Would Preventive Detention Work?

Georgetown law professor David Cole has an interesting, if perplexing, piece in the Boston Review of Books which I just read for one of my classes (you can read it here). Cole has been one of the most vocal and intelligent commentators on the moral and legal conundrums presented by the war on terror; he has written several books and papers on the subject and has litigated a number of cases on behalf of the Center for Constitutional Rights. In general I respect his opinion and while I think this piece is an ambitious and pragmatic intellectual effort – a hard balance to strike – it comes up short in a few important ways.

My issue with Cole’s essay is that it trivializes one of the most important and problematic questions in the whole discussion of the war on terror: how do we effectively determine who is a threat and who isn’t? Surely Cole’s suggestion of a preventive detention scheme that adheres to the rule of law, due process, the Geneva Conventions, and basic rights is well-taken. Moreover, as Ali Soufan said in his Op-Ed piece a couple days ago, whatever we think about prosecuting former officials or setting up truth commissions, it is now essential to set up a detention and interrogation system that is well bounded within firm and clear legal fence-posts. And the main function of such a system, I would imagine, would be prevention.

However, can we really believe that if taken to task, the engineers of the torture apparatus wouldn’t claim that prevention was their highest aim? The evidence that has surfaced so far greatly undermines their argument that the enhanced interrogation techniques being used at Guantamo, Abu Ghraib, Bagram and elsewhere were about gathering information. But Cheney and others still have a case that those methods prevented strikes against the homeland by al Qaeda; we simply can’t refute the claim that there were no successful Qaeda attacks on America after 9/11. So Cole’s talk of detaining preventively actually lends credence to the Cheney argument and reminds us of this irrefutable point.

What is far more critical, in my mind, is that Cole never really gets to the bottom of the issue. If we were to put his plan into action tomorrow morning and start detaining people under the rationale that we were preventing an attack, we still would not have solved the two key problems: how the attack will be carried out and by whom. Cole’s system assumes that the detainees are all guilty but he never describes how we would have come to know that with such certainty. We only gain something from a preventive detention scheme if the individuals we are detaining are actually guilty of some high-level planning and intent to carry out an attack. We gain nothing from detaining others. But the real problem is in figuring out who will undoubtedly pose a grave threat to the security of the American people if we leave them be. I don’t see how Cole answers that question.

I think the strongest part of the essay is the stern reminder of the challenges we face: the war on terror is fought on a limitless battlefield against an undefinable enemy that doesn’t play by the rules and whose methods and motives we may not fully understand. This is a problem for our laws, which require that the issue at hand be concrete and finite. Those are two conditions we lack in the war on terror. Murder, by comparison, is finite, and we don’t need preventive detention for murder because individual instances of it do not cause mass death and destruction. Individual instances of terror do. This distinction is lurking somewhere beneath Cole’s reasoning, I think, although it never bubbles up to the surface. The key upshot is that whether we are detaining people in order to gather information, prevent attacks or something else, we have to have proof that locking a certain person up will demonstrably and greatly improve the security of the American people. That is what has been missing so far and what is sorely needed before any system that abides by the rule of law can get going.

The Torture Argument Weakens

The argument that Dick Cheney and several congressional Republicans have been advancing – that torturers and their authorizers should go unpunished because they kept us safe – appears to be swiftly losing ground. Two pieces in the Times today, one by the formidable Scott Shane and the other an op-ed piece by former FBI special agent Ali Soufan, both expose explicit factual errors and logical inconsistencies in the Cheney argument. Soufan writes, for instance:

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.

Leaving all of the moral and legal dilemmas aside, the brute assertion that our torture methods worked is a grossly oversimplified inference to draw from a huge body of yet unresolved – and yet undisclosed – evidence. Of course, all players involved, Cheney included, are assumed innocent until proven guilty simply by virtue of our criminal law system (a right which regrettably did not extend to our detainees). But taking such a headstrong stance so early in the game, and before the evidence has even been collected, is rather suspect.

One almost gets the sense that Cheney would like us to forego any sort of reflection on the evidence and instead simply defer to his expertise on the matter. After all, it was his idea in the first place to “go over to the dark side.” I suspect he is proud of what he did and I think that is why he is suddenly so keen on having all the memos released. In his characteristic fist-swinging approach, he thinks that there is no way he was wrong and no way he might be proven wrong.

Nevertheless, no matter how one feels about torture from a philosophical standpoint – in consideration of the “necessity defense,” exigent circumstances or the “ticking time-bomb” problem, for instance – there is a certain issue in the midst of all this that is hard to look past: the evidence now overwhelmingly suggests that, in the majority of the cases, torture was administered not in a utilitarian or goal-oriented fashion but vindictively and vengefully. We can all think of hypothetical situations in which we imagine ourselves torturing someone to obtain “high-value” information – to save a loved one, for instance. But the cases of Zubaydah and KSM bear almost no resemblance to those hypotheticals. They reek instead of gratuitous and aimless violence.

