Brad DeLong Takes a Stand

Brad DeLong, econ professor at Berkley (and respected blogger) has written a letter to the school's administration requesting that it terminate the employment of law professor John Yoo. I thank him for it, and hope others will join him. I've found it quite disturbing for several years now that Yoo has been treated as a respectable and important member of the legal academia. The man should count himself lucky that he is not in prison for war crimes and have the good sense to otherwise remain out of sight. DeLong's letter is well worth reading. The actions Yoo took for the Bush administration were blatantly unethical, and a lot of people suffered and died behind the bogus legal cover he provided the administration. He is an embarrassment to the school and the profession. And that's to say nothing of Jay Bybee sitting on the 9th Circuit.

Glad We Got to the Bottom of That

You can all rest easy now. After months of investigation into the story that the CIA had secret overseas prisons where prisoners were being held incommunicado and possibly subject to torture, we've finally gotten to the bottom of this story. The CIA agent who leaked this information has been found and fired by the CIA. No word on whether the agent will be subject to further legal action. Hallelujah, go USA! Now you'll have to pardon me while I go sick up.

The End of Faith, God Willing

I recently finished reading Sam Harris' book The End of Faith. It was a fascinating read that really made me rethink the utility and danger of faith, most prominently demonstrated by religion. In particular, Harris is concerned by faith that is out of reach of both criticism and debate. This is especially dangerous in the Big Three religions (Judaism, Christianity, Islam), all of which claim that their religion is the only true religion and that those not subscribing to it are damned. Thus the setup for inevitable conflict. The only reason that Christianity has mellowed, Harris claims, is due to secular influences. I would very much agree.

Such criticism of faith and religion is not new. What was new to me, however, were Harris' criticisms of religious moderates. He claims that moderates are complicit in the acts of terrorism or harm done by religious extremists. Because moderates believe in at least some of the dogma of a given religion, they have no grounds on which to argue against a completely literal interpretation of the religious text. In other words, they are on the same spectrum of belief as the extremist, where at some level their faith becomes dissociated from reason.

Harris covers a broad range of topics in the book. One I would like to mention is torture, given the recent press coverage and Joe's recent post (see Torture Nation, 10/7). Harris' arguments were a little harder to follow here, but I believe his main thrust is that torture is no different than collateral damage caused in a war. In other words, in fighting a war, both are potential unfortunate consequences necessary to succeed. He seems to forget about intention through all of this: there is certainly no intention to kill innocent bystanders in a war (although we might expect this to happen), but there is clearly intention to torture someone as a means to an end.

With that said, I continue to struggle with the torture issue. In the oft-cited example, a captive holds information about a bomb he has planted that will kill thousands of people, but he is unwilling to give that information. Should he be subject to torture that we might save thousands of lives? Assuming we know him to be guilty and involved, the answer is clearly yes from a utilitarian perspective. And yet, therein lies the potential of gross misuse of torture, for how can we ever truly know whether we have the right man? Is the information gained by torture reliable? From a practical standpoint at least, there are many doubts about cost-benefit of torture.

I would encourage everyone out there to read Harris' book (by the way, Harris has a degree in philosophy and is a doctoral candidate in neuroscience - I love him already). I would also love to hear any discussion on these issues. Some excerpts from the book you might enjoy:

“Tell a devout Christian that his wife is cheating on him, or that frozen yogurt can make a man invisible, and he is likely to require as much evidence as anyone else, and to be persuaded only to the extent that you give it. Tell him that the book he keeps by his bed was written by an invisible deity who will punish him with fire for eternity if he fails to accept its every incredible claim about the universe, and he seems to require no evidence whatsoever.” (page 19)

“We live in an age in which most people believe that mere words— ‘Jesus,’ ‘Allah,’ ‘Ram’—can mean the difference between eternal torment and bliss everlasting. Considering the stakes here, it is not surprising that many of us occasionally find it necessary to murder other human beings for using the wrong magic words, or the right ones for the wrong reasons. How can any person presume to know that this is the way the universe works? Because it says so in our holy books. How do we know that our holy books are free from error? Because the books themselves say so. Epistemological black holes of this sort are fast draining the light from our world.” (page 35)

