Is this all a bad dream? Or is this really who the President is seeking to have confirmed to the Supreme Court in the post-Brownie era? I'm somewhat flabbergasted, I have to say. One of the (very) few things that has impressed me of Bush of late was his willingness to not buy into all the 'diversity' hoopla and pick a hugely qualified judge to lead the Supreme Court. He did that, in spades, with John Roberts. But, in one shot, he's now squandered all that good will. Yes, yes, I know, she's hard-working, smart, loyal, had a quite distinguished career as a practitioner in a Dallas firm, was a fine Lottery Commissioner of Texas, and so on. But there are vastly more qualified individuals worthy of putting on our greatest court. I repeat: vastly. This is worse than Poppy's cynical appointment of a relatively under-qualified Clarence Thomas--who at least appeared to have enough relevant experience that he wouldn't require a decent dollop of on-the-job-training (at 60!). I'm hugely underwhelmed.
Look, it's not even that this is so transparently placing a loyalist on the court who will be predictably Executive Branch/GWOT-friendly in her opinions (with some evangelical & crude originalist shadings perhaps? ed. note: By crude I mean originalism without the intellectual firepower of a Scalia). It's not just that it's a lame diversity play (Bush couldn't stop talking about all the glass ceilings she had burst through today). It's not even that she was never a judge, as there have been quite a few private sector attorneys appointed to the bench who served with distinction.
It's ultimately that she's just not Supreme Court timber. Harry Reid can cheer-lead her if he wishes, showing major Democrats don't care a whit about serious constitutional credentials on the bench either, but those of us who are proud of this court must demand better. We should root for her defeat--perhaps by an alliance of thinking Republicans and Democrats. The Achilles heel of this President has become such displays of bovine worship at the altar of some warped conception of loyalty. Be loyal, yes, but demand excellence and competence and, yes, accountability in critical postings dear God! I'm now forced to conclude that Bush, after such a hugely good show with Roberts, is nevertheless willing to be unserious and even reckless, more so than his father, with appointments to the highest court in our land. Look, she might prove a Scalia rubber-stamp, and conservatives will be happy that she votes 'right' (the coded message Cheney was peddling today to Limbaugh). But a man of character and vision wouldn't stoop to such a low threshold of what makes a good SCOTUS pick. He would look for an intellectual leader, a bona fide constitutional thinker. We all know who they are, and that there were far more distinguished picks available. Instead, Bush went for a relative mediocrity. This is not to take anything away from a woman who has had a very distinguished career in private practice. No, Locke Liddell & Sapp is not Covington or Williams & Connolly or Cravath or Sullivan & Cromwell. Still, it's a decent firm in an important American city that she rose to co-head. But a hard-working law firm manager, a decent litigator, a tough cookie who gets results--these are not the credentials for our highest court. Nor should it be merely dogged loyalty to a President. What matters is serious intellectual depth, profound understanding of constitutional law, potential greatness. She fails on all three counts. And, with all due respect to a successful private sector attorney, I have to say rather dismally.
Lots of developments:
1) Army doctors may have been involved in torture:
Medical personnel helped tailor interrogations to the physical and mental conditions of individual detainees at Abu Ghraib prison in Iraq and the U.S. military prison at Guantanamo Bay, Cuba, according to the report. It says that medical workers gave interrogators access to patient medical files, and that psychiatrists and other physicians collaborated with interrogators and guards who, in turn, deprived detainees of sleep, restricted them to diets of bread and water and exposed them to extreme heat and cold. "Clearly, the medical personnel who helped to develop and execute aggressive counter-resistance plans thereby breached the laws of war," says the four-page article labeled "Perspective."
"The conclusion that doctors participated in torture is premature, but there is probable cause for suspecting it."
2) More developments on the "rendition" practice front:
On Oct. 5, 2001, Pakistani authorities seized Habib, and over three weeks, he asserts in a memorandum filed in U.S. District Court in the District of Columbia, three Americans interrogated him.
The petition says he was taken to an airfield where, during a struggle, he was beaten by several people who spoke American-accented English. The men cut off his clothes, one placed a foot on his neck "and posed while another took pictures," the document says.