This suspicion is all but confirmed by Soufan and Shane’s suggestions that through non-coercive means, critical and actionable intelligence had been obtained prior to the initiation of the torture program. So one can only wonder, what were the designers of that program really after? They couldn’t have been after good information because there was already a decently functional system, as Soufan describes it, set up for that. Moreover, the torture techniques used were based on those used in the SERE program (which teaches interrogation resistance not intelligence extraction) and the Chinese Communist model (which was specifically designed to elicit false confessions).

Thus, before we even get into the divisive discussions about whether these are practices that America stands for, or whether there is a place in our Constitution for them, there are serious questions about pragmatic intent that need to be answered. If, as Cheney and his supporters claim, the torture program produced intelligence that directly allowed authorities to thwart terrorist attacks (which is impossible to verify, by the way), then that doesn’t say much for the interrogation methods the FBI, CIA and police have been employing all along.

Unfortunately for Cheney, though, those methods stand apart from torture in two crucial ways: first, they are legal, and second, their efficacy has been attested to by every agency operative and official who has come forth to talk about them so far. Whereas, the efficacy of waterboarding a detainee six times a day for a month is as dubious as we could possibly imagine.

What were Cheney and his crew really after? We don’t really know for sure but somewhere deep inside I bet the man really wants to tell us.

Torture and Conservatism

Andrew Sullivan has a piece on his blog tonight on Cheney and the conservative movement, in which he seeks first to explain the role that Cheney has played in the development of a completely immoral, unlawful and corrupt worldview within conservatism, and second to show how that worldview composes the very foundation of the national torture apparatus that we continue to read and learn about.

This is an important piece primarily because it contains a precise and hard-hitting response to the charge made by several conservative pundits over the past few days that no one ought to be prosecuted because the torture methods “worked.” Granted, most of these proclamations were issued on Fox News in response to typically vapid prompts from  Hannity and O’Reilly (whose general trashiness and dishonesty is so widely recognized now that I hesitate to infer that their views represent the majority of conservative Americans), but nevertheless there seems to be something of a consensus among this crowd that the efficacy of the program – not the legality – is what matters most. And they uniformly maintain, without a shred of doubt, that the torture program worked to perfection.

These claims are logically impenetrable because they rest on counterfactual assertions about decisions we didn’t make and what would have followed from them: ‘if we hadn’t waterboarded so-and-so, we’d be without the Brooklyn Bridge right now,’ or some such thing. In reality, no one can say for sure what would have transpired had we not embarked on the course we did; we have to leave it to the philosophers to handle those questions. What we – the people and lawyers and politicians – can handle are the decisions we did make and the actions we did take.

It is pitiable that the response so far to the torrent of investigative reports, testimonials, first-hand accounts and congressional inquiries all indicating that laws were broken with prejudice, is that there’s no cause to worry because the interrogations met their mark. Putting that aside, however, there is a serious question as to whether torture of the sort we are now speaking is something that all conservatives countenance or only those insular few that would call themselves “Cheneyists.”

I find it almost impossible, for instance, to square the incessant conservative phobia of “big government” with the dogmatic support for a war with no geographical boundaries fought against an unidentifiable enemy and without any respect for individual rights or the rule of law. Cheneyism clears up this contradiction by ignoring it, but for those conservatives who still place some value on intellectual consistency and human morality, there is a devil in the works.

If Holder  and the Justice Department make the decision to file criminal proceedings, it will not automatically be out of vindictiveness or hostility (we would be wise not to prematurely impute to Mr. Holder the qualities of his predecessors). Rather, it might be out of a sense of duty to something that we have all but forgotten in this country: flying high above so-called dangerous historical precedent, partisan battles of the day, the office of the president and even the office of the vice president, is the law. If in the course of a legal investigation, which the Justice Department is entrusted to perform, it is determined that individuals in the Bush administration broke laws, then they ought to be charged with crimes. If Nancy Pelosi broke a law, she ought to be charged, too. That is the beautiful objectivity that the law imposes and it is why, in a time of such uncertainty and divide, the law may be the only thing liberals, conservatives and all in between can agree on.

This is not about whether the law-breaking tactics worked, and in point of fact that line of argument is nothing but a distractor that will never lead to any kind of resolution. Since we are a nation of laws, and since those laws are derived from our common sense of what is moral and right, let the way forward be marked by a return to, and not a further departure from, them.