Torture Nation

I had thought that the Bush administration's policies favoring torture grossly misrepresented America's values to the world. Apparently not. The polling data at the bottom of this CSM story little more than a third of Americans believe that torture should not be used in interrogations. A slightly higher number favor the use of torture "sometimes" or "often". Have we always been like this? Or has the media's "fairness" on this controversy (treating both sides as substantively equal) legitimized torture for some Americans? It's disturbing in any case...

Real Damage from Prisoner Abuses

There were a trio of interesting articles on CSM today. First, this story on the marked decline of class mobility in America. A troubling trend that underscores, again, the danger in relying on capitalism to deliver social justice. There tends to be an implicit assumption that in a free market everyone gets what they deserve. If there are structural barriers to class mobility, that assumption becomes less valid.

The next story, a happy one for a change, discusses various much-needed efforts at reforming the jury system. As the article notes, there is a great deal of variation among the states (and some are doing nothing at all). Hopefully some of these programs will prove successful and spread to other states.

The story I most wanted to comment on, however, discusses the frightening perceptions among Arabs of our treatment of prisoners in the war on terror. The story focuses on recently leaked pictures of Saddam in his underwear. It also comments on the Newsweek Koran flushing story and the recent NYT story on abusive treatment leading to the deaths of two prisoners, as well as the light sentences and lack of high level accountability for Abu Ghraib. While the Newsweek retraction provided a high profile opportunity for the scoring of political points, I hope that we haven't lost sight of the very real problem that our cavalier treatment of prisoners is creating. These are not isolated incidents. University of Miami law professor Michael Froomkin has been keeping a watch for torture stories on his blog. A sampling:

- U.S. takes hostages to coerce relatives into surrendering
- Guantanamo prisoner claims to have suffered violent sexual assaults and near drowning during his captivity.
- Guantanamo prisoner claims that Gitmo tapes would be as explosive as the Abu Ghraib photos
- Guantanamo prisoner claims innocence, details physical mistreatment
- Guantanamo prisoner claims prisoners were handcuffed naked and attacked by dogs
- 15-year-old Guantanamo detainee claims abuse
- Pentagon inquiry confirms use of sexual tactics in interrogations
- Military lawyers at Gitmo try and fail to end physical abuse of prisoners.
- Afghan prisoner, left exposed to the elements by the CIA freezes to death.
- Gitmo prisoner claims torture, assault, near-suffocation
- Mother Jones story details many claims of torture at hands of U.S.
- Navy disgusted by abusive treatment at Gitmo.
- Terror prisoners claim to have been beaten and abused at New York's Metropolitan Detention Center.
- Iraqi prisoner hung from the wrists until dead (Abu Ghraib related)

These are stories that may not get much play in the U.S., and to be fair, many of them are unconfirmed allegations. However, they almost certainly draw attention from Al-Jazeera and other Arab outlets. As the CSM story notes, U.S. treatment of prisoners is having a strong impact on Arab public opinion. It is difficult to believe that high level decisions (such as the DoD memos exposed after Abu Ghraib) within the administration are not fostering such treatment. Unless I've been grossly misinformed, these sorts of actions do not typify American treatment of prisoners in past conflicts. Moreover, it is difficult to see what we gain from all of this. There have been few claims that we've gained critical intel from this abuse, and many claims to the contrary. I simply don't understand why we aren't doing anything about this. Abu Ghraib never got any real reaction within the administration or the DoD, and all of these stories roll by without attracting any significant attention. Aside from the fact that this treatment is shameful in view of Americans' generally shared values of human rights and human dignity, it seems ruinous from a strategic PR standpoint. But no one in the administration, and few in the press, are paying attention. Whatever stupid things Newsweek may have done, that's the real story here.