He was then flown to Egypt, it alleges, and spent six months in custody in a barren, 6-foot-by-8-foot cell, where he slept on the concrete floor with one blanket. During interrogations, Habib was "sometimes suspended from hooks on the wall" and repeatedly kicked, punched, beaten with a stick, rammed with an electric cattle prod and doused with cold water when he fell asleep, the petition says.
He was suspended from hooks while his feet resting on the side of a large cylindrical drum attached to wires and a battery, the document says. "When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity" went through the drum, it says. "The action of Mr. Habib 'dancing' on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib finally fainted."
At other times, the petition alleges, he was placed in water-filled rooms where he had to stand on tiptoe for hours to avoid drowning, or in ankle-deep water that his interrogators told him "was wired to an electric current, and that unless Mr. Habib confessed, they would throw the switch and electrocute him."
3) Then there is this NYT piece. Not suprisingly, it's a classic Times piece scheduled, shall we say, for the 'right'time (gettin' everyone ready for ye olde Gonzalez hearings). Put differently, and unlike the WaPo pieces, there is nothing really new in it. It's about the "migration" issue (Gitmo to Bagram to Abu Ghraib) and the FBI reports I've blogged earlier. Still, consider it a refresher and go read it.
4) Speaking of Gonzalez, don't miss this piece:
Alberto R. Gonzales, who goes before the Senate on Thursday as President Bush's pick for attorney general, plans to offer an unapologetic defense of a draft memorandum he wrote in 2002 describing parts of the Geneva Conventions as "quaint" and "obsolete," administration officials said on Wednesday. Critics of the Bush administration, who stepped up their attacks Wednesday on Mr. Gonzales, the White House counsel, have called on him to repudiate the memorandum, which held that the Geneva Conventions did not apply to prisoners taken in the war in Afghanistan.
But a senior administration official who is involved in preparing Mr. Gonzales for what could prove a contentious hearing said that he would not back down from the legal rationale he had laid out in the memorandum.
"He'll explain what he meant - that he stands by the decision not to grant full protection to Al Qaeda and the Taliban under the Geneva Conventions and that that position was correct legally and for important public policy reasons," the administration official said.
On Wednesday night, The Associated Press released the text of what it said was the opening statement that Mr. Gonzales planned to deliver on Thursday, in which he said he would abide by treaties prohibiting the torture of prisoners.
Here's the part of the text that matters:
As we fight the War on Terror, we must always honor and observe the principles that make our society so unique and worthy of protection. We must be committed to preserving civil rights and civil liberties. I look forward if I am confirmed to working with this Committee, the Congress, and the public to ensure that we are doing all we can to do so. Although we may have differences from time to time, we all love our country and want to protect it while remaining true to our nation’s highest ideals. Working together, we can accomplish that goal.
After the attacks of 9/11, our government had fundamental decisions to make concerning how to apply treaties and U.S. law to an enemy that does not wear a uniform, owes no allegiance to any country, is not a party to any treaties, and – most importantly – does not fight according to the laws of war.
As we have debated these questions, the President has made clear that he is prepared to protect and defend the United States and its citizens, and will do so vigorously, but always in a manner consistent with our nation’s values and applicable law, including our treaty obligations. I pledge that, if I am confirmed as Attorney General, I will abide by those commitments.
I'm sorry, but that's a tad too breezy and unapologetic for me. Regular readers will recall that I had a very visceral (and, in parts, admitedly sophomoric) reaction to the Gonzalez-approved August 1, 2002 memo that, as I wrote then, basically defined torture down. Put simply, I was disgusted by the memo on both a visceral and intellectual level. Anthony Kronman's thesis, in terms of the dearth of any true lawyer-statesmen still around, seems well borne out by such episodes. Gonzalez smelled too much like a dutiful yes-man, divorced from a moral ballast and his duty to provide both legally and, yes, ethically coherent advice. As others have previously written:
It's hard to believe that the memo was poorly researched, so it makes one wonder whether the Justice Department was being disingenuous. A lawyer who is arguing to a court is allowed to be disingenuous because it is up to the judge to evaluate that argument against the adversary's and decide what the law is. But a lawyer who is writing an opinion letter is ethically bound to be frank.
