No Comment

Sullivan on Gitmo “Suicides”

Andrew Sullivan addresses “The Guantánamo ‘Suicides’” in the Sunday Times:

What really happened? I do not know. But it seems to me that these credible witnesses should have at least been interviewed by the NCIS; that the official story has gaping holes of logic; that the autopsies are beyond bizarre; and that the slightest possibility that something is amiss requires further investigation. If there is any chance that these prisoners were accidentally tortured to death and their deaths then covered up as suicide, this is the biggest story in the grim annals of the Bush-Cheney era since Abu Ghraib. And yet, other than to carry a brief synopsis from Associated Press, no main US newspaper has delved into the Harper’s cover-story.

And indeed, a year ago Hickman and his fellows went to Obama’s justice department to explain what they believed needed to be investigated further. The FBI interviewed other witnesses who backed Hickman up. Last November, after months of waiting for a response, Hickman’s lawyer got a call from the justice department. The case was closed. The NCIS report stood. When Hickman’s lawyer asked why, he was told that Hickman’s conclusions “appeared” to be unsupported. This is the change we were asked to believe in.

Talking with the Enemy

One of the great bugaboos of the Bush era was the notion of talking with the enemy. Once a group was defined as an enemy, even the mildest hint of a contact would meet with torrents of indignation. When the definition of the “enemy” went into soft focus, as various parties that might or might not have some ties to Al Qaeda were added, this approach was particularly troublesome. It made it difficult to divide and conquer—to peel off groups on the periphery in order to make the foe weaker and less stable. During the campaign, Barack Obama articulated this fairly obvious critique of Bush-era “War on Terror” policy, and his administration seemed set to pursue a more subtle approach. Talking with the enemy might be on the agenda.

But while his administration has sharply ramped up military and paramilitary operations in Afghanistan and Pakistan, it appears reluctant to engage the Taliban. Indeed, this has been a point of friction between the Obama Administration and Afghanistani President Hamid Karzai, who has aggressively pressed for direct talks and persuaded Saudi Arabia to act as an honest broker. A number of Taliban leaders traveled to Saudi Arabia in late 2009 in an effort to bring this about. The U.S. command has tried to downsize the Taliban by recruiting some of its less loyal lieutenants, but it has spurned direct dialogue. In the current New York Review of Books, Ahmed Rashid takes a hard look at this predicament, outlining the current sense of McChrystal’s command:

The present US military strategy aims to peel away Taliban commanders and fighters and resettle them without making any major political concessions or changes to the Afghan constitution. But Washington remains deeply divided about talking to the Taliban leaders. The State and Defense Departments, the White House, and the CIA all have different views about it, and there are also divisions between the US and its allies.

General McChrystal told me that many mid-level Taliban commanders and their men are waiting for Karzai to announce a reconciliation strategy before offering to change sides. “The reintegration of former Taliban into society offers a good chance to reduce the insurgency in Afghanistan…while al-Qaeda needs to be hunted and destroyed.” Whether the US and its allies should hold talks with the Taliban leadership, he said, is a political decision to be made by Washington. In December Richard Holbrooke, the US special representative for Afghanistan and Pakistan, told me that in his estimation some 70 percent of the Taliban fight for local reasons or money rather than because of ideological commitment to the movement, and they can be won over.

Rashid traces the complex steps taken by Saudi and Pakistani intelligence services to help bring about a dialogue with the Taliban. But he is unconvinced that the American side has the will to talk:

Talking to the Taliban requires more than just secret cooperation among intelligence agencies or the CIA handing out bribes to Taliban commanders to change sides—as it did with the Northern Alliance in 2001. There is an urgent need for a publicly promoted strategy involving concrete efforts to build political institutions and provide humanitarian aid in ways that do not require intrusive Western control—a strategy that could attract many members of the Taliban, reduce violence, and placate Afghans who are opposed to all such compromises. Obama officials have talked up the need for such a public strategy but accomplished little during his first year in office. Yet such goals are of paramount importance.

If the United States continues to spurn dialogue, there is little doubt as to the strategy the Taliban and their Pakistani allies will pursue. They are likely to pull back, shelter in the holdouts and in Pakistan, and wait the next eighteen months until the American draw-down begins. They view the struggle with America as a waiting game. They’re not going anywhere, and they only have to wait for the Americans to declare victory and leave.

Talking with the Taliban need not presuppose a cessation of military operations, of course. But Karzai’s own desire for such talks reflects a simple fact: the legitimacy his government craves is unlikely to come without some dialogue with his Taliban adversaries. Kabul needs to reconcile itself with at least a part of this opposition, which has grown steadily in size and stature over the last four years.

Pushkin—Winter’s Morning

Caspar David Friedrich, Neubrandenburg (1817)

Мороз и солнце; день чудесный!


 Еще ты дремлешь, друг прелестный,


 Пора, красавица, проснись:


 Отркрой сомкнуты негой взоры


 Навстречу северной Авроры,


 Звездою севера явись!



Вечор, ты помнишь, вьюга злилась,


 На мутном небе мгла носилась;


 Луна, как бледное пятно,


 Сквозь тучи мрачные желтела,


 И ты печальная сидела—


 А нынче… погляди в окно:

Под голубыми небесами


 Великолепными коврами,



Блестя на солнце, снег лежит;


 Прозрачный лес один чернеет,


 И ель сквозь иней зеленеет,


 И речка подо льдом блестит.

Вся комната янтарным блеском


 Озарена. Веселым треском


 Трещит затопленная печь.


 Приятно думать у лежанки.


 Но знаешь: не велеть ли в санки


 Кобылку бурую запречь?

Скользя по утреннему снегу,


 Друг милый, предадимся бегу


 Нетерпеливого коня


 И навестим поля пустые,


 Леса, недавно столь густые,


 И берег, милый для меня.

Read English translations here and here

–Aleksandr Segeyevich Pushkin, Зимнее Утро (1829)

Listen to Georgi Sviridov’s setting of the poem from “Пушкинский венок” (Pushkin’s Garland) (1979):

Listen to Pyotr Il’yich Tchaikovsky’s Symphony No. 1 in G minor, op. 13 (“Зимние грёзы”—“Winter Daydreams”) (1866)

Tolstoy—The Renunciation of Violence

Ivan Kramskoi, Portrait of Count Lev Tolstoy (1873)

The longer I live–especially now when I clearly feel the approach of death–the more I feel moved to express what I feel more strongly than anything else, and what in my opinion is of immense importance, namely, what we call the renunciation of all opposition by force, which really simply means the doctrine of the law of love unperverted by sophistries. Love, or in other words the striving of men’s souls towards unity and the submissive behaviour to one another that results therefrom, represents the highest and indeed the only law of life, as every man knows and feels in the depths of his heart (and as we see most clearly in children), and knows until he becomes involved in the lying net of worldly thoughts. This law was announced by all the philosophies–Indian as well as Chinese, and Jewish, Greek and Roman. Most clearly, I think, was it announced by Christ, who said explicitly that on it hang all the Law and the Prophets. More than that, foreseeing the distortion that has hindered its recognition and may always hinder it, he specially indicated the danger of a misrepresentation that presents itself to men living by worldly interests–namely, that they may claim a right to defend their interests by force or, as he expressed it, to repay blow by blow and recover stolen property by force, etc., etc. He knew, as all reasonable men must do, that any employment of force is incompatible with love as the highest law of life, and that as soon as the use of force appears permissible even in a single case, the law itself is immediately negatived. The whole of Christian civilization, outwardly so splendid, has grown up on this strange and flagrant–partly intentional but chiefly unconscious–misunderstanding and contradiction. At bottom, however, the law of love is, and can be, no longer valid if defence by force is set up beside it. And if once the law of love is not valid, then there remains no law except the right of might. In that state Christendom has lived for 1,900 years. Certainly men have always let themselves be guided by force as the main principle of their social order. The difference between the Christian and all other nations is only this: that in Christianity the law of love had been more clearly and definitely given than in any other religion, and that its adherents solemnly recognized it. Yet despite this they deemed the use of force to be permissible, and based their lives on violence–so that the life of the Christian nations presents a greater contradiction between what they believe and the principle on which their lives are built: a contradiction between love which should pre scribe the law of conduct, and the employment of force, recognized under various forms–such as governments, courts of justice, and armies, which are accepted as necessary and esteemed. This contradiction increased with the development of the spiritual life of Christianity and in recent years has reached the utmost tension.

