I was out of pocket for a few days visiting the folks in Alabama and missed commenting on a few stories.  Most notable among these was Friday’s announcement that five Guantanamo Bay detainees, including 9/11 mastermind Khalid Sheikh Mohammed, would be tried in New York.

This one’s a real head scratcher, in that I see no upside and lots of downside.

First, these men are not citizens of the United States.  Second, they’re accused war criminals.  They simply should not be tried in U.S. civilian courts.  Rather, they should either be held accountable in a Nuremberg-style international forum or treated as war criminals by a U.S. military tribunal under the mechanisms provided by Congress and approved by the Supreme Court.

Aside from the virtual certainty that the trial will devolve into a media circus, there’s an incredibly good chance that Mohammed and his comrades will go free.  The fact that KSM was repeatedly waterboarded would seem to taint any subsequent evidence, including his own confession.* [See update in footer]

As regular readers know, I oppose torture as a means of intelligence gathering on moral, legal, and practical grounds.  Further, I think the Bush administration went too far in refusing to grant even minimal due process rights to the Guantanimo detainees, who at very least were entitled to present evidence that they were falsely imprisoned because of mistaken identity.

We took the mantra that counterterrorism was a matter of war rather than law enforcement too far, overcorrecting for the previous policy which went too far in the other direction.  But the fact remains that KSM and the others  were held under rules based on their status as terrorists rather than ordinary criminals.    To pretend now that they are they equivalent of members of an inner city street gang borders on farce.

See also my follow-up, “Terrorism vs. Crime.”

_______________

* UPDATE:  I’ve clarified this point in subsequent posts but feel I should note here as well that this declaration is wildly incorrect.  It was not fear-mongering but rather a mistaken belief that the fact that KSM has been horribly mistreated and had his rights to due process, speedy trial, and counsel violated for years would lead to a judge throwing the charges out.   Alex Knapp, my colleague and an attorney, and others have assured me that the law does not work this way in practice.  Alex cites the case of Jose Padilla, the American citizen who was illegally held as an enemy combatant for years and nonetheless convicted.

Wired reports that studies show that “enhanced interrogation”, far from being a reliable source of information, can actually make someone less of an intelligence asset because the stress involved changes the biochemistry of the brain:

“There is a vast literature on the effects of extreme stress on motivation, mood and memory, using both animals and humans,” writes Shane O’Mara, a stress researcher at Ireland’s Trinity College Institute of Neuroscience. “These techniques cause severe, repeated and prolonged stress, which compromises brain tissue supporting memory and executive function.”

[...]

A report published by the Intelligence Science Board in 2007 found that no research existed to support the use of enhanced interrogation. And O’Mara’s review, published Monday in Trends in Cognitive Science, describes a wealth of science that supports ending the practice.

O’Mara derides the belief that extreme stress produces reliable memory as “folk neurobiology” that “is utterly unsupported by scientific evidence.” The hippocampus and prefrontal cortex — the brain’s centers of memory processing, storage and retrieval — are profoundly altered by stress hormones. Keep the stress up long enough, and it will “result in compromised cognitive function and even tissue loss,” warping the minds that interrogators want to read.

What’s more, tortured suspects might not even realize when they’re lying. Frontal lobe damage can produce false memories: As torture is maintained for weeks or months or years, suspects may incorporate their captors’ allegations into their own version of reality.

What’s frustrating about the torture debate to me is that all of the professionals who are experts in the field are routinely ignored by the pro-”enhanced interrogation” side of the debate. Just so we’re clear, in addition to the biochemical evidence above, here’s a few posts and articles that we’ve seen over the past few months:

• We’ve seen that an Air Force officer with counterterrorism experience and experience interrogating al-Qaeda members opposes enhanced interrogation on the grounds that it doesn’t gather effective intelligence.

• We’ve had military psychologists who work on the SERE program, which trains soldiers to resist “enhanced interrogation,” claim that the use of same on detainees to be counterproductive.

• We’ve seen an FBI counterintelligence agent who specialize in counterterrorism and also had experience interrogating al-Qaeda members find no evidence of the effectiveness of “enhanced interrogation.”