How could Bybee have written such a scandalous opinion? Lawyers who tell their clients what they want to hear -- rather than the advice they need -- are sometimes rewarded with career advancement. Last year, Jay Bybee was appointed to the U.S. Court of Appeals for the 9th Circuit.
There is a proud tradition of lawyers bravely telling clients not what they want to hear, but what the law requires. Judge Bybee's actions stand in stark contrast to the best traditions of the bar.
Gonzalez, as White House counsel, is complicit in Judge Bybee's scummy memo. And yet. Glenn is right that true opponents of torture might not be best served by using the Gonzalez hearings as a lightning-rod-under-the-klieg-lights-full- blown-gotcha-exercise. Why? The story line will go something like this. With fellow Hispanic (and conveniently Democratic) Ken Salazar introducing him (no divisive Ashcroftian biblical-looking scowling white man he!), talk will swiftly turn to the immediate post 9/11 climate of hysteria and panic. The constitution (and treaties!) aren't a suicide pact and all that. Orrin Hatch is on the record Gonzalez will get confirmed. Specter will probe, as will other moderate Republicans, but their will be no fatal blows landed likely. And this whole massively important torture scandal will degenerate into political gotcha, spin, the worst Washington shenanigans and tiresome C-SPAN preening, talk show crapola, assorted bullsh%t. But all this is just too important for it to be handled in such manner. Gonzalez must be asked probing questions and pushed hard, of course. But let's not make this hearing a referendum on the torture scandals that continue to grow and grow. Such a spectacle will cheapen events of mass import to our moral fiber, our ethical moorings, America's conduct in the war.
Like Andrew, regular readers know I long ago discounted the risible
'just a few bad apples in Abu Ghraib argument' (and the related 'whatsa matter with a couple frat hazings gone overboard with a couple hapless Mohammeds' line that cretins in the blogosphere, on the Hill, and elsewhere have regularly trumpeted with astounding imbecility).
Let's retire at the start the notion that the only torture that has been used by the U.S. has been against known members of al Qaeda. This is not true. Many innocent men and boys were raped, brutally beaten, crucified for hours (a more accurate term than put in "stress positions"), left in their own excrement, sodomized, electrocuted, had chemicals from fluorescent lights poured on them, forced to lie down on burning metal till they were unrecognizable from burns - all this in Iraq alone, at several prisons as well as Abu Ghraib. I spent a week reading all the official reports over Christmas for a forthcoming review essay. Abu Ghraib is but one aspect of a pervasive pattern of torture and abuse that, in my view, is only beginning to sink in.
Indeed. And see Anne Applebaum too:
Although many people bear some responsibility for these abuses, Alberto Gonzales, along with Defense Secretary Donald Rumsfeld, is among those who bear the most responsibility. It was Gonzales who led the administration's internal discussion of what qualified as torture. It was Gonzales who advised the president that the Geneva Conventions did not apply to people captured in Afghanistan. It was Gonzales who helped craft some of the administration's worst domestic decisions, including the indefinite detention, without access to lawyers, of U.S. citizens Jose Padilla and Yaser Esam Hamdi.
By nominating Gonzales to his Cabinet, the president has demonstrated not only that he is undisturbed by these aberrations, but that he still doesn't understand the nature of the international conflict which he says he is fighting. Like communism, radical Islam is an ideology that people will die for. To fight it, the United States needs not just to show off its fancy weapons systems but also to prove to the Islamic world that democratic values, in some moderate Islamic form, will give them better lives. The Cold War ended because Eastern Europeans were clamoring to join the West; the war on terrorism will be over when moderate Muslims abandon the radicals and join us. They will not do so if our system promotes people who support legal arguments for human rights abuse.