–Count Lev Nikolayevich Tolstoy, Letter to Mohandas K. Ghandi, Sep. 7, 1910 (English original)

A little more than a century ago, a Russian nobleman who was also one of the greatest novelists of his—or any other—age, took up his pen to write a letter to a young Indian lawyer then living in South Africa who had launched a movement against official racism. A short, powerful correspondence followed, fashioned in an English that is remarkably eloquent considering that it was not the native tongue of either writer. This correspondence can be read in a single sitting, in no more than thirty minutes, and doing so would be a rewarding process for anyone. But who could have imagined the influence that the Tolstoy-Gandhi dialogue would have for the coming century? Who could have imagined that those letters shuttling between Yasnaya Polyana and Johannesburg would ultimately provide moral inspiration and guidance to the American civil rights movement, half a century later? That they would have helped to propel one of the greatest social transformations in human history?

Count Tolstoy is a revered figure today, his works are published in all the languages of the world and inspire popular culture. In the last decades of his life, however, he was seen as a crazed eccentric in his homeland, and even as something of a threat. His advocacy of the renunciation of violence and his support of religious communities that the official Orthodox Church deemed heretical brought him into steady conflict with authority, and the conflict was acute precisely because his own moral authority seemed greater than theirs. Elif Batuman gives us an impressive feel for all of this in his fanciful The Murder of Tolstoy: A forensic investigation from the February 2009 Harper’s, another essential read.

Mohandas K. Gandhi was in many ways Tolstoy’s kindred spirit. A lawyer not a writer, a Hindu not a Christian, an Indian not a Russian. But the essence of Gandhi’s message was distinctly similar. And the differences helped demonstrate the universality of that message.

Listen to Pyotr Il’yich Tchaikovsky’s Hymn of the Cherubim

Trouble in North Korea

No wannabe totalitarian regime in the world is quite so ripe for ridicule as North Korea. I traveled there some years back and marveled over the Ryugyong Hotel, a 105-story monstrosity nicknamed the “hotel of doom.” Due to gross design and construction flaws, it’s sat unoccupied in downtown Pyongyang for two decades. It captures the regime perfectly: monolithic and impressive from a distance, laughable up close and fundamentally unhinged in concept, it teeters there awaiting the day when it is inevitably imploded to make space for something better attuned to reality.

Today the Washington Post brings us synopses of South Korean press accounts about the latest rumblings in the Kim family’s lair.

Amid accounts of starvation, food shortages in the army and runaway inflation, senior economic officials in North Korea have been fired in recent days, according to reports in the South Korean media. The dismissals were reported during a week in which North Korean leader Kim Jong Il made a rare acknowledgment of his state’s failure to provide its citizens with an acceptable standard of living.

“I am most heartbroken by the fact that our people are living on corn,” Kim said in a report monitored by South Korea’s Yonhap news agency. “What I must do now is feed them white rice, bread and noodles generously.” Kim made a similar statement in January, mentioning white rice and meat soup. But the likelihood of his being able to improve nutrition in his country in the short term seems small. South Korean officials have said that North Korea could face severe food shortages this spring because of a poor harvest last fall.

The crises any government faces are rarely the ones it prepares for. But something tells me that Kim Jong Il’s clamoring for attention on the international stage is about to resume. It may take the form of kidnapping journalists or movie starlets, test firing a missile, or something still more sinister. But it’s time, once more, to be on guard.

Holder on Trial

Jane Mayer’s feature on Attorney General Eric Holder is just up at the New Yorker website. She presents Holder as at the center of the controversy surrounding counterterrorism policy, under attack from Republicans close to Dick Cheney and relating with difficulty to a White House intent on appeasing Republican critics. Here’s a sample:

After the Christmas Day incident, conservative pundits lambasted the Justice Department’s handling of Abdulmutallab, who had concealed in his underwear a bomb that ignited but failed to explode. When the plane landed, Abdulmutallab was taken to a hospital for treatment; at Holder’s directive, he was arrested as a criminal suspect. (The F.B.I., the C.I.A., and the Pentagon signed off on Holder’s decision.) F.B.I. agents questioned Abdulmutallab for some fifty minutes, under what is known as the “public-safety exception” to the right to remain silent. He divulged time-sensitive intelligence: he had been trained in Yemen, by affiliates of Al Qaeda, and had obtained explosives from them. After he received medical treatment, a Justice Department source said, he started to “act like a jihadi and recite the Koran.” He stopped coöperating and demanded a lawyer, at which point authorities read him his rights. On “Inside Washington,” Charles Krauthammer declared that it was “almost criminal” that Holder had allowed Abdulmutallab access to an attorney. Rudy Giuliani, the former mayor of New York, appeared on ABC, saying, “Why in God’s name would you stop questioning a terrorist?”

But Mayer’s best sleuthing goes to the tension between Holder and the White House over decisions about trials of terrorists:

Emanuel viewed many of the legal problems that Craig and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. Holder and Emanuel had been collegial since their Clinton Administration days. Holder’s wife, Sharon Malone, an obstetrician, had delivered one of Emanuel’s children. But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

What was Emanuel’s aim in this process? It seems he wanted to make a number of Republicans happy, in particular South Carolina’s Lindsey Graham. According to one of Mayer’s sources, “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

The article is essential reading for those who want to understand why the Holder Justice Department has shut down all efforts to secure accountability for serious crimes committed during the war on terror, potentially including homicides. Mayer gives us a step-by-step explanation of the process and the roles played by each. It leaves little doubt that the man in charge is Rahm Emanuel.

DOD Contradicts DOD: Seton Hall responds

• DOD now asserts that NCIS reviewed all available video footage, and found nothing of evidentiary value. The record shows NCIS had a videotape of the events. Since either activity in the camp or lack of activity would be relevant to the conflicting claims, it is implausible that there is nothing of evidentiary value on the tape.

• DOD now asserts that the detainees hanged themselves while lights were dimmed. The Admiral concluded the detainees hanged themselves with the lights on. The DOD does not explain this discrepancy.

Of special interest is the way Seton Hall meticulously unpacks the DOD claim about the “100 interviews” that supposedly refute the testimony in Harper’s Magazine. First, the timing is wrong:

NCIS did not interview 100 people within the first three days of the investigation. During the first three days of the investigation only 24 people were interviewed, but none of them gave first-person statements. NCIS began collecting first-person statements on June 14, more than three days after the detainees died and after the official announcement that they hanged themselves.

And even under a longer time horizon, the numbers remain exaggerated:

While NCIS and CITF may have conducted 100 interviews, they interviewed no more than 45 people, and most of those interviewed did not have first-hand knowledge of the core events. The record reflects multiple interviews of the same person. For example, the SJA report logs six interviewees from Block Duty Personnel on June 9-10, 2006, each of whom provided three statements, for a total of 18 statements from only six interviewees. Further, one member of Naval Hospital Medical Personnel provided two statements, another guard provided a total of four statements, and a second guard provided three.

And finally, the remaining interviews are themselves seriously problematic:

At most, 45 individuals, excluding detainees, were interviewed: 26 guards, escorts, and officers, 16 medics, and 3 civilians. Of those interviewed, only 36 gave written first-person statements; the rest are summaries of interviews written by the investigators. Of the 36, six were the guards on duty on Alpha Block that night. These six were the key witnesses to the events of June 9-10 as told by the NCIS investigation. All six were suspected by NCIS of making false statements, calling the credibility of their resulting statements into question. The [alleged] false statements are not included in the NCIS investigation and remain missing.

That is, the six guards who would know best what took place in Alpha Block on June 9 gave testimony the next day, but were told several days later they were suspected of making false statements and asked to submit new testimony. Why is the original testimony missing from the NCIS report? And why would investigators choose to rely so heavily on the later testimony in order to refute the claims of the four new witnesses who are speaking for the record?

The more the DOD speaks, the less sense its story makes. There is a great deal more in the Seton Hall report, and I urge readers—and reporters—to download the whole thing.

Six Questions for Dr. Michael Baden: The Guantánamo autopsies

Dr. Michael Baden, the former chief medical examiner for New York City, was host of the HBO series Autopsy and is the forensic science contributor to Fox News. I furnished Baden copies of the official autopsy reports for the three Guantánamo prisoners who died under mysterious circumstances in 2006, as well as information about secondary autopsies arranged by the families of the deceased.

Michael Baden (Courtesy of HBO)

1. When the U.S. government released its autopsy reports, it redacted the names of the pathologists and observers involved in preparing the report. It suggests that this was done to protect their privacy. Is this a normal practice?

