Secrets & Suits

The Chicago Tribune reports:

The Bush administration is aggressively wielding a rarely used executive power known as the state secrets privilege in an attempt to squash hard-hitting court challenges to its anti-terrorism campaign.

How the White House is using this privilege, not a law but a series of legal precedents built on national security, disturbs some civil libertarians and open-government advocates because of its sweeping power. Judges almost never challenge the government's assertion of the privilege, and it can be fatal to a plaintiff's case.

The whole story, worth reading in full, is here. Among the threatened cases: a suit over "extraordinary rendition" -- the practice of outsourcing interrogations to countries that torture -- and a suit "by a former FBI contract linguist who charges that the bureau bungled translations of terrorism intelligence before and after the Sept. 11, 2001, attacks."

Meanwhile, The New York Times gives the outsourced-torture story front-page attention here.

[Via Direland.]

Comments

[Andrew]

I have always thought that there was likely to be MORE long-term US involvement with human-rights abuses in the Arab world, if we had adhered to a "stability" model for the Mid East - Chasing Bin-Ladin, using "law-enforcement" approaches to terrorism, and trying to keep "friendly" and "secular" Srab regimes intact. When the Mid East becomes democratic, there won't be any place to outsource the torture to...right?

[spur]

when I see these kinda stories it always warms my heart to know some libertarians, Postrel comes to mind, voted for this administration in 2004...

[Hans]

Ah, but Kerry would've been sooo much worse!

It's sad when you have to choose between someone who's weak on foreign policy and bad on domestic policy, and someone who's bad on foreign policy and pretends to be good on domestic policy, but really isn't. (2 points of extra credit if you can figure out which is which).

But I, for one, welcome our new insect overlords!

[Jennifer]

Spur-
That's because they think the single most important human right is the right to low taxes.

[spur]

"Spur-
That's because they think the single most important human right is the right to low taxes."

lol -- yeah -- me personally I'd take Swedish levels of taxation if it meant no torture, murder, genocide, policestate etc. -- a false dicotomy I know, but I'm just saying...

[Dogzilla]

Outsourcing of torture? Wait 'til Lou Dobbs hears about this.

[Jennifer]

Spur-
CHRIST, what a Commie you must be! What's the use of freedom of religion and freedom from torture if the government takes an extra fifty bucks out of your wallet each week?

But seriously, your comment is a false dichotomy for now, but give it a decade or two and folks will realize you were actually a prophet.

[crimethink]

Registration... booo!

I hate to interrupt all the Chicken-Littling going on here, but remember that the Bush administration is still subject to the courts. If this privelege looks like it's being abused, the courts have the power to call bullshit.

Of course, I agree that this administration's chutzpah in trying to sneak around the Constitution is deeply disturbing. But many posters here make it sound like this nation is well on its way to becoming a totalitarian state, and we the people are powerless to prevent it. On the contrary, the US is one of the freest nations on earth, and if that ceases to be the case in the future, we will have only ourselves to blame.

[Jennifer]

Crimethink-
Yes, the courts have the power to call bullshit; I just don't think they'll use it. Even more scary, to me, is the number of people who have no problem with this administration, and make excuses for why it's not so bad. Go through the Hit and Run archives and look at all the posters who use tortured logic (no pun intended) to justify Abu Ghraib, secret detentions, extraordinary rendition, and so on and so forth. Look at how many people think that WMDs were found in Iraq, or that Hussein was behind 9-11. Look at the number of people who don't care that Iraq is turning into an Islamic theocracy governed by Sharia law. Look at the number of people who don't see a problem with "touchscreen" voting which leaves no paper trail and can't be verified. Look at how many people don't care that the company which made these voting machines is best buddies with the administration.

I, personally, can't think of a goddamned thing I can do to stop it. What would you suggest?

[Jennifer]

And that last question wasn't sarcastic. What the hell can an average non-wealthy, non-celebrity person DO when she sees her country going down the drain? What the fuck am I supposed to DO?

[Pavel]

What the fuck am I supposed to DO?

You can't do anything. Learn to enjoy it.

