US Diary: the big issue dividing the Republicans in Congress - TORTURE (yes, some of them actually don't like it, unlike Bush and Cheney)

1. Torture weakens our country's moral strength – by James Klurfeld (from Newsday)

I won't take a backseat to anybody in my feelings of rage and desire for revenge on the bin-Laden terrorists who were responsible for the attacks of Sept. 11, 2001, or who undoubtedly continue to plot against us. But the torture of suspects that the Bush administration defends not only violates international norms of behavior, which work to protect all of us, but is an ineffective way to nail the bad guys.

The administration is being disgustingly disingenuous when it claims it will abide by the Geneva Conventions - but sends to Congress a bill that would authorize the CIA to engage in interrogation tactics the world understands as torture. The bill would also rewrite America's obligations under the Geneva Conventions.

That is, the administration is telling a bald-faced lie when it says it's opposed to torture.

President George W. Bush spent part of his day yesterday personally lobbying members of Congress to support his bill. But he is facing serious opposition from three members of his own party: Sen. John McCain (R-Ariz.), who, of course, was a prisoner of war in North Vietnam; Sen. Lindsay Graham (R-S.C.), an expert on military justice, and Sen. John Warner (R-Va.), chairman of the Senate Armed Services Committee.

And just to highlight how outrageous Bush's position is, his former secretary of state, Colin Powell, a retired four-star general, sent a letter yesterday to members of Congress opposing Bush's proposal. That is extraordinary when you consider that no one has been more loyal to the president than Powell, who, despite his own reservations, gave public testimony at the United Nations in favor of the invasion of Iraq.

"The world is beginning to doubt the moral basis of our fight against terrorism," Powell said in a letter to McCain.

There is a moral and a practical argument against what Bush wants to do. The moral argument should be clear and needs no explanation. But there are many in the country who believe the threat of terrorism is so great that we are justified in compromising our principles to get critical information from captured suspects.

There are at least two problems with this simplistic argument. One is that almost all experts will tell you torture doesn't work. It's more likely to force captives to tell lies to stop the torture than it is to get at the truth.

But the other reason that Powell highlights is equally important. The use of torture undercuts one of this nation's most powerful weapons: its moral authority. While individual U.S. policies are often criticized around the world, U.S. values are genuinely admired. The United States won the Cold War - without a shot being fired - in large part because it became obvious that our system was better than our adversaries'. This is what Harvard professor Joseph Nye refers to as "soft power," as opposed to military power. It's only a concept, but that concept - that we stand for something better - brought down the Iron Curtain.

In addition, it should be painfully obvious that if the United States trashes the Geneva treaty, then every other nation in the world will, too. And that will directly affect how captured U.S. soldiers will be treated.

It's also well worth noting that the two main officials who are in favor of redefining torture, Bush and Vice President Dick Cheney, never served in combat, while McCain and Powell most certainly did. Cheney, in fact, had a student deferment during the Vietnam War.

Torture doesn't work, it undercuts our moral authority and it endangers our men and women in the armed forces. So why are Bush and Cheney pushing this so hard now?

I won't go so far as to suggest they aren't sincere in their belief that torture will help in the fight against Islamic fundamentalists. But I will point out that the administration has made this a major issue just weeks before the congressional elections. How cynical of me.


2. Why Bill O'Reilly Ought To Be Sodomized With a Microphone in a Frigid Room -- by The Rude Pundit (from http://rudepundit.blogspot.com)

The Rude Pundit thought we were done with the whole "what you pussy liberals call torture is actually just a night at the DKE house" discussion. But last night, on his Fox "News" show, Bill O'Reilly re-propagandized for the myth that any "interrogation method" that doesn't involve a nut vice and a blowtorch is not actually torture. Discussing a New York Times article about the FBI and CIA getting into a pissing match about humane versus "tough" interrogation techniques on Abu Zubaydah, a "henchman" for Osama Bin Laden, O'Reilly glibly, if accurately, described what the CIA did to Zubaydah: "the CIA allegedly stripped Zubaydah who had been wounded by the Pakistani authorities, put him in a freezing room and used Red Hot Chili Peppers on him."

In other words, to quote the Times , "At times, Mr. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets. He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue. At other times, the interrogators piped in deafening blasts of music by groups like the Red Hot Chili Peppers." Whether or not you think Zubaydah "deserved" his treatment (and if you do, you're a vicious pig fucker), at a bare minimum we could agree on the label of "torture." Could we please stop all being such pansies about calling torture "torture"? Or do you just feel better about yourself if you keep a wounded man nude locked in a bare freezing room with loud music blaring if you don't use the word?