• We’ve seen another FBI counterintelligence agent explain that the use of “enhanced interrogation” makes it much harder to recruit reliable intelligence assets.

• We’ve seen a Marine Corps interrogator point out the uselessness of such techniques even if there’s a “ticking time bomb” scenario.

Against this, we mostly have the claims of Dick Cheney who says that the 2004 CIA Inspector General’s report demonstrates that the use of “enhanced interrogation techniques” enabled the United States to gain significant amounts of intelligence, particularly from the interrogation of Khalid Sheikh Muhammed. The problem is, of course, is that this claim doesn’t survive scrutiny. Most of Cheney’s claims involve intelligence that was already known prior to KSMs capture, or organizational information that was obtained from KSM’s computer and paper files–not his actual interrogation. Indeed, most of what KSM said under “enhanced interrogation” was useless. It wasn’t until it stopped and the traditional American methods of interrogation employed instead that he actually provided anything of value.

The pro-”enhanced interrogation” side of the house loves to throw out hypotheticals and vague claims that these techniques are valuable, but the evidence doesn’t bear this claim out. These techniques do not provide any signficant or usable intelligence; they make useless people who might be turned into valuable intelligence assets, as noted above; they provide a powerful rallying cry for the recruitment of people into our enemies’ cause; they make it less likely that our enemies will surrender to our troops, which exposes them to unnecessary risk of harm; they make it more likely that our soldiers, when captured, will be tortured; they make it harder to recruit counterintelligence assets; they force us to waste time and resources in following false leads and finally, they undermine the moral authority of the United States.

What’s the upside?

(cross-posted to Heretical Ideas)

Via Patrick Appel, former FBI counterintelligence agent Asha Rangappa explains how the use of torture can undermine the United States’ ability to both obtain information and recruit double agents.

A second and arguably more important goal of the FBI is to persuade some of these people, or “targets,” to change sides and share the information they have about their own governments and countries with us. It’s the real-life James Bond scenario: developing “double agents” and obtaining critical foreign intelligence in the interest of national security. The FBI uses the fact that it operates on American soil to its advantage. FBI agents, unlike their CIA counterparts, can operate openly, rather than covertly. FBI agents also do not have to worry about hostile host governments discovering their activities and disrupting their intelligence networks. This means that the FBI is in a relatively strong position to produce a steady stream of valuable intelligence that is difficult to obtain abroad.

[...]

But getting people to flip is primarily a psychological game rather than a material one. After all, the FBI is asking its targets to commit the ultimate act of disloyalty to their country—treason. Few people are willing to make this leap quickly, even in exchange for the most lucrative or attractive offer. It’s an FBI agent’s job to slowly win the target’s trust and help him rationalize his decision to switch his allegiance. In my experience as a former FBI agent who both participated in and observed successful recruitments, it’s much easier to do this when a target has, at some level, a sense of admiration and respect for the United States. A nugget of goodwill toward America offers an agent the chance to step in, gain the target’s confidence, and convince him that playing for Team USA is worth the risk.

Policies like the use of torture make it more difficult for the FBI to develop relationships based on trust. Even when torture is used on a few people and in another country, and by a different agency, it casts doubts on the U.S. government’s overall willingness to act in good faith. Targets often project the skepticism about the United States that torture fosters onto individual FBI agents, who are often the only face of the government they see. In short, torture is fundamentally at odds with the image of the United States as a country that will play by the rules, and that is how the FBI must be perceived in order to do its job.

Considering that we’ve obtained virtually no useful evidence from the use of torture, even against high value targets like Khalid Sheikh Mohammed, the security/morality tradeoff here doesn’t even exist: On both moral and utilitarian calculations, there’s simply no justification for the use of torture.

Hillary Clinton chewed out a Congolese student for asking what “Mr. Clinton” thought about a public policy issue:

ABC’s Kirit Radia:

Secretary of State Hillary Clinton lost her cool Monday after a Congolese student, speaking through a translator, asked her what “Mr. Clinton” thought about a Chinese trade deal with the Democratic Republic of the Congo.