Torture Just Ain't What It Used To Be

Slate has this article entitled, "The Plain Meaning of Torture? Literary deconstruction and the Bush administration's legal reasoning." I recommend it (although I have to admit I have never heard the phrase, "PMR" before).

Leadership By Default

I was rather struck by this Washington Post column by Robert Bork and David Rivkin arguing that the court should stop managing the War on Terror. On the one hand, their arguments are entirely plausible. The Hamdi case serves as a perfect example. The court knew that something needed to be done, but they could hardly create a detailed policy directive as to how to treat enemy combatants. So they issued some vague requirements and left the government to figure out what the court was after through trial and error. It is hardly an ideal solution.

On the other hand, for the court to take a hands-off approach as Bork and Rivkin suggest would be even more absurd. The problem here is that Congress apparently doesn't give a crap about the War on Terror, and if the executive has an actual plan, they refuse to say a word as to what they are doing or why. The courts shouldn't be in a leadership position on this, but they have no choice. Nobody else will do it.

If the Administration would explain what exactly it is they're doing, their rationale, what sort of limits they place on themselves, and how they're enforcing those limits, then the courts would have a sound basis to grant them broad discretion. However, we have none of that, and instead have Abu Ghraib, a proposal for a jurisdiction-free-zone in Cuba, documents suggesting that the Geneva Conventions are quaint and torture is ok. How could the courts not intervene?

Bork and Rivkin attempt to write off these various indiscretions as abuses that "inevitably occur in war". I don't buy it. This morning I attended a presentation by reporter Donovan Webster, who recently wrote an article for Vanity Fair called "The Man In the Hood" (the article is not online, but there's a brief summary here, and an Aljazeera article about it here). Webster visited Iraq twice last fall and conducted 60 hours of interviews with former Iraqi detainees, visited detention sites, and spoke with the military personnel there. Webster contends (fairly convincingly) that the abuses famously exposed at Abu Ghraib were widespread, and continue to this day, and that no serious changes resulted from the initial round of publicity. This is an administration in desperate need of adult supervision, and it would be a horrific abdication for the courts to back down.

A Waste of Time

Since the early days of the War On Terror, when Camp X-Ray was created at Guantanamo Bay, many charges have been leveled that the conduct there violates humans rights standards and many American and international legal standards. The Bush administration has consistently answered such charges in the press and in the courtroom by claiming that the actions they have taken are a necessity in their efforts to make the world secure from terrorism. Now Lieutenant Colonel Anthony Christino, a military intelligence officer, is claiming in a new book by David Rose, that the interrogations held at Guantanamo Bay have yielded no useful intelligence. Christino states that not a "single terrorist attack" has been prevented by these interrogations.

Ashcroft: I Am The Law!

This is sort of old news, but I'm trying to get caught up here. So let me get this straight: The justice department evaluates the powers of the executive branch under the circumstances of the "War on Terror", and determines (what good luck for them) that the powers of the executive are unlimited and unrestricted by any law or convention. They can do whatever they damned well please, hurrah! They write a number of memos outlining this fact and documenting other useful bits of knowledge, including penning a definition of torture that would have exempted most of the Nazi doctors who experimented on concentration camp victims. These are then sent to the President, and, lo and behold, some number of months later egregious prisoner abuses are uncovered. Apparently there is still at least one person in the government in possession of a conscience (or more likely, an axe to grind), and the memos are leaked to the press. In view of events these memos appear to be fairly significant and worthy of some scrutiny, so the Senate decides they ought to take a look and request that they be given copies. Ashcroft declines, and rather than citing executive privilege or any legal basis for this denial, claims some sort of lawyer-client privilege between the president and the entire Justice Department. The Senate Judiciary Committee is apparently too dumbfounded by the absurdity of this claim to take any immediate action. Surely the public ridicule will convince Ashcroft to concede. But wait! Mere weeks later, in considering Vice President Cheney's refusal to turn over documents relating to the energy committee, the US Supreme Court vindicates Ashcroft by stating that rather than have awkward moments in which the various branches of the government have to check one another's power, we should just delegate to the executive whatever power they want so that we can avoid conflict. Long live the King! Am I pretty much on track here?

