Just Above Sunset
Volume 5, Number 10
March 11, 2007

The Last Challenge

 The world as seen from Just Above Sunset -

"Notes on how things seem from out here in Hollywood..."

The Last Challenge - The question is just what sort of people we are, really.

Now what?  Wednesday, September 6, the president announced he was ordering fourteen "terrorist leaders" transferred from secret CIA prisons overseas to our military prison at Guantánamo Bay.

But we didn't have any secret CIA prisons overseas. We said so, or, when pressed, kind of implied if we did we would never admit it.

No one was supposed to know about them, and when the Washington Post revealed that we really did (here), Bill Bennett and half of the commentators on the right wanted to try Dana Priest, the reporter, and the Post, for treason.

Yeah, Priest got the Pulitzer Prize for the story, but that didn't matter. If we didn't have the secret prisons this was unforgivable lying to hurt America, and if we did, no one was supposed to know. (The same crew was calling for the New York Times to be charged with treason for revealing the president had ordered clearly illegal wiretapping of American citizens - saying he needed no warrants as stipulated in the law - and for discussing how we were monitoring international banking transactions, as we had long said we were, but how we were on some shaky legal ground there too.)

So the Bush administration has officially acknowledged the existence of the secret prisons, and certain European countries would now like to know just where they were - to clear up questions from their own people, who'd like to know just what was going on and who approved what. But we're not saying - not our problem.

Why this, and why now? The congressional elections are coming up in November and it looks as if the Republicans will lose the House, and could lose the Senate. If that happens, the president will lose the power to get much done in his last two years in office, becoming the lamest of lame ducks. And all the investigations blocked in the first six years - regarding who knew what, when, and who was lying - could begin. No one is talking impeachment, yet, but just requiring answers to specific questions, under oath, would be deadly. This sudden change - saying that, yes, we did have secret prisons and those we held should now be tried - is seen by most as a bit of political gamesmanship.

The thinking is that Karl Rove has advised the president to jam the Democrats here. At the same time that the president is moving these special detainees to Guantánamo, he's pushing Congress to adopt new rules for trying them once they're there. Of course, earlier this year, the Supreme Court struck down the president's plan for military tribunals at Guantánamo (details here) - they held that holding that the tribunals, as the administration envisioned them, would violate the Geneva Conventions and weren't authorized by any act of Congress anyway. So forget it. To work around that ruling, the White House is now asking Congress to authorize the tribunals and to adopt rules governing them that might get around the Geneva conventions. Note here a Republican Senate aide says the rules the White House has in mind would allow the use of evidence "obtained through coercion" - whatever they screamed out when we made them think they were going to die, or when the pain was unbearable, must be true. Yes, this has been thought kind of dumb since the sixteenth century in almost every nation on earth - no one allows such evidence. But 9/11 changed everything, perhaps. And the Senate aide said too that the proposed rules would additionally allow the tribunals to deny detainees access to evidence used against them - if the administration declared the evidence classified.

This would not be like Nuremberg, where we wanted to show the world how our legal systems works - the charges are clear, you get to see the evidence against you, you get to respond to the charges and challenge the evidence, in public, and everyone can see if you're guilty or not. The president is pressing congress here to approve something quite different - these people don't deserve what used be thought of as fairness. And that's the gambit. Anyone who wants to follow the Nuremberg model must be soft on terrorism and want these guys to walk. Oppose this and you get the Max Cleland treatment - as you recall he questioned the new Department of Homeland Security's personnel policies, suggesting some folks shouldn't be forced to quit their unions, and that turned out to be the same as really wanting al Qaeda to take over the world. Bad move on his part. And this is one of those. Oppose the new rules and you must hate America, and you'll be sorry.

There's a lot of talk on the right about how brilliant this is - it could save the House and Senate. For example there's this -

    The President just pulled one of the best maneuvers of his entire presidency. By transferring most major Al Qaeda terrorists to Guantanamo, and simultaneously sending Congress a bill to rescue the Military Commissions from the Supreme Court's ruling Hamdan v. Rumsfeld, the President spectacularly ambushed the Democrats on terrain they fondly thought their own. Now Democrats who oppose (and who have vociferously opposed) the Military Commissions will in effect be opposing the prosecution of the terrorists who planned and launched the attacks of September 11 for war crimes.