Redacting the names of pathologists is not normal in either civilian or military practice. It is necessary to know the pathologists’ names to be able to evaluate their qualifications, certifications, and experience. This may also help the family assess whether a second autopsy should be done. Mistakes can be made. Supreme Court Justice Antonin Scalia, in a recent decision establishing a right to cross-examine forensic experts, wrote that “A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.” Science must remain independent of politics. It is necessary that names of the pathologists be known to the family for accountability purposes.

2. Do deaths in the context of confinement in prison raise any special concerns for a medical examiner conducting an autopsy?

Yes, a death in prison raises a special set of concerns that are not present when a person dies at liberty. The prison keepers have a duty to care for and protect prisoners. They must provide a reasonable level of health care, and they must address mental health issues of prisoners. They need to ascertain whether a prisoner has suicidal tendencies, and if so, they have to develop strategies to prevent suicide such as security cameras or one-on-one observation. A medical examiner presented with a death in prison needs to independently determine the cause and manner of death and how it happened so that such deaths can be prevented in the future.

3. It appears that the autopsies of the three Guantanamo prisoners were commenced within one day of their deaths and that no effort was made to notify their families or secure permission for an autopsy. Does this strike you as normal procedure?

The steps that were taken to conduct these autopsies need to be measured against the rules that had been established for deaths at the prison. Family permission is not needed in these circumstances. However, it is always proper procedure to notify the next of kin of a death and of the decision to conduct an autopsy. The next of kin will need to arrange removal and burial, or may also arrange for a second autopsy. Should there be religious objections to an autopsy, explanations should be provided as to why the autopsy was necessary.

4. The throats and internal organs were removed from all three prisoners and were not turned over to the families together with the remainder of the bodies. A lawyer acting for one of the families wrote a letter to Armed Forces Institute of Pathology demanding the missing materials, but thus far has been unable to examine them. Does this strike you as irregular?

When an autopsy is finished, all organs are normally returned to the body except those necessary for further tests, such as toxicology or histology. In cases where death is attributed to neck compression, as here, the neck organs may also be retained for further study. The families of the deceased always have the right to have a second autopsy performed. Properly qualified pathologists representing the families should be able to examine any organs retained and not present in the body at the time it is turned over. If the pathologists who conducted the first autopsy still need those parts for testing or examination, they should make them available to the pathologist conducting the second autopsy—either by sending the removed parts to the pathologist, or by allowing the pathologist to examine the parts at the site where the organs have been kept. It is not appropriate to be unresponsive to the pathologists conducting the second autopsy. If the body parts that were removed have been properly preserved, they can still be examined years later to assist in independently establishing how the death occurred.

5. One of the autopsy reports notes that the hyoid bone was broken, but it states that this occurred accidentally in the process of removing the throat. Do you attach any significance to these facts?

Yes. A fracture of the hyoid bone occurs more commonly in homicidal manual strangulation than in suicidal hanging. A pathologist performing the second autopsy should be able to examine the hyoid bone and larynx to independently determine if the fracture happened while the decedent was alive or inadvertently after death during autopsy removal of the larynx.

6. The government has accounted for the presence of rags in the mouths of the three prisoners by suggesting that they stuffed the rags in their own mouths to muffle noise which might alert guards, and that the rags were “inhaled as a natural reaction to death by asphyxiation.” Are you familiar with any other cases in which prisoners committed suicide by binding their feet, binding their hands, stuffing rags down their throats (and putting on a surgical mask to keep the rags in place), and while so bound, climbing up onto something to put their heads through a noose? In your opinion, would it be appropriate for a medical examiner to reach a conclusion that rags “were inhaled as a natural reaction to death by asphyxiation?”

I am not aware of any other case in which suicide was accomplished in this way, at least not with a gag in his mouth covered by a surgical mask. Occasionally someone ties his feet and wrists and then tightens a noose around his neck—but this is more common in accidental deaths during autoerotic activity than when someone intends to commit suicide.

Hersh in Syria

I continue to think that Syria might yet offer a platform for some fairly modest foreign policy advances for the Obama Administration in the Middle East. But that’s far from certain. Seymour Hersh offers some fascinating snippets from a long conversation with Syrian President Bashar Assad, including this one:

Now the problem is that the United States is weaker, and the whole influential world is weak as well…. You always need power to do politics. Now nobody is doing politics…. So what you need is strong United States with good politics, not weaker United States. If you have weaker United States, it is not good for the balance of the world.

The Holder-McConnell Letter

The American political landscape is heavily populated with fake debates—hot-button issues designed to rile people up, but which are not likely to have any real impact on policy. One of the best examples of this in modern times is the fake rage over trying terrorists in federal courts and the procedures that followed the arrest of the “panty-bomber” Abdulmutallab. The simple fact is that the policies of the Bush and Obama Administrations have been essentially indistinguishable, and the rhetorical war is little more than political demagoguery.

Attorney General Eric Holder has been remarkably staid in response to these attacks. On this score, he’s doing what his office requires of him: the attorney general shouldn’t take the bait and sink into partisan mudfights. But he has struck back with a closely reasoned, detailed letter to Senate Minority leader Mitch McConnell that deserves to be scrutinized closely. The letter’s tone is even and patient, but it makes the essential points:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government’s legal authority to do so is far from clear. In fact, when the Bush Administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.

It’s worth reading the whole thing.

Karl Rove settled on the “weakness” of the criminal justice system and the “strength” of the war paradigm as a major Republican talking point in 2002. We’re now eight years into this process, and Republican leaders continue mindlessly to mouth the same points. They don’t grapple with the obvious replies because the Democrats rarely make them. So here goes:

(1) The idea that criminal justice is “weak” and war is “strong” is absurd. In fact, the political dynamics are just the opposite. Margaret Thatcher realized that during the “troubles” in Northern Ireland, when she correctly resisted using the war paradigm to address the situation, and instead chose to label the terrorists as thugs and criminals and dealt with them through the criminal justice process. Terrorists actually love the war paradigm. It elevates them to the status of acknowledged warrior-opponent, which is a propaganda win for them. On the other hand, the criminal justice approach allows the government to portray them as vicious killers–assuming that’s the case–and to try and sentence them as criminals.

(2) The idea that the criminal justice and war paradigms are mutually exclusive is wrong. Of course, both of these approaches exist, and the executive is free to use both as the circumstances warrant. The president can certainly deploy military resources against a terrorist threat, and he can seize and hold terrorists as belligerents without charges—provided that they actually are belligerents. This does not exclude bringing criminal charges against them. But it’s undeniable that the war paradigm muddies the waters and may actually make it more difficult to bring some kinds of criminal charges, such as material support, which are available in the criminal justice world.

(3) The idea that military commissions will lead with more certainty to convictions and long sentences is wrong. Republicans seem to proceed from the assumption that the military commissions are kangaroo courts in which defendants have no rights and we move straight from the charge sheet to sentencing, with little in between. But our experience with the commissions in the Bush era shows that they are broadly like the military’s court-martial process, and the more they deviate from that process the more likely they will be overturned on review and disrespected. If we compare the sentences handed out by military commissions so far with those obtained by federal prosecutors in criminal court proceedings, the scales tip decisively in favor of the latter—they are faster to judgment, have equal likelihood of ending in conviction (all around 90%), and produce longer sentences.

(4) There is little meaningful difference in the Bush and Obama approaches. Holder drives this point home. The Republican rhetoric starts by dispensing with everything the Republican administration actually did between 2001-2009. In fact the Obama Administration reflects straight-line continuity with the decisions made by Ashcroft, Gonzales, and Mukasey. Most criticisms that the Republicans articulate could just as easily be seen as criticisms of their own management of the Justice Department.

(5) Justice is not a weakness. It is not, as Rove would have it, a flaw in the democratic system, best replaced by presidential discretion. It is a strength of that system that establishes its legitimacy. When the U.S. and its allies acted swiftly to bring defendants to justice at the end of World War II, that was broadly recognized in the world as proper. It helped materially advance an education process for the occupied nations of Japan and Germany about the fundamental criminality of their leaders. The failure of the Bush Administration to bring Al Qaeda leaders to trial, present clear evidence of their criminal misdeeds, and secure convictions was a fatal error.

When the Republicans rant about trials and arrests, they want to distract us from the mistakes they made over the last eight years, which cost the nation precious blood and treasure, and which continue to hamper us in the battle against terrorism. Much of the argument offered by the Republican leaders is not carefully studied strategy, but rather an attempt to cover up horrendous mistakes of the past. The real worry is not that the Obama Administration has deviated from the course that the Bush-Cheney team set, but that it is more a prisoner of the past than it needs to be.