“You want me to tell you what my husband thinks?” Clinton replied, clearly irked by the thought of being her husband Bill’s spokeswoman. “My husband is not secretary of state, I am,” she replied. “If you want my opinion I will tell you my opinion. I am not going to be channeling my husband.”

The only problem? Apparently the translator made a mistake and the student had wanted to know what President Obama thought of the deal. A State Department official tells ABC News the student went up to Clinton after the event and told her he was misquoted. No immediate word yet how Clinton responded.

Regardless of the error, the notion of Secretary Clinton’s deference to her husband clearly touched a nerve with America’s top diplomat. Just a week ago the former President stole his wife’s thunder when he appeared in North Korea to rescue two American journalists detained there. His trip came just as Secretary Clinton embarked on a swing through Africa she hoped would shine light on the plight of the continent.

What’s odd, unless there are two translators involved somehow, the video clearly shows the questioner speaking in English and saying “Mr. Clinton” and then the lady at the podium repeating the question — again in English — to Mrs. Clinton.

Regardless, her indignant response seems rather over-the-top for America’s chief diplomat. She could have asked for clarification before going off. (My guess would have been that the student meant “Mrs. Clinton” and it got garbled in translation to English.) Or she could have joked, “Well, you’ll have to ask him next time he’s in Kinshasha” and added “but here’s what I think.”

“Diplomacy in action,” indeed.

Jules Crittenden, Doug Mataconis and John Hinderaker all share my take, more or less, of the reaction.

All of the women commenting on this one thus far, however, stick up for Hil.

Pamela Leavey:  “As a woman who blazes her own path, I think Hillary’s response was natural.”

myiq2xu (Not a common name, so hard to guess gender other than that it’s on a blog with riverdaughter as the username A man, but one writing on a group blog with “riverdaughter” as its domain name):

This appears to be the new CDS meme – “Hillary is a mad b**ch.” They used to say she was “cold and calculating” but now she’s out of control. Exactly how do they think she should have responded to the “What does your husband thnk?” question coming from the translator?

Taylor Marsh:

As you can see in the video, Clinton was ticked off at being asked what a male leader thought, especially when her purpose in this region is to draw a bull’s eye on the rape and torture of women in the Congo.

The United States Secretary of State obviously didn’t appreciate the misogyny, which is rampant in the Congo and other African nations, born out by the questioner expecting her to “channel” a male. Assistant Secretary P.J. Crowley responded.

“The Secretary of State is going to Goma Tuesday, to draw attention to the plight of women who are victims of rape as a weapon of war” in Congo, he said. “She did react to what she heard,” Crowley explained. Even if the interpreter mixed up the translation, he said, “you can’t separate the question from the setting.”

As the Washington Post story quoted at the top reports, Congolese President Joseph Kabila has declared “zero tolerance” regarding sexual assaults and violence against women, but so far it’s just words.

There can be no doubt that Clinton came off harsh in this setting. A little righteous indignation from the most powerful female persona on the planet was in order, especially considering women in the Congo are in danger most of the hours of their waking and sleeping lives.

CNN reports that after the event Clinton and the questioner “seemed to have reached an understanding,” according to Crowley.

But seriously, you cannot bring basic human rights to women in places like the Congo if the men there don’t wake up to the respect women deserve, highlighting how far we have to go if not even the U.S. secretary of state is treated with respect.

But she was treated respectfully. A packed house had come to hear her and some nervous student whose native language isn’t English said “Clinton” when he meant “Obama.”

That said, Crowley’s point is a fair one:  “you can’t separate the question from the setting.”  It’s hardly inconceivable that she had gotten the impression during her visit thus far that she was not being treated seriously because of her sex and reacted to the question with that in mind.

James Gordon Meek has a very interesting two-part story on how FBI Special Agent George Piro successfully interrogated Saddam Hussein.  Shockingly, it does not involve waterboarding, stress positions, sleep deprivation, nudity, or German shephards.

The FBI prides itself on “rapport-based” interrogations that have a high success rate for yielding confessions from the likes of 1993 World trade Center bomber Ramzi Yousef and CIA headquarters killer Mir Aimal Kasi. There was no “ticking bomb” scenario with Saddam – just inherent political pressure – so the interrogation proceeded carefully and cautiously over months.

