Luban Testifies

David Luban testifies on torture to the Senate Judiciary Committee. A snippet:

The first Bybee memo also wrenches language from a Medicare statute to explain the legal definition of torture. The Medicare statute lists “severe pain” as a symptom that might indicate a medical emergency. Mr. Yoo flips the statute and announces that only pain equivalent in intensity to “organ failure, impairment of bodily function, or even death” can be “severe.” This definition was so bizarre that the OLC itself disowned it a few months after it became public. It is unusual for one OLC opinion to disown an earlier one, and it shows just how far out of the mainstream Professor Yoo and Judge Bybee had wandered. The memo’s authors were obviously looking for a standard of torture so high that none of the enhanced interrogation techniques would count. But legal ethics does not permit lawyers to make frivolous arguments merely because it gets them the results they wanted. I should note that on January 15 of this year, Mr. Bradbury found it necessary to withdraw six additional OLC opinions by Professor Yoo or Judge Bybee...

This morning I have called the torture memos a legal train wreck. I believe it’s impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law.

Obama's Military Tribunals

The US Supreme Court ruled last year in Boumediene v. Bush that habeas corpus rights extended to the detainees held at Guantanamo (note that the ruling does not necessarily entail that habeas extends to all detainees held elsewhere). Importantly, the ruling found the 2006 Military Commissions Act suspension of habeas to be unconstitutional. The MCA had asserted that detainees had no access to the US civil court system.

Military tribunals allowed under the MCA were not only unconstitutional. There are further problems for a policy reinstituting military commissions. From a forthcoming piece on detention policy and government accountability:

...closed military tribunals do not inspire confidence... [they] can provide a forum for shaping the guilt of the accused for extra-legal reasons... [and] may also serve as a means of deflecting scrutiny for otherwise criminal abuses committed in the course of evidence-gathering. From a political perspective, especially once connected to demands for accountability for government abuse of detainees, this option appears entirely untenable.

Unfortunately, Obama is apparently taking this Bush administration route, having chosen the policy from a range of other options, including the try-or-release approach encouraged by the UNHRC and others. The details on the proposed tribunals remain sketchy, with simply a few vague reassurances that,

the changes were designed to give defendants stronger legal protections, such as a ban on evidence "obtained through torture, or by using cruel or degrading interrogation methods," like waterboarding; limiting use of hearsay evidence; granting the accused more say in who represents them; and protecting detainees who refuse to testify from legal sanctions.

Of course, Congress likes it:

The Democratic chairman of the Senate Armed Services Committee, Carl Levin, D-Mich., called the changes "essential in order to address the serious deficiencies in existing procedures." Senate GOP Leader Mitch McConnell said the announcement was an "encouraging development."

"It's a difficult legal situation, and I think this is really the only rational choice to make," said Sen. Sam Brownback, R-Kan., who opposes bringing detainees to the military's maximum security prison located in his state.

And what is this "difficult legal situation"? It is that the US government tortured at least many and likely most of the detainees whom these tribunals are designed to process. Further, many detainees were originally picked up with the slightest of evidence, including hearsay accusations. Evidence from torture and evidence from hearsay are obviously inadmissible in a fair court of law in pretty much any country not run by authoritarian government. Thus, of the hundreds of present and former Guantanamo detainees, the cases against the couple of dozen who are thought to be actual dangerous terrorists are actually quite weak. Since the US suspects these detainees to be dangerous, it doesn't want to risk releasing them after a fair civil trial. So, the US has created tribunals with the intention of finding the detainees guilty and ordering their indefinite detention based on evidence that would not pass in a civil court.

In fact, the entire process has been corrupted by Bush administration detention policy and torture. The "difficult legal situation" was created by the Bush administration.

Obama is assuring us that no evidence from torture, other abuses, and hearsay will be admitted in his version of the military tribunals and the detainees will receive due process. What will qualify as evidence?

And if these tribunals involve more rights for detainees, then why not use civil courts? The central reason is that, no matter what the reality of their actions and affiliations (which is in doubt anyway, given the abuses), military tribunal policy entails that these detainees, a priori, do not have the right to be potentially found innocent of the charges made against them.

