Tory-Speak on the Torture Inquiry

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I seem to be one of the biggest skeptics about the torture inquiry David Cameron announced this week. Among other things, I worry that Cameron intends to pressure plaintiffs who allege they were tortured into a mediated settlement to prevent more details of their torture from coming out. So I wanted to look at Cameron’s full statement about the inquiry for clarification.

Unfortunately, Cameron doesn’t offer any clarity on that key point: while he makes clear that the inquiry won’t start until “we’ve made enough progress,” he doesn’t specify either what “enough progress” is, or the precise role the government will play in mediating suits.

We can’t start that inquiry while criminal investigations are ongoing. And it’s not feasible to start it when there so many civil law suits that remain unresolved.So we want to do everything we can to help that process along. That’s why we are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation.

As soon as we’ve made enough progress, an independent Inquiry will be held.

His office’s summary is barely more specific.

The Government is committed to a mediation process with those who have brought civil claims about their detention in Guantanamo;

Though my suspicion does seem to be correct on one point: the call for mediation reflects a preference to solve these legal questions outside of the courts and therefore out of public view.

As for one of the other key questions about the inquiry, Cameron appears to say the inquiry will examine not just whether Brits ordered up torture, but also to what extent the government knowingly accepted information collected using torture–the question that Craig Murray has pushed.

It will look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11. And if we were, what went wrong, and what do we need to do to learn the lessons.

So the inquiry will need to look at our security departments and intelligence services.

Should we have realised sooner that what foreign agencies were doing may have been unacceptable and that we shouldn’t be associated with it? Did we allow our own high standards to slip – either systemically or individually? Did we give clear enough guidance to officers in the field?

Was information flowing quickly enough from officers on the ground to the intelligence services and then on to Ministers – so we knew what was going on and what our response should be?

That said, Cameron also seems to know the answer to the last question–what the UK’s response to learning of torture should be. The answer? Whatever the Ministers say it should be.

That’s why today, we are also publishing the guidance issued to intelligence and military personnel on how to deal with detainees held by other countries. The previous Government had promised to do this, but didn’t. We are.

It makes clear that:

One – our Services must never take any action where they know or believe that torture will occur.

Two – if they become aware of abuses by other countries they should report it to the UK government so we can try to stop it.

And three – in cases where our Services believe that there may be information crucial to saving lives but where there may also be a serious risk of mistreatment, it is for Ministers – rightly – to determine the action, if any, our Services should take. [my emphasis]

That is, even while announcing this torture inquiry, Cameron is saying that that the response that the Foreign Office gave Craig Murray when he raised torture concerns–that he didn’t understand the moral trade-offs that Ministers make…

I gave Craig a copy of your revised draft telegram (attached) and took him through this. I said that he was right to raise with you and Ministers (Jack Straw) his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements had to be made weighing one clutch of “moral issues” against another. It was not always easy for people in post (embassies) to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly.

…is precisely the answer he wants, too. If the Prime Minister or Foreign Minister say it’s okay to look the other way while close friends torture British citizens, then it’s okay, I guess.

Particularly with that in mind, I was particularly interested in this dogwhistle Cameron included twice in his speech.

In the past, it was the intelligence services that cracked the secrets of Enigma and helped deliver victory in World War II. They recruited Russian spies like Gordievsky and Mitrokin and kept Britain safe in the Cold War. And they helped disrupt the Provisional IRA in the 1980s and 1990s.

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Did Bad Journalism Make the Country Love Torture?

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One of the key takeaways of a study a number of people are buzzing about–showing that a majority of the country has generally opposed torture–is that six months after Obama became president, that changed.

Using a new survey dataset on torture collected during the 2008 election, combined with a comprehensive archive of public opinion on torture, we show here that a majority of Americans were opposed to torture throughout the Bush presidency. This stance was true even when respondents were asked about an imminent terrorist attack, even when enhanced interrogation techniques were not called torture, and even when Americans were assured that torture would work to get crucial information. Opposition to torture remained stable and consistent during the entire Bush presidency. Even soldiers serving in Iraq opposed the use of torture in these conditions. As we show in the following, a public majority in favor of torture did not appear until, interestingly, six months into the Obama administration.

The study itself (which suffers from some unfortunate biases, including its assumption that members of the military should be more supportive of torture) suggests that Dick Cheney’s pro-torture media blitz might explain why torture became more popular once a purportedly anti-torture President took power.

