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Salon: Bush-era waterboarding really was torture

Some hawkish conservatives have made the case that terrorist waterboarding wasn’t really torture — despite a long history of jurisprudence indicating otherwise — because it was done by the CIA in a carefully controlled way designed not to be torture. And that furthermore it’s not torture because American soldiers undergo it during training.

That’s wildly incorrect, according to a new story from Salon:

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed” to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

This is torture, period. “Inhaling water” doesn’t just create the sensation of drowning, it is drowning … even if done under barely controlled conditions.

Oh, and the idea that it’s OK because we do it to our own soldiers? We don’t.

These memos show the CIA went much further than that with terror suspects, using huge and dangerous quantities of liquid over long periods of time. The CIA’s waterboarding was “different” from training for elite soldiers, according to the Justice Department document released last month. “The difference was in the manner in which the detainee’s breathing was obstructed,” the document notes. In soldier training, “The interrogator applies a small amount of water to the cloth (on a soldier’s face) in a controlled manner,” DOJ wrote. “By contrast, the agency interrogator … continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.”

Let’s remind ourselves of the legal definition of torture under American law:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

The memos discovered by Salon easily clear this definition. You should read the whole article.

At this point, waterboard-defending hawks cannot plausibly say that the technique was not torture. They forfeit any claim to credibility if they do so. I suppose they can claim that national security concerns outweighed the law — that the need to protect American lives forced them to commit war crimes against Al Qaeda terrorists. I suspect it likely that many Americans will agree with them. But let’s not lie to ourselves about what actually happened. The Bush Administration committed torture.

Karl Rove just admitted the Iraq War was a huge mistake

Ever since it became apparent we weren’t actually going to find weapons of mass destruction in Iraq, certain conservatives have continued to argue that the invasion was still a good idea. Maybe he didn’t possess nukes or other WMDs, the thinking goes, but Saddam Hussein was still a bad guy — a threat to his own people and a destabilizing force in the region who needed to be removed. As National Review’s Victor Davis Hanson said last year: “Congress cited 23 reasons why we should remove Saddam. The majority of these authorizations had nothing to do with weapons of mass destruction.”

I’ve long contended that’s a dodge: Maybe there were plenty of reasons to want to see Saddam Hussein out of power, but there was only one necessary and sufficient reason the American public was going to back an otherwise-unprovoked invasion of Iraq: the WMDs.

Guess who agrees with me? Karl Rove and George W. Bush:

While the opportunity to bring democracy to the Middle East as a bulwark against Islamic extremism “justified the decision to remove Saddam Hussein,” Mr. Rove makes clear that from the start, at least, the suspected weapons and their perceived threat were the primary justification for war.

“Would the Iraq War have occurred without W.M.D.? I doubt it,” he writes. “Congress was very unlikely to have supported the use-of-force resolution without the W.M.D. threat. The Bush administration itself would probably have sought other ways to constrain Saddam, bring about regime change, and deal with Iraq’s horrendous human rights violations.”

Rove goes on to reject that Bush “lied” the United States into war — he really, really believed Hussein had the weapons. Fine. Lots of people and nations did. Only one problem: There was a process in place before the war to determine the nature of Saddam’s WMD programs — the UN inspectors — and their inability to find the non-existent weapons somehow became proof that the weapons actually existed!*

*Not to mention that there were options besides invasion for deterring Saddam Hussein if he possessed WMDs. But that’s a whole ‘nother argument.

But the math here is simple and, really, inarguable. If the invasion of Iraq wouldn’t have happened without the WMDs, and if Iraq didn’t actually possess WMDs, then the invasion of Iraq was a huge mistake — one created in part by the Bush Administration’s aggressive blunder in short-circuiting the U.N. process. The debate, such as it was, is over. We can all move on.

Charlie Savage: On signing statements and the law Barack Obama might be worse than George W. Bush

When it came to respecting the prerogatives of Congress, George W. Bush really didn’t. There were a variety of ways his administration offered a middle finger to a co-equal branch of government, but among the worst might’ve been “signing statements.” Rather than veto a bill, Bush would sign it — then quietly issue a proclamation declaring he wouldn’t obey parts of it. Other presidents had used signing statements before, but Bush took it from an occasional practice to daily business.

