and how does one keep someone awake w/out imposing a standing position, pray tell?), why are we using sleep deprivation at all? To yield false confessions? Because that's what it's used for: ask the Inquisition, the NKVD, the Chinese, the CIA.

    Kinder and gentler abuse. Nice. Makes Mr. Neal proud of his government, evidently.

    Re: state secrets, see this post:

    I, Sternin, N.V., pledge never and nowhere to speak of what became known to me between 11 June 1938 and 11 July 1939 about the work of the organs of the NKVD. It is known to me that on any breach of this I will be accountable under the strictest revolutionary laws, for divulging state secrets.

    Distinguish that from the Jeppesen case, will you please?

  13. The Obama Admin's take appears to be that they won't repeat Bush crimes on torture, but they also won't seek justice over it. You can disagree with it (I do), but if you think it's the same thing as being Republican, then you might be in for a rude shock if you think a Republican Congress and Republican President can't make things worse.

    No, not much of a rallying cry, but sitting on your hands is a big mistake.

  14. Brian, I have to agree with you, except that Obama may be repeating Bush crimes on torture, albeit to a lesser degree. So Obama's rallying cry might be "I torture less." Nevertheless, torturing less will make a huge difference to the lucky people who would be tortured under a Republican but who won't be tortured under Obama. We owe it to them to vote for the lesser evil. At the same time to vote for Obama is to tell him that we liberals are willing to forgo having any influence at all. We're with him as long as he is a bit less evil than the crazy Republicans. Is there anything we can do about that?

  15. Sliding scale of support is all dissatisfied Dems can do. I will vote Dem, but if all I can do to influence the party is withhold $$, then that's what I will do. And send the DNC a reply letter explaining why they get no check from me.

  16. "Brian, I have to agree with you, except that Obama may be repeating Bush crimes on torture, albeit to a lesser degree. "

    Of course, it being covert torture, how do you know it's to a lesser degree?

  17. We don't know that it's to a lesser degree, but it's likely that, if it were to the same or a greater degree, then more information about it would have leaked out.

  18. My understanding, from sources in a position to know, is that the Cheney Inquisition ended when Gates replaced Rumsfeld.

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