There may be some truth to that. I wouldn’t endorse it unquestioningly without some evidence to support it. But if it is true, it would serve as a lesson about the Obama Administration strategy to avoid fighting for anything it believes in. That is, the study raises the possibility that–by ceding the field to PapaDick’s relentless pro-torture campaign–the Administration served to make its own stated policy less popular.

But as I said, that may not be the right lesson to take away from this.

The study argues that there has been a misperception about public support for torture and blames the chattering class for not being more skeptical of that misperception.

Our survey shows that nearly two-thirds of Americans overestimated the level of national support for torture. But more important, these misperceptions are not evenly distributed across the population. The more strongly an individual supports torture, the larger the gap in his or her perception. Those who believe that torture is “often” justified—a mere 15% of the public—think that more than a third of the public agrees with them. The 30% who say that torture can “sometimes” be justified believe that 62% of Americans do as well, and think that another 8% “often” approve of torture.

Revealingly, those people most opposed to torture—29% of the public—are the most accurate in how they perceive public attitudes on the topic. They overestimate the proportion of the public who “sometimes” approve of torture by 10%, underestimate the proportion of the public who “often” approve of torture by 10%, and perceive the rest of the public with near precision.

In short, these patterns present a classic pattern of false consensus. People who were most in favor of torture assumed that most of the public agreed with them. While we obviously do not have survey data on Washington decision makers, we do know from public statements how leading voices such as former Vice President Dick Cheney felt about the interrogation techniques. These data show that it is not at all surprising that Cheney and other political figures believed that the public stood behind them. What is perhaps more surprising is how poorly journalists, regardless of personal belief regarding their objectivity or bias toward liberalism (Lee 2005), misread public sentiments.

I’d suggest one more possible factor. Couple this graph above–showing the beginning of a decline in opposition to torture in 2006-2007–with the details of the Harvard study showing how newspapers discussed waterboarding. At roughly the same time that torture began to be more accepted, newspapers started to treat waterboarding, at least, with their typical “he said, she said” cowardice.

Before 2007, the NY Times had only scattered articles quoting others. However, beginning in 2007, there is a marked increase in articles quoting others, primarily human rights groups and lawmakers. Human rights representatives predominate during the first half of the year. However, beginning in October, politicians were cited more frequently labeling waterboarding torture. Senator John McCain is the most common source, but other lawmakers also begin to be cited. By 2008, the articles’ references are more general such as “by many,” or “many legal authorities.” Stronger phrases such as “most of the civilized world” also begin to appear.

The LA Times follows a similar pattern. In 2007, this paper mostly quoted human rights groups and Sen. McCain. Beginning in 2008, however, more general references began to be used, such as “by many” and “critics.”

That is, starting around the same time support for torture increased, the press started treating it as one more political debate.

Remember, before 2007, newspapers largely uncritically adopted the Bush Administration’s Orwellian language about enhanced interrogation, without including voices that called waterboarding torture. That said, even while it deployed such propaganda (and the newspapers willingly adopted it), the Administration itself always maintained that it did not torture. But as time has passed, former Bush officials (led by PapaDick and his spawn BabyDick) have gotten closer and closer to shifting the argument to a admission, coupled with a defense, of torture.

Is it possible, then, that by embracing the torture apologists’ relativism, newspapers encouraged individuals to think about torture as a political preference?

This is all obviously speculation on my part. But it seems to me the most important question raised by this study on public opinion about torture is why under a then-popular nominally anti-torture president, torture became popular.

Is the UK Torture Inquiry an Attempt to Limit Further Disclosure?

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There’s not yet a lot of reporting about the terms of the British inquiry into its complicity with torture. But from the reports by the Beeb and the Independent, it seems the inquiry itself will not start until all pending civil and criminal complaints about torture are completed — and the government is helpfully offering to serve as mediator to speed their completion this year. From the Beeb:

The prime minister promised compensation for victims if it was found foreign agents had committed abuses with UK counterparts colluding.

Mr Cameron told MPs that to ignore the claims would risk operatives’ reputation “being tarnished”.

On-going criminal and civil cases must end before the inquiry starts, he said.

[snip]

He indicated the government was ready to provide mediation to people pursuing civil cases in relation to their detention in the US-run Guantanamo Bay detention camp.