But it's not that O'Reilly gleefully dismisses Zubaydah's treatment, with "Now you may think I'm joking here, but I'm not," that renders him in need of a forced ass fucking. No, no. It's that he lies about what's the article actually says is the result of the torture of Zubaydah. Here's O'Reilly: "Blasting the Peppers in a cold room apparently broke Zubaydah according to an unnamed government official quoted in the article. At first Zubaydah was defiant and evasive until the approved procedures were used. He soon began to provide information on key Al Qaeda operators to help us find and capture those responsible for the 9/11 attacks. And one of those men was Khalid Sheikh Muhammad, the mastermind of 9/11."

Now, that'd be awesome and demonstrate some good to be had from torturing suspects. Except, you know, it ain't what the article or the unnamed government official actually said. According to the Times , "In his early interviews, Mr. Zubaydah had revealed what turned out to be important information, identifying Khalid Shaikh Mohammed — from a photo on a hand-held computer — as the chief planner of the Sept. 11 attacks." Those "early interviews" would have been the ones conducted by the FBI where they "bathed Mr. Zubaydah, changed his bandages, gave him water, urged improved medical care, and spoke with him in Arabic and English, languages in which he is fluent." The CIA took over and tortured him because "Zubaydah might have possessed critical information about a coming terrorist operation figured significantly in the decision to employ tougher tactics, even though it later became apparent he had no such knowledge." In other words, Zubaydah was tortured for no reason at all.

Like so many on the right, Bill O'Reilly is a tough guy wannabe, a semi-evolved ape man who so admires the redness of his own hard-on that he's gotta smack that fucker until it explodes, yelping in self-love 'cause he wants everyone to see him come. O'Reilly thinks that as long as we can say we're not as bad as they are, the field's wide open: "The truth is that America has been restrained in its response to the savagery of Al Qaeda and others." So, like, as long as we're not using power drills and videotaped beheadings by knife, it's all good.

Damn, Bill O'Reilly must think it's ridiculous that that bitch ex-producer of his sued him for his graphic harassment by phone. After all, at least he didn't rape her, cut her body into pieces, and feed it to his pet sharks. He exercised such restraint.


3. Stream of Conscience
Why it matters what definition of torture we use.
By Dahlia Lithwick (from Slate.com)

Senate Republicans continue to push back against the White House's new legislation authorizing trials for enemy detainees held at Guantanamo Bay. According to today's New York Times , the sticky wicket is no longer the provision in the Bush version of the bill that bars detainees from seeing the evidence against them. While it looks like a compromise has been reached on that front, senior GOP senators are apparently unwilling to budge on another: the White House version's effort to suck the blood out of the Geneva Conventions when it comes to making rules for interrogating foreign detainees.

The proposed Bush standard—detainees cannot be subjected to treatment that "shocks the conscience"—certainly sounds like it precludes torture. One would imagine that it would also extend to what professor Marty Lederman calls "torture light" : exposure to extreme temperatures, stress positions, threats to kill the prisoner's family, the stacking up of naked bodies, threats with dogs, and water-boarding.

If we can agree on anything, can't we agree that what we saw at Abu Ghraib shocked the conscience?

But "shocks the conscience" is a significant departure from the language of the Geneva Conventions, which (in now-famous Common Article 3 ) bars ''outrages upon personal dignity, in particular, humiliating and degrading treatment." And that's why Sens. John McCain, R-Ariz., John Warner, R-Va., and Lindsey Graham, R-S.C., are still blocking the White House's efforts to cut and paste their new definition of torture onto the law.

But the president remains adamant. In a speech last week accompanying his proposed legislation, Bush claimed that "humiliating and degrading" is just too vague a standard, whereas "shocks the conscience" would give interrogators the legal clarity they need.

No, it wouldn't. For one thing, there's no reason to believe that an interrogator faced with a ban on behavior that "shocks the conscience" will have any better sense of a legal line in the sand than one faced with a ban on "outrages upon personal dignity." One of the real attractions of the "shocks the conscience" language, as noted in this Washington Post piece , is that it allows for "some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information." In other words, it creates a flexible legal standard, whereas the Geneva language creates a clear legal rule, at least according to international law. Those of us who might oppose torturing Osama Bin Laden's chiropodist could thus still get behind torturing someone with information on a ticking time bomb. But with the shift from legal rules to standards comes increased ambiguity. And the definition of torture is not something that should turn on such subtlety.

Here's another attractive aspect of the president's "shocks the conscience" language: It can change over time. What former Department of Justice lawyer Jay Bybee deemed "torture" in his infamous August 2002 torture memo —conduct resulting in "organ failure, impairment of body function, or even death"—suggests that not all American consciences are created equal. And if we start to rely on a "shocks the conscience" test for brutalizing interrogation, our collective conscience may get tougher every day. Perhaps the reason the president can now so glibly gloss over "alternative" methods like those we saw in images from Abu Ghraib is because what so shocked our conscience then does not have the power to do so anymore.

The president himself raises the real reason for the change in the torture standard. He can't get his interrogators to interrogate people as long as they are afraid of being dragged into court to answer for it later. The administration has been worried about its interrogators' liability for their abuses since the debate about suspending Geneva began. And again yesterday, the president was emphatic in his contention that "as long as the War Crimes Act hangs over their heads, they [interrogators] will not take the steps necessary to protect" Americans. The War Crimes Act of 1996, passed by a Republican Congress, made it a felony to violate the Geneva Conventions. But while it sounds like Bush seeks to offer interrogators legal clarity, what he really strives to offer them is legal immunity.

If the president is merely worried about legal liability for his interrogators, there are other legal mechanisms, some already in place, to protect them. As Lederman points out at Balkinization today , section 6 of the Warner/McCain/Graham bill already effectively prevents overseas detainees from challenging in court "the fact or conditions of their detention or interrogation." And if there can be no judicial oversight of the laws pertaining to the detainees, it hardly matters what the law says. Moreover, as today's Los Angeles Times points out , Section 1004 of the Detainee Treatment Act already allows interrogators accused of abusive detention and interrogation practices to offer as a defense the claim that they "did not know that the practices were unlawful and [that] a person of ordinary sense and understanding would not know the practices were unlawful." And since not one person has yet been prosecuted under the War Crimes Act , despite hundreds of documented cases of detainee abuse, it's hard to believe that the president is really losing sleep over his Justice Department prosecuting CIA interrogators.

The best evidence we have that Bush has no real interest in clarifying the new legal standards for "torture" is this: He refuses to be specific about what sorts of conduct he has authorized. If Bush really wanted the CIA to have perfect clarity about which behaviors are tolerable and which are not, he would identify with great specificity the various "alternative" techniques he has approved for them. But last week, the president declined to do so, claiming that he "cannot describe the specific methods used—I think you understand why—if I did, it would help the terrorists learn how to resist questioning." Bush cannot be specific about what he's allowed because it might reveal to terrorists exactly how much water-boarding they must to learn to endure. Perhaps. But then he cannot claim that what he seeks to do is clarify the law for interrogators.

The new legal standard is indeterminate for both the prospective torturers and their victims. And that's precisely how the president wants it.

In a superb article last fall in the Columbia Law Review , professor Jeremy Waldron argued that there is "something wrong with trying to pin down the prohibition on torture with a precise legal definition." That it seems to "work in the service of a mentality that says, 'Give us a definition so we have something to work around, something to game, a determinate envelope to push.' " And indeed it would be worrisome if the president were trying to create a sharp, bright line-rule for when interrogation crosses into torture, so that his agents could dance right up to it and stop, or find tricky ways to tunnel under it. But I suspect that the Bush administration doesn't seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don't work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.

I once suggested in the context of presidential signing statements that legal obfuscation is enormously attractive to President Bush. It means all but the most highly credentialed law professors and government lawyers are constantly confused; it means subsequent legal claims that interrogators "did not know that the practices were unlawful" have real credibility. And perhaps, most importantly to this White House, it obscures where things have gone awry up and down the chain of command. One possibility, then, is that all these eleventh-hour redefinitions of torture are presidential attempts to "afford brutality the cloak of law," in the words of Supreme Court Justice Felix Frankfurter. But increasingly, it seems clear that its real purpose is simply to brutalize the law.


4. An Unexpected Collision Over Detainees – by CARL HULSE (from NY Times)

President Bush and Congressional Republicans spent the last 10 days laying the foundation for a titanic pre-election struggle over national security, and now they have one. But the fight playing out this week on Capitol Hill is not what they had in mind.

Instead of drawing contrasts with Democrats, the president’s call for creating military tribunals to try terror suspects — a key substantive and political component of his fall agenda — has erupted into a remarkably intense clash pitting some of the best-known warriors in the Republican Party against Mr. Bush and the Congressional leadership.

At issue are definitions of what is permissible in trials and interrogations that both sides view as central to the character of the nation, the way the United States is perceived abroad and the rules of the game for what Mr. Bush has said will be a multigenerational battle against Islamic terrorists.

Democrats have so far remained on the sidelines, sidestepping Republican efforts to draw them into a fight over Mr. Bush’s leadership on national security heading toward the midterm election. Democrats are rapt spectators, however, shielded by the stern opposition to the president being expressed by three Republicans with impeccable credentials on military matters: Senators John McCain of Arizona, John W. Warner of Virginia and Lindsey Graham of South Carolina. The three were joined on Thursday by Colin L. Powell , formerly the secretary of state and the chairman of the Joint Chiefs of Staff , in challenging the administration’s approach.

It is one of those rare Congressional moments when the policy is as monumental as the politics.

On one side are the Republican veterans of the uniformed services, arguing that the president’s proposal would effectively gut the nearly 60-year-old Geneva Conventions, sending a dark signal to the rest of the world and leaving United States military without adequate protection against torture and mistreatment.

On the other are the Bush administration and Republican leaders of both the House and Senate who say new tools are urgently needed to pursue and interrogate terror suspects and to protect the covert operatives who play an increasingly important role in chasing them.

Republicans concede that the fight among themselves is a major political distraction, particularly given the credentials of the Republican opposition, led by Mr. McCain, the former prisoner of war in Vietnam who was tortured in captivity.

“It is a big problem,” said Representative Ray LaHood of Illinois, a senior House Republican. “These guys have a lot of weight and a lot of standing. McCain is a tough guy to beat on this.”

But Mr. Bush, who visited the Capitol on Thursday to rally House Republicans behind his approach, is also tough. He will no doubt do everything possible to get a deal, if not on the floor of the Senate then in conference between the House and the Senate. But the immediate result in political terms has been to create a battle among Republicans about core principles less than eight weeks before Election Day.

“This whole issue is going to send a signal about who America is in 2006,” Mr. Graham said.

Brushing aside the objections of Mr. Bush and most of his Republican colleagues in Congress, Mr. Warner led the Senate Armed Services Committee to produce legislation on Thursday that would provide detainees with protections beyond those sought by Mr. Bush, setting up a collision with the House, where a measure approved by the administration is advancing.

House Republicans say the Senate plan is misguided and will hobble the American military. Representative Duncan Hunter, Republican of California and chairman of the House Armed Services Committee, said it would lead to “the lawyer brigade” being attached to combat troops to counsel detainees.

Representative Peter T. King, Republican of New York and chairman of the Homeland Security Committee, said: “I just think John McCain is wrong on this. If we capture bin Laden tomorrow and we have to hold his head under water to find out when the next attack is going to happen, we ought to be able to do it.”

Mr. McCain’s opponents acknowledge that, given his experiences, he is a powerful advocate on this subject, but that the shadow war against terrorists has new legal complexities.

“I have never led in combat, but I do have some experience with the law,” said Senator John Cornyn, Republican of Texas and a former State Supreme Court justice who has jousted with Mr. McCain over the legislation.

There is no doubt that Mr. Cornyn and his fellow Republicans would much rather be dueling with the Democrats over this issue, which they see as their chief election-year advantage.

After their meeting with the president, House Republicans sought to play up their differences with House Democrats on the detainee legislation although the bill passed the Armed Services Committee on an overwhelmingly bipartisan vote.

Republicans will also try to continue to pound Democrats on other security measures, like legislation to authorize the administration’s eavesdropping program. But the political power of that issue gets muddied as well because some House and Senate Republicans want to impose more restrictions on the program than the administration finds acceptable.

Recent polls continue to show Republicans with an advantage on security issues, but they are mixed as to whether the president’s most recent push is raising his popularity. In addition, widespread public dissatisfaction with the war in Iraq is clouding election prospects for Republicans.

But with the focus on the treatment of detainees there is a potential benefit for Republicans since it does at least temporarily change the subject from Iraq.

Democrats say that no matter how bipartisan the opposition to the administration’s tribunal plan, they expect that Republicans will try to blame Democrats for any delay. They note that House Republicans have taken to referring to bipartisan Senate legislation on immigration , a measure most House Republicans abhor, as the Reid-Kennedy bill, named for the Democrats Harry Reid of Nevada and Edward M. Kennedy of Massachusetts, despite the substantial participation of Mr. McCain.

“At the end of the day, they will forget John McCain, Lindsey Graham and John Warner and say it is all about the Democrats holding up President Bush’s plan to make American safer,” said Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate.

But Mr. Durbin said, “We are not going to take it sitting down.”