The strategy involved executing a subtle emotional attack, digging out Saddam’s soft spots and exploiting them. Prick his ego.

Saddam had revealed little, so far – and neither had Piro – other than stating he remained in Baghdad until the day before his capital fell to American-led forces in April 2003. He said he instructed his henchmen in a final meeting, “We will struggle in secret.” After fleeing Baghdad, he gradually dispersed his bodyguards one by one to avoid drawing Coalition forces’ attention. Saddam had evaded capture for nine months, until U.S. viceroy Paul Bremer made his famous exultation in December 2003: “Ladies and gentleman, we got him!”

Piro asked if Saddam ever used body doubles, as was widely believed. “No, of course not,” he scoffed. “This is movie magic, not reality.”

But as the fourth interrogation began on Feb. 13, Saddam wanted answers from Piro.

“Let me ask a direct question. I want to ask where … has the information been going? For our relationship to remain clear, I want to know,” he demanded. Piro replied that he was a “representative of the U.S. Government” and told Saddam many U.S. officials saw his reports, and that readership “may include the President of the United States.” Saddam seemed pleased, commenting that he did “not mind” if the interviews were published.

Much more of Part 2 at the link. See Part 1 here.

Via Meek’s Counterterrorism Blog post.

“It appears that waterboarding – a torture technique popularized by George W. Bush and Dick Cheney – has been picked up overseas.” -  Andrew Sullivan

Now, look, I’m opposed to torturing suspected terrorists.  But the United States Government waterboarded a grand total of three of them during the Bush-Cheney tenure.  So let’s not pretend it was somehow a favorite pastime of the administration.

Moreover, as Andrew himself has reminded us on numerous occasions, waterboarding has a long, long history.  Not only were much more severe forms used during the Spanish Inquisition and  by the Khmer Rouge and the Gestapo, but there’s been a long use by police, military, and intelligence agencies.  Including by the United States.

Further, it’s not as if Bush and Cheney hatched up a plan on how to best interrogate prisoners and Cheney turned to his boss and said, “Let me tell you about this thing called waterboarding. . . .”  Rather, professional interrogators decided what techniques would work best and were on this side of 18 U.S.C. §§ 2340-2340A as described to them in the so-called Bybee Memo, written by then-Assistant Attorney General Jay Bybee to his boss, then-AG Alberto Gonzales in response to a request from the CIA for guidance as to where the lines were.

Beyond that, do we really think Scotland Yard never engaged in dubious interogation techniques before now?  Or that they relied on the Bush administration for clues?

It’s been years since I’ve quoted Ted Rall here. He hasn’t appeared in a post title since September 2005’s “Rall: Charities are for Suckers.”  The man’s eminently quotable, if in a train wreck sort of way, but constantly pointing out that some commentators are crazy attention whores really doesn’t advance the debate much.

But you’ve got to hand it to Rall:  He’s a consistent loon.

We expected broken promises. But the gap between the soaring expectations that accompanied Barack Obama’s inauguration and his wretched performance is the broadest such chasm in recent historical memory. This guy makes Bill Clinton look like a paragon of integrity and follow-through.

From health care to torture to the economy to war, Obama has reneged on pledges real and implied. So timid and so owned is he that he trembles in fear of offending, of all things, the government of Turkey. Obama has officially reneged on his campaign promise to acknowledge the Armenian genocide. When a president doesn’t have the nerve to annoy the Turks, why does he bother to show up for work in the morning?

Obama is useless. Worse than that, he’s dangerous. Which is why, if he has any patriotism left after the thousands of meetings he has sat through with corporate contributors, blood-sucking lobbyists and corrupt politicians, he ought to step down now — before he drags us further into the abyss.

Take that, Rush Limbaugh!  In your face, G. Gordon Liddy!

For what it’s worth, while I didn’t vote for Obama and will quite probably* vote for his Republican opponent in 2012, I neither think Obama has done anything to merit resignation nor think he’s sold out to lobbyists any more than the next guy.  Being president is much harder than being a pundit, in that actions have consequences.