This appears to put pressure on people like Binyam Mohamed to agree to mediation (between whom? between the US and him, mediated by David Cameron’s selected mediator?) if he wants to see a more generalized inquiry move forward. And of course, that generalized inquiry would be led by the British government’s hand-picked judge — Sir Peter Gibson — and the promises to complete access to the relevant documentation would be nothing more than promises until Mohamed agrees to settle.

Furthermore, at least in this early reporting, there’s no discussion of the terms of the inquiry: will it be limited to whether or not the UK asked people to torture, or whether — as Craig Murray has shown — the government knowingly accepted intelligence collected using torture in the name of gathering intelligence per se?

Bill Keller Suppresses American Tradition of Opposition to Torture

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When asked by NYT’s own media reporter about the NYT’s refusal to use the word torture, Bill Keller could barely exert himself to say more than the official press statement. Here’s what the spokesperson gave to Michael Calderone.

A spokesman told Yahoo! News that the paper “has written so much about the waterboarding issue that we believe the Kennedy School study is misleading.”However, the Times acknowledged that political circumstances did play a role in the paper’s usage calls. “As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. “When using a word amounts to taking sides in a political dispute, our general practice is to supply the readers with the information to decide for themselves. Thus we describe the practice vividly, and we point out that it is denounced by international covenants and in American tradition as a form of torture.” [my emphasis]

And here’s what Keller gave NYT’s Brian Stelter.

Bill Keller, the executive editor of The Times, said the newspaper has written so much about the issue of waterboarding that, “I think this Kennedy School study — by focusing on whether we have embraced the politically correct term of art in our news stories — is somewhat misleading and tendentious.”

In an e-mail message on Thursday, Mr. Keller said that defenders of the practice of waterboarding, “including senior officials of the Bush administration,” insisted that it did not constitute torture.

“When using a word amounts to taking sides in a political dispute, our general practice is to supply the readers with the information to decide for themselves,” Mr. Keller wrote. “Thus we describe the practice vividly, and we point out that it is denounced by international covenants and human rights advocates as a form of torture. Nobody reading The Times’ coverage could be ignorant of the extent of the practice (much of that from information we broke) or mistake it for something benign (we usually use the word ‘brutal.’)” [my emphasis]

I guess all you need to do to be Executive Editor of the NYT is to bandy about insults like “politically correct” and “tendentious” and drop all acknowledgment that not just human rights advocates–but American tradition (notably, the tradition propagated by the NYT until the US embraced torture as official policy)–considers waterboarding torture.

Which is all the more pathetic, given that Bill Keller himself was once part of that tradition. As NYTPicker notes, NYT reporter Bill Keller has a long history of referring to torture as torture without bowing to the spin of the governments who use it.

On February 18, 1987, a 38-year-old NYT reporter named Bill Keller published his first story about torture.

The young Moscow correspondent — who, two years later, would win the Pulitzer Prize for his coverage of the Soviet Union — referred to “the torture case” in writing eloquently about revelations that officials in Petrozavodsk, in the Karelian republic, had been fired in the wake of torture accusations.

[snip]

Keller went on to write more than a dozen stories for the NYT — from the Soviet Union and, later, South Africa — that referenced interrogation techniques as “torture.” His stories never alluded to any questioning of the term by the governments that used the techniques.

[snip]

In applying a different standard to the NYT’s coverage of waterboarding, Keller has betrayed a reprehensible weakness in the face of his own government’s stance on torture — one that he never showed in his years as a courageous and straightforward reporter.

I’m not sure whether the difference in approach makes reporter Bill Keller nothing more than a human rights activist or makes editor Bill Keller tendentious, but along the way, NYT Executive Editor Bill Keller appears to have actively suppressed an American tradition that treats torture as torture, regardless of who uses it.

Press Groups Call Gitmo Banning Prior Restraint

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“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” … The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” SCOTUS Pentagon Papers Decision

A coalition of press outlets have written DOD General Counsel Jeh Johnson, calling that the banning of four Gitmo reporters for publishing the name of Omar Khadr interrogator Joshua Claus an unconstitutional example of prior restraint.

In a letter to Pentagon General Counsel Jeh Johnson, the organizations argue that the Pentagon’s interpretation of the rules is “plainly illegal” because it bars publication of information considered “protected” even if the information is already widely known and publicly available.

Such a restriction is “a ‘classic example’ of a prior restraint” that “the Supreme Court repeatedly has refused to allow . . . even in the name of national security,” the organizations said.