Re. Torture, It Just Keeps Getting Worse

Scott Shane and Mark Mazzetti of the Times have just released a long and stirring report on the facts that have come to light over the past several days in the ongoing torture saga. Much of what they say has already been reported – if not in the news media then in the halls of Congress (see the astounding Levin Report, for instance, released late last year) – but their article is the first truly encompassing compilation that I have seen of the many dark secrets that we now know and must figure out how to deal with, and to make things better, it is in a highly accessible place.

The article does a capital job of connecting together all the dots: the facts, figures and individual accounts which have spun out into the public eye in a manic flurry and which deserve and require a great deal of background reading just to get a basic sense of what is going on. What is great about the article is that it makes this growing story rather intelligible without sacrificing or oversimplifying key details. In short, it is excellent condensation, and quite bluntly, excellent journalism.

It also includes some of the most current details, including the account of Philip D. Zelikow, counsel to SoS Rice, whose story centers around the attempted destruction by the Bush administration of memos he authored that challenged those from the Office of Legal Counsel approving the use of enhanced interrogation. With every new fact, story and secret document that emerges, the whole episode smacks more and more of the workings of an organized criminal enterprise.

While we can fairly easily sort out the actions of Cheney, Rumsfeld and Alberto Gonzales as the work of unbridled madmen, it is more complex – and in some ways more disturbing –  to confront the utterly immoral involvement of mid-level functionaries like Douglas J. Feith, John Yoo and David Addington. These were not stupid or under-informed men, but what were they thinking? Did they not have any idea it would come to this? Are these the Eichmanns of the twenty-first century, the banal line-towers who understand enterprise and duty and orders but have no sense of right and wrong and no particular affection for morality?

I suppose these questions will be borne out in the months to come.

Going Over to the Aaargh Side

Earlier today pirates took control of a U.S.-flagged container ship called the “Maersk Alabama”  off the Somali coast. The situation is ongoing and the Pentagon has issued conflicting reports throughout the day as to whether the American crew has regained control. Multiple warships have been dispatched to the area to provide support and further intelligence. Writes the Times,

Several American warships were headed for the area. The vessels reportedly included a destroyer, the U.S.S. Bainbridge, which can steam at more than 30 knots and can launch helicopters. Based on early reports that the closest ships were some 345 miles from the scene at the time of the hijacking, they could be expected to arrive in the area by late Wednesday night, Eastern time, or daylight Thursday off Somali.

At about noon Eastern time, some 12 hours after the hijacking, a Pentagon official speaking on condition of anonymity said that “it is our understanding that the crew has taken back control of the vessel.” But as the hours went by, it became clear that the situation was far from resolved, as a senior American military official said the skipper had been taken off his ship while the captors tried to negotiate a ransom.

Piracy in the Indian Ocean, especially close to the Horn of Africa, has become a pressing issue as of late. One of the main problems is that those waters are essentially ungoverned. Moreover, their uncertain jurisdictional status has so far hampered attempts by western countries, whose boats have most often come under attack, from policing and protecting in an aggressive manner.

The situation thus poses an unheralded challenge for international law. Countries whose shipping and military vessels are at risk must determine how to impose order on that region of the Indian Ocean without breaching existing standards and protocol. Given the nature of the problem, it seems as though these countries will have to work together to protect their mutual interests.

I think this is a test to see whether the west has learned anything from the war on terror, during which much of international (and U.S.) law was thrown out in order to stymie the threat. Clearly, there are multiple important differences between pirates and terrorists, but the comparison between them can be rather instructive (I may take up this comparison in further detail if the situation deteriorates).

Nevertheless, on the subject of lessons from the past, I am reminded of Cheney’s now-infamous claim that the only way to fight the threat (he was referring to terrorists) was to “go over to the dark side.” Let us not be so haughty or reckless again.

Hi, I’m Wayne, I’m a Gun Person…Bang Bang!

George Carlin’s roast of NRA spokesman Wayne LaPierre several years back has never been so dearly missed. Today, at a joint rally for the NRA and the American Conservative Union, LaPierre put on a characteristically flamboyant display of bigotry, fundamentalism and backwardness. He was responding, in part, to AG Eric Holder’s tip-off that the Administration may seek to place partial bans on the sale of automatic weapons. Here’s the clip:

We can hoot and holler about small gems like “owning guns is a god-given right” and “there are no rights without the 2nd Amendment,” but we ought not let the startling humor distract us from how terrifying this is. Not to mention, the NRA has once again elected to hold a rally in the days following a tragic shooting (this time in Binghamton, NY).

We must hope that Obama and Holder will take steps toward a ban on machine guns, if not all guns. As a country, it is time for us to rethink the 2nd Amendment. I am reminded of this whenever I watch clips from these NRA rallies and see how the 2nd’s most fervent supporters invest such hateful, small-minded and anti-American meaning into it.