The president's opponents -- Democrats, the ACLU, People for the American Way -- are lining up to oppose Gonzales. But there are Republicans who ought to understand the deeper issues at stake as well. I am thinking of Sen. Sam Brownback of Kansas, who was the moving force behind the recent passage of the North Korean Human Rights Act. I am also thinking of Sen. Rick Santorum of Pennsylvania, who has been an eloquent spokesman on behalf of the victims of religious persecution around the world. Other influential critics of international human rights abuses include Sen. Richard Lugar of Indiana, whose presence in Kiev last month had an enormous, uplifting impact on Ukrainian human rights demonstrators; Sen. John McCain of Arizona, who has given his time to promote human rights even in obscure, unfashionable places such as Kazakhstan and Belarus; Sen. Chuck Hagel of Nebraska, who has called for linking of trade agreements to human rights; and Sen. Jon Kyl of Arizona, a member of the Judiciary Committee (which will pose questions to Gonzales) and a politician who can speak knowledgeably about human rights issues in Russia, China and the Middle East. [emphasis added]
My heart yells out in agreement with Applebaum; my brain gives me pause for a couple reasons. One, Arab states have so often been involved in grotesque torture that Abu Ghraib, while not exactly a vote-getter for us or Ayad, has not resonated as much in the Arab world as one might think--so that the tactical setback vis-a-vis our conflict with radical Islam (in relation to the torture scandals) is not as dramatic as Applebaum portrays. And the accountability, while not having gone high enough in the chain of command (Karpinski'd should become a new word--short-hand for ass-covering higher ups--as in, 'He got Karpinski'd--she took the bullet for him!) has differentiated American democracy from Arab autocracies in terms of the reaction to the scandal. This, to a fashion, has been noted in the region. Second, I am a pragmatist. I know and feel Gonzalez is going to get the nod. To pillory him and make his hearings an anti-torture crusade, spearheaded by everyone from the ACLU to a few rogue Republican senators--and then still have him confirmed, well, it will accomplish little. What is needed is a dispassionate hearing that neverthless delves deeply into the issues raised by, for instance, the August '02 memo. But this torture story is so much bigger than Alberto Gonzalez. Trust me. Let's not make his (non)confirmation a referendum on whether organ failure has to occur for something to be called torture. Gonzalez should never have lent the White House Counsel's office to such morally defunct and, too boot, poor legal advice. But there aren't any Dean Achesons around, alas. And trying to Bork Gonzalez in some Washington firestorm simply isn't the best way to get to the bottom of the torture scandals that look to grow and grow. Put differently, and if you were really looking to go for the jugular, this just ain't the right time for an attempted TKO. Keep (at least some) of the powder dry--or risk a setback in getting to the real bottom of how widespread torture has been during the post 9/11 era through Cuba, Iraq, Afghanistan and likely points beyond.
People often mock Dubya's "freedom is on the march" locutions. True, they often do ring quite hollow given the immense complexities we face in Iraq and democracy roll-backs in soi disant GWOT allied countries like Uzbekistan and Russia. That said, his statements can't simply be dismissed out of hand completely. Check out this NYT dispatch from northeastern Syria re: one example of democratic stirrings caused by American involvement in Iraq.
The Iraqi election next month may be evoking skepticism in much of the world, but here in northeastern Syria, home to concentrations of several ethnic minorities, it is evoking a kind of earnest hope.
"I believe democracy in Iraq must succeed," Vahan Kirakos, a Syrian of Armenian ethnicity, said recently. "Iraq is like the stone thrown into the pool."
Though Syria's Constitution grants equal opportunity to all ethnic and religious groups in this very diverse country, minority activists say their rights are far from equal. They may not form legal political parties or publish newspapers in minority languages. More than 150,000 members of Syria's largest minority, the Kurds, are denied citizenship.
Minority issues remain one of the infamous "red lines," the litany of forbidden topics that Syrians have long avoided mentioning in public.
But in the year and a half since Saddam Hussein was removed from power in Iraq, that has begun to change, with minority activists beginning to speak openly of their hopes that a ripple effect from next door may bring changes at home.
And here in Syria's far northeastern province of Hasakah, which borders Turkey and Iraq, there are signs of a new restlessness...
...In late October, more than 2,000 Assyrian Christians in the provincial capital, Hasakah City, held a demonstration calling for equal treatment by the local police. The demonstration, which Hasakah residents say was the first time Assyrians in Syria held a public protest, followed an episode in which two Christians were killed by Muslims who called them "Bush supporters," and "Christian dogs."
Nimrod Sulayman, a former member of the Syrian Communist Party's central committee, said Hasakah's proximity to Iraq and demographic diversity meant that residents of the province were watching events in Iraq and taking inspiration from the freedoms being introduced there.