    And if that were not enough, the President also frontally attacked the Hamdan ruling's potentially chilling effect on CIA extraordinary interrogation techniques, by arguing that Common Article 3 of the Geneva Conventions is too vague, and asking Congress to define clearly the criminal law limiting the scope of permissible interrogation.

    Taken as a whole, the President's maneuver today turned the political tables completely around. He stole the terms of debate from the Democrats, and rewrote them, all in a single speech. It will be delightful to watch in coming days and hours as bewildered Democrats try to understand what just hit them, and then sort through the rubble of their anti-Bush national security strategy to see what, if anything, remains.

No longer operative is what Robert Jackson, the head prosecutor at Nuremberg, said in his closing address before that tribunal.

That would be this -

    Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man.

There's all this talk that these are the new Nazis. But it seems they're not. They don't get the rights we gave the German guys.

So, will the strategy work, this "Cleland Gambit?"

The Post was reporting here that three Republican senators - John Warner, John McCain and Lindsey Graham - are working on legislation that would ensure detainees the right - which the Sixth Amendment would guarantee them in regular civil courts - to see the evidence against them. The Post reports these three believe that the administrations plan to deny detainees access to the evidence against them would "violate long-standing due-process standards and set a dangerous precedent for trials of captured US military personnel." Well, that's a thought. We'd be outraged if someone did this to our guys. And McCain here says this - "I think it's important that we stand by 200 years of legal precedents concerning classified information because the defendant should have a right to know what evidence is being used."

How quaint, as the Attorney General would say.

By Friday we were getting this -

    Brig, Gen. James C. Walker, the top uniformed lawyer for the Marines, said that no civilized country should deny a defendant the right to see the evidence against him and that the United States 'should not be the first.'

    Maj. Gen. Scott C. Black, the judge advocate general of the Army, made the same point, and Rear Adm. Bruce E. MacDonald, the judge advocate general of the Navy, said military law provided rules for using classified evidence, whereby a judge could prepare an unclassified version of the evidence to share with the jury and the accused and his lawyer.

    Senate Republicans said the proposal to deny the accused the right to see classified evidence was one of the main points of contention remaining between them and the administration.

    'It would be unacceptable, legally, in my opinion, to give someone the death penalty in a trial where they never heard the evidence against them,' said Senator Lindsey Graham of South Carolina, who has played a key role in the drafting of alternative legislation as a member of the Armed Services Committee and a military judge. ''Trust us, you're guilty, we're going to execute you, but we can't tell you why'? That's not going to pass muster; that's not necessary.'

Tim Grieve here -

    The president and his supporters plainly see it differently. As Bill Frist prepares to push the Bush plan as part of a flurry of terrorism-related measures in the run-up to the November elections, an aide to the Senate majority leader says it's a "dangerous idea that terrorists and those around them automatically receive classified information about the means and methods used in the war on terror."

    We wonder what Bush and Frist would think if an American soldier were tried and convicted based on evidence that was obtained through torture - evidence that he was never allowed to challenge or explain away because he was never allowed to see it in the first place. We hope they never have to ponder that sort of injustice. But if they do, they'll have left themselves, and the rest of us, with precious little room to complain.

No kidding. And he adds this -

    By moving Khalid Sheik Mohammed and other high-level terrorism suspects to Guantánamo, the president changes the debate from the rights owed to some nameless and not-particularly-scary detainees to the rights owed to one of the alleged masterminds of 9/11.

    But will Bush's move have much of an effect on November? That's clearly part of the plan. Just hours after the president's announcement Wednesday, Republican National Committee chairman Ken Mehlman was e-mailing supporters about al-Qaida's plot to obtain biological weapons and the ways in which "some Democrats in Washington" have "questioned why our government" needs the tools Bush wants to fight terrorism. It's all standard-issue, Democrats-are-soft-on-terror stuff: "They have questioned the terrorist surveillance program, and bragged about 'killing' the Patriot Act," Mehlman wrote. "The No. 2 Democrat in the Senate even likened America's interrogation practices to those in Nazi or Soviet concentration camps."