The organizations include McClatchy Newspapers, which owns The Miami Herald and 30 other newspapers, The Associated Press, Dow Jones & Co., The New York Times, Reuters and The Washington Post.

[snip]

“There must be a sufficiently strong, legitimate government interest before a contractual condition may legally restrict a citizen’s First Amendment rights,” attorney David Schulz wrote on the news organizations’ behalf. “As demonstrated above, no such legitimate interest justifies the overly broad censorship imposed by the ground rules.”

The news organizations are also taking issue with the way DOD reviews and deletes images for classification reasons.

What’s particularly interesting about this challenge, IMO, is how the timing is going to work out. As the article notes, DOD has agreed to lift the ban on the four reporters on August 5 (though I believe the reporters will have to “reapply” for credentials, providing one more opportunity for mischief).

The Pentagon has agreed to lift the ban on the four reporters on Aug. 5. That, however, isn’t enough, the organizations said, noting that the hearing the reporters were covering resumes on July 12.

That is, in a show of faux-reasonableness, DOD has agreed to let the three best Canadian Gitmo reporters and the best Gitmo reporter, period, apply for credentials again on August 5. But, as the article makes clear, that means the journalists won’t be able to attend “the hearing the reporters were covering” which starts up again in a week. Canada’s best Khadr reporters and Carol Rosenberg will be able to reapply to cover Khadr’s actual trial, but they won’t be able to cover the rest of his suppression hearing, which reconvenes on July 12.

That hearing, of course, concerned whether or not Omar Khadr’s confessions should be thrown out because of abuse he suffered at the hands of his interrogators.

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The Gray Lady Waited Three Years to Quote People Calling Torture Torture

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In this post, I described the Harvard study that showed that US’ largest newspapers stopped calling waterboarding torture once it became clear the US was doing it.I wanted to look more closely at an odd time lapse in the NYT’s Orwellian treatment of waterboarding.

In a seeming defense of their refusal to call torture torture given to Michael Calderone, the NYT admitted they had responded to pressure from the Administration, but claimed that they balanced that by admitting that others consider it torture–classic “on the one side, on the other side cowardice.”

However, the Times acknowledged that political circumstances did play a role in the paper’s usage calls. “As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. “When using a word amounts to taking sides in a political dispute, our general practice is to supply the readers with the information to decide for themselves. Thus we describe the practice vividly, and we point out that it is denounced by international covenants and in American tradition as a form of torture.” [my emphasis]

But if they were doing so, you’d think they’d be giving voice to people actually calling waterboarding torture.

At least according to the study, that’s not what they did at first. Not until 2007 did the NYT regularly (45.5% of the time) start quoting people calling waterboarding torture.

Except for a brief spate of articles in 1902‐1903 in the NY Times which quoted mostly military officials and senators, almost all of the articles that quote others calling it torture appeared in 2007 and 2008.

[snip]

Before 2007, the NY Times had only scattered articles quoting others. However, beginning in 2007, there is a marked increase in articles quoting others, primarily human rights groups and lawmakers. Human rights representatives predominate during the first half of the year. However, beginning in October, politicians were cited more frequently labeling waterboarding torture. Senator John McCain is the most common source, but other lawmakers also begin to be cited. By 2008, the articles’ references are more general such as “by many,” or “many legal authorities.” Stronger phrases such as “most of the civilized world” also begin to appear.

In other words, NYT’s “defense” of its actions appears to ignore a three year period during which they didn’t call torture torture, but during which they offered no counterbalance correcting that spin (which among other things means we can add it to the list of things–warrantless wiretapping, the leak of Plame’s identity Judy Miller received from OVP, and now calling torture torture–that the NYT did in the lead up to the 2004 election).

Which is all the more troubling given that NYT claimed they were watching their spin closely. One of the first NYT articles to report on waterboarding included this paragraph.

Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees. Interrogators were trying to find out whether there might be another attack planned against the United States.

As they pointed out in response to this study, FAIR immediately pounced on the Orwellianism.

The New York Times, revealing the interrogation techniques the CIA is using against Al-Qaeda suspects, seemed unable to find a source who would call torture by its proper name.

[snip]

The article took pains to explain why, according to U.S. officials, such techniques do not constitute torture: “Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees.”