Popcorn anyone?

[Rick Barton]

When the Mid East becomes democratic, there won't be any place to outsource the torture to...right?

Democratically elected governments do hideous things. And, there's Gitmo.

[crimethink]

Jennifer,

The first thing is, we have to keep things in perspective. The actions of this administration pale in comparison to some of the power grabs our nation has seen before -- and survived. Criticism of the government has been explicitly banned; habeas corpus has been suspended; states have been forced to ratify ammendments; the prez has threatened to stack the Supreme Court with new nominees of his choosing. And yet this is still, on the balance, the land of the free.

But if you want to do something about the injustices we see now, your options are pretty much the same as they always have been: persuade other people, join organizations that support civil rights, and vote (especially in local elections). But don't just throw up your hands in despair until you've done what you can.

[Boromir]

Yes, there is weakness. Yet there is also courage, and strength to be found in men. But you will not see it.

[Sporadic]

Some brilliant logic above.

Essentially spur and company are saying that they would compromise their freedom for their safety. I thought that was the argument against the Patriot Act; freedom vs. safety. Consistency guys, c'mon!

And then there's the problem of semantics. What is torture? Because the NYTimes says "torture" we automatically picture what?

Inflicting gratuitous pain is widely known not to produce accurate information so it's unlikely we're giving people over to be dropped into industrial shredders and the like. People will say just about anything to keep from being turned in to mulch.

What is more likely is that, since our own laws are so relatively restrictive, some friends of ours are simply doing a little bit more than we can get away with ourselves.

[Shem]

The actions of this administration pale in comparison to some of the power grabs our nation has seen before -- and survived.

Such as? I mean, I can think of a few situations which are comparable in theory (Lincoln springs to mind) but at least in those days the government was unable to monitor everything that went on. In a world where information sharing is becoming more and more ubiquitous and sophisticated, how, other than strong and steadfast rules against this sort of power grab can any sort of freedom be guaranteed?

[JCM]

I believe, Shem, that's what the 2nd Amendment is all about.

[Shem]

Well, Sporadic, I guess those universal rights in the, uh, Bill of Rights we're so keen on exporting to Iraq aren't worth anything after all, since it's perfectly all right for us to tacitly approve of torture by sending prisoners overseas.

And attaching electrodes to someone's genitals is torture. Putting someone into naked human pyramids is torture. Even psychological techniques like using red markers to simulate menstrual blood is torture. You can try to justify it by saying that it isn't so bad since it's not enough to kill, but that doesn't change the fact that it's intentional infliction of mental or physical anguish, an option we, as the nominal good guys, simply aren't supposed to allow ourselves.

[Sporadic]

Shem,

You're bypassing the question of what exactly is torture.

Our outsourcing consists of people actually having their genitals electrocuted? I didn't know that; please provide the link. Oh, oh. You're talking about the fraternity hazing that was going on over their with the National Guard part timers. You were projecting, . . . I get it.

You're assuming the worst because you have a knee jerk anti-American reaction. We're the imperialistic superpower so anything the NYTImes or foreign press says must be true.

And to be more realistic; what is the problem with causing a "bad guy" some mental discomfort if it will save our countrymen and possibly even our family members? I'd cause you no end of mental anguish if it would save my family.

So we capture someone from al Qaeda, someone who's been involved in blowing up innocent Arab civilians and sawing off the heads of their captives. We can send them to some "friends" of ours where he will experience mostly mental anguish in order to extract information and possibly save American and Iraqi lives. Or, to do it your way and more innocent people die while the murderer is spared any discomfort.

[Jennifer]

Assuming "sporadic" isn't kidding, this is exactly the attitude I was talking about before. And even if he is kidding, there are plenty like him who aren't.

[Sporadic]

Jennifer,

Leaving aside your earlier compromises of freedom for safety; do you really believe there is never a valid reason to extract information from a known murderer to prevent further murders?

I know you don't personally think of our troops in harm's way and since we've done such a great job at dispersing al Qaeda, you don't feel immediately threatened. But, if the threat was tangible to you, for whatever reason, you can honestly put the comfort level of a known murderer over the lives of innocent civilians?