It may be possible ultimately to twist and turn one's way through technicalities of constitutional law and end up with military tribunals. But the defense of the spirit of the law, which was a central motivation for many Obama voters, is now a slippery slope eroding under the Obama administration.

Torture, Torture, Torture

If you haven't already, you must read McClatchy's series this week on American torture and suspension of morality and legality in Iraq, Afghanistan, and Guantanamo, all orchestrated by the Bush administration itself. The McClatchy series is a crucial document. It shows what I've said over the past few years: that all torture institutions involve innocents.

As I've suggested repeatedly (see, for example, this Helsinki Commission testimony), a system of information-gathering operates necessarily in a state of ignorance and uncertainty. The actual degree of ignorance within the US system from top to bottom, as we learn more about the US gulag archipelago, is simply stunning. But any such system will operate with limited information. More information comes through more interrogation, the US having chosen the way of torture. But limited information means limited certainty about the guilt of prisoners and torture victims. The Bush administration has waved off such concerns, repeating the mantra "9-11." In a morbid way, they are right since any torture system will torture innocents. Always.

We can run through the arguments once again for why torture is never justified, if you like. Torture is not morally justifiable. Nor is it useful for its stated purpose of information-gathering. At this point, with the number of posts I've done on torture over the past couple of years, you'll have to buy the book.

When reading pieces like the McClatchy articles, however, remember that if torture is never justified, the "guilt" of the torture victim is a moot point. That's the core of the smokescreen that the Bush administration and other defenders of torture would have you face. They want you to think of their torture victims as "bad" or "evil," a judgment only they the administration may make (in advance of evidence). The innocence of some of the prisoners is, on the other hand, important because it gives the lie to those who have no time for habeas corpus because, they say, these are bad people.

Meanwhile, Americans are apparently largely okay with torture, according to this new Pew Research poll. 43% say torture is justifiable at least sometimes. But note also that an additional 25% say torture is rarely justified. Since the entire discourse on torture in the US is one of extraordinary circumstances (which is an excuse always used by torturing states), this may amount to 68% of Americans being pro-torture.

Torture isn't some grave policy choice made by moral realists; it's a moral sickness. The Bush administration's torture policies are war crimes. And you folks who hold the pro-torture views in the Pew survey are complicit.

More on the Torture Memos

Stephen Gillers at The Nation:

How could two really smart guys authorize torture using "one-sided legal arguments" that have "no foundation" in law? How could they be guilty of a "stunning failure of lawyerly craft"? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President's authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better, and that raises another issue, the most troubling. Who was the client? The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President's political agenda nor the authors' views of what the law should say can be allowed to slant the OLC's work. So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not "consistent with the professional standards that apply to Department of Justice attorneys." Jarrett must hold the lawyers accountable if he means to restore OLC's reputation and vindicate the rule of law.

By the way, Michael Hatfield, a law professor and longtime friend, deals with this issue better than anyone else I've seen to date (in my forthcoming volume, On Torture).

Torture in Israel

I received an email from the Public Committee Against Torture in Israel on the Israeli exploitation of family members of detained Palestinians to extract confessions. PCATI - itself an Israeli group - works indefatigably against the use of physical and psychological torture in Israel. The email says,

Demonstrating a heightened level of concern surrounding the findings of the report, which show the continued use of interrogation methods that have been condemned as torture or ill treatment under international law, Knesset Constitution Law and Justice Committee Chairperson, Professor Menachem Ben Sasson, has agreed to PCATI’s request to discuss the report in a special committee session, which is taking place, today, the 13th of April at 13:30 in the Knesset. The extraordinary nature of this act is further demonstrated by Professor Ben Sasson’s calling on the GSS to respond to the report during the hearing.

Furthermore, we are filing a High Court of Justice Petition on this matter in the coming days. The petition and the report represent our attempt to attack this issue at more than one level.

Here's an article on the PCATI report, "Family Matters," in Ha'aretz (soon to be released in English). Another article is here. And here's the Jerusalem Post's article on the Knesset Law Committee's hearing prompted by PCATI, which says further that,

Torture has become an accepted tool of the so called "war on terror" and we cannot stand silently by while this tool is being dressed up and made to appear something less than it is. This is but a small part of our contribution, not only to the local fight but the global one too.