This is getting beyond absurd. In the immortal words of Barf from Spaceballs, "They've gone to plaid!" Are we generating some outrage yet? At what point do we get to the rioting in the streets? This is where we need a Democratic presidential candidate who can do outrage, and who can raise hell and make some waves. If this isn't a moment to point out just how dangerously far off the track we've gone, what is? And where's our candidate? Making minor campaign stops and lulling crowds to sleep all across the country, staying mostly out of the spotlight under the theory that the less the public sees him, the better he'll do. Thank god for Michael Moore. At least there's one person with the good sense to be royally pissed off by all this.

Documents on Interrogation Tactics Available at WP

The WP has scanned the documents that were released yesterday by the Bush administration. They include the 2002 memo by now-judge Bybee (who sits on the 9th Circuit Court of Appeals) and several memos by White House General Counsel Gonzales. I am sure there will be lots of stories cropping up today on these memos (and I plan to make more comments when I have the time to go through those documents), but I found one scanned document particularly interesting right off the bat.

On November 27, 2002, William Haynes II recommended to Secretary Rumsfeld that certain interrogation techniques be available for detainees at Guantanamo--and Rumsfeld approved his recommendations. Among the techniques that were approved in the memo [PDF] include:

a. Category I techniques. During the initial interrogation the detainee should be provided a comfortable chair and the environment should be generally comfortable. The format of the interrogation is the direct approach. The use of rewards like cookies or cigarettes may be helpful. If the detainee is determined by the interrogator to be uncooperative, the interrogator may use the following techniques:

(1) Yelling at the detainee (not directly in his ear or to the level that it would cause physical pain or hearing problems)
(2) Techniques of deception:
(a) Multiple interrogator techniques.
(b) Interrogator identity. The interviewer may identify himself as a citizen of a foreign nation or as an interrogator from a country with a reputation for harsh treatment of detainees.

b. Category II techniques. With the permission of the GIC, Interrogation Section, the interrogator may use the following techniques.

(1) The use of stress positions (like standing), for a maximum of four hours.
(2) The use of falsified documents or reports.
(3) Use of the isolation facility for up to 30 days. Requests must be made to through the OIC, Interrogation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond 30 days must be approved by the Commanding General. For selected detainees, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent nature.
(4) Interrogating the detainee in an environment other than the standard interrogation booth.
(5) Deprivation of light and auditory stimuli.
(6) The detainee may also have a hood placed over his head during transportation and questioning. The hood should not restrict breathing in any way and the detainee should be under direct observation when hooded.
(7) The use of 28-hour interrogations.
(8) Removal of all comfort items (including religious items).
(9) Switching the detainee from hot rations to MREs.
(10) Removal of clothing.
(11) Forced grooming (shaving of facial hair etc...)
(12) Using detainees individual phobias (such as fear of dogs) to induce stress.

The same memo also approved one item from "Category III": "Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing."

When Secretary Rumsfeld signed off on the above techniques, he added a written notation that reads:

However, I stand for 8-10 hours a day. Why is standing limited to 4 hours? DR

White House Releasing Interrogation File [AP]

White House General Counsel Alberto Gonzales will reportedly brief the news media later today on the contents of a stack of papers that is being released relating to the deliberations for setting the rules on interrogations. The story says that the administration decided to release the documents to fight "the constant drip on this issue."

The disclosure may have an unintended legal consequence--if the administration has cherry-picked the documents they released and are still withholding others, they may have a hard time raising any executive or other privilege to prevent those documents from being withheld. As a matter of fact, now would be an opportune time for someone to file a "Freedom of Information Act" request with the Whitehouse demanding all documents on that subject that do not fall within some exception (like national security).

