NEOAVATARA

http://www.cnn.com/2009/POLITICS/04/24/prisoners.photos/index.html

The arguments and discussions surrounding CIA interrogations, wiretapping, and the effectiveness of those techniques have hit a fevered pitch this week with the release of the memos stating the legal case for harsh interrogations.  Both sides appear inflamed by the memos, and very little truth is coming out to make an intellectual, rational decision.

I figured I would try to ferret out the facts; most of these I only accepted if I could find nonpartisan or bipartisan support for the statements.  Otherwise, the other side would just state it is political fantasy.

1.  Legality of Harsh Interrogations

This, of course, it the biggest question. Were the interrogations legal to begin with?

The easiest answer is:  maybe.  I know, not definitive, but probably the most accurate.  Frankly, there were not strict laws dictating the definition of torture before September 11, 2001.  Early in the Bush Administration, the Justice Department declared the standard to be only ”organ failure, impairment of bodily function, or even death” constitutes torture punishable by law.  That, of course, was way too extreme.  But in hindsight, this was not the standard that was applied; a much stricter standard was used internally, and the current memo releases show that.

Congress and President Bush finally signed a revised version of the rules, that can be seen, or below, or read in its entirety here.

any act, directed against an individual in the offender’s custody or physical control, by which severe pain or sufferingwhether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind . . . (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions),

Even under this most current law, waterboarding may or may not be considered torture under American statute, depending on whether you feel it is causing “severe mental pain or suffering” or  “prolonged mental harm” as the statute dictates.

John Yoo, President Bush’s Chief architect of the legal construct for the interrogations, wrote a long piece that gave his side of the story, that can be read here.  He makes a long and at least some what intellectual defense of Bush era initiatives.

• There was much misstated facts about the Geneva conventions.  However, Al Qaeda was not, because they were a ‘state-less’ group.
• When Gonzales said in the memo that this new war made some provisions of the Geneva Conventions “quaint,” he referred to the requirement that POWs be given commissary privileges, monthly pay, athletic uniforms and scientific instruments. Many stories cut the quotation short, making it seem as if he had deemed the conventions themselves “quaint.”
• I personally believe that the US would have been better off to default to the Geneva Conventions even for members of Al Qaeda, but legally the Bush Administration was right; Al Qaeda members were not covered under the Geneva Convention.

Ultimately, the U.S. laws on torture were very vague, and surprisingly are still vague.  There has been little specifics put in the most recent torture bill.  It is a ‘I know it when I see it’ attitude.  Prosecuting people on such a vague law, especially with so many legal memos to back up their actions, is highly unlikely.

International law is extremely vague as well.  Despite what lawyers on the left say, nothing is black and white.  For example, Obama came out and lauded the British and Winston Churchill for their behavior during World War II.  They actually had well known torture centers.  Is Mr. Obama that ignorant?  The British mistreated POWs much worse than anything we have or done since 9/11.   They had no problem imprisoning their own citizens in India, such as Mahatma Gandhi, without trial, but I guess our valiant President forgot that.

The tougher question may be whether these harsh interrogations were necessary.  Legal, probably.  But necessary?  I think there is divided thought on that.  I for one think it was the wrong move, and we likely could have gotten the information elsewhere, or by other methods.  The same is true of many within the intelligence community, including FBI interrogator Ali Soufan who has an op-ed in the Times today about it.  I think we need to learn more about these events.  It is completely possible that Dick Cheney is right, that waterboarding produced actionable information, while at the same time true that waterboarding itself was unnecessary to obtain said information.  We frankly don’t have enough facts to make a determination at this point.

2. Legality of Holding Prisoners

Even if you assume all prisoners deserve to be held under Geneva Convention rules, that would mean that the prisoners can be held, without trial, until the end of the war.  In other words, the habeas corpus hearings now granted to those prisoners appears to actually contradict the rights given in Geneva.  This is the easiest to answer:  it was and is clearly legal, even without giving them habeas corpus rights.  Giving them any access to our courts is because we feel like being humane, not because we want to stay within the restrictions of the law.

3. The Politics.

This weeks memos are clearly a political move by the Obama Administration.  They state that they ‘wanted to get the facts out’.  Well, why not release all the memos then, even redacted versions?  They didn’t do that.  Instead they selected specific memos that they thought would aid their side of the argument.

The Washington Post‘s front-page report on internal deliberations shows the administration’s primary motivations was entirely political:

The aides also said they hope the memos’ release will focus public attention on the coldness and sterility of the legal justifications for abusive techniques, with Obama telling reporters in the Oval Office on Tuesday that the documents demonstrate that the nation lost its “moral bearings” in the Bush years.

A source familiar with White House views said Obama’s advisers are further convinced that letting the public know exactly what the past administration sanctioned will undermine what they see as former vice president Richard B. Cheney’s effort to “box Obama in” by claiming that the executive order heightened the risk of a terrorist attack.

In other words, the entire way this memo story has played out was entirely a political game by the White House.  No surprise.

You want more proof of the political games going on?  Eric Holder stated that he wouldn’t have ‘selective releases’ of memos…and then did exactly that. “It is certainly the intention of this administration not to play hide and seek, or not to release certain things,” said Holder. “It is not our intention to try to advance a political agenda or to try to hide things from the American people.”  Yeah, right.  I guess releasing memos that are important to national security is a good thing, but the outing of a single CIA operative (Plame) is a crime according to Democrats.

Maybe most important is how the public feels about this.  In a Rasmussen Reports poll, 58% of people said that the release of memos actually harms national security, while only 28% said it helps the image of America.  Among all voters, 42% say terrorism suspects were tortured by the United States, but 37% disagree. Fifty-eight percent (58%) are opposed to more investigations, while even Democrats are evenly divided over whether further investigation is necessary.

The argument that the Obama Administration is doing this to ‘increase national security’ is also losing much of its credibility.  For example, the Defense Department appears to be ready to release more photos of potential abuse from Abu Ghraib and possibly other sites.  These pictures may be important to evaluate what we did wrong, and what me must fix in our military prisons.  However, releasing them can only weaken our national security.  To argue that it will strengthen it is pure liberal nonsense.

Cheney continues to push the story as well.  He has now formally asked for release of the memos that he has been discussing, “to promote a greater understading on the war on terror”.

Additionally, the one thing that Mr. Obama was trying to achieve in all this was to placate the CIA and its employees.  Apparently, he has failed in that attempt.  Many CIA employees don’t feel that the President has protected them at all.  Calling the ACLU push to release the photographs “prurient” and “reprehensible,” Dr. Mark M. Lowenthal, former Assistant Director of Central Intelligence for Analysis and Production, tells ABC News that the Obama administration should have taken the case all the way to the Supreme Court.  Lowenthal said the president’s moves in the last week have left many in the CIA dispirited, based on “the undercurrent I’ve been getting from colleagues still in the building, or colleagues who have left not that long ago.”

Lowenthal said his former colleagues at the CIA were “put off” by President Obama’s trip to the CIA earlier this week. “I don’t think the president’s speech went down very well, particularly the part when he said they made mistakes. They don’t think they made mistakes. They think they acted to execute policy. And those in the intelligence service don’t make policy.”  Those in intelligence are “going to become increasingly wary about doing dangerous things,” Lowenthal said. “They feel at the end of the day they won’t be covered. It’s not irreparable right now, but it’s problematic.”

Clearly, Mr. Obama has discord among his intelligence agencies, which are vital for national security.  Obama’s legendary ability to placate opposing groups is failing miserably.  We will see if Obama spends a lot of time on these issues on his ’100th day celebration’ tour.  Maybe there is a clear reason why Obama wants this all just to go away.