    Will it work?

    … Well, maybe. For better or for worse, the manner in which we try terrorism suspects isn't exactly at the top of most Americans' minds. According to the latest Fox News poll, the economy and Iraq are the top two issues voters say they'll consider as they head to the polls in November. Terrorism, in the general sense, is third; the treatment of detainees at Guantánamo doesn't make the list at all. Worse still for Bush, Americans just aren't that afraid anymore. A New York Times/CBS News poll out today shows that only 22 percent of Americans are "very concerned" about the possibility of a terrorist attack where they live. And, in what the Times calls a "political paradox," the president's approval ratings tend to be lowest in the parts of the country where Americans fear terrorism most.

    Now, will jamming Democrats on Guantánamo help raise the profile of terrorism as an issue? Sure it will, and that has been the point of all the fear-and-appeasement talk coming out of the White House and the Pentagon over the last week.

    … But we're betting the issue for most Americans will still be Iraq. The president can say what he wants about the attacks five years ago and the attacks that may come again someday. The polls and our own sense of things tell us that Americans care more about the soldiers who are dying every day in a war that shouldn't have begun and has no clear way of ending. Unless the president and his supporters can shift November's battlefield entirely - that is, unless they can move it away from Iraq and toward the war on terrorism more generally - then Bush's announcement about the detainees will prove to be a tactical victory in what is, again, the wrong war.

So we'll see.

Andrew Sullivan here suggests the president knows he and his party are in deep trouble this November. So he needs "a real Hail Mary pass to avoid a crushing defeat."

And he adds this -

    This is the Rove gambit: make this election a choice between legalizing torture or enabling the murderers of 9/11 to escape justice. The timing is deliberate; the exploitation of 9/11 gob-smacking; the cynicism fathomless. There is only one response: call them on it and vote for their opponents in November. And pray that in the meantime, John McCain won't lose his nerve or his integrity.

Well, McCain wants to be the next president. He has to decide what sort of president he wants to be, fair or ruthless. Which do people want these days?

See John Dickerson here discussing the matter -

    After the 9/11 attacks George Bush kept a facebook in his desk drawer. It contained the pictures, where possible, of the key al-Qaida leaders. CIA Director George Tenet gave it to him not long after the attack. When one terrorist would get killed or captured, the president would cross him off. Wednesday, with the five-year anniversary of the attack approaching, the president hauled out the facebook again. In announcing that he was bringing 14 of the world's most dangerous terrorists out of their secret prisons, he reminded the world how many bad guys we've caught.

    … The president tries to make the case that he and the Republicans are the only ones who understand the nature of the terrorist threat and how to combat it. In today's speech, he produced the best evidence to date to back up that assertion. While the Democrats complain about inattention and drift, he can say: Here's what we've been up to. And he's given Congress an assignment as well - to codify his proposal for handling detainees—in their few remaining days before members return home to campaign.

    It's one thing to say you're on the hunt for terrorists. It's more powerful to offer graphic details. The president went on at some length giving descriptions of the work necessary to capture these men. He offered lots of hard-to-pronounce names that he might normally steer away form because in this context, granularity trumps his normal love of generalizations. He outlined several al-Qaida plots foiled as a result of the secret prisons and countless others quashed in their infancy. At the same time, the White House provided a catalog of the crimes committed by the terrorists in custody.

    Bush further explained the lengths to which CIA interrogators go to follow the law, or at least the administration's reading of it. (His assurance that the CIA and Justice Department had vetted the detainee program was a stretch given their penchant for rubber-stamping his requests.) This was an effort to head off protests that his administration used torture in its secret prisons. But it was also part of the larger effort to show how careful, thoughtful, and methodical his administration can be.

    … Of course we have to take the president's word for it that all of this happened as he describes it. In the end, whether the president gets political credit for changing his detainee policy will depend largely on whether voters still trust him. The failure to find WMD or connections between Saddam and al-Qaida undermined the president's trustworthiness. As the Iraq war has gotten worse, and the administration's spin has gotten heavier, Bush's credibility has suffered more damage. Katrina compounded this problem. Now Bush is offering lots of extraordinary detail and tales of competency no one can really challenge. Will the public discount this as more spin and exaggeration? Or will it buy his story about how hard his administration has been working to protect the country behind the scenes? I thought the details Bush offered today sounded fairly persuasive. But for him to ask us to simply trust him about anything at this point is a hard sell.