Update: On further deliberation (and actually reading over the language of FOIA, especially 5 U.S.C. 552(b)(5)) I highly doubt that an ordinary citizen could get at the documents that the government failed to include in its two-inch stack released today. That provision exempts:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

But Congress could still subpoena the Executive for that information (yeah, that'll happen).

And Sanchez is the Winner! (or the Loser, All Depending How You Look At It)

The WP opens this story with the following:

Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer in Iraq, borrowed heavily from a list of high-pressure interrogation tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and approved letting senior officials at a Baghdad jail use military dogs, temperature extremes, reversed sleep patterns, sensory deprivation, and diets of bread and water on detainees whenever they wished, according to newly obtained documents.

I'm sure that the Pentagon's decision to "rotate out" General Sanchez (LAT) had nothing to do with this. President Bush: Sanchez "has done a fabulous job. He's been there for a long time. His service has been exemplary."

A "Senior Defense Official" said "He's been there going on 14 months now. Anybody trying to draw a line between the natural progression of looking for somebody to rotate into that position to the alleged abuses at Abu Ghraib would be just wrong. There's absolutely no connection whatever."

From the LAT story: "It was unknown what Sanchez's next assignment would be."

Sanchez or Pappas or Miller in the Doghouse?

From the Senate Hearing on May 19:
REED: General Sanchez, today's USA Today, sir, reported that you ordered or approved the use of sleep deprivation, intimidation by guard dogs, excessive noise and inducing fear as an interrogation method for a prisoner in Abu Ghraib prison. Is that correct?

SANCHEZ: Sir, that may be correct that it's in a news article, but I never approved any of those measures to be used within CJTF-7 at any time in the last year.

REED: Excuse me. Because I want to get back to this. It may be correct that you ordered those methods used against a prisoner. Is that your answer?

SANCHEZ: No, sir, that's not what I said. I said it may be correct...

REED: Well, I didn't hear; that's why I want...

SANCHEZ: ... that it's printed in an article, but I have never approved the use of any of those methods within CJTF-7 in the 12.5 months that I've been in Iraq.

From Today's Washington Post:
Sgts. Michael J. Smith and Santos A. Cardona, Army dog handlers assigned to Abu Ghraib, told investigators that military intelligence personnel requested that they bring their dogs to prison interrogation sites multiple times to assist in questioning detainees in December and January. Col. Thomas M. Pappas, who was in charge of military intelligence at the prison, told both soldiers that the use of dogs in interrogations had been approved, according to the statements.

"I have talked to Col. Papus [sic] and he said it was good to go," Smith told an investigator on Jan. 23.

* * *

In Army memos regarding interrogation techniques at the prison, the use of military working dogs was specifically allowed -- as long as higher-ranking officers approved the measures. According to one military intelligence memo obtained by The Post, the officer in charge of the military intelligence-run interrogation center at the prison had to approve the use of dogs in interrogations. There is no explanation in the memo of what parameters would have to be in place -- for example, whether the dogs would be muzzled or unmuzzled -- or what the dogs would be allowed to do. The Army previously has said that the commanding general of U.S. troops in Iraq -- Lt. Gen. Ricardo S. Sanchez -- would have had to approve the use of dogs.

This all comes out immediately after Lt. Gen. Sanchez asked that a higher-ranking official take over the investigation so that he could be questioned about his role in the prison abuse (see this CNN article)

In an earlier story, the WP quotes Col. Pappas as saying that Gen. Miller did in fact approve the use of dogs (from Taguba's report--apparently Pappas's statement is in the 2,000 pages that the Pentagon failed to deliver to Congress (see this NYT story)--although this Reuters story claims the Army now certifies that the Senate now has a "true and accurate copy of the report")
"It was a technique I had personally discussed with General Miller, when he was here" visiting the prison, testified Pappas, head of the 205th Military Intelligence Brigade and the officer placed in charge of the cellblocks at Abu Ghraib prison where abuses occurred in the wake of Miller's visit to Baghdad between Aug. 30 and Sept. 9, 2003.