The reporter who brought the signing statement business to light, Charlie Savage, has decided to scrutinize Obama’s practices. The answer is troubling: Obama has decided to ignore the parts of laws he doesn’t like — but not bother really telling anybody:

…the administration has decided that Mr. Obama will sometimes sign bills containing provisions it deems problematic without issuing a signing statement that challenges those sections.

Still, the administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said.

The White House disclosed its shift when asked why it had not put out a signing statement last month, when Mr. Obama signed a $447 billion spending bill for 2010. It contained several provisions that restricted executive power in ways that the administration had previously asserted were unconstitutional — including in signing statements attached to similar bills and in policy statements it issued about the spending bill as lawmakers drew it up.

“The administration’s views about certain provisions in the omnibus spending bill had previously been publicly communicated,” said Ben LaBolt, a White House spokesman, “so it wasn’t necessary to duplicate them in a signing statement.”

This ends up being a bigger middle finger to Congress than George W. Bush ever thought about giving. The Bush approach was somewhat questionable, but it had the virtue of being transparent — supposedly an Obama virtue before he took office — and it set out a publicly available record of what, exactly, was being ignored.

Now the Obama Administration’s position is apparently that if somebody in the administration said “we don’t like that” about a part of the law before the law was passed, it’s free to ignore the law. But as Savage points out, “the approach will make it harder to keep track of which statutes the White House believes it can disregard, or to compare the number of laws challenged by President Obama with former President George W. Bush’s record.”

In other words, on the subject of presidential openness and accountability to rules and laws passed by Congress, President Obama appears to be worse than President Bush. And it displeases me to have to say that.

Back in December 2007 — when it appeared that Hillary Clinton would be the nominee of the Democratic Party — then-Sen. Obama answered Charlie Savage’s questions about presidential signing statements in a way that preserved his right to them, but signaled he’d be more respectful of the law than Bush had been:

While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

By President Obama’s own definition, then, his decisions to ignore parts of the law he doesn’t like is an “abuse of power.”

Barack Obama’s war on Hanukkah!

Trouble stirring:

President George W. Bush, who began the tradition of White House Hanukkah parties, invited 600 people to his last party, administration officials say. But rumors spread wildly, first in the Israeli press and then locally, that President Bush had invited 800 people and that the Obamas were planning to invite only 400. (Administration officials say they have invited 550 people.)

The invitations have also caused some consternation because they make no mention of Hanukkah, inviting guests to “a holiday reception” on Dec. 16.

Well, I’m a defender of political correctness during the holidays and even I think that’s silly. If you’re going to have a Hanukkah party, Mr. President, have a Hanukkah party! Fortunately, even in this case, George W. Bush can always be counted on to have done it worse.

Rabbi Shemtov, who has attended Hanukkah parties at the White House, said he raised an eyebrow when he received his invitation, but noted that the Bush administration once sent invitations out with Christmas trees on them.

Let me slip into my best Jon-Stewart-as-George-Bush impression: “Heh heh. Laura and I want to think you fer comin’ to this Hanukkah party, where people of all faiths can celebrate the birth of our saviour.”

In any case, it turns out most of the concerns that Mr. Obama is turning a cold shoulder to his Jewish constituents are overblown, because Mr. Bush actually wasn’t that much more solicitous:

Ms. Sher noted that Mr. Obama held the first White House seder, invited the leaders of more than a dozen Jewish organizations for a wide-ranging discussion at the White House in July, held a conference call with 900 rabbis in August and videotaped a message to Jews for the High Holy Days in the fall.

Administration officials also noted that White House records showed that Mr. Bush never had more than 584 guests at his Hanukkah parties. Most years there were fewer than 500, they said.

Still. That “holiday reception” card was kind of silly.

Poll: Afghanistan is Obama’s war

Not all that surprising:

When asked whose policies people currently blame for the Afghaninstan mess, 64% blame Bush, versus only 17% who blame Obama. That’s understandable.

But when asked whose policies would be to blame if the current situation does not improve by the summer of 2011, Obama’s target for withdrawal, a majority, 54%, picks Obama. Only 34% say Bush.

Well, and the public would be right. It’s Obama’s choice to double down in Afghanistan, so the results — for good or ill — are going to largely be his responsibility. That doesn’t absolve George W. Bush of his errors in this war, but it’s Obama’s choice to continue the war.