The article seemed to accept that the techniques described are something other than torture: “The tactics simulate torture, but officials say they are supposed to stop short of serious injury.” The implication is that only interrogation methods that cause serious physical harm would be real and not simulated torture.

The article quoted no one who said that the CIA methods described were, in fact, torture. Yet it would have been easy to find human rights experts who would describe them as such. The website of Human Rights Watch (www.hrw.org) reports that “the prohibition against torture under international law applies to many measures,” including “near drowning through submersion in water.” Amnesty International U.S.A. (www.amnestyusa.org) names “submersion into water almost to the point of suffocation” as a form of torture, and emphasizes that torture “can be psychological, including threats, deceit, humiliation, insults, sleep deprivation, blindfolding, isolation, mock executions…and the withholding of medication or personal items.”

[snip]

If the Times had included independent human rights or international law experts in the article, this information could have been available to readers.

[snip]

In fact, the Times might have looked back to its own archives on the subject to find critics of U.S. detention policies. Some of the information included in the May 13, 2004 article was first reported on March 9, 2003— except the original story quoted Holly Burkhalter of Physicians for Human Rights, who decried the lack of a “specific policy that eschews torture.”

In response to that and a bunch of complaints about the NYT’s coverage of Abu Ghraib, NYT ombud replied,

The specific issue is the use of “abuse” rather than “torture” to describe certain actions of American military personnel, intelligence officers, and private subcontractors. I asked assistant managing editors Craig Whitney and Allan M. Siegal for comment as they are, respectively, in charge of the news desk (where front page headlines get written) and all matters of language and style. Both were surprised when I raised the issue; both noted some substantive definitional distinctions between “abuse” and “torture”; both asserted that there is no Times policy one way or another; and both acknowledged that readers may be right.

Wrote Whitney in an e-mail message, “Now that you tell me people are reading things into our not using ‘torture’ in headlines, I’ll pay closer attention.”

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Torture and Truth

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Yesterday, I posted on a Harvard study showing that the press, after an established tradition of referring to waterboarding as torture, stopped doing so once it became clear the US engaged in the practice. Our press, in other words, refused to tell what they had previously presented as “the truth” (that is, that waterboarding was unquestionably torture) when it became politically contentious to do so.

Now I want to focus on one detail of the documents Craig Murray released yesterday in anticipation of the British inquiry into whether it was complicit with torture. The Brits are debating among themselves whether the question will be, “Did the UK order up torture?” or “Did the UK knowingly use information gathered using torture?” (Rather, the powers that be are trying hard to limit the inquiry to the former question.) So Murray posted a series of British Foreign Office communication set off when he asked both whether it was legal to receive information known to have been collected using torture, and what civil servants and Ministers thought about receiving information gathered using torture.

I would be grateful for the opinion of Sir Michael Wood on the legality in both international and UK domestic law of receiving material there are reasonable grounds to suspect was obtained under torture, and the position of both Ministers and civil servants in this regard.

That is, is it legal and is it the accepted practice of the government to accept information gathered using torture (ironically, at almost exactly the same moment, Jane Harman, having been assured that torture was legal by CIA General Counsel Scott Muller, was asking him whether it was the formal Bush policy).

The answers to those questions, as you can see by reading the thread of communication, were “yes” and “yes.” It’s the latter “yes” that the Brits don’t want to admit publicly in their inquiry.

That’s all politics. But what I’m most interested in is a paragraph Linda Duffield, the Director, Wider Europe, wrote on March 10, 2003, memorializing a meeting between her, Murray, and two others. In it, she describes explaining to Murray that she appreciated his concern about information collected using torture, but that the “moral issues” raised by it had to be weighed against other moral concerns. And the competing “moral” issue–as she lays out–is the necessity to “piec[e] together intelligence material from different sources in the global fight against terrorism.”

I said that he was right to raise with you and Ministers (Jack Straw) his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements [sic] had to be made weighing one clutch of “moral issues” against another. It was not always easy for people in post (embassies) to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly. [my emphasis]

Duffield is claiming to acknowledge the moral problems of torture, but suggests that the “moral” (and ethical) necessity to piece together intelligence on terrorism–not to keep the country safe, but to piece together intelligence–balances out those moral problems.

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Waterboarding Is Only Torture If John McCain Says So

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Time for another blogger ethics panel. Or maybe just a bloggers’ style guide, one that states unequivocally that waterboarding is torture. Because–as Glenn reported earlier–the dead tree press only calls waterboarding torture when others do it. And they stopped referring to it as torture as soon as it became clear it had become US policy.

The results of this study demonstrate that there was a sudden, significant, shift in major print media’s treatment of waterboarding at the beginning of the 21st century. The media’s modern coverage of waterboarding did not begin in earnest until 2004, when the first stories about abuses at Abu Ghraib were released. After this point, articles most often used words such as “harsh” or “coercive” to describe waterboarding or simply gave the practice no treatment, rather than labeling it torture as they had done for the previous seven decades.

One of the most telling details from the study is the description of how newspapers admitted that waterboarding is torture without their omniscient editorial voice describing it as such: they quoted other people.

All four papers frequently balanced their use of softer treatment by quoting others calling waterboarding torture. Except for a brief spate of articles in 1902‐1903 in the NY Times which quoted mostly military officials and senators, almost all of the articles that quote others calling it torture appeared in 2007 and 2008.

More telling still, newspapers barely began to do that until 2007, three years after they started talking about torture, and they most often relied on John McCain to state what–before it became clear the US engaged in such torture–their own pages had stated fairly consistently beforehand.

When quoting others who call waterboarding torture, there is a shift in who the LA Times and the NY Times quoted over time.

Before 2007, the NY Times had only scattered articles quoting others. However, beginning in 2007, there is a marked increase in articles quoting others, primarily human rights groups and lawmakers. Human rights representatives predominate during the first half of the year. However, beginning in October, politicians were cited more frequently labeling waterboarding torture. Senator John McCain is the most common source, but other lawmakers also begin to be cited. By 2008, the articles’ references are more general such as “by many,” or “many legal authorities.” Stronger phrases such as “most of the civilized world” also begin to appear.

The dead tree press, apparently, couldn’t find an expert they believed could adequately voice the long-standing consensus that waterboarding is torture–a consensus recorded in their own pages (at least those of LAT and NYT)–until after McCain started speaking out on the topic.

One more point. The study only examined the four papers with the greatest circulation: NYT, LAT (both of which had extensive archives the study measured for previous uses of torture), USA Today, and WSJ (which didn’t have the same range of archives). So it did not include the WaPo in its study–the paper notorious for torture apology from both the newsroom and Fred Hiatt’s editorial page. So the numbers could be even worse!

What a remarkable measure of the cowardice of our press. And what a remarkable measure of how it happened that torture became acceptable. It’s not just that the press failed in their job, but it’s clear that’s a big part of it.

Briefing Congress and Destroying Torture Tapes

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As I mentioned in this post, I’ve been weeding through the documents released under FOIA to Judicial Watch last week. I think they suggest there’s a much closer relationship between the CIA misrepresentations on Congressional Briefings and the destruction of the torture tapes than we’ve known before.

Nancy Pelosi Was Proved Fucking Right

As you might recall, Judicial Watch pursued this FOIA because they thought they were going to catch Nancy Pelosi in a lie.

After the torture memos were released, the torture apologists tried to claim that Congress had been briefed on–and had approved–of torture. But Pelosi pointed out that when CIA briefed her in September 2002, they did not tell her and Goss that CIA had already gotten into the torture business. In spite of the fact that that was completely consistent with Porter Goss’ tales of Congressional briefing, the press took Pelosi’s story as an accusation that the CIA had lied. So the right wing transparency group Judicial Watch FOIAed the records of Congressional briefings, with a focus on proving that Pelosi had lied about having been briefed about the torture that had already happened.

Perhaps in response to this hullabaloo, the CIA’s Inspector General started a review of Congressional–particularly Pelosi–briefings on June 2, 2009. After about six weeks of reviewing their documentation, they came to the following conclusion (starting on PDF 27):

  • Pelosi was briefed on April 2002, before CIA started torturing Abu Zubaydah, and in September 2002, in the briefing under discussion.
  • CIA’s own records regarding the September 4, 2002 briefing are so erroneous they show Jane Harman, not Pelosi, received the briefing.
  • The only CIA record on the content of the September 4, 2002 briefing is the set of cables between Jose Rodriguez, (probably) Jonathan Fredman, and one other CTC person; this is the cable altered after the fact.
  • People from the Directorate of Operations, and James Pavitt personally, repeatedly made claims about the content of the Pelosi briefing over the years, yet none of that sourced any first-hand knowledge or documentation.

That is, as is the case with CIA’s other briefings on torture, they have no fucking clue what they briefed to Pelosi.

Which leaves Pelosi and Goss’ consistent claim that CIA didn’t even tell them they had already waterboarded Abu Zubaydah 83 times by the time they briefed them.

Creating the Illusion of Congressional Oversight

But the bigger news, as I pointed out earlier, is that the CIA appears to have been crafting a record of Congressional Briefing in conjunction with their efforts to destroy the torture tapes.

As my earlier post laid out, Jose Rodriguez briefed Pelosi and Goss on September 4, 2002. That was the the day before–according to an October 25, 2002 cable (see PDF 3)–folks at CIA HQ started talking in earnest about the danger of the torture tapes. The following day, the briefers altered their record of the meeting (see PDF 84 and PDF 11-12), though we don’t know what the change entailed. No official Memorandum for the Record was ever made of the briefing and there is no record of Stan Moskowitz weighing in on the accuracy of CTC’s version of the meeting (though he did receive a BCC of it). In other words, CTC made a record of the briefing at the same time as they were laying a plan to destroy the torture tapes, and CIA deviated from standard policy by not making any other record of the briefing (though not completing MFRs of torture briefings appears to have become a habit).

As a side note, I’m not certain, but I believe Jonathan Fredman is one of the other two people involved–along with Jose Rodriguez–in this. On PDF 7 of this set, the IG investigation into Pelosi’s briefings describe the last set of documents in its possession as one that someone turned over to DNI leadership on March 23, 2009. On that date, Jonathan Fredman worked at DNI, making him a likely person to have been asked for his documentation on briefing Congress. The description notes that “he, Director (D)/CTC [Jose Rodriguez]” and someone else did the briefing. PDF 11 of the same set quotes from that email: “On 4 September, D/CTC, C/CTC/LGL, and [redacted] provided notification…” which I believe means Fredman–C/CTC/LGL–was the second of three people in the briefing. PDF 84 of this set shows the actual email. This notes that the third person at the briefing was a CTC/Reports person. If I’m right and Fredman had to turn over his documentation, the notice of the “BCC” to Stan Moskowitz would mean that he wrote the email (because otherwise the BCC wouldn’t show up). A later description says someone–whom I believe to be Fredman, given the CTC/LGL return address–showed it to Rodriguez who determined it to be “short and sweet.” In other words, Fredman, one guy on the hook for translating (or mistranslating) DOJ’s limits to the torturers in the field, may have been the guy helping Rodriguez to tweak that record of the briefing.

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SCOTUS Denies Cert for Maher Arar

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Apparently, this country has deemed it okay to take an innocent Canadian citizen transiting through US airports and instead send them to a third country to be tortured. That seems to be the lesson from SCOTUS’ decision to deny Maher Arar cert in his suit against the US. From a CCR press release on the decision:

Today, the United States Supreme Court decided not to hear the Center for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher Arar against U.S. officials for their role in sending him to Syria to be tortured and detained for a year.

The decision of the U.S. Court of Appeals for the Second Circuit, which the Supreme Court declined to review, was decided on the legal ground that Congress, not the courts, must authorize a remedy. As a result, the substance of Mr. Arar’s case, first filed in January 2004, has never been heard and now never will be.

Mr. Arar said, “Today’s decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security’ matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well.”

Last month, the Obama administration chose to weigh in on Mr. Arar’s case for the first time. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. (Canada conducted a full investigation, admitting wrongdoing, exonerated Mr. Arar, apologized, and paid him $10 million in damages for their part in his injuries.) Yet the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.

Said CCR cooperating attorney David Cole, “The courts have regrettably refused to right the egregious wrong done to Maher Arar. But the courts have never questioned that a wrong was done. They have simply said that it is up to the political branches to fashion a remedy. We are deeply disappointed that the courts have shirked their responsibility. But this decision only underscores the moral responsibility of those to whom the courts deferred – President Obama and Congress – to do the right thing and redress Arar’s injuries.”

Lower courts concluded that Mr. Arar’s suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed, and that therefore it was the role of the political branches to authorize a remedy.

The decision does not bode well for either state secrets cases or for suits trying to hold Bush Administration officials responsible for torture (such as the Yoo appeal being heard in the 9th Circuit today).

Which I guess means we’ve officially become a country that finds protecting those who commit torture more important than justice for those who were tortured.