[thoreau]

Sporadic, if we were talking about people who had been found guilty beyond a reasonable doubt after a fair trial then you might have a point. But most of the people being tortured by our government or at our government's behest haven't been put on trial.

I somehow doubt you'll be impressed by that argument, of course. Hopefully you'll never learn the hard way that it's dangerous to trust the government to only torture guilty people.

[Sporadic]

thoreau

You've bypassed my question, a logical one and taken my trust of our military to an absurd position.

If that is the best you can do I guess I'll have to accept it but it leaves a lot unanswered.

Enemy combatants are not guaranteed a trial of any sort, this is war, not prime time TV. If you think that our military is apprehending innocent people for the sole purpose of torturing them, I can't seem to follow the logic in that. What purpose would it serve?

It reminds me of some of the stories I heard coming out of G'tmo. British citizens of Arab descent were complaining about being held without trial or representation. The stories, if they were from the UK anyways, always neglected to mention that the Brit was picked up in remotest Afghanistan with an AK-47 and a few RPGs on his person.

The scenario you propose simply isn't happening but if it makes you feel better to believe so, . . .

[thoreau]

If you think that our military is apprehending innocent people for the sole purpose of torturing them, I can't seem to follow the logic in that.

Not deliberately, but mistakes can be made.

And while some of the people being tortured are undoubtedly guilty, I'd like to see some process to sort out the wheat from the chaff to reduce the number of innocents being tortured. Is that such a bad goal?

If the guys at Gitmo really were Arabs wandering around Tora Bora with RPGs and automatic rifles, well, probably Al Qaeda. Then again, in a lawless place like Afghanistan, even a lot of non-terrorists carry rifles. How about a trial to verify the government's story? Is that too much to ask?

Finally, some of the guys picked up for carrying explosives near the border with Waziristan weren't actually found doing that by our soldiers. They were brought to our troops by Afghan warlords on the US payroll, who need to impress their paymasters. And these warlords have been known to send some non-terrorists to Gitmo from time to time for failure to do, well, whatever it is that corrupt warlords wanted them to do.

So while there are undoubtedly quite a few bad guys in custody, it might be nice to have some sort of trial to identify the innocent guys and set them free before sending them to Pfc. England's frat party.

Finally, your point about them being taken in war and not having the right to a trial: I'm no lawyer, so I'm willing to concede (for the sake of argument, at least) that there's nothing in the law to stop the gov't from doing whatever they want to these guys. For all I know it may be perfectly legal to detain them without trial and torture them. But I have never argued the legality of doing this, I've argued the prudence of doing it. There are plenty of things that are legal but aren't a good idea.

[Mo]

Spradic,
Just because it doesn't serve a purpose doesn't mean it ain't happening. Why did we release a bunch of people from because they had no terrorist ties? For fun? Or that we happened to pick up a bunch of innocent people, on accident. And I oppose legalizing torture because it's a mighty slippery slope before we use it beyond the ticking time bomb (or the "bomb" is 10 kilos of coke landing at a port).

Information gathered by torture is unreliable anyways, so what's the point besides evil catharsis?

[Shem]

Our outsourcing consists of people actually having their genitals electrocuted? I didn't know that; please provide the link. Oh, oh. You're talking about the fraternity hazing that was going on over their with the National Guard part timers. You were projecting, . . . I get it.

So, if electrodes are the sort of things that we feel comfortable using, then what sort of actions do you suppose we would feel the need to import prisoners to have carried out?

And, for the record, I didn't bypass the question of what constitutes torture. If you'll reread my response, you'll see that I define it as intentional infliction of mental or physical anguish.

And if, as you say, torture is of such little use since, as you so eloquently put it, "people will say almost anything to keep from being turned to mulch" then why does the gov't need a free hand to carry out these tactics? Catharsis?

[Gary Gunnels]

Andrew,

When the Mid East becomes democratic, there won't be any place to outsource the torture to...right?

(a) Democracies aren't always squemish about the use of torture.