For example, I simultaneously believe the Turks committed genocide nearly a century ago and that the United States Government should refrain from rubbing their noses in it.  Whatever satisfaction an individual might get from Speaking Truth to (Middling) Power, Turkey is an important ally at the nexus of several of our most pressing foreign policy hotspots.  Alienating them over something that happened generations ago is foolish.  The President Obama, faced with that reality, is more cautious than was Candidate Obama, is a feature, not a bug.

___________

*There are a handful of plausible nominees that could put me off the reservation.

Chairman of the Senate Armed Services Committee Carl Levin claims that former Vice-President Dick Cheney is lying when he claims that classified CIA memos show that Bush Administration ordered torture/enhanced interrogation techniques produced actionable intelligence that saved American lives.

Levin, speaking at the Foreign Policy Association’s annual dinner in Washington on Wednesday, said an investigation by his committee into detainee abuse charges over the use of the techniques — now deemed torture by the Obama administration — “gives the lie to Mr. Cheney’s claims.”

The Michigan Democrat told the crowd that the two CIA documents that Cheney wants released “say nothing about numbers of lives saved, nor do the documents connect acquisition of valuable intelligence to the use of abusive techniques.”

“I hope that the documents are declassified, so that people can judge for themselves what is fact, and what is fiction,” he added.

According to the article, the CIA is refusing to declassify the documents because they are subject to two pending lawsuits.

On May 14, the CIA rejected the former vice president’s request.

CIA spokesman Paul Gimigliano, in a written statement, said the two documents Cheney requested are the subject of two pending lawsuits seeking the release of documents related to the interrogation program, and cannot be declassified.

I’m not familiar with this area of law, so I don’t know whether President Obama can legally declassify the memos in question or not. Anybody have a firmer idea? As it stands, if he can declassify them, I would hope that he would.

One thing I am curious about is whether Cheney’s request includes the 2004 CIA Inspector General report. A quick Google search didn’t reveal one way or another. The 2004 report was released at one point, but it was heavily redacted. However, Justice Department summaries have been released which seem to indicate that the report concluded

that there was no conclusive proof that waterboarding or other harsh interrogation techniques helped the Bush administration thwart any “specific imminent attacks,” according to recently declassified Justice Department memos.

Frankly, I say bring on the declassified memos and let’s judge the facts ourselves. Personally, I would state that whether or not any valuable intelligence was obtained doesn’t change the fact that such actions are both illegal and immoral (as I am not a utilitarian or a moral relativist), but that doesn’t mean that these facts aren’t relevant to the debate.

Modified NYT Photo by Stephen Crowley.

The video embedded below features arguments presented by Dick Cheney in favor of torture (or, if you prefer, “enhanced interrogation techniques”), which are ably demolished by Matthew Alexander, a former member of the United States Air Force who served as an Interrogator in Iraq. He was part of a task force charged with determining the location of Abu Zarqawi.

There’s much more from Alexander here.

The former vice president is confusing harshness with effectiveness. An effective interrogation is one that yields useful, accurate intelligence, not one that is harsh. It speaks to a fundamental misunderstanding of interrogations, the goal of which is not to coerce information from a prisoner, but to convince a prisoner to cooperate.

Finally, the point that is most absent is that our greatest success in this conflict was achieved without torture or abuse. My interrogation team found Abu Musab Al Zarqawi, the former leader of Al Qaida in Iraq and murderer of tens of thousands. We did this using relationship-building approaches and non-coercive law enforcement techniques. These worked to great effect on the most hardened members of Al Qaida — spiritual leaders who had been behind the waves of suicide bombers and, hence, the sectarian violence that swept across Iraq. We convinced them to cooperate by applying our intellect. In essence, we worked smarter, not harsher.

Read the whole thing.