The Cost of Conscience: The hidden challenges of dissent in the workplace

Location: Center for American Progress, Washington, D.C.

Event Date: February 11, 2010

Event Time: 5:30–7:30 p.m.

Speakers: Matthew Alexander, Richard Cizik, Elizabeth MacKenzie Biedell, Morton H. Halperin, Scott Horton

Navigating office politics can be perilous under the best of circumstances. But for people whose moral principles put them at odds with their employer and colleagues, the burdens can be especially great. Join three Open Society Fellows as they discuss their experiences working for many years inside large organizations with which they often had profound disagreements of conscience.

Now that they have left their respective institutions—the U.S. Air Force, the National Association of Evangelicals, and the Central Intelligence Agency—the panelists can speak with candor about their lives as outsiders within. What were the emotional and professional stresses they encountered every day on the job? How free did they feel to share their concerns with colleagues? And how did they negotiate the difficult transition to life on the outside?

Panelists:

Matthew Alexander, Open Society Fellow and former senior interrogator, United States Air Force

Richard Cizik, Open Society Fellow and former vice president, National Association of Evangelicals

Elizabeth MacKenzie Biedell, Open Society Fellow and former Middle East analyst, the Central Intelligence Agency

Scott Horton, contributing editor of Harper’s Magazine and attorney specializing in international human rights law (Moderator)

Panelists will be introduced by Morton H. Halperin of the Open Society Institute.

Location:

Center for American Progress

1333 H Street Northwest

Washington, D.C.

Webcast:

This event will also be live webcast on FORA.tv.

RSVP here.

Six Questions for Rachid Mesli: The missing throats

Rachid Mesli is the legal director of Alkarama, a Geneva-based organization that documents human rights abuses throughout the Arab world. After Ahmed Ali Al-Salami died at Guantánamo Naval Base in 2006, his family asked Alkarama for assistance in arranging a secondary autopsy. As I recently reported, the doctor who performed that autopsy also requested that U.S. authorities send him Al-Salami’s throat, which had gone missing. Now the Pentagon appears to be claiming that Alkarama made no such request, so I asked Mesli for a more detailed account of what happened.

1. How did you come to be involved in the arrangements for a secondary autopsy for Ahmed Ali Abdullah Al-Salami, the Yemeni prisoner who died at Guantánamo on June 9, 2006?

Rachid Mesli

Alkarama was approached by Mr. Al-Salami’s family. They made clear that they did not trust the results of the first autopsy performed in Guantánamo Bay by the U.S. authorities. We were formally engaged to organize an alternative autopsy by an independent team of forensic scientists.

2. What specific arrangements were made for a secondary autopsy? Was the body sent directly there by the Americans, or was it transferred from Yemen first?

The body was sent from Guantánamo Bay to Sanaa, Yemen to be returned to the family. They contacted Alkarama after taking custody of the body. Alkarama sought the medical assistance of the University Institute for Forensic Medicine in Lausanne, Switzerland, which agreed to send a team led by Professor Patrice Mangin to Sanaa. The autopsy was performed on the premises of a hospital in Sanaa, Yemen. After the autopsy was performed, Professor Mangin and his team produced a detailed report for Alkarama. We have sent you a copy of the public version of the report.

3. When and how did you learn that the neck organs and matter and the internal organs had been removed? What steps did you take to secure their return?

This was discovered by Professor Mangin’s team during the autopsy. I promptly raised this fact in a letter addressed on June 29, 2006 to Dr. Craig Mallak, the head of the Armed Forces Institute of Pathology in Rockville, Maryland:

The family of Ahmed Ali Abdullah requested our organization to help them organize an autopsy of the body of their son who died on 10 June 2006 in the Guantanamo Bay detention camp. We gave a mandate to a medical team directed by Prof. Patrice Mangin, head of the Institute of Legal Medicine of Lausanne University, in Switzerland, to perform this task and the autopsy took place last week in Sanaa.

We would like to put you in touch with the Lausanne medical team which needs some documents, materials and explanations from your side in order for them to finalize their report of autopsy. They need in particular the following:

1) A copy of the report of autopsy carried out by your team and the histological samples as well as the anatomical sample corresponding to the upper airways including the larynx, the hyoid bone and the thyroid cartilage removed in one piece during the autopsy.

2) A copy of the report of the investigation performed by the authorities of the Guantanamo Bay detention camp. More information is required about:

a) The circumstances of the discovery of Ahmed Ali Abdullah in a state of hanging in his cell.

b) The modus operandi and the exact nature (documented by photos if possible) of the ligatures used to this effect (the press talked about clothes and bed sheets).

c) If reanimation measures were taken or not. If yes, what is the nature of these measures (administration or not of drugs, endotracheal intubation)?

d) The previous state of the victim, in particular the possible existence of signs of depression, attempt of suicide, hunger strike, and if possible a close photography of the face of Ahmed Ali Abdullah showing his dentition.

e) The exact conditions of conservation undertaken for the repatriation of the body of Ahmed Ali Abdullah.

f) The justifications for cutting off the extremities of all the nails of the fingers and toes of the victim.

g) Any information about suicide attempts during the preceding days or months.

3) A confirmation that the soft internal organs put in a plastic bag inside the body of Ahmed Ali Abdullah belong to him.

So I identified myself as the properly empowered legal representative of the deceased’s family and the requests relayed were, of course, coordinated with Professor Mangin and his team, the pathologists conducting the second autopsy.

This letter was delivered by mail directly to Dr. Mallak, with a copy also delivered to the U.S. Embassy in Bern. No written response was ever received, up to this day. We contacted the Embassy several times by phone and by email to inquire about our letter, without response.

We also followed up many times directly with Dr. Mallak by calling and emailing him at his office in Maryland. On July 31, 2006, Dr. Mallak stated that he was not allowed to cooperate with any organization without an explicit authorization from U.S. authorities. Such authorization had not been granted to him, he said. Accordingly, our request for the missing body parts and other documents was made formally and in writing, we know it was received by Dr. Mallak, and Dr. Mallak made clear that he was not being permitted to cooperate with us or the pathologists conducting the second autopsy.

4. Did you also confer with Dr. Said Al-Ghamadi, the pathologist handling the Saudi autopsies? Did he also attempt to secure the missing body parts to complete his autopsy?

We did try to organize an autopsy of the two Saudi victims. The families, the Swiss medical team and Dr. Said Al-Ghamadi all agreed for it. But this was not authorized by the Saudi authorities.

5. What did the second autopsy conducted by Dr. Patrice Mangin at the University Institute in Lausanne conclude?

You should examine the autopsy report itself for its conclusions. However, the main conclusions were that there were some troubling and unexplained facts: missing organs, cleanly cut nails (Prof. Mangin said that nails are important in forensics as they could give clues about the last movements, fights, etc. of the victims). Prof. Mangin’s conclusion was however that due to the fact that he was performing a second autopsy and important organs were missing, he was not in a position to give a clear opinion on the cause of death. He would neither imply nor rule out any possibility. He insisted he wished he had at least some cooperation from the U.S. pathologists who conducted the original autopsy and who retained the throat organs, internal organs and clippings.

6. Did you research Al-Salami’s psychological state by contacting those close to him?

Yes, we spoke with his father about his mental and physical health. Here is the relevant passage from an interview with Al-Salami’s father from March 1, 2007:

Q: How do you understand what transpired with your son at Guantánamo Bay?

A: What happened in this camp of such sinister reputation is an odious crime. It was an act contrary to the most elementary values shared by humanity. A prisoner has rights, he must be protected until he has been tried and convicted or freed. Those who claim that my son and his two Saudi fellow prisoners have committed suicide are liars. According to the information we received from others at the camp before their murder, the three victims were in good health and good spirits. They continuously studied the Holy Quran.

Deconfliction

This segment from CBS’s The Agency dramatizes the crossed wires that result from “stovepiping” national security operations, in which undercover agents from multiple agencies work to identify potential terrorists:

Margolis Moves to Exonerate Yoo and Bybee, as Criminal Investigation Opens in Spain

Three developments last week show the growing gap between the Obama Administration and its NATO allies with respect to the legacy of torture from the Bush era. They also demonstrate that, contrary to Obama’s promises faithfully to uphold the Convention Against Torture and Geneva Conventions, his Justice Department has no intention of doing so when crimes from the Bush era are in question. This attitude is not going over well with key allies.

In Ottawa, the Supreme Court issued a decision concerning the treatment of child-warrior Omar Khadr, a Canadian citizen held and facing charges in Guantánamo. The Court found that his treatment “offends the most basic Canadian standards about the treatment of detained youth suspects” and concluded that the Canadian Government had violated his rights by colluding with U.S. authorities at Guantánamo. However, the Court overturned the ruling of lower courts that had ordered the Canadian Government to seek Khadr’s immediate release and return to Canada. The Court was unsparing in its criticism of what had transpired in Guantánamo, and its ruling put a solid barrier in the way of Canadian cooperation with the United States in similar detention arrangements.

In Madrid, the Spanish Audiencia Nacional, dealing with allegations concerning the torture of Ahmed Abderraman Hamed, a Spanish subject held at Guantánamo, issued a decision opening formal criminal investigations. Six Bush Administration lawyers—John Yoo, Jay Bybee, Alberto Gonzales, Jim Haynes, Doug Feith, and David Addington—were described as the “intellectual authors” of a program of torture to which the Spaniard and four of his fellow prisoners were subjected. In its decision, the Spanish court concluded that the American Justice Department was not involved in any credible effort to investigate or prosecute torture cases connected with Guantánamo. It also announced that the Justice Department had defaulted in response to letters rogatory seeking clarification of issues surrounding the incidents of torture in which the Justice Department itself was directly involved. (So much for Eric Holder’s pledge of cooperation with European counterterrorism investigators.) The taking of testimony in these proceedings is set to begin next week.

Meanwhile, in Washington, deep in Eric Holder’s Justice Department, a struggle continues over what to do with the ethics report of the Office of Professional Responsibility, reviewing the role of senior Justice Department lawyers in authorizing and implementing an extensive torture program. Five years in the making, the document was the subject of persistent political infighting as Bush-era officials sought to shut down or direct the investigation from which it arose. OPR concluded that Yoo and Bybee engaged in serious professional misconduct and recommended that their cases be referred to bar associations for appropriate disciplinary actions—a considerably softer punishment than the Spanish criminal investigators now have in mind. But David Margolis, the senior career official at Justice during the Bush years, sought to suppress or reverse the report. Eric Holder told the Senate Judiciary Committee that the report would be out in November; he acknowledged giving it to Margolis for final review and clearance. Now, two months later, it’s still nowhere in sight. But Newsweek’s Michael Isikoff and Dan Klaidman report Margolis’s efforts to gut the OPR report have proceeded:

NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

A few words of caution: we need to get the report to see what it says. I am told that it addresses a large number of questions and builds a detailed, comprehensive factual narrative. It will be ultimately more important for the factual research than for the opinions of David Margolis. It will be critical to know what the OPR itself concluded before Margolis got his hands on it and to see exactly how Bush-era officials like Margolis attempted to spin it. Still, it will be interesting to see exactly how Margolis concludes that the role played by Yoo and Bybee in creating a comprehensive system for torturing prisoners–now linked to several dozen homicides and a far larger number of lesser crimes–really merits only a slap on the wrist. It’s noteworthy that he reaches this conclusion at the same time as a criminal court concludes it’s worthy of a formal criminal investigation.

By way of background, it’s worth noting Margolis’s past track record in burying evidence of political skullduggery in the Department.

Margolis is held in very high regard by many of his Justice Department colleagues. One recently described him to me as the Justice Department’s “institutional memory.” A glowing Legal Times piece described him as

one of the Justice Department’s most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. “Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”

But “Yoda” Margolis also knows the “dark side” of political intrigue. He was long the man to whom political appointees could turn for protection and guidance when the going got rough, in both Democratic and Republican administrations. For instance, Bloomberg reported that both Kyle Sampson and Monica Goodling turned instinctively to Margolis for protection and support when the U.S. attorney’s scandal erupted.

What this means in practice can be seen in dozens of cases involving seriously unethical conduct by political appointees. Margolis has a one-size-fits-all solution for these cases: sweep them under the carpet.

In “Prosecutorial Ethics Lite,” I reviewed what Margolis did when confronted with a case in which a U.S. attorney used all the powers she could assemble to destroy an insurance executive who had commenced a law suit against her husband. Ethics rules clearly required her recusal. But in the face of a compelling mass of evidence, Margolis concluded that everything was just fine. He allowed the U.S. attorney to pass nominal control of the matter to the head of her criminal division. The abuse of office pressed forward, with Margolis’s blessing.

Justice Department insiders also note that Margolis single-handedly blocked efforts to secure a meaningful review of the prosecution of former Alabama Governor Don E. Siegelman, after more than 90 attorneys general from around the country advised the Justice Department of a series of gross irregularities. Instead, with Margolis’s apparent knowledge, the Department fired a member of the prosecution team who had blown the whistle on some of the misconduct. (“What the Justice Department is Hiding.”)

Jeff Kaye collects a number of other occasions on which Margolis’s machinations have made their way into the media.

In a July 6, 2008, Los Angeles Times story, Margolis is cited as leading an effort to avoid publication of the Department’s internal ethics reviews. Margolis told the Times that his opposition to publication of OPR reports was driven by concerns about “unnecessarily or gratuitously… publicly humiliating our line attorneys as individuals.” But it may well be that Margolis’s desire to keep his own role in those cases secret was a more pressing concern.

There is little mistaking Margolis’s brief in all these matters. None of his critics fault Margolis’s own conduct as a lawyer. But they express concern that he is too quick to let political appointees off the hook and note that this has severely damaged the culture of the Justice Department. Ironically, Margolis is clearly driven by a desire to protect the Department’s reputation.

However, in the current age, it is the Department’s failure to discipline itself that has raised the far greater worry. At a remarkable conference recently held at Arizona State University, a group of Bush-era U.S. attorneys discussed the current malaise at the Department. Carol Lam, the former U.S. attorney in San Diego and now general counsel of Qualcomm, said that the Bush Justice Department essentially rid itself of people who behaved professionally and were determined simply to do the right thing. It was instead dominated by those who were motivated by politics and oblivious to ethics. David Margolis was supposed to have been a watchdog against this process. Instead, he facilitated it. The failings he seeks to cover up in the OPR report were made possible by the ethics-free culture that he promoted at the Justice Department.

Rinuccini/Monteverdi—Lamento della ninfa

Carlo Maratti, Apollo Chasing Daphne (1681)

Non havea Febo ancora

recato al mondo il dì

ch’una donzella fuora

del proprio albergo uscì.

Sul pallidetto volto

scorgease il suo dolor,

spesso gli venia sciolto

un gran sospir dal cor.

Sì calpestando fiori,

errava hor qua, hor là,

i suoi perduti amori

così piangendo va:

“Amor,” dicea, il ciel

mirando il piè fermò

“dove, dov’è la fé

che ‘l traditor giurò?

Fa che ritorni il mio

amor com’ei pur fu,

o tu m’ancidi, ch’io

non mi tormenti più.”

Miserella, ah più no,

tanto gel soffrir non può.

“Non vo’ più che i sospiri

se non lontan da me,

no, no, che i suoi martiri

più non dirammi, affé!

Perché di lui mi struggo

tutt’orgoglioso sta,

che sì, che sì se ‘l fuggo

ancor mi pregherà?

Se ciglio ha più sereno

colei che ‘l mio non è,

già non rinchiude in seno

Amor si bella fé.

Né mai si dolci baci

da quella bocca havrai,

né più soavi; ah, taci,

taci, che troppo il sai.”

Sì tra sdegnosi pianti

spargea le voci al ciel;

così ne’ cori amanti

mesce Amor fiamma e gel.

Read an English translation here

–Ottavio Rinuccini, Lamento della ninfa (1614?)

Listen to Claudio Monteverdi’s setting of the Rinuccini canzonetta in L’ottavo libro de madrigali: Madrigali amorosi altri canti di Marte (1638), the solo is sung by Emma Kirkby:

Monteverdi’s eighth book of madrigals, published in 1638, represent, in many ways, the culmination of this art form. The dramatic expressiveness of the genre is pushed to its outermost limits. Moreover, we see the emergence of a cycle as madrigals composed over a long period are skillfully strung together creating a magnificent tableau. Monteverdi attaches the name “madrigals of war and love” to the work, but there is a sense of progression to it. It owes something to the intermedio tradition of the Renaissance, but it moves in the direction of the early Baroque opera. The war-like madrigals are composed in a style that conveys great agitation and pumping adrenalin. Blows fall, heroes triumph, but they also make fatal mistakes. Monteverdi develops new techniques to convey this through the medium of the human voice, especially the rapid-fire repetitions of the stil concitato. But for pure theatricality and for dexterity that foreshadows the grand operatic tradition, nothing competes with the Nymph’s Lament found in the second part of the book. War, devastation, death are quickly followed by pity, expressions of loss and lamentation. The turning of the wheel of human emotion proceeds in a smooth glide. And while Monteverdi’s initial madrigals in the series aim to get the blood pumping and to build apprehension, the second group tug relentlessly at the heartstrings. The lament is certainly one of Monteverdi’s absolute masterpieces, its tonalities are rich and dynamic, and it marks a breakthrough for the early Baroque style. The truly operatic soprano solo is juxtaposed against a male trio, and all of this is built over a continuous, hypnotic four-note ground bass (similar to the technique used in many of the duets in L’Incoronazione di Poppea, but here to better effect). In Monteverdi’s instructions, the soprano is given license to vent passionate expression (a tempo dell’affetto dell’animo e non a quello della mano, he writes), while the trio adhere to a rigorous tempo. The effect is like nothing else in the madrigal literature, and indeed, Monteverdi is breaking out of it—opera is being born.

This performance of the lament, by Emma Kirkby, is probably the best now available. It takes several listenings to appreciate Kirkby’s brilliant nuances.

Machiavelli—The Eternal Contest of Parties

Sandro Botticelli, The Story of Lucretia (detail)(1496)

Io non posso negare che la fortuna e la milizia non fossero cagioni dell’imperio romano; ma e’ mi pare bene, che costoro non si avegghino, che, dove è buona milizia, conviene che sia buono ordine, e rade volte anco occorre che non vi sia buona fortuna. Ma vegnamo agli altri particulari di quella città. Io dico che coloro che dannono i tumulti intra i Nobili e la Plebe, mi pare che biasimino quelle cose che furono prima causa del tenere libera Roma; e che considerino più a’ romori ed alle grida che di tali tumulti nascevano, che a’ buoni effetti che quelli partorivano; e che e’ non considerino come e’ sono in ogni republica due umori diversi, quello del popolo, e quello de’ grandi; e come tutte le leggi che si fanno in favore della libertà, nascano dalla disunione loro, come facilmente si può vedere essere seguito in Roma; perché da’ Tarquinii ai Gracchi, che furano più di trecento anni, i tumulti di Roma rade volte partorivano esilio e radissime sangue. Né si possano per tanto, giudicare questi tomulti nocivi, né una republica divisa, che in tanto tempo per le sue differenzie non mandò in esilio più che otto o dieci cittadini, e ne ammazzò pochissimi, e non molti ancora ne condannò in danari. Né si può chiamare in alcun modo con ragione una republica inordinata, dove siano tanti esempli di virtù; perché li buoni esempli nascano dalla buona educazione, la buona educazione, dalle buone leggi; e le buone leggi, da quelli tumulti che molti inconsideratamente dannano: perché, chi esaminerà bene il fine d’essi, non troverrà ch’egli abbiano partorito alcuno esilio o violenza in disfavore del commune bene, ma leggi e ordini in beneficio della publica libertà… E i desiderii de’ popoli liberi rade volte sono perniziosi alla libertà, perché e’ nascono, o da essere oppressi, o da suspizione di avere ad essere oppressi. E quando queste opinioni fossero false e’ vi è il rimedio delle concioni, che surga qualche uomo da bene, che, orando, dimostri loro come ei s’ingannano: e li popoli, come dice Tullio, benché siano ignoranti, sono capaci della verità, e facilmente cedano, quando da uomo degno di fede è detto loro il vero.

I maintain that those who blame the quarrels of the Senate and the people of Rome condemn that which was the very origin of liberty, and that they were probably more impressed by the cries and noise which these disturbances occasioned in the public places, than by the good effect which they produced; and that they do not consider that in every republic there are two parties, that of the nobles and that of the people; and all the laws that are favorable to liberty result from the opposition of these parties to each other, as may easily be seen from the events that occurred in Rome. From the time of the Tarquins to that of the Gracchi, that is to say, within the space of over three hundred years, the differences between these parties caused but very few exiles, and cost still less blood; they cannot therefore be regarded as having been very injurious and fatal to a republic, which during the course of so many years saw on this account only eight or ten of its citizens sent into exile, and but a very small number put to death, and even but a few condemned to pecuniary fines. Nor can we regard a republic as disorderly where so many virtues were seen to shine… The demands of a free people are rarely pernicious to their liberty; they are generally inspired by oppressions, experienced or apprehended; and if their fears are ill founded, resort is had to public assemblies where the mere eloquence of a single good and respectable man will make them sensible of their error. “The people,” says Cicero, “although ignorant, yet are capable of appreciating the truth, and yield to it readily when it is presented to them by a man whom they esteem worthy of their confidence.”

–Niccolò Machiavelli, Discorsi sopra la Prima Deca di Tito Livio, lib i, cap iv (1513)

Most college students graduate learning of the Machiavelli of The Prince and very few read the Machiavelli of The Discourses. In its pages we meet a man who pines for the republican institutions of Rome’s early era and who makes a convincing case that the tumult of those years shows more strength than weakness. The struggle of parties or factions is both the natural state of affairs in a democracy and a point of pride for it, he argues. The people and the patricians will always struggle for power and press their interests, neither should be timid in this process. The struggle may, he says, be intense and even flecked with violence, but it will ultimately lead to robust solutions that create a state in which both parties have a vested interest. But a key aspect of this process is the principle of opposed and limited powers, namely that each party seeks to impose restraints on the other when it holds the highest offices. Thus the opposition of the parties favors the principle of freedom and government of limited powers. Machiavelli’s distillation of this principle from the first books of Livy’s history of Rome is one of the most important developments of political thought of the Italian Renaissance. It sets the stage for the writings of Montesquieu which were to follow two centuries later, and for the constitutional concepts that will be advanced following the American Revolution.

But has this principle continued to work in America today? President Barack Obama’s appearance before a Republican House retreat in Baltimore, and particularly the question-and-answer session at its end offered America a glimpse at a remarkably frank and serious dialogue that demonstrates, perhaps, just how this process should work. Still, I am troubled that we may now be witnessing the failure of the principle of opposed parties. We live in an era in which both major parties share an intoxication with executive power which has led them to abandon the otherwise natural efforts to restrain it and to insure an alternative power base in the legislature. This explains why a party which, possessed of the executive power, favors the unbounded power of the presidency, when removed from that power turns simply to the politics of obstruction. Their conduct focuses not on wise policy or decision-making for the state, for indeed they are now open and notorious in their obstruction. They have one sole object, which is to recapture the executive power. How can such a pattern lead to the sort of government of limited powers that Machiavelli calls the great legacy of the Roman Republic?

Listen to the concluding duet of Claudio Monteverdi’s L’Incoronazione di Poppea (1642). This opera, one of the earliest of the genre, seems perplexing in its cynicism. It revolves around the life of the duplicitous Poppaea Sabina, who aspires to become the consort of Nero. But in this opera, the world is turned upside down: Nero’s first wife is shown as a plotter, the great philosopher Seneca is portrayed as corrupt and frivolous; Nero himself is made to appear the victim of his emotions. Murder and immorality are rewarded, and the virtuous fail. But Monteverdi’s meaning lies elsewhere. The opera’s conclusion is essential for its understanding, since in it Nero’s and Poppaea’s love is revealed for something else: an obsession with power and all its trappings–an obsession which drives them to inhuman acts, the harm of which they fail to comprehend. Monteverdi, we should remember, is an artist in the service of the Venetian Republic, and his opera is a none-too-subtle mocking of the immoral politics of empire and of Rome. For Monteverdi, like Machiavelli, the sturdy state is formed by the opposed interests of the nobili and the people, and the glory and pomp of empire are worthy of little more than ridicule and contempt.

Sandro Botticelli’s Lucretia portrays events described in the first book of Livy’s history of Rome. While several different versions of Lucretia’s story have been handed down, in all of them she is raped by a son of one of the Tarquin kings, whose abuse of her is a manifestation of the Tarquins’ abuse of their political power over the people of Rome. The rape is taken as a token of the debasement of the people at the hands of a tyrant, literally of the tyrants’ control over the bodies of the people, and the toppling of the monarchy and installation of the republic is described as a response to it. Livy quotes Lucretia calling for the monarch’s overthrow: “By this blood—most pure before the outrage wrought by the king’s son—I swear, and you, O gods, I call to witness that I will drive hence Lucius Tarquinius Superbus, together with his cursed wife and his whole brood, with fire and sword and every means in my power, and I will not suffer them or any one else to reign in Rome.” (lib i, cap lix). The republic followed immediately in the wake of this incident.

A Marine Biologist Scopes Out “Camp No”

In February 2004, David J. Evans, a marine biologist and photographer, was engaged as part of a team working on the Pentagon’s Legacy Program, which documents the cultural and environmental aspects of Defense Department operations. His assignment was to survey and photograph the rich array of wildlife and vegetation at Guantánamo Naval Base. After publication of “The Guantánamo ‘Suicides,’” Evans contacted me. “I’ve seen the facility described in your article as ‘Camp No,’” he said, “and I can confirm that the description of its position and appearance is accurate.”

Cactus and Scrub Terrain in Guantánamo Naval Base, just West of the Camps Complex, February 2004, (c) David J. Evans—reproduced with permission

One day near the end of his stay, Evans set out from Camp Delta in the company of a co-worker and two civilians from the Naval Facilities Engineering Command, moving uphill in their Humvee onto a ridge. “Moving up onto the ridge was hairy,” Evans told me, “there were thorny trees and bushes brushing up against the vehicle. The trail going up was formed by use, it wasn’t a proper road.” When they reached the crest, Evans saw the facility, not much more than a mile north of Camp Delta.

The team’s objective was to map the points of convergence between various vegetation zones, and so they had a GPS device with them. But they decided not to use it. “We were told not to photograph it, and discouraged even from looking at it,” he said. “But we couldn’t resist looking.”

“Working all around the Guantánamo base, I came across a number of old structures, some defunct and abandoned,” Evans said. “But this was something that had obviously been built pretty recently. Moreover, it looked a lot like the other prison camps I had seen.” Evans caught more glimpses of the facility as the team continued its work. “There didn’t seem to be any windows in the facility,” he said.

Evans says he doesn’t know how the facility was used, but it was carefully positioned so that it couldn’t be detected by casual visitors to the base or to the detention camps.

Evans says he left the island a few days later, puzzled by the facility in the hills. It obviously was connected to the prison camp in some way, he thought. Why had a detention facility been constructed in this rugged corner just out of sight and just out of hearing from the base? “There was a lot of tension associated with that place,” he noted. “Our escorts didn’t want to talk about it and behaved as if it didn’t exist, even though it was right there.”

During his visits to Guantánamo, Evans says that some of the guards did tell him about the harsh treatment to which some of the prisoners were subjected. They talked about it with a degree of glee, Evans observed. “It was a bit disturbing.” But Evans sharply discounts another aspect of Guantánamo’s reputation. “They call it a dry, dusty, desolate place,” he said. “That’s nonsense. Guantánamo Bay is a place of great natural beauty, a treasure, it could easily be a national park.”

Obama’s Secret Afghan Prisons

Secretary of Defense Gates’s detentions-policy advisors see Guantánamo as old policy. The all-new, streamlined detentions policy goes by the name of Bagram. Looking over the new policies, there’s no doubt that they have gone some distance to satisfy their critics. But there is a serious question about the legality of the new detentions policy, and even whether it really meshes with counterinsurgency policy. Will it help win hearts and minds? Will it reinforce the legitimacy of the government in Kabul?

In Guernica and The Nation, Anand Gopal takes a close look at the United States detention policies in Afghanistan—not from the perspective of the Pentagon but rather from that of Afghan villagers and city dwellers. It’s not pretty:

Of the 24 former detainees interviewed for this story, 17 claim to have been abused at or en route to these sites. Doctors, government officials, and the Afghan Independent Human Rights Commission, a body tasked with investigating abuse claims, corroborate 12 of these claims. One of these former detainees is Noor Agha Sher Khan, who used to be a police officer in Gardez, a mud-caked town in the eastern part of the country. According to Sher Khan, U.S. forces detained him in a night raid in 2003 and brought him to a Field Detention Site at a nearby U.S. base. “They interrogated me the whole night,” he recalls, “but I had nothing to tell them.” Sher Khan worked for a police commander whom U.S. forces had detained on suspicion of having ties to the insurgency. He had occasionally acted as a driver for this commander, which made him suspicious in American eyes.

The interrogators blindfolded him, taped his mouth shut, and chained him to the ceiling, he alleges. Occasionally they unleashed a dog, which repeatedly bit him. At one point, they removed the blindfold and forced him to kneel on a long wooden bar. “They tied my hands to a pulley [above] and pushed me back and forth as the bar rolled across my shins. I screamed and screamed.” They then pushed him to the ground and forced him to swallow 12 bottles worth of water. “Two people held my mouth open and they poured water down my throat until my stomach was full and I became unconscious. It was as if someone had inflated me.” he says. After he was roused from his torpor, he vomited the water uncontrollably. This continued for a number of days; sometimes he was hung upside down from the ceiling, and other times blindfolded for extended periods. Eventually, he was sent on to Bagram where the torture ceased. Four months later, he was quietly released, with a letter of apology from U.S. authorities for wrongfully imprisoning him.

The Water Cure, from: J. Damhoudère, Praxis Rerum Criminalium (1556)

The practice that Sher Khan describes here, first used in classical antiquity and later by American soldiers battling the Filipino insurgency around the turn of the last century, is called the “water cure.” One of the JAG School textbook cases of prosecution for torture involves this procedure. The case became notorious in the United States in 1902-04, and Theodore Roosevelt personally insisted on being briefed about it, and on rigorous enforcement of the prohibition of torture. If Gopal’s account holds, then the rules that bound the military under Washington, Lincoln, Roosevelt, and Reagan really are dead, notwithstanding President Obama’s protestations that he has put an end to torture. Nearly all of the techniques that Gopal describes appear to violate the current Defense Department guidelines (with some lingering questions concerning Appendix M), but the guidelines themselves seem to have been rewritten in a way that allows the Secretary of Defense to dispense with them at will. Historically, transparency, Red Cross monitoring, and a duty to report violations have been an essential part of the system that assures fidelity to legal commitments. That has clearly changed. As Gopal notes, the United States has maintained rigorous secrecy surrounding its detention operations in Afghanistan, and Congress has created exemptions from the Freedom of Information Act for information concerning the treatment of prisoners. Gopal aims to give us a peek behind that curtain.

At least a part of this secret prison system is operated by the Joint Special Operations Command, JSOC:

The U.S. Special Forces also run a second, secret prison somewhere on Bagram Air Base that the Red Cross still does not have access to. Used primarily for interrogations, it is so feared by prisoners that they have dubbed it the “Black Jail.” One day two years ago, U.S. forces came to get Noor Muhammad, outside of the town of Kajaki in the southern province of Helmand. Muhammad, a physician, was running a clinic that served all comers—including the Taliban. The soldiers raided his clinic and his home, killing five people (including two patients) and detaining both his father and him. The next day, villagers found the handcuffed corpse of Muhammad’s father, apparently dead from a gunshot. The soldiers took Muhammad to the Black Jail. “It was a tiny, narrow corridor, with lots of cells on both sides and a big steel gate and bright lights. We didn’t know when it was night and when it was day.” He was held in a concrete, windowless room, in complete solitary confinement. Soldiers regularly dragged him by his neck, and refused him food and water. They accused him of providing medical care to the insurgents, to which he replied, “I am a doctor. It’s my duty to provide care to every human being who comes to my clinic, whether they are Taliban or from the government.”

If a medical professional takes up arms and fights with an insurgent unit, he makes himself into a legitimate target. But what the doctor told Gopal is correct as a general proposition of ethics and law. Moreover, the work a medical professional performs in this regard is protected by the Geneva Conventions and other international law. Under the Bush Administration, the United States adopted a practice of targeting as the “enemy” medical professionals who provided care to individuals it labeled as terrorists. Bush Justice Department officials deemed this “material support.” Law of war experts called these policies something else, namely a grave breach of international humanitarian law. Gopal’s narrative suggests that the Rumsfeld doctrine and its systematic denigration of the laws of war is still in place under Obama.

How does all of this stack up against the conduct of the Taliban? Gopal suggests an answer to that question, too:

It has become a predictable pattern: Taliban forces ambush American convoys as they pass through the village, and then retreat into the thick fruit orchards that cover the area. The Americans then return at night to pick up suspects. In the last two years, 16 people have been taken and 10 killed in night raids in this single village of about 300, according to villagers. In the same period, they say, the insurgents killed one local and did not take anyone hostage.

One of the key benchmarks likely to influence the conflict in Afghanistan is this: who abuses and mistreats the civilian population the least? Brutality abounds, and it is by no means clear that the Americans have the upper hand when it comes to being nice to the natives.

Going to War in Iraq

In the United States, we’re all supposed to have forgotten that the narrative leading to the Iraq War was propelled by false facts and arguments, often in circumstances where the claim of good-faith error is difficult to sustain. We’re supposed to keep listening to political figures who made false claims, and utterly exonerate the media that allowed them to circulate and gain credibility. That’s the American approach: “look forward, not back.”

In Britain, however, a careful self-assessment is underway that has gained wide public attention. A commission of inquiry is slowly dissecting the developments, measuring the statements of political actors, and pressing them—civilly but firmly—to explain themselves in view of the subsequently exposed facts. There’s plenty to criticize about the British process (and in the second foreword to Sam Dash’s book Justice Denied, I did just this). But it’s a sober and introspective act that does honor to the democratic process.

Today former Prime Minister Tony Blair appeared before the Commission and was pressed about the bogus claims of WMDs in Iraq. Here’s a key clip from his appearance this morning, courtesy of the BBC. I’ll post more on this next week, after I’ve had a chance to finish reviewing the transcripts from the past two weeks.

Kiriakou Recants

In December 2007, John Kiriakou, a former senior CIA operative, made a series of public comments about the agency’s use of Bush-era torture techniques. In one interview, he described in detail how waterboarding was authorized. As he noted, the CIA agents wrote up a proposal, higher-ups in the agency cleared it, then the proposal was vetted by the Justice Department, and finally it went to the National Security Council in the White House, where it was approved again. His account validated speculation that the Justice Department was squarely in the middle of the process, giving its blessing to criminal acts, and that the White House gave the ultimate sanction. But then Kiriakou went on, in an appearance with ABC’s Brian Ross, to claim that waterboarding worked wonderfully. He claimed that terrorist Abu Zubaydah cracked after only one application of the technique. The statement was immediately heralded by torture advocates, such as Rush Limbaugh, as evidence that waterboarding had worked.

Except that, according to others at the agency, Kiriakou wasn’t involved in the process and didn’t know what he was talking about. The more detailed account that emerged with the declassification of Justice Department memoranda showed that Abu Zubaydah had been waterboarded 83 times, with doubtful results.

Now Kiriakou recants. Jeff Stein reports in a must-read in Foreign Policy:

On the next-to-last page of a new memoir, The Reluctant Spy: My Secret Life in the CIA’s War on Terror (written with Michael Ruby), Kiriakou now rather off handedly admits that he basically made it all up. “What I told Brian Ross in late 2007 was wrong on a couple counts,” he writes. “I suggested that Abu Zubaydah had lasted only thirty or thirty-five seconds during his waterboarding before he begged his interrogators to stop; after that, I said he opened up and gave the agency actionable intelligence.” But never mind, he says now.

“I wasn’t there when the interrogation took place; instead, I relied on what I’d heard and read inside the agency at the time.”

In other words, Kiriakou was spreading baseless agency rumors. He goes on to state that he subsequently learned, through press accounts, that his claims to ABC just weren’t true. But he takes it one step further. He concludes that he and fellow agents were actually being deceived by torture-apologists.

“In retrospect, it was a valuable lesson in how the CIA uses the fine arts of deception even among its own.”

As Stein notes, Kiriakou’s false statements about the efficiency of waterboarding instantly swept America’s mainstream media—in addition to ABC, they appeared in the Washington Post, the New York Times, NPR, CBS, CNN, MSNBC, and numerous other media. How many of these sources will now acknowledge that the reports they propagated were false? Don’t hold your breath.

Rapp for the Defense

Stephen J. Rapp was a U.S. attorney in Iowa from 1999 to 2001. He served as a senior war crimes prosecutor for the International Criminal Tribunal for Rwanda and then became chief prosecutor for the Special Court for Sierra Leone. When I learned he had been tapped by President Obama as the Ambassador at Large for War Crimes, I was pleased. He seemed a worthy choice. But he’s off to an unconvincing start.

Rapp attempted yesterday to deal with the issue of complementarity. That’s a fancy international lawyer’s word meaning that there is no need to bring a case in an international tribunal to enforce the United States’ obligations under international law, because the United States is enforcing them in its own courts. Rapp was addressing the question of torture, and he had a tough sell. But Rapp gives it his best shot:

As far as our legal process is concerned, as far as the position of the Obama administration, we will in the United States hold people to account for violations of international humanitarian law. We have a tough and vigorous system. Questions have been raised regarding enhanced interrogation and what is happening in the United States regarding the policy and practices adopted during the Bush Administration that were explicitly rejected by President Obama. As you know there is an independent counsel appointed by Attorney General Eric Holder who is looking into the matter. That work is not yet complete. If there were cases that could be pursued, they would involve very complex issues as to whether people could be held criminally liable, at what level there could be individual responsibility, and whether the causes of death or injury could now be proven. A number of other issues would also have to be evaluated. Knowing Eric Holder, and being familiar with the attorneys who are involved, this a genuine investigation that I think satisfies the standard of complementarity if we were a member of the ICC.

Where to begin? Let’s start with the fact that Rapp refers to practices such as waterboarding, long-time standing, hypothermia, and walling by their Orwellian Bush-era name, “enhanced interrogation.” That signals what’s to come. Then he states that Holder appointed an “independent counsel,” suggests that a criminal investigation is underway, and that it covers all the existing torture allegations. Each of these claims is false.

Holder appointed John Durham to do only a preliminary review to see whether a genuine criminal investigation is necessary. Durham is not an “independent counsel”; that office expired with the Independent Counsel Act in 1999. He is in fact a line prosecutor who works for Eric Holder. There’s nothing remotely independent about him. Here’s how Justice Department spokesman Matthew Miller responded to questions about Durham being an “independent counsel”:

Durham has not been appointed as a special prosecutor; he will be supervised by senior managers at the Department.

Moreover, Durham has not been asked to conduct a criminal investigation, but rather a preliminary review. There’s a huge difference. Here’s how Holder framed it: “The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter.”

Finally, Rapp suggests there is some sort of omnibus appointment to look into torture cases. Nothing could be further from the truth. Durham’s mandate is extremely narrow, covering only a small group of cases involving CIA agents that have already been examined by the CIA’s inspector general and found to warrant a Justice Department probe. Is there any real risk of charges being brought? President Obama travelled to the CIA and assured its agents that if they were involved in torture within the guidelines authorized by John Yoo, Jay Bybee, and Steven Bradbury, they didn’t need to worry about being prosecuted. So Durham’s entire mandate is to look at torture allegations that go beyond the torture that the Justice Department had okayed. Got that?

I asked Melina Milazzo, the Pennoyer Fellow for Advocacy at Human Rights First, who has been tracking the complementarity issue, what she thought of Rapp’s rationalizations. “Complementarity means being able and willing to hold accountable the planners and enablers as well as the executors of torture,” she said.

By drawing an arbitrary line to look only at so-called unauthorized torture, the Obama administration suggests it is unwilling to fully investigate—or even review—the Bush-era torture policies. Instead, it has adopted an Abu Ghraib-like investigation—simply focused on a “few bad apples.”

Milazzo correctly reflects the well-established law on this point. The entire process of approving and authorizing torture would be viewed as a joint criminal enterprise, and the White House, Justice Department, and Defense Department lawyers involved would be the key suspects in any serious criminal investigation. The April 27, 2009 decision of the Spanish Audiencia Nacional addressing the torture in Guantánamo of five Spanish subjects sets out all these considerations.

As for that “tough and vigorous system” of accountability, consider the Guantánamo “suicides,” in which evidence of torture-homicides involving three prisoners was assigned to a lawyer who was herself involved in preparing at least one of the torture memoranda, with predictable results. The case was dismissed out of hand by the Justice Department without any meaningful effort to investigate it. That demonstrates the depth of the Obama Administration’s commitment to investigate torture cases involving U.S. government actors, which swings between timidity and complicity.

Considering the fact to falsehood ratio in his statement, Rapp hasn’t shown that the Obama Administration satisfies complementarity on the torture issue. If he wants to live up to his job description, he should start by insuring that his government does what he incorrectly claims it is doing now. The United States cannot credibly be a leader in this area when it does not apply the law to itself.