The Storm and the Calm

Many of you have no doubt seen horrible images out of Israel, following an arrest by IDF military police of several reservists suspected of torturing and sexually assaulting military detainees. This led to a full-scale riot by far-right forces in Israel, including military police and joined in by several right-wing coalition MKs, who successfully stormed several IDF military bases. Among those who joined in the riots are MKs Amichay Eliyahu (Otzma Yehudit), Zvi Sukkot (Religious Zionism), and Nissim Vaturi (Likud). Others who praised either the riots themselves, or the underlying justice of their cause, include Itamar Ben Gvir (Otzma Yehudit), Tally Gotliv (Likud), Bezalel Smotrich (Religious Zionism), Yariv Levin (Likud), and Yuli Edelstein (Likud).

The image of Israel effectively at war with itself, with one faction -- well-represented in the current government -- violently protesting on behalf of the right to torture and rape Palestinian prisoners with impunity -- is sickening, and demonstrates the fundamental disgrace that is Netanyahu's government. That goes without saying, and I'll say no more on that.

The IDF's top brass is, unsurprisingly, incensed at the anarchic violence targeting the very core of its authority and ability to self-regulate. The response from Israel's civilian leadership has been more muted; calls for "calm" have featured heavily. Bibi, for instance, issued "an immediate calming of passions in the Sde Teiman base." President Isaac Herzog likewise urged elected officials "to show leadership — to relax and calm down," in response to the growing chorus of parliamentarians speaking out in support of the riots and in defense of the soldiers accused of torture (and in opposition, it must be said, to the other soldiers seeking to actual enforce order and rule of law).

The term "calm" grabbed me, since anyone familiar with Israel and security issues is well-familiar with the refrains for "calm" that follow this or that provocation. See, for example, the United States urging "calm" after Hezbollah's rocket attack on the Golan Heights that killed a dozen Druze teenagers. I have no quarrel with "calm" -- I think there are very good reasons to pause and take a beat rather than just rush headlong into potential escalation, even where the target is unquestionably a malign actor. But if one is tuned into the channels of pro-Israel rhetoric, one also knows how these calls for calm are received -- with contempt, as effectively a demand for appeasement and turning the other cheek in response to outrageous misconduct. "Calm" is what one says when one intends to just let the aggressor act without consequence.

Again, that's not my view. But for the people who do think that way, one wonders what it means to hear the Israeli government's response to violent attacks on the IDF in support of suspected war criminals being a plea for "calm". For them, it must sound like a prelude to acquiescence, no? Surely, they must be as repulsed by this form of appeasement as all the others. Right?

Rasmieh Odeh Case Remanded By the Sixth Circuit

The United States Court of Appeals for the Sixth Circuit has ordered the district court to reconsider an evidentiary ruling against Rasmieh Odeh, who was convicted of lying to immigration officials in her naturalization documents (failing to disclose a terrorism conviction in Israel) and sentenced to 18 months in prison (followed by deportation back to Jordan).

While the majority rejected most of Ms. Odeh's contentions, it concluded that the district court erred in "categorically" excluding evidence of her alleged PTSD which -- Odeh argued -- caused her not to know her statements were false because she would have mentally suppressed all memory of her time in Israel (Ms. Odeh alleges that she was tortured by Israeli authorities in the process of extracting her confession). The Court did not rule that this evidence necessarily had to be admitted, only that the district court made a mistake in holding that evidence of this sort had to be excluded categorically (that is to say, the Court left open the possibility that the evidence should have been excluded for case-specific reasons).

The terrorism conviction regarded Ms. Odeh's role in bombing a supermarket, an attack which killed two civilians. I have obviously zero sympathy for her actions (there is no serious dispute that Ms. Odeh was involved in the bombing, the only question is regarding the extent); I likewise think that torture -- including of terrorism suspects -- is categorically wrong. Ms. Odeh's conviction, however, is not based on the Israeli conviction itself but on her failure to disclose it in response to a direct question by immigration authorities: "Have you EVER been charged with committing any crime or offense?” (a failure which, on its face, has nothing to do with either the bombing itself or her allegations of torture during interrogation). And while I am quite dubious of her claim that PTSD caused her to simply "forget" the conviction and ensuing prison term every occurred, the opinion by Judge John M. Rogers (a George W. Bush appointee) is reasonable enough in suggesting that such evidence could at least theoretically negate an element of the offense and therefore required more fine-grained analysis by the district court.