(b) Are you trying to excuse Bush administration actions?

crimethink,

If this privelege looks like it's being abused, the courts have the power to call bullshit.

This coming from a guy I had to teach about the Court's abortion right jurisprudence. 🙂 You'll find that the courts are loathe to question any President in this area of the President's power.

Sporadic,

You're bypassing the question of what exactly is torture.

This depends on who you ask and what legal authority you seek out. I seriously doubt that you could give us an adequate definition of torture without consulting Google. That you are asking someone to do what you likely cannot do tells me that yours is a knee-jerk pro-American reaction.

And to be more realistic; what is the problem with causing a "bad guy" some mental discomfort if it will save our countrymen and possibly even our family members?

Well, that is "one" position; its not the only position of course. Indeed, there is nothing more "realistic" about your position than someone who opposes torture categorically. After all, is it "realistic" to presume that because a government uses torture against one group of people you call "bad guys," that it will stop there? Different perspectives produce different positions. Your attempt to claim what is and what is not "realistic" falls on deaf ears because of that fact.

thoreau,

You bastard. You made most of my points. 🙂

Finally, your point about them being taken in war and not having the right to a trial: I'm no lawyer, so I'm willing to concede (for the sake of argument, at least) that there's nothing in the law to stop the gov't from doing whatever they want to these guys.

Actually, if you are going do anything but house them in a camp for the duration, if you are going apply some punishment to them, then a POW has a right to trial - and it has to be more than sort of drumhead court. The problem arises when the Bush administration starts arguing over exactly has POW status as recognized by the Geneva Convention. As the language of the conventions is hardly crystal clear on these matters, and the Executive branch is the primary interpreter of that language, you see where the problem arises. However, even if they are not considered to be covered by the conventions, the Supreme Court has stated in the decision last summer that the vast majority (all?) of them (and certainly all at Gitmo and any place like it) are due at least some process (habeas corpus essentially) under the Constitution.

[Gary Gunnels]

thoreau,

The take-away is that Sporadic is flat out wrong when he claims that enemy combatants are due no process or trial-like proceedings.

[Gary Gunnels]

Jennifer,

So much for any new tax cuts in the near future: http://www.msnbc.msn.com/id/7112290/

Combine this story with Bush's willingness to increase the level of income at which SSI is taxed and you'll see how off the mark libertarians who voted for Bush were.

[Andrew]

thoreau

We could have sent these guys to GITMO now - sort of tells you what ISN'T happening at GITMO...right?

I don't recall that releasing - or even trying - any of the GITMO detainess was one of Kerry's campaign promises.

[Jennifer]

Gary-
I know Bush lied in more ways than one, including tax cuts and the alleged 'fiscal responsibility' of his party; I'm just explaining the mentality of the ones who convinced themselves that Bush was the best one to vote for, for freedom's sake.

[Russ D]

Our outsourcing consists of people actually having their genitals electrocuted? I didn't know that; please provide the link. Oh, oh. You're talking about the fraternity hazing that was going on over their with the National Guard part timers. You were projecting, . . . I get it.

Hazing? Oh yeah, I forgot! Those detainees were actually going through an initiation ritual in order to join the US military!

[grylliade]

Leaving aside your earlier compromises of freedom for safety; do you really believe there is never a valid reason to extract information from a known murderer to prevent further murders?

Ah, yes, the argumentum ad 24. Tell you what: Let's keep torture illegal, and let people justify it if there's a nuclear bomb about to go off in LA and they need to find out where it is quickly. In other words, don't give the government a blank check to torture when it's "necessary." They'll just expand the definition of necessary. Instead, let them face criminal penalties if they use torture, unless they can convince a judge that it was actually for some greater good. And even then, I personally think it should only reduce their jail time. After all, if thousands of lives are at stake, shouldn't you be willing to risk punishment to save them?

Enemy combatants are not guaranteed a trial of any sort, this is war, not prime time TV.