"He said that they used military working dogs at Gitmo [the nickname for Guantanamo Bay], and that they were effective in setting the atmosphere for which, you know, you could get information" from the prisoners, Pappas told the Army investigator, Maj. Gen. Antonio M. Taguba, according to a transcript provided to The Washington Post.

* * *

After calling the use of dogs Miller's idea, Pappas explained that "in the execution of interrogation, and the interrogation business in general, we are trying to get info from these people. We have to act in an environment not to permanently damage them, or psychologically abuse them, but we have to assert control and get detainees into a position where they're willing to talk to us."

Pappas added that it "would never be my intent that the dog be allowed to bite or in any way touch a detainee or anybody else." He said he recalled speaking to one dog handler and telling him "they could be used in interrogations" anytime according to terms spelled out in a Sept. 14, 2003, memo signed by Sanchez.

That memo included the use of dogs among techniques that did not require special approval. The policy was changed on Oct. 12 to require Sanchez's approval on a case-by-case basis for certain techniques, including having "military working dogs" present during interrogations.

Wait--There's More Bad Apples

The San Diego Union-Tribune reports here:

While world attention was focused on the scandal at Abu Ghraib prison, two Marines were court-martialed May 14 for abusing an Iraqi prisoner with electricity, it was disclosed yesterday.

Five more Marines have been implicated in the same early April incident at a Marine-run detention facility and might face charges, according to Marine officials in Iraq.

Andrew J. Sting and Jeremiah J. Trefney, both 19 and privates first class assigned to the 2nd Battalion, 2nd Marine Regiment at Camp Lejeune, N.C., pleaded guilty to charges that included cruelty and maltreatment for shocking an unruly prisoner, according to a Marine statement in response to questions from The San Diego Union-Tribune.

The East Coast-based infantry battalion is attached to the 1st Marine Expeditionary Force, which has headquarters in San Diego.

The prisoner had been detained at Al Mahmudiya prison.

Sting was sentenced to a year in jail and Trefney received eight months. Both were reduced in rank, will forfeit all pay and will leave the military with a bad conduct discharge.

Notice that the last two reports are NOT from Abu Ghraib.

A Few More Bad Apples

The LATimes reports here:

A military investigator has concluded that low-ranking Marines repeatedly struck two defenseless Iraqis at a makeshift prison camp last June, and one of the detainees died after he was left disabled and naked under a scorching sun.

In two reports obtained by The Times, Marine Col. William V. Gallo also criticized an investigation into the death, saying the deceased Iraqi's bodily fluids were mishandled by investigators and were destroyed on the way to a laboratory for analysis.

* * *

Although Gallo found no evidence of the type of abuse or sexual humiliation depicted in photographs from Abu Ghraib, he did report that testimony showed that the Marine guards at Camp Whitehorse used a stressing technique known as 50/10, in which detainees were required to stand for 50 minutes out of every hour. The tactic was used until the arrival of trained interrogators — members of a "Human Intelligence Exploitation Team" — sometimes as long as eight hours later.

Several guards testified at hearings late last year and early this year that they were directed by the interrogators to use the technique "as a means to soften up a detainee before the initial interview occurred," Gallo wrote. Two military intelligence interrogators denied this in testimony at the same hearings, the military equivalent of a preliminary hearing in a criminal case. But Gallo concluded in his reports that someone from the intelligence unit "must have directed or strongly suggested" that guards use the tactic.

The Actions of a Few

I have been thinking some about the Bush administration's response that the whole Abu Ghraib affair should be brushed aside and focus placed on more pressing issues because it is simply "the actions of a few" and does not represent "the true nature and heart of America" according to Bush in his apology to Jordan's King Abdullah [AP](I never did figure out why Bush apologized to Jordan for the prison abuses). And it finally struck me that we are asking the Arab world to measure us not by the actions of those few derelict soldiers (assuming that is an accurate assessment of the situation), but rather by the conduct of all Americans. However, when it comes to the Global War on Terror, the Bush administration and many who support the war continue to condemn and oppress the Arab world based on the actions of a few.

For example, Senator Inhofe expressed "outrage at the outrage" at the Senate Hearing on May 11 (NYT) because the prisoners we are so concerned about are all (in Inhofe's mind) murderers, insurgents, and terrorists. And almost to prove his point, "those people" decapitated Nicholas Berg--one of "us"--that same day.

Contrary to Senator Inhofe's suggestions, the ICRC claims that most of the Abu Ghraib prisoners (up to 90%) are innocent. At the very least, we know that Abu Ghraib prisoners were not "high value"--the "high value" campers got extra-special treatment at a separate facility near the Baghdad Airport (that is now being investigated too [MSNBC]).

My point is that many of the problems that we face now and will continue to face in battling this Global War on Terror stems from separating "us" from "them," and holding "us" to a different standard than "them." How many Fallujans did we kill to avenge the deaths of four civilian contractors? Were they all murderers, insurgents, and terrorists too? Until we are willing to extend the same basic liberties that we consider inalienable for ourselves to all those who share this planet, there will be terrorism. Until we are willing to accept that the actions of a few others do not justify waging war on all others, we cannot hope to persuade the world that the actions of a few of "us" should not reflect poorly upon America.

Could It Be?

President Bush has scheduled a press conference at 11:30 ET at the Pentagon...

Update: That press conference was worthless. And my prediction was wrong. I am constantly amazed at the depth of this administration's denial. But I am even more amazed that the people have lost all affect. Rape? Torture? Those are just things that happen during wartime, and anyone who thinks otherwise is hopelessly naive. International disgrace? Who cares, so long as things look good at home. Lies? Everyone's a liar. And anyone accusing this administration of doing bad things is obviously making those accusations for political purposes.

No, the Bush administration isn't giving Rumsfeld walking papers. They are giving him accolades. President Bush (according to the AP): Secretary Rumsfeld "is doing a superb job"--he's a strong secretary and the nation owes him a debt of gratitude. Vice President Cheney (according to Reuters): He's the best Secretary of Defense the United States has ever had. People ought to get off Rumsfeld's case and let him do his job.

God bless America.

Questioning Prisoners of War

Both the Geneva Convention Relative to the Treatment of Prisoners of War and the U.S. Law of Land Warfare have this to say about the questioning of prisoners of war:

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.

The questioning of prisoners of war shall be carried out in a language which they understand.

Section VI, which discusses quarters, food, and clothing, states that POWs "shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health."

I leave it to you to decide whether the Pentagon's approved tactics of "sensory assault" (as described in this WP story) constitute exposure "to any unpleasant or disadvantageous treatment of any kind," and whether the conditions in Abu Ghraib were the same as those provided to U.S. troops in Baghdad.

The Taguba Report and "National Security"

My second concern regarding Rumsfeld's testimony is his explanation about how the investigation of prisoner abuse was handled within the military. As Rumsfeld repeatedly emphasized, the military began an investigation in January, and we now know that Major General Taguba released his report in February. It was classified. Why? When that question was posed to Rumsfeld in a press conference on May 4th, this is what he and General Pace had to say:

Q: General, a quick follow-up on that, please. Could you explain to us why the Taguba report was classified secret, no foreign distribution? Those of us who have read the report, there's clearly nothing in there that's inherently secret, such as intelligence sources and methods or troop movements. Was this kept secret because it would be embarrassing to the world, particularly the Arab world?

GEN. PACE: First of all, I do not know specifically why it was labeled secret. Potentially there are parts of the hundreds and hundreds of pages of documentation that are classified. I do not know that to be a fact, but normally we will classify a document at the highest level of anything that's in that document.

But as the secretary pointed out, immediately we told the world that we thought we had a problem. So there has been no attempt to hide this. What we've been trying to do is find out the truth of the matter so we can get on about correcting; finding out who did what, and then taking a proper action.

Q: Mr. Secretary, can you say why it was classified secret? Do you know?

SEC. RUMSFELD: No, you'd have to ask the classifier.

Q: Mr. Secretary?

Q: Mr. Secretary? Taking into account –

SEC. RUMSFELD: You can ask General Casey, who's going to be down here discussing that later.

I don't know whether General Casey indeed discussed that later. As far as I have been able to find, there has been no explanation for why the Taguba report was classified.

On March 25, 2003, President Bush issued Executive Order 13292 that sets forth the policies and procedures for classifying information. It provides (in section 1.1) that "information may be originally classified under the terms of this order only if all of the following conditions are met:"

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

The DOD is considered an "original classification authority," so requirement #1 is met. The report was produced by the US Government, so #2 is ok. What about #3? The categories of information that can be classified according to section 1.4 are as follows:

(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism;
(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism; or
(h) weapons of mass destruction.

For the life of me, I cannot see how the Taguba report fits within any of those categories. And more importantly, section 1.7(a)(1) provides: "In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error."

I am disappointed that no member of Congress asked Rumsfeld about this (as far as I know). There has also been very little press coverage. The Federation of American Scientists issued a press release stating "Torture Report May Have Broken Classification Rules," and according to this WP article the group sent a letter to J. William Leonard, director of the Information Security Oversight Office (the office responsible for overseeing classified material), seeking an explanation. CNet's News.com also published a story on this, and Friday's Democracy Now broadcast also mentioned the issue. But this certainly deserves more coverage, and a better explanation from the government.

Command Influence

There are two lingering concerns that I have after Secretary Rumsfeld's testimony in front of Congress. First, Rumsfeld suggested that the "command influence" doctrine somehow prevented him and other high-level DOD officials from learning too much about the claims of torture because their knowledge could somehow influence military prosecutions. That is a preposterous interpretation of the command influence doctrine. The Judge Advocate General School for the Air Force has published an instruction book entitled The Military Commmander and the Law that it uses to instruct commanders on the law and "it also serves as a handy reference guide for commanders in the field, providing general guidance and helping commanders to clarify issues and identify potential problem areas." That publication has a section dedicated to "Unlawful Command Influence." It explains what the doctrine prohibits:

A superior commander must not direct a subordinate commander to impose a particular punishment or take a particular action. To do so would constitute unlawful command influence because the decision was not that of the commander taking action or imposing punishment, but rather that of the superior commander.

The key consideration is whether a commander is taking disciplinary action based upon that commander?s own personal belief that the disciplinary action is appropriate or whether the commander is merely acquiescing to direction from a superior to impose the particular discipline.

It also explains what the doctrine does not prohibit:

Superior commanders are not prohibited from establishing and communicating policies necessary to maintenance of good order and discipline. They are also free to pass on their experience and advise subordinate commanders regarding disciplinary matters. Having done so, however, the superior commander must then step back and allow the subordinates to exercise their discretion in the matter.

It is simply ridiculous to assert that the command influence doctrine prohibits Secretary Rumsfeld or General Myers (or any other commander below them) from obtaining information regarding the conduct of its troops, particularly where that information is necessary to evaluate whether troop conduct complies with the obligations imposed by the Geneva Convention. Rumsfeld and others in the chain of command should not make statements that subordinates could interpret as suggesting how a prosecution should be resolved, but of course that does not restrict the flow of information in any way. Along those lines, as the Baltimore Sun explains in this article, Rumsfeld and Bush should be more cautious when making statements like "the wrongdoers will be brought to justice" and labeling the soldiers' behavior as "un-American." But the command influence doctrine simply does not encourage a commander to stick his head in the sand and ignore reports that detail unlawful troop conduct.