The Bush Administration failed to enforce Civil Rights laws. Who to blame? Philadelphia’s New Black Panthers, of course

Somehow, when I started reading this story, I just knew Philly’s New Black Panthers would make an appearance by the end. And I wasn’t disappointed:

When the Bush administration ran the Civil Rights Division at the Justice Department, career lawyers wanted to look into accusations that officials in one state had illegally intimidated blacks during a voter-fraud investigation.

But division supervisors refused to “approve further contact with state authorities on this matter,” according to a new report by the Government Accountability Office auditing the activities of the division from 2001 to 2007.

The 180-page report, obtained by The New York Times, is densely packed with statistics about civil rights enforcement by the division’s sections. The accountability office also examined a sampling of matters that were closed without further action, finding several cases — including the curtailed voter intimidation inquiry — in which supervisors rejected the recommendations of career lawyers to go forward.

The report represents a comprehensive review of the division’s litigation activity in the Bush administration. When compared with the Clinton administration, its findings show a significant drop in the enforcement of several major antidiscrimination and voting rights laws.

Republicans have signaled that they will use the hearing to accuse the Obama administration of politicizing the division in its own way. They are focusing on a decision to downgrade voter-intimidation charges stemming from an incident in the 2008 election in which two members of the New Black Panther Party stood outside a Philadelphia precinct in militia uniforms, one of them holding a night stick. The charges were brought in the final days of the Bush administration and were downgraded and partially dropped in May.

I’ve said it a million times, but still: The New Black Panthers who stood outside a Fairmount polling station last November were knuckleheads who acted stupidly. And you can argue the Obama Administration was wrong to drop the charges. (Although, again: Have we EVER been presented with a voter who claims to have been kept from the polls that day?)


On one hand, you’ve got a couple of guys from a fringe group who did something dumb for an hour or so. On the other hand, you’ve got state officials — using the power of the state — allegedly intimidating African American in a voter-fraud registration case. Which case did the Bush Administration pursue? And which did it ignore? But which one represents the greater danger to liberty and civil rights?

Republicans keep focusing on the New Black Panthers, though, because it’s a handy way to direct people away from their own shortcomings. And since there’s video of the Panthers — not so much of behind-the-scenes bureaucratic shuffling — it’s easier to make a bigger deal about them on TV. But Americans shouldn’t be duped into thinking there’s any real equivalence here. There’s not.

Obama: Gitmo won’t close on time

I guess this means I officially lose my bet with Ben Boychuk:

BEIJING — President Obama directly acknowledged for the first time Wednesday that the prison facility at Guantanamo Bay will not close by the January deadline he set, but he said he hoped to still achieve that goal sometime next year.

Obama refused, however, to set a new deadline.

When Obama took office and immediately pledged to close Gitmo within a year, I was — to put it mildly — thrilled. I thought it was a bold declaration of values and intent. But boldly declaring your intent makes it pretty easy to fail.

For what it’s worth: I still think closing Gitmo is a net plus to America. In a war against lawless, stateless terrorists, it seemed to me we ceded some necessary moral high ground by trying to create a lawless, stateless base to contain them. It told the world that we didn’t really believe in our own civilization. In a battle that is just as much about ideas as it is about bullets and bombs, it was a crucial concession by the Bush Administration. Reversing that concession, it turns out, is more difficult than I thought it would be.

Britain’s surveillance camera society couldn’t happen here, could it?

Fascinating story in today’s NYT about Britain’s overzealous surveillance society. Witness the case of Jenny Paton, suspected by her local authorities of having a dark, dark secret:

Local officials here began a covert surveillance operation. They obtained her telephone billing records. And for more than three weeks in 2008, an officer from the Poole education department secretly followed her, noting on a log the movements of the “female and three children” and the “target vehicle” (that would be Ms. Paton, her daughters and their car).

Wait. The education department? Why yes. Paton was suspected of not living in the school district where she was trying to enroll her children. According to the Times, local governments in Britain now use invasive surveillance powers…

…without oversight from judges or law enforcement officers — to investigate malfeasance like illegally dumping industrial waste, loan-sharking and falsely claiming welfare benefits. But they also use them to investigate reports of noise pollution and people who do not clean up their dogs’ waste. Local governments use them to catch people who fail to recycle, people who put their trash out too early, people who sell fireworks without licenses, people whose dogs bark too loudly and people who illegally operate taxicabs.