The other two judges on the panel were Karen Nelson Moore (Clinton appointee) and Alice Batchelder (George H.W. Bush); the presiding district court judge was Gershwin Drain (Obama). For all you "law is politics" fans, note that not only was this opinion written by a Republican reversing a Democratic appointee, it was in fact Judge Batchelder (the elder Bush appointee well-known for her staunch conservatism) that authored the most "pro-Odeh" opinion of all. She would have vacated the conviction entirely on the basis that admitting the details of Odeh's particular offense (the terrorist bombing) was unduly prejudicial. Since the conviction was simply about whether Odeh lied on her documents or not, there was nothing probative (but much inflammatory) in the jury knowing specifically that the conviction she had failed to disclose was for murdering two civilians in a terrorist bombing.

The case has been remanded back to the district court, which was left to reconsider its evidentiary ruling on alternative grounds and -- if it ultimately sides with Ms. Odeh -- whether a new trial is necessary.

Executions and Their Alternatives

This past March, I commented on the Eighth Circuit's en banc decision in Zink v. Lombardi, which rejected a challenge to Missouri's execution protocol. My particular focus was on a strange statement offered by the dissent which said that, if the death penalty is constitutional in the abstract, it follows that there must be some form of execution which is constitutional as well. This, to me, clearly did not hold -- it is perfectly plausible to say that while the Constitution has no objection to capital punishment as such, it still must be the case that any particular form of execution must satisfy the demands of the Eighth Amendment -- and perhaps none will do so.

Of course, leave it to the Supreme Court to take an obvious truth and turn it on its head. Today, in Glossip v. Gross, the Court rejected a constitutional challenge to Oklahoma's lethal injection procedure. In doing so, it made one fateful and indefensible holding: the Court decided that a prisoner cannot solely show that the method of execution is excruciatingly painful, barbarous, even tantamount to torture. He must show it is all of those things compared to a "known and available alternative method of execution." In other words, just like the Eighth Circuit, the Supreme Court declares that there must be a legal form of execution (not just in theory, but "known and available" to the executing state). And as a consequence, the baseline for "cruel and unusual punishment" rests against the characteristics of the next-best alternative. If, as it turns out, all the methods seem to be brutal and inhumane in their application -- well, the Supreme Court just legalized torture.

There is irony here. For all of Justice Scalia's bleating in King v. Burwell about how the Supreme Court "is prepared to do whatever it takes to uphold and assist its favorites," that complaint would be far more appropriate if leveled here. The whole reason this "known and available alternatives" argument was an issue was because social movement actors have made it exceptionally difficult for states to access most varieties of execution drugs. If social circumstances dictate that otherwise lawful executions can't be carried out in a fashion concordant with constitutional demands, that would seem to be that (I explored a far more ambitious version of this hypothetical in my "perfect poison" story). But of course, that didn't satisfy the author of the Glossip opinion -- who complained at oral argument that this would represent a capitulation to the death penalty opponents' "guerrilla war" against capital punishment. So the doctrine stands in all of its cruel and unadorned glory: executions must be allowed. If that means subjecting human beings to "the chemical equivalent of being burned at the stake,"* so be it.

Torturing: The Data

This is a great chart:

The x-axis shows the five years before and after a country ratified the CAT. Year 0 is the year that the country ratified the CAT. For example, year 0 for the United States was 1994, while year 0 for Nicaragua was 2005. The line shows the average torture score for countries during the five years leading up to ratification and the five years following ratification (where 0 refers to frequent torture and 2 refers to no torture). If the average country had reduced torture during this period, then the line would have sloped up.

You'll notice the line does not really slope at all. Anyone can sign a piece of paper, people.

Workshop Roundup

Come to law school for the makeup class, stay for the workshop (actually going to the makeup class is apparently optional).

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Former Utah Gov. and Ambassador to China Jon Huntsman takes the bold (for a GOPer) stance that climate change is real and scientists are worth listening to -- except for the part where we do something about it. Oh well, baby steps.

Newt Gingrich's poll tests -- too extreme even for Rep. Allen West (R-FL).

Cornel West flips out at Barack Obama. Melissa Harris-Perry has the best response. My favorite part was West's outrage that a hotel bellhop could get tickets to Obama's inauguration, but he couldn't. Outrageous!

