Monday, February 23, 2009

Glenn and Jane on Democracy Now! -- Has Torture Been "Wiped Out"?`

Glenn Greenwald and Jane Mayer appeared on Amy Goodman's Democracy Now! the other day. There was a lot to be grateful for in letting these two important voices get further exposure. Both Mayer and Greenwald agreed there were things to be concerned about regarding the Obama administration's positions re suppression of state secrets privilege in cases such as that of Binyam Mohammed. Both agreed that the Bush Administration's organization of state torture deserved investigations and prosecutions. Both warned that dangers remain for those who would see the reestablishment of basic civil liberties.

While there is much to praise in the work of these intrepid journalists (see Glenn Greenwald's column at Salon.com on any given day, or read Jane Mayer's book, The Dark Side), a few of their comments at Democracy Now! bear further scrutiny.

Mayer, at one point, took umbrage at what she felt was Greenwald's overly negative representation of the Obama administration's actions thus far concerning torture, interrogations, rendition, and secrecy:
And they —- you know, I’m giving them maybe a little bit more credit than Glenn is, because I think what they did in their first week in office was stupendous. They put out executive orders that said, from here on out, everybody’s got rights, everybody’s covered by the Geneva Conventions, the ICRC gets to see every detainee, we’re closing the black site prisons, we’re going to shut down Guantanamo. They are moving on —- these things are not nothing; these things are really seriously great reforms.
Greenwald replied, in part (emphasis added):
Well, I mean, I actually agree with Jane that it’s a mixed picture, more than perhaps my answer might have suggested, because I was addressing two specific areas where I think the Obama administration has done the wrong thing. But she’s right that the executive orders issued in the first week were promising and encouraging, and there are complexities and conflicting pressures. They need to make sure the CIA doesn’t revolt over the idea that, you know, they’re going to be dragged into court for what they did. They’re figuring out ways to try and keep some of these secrets without becoming complicit in them....

As far as looking forward, you know, those executive orders were good, and they were encouraging, but they leave some of the trickiest questions open. You know, are we going to close Guantanamo but then move those due process-abridging military commissions inside the United States and call them national security courts, where they might be even worse? Are we going to, as you just asked and as Leon Panetta suggested, preserve some of the rendition policies that have led to such severe abuse and some of the most grotesque acts of the last eight years? I mean, these are all good questions that are very much unresolved.
There are two pertinent points I'd like to make here. One, Mayer's accolades regarding the Obama executive orders on torture and interrogation appear overly optimistic. While Obama and his team deserve credit for removing (for now) the CIA's approval for "enhanced interrogation techniques", such as waterboarding, and a closing down of CIA prisons, it left the door open for changes in the near future, and allowed the CIA to still operate prisons for unspecified short-term prisoners. Would that mean, say, the three or six month imprisonment and torture of a suspect by means of sensory deprivation, isolation, sleep deprivation and manipulation of fears, or administration of short-acting psychotropic medications?

The latter is not an inapposite question, as all of these techniques are allowed by the current Army Field Manual, which by executive order of Barack Obama is now the standard operating procedure for interrogations by governmental and military agencies. And furthermore, I know that Jane Mayer knows this, because I emailed her to inform her of my articles on the subject, and she emailed back that it was something she would look into.

Besides the information I provided, Ms. Mayer could have perused some of the statements of Center for Constitutional Rights or Physicians for Human Rights, who have indicated their opposition to these aspects of the Army Field Manual and its Appendix M, and asked the current administration to rescind these techniques.

Greenwald's reply to Mayer shows that understands the ongoing problems with the Obama administration's actions thus far. While he has yet to mention the problems with the Army Field Manual, he doesn't pretend that Obama's reforms have totally ended any danger of torture by the current administration, which is how Mayer described the current situation in her interview with Terri Gross of NPR's Fresh Air program on 2/18/2009. She told Gross that when Obama's administration put all detainees held by the U.S. under the Geneva Conventions, they "wiped out the whole issue of torture" (quote can be heard 24 minutes into the interview).

Now, maybe Jane Mayer knows more that I do. Literally. The new executive order, "Ensuring Lawful Interrogations" has the following subsection:
[3](c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.
The provision by which the Army Field Manual claims that its techniques are legal pertains to legal reviews done by "senior DOD figures at the secretarial level, by the Joint Staff, by each of the combatant commanders and their legal advisers, by each of the service secretaries and service chiefs and their legal advisers, in addition to the director of the Defense Intelligence Agency and the director of National Intelligence, who coordinated laterally with the CIA." It was also "favorably reviewed" by Attorney General Alberto Gonzales' Justice Department.

If all those legal opinions regarding Army Field Manual 2-22.3 are now rescinded, where does that leave the techniques enumerated within its Appendix M and elsewhere, including the use of partial sensory deprivation, sleep deprivation, the use of fear and humiliation, isolation, and other objectionable techniques that many legal observers have termed as cruel, inhumane, and degrading, if not torture? I don't know. But leaving these techniques still in the document is like leaving a landmine intact with its fuse and only placing red flags around it. The document is still highly dangerous and violates Geneva and the Convention Against Torture. I would note that with or without legal opinions, the drafters of the AFM took care to make Common Article 3 the minimal criteria. Common Article 3 does not ban use of "coercion" on detainees, something that is specifically spelled out in the full conventions governing both POWs and Civilians.

Maybe Jane Mayer knows what the Obama administration plans to do in regards to new legal opinions on the AFM. She certainly may have the sources. But I don't put a lot of stock on intimations of insider knowledge, and besides, Mayer has suggested no such special knowledge on this point. Hence, her assertion that the issue of torture is now "wiped out" appears precipitous at best.

As for Glenn Greenwald's comments, I have no such bone to pick with its content. But I did think he revealed a certain aspect of the current situation politically that isn't emphasized enough. In commenting on the Obama administration's approach to these problems he indicated that wants to "make sure the CIA doesn’t revolt over the idea that... they’re going to be dragged into court for what they did."

What sort of a revolt does Greenwald have in mind? And why should we be so worried about it? Will the CIA go on strike? Or will they do something worse than that, i.e., strike out somehow at those they perceive as their enemies?

It's not the "revolt" aspect that is most telling. It's that a primary player in this scandal, the CIA, has so much power of intimidation, backed up by very little actual accountability to anyone. Senator Levin and the Senate Armed Services Committee did an incredible job investigating detainee abuse by the Department of Defense, but they had almost no cooperation from the CIA. The CIA's Inspector General John Helgerson reportedly wrote a stinging report in 2004 on CIA torture abuse, including the deaths of prisoners in custody, but the report has been classified. Some enterprising reporter may want to ask Obama about that at his next press conference. (Helen Thomas, are you listening?)

Over thirty years since the worst scandals related to CIA power and abuse were reported, the agency still retains its incredible power and secrecy. Its tentacles reach into the military in ways that we have yet to fully understand. (See the participation of the CIA's General Council as represented in the minutes from a meeting about interrogations and torture at Guantanamo in October 2002.) Without understanding the full consequences of how the power of the CIA is wielded in Washington, we cannot make a certain assessment of the issues at stake nor where they stand.

One could also, by the way, add in any problematic response by the military-surveillance complex to the fight against limitless wiretapping by the U.S. government. The extent of the surveillance is wonderfully, if scarily, presented in James Bamford's excellent new book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. Bamford documents the size of this empire, which includes many tens of thousands of employees and gigantic corporations -- not even counting the ongoing collaboration of the telecommunications industry in the huge surveillance scheme collecting all our telephone calls, e-mails, and Internet browsing. Along with Mayer's Dark Side, The Shadow Factory provides a two-volume introduction into the secret life of American intelligence.

5 comments:

back_to_our_senses said...

Yep...I cannot understand how people can say torture is completely wiped out when we come to find Binyam Mohamed has been beaten at Gitmo while President Obama was in office. What's worse is that I fear the Obama team will not handle this in a manner consistent with the executive orders - IOW, actually investigating the conditions at GITMO and the behavior of these guards, and firing those who engage in brutal behavior - but instead will try to dismiss these reports and focus on the "media cycle." Some like to say he is trying to placate the military by some of the choices he makes - but if there are guards in Guantanamo who are still beating prisoners, that is now a criminal offense. Obama must treat it like one if these orders will mean anything.

Valtin said...

In total agreement with you, BTOS. Re conditions at Guantanamo, see CCR's new report, Conditions of Confinement at Guantanamo: Still in Violation of the Law, about which I will soon post.

http://salsa.democracyinaction.org/dia/track.jsp?v=2&c=icu3EakE6Pe9jib%2BzYxFPEehbAxPOJ8f

back_to_our_senses said...

Valtin - thank you so much for the link, and I look forward to your future blogging about it.

My fear is that the Obama policy re: torture and terrorism is now separated from the Obama PR about torture and terrorism. That dissonance poisons the hope of transparency and justice for those in GITMO now. I didn't read a VERY REALISTIC and WORKABLE (as opposed to lofty, or noble, adjectives you could apply to Obama's anti-torture orders, but really, why call it noble when it is simply RIGHT, SIMPLE, AND DOABLE) executive order about recent Obama DoJ moves, because what the Obama DoJ has done recently - siding with Jeppesen, offering no habeas corpus, doesn't necessarily make sense. They do not care if it does. He is triangulating on the details and day to day. And anyway, why is the Obama DoJ deciding on its own initiative who will stay and who will be freed from GITMO? Why can't we do this in the sunlight? Why can't these prisoners challenge their detention? The method is wrong. In some ways Obama is trying to right a sinking ship. And he doesn't have to. Obama, you are popular right now - just do the right thing!

Unfortunately, I suppose Obama cannot side with the CCR over the Pentagon - especially now that it's his. But CCR is always more right than the Pentagon...and eventually that leaks into the MSM.

I hope we can use the resources of the CCR, and the analysis of yourself re: the AFM, to push Feinstein, and also Obama, to DO SOMETHING when it comes to these situations. The good PR will eventually crumble in the face of reality. I hope it does so sooner rather than later - before dubious national security courts are set up, before the CIA is given "additional authority."

We can't live and die by faith in Obama - no matter what, that will all wrap up in 8 years at most. We need to implement a framework of faith in the criminal justice system and horror at our recent state-sponsored torture past. Obama is not necessarily on that bandwagon. But he's not the end of this battle.

Valtin said...

The double game of the administration, i.e., as you described it, BTOS, between real policy and PR has also found its expression in the APA's adoption of an anti-torture interrogation policy that prohibits psychologists working at facilities where torture takes place, except it the new policy is... not enforceable.

It's some kind of a step forward, as were Obama's EOs, re restating an intention, and saying you will do good. But the devil is always in the details, and an actual disassembly of the torture apparatus, and a reckoning with those who built and staffed it awaits a future battle.

Angry Law Professor said...

Isn't the difference between Greenwald and Mayer the fact that she works for a more mainstream, Obama-loving periodical? Glenn is one of the most independent voices at Salon.

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