Indeed it is.

And see Mark Benjamin here -

    On Wednesday afternoon, President Bush announced the transfer of 14 high-value terrorism suspects to Guantánamo for trials. He said that the suspects had been held outside the country by the CIA, and then admitted they had been detained as part of a secret program that also included specialized interrogation techniques, techniques the president described as "tough." Most observers believe the president was referring to a long-rumored program involving secret CIA prisons, or "black sites," where terrorism suspects have allegedly been sequestered, interrogated and perhaps tortured.

    Bush defended those "tough" interrogation tactics, which he described as an "alternative set of procedures" specially approved by the Department of Justice. Bush said the tactics had saved American lives.

    … Bush would not provide any specifics about the "tough" tactics, other than to insist improbably that they didn't constitute torture. "I want to be absolutely clear with our people and the world. The United States does not torture. It's against our laws, and it's against our values. I have not authorized it, and I will not authorize it." He did say, however, that the Supreme Court's recent Hamdan decision "has put in question the future of the CIA program," because it effectively bars "outrages upon personal dignity and humiliating and degrading treatment." The Hamdan decision, in other words, bars torture, and forces the United States to observe the Geneva Conventions.

    Meanwhile, across the Potomac, an Army general unveiled a new Army interrogations manual designed to fit squarely within the protections of the Geneva Conventions. That new manual specifically bars hooding, forced nudity, sexual humiliation, mock executions and many of the other "tough" techniques allegedly practiced in Iraq, Afghanistan, Guantánamo and the black sites.

    The new manual was presented by Lt. Gen. John Kimmons, the Army deputy chief of staff for intelligence in a press conference that aired live Wednesday morning on the limited-circulation Pentagon Channel. During the press conference, Kimmons expressed a view about the effectiveness of "tough" interrogation techniques utterly different from the president's.

    "No good intelligence is going to come from abusive practices," Kimmons said. "I think history tells us that. I think the empirical evidence of the past five years, hard years, tells us that." He argued that "any piece of intelligence which is obtained under duress through the use of abusive techniques would be of questionable credibility." And Kimmons conceded that bad P.R. about abuse could work against the United States in the war on terror. "It would do more harm than good when it inevitably became known that abusive practices were used," Kimmons said. "We can't afford to go there."

    Kimmons added that "our most significant successes on the battlefield - in fact, I would say all of them, almost categorically, all of them" - came from interrogators that stuck to the kinds of humane techniques framed in the new Army manual. "We don't need abusive practices in there," Kimmons said. "Nothing good will come from them."

The "sell" gets harder when your own guys say you're wrong, but the general does say he's just speaking for the military. He has no idea what the CIA and Special Ops folks do. He's just a military guy - "You abide by the Geneva Conventions, and if you don't do that, you are endangering soldiers' lives."

Benjamin notes that after referring to the secret CIA interrogation program, the White House did ask Congress to modify the War Crimes Act of 1996 to shield participants in the program and those who approved it at the Justice Department from liability - should courts now determine that the techniques approved were not just "tough" but also illegal.

But the president said, flat-out, this -

    I want to be absolutely clear with our people, and the world: The United States does not torture. It's against our laws, and it's against our values. I have not authorized it - and I will not authorize it.

And he added this -

    I cannot describe the specific methods used - I think you understand why - if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary.

You have to trust him on that. Andrew Sullivan, conservative, gay, on the staff at Time Magazine, doesn't -

    But we know - and the enemy knows - what the techniques are. They've been listed and documented and debated. We also know what was done to Khalid Sheikh Mohammed, the case cited specifically by the president in his speech yesterday - because Bush officials told us. The New York Times reported the following: "Senior officials have said Mr. Mohammed was 'waterboarded,' a technique in which his head was pushed under water and he was made to believe that he might drown."