Ex-Senator Rick Santorum (R-PA) declares John McCain knows nothing about torture, McCain's office responds with "who?"

PA President Mahmoud Abbas has a manifesto in the New York Times. Rebecca Lessee lets fly at it, but while I think a lot of her points are well-taken (and Abbas' misleading omissions and use of the passive-voice are aggravating), I'm beginning to come around to the notion that centering the Israel/Palestine discussion around endless sniping over narratives is probably not all that useful (though I continue to hope that respect for each others' stories is the "end game").

Hamas interviews one of the protesters at the Jordanian/Israel border. She misses the good old days when her father "massacred the Jews" of Hebron (she's 92 and originally from Hebron, so she's speaking from experience regarding the 1929 pogrom). Meanwhile, a Hamas official is licking his lips over the opportunity to wipe the Jews out.

Worse Than My Lai

Former Bush administration official John Yoo has finally found a limit on executive power: Forcing federal contractors to disclose contributions to government officials. He says the "only" purpose for such a law is to pave the way for harassment and retaliation (not, apparently, transparency and fighting corruption).

TPM confirms that the editorial is silent as to whether "the President has the executive power to torture executives to force them to disclose their political donations."

Not Finals Roundup

Jill's on vacation, and I'm not studying. Or blogging. Or doing anything remotely productive. I did walk to Chipotle.

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Four soldiers who died while the media was drooling over Charlie Sheen.

The Islamic radicalization hearings that could have been held, if the committee was chaired by someone serious about Homeland Security, rather than a terrorist sympathizer looking to project.

T-Paw plays footsie with birthers. It's becoming a necessity in the GOP primary -- a majority of likely Republican primary voters don't believe Obama was born in the USA (and another 21% aren't sure).

T.A. Frank on Zuhdi Jasser.

That the New York Times won't call waterboarding torture -- at least, when the US is the one doing it -- is nothing more than cowardice in the face of ginned-up controversy.

We Wouldn't

In late 2007, I declared that the upcoming presidential election "is about torture". I was wrong. It wasn't. Despite my assertion that torture should stay in the public eye until we come to terms with it and, ultimately, eradicate it, our preference towards inertia won out:

We, as a people, desperately want to ignore this issue. We want to pretend it doesn't happen. And unless there is a constant media blitz forcing Americans to come to terms with our torture policy, we'll continue to ignore it.

The soldier accused of leaking material to WikiLeaks is currently being held in solitary. He hasn't been convicted of anything, and he wasn't on suicide watch (though now apparently we have to pump him full of anti-depressants to keep his brain intact). There is a solid case to be made, one this made in chilling detail in The New Yorker, that long-term solitary confinement rises to the level of torture.

But, as Ta-Nehisi Coates points out, the New Yorker's question -- is solitary confinement torture? -- is no longer the most salient one. Years after Abu Gharib and waterboarding, years after a Bush administration that explicitly sanctioned torture and years into an Obama administration that has done its utmost to insure there is never any accountability for it, a more harrowing question emerges: Even if it is torture, would we even care?

I think the answer is clear. No. We would not. Much as we have with prison rape, we, as a society, have come to terms with permitting torture of those we detain -- convicts, military detainees, even the accused. It is now part of who we are as a nation. And it will take a great, soul-wrenching shift to turn us away from it.

Monday Quick Hits

So how about the big game this weekend, eh?

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Exonerated accused rapist forms a bond with the woman whose erroneous accusation put him in prison.

I assumed this was a tasteless Onion piece, but it wasn't: soldier waterboards four-year old daughter because she couldn't recite the alphabet. But let's be careful -- we wouldn't want to say something radical and uncivil like calling it "torture" (every little thing the Spanish Inquisitors and Khmer Rouge did....).

The University of Oregon campus and administration reacted with appropriate outrage when the offices of its LGBTQA offices were defaced with swastikas. However, as a gay Jewish-Israeli student noted, there was somewhat more serenity -- and appeals to "free speech" -- when certain other groups were targeted with swastikas.

The judge deciding the Proposition 8 challenge is a gay man. Both sides are being very careful not to make hay over it -- for now (my thoughts on the matter can be accurately deduced from this post).

... Well, some folks are doing their best to tip-toe up to the issue.

It looks like some form of talks between Israel and Palestine are going to restart.

Meanwhile, a Likud minister bluntly told a right-wing caucus that they need to give up their dreams of Greater Israel.