Well, you say. That’s the UK. The country ranks in the bottom five countries — along with Singapore — for its respect of privacy. That kind of craziness couldn’t happen here, could it?


That report that places the UK in the bottom five countries also calls the United States an “endemic surveillance” society. And why not? Our bigger cities – like Philadelphia — are increasingly blanketed with cameras that cover their citizens’ surreptitious public butt-scratching. (Hell, it even happens in our not-so-big cities.) And on a broader scale, don’t forget that the Bush Administration sought — and then-Senator Obama voted for — expanded authority to eavesdrop on electronic communication without judicial oversight. (The law applies to communications involving — but not limited to — foreign sources. Which means if you call your aunt in Iran, the government is probably listening, regardless of whether you’ve done anything to legitimately attract suspicion.)

So could it happen here? It is happening here. Not to the extreme that it is happening in Britain, no. But that could be just a matter of time.

Karl Rove, Fox News and chutzpah

You’ve got to admire the man’s chutzpah. It’s bad when presidents single out news organizations for criticism and reduced access, you see:

Karl Rove, a Fox News contributor who advised President George W. Bush, said Obama’s aides have tried to “demonize” Fox and compared their approach to that of President Richard M. Nixon.

“This is a White House engaging in its own version of the media enemies list,” Rove said on “Fox News Sunday.” “It’s unhelpful for the country and undignified for the president of the United States.”

Except when it isn’t:

If Times readers did not already know the paper’s relationship with the White House was in serious disrepair, they found out on September 18. That day, Times reporter Rick Lyman wrote a front-page piece about how, despite having been assigned by the country’s most influential newspaper to cover Cheney’s re-election campaign, he was not welcome on Air Force Two, where 10 seats were reserved for the travelling press corps. None was available for him, or for the previous Times reporter assigned to the Cheney beat. Lyman’s article, headlined Chasing Dick Cheney, was written with a slightly tongue-in-cheek tone (as much irony as the still-staid Times allows) but could not mask the strain between the paper and the White House, the kind of rift usually kept from public view as administration and news officials exchange behind-the-scene phone calls to try to patch things up.

Cheney had already made clear this summer that he had no intentions of maintaining cordial relations with the Times when he blasted its coverage of the 9/11 commission as “outrageous” and “malicious.”

The Bush White House’s open feud with the Times represents a clear break with the tradition of most Republican presidents – including the current president’s father – tolerating the major mainstream press outlets despite misgivings or unhappiness with their coverage.

Karl Rove’s punditry career relies entirely on everybody forgetting everything that happened before 2009.

Obama’s smoke and mirrors on state secrets

I’ve been pretty disappointed in President Obama’s embrace of the “state secrets privilege,” which the government — under both him and his predecessor — tried to get torture lawsuits dismissed on the basis of national security concerns. Judges haven’t been able to see evidence that that such lawsuits would actually harm security; they’ve had to rely on the president’s assertion. And that’s bad.

It’s not that I don’t think that national security doesn’t sometimes trump other concerns; but there has been no real process in place to ensure the privilege is used legitimately instead of as a means to cover up government misconduct.

The Washington Post reports today that the Obama Administration is promising to hold itself to a tighter standard when it comes to invoking the privilege:

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to “national defense or foreign relations.” In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.

Which sounds great. Except that if the Bush Administration taught us anything, it’s that you can get whole teams of Justice Department lawyers to sign off on conduct that’s plainly illegal if that’s what the president wants. In the past, the executive branch’s use the state secrets privilege has amounted to: “Trust us.” Under Obama it’s: “Now you can really, really trust us.”

Only we can’t.

This has nothing to do with Obama, personally, and everything to do with the nature of executive power. It wants to be untrammeled. But it should be trammeled, and under the Constitution’s separation of powers it is. When it comes to the state secrets privilege, though, the executive branch is telling the courts: “No need to check us. We got this one.”

That’s not how it should work. And it doesn’t have to be that way: You’ll remember that Arlen Specter a few months back introduced legislation that would allow a judge to privately weigh the evidence that the government’s assertion of the state secrets privilege is, in fact, warranted. It’s a way of keeping the president in check, to make sure he doesn’t use national security concerns to cover up misconduct.

Specter’s bill appears to be going nowhere. That’s too bad. Letting a judge check and balance the president would have minimal harm on national security, but it would mean a great deal for letting citizens hold their government accountable.