(video link via Andrew Sullivan)

One thing that’s also worth noting in the debate over the Bush Administration’s torture program is that while the Office of Legal Counsel did sign off on the techniques used (with memos so bad that the lawyers in question are soon to be under investigation for a breach of their professional duties), the fact remains that the Administration also sought the expertise of military lawyers. And then promptly ignored their findings. This is ably summarized in the Senate Armed Services Committee report released last year. Here are some important snippets:

[Department of Defense’s Criminal Investigative Task Force]’s Chief Legal Advisor wrote that certain techniques in GTMO’s October 11, 2002 request “may subject service members to punitive articles of the [Uniform Code of Military Justice],” called “the utility and legality of applying certain techniques” in the request “questionable,” and stated that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”

[...]

The Chief of the Army’s International and Operational Law Division wrote that techniques like stress positions, deprivation of light and auditory stimuli, and use of phobias to induce stress “crosses the line of ‘humane’ treatment,” would “likely be considered maltreatment” under the UCMJ, and “may violate the torture statute.” The Army labeled GTMO’s request “legally insufficient” and called for additional review.

[...]

The Navy recommended a “more detailed interagency legal and policy review” of the request. And the Marine Corps expressed strong reservations, stating that several techniques in the request “arguably violate federal law, and would expose our service members to possible prosecution.” The Marine Corps also said the request was not “legally sufficient,” and like the other services, called for “a more thorough legal and policy review.”

The bottom line? These legal opinions were rejected by Secretary of Defense Rumsfeld.

On January 15, 2003, the same day he rescinded authority for GTMO to use aggressive techniques, Secretary Rumsfeld directed the establishment of a “Working Group” to review interrogation techniques. For the next few months senior military and civilian lawyers tried, without success, to have their concerns about the legality of aggressive techniques reflected in the Working Group’s report. Their arguments were rejected in favor of a legal opinion from the Department of Justice’s Office of Legal Counsel’s (OLC) John Yoo.

Shortly after this, torture techniques were re-authorized by Rumsfeld. And they continued at both Gitmo and in Abu Ghraib.

It’s also worth noting in the Armed Services report that the OLC memos by Yoo, Bybee et al. were actually rejected by the Office of Legal Counsel in 2003. Additionally, the Department of Defense was notified at that time that it should not rely on those opinions.

As the events at Abu Ghraib were unfolding, Jack Goldsmith, the new Assistant Attorney General for the Office of Legal Counsel was presented with a “short stack” of OLC opinions that were described to him as problematic. Included in that short stack were the Bybee memos of August 1, 2002 and Mr. Yoo’s memo of March 2003. After reviewing the memos, Mr. Goldsmith decided to rescind both the so-called first Bybee memo and Mr. Yoo’s memo. In late December 2003, Mr. Goldsmith notified Mr. Haynes that DoD could no longer rely on Mr. Yoo’s memo in determining the lawfulness of interrogation techniques.

It is worth noting that despite the fact that the DoD was notified that Yoo, Bybee, and Bradbury’s memos were not to be relied upon anymore, torture continued under Rumsfeld’s watch.

Read the whole report. And my hat’s off to the many, many brave members of the United States Armed Forces who did not sit idly by while this was going on. They did their duty in notifying the chain of command that interrogators were being ordered to violate the law. Their notifications were clearly ignored.

Hilzoy pronounces herself “happy as a clam” with President Obama’s speech yesterday on national security issues, with one glaring exception:

But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.

This was followed by a long list of caveats about “fair procedures,” “the rule of law,” and “checks and balances.” While applauding the caveats, Hilzoy nonetheless retorts:

Preventive detention????????

No. Wrong answer

If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.

The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place. [all emphases original]

Were we talking about American citizens or even aliens captured on American soil, we’d be in agreement.  But we’re not.  These are people captured on the fields of battle of Afghanistan and Iraq.

Obama is quite right here:  “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.”  It has long been established in international law that enemies captured on the field of battle are subject to detention through cessation of hostilities.

To be sure, the present conflict introduces a new murkiness.  We are not at war with a nation-state, so there is no one with whom to negotiate a definitive surrender or peace treaty.  Further, most of the combatants in detention are not privileged belligerents under the Geneva Conventions and other laws of war in that they wore no distinguishing uniforms or insignia, fought for no state, and were not part of a traditional resistance movement.   Many if not most are war criminals who hid amongst noncombatant civilians and/or used the cover of mosques, hospitals, and other protected sanctuaries as shields.