Justice Thomas talks a bit about his clerk-hiring practices (Thomas is known for being the Justice most prone to hiring outside the traditional Ivy strongholds): "I have a preference actually for non-Ivy league law clerks, simply because I think clerks should come from a wide range of backgrounds."

$6 million dollars is but a small price to pay to bring about the likely extinction of the human race.

DOJ Opens Investigation into CIA Interrogations

A. Bout. Time.

Oh, BURN!

Iranian Presidential candidate Mehdi Karoubi: Our security agents are "worse than Zionists".

Snap.

Waterboarding. Is. Torture

Why aren't we clear yet?

Reverse Nuremberg

This one's been flying around the internet, but I want to link too:

We’ve got what amounts to a reverse Nuremberg defense, where Bush administration officials are let off the hook because they were only giving orders. I’m not sure that’s such a great idea.

The Incoherent Room

How is it, I wonder, that asking for a mere investigation into the people who ordered torture (and lied about it) makes you a crazy person, but calling for the ouster of those who may have lied about being told about torture is perfectly rational and mainstream?

For that matter, why is it that Newt Gingrich is mainstream at all? I don't see John Edwards or Elliot Spitzer being called on as elder statesmen.

Pz-Owned

UN Watch ambushes Libya at the UN Durban Review Conference preparatory meeting. Libya, for reasons that, depending on your perspective, are either inexplicable or all too explicable, was chosen to chair the chair the preparatory committee, was presiding when it recognized UN Watch, an NGO which "monitors the performance of the United Nations by the yardstick of its own Charter."

Normally, it seems to spend its time getting abused by the authoritarian regime of the week for actually caring about human rights. But here they turned the tables beautifully, turning the microphone over to a victim of Libyan torture who demanded to know how that nation's country could claim to lead the fight against discrimination when it had, he claimed, targeted him simply to scapegoat foreigners (the doctor was Palestinian).

Unsurprisingly, the Libyan ambassador eventually succeeded in shutting down the discussion. But still, it made for a nice spectacle. And since UN Watch tipped off the local media, it even got everything filmed.

So score one point for the good guys; and for suppressed victims of violence having their voices heard (if only for a little while).

...Secrets Are For Everyone

The state secrets doctrine was no fun when the Bush administration used it to cover up American complicity in torture, and it remains equally vile when it's the Obama administration doing the same thing. I'm really ticked off about this. Even though the crimes Obama's administration is helping cover up through the invocation of this "principle" were perpetuated by the Bush administration, I agree with David Luban and Andrew Sullivan: by helping bury these crimes against humanity, you become complicit in them.

Out With The Yoo, In With The Lederman

Some days the world just works out. One of those days is when anti-torture advocate Marty Lederman takes the job formerly held by John Yoo.

Recriminations

The cease-fire between Israel and Hamas is holding up so far, but that doesn't mean Hamas is behaving peacefully. Instead, it seems to be emerging from the conflict with an eye towards torturing and sometimes killing its political opponents:

Hamas militiamen have rounded up hundreds of Fatah activists on suspicion of "collaboration" with Israel during Operation Cast Lead, Fatah members in the Gaza Strip told The Jerusalem Post on Monday.
Hamas gunmen in the Gaza Strip.

They said the Hamas crackdown on Fatah intensified after the cease-fire went into effect early Sunday morning.

The Fatah members and eyewitnesses said the detainees were being held in school buildings and hospitals that Hamas had turned into make-shift interrogation centers.
[...]
A Fatah official in Ramallah told the Post that at least 100 of his men had been killed or wounded as a result of the massive Hamas crackdown. Some had been brutally tortured, he added.
[...]
Eyewitnesses said that Hamas militiamen had turned a number of hospitals and schools into temporary detention centers where dozens of Fatah members and supporters were being held on suspicion of helping Israel during the war.

The eyewitnesses said that a children's hospital and a mental health center in Gaza City, as well as a number of school buildings in Khan Yunis and Rafah, were among the places that Hamas had turned into "torture centers."

A Fatah activist in Gaza City claimed that as many as 80 members of his faction were either shot in the legs or had their hands broken for allegedly defying Hamas's house-arrest orders.

Hamas? Using schools and hospitals as bases to enact violent, thuggish, and authoritarian policies? Say it ain't so!