I refer you to the relevant text from the sixth amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

As far as I can tell, that does indeed guarantee them the right to a trial. It doesn't anywhere state that the rights granted by the constitution are limited to US citizens; as far as I can tell, such rights extend to everyone under US law. This isn't some pie-in-the-sky, book-learning liberalism; this is saying that we don't trust the government with the power to imprison people, and apparently punish them, just because they're "enemy combatants," however that's defined. Giving the government that power is more dangerous than letting terrorists walk the streets. The government can protect us from terrorists, or or own precautions and/or weapons can; who will protect us from the government?

[thoreau]

I don't recall that releasing - or even trying - any of the GITMO detainess was one of Kerry's campaign promises.

Good thing I didn't sing Kerry's praises in this thread then!

Ah, yes, the argumentum ad 24. Tell you what: Let's keep torture illegal, and let people justify it if there's a nuclear bomb about to go off in LA and they need to find out where it is quickly.

In all fairness, 24 has given torture a rather mixed review. So far this year they've tortured 2 people who turned out to be innocent (one was actually framed by the bad guys). Jack tortured another guy who seems to be innocent but we aren't sure yet. The guy did break and give information, but it looks like he's an innocent guy who didn't realize that his business partners were crooked. All he said after "breaking" was "Look, I don't know anything, but if you give me my laptop I'll try to find out what my partners are up to."

Finally, early in this season Jack tortured a genuinely bad guy and got useful info, but his technique was so extreme that nobody could seriously suggest using it in real life.

In past seasons, torture has gotten mixed results as well. A few villains have resisted torture, including one who pretended to break and gave a plausible story that turned out to be false. (Jack figured it out because she adamantly insisted that the bomb was far away from the airport so the agents need to all get far away from the airport and start searching somewhere other than the airport. Really, just get all of your agents far away from the airport because there's no bomb at the airport!)

Really, the most successful torture technique on 24 has been to threaten to kill a villain's children.

[Gary Gunnels]

thoreau,

Good thing I didn't sing Kerry's praises in this thread then!

Yes, I was wondering about that remark myself. 🙂

[thoreau]

Of course, most people here would probably approve of one of the torture scenes in the current season of 24:

The Defense Secretary is kidnapped after visiting his son. In fact, he's kidnapped while standing in front of his son's house. The terrorists don't go inside the house to get the son. So the federal agents want to know if the son was involved, because politically he's very leftist and was planning on protesting at a defense contractor's factory where his father was going to give a speech.

So most people here would probably just see a leftist with shaggy hair and be like "Yeah, torture that peacenik!" And since the method they used was sensory deprivation and disorientation rather than pain, one could argue that it's "no big deal."

But I think everybody here would agree that torturing Agent Sarah Gavin was just wrong. I mean, she was framed, and she's hot. So no torturing her. Or, if they absolutely must torture her, at least bring out the whips, chains, and leather outfits!

[John]

Yeah, Dogzilla!

How many unionized American torturers have lost their jobs because we outsource torture now?

We need immediate Anti Dumping duties on thumbscrews & electrical wire!

[Dick Gephardt]

I am proud to say that throughout my time in Congress I never wavered in supporting the rights of the American torturer to a decent wage, affordable housing, affordable healthcare, high quality electrical equipment, and union representation!

How we treat our hard-working torturers, thugs, and other assorted goons is a matter of basic decency and economic justice.

[joe]

There he goes again. Rep. Gephardt's determination to deny hardworking Syrian torturers the opportunity to raise their living standards is a continuation of the shameful racism that is the central, defining characteristic of the history of organized labor.

There is no other possible reason to object to sending Americans overseas to be tortured - none at all - except for the desire to see dark-skinned people live in poverty. Absolutely none.

- joe's "free trading" twin

[crimethink]

Gary Gunnels,

You'll find that the courts are loathe to question any President in this area of the President's power.

In that case, the wimpiness of the judicial branch is as much to blame as the brazenness of the executive. I'm not sure how similar cases have played out in the past, but if the courts refuse to question the president's assertion of the privilege -- even if it's plain to see it's being abused -- that means there is no check to the president's power in this area. Would the courts abdicate their responsibility in such a way?