The problem with Guantanimo is not that we’re holding enemy combatants indefinitely but rather that we’ve flouted some of the rules of the Geneva Conventions, most notably in not establishing some minimal due process to allow people to present evidence that they’re not who we claim they are.   Additionally, we used “enhanced interrogation techniques” on a handful of captives that were quite probably torture and quite certainly a violation of the laws of war.  Obama, to his credit, has renounced all of these practices.

UPDATE: It’s worth noting, as Blake Hounshel and Chris Brose do, that they’d long since been abandoned by the Bush Administration, too.  Brose:

I don’t fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney’s current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush’s stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney’s argument is with Bush as much as it is with Obama.

Quite right.   For all the talk of Cheney as the power behind the throne, he was increasingly an outlier in the administration whose counsel was taken but largely not followed.

Update (Alex Knapp): I am more inclined to agree with Kevin Drum than with Hilary Bok on this issue:

I appreciate the outrage, but this is a genuinely knotty problem. It was knotty under Bush and it remains knotty under Obama. For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.

At the same time, they aren’t American citizens. They were captured on a foreign battlefield, not U.S. soil. They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?

One thing that I think we should not do is let the government say “trust us” on this. If there is evidence against particular detainees, then provide it. Then we can debate the legal channels. If the law needs to be changed, Obama can go to Congress. If it’s possible to extradite some of them because they have outstanding warrants in other nations, let’s look into that. I agree that this is a hard problem, and I also agree that the simple release of some terrorists puts Americans in danger, and that risk needs to be appreciated.

That said, there needs to be some kind of open, transparent process through which claims against such detainees can be evaluated and pains can be made to ensure that detainees that their detention continued are actually dangerous. We shouldn’t just take the President’s word on it. Not any President.

Update (James Joyner): I was about to append an update linking to Kevin’s post on this but noticed Alex already had.  I agree entirely with both of them on this matter.

One distressing meme that has spread with respect to the idea that because some of the techniques employed against captives in American detention camps are the same as those used in SERE training, these techniques must somehow “not be torture.” This is not a well-founded assertion. For those making that claim, I would highly recommend that they review the testimony of Dr. Jerald Ogrisseg, who is the former head of Psychological Services for the Air Force SERE School. In this testimony, he outlines the fundamental differences between SERE training and what occurs in real world settings.

For one thing, he notes that he advised against waterboarding members of the SERE class, because it creates permanent psychological damage:

However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100 percent of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again.

It’s worth noting that not only is this type of psychological damage strictly forbidden by law, the 100 percent capitulation rate makes it useless as an interrogation technique. If someone would say anything to avoid being waterboarded, he’ll say what his captives want to hear. Which is precisely why the KGB used this technique to elicit false confessions. Indeed, Ogrisseg himself notes when questions that waterboarding would not be a means of obtaining reliable information.

For another, Dr. Ogrisseg notes that with SERE training, all of the trainees are screened multiple times for psychological conditions:

Military SERE training students are screened multiple times prior to participating in training to ensure that they are physically and psychologically healthy. They get screened prior to entering the service to ensure that they don’t have certain disorders. Students are required to get screened by military doctors at their home bases prior to traveling for SERE training to ensure that they meet the physical and psychological standards for participating in training. Most SERE schools also mandate that students complete screening questionnaires after they arrive at SERE school as a final safety check and for additional help or interventions if needed, to include being restricted from experiencing particular training procedures. Furthermore, the students arrive with their medical records in hand or available electronically to document their entire medical history, and indications of prior psychological diagnoses since their original military-entry physicals.

In other words, the military pre-selects trainees for SERE schools based on their ability to stay psychologically healthy. Trainees for whom the techniques would cause psychological damage aren’t allowed in. Detainees, obviously, are not screened in the same way.

A third difference that Ogrisseg notes is that SERE is geared towards enabling the students to resist torture. Real world interrogations are not geared the same way:

Real world interrogation and detention facilities exist to elicit information from the enemy that will be used to shape future and ongoing military operations and provide our troops with tactical, operational, and strategic advantages. As such, the detention environment is another form of the conflict between adversaries. Unlike in SERE training where the goal is not to defeat the student, the real world interrogator wants to win.

In other words, while the techniques might seem similar prima facie, the goals of the interrogator are different in the two contexts.

A fourth difference noted is that with SERE, there are active efforts made to avoid dehumanizing the subject of interrogation in order to prevent abuses from occurring. This is not as prevalent in the real world:

When dealing with non-country personnel, as in the case of detainee handling, there is greater risk of dehumanization of these personnel, and thus a greater likelihood of worse treatment that exceeds the limits of operational instructions.

Which appears to be exactly what happened in Abu Ghraib, Gitmo, et. al.

A fifth difference is that during SERE training, the trainees receive regular debriefings after interrogations which come coupled with advice and instruction as to how to resist further techniques. As Ogrisseg states, “[t]hese debriefings are obviously not available to real world
detainees like they are to our students.”

A sixth difference is that SERE training is, ultimately, voluntary:

SERE training, to an extent, is a voluntary experience. Students can withdraw from training. It is not entirely voluntary, in that completing training is a job requirement for many military specialties. Failing to complete training can result in administrative consequences, disqualification from worldwide deployment, and possibly retraining into a different career specialty if students aren’t ultimately able to complete training. Nonetheless, students may terminate the training experience if they desire to.

Being a detainee, like being incarcerated in the criminal prison system, is not voluntary. Detainees cannot choose to withdraw from their detention.

Trainees are even capable of stopping an interrogation with a “safe word” if the experience becomes too much to handle. Detainees, of course, have no such recourse.

Oggrisseg demarks several other distinctions between SERE training and the abusive techniques deployed in the real world, and I encourage you to read the whole thing. The bottom line, though, is this: SERE is specifically designed to prevent its students from experiencing permanent psychological damage. What makes what happened at Gitmo, Abu Ghraib and other places torture is that the intent of the interrogators was to inflict physical and psychological damage to its subjects. That is the very definition of torture as enshrined in the laws of the United States.

“Well, conservative, conshmervative – even Karl Rove would pay good money to see Pelosi handcuffed to Dick Cheney.” – Kate McMillan responding to news that the then-Minority Whip and top Democrat on the House Intelligence Committee was briefed on the use of “enhanced interogation techniques” in the fall of 2002 and “gave it her stamp of approval.”

And, no, the fact that this is just corroboration of old news doesn’t make it any less amusing.

Richard Fernandez laments that, “History will probably remember the Guantanamo Bay prison for longer than the already forgotten Prison S-21, where up to 20,000 people were tortured and killed by the Khmer Rouge.”

As for me, I prefer being held to a higher set of standards than Pol Pot.  I mean, of course we’re better than some of the most evil regimes in the history of the planet.  But we’re aiming for shining city on the hill.

Manfred Nowak, the U.N.’s special rapporteur on torture, proclaimed yesterday that the United States must prosecute the lawyers who drew up the torture memos and that if we fail to do so it is the duty of other states to step in and bring charges.

In my New Atlanticist piece, “UN: United States Must Prosecute Torture Lawyers,” I wonder how the lawyers can be responsible but not President Bush and Attorney General Gonzales.

As a practical matter, however, it is virtually inconceivable that the United States would prosecute a former president or attorney general for carrying out activities of questionable legality against non-citizens under color of national security. But there’s no concept of law, at least within a Republic, in which mid-level officials carrying out the orders of their superiors are culpable and their superiors are not.

There’s some pressure on President Obama from some senior leaders of his party in Congress to take action here but I’m betting he won’t.  Presidents have historically been loathe to seek criminal sanctions against predecessors and their staff for actions related to their official duties, lest their own power be diminished.   According to the Convention and Nowak, then, that means it’s up to other states to act.   After initially indicating it would do so, Spain has demurred.   As Bernard Finel has noted, for any European state to take action here would create a crisis in transatlantic relations.

This may be one of those times when, as Peggy Noonan infamously suggested, we just “walk on by.”