Anyway, the favored punishment seems to be shooting the alleged "collaborators" in the legs, but everything from summary execution to blinding has been reported as well.

My guess is that Hamas is attempting reassert its authority to show that it was not in any way weakened by the Israeli attack. I don't know if it was weakened or not, but in a sense it doesn't matter so long as it is still stronger than the alternatives, and my distinct suspicion is that in Gaza, Hamas remains significantly more powerful than Fatah.

Return of the Tab Dump

Travel means falling behind on my tabs. Here are some things that caught my eye:

Don't mess with Valerie Jarrett.

The Agricultural Secretary is Iowa Gov. Tom Vilsack. Although slightly better than some alternatives (namely, former Rep. Charlie Stenholm), I know Ezra Klein won't be thrilled to get someone who will continue our focus on the corporate-ag side of things, rather than get us looking at sustainable and intelligent food policy.

Stop the presses! Christian organizations hate governmental support for religion when the religion isn't Christianity (see also). The irony is that the putative "church/state violation" the Thomas More Center is whining about wouldn't qualify under even the most stringent separationist doctrine. A doctrine which, it can't be emphasized enough, the TMC normally loathes when they're not being shameless hacks. Also worth noting: the argument the TMC is pressing is one that, if successful (it won't be) would be lethal to the equalization of minority faiths in American culture.

Sen. Norm Coleman (R-MN), who may or may not have been elected to another term, has lawyered up in response to recent corruption allegations.

Pastor Rick Warren didn't think torture was worth discussing in his meetings with President Bush.

Killing Americans

Speaking of things that kill Americans, perhaps Justice Scalia should read this piece by an American military interrogator about the fruits of American torture (H/T):

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.

I'd say duh, but that would be too kind to the conservative enablers of this immoral and ultimately lethal regime.

Indeed, in the author's experience, torture isn't just dangerous, it's unnecessary:

Amid the chaos, four other Air Force criminal investigators and I joined an elite team of interrogators attempting to locate Zarqawi. What I soon discovered about our methods astonished me. The Army was still conducting interrogations according to the Guantanamo Bay model: Interrogators were nominally using the methods outlined in the U.S. Army Field Manual, the interrogators' bible, but they were pushing in every way possible to bend the rules -- and often break them. I don't have to belabor the point; dozens of newspaper articles and books have been written about the misconduct that resulted. These interrogations were based on fear and control; they often resulted in torture and abuse.

I refused to participate in such practices, and a month later, I extended that prohibition to the team of interrogators I was assigned to lead. I taught the members of my unit a new methodology -- one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they're listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of "ruses and trickery"). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.

Over the course of this renaissance in interrogation tactics, our attitudes changed. We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shiite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money. I pointed this out to Gen. George Casey, the former top U.S. commander in Iraq, when he visited my prison in the summer of 2006. He did not respond.

Perhaps he should have. It turns out that my team was right to think that many disgruntled Sunnis could be peeled away from Zarqawi. A year later, Gen. David Petraeus helped boost the so-called Anbar Awakening, in which tens of thousands of Sunnis turned against al-Qaeda in Iraq and signed up with U.S. forces, cutting violence in the country dramatically.

Our new interrogation methods led to one of the war's biggest breakthroughs: We convinced one of Zarqawi's associates to give up the al-Qaeda in Iraq leader's location. On June 8, 2006, U.S. warplanes dropped two 500-pound bombs on a house where Zarqawi was meeting with other insurgent leaders.

But Zarqawi's death wasn't enough to convince the joint Special Operations task force for which I worked to change its attitude toward interrogations. The old methods continued. I came home from Iraq feeling as if my mission was far from accomplished. Soon after my return, the public learned that another part of our government, the CIA, had repeatedly used waterboarding to try to get information out of detainees.

I know the counter-argument well -- that we need the rough stuff for the truly hard cases, such as battle-hardened core leaders of al-Qaeda, not just run-of-the-mill Iraqi insurgents. But that's not always true: We turned several hard cases, including some foreign fighters, by using our new techniques. A few of them never abandoned the jihadist cause but still gave up critical information. One actually told me, "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."

Once again, folks could have figured this out from World War II.

The author (writing under a pseudonym for security purposes) is a 14-year military veteran with a background in special forces and counterintelligence. He'll freely tell you that torture is wrong. But it also is unnecessary, and gets Americans killed. Every day we allow this blot upon our constitution to continue, we dishonor his service.