"This Assyrian protest in Hasakah was caused by a personal dispute, but the way the people wanted their problem solved was a result of the Iraqi impact," Mr. Sulayman said. "They see that demonstrating is a civilized way to express a position."
"Since the war in Iraq, this complex of fear has been broken, and we feel greater freedom to express ourselves," he added.
There are cautionary notes, however:
Bachir Isaac Saadi, the chairman of the political bureau of the Assyrian Democratic Organization, said that throughout Syria, anger over the American presence in Iraq had set off a sharp rise in Islamist sentiment, which was creating difficulties for Syria's Christian minority.
"Christians in Syria aren't afraid of the government any longer," Mr. Saadi said. "They're afraid of their neighbors."
I've also heard first-hand reports that mosque attendance, in the face of wide-spread feelings of Arab "humiliation," is up significantly in parts of Syria.
Still, if policies are put in place that ease such democratization along, rather than brutishly force it down people's throats (risking nationalistic and/or Islamic backlashes in the process), it is possible to see (particularly in conjunction with an Arab-Israeli peace) the beginnings of a New Middle East ten or so years hence. Rosy Shimon Peres-like dreamy talk? Yes, to a fashion. But at least something is happening in the region to stir movement--and the catalyst is Iraq, of course. What Richard Haas has called America's "democracy exception" policy in the Middle East (where we seemed content to allow autocrats to stay in power in that region while fighting much harder for democratization in places like Asia, Eastern Europe, and Latin America during the Cold War), while not necessarily having come to an end--is certainly undergoing reappraisal forced on, not only by events in Iraq, but also by more modest policy initiatives stemming from the watered-down Broader Middle East/N. Africa Partnership. And, if we believe democratic reform, economic liberalization, and a solution to regional conflicts can bring about peace and prosperty in this so critical region--well, isn't it nice to see an Administration really grappling with these issues rather than just status quo'ing along? Of course, it's a matter of degrees. Iraq, for reasons I have extensively detailed, was a worthy candidate for regime change. Marching into Iran, say, or Syria--would be a massive blunder that would lead too many in the region to think we were simply looking to occupy the entire Middle Eastern land mass. But strongly encouraging reformist agendas, ones calibrated so as to avoid nationalistic and/or religious backlashes, in conjuction with progress in Iraq, economic liberalization, the Palestine issue--all could lead us to a happier place than where we sit today.
After all, isn't it a happy event that this man simply hasn't been arrested or worse?
Mr. Kirakos, the Armenian activist, has even begun a bid for Syria's presidency, an astoundingly brazen gesture in a country where the Assad family has ruled unchallenged for more than 30 years.
The Christian Mr. Kirakos's presidential run - which he announced in September on Elaph.com, a pro-democracy Web site - is illegal, as Syria's Constitution stipulates that the president must be a Muslim. But though he lost his engineering job as a result of his activism and his family has received uncomfortable phone calls from the secret police, Mr. Kirakos is unfazed.
"I carry a Syrian citizenship which is not equal to Ahmed's citizenship," he said, using the common Muslim name as shorthand for Syria's Sunni majority. "It is the Syrian Constitution that must change. We should be writing a constitution that guarantees equal rights for everyone.
Talk of equal citizenship and changing constitutions. This isn't Hafez al-Asad's Syria, is it?
We often think of lawyers as advocates, such as courtroom lawyers who make zealous arguments that may or may not convince a judge. But the Department of Justice lawyers who wrote the memo on interrogation and torture were acting as advisers. As such, their responsibility was to advise their "client," the executive branch, as to what the law requires. Lawyers routinely provide clients with such "opinion letters" to help sort out whether proposed conduct is legal, illegal or somewhere in between.
The Justice Department memo assured the Bush administration of three things: First, that interrogators could cause a lot of pain without crossing the line to torture. Second, that even though the United States criminalizes torture and has signed a treaty outlawing it, interrogators could torture prisoners as long as the president authorized it. Third, that even if those interrogators were later prosecuted for engaging in torture, there were legal defenses they could use to avoid accountability.
Read the whole thing.
The final two sentences might be most important.
But we don't really live in that kind of era anymore, do we?