    In another case of a detainee, Mohammed al-Qhatani, we actually have a log of what was done to him. He was deprived of sleep for 55 days, subjected to the KGB-perfected "cold cell" hypothermia treatment, and terrorized by unmuzzled dogs. Medics had to administer three bags of medical saline to Qhatani, while he was strapped to a chair, and aggressively treat him for hypothermia in hospital, before returning him to a torture cell. These facts are not disputed. Far, far worse has been done to detainees in less closely monitored "interrogations" in Afghanistan, Iraq and in the secret sites (now admitted) in Eastern Europe. (Yes, Dana, you deserve your Pulitzer.) Dozens of corpses are the result of the president's "safe and lawful" interrogation methods.

    If the president wants to argue that all this is necessary, that we need to breach the Geneva Conventions in order to protect the public, then he should say so. He should make the argument, and persuade Americans that torture should now be official policy, and seek explicit legislation amounting to a breach of the Geneva Conventions. That would be an honest position. He would gain the support of much of the Republican base, a large swathe of the conservative intelligentsia, and the contempt of the civilized world. We could then debate this honestly, including the torture techniques he has authorized and supports. Instead he lies.

    Am I splitting semantic hairs here with the word "torture"? The definition of the word, in the U.N. declaration to which the U.S. is a signatory is as follows: "[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession ... when such pain or suffering is inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

    In the cases the president cites, he authorized torture as plainly stated in U.S. law and common English. Moreover, he says he has set up an elite group trained specifically for torture, the kind of elite torture-squads once dear to South American dictators. They have, he reassures us, 250 extra hours of torture-training over regular CIA interrogators. The president is asking the Congress to establish this in law. Yes, this is America. It just no longer seems like it.

The item links to all the sources.

Sullivan is unhappy, but let us take this one step further. What if the administration was "honest" in the manner Sullivan would like, and the newest version of the Cleland Gambit was reframed? What if the challenge to congress were to dump the Geneva Conventions and make torture official American policy?

To do that you would have to argue that torture is necessary to keep America safe. You could not honestly argue that what is revealed when someone is tortured saves lives - those in excruciating pain and thinking they are about to die will say anything to stop what is happening to them, anything they think their torturer wants to hear. They make up stuff. It's useless. You end up believing foolish threats and having to verify what is said anyway. What's the point? And if something said in all of that is true, how do you know which part that is?

For detail see this -

    Besides the 14 prisoners identified on Wednesday, some officials and human rights advocates questioned the fate of dozens of others believed to have moved through the C.I.A. prison network over the past four years.

    Human Rights Watch, in response to a request from The New York Times, provided a list of 14 men who the organization believes have been secretly detained since the Sept. 11 attacks and whose whereabouts are still unknown.

    One of the men, Ibn al-Shaykh al-Libi, is believed to have given false information about links between Iraq and Al Qaeda after C.I.A. officials transferred him to Egyptian custody in 2002. Mr. al-Libi's statements were used by the Bush administration as the foundation for its claims that Iraq trained Qaeda members to use biological and chemical weapons.

    It emerged later that Mr. al-Libi had fabricated these stories while in captivity to avoid harsh treatment by his Egyptian captors.

No, the argument must be made differently. The argument would have to be that there's a deterrent effect here - the bad guys need to know that if we capture them they will be disappeared, they will face years of incredible pain, mixed with intense humiliation, and maybe they will be beaten to death, and we'll grab their wives and kids too, and sometimes there will be photos of them naked, and so on - and the kicker, we don't really give a damn what they say at any time during the process. We just let them know the true price for opposing us. That would be the argument. It's a statement, or more precisely, a warning.

The challenge to congress would be to make this our official policy, arguing those who oppose such a policy want us to appear weak and just not serious about the threats we really face. That would put people on the spot. And since we've done each of these things, with high-level approval, it would be more honest to argue it in this way. Why kid around? No one is fooled.

This whole business with giving these guys "fair" trials is a charade, given what the new rules will be - can't show you the evidence against you and what you said when you'd been awake for fifty-five hours and we had thinking you were drowning can and will be held against you. Why not get down to brass tacks? To win this thing we have to be the meanest and most unfair people on the planet. We cannot appear too pathetically idealistic to play rough. Agree or disagree. Then let the voters decide whether you should stay in office.

All else is pointless maneuvering.

[The Last Challenge]

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik