Yoo and Bybee escape from justice isn't entirely complete

I've been reading various reactions to the overruling by the Department of Justice of the recommendation to refer pro-torture Professor John Yoo and Appellate Judge Jay Bybee to bar association disciplinary committees (the hundreds of pages of info can be found here, and the first two links at that cite are the most important).  Basically the argument is that the failure to provide objective and reasonable advice is insufficient grounds for sanctions.  DOJ concludes that the legal arguments for torture are nonsense, but Yoo actually believed it, and Bybee didn't bother to look at it very closely and some other folks told him it was okay.  Balkin explains that reasoning in all its glory.

Three points:

1.  I've only skimmed the DOJ memo, but what I've seen fails to focus on the duty to respond to arguments contrary to the attorney's conclusion.  This is the key issue in my opinion.  It doesn't matter whether Yoo thinks he's right - he failed to discuss precedent that limits the power of the president, even in wartime.  Even if he thinks that precedent isn't controlling, any lawyer worthy of practicing has to respond to the best contrary arguments.  As for Bybee, he's either in charge or he isn't.  A lawyer of all people has to know the consequences of signing something.

2.  As for the "you're all forgetting the atmosphere of 9-11" issue, you can forget that argument.  The memos were from August 2002, eleven months later.  There's enough time for people to think clearly again after a year, plenty of reasons by then to know that America hadn't been brought to its knees, and to know that we clearly weren't facing a threat as significant as we had several times before in conventional wars against great industrial powers.

3.  It's not over, entirely. Jonathan Zasloff points out that the Pennsylvania and Utah bar associations don't need a referral from DOJ - they can act independently, and they should given the information in front of them.  Similarly, UC Berkeley can independently use the information to determine whether someone acting this incompetently, crazily, or dishonestly meets the standard of a law professor.  I can't say I'm extremely hopeful of this happening, but the option exists.


UPDATE:  Kudos to Mike Potemra for fighting torture in the web pages of the National Review, of all places.  Posts like that help me believe that there's still hope.

Reviewing The Greatest Show on Earth: read The Ancestor's Tale instead

I'm a big fan of Richard Dawkins' science writing (haven't been interested in his atheism stuff). His latest book, The Greatest Show on Earth, unfortunately doesn't appeal that much to me, and I can only think of a limited audience who should read it. Science and evolution afficianados should instead read The Ancestor's Tale or any other Dawkins book, instead.

I guess he felt he hadn't comprehensively addressed the evidence for evolution.  You can't - Darwin had compiled too much evidence to do the comprehensive job he had planned, and it's increased exponentially ever since.  If you're trying to provide a tool useful for arguments with creationists, though, I wouldn't write a narrative book at all - I'd create a manual, something that allows easy referencing and searching for various arguments, maybe based on Panda's Thumb or the countless other resources out there.  Dawkins kept recommending Jerry Coyne's book, Why Evolution Is True, and maybe that's a better book for the evolution champions.

The book would be an excellent read for someone who actually takes creationism seriously, but I doubt they'll read it (or this blog post).  It might also be good for Dawkins fans who've read everything else from him and want something new - he's said his next book will be a children's book on myths, so the good science will be a while before we see it again.  Everyone else should find more interesting content in Ancestor's Tale.

UPDATE:  maybe worth adding that Greatest Show has received pretty good reviews, so most people disagree with me.



Bonus blogging:  why in heck did John Kerry have to hire a conservative that was spreading, in a stupid or deceptive fashion, extensive pro-torture propaganda?  If he wanted to reach out with an affirmative action hire of a conservative, there are plenty out there still who don't believe in torture.

Ticking time bomb torture and Inglourious Basterds

Ticking time bombs are a topic again on the right, thanks to The Underpants Bomber. Could it have made sense to "harshly interrogate" the bomber after subduing him to find out if there are other bombers on other planes, they ask. Given that neither the Underpants Bomber nor the Shoe Bomber from years earlier were involved in coordinated attacks, I think their cases argue against the hypothetical reasons to torture people.

But what about 911, where there was a coordinated attack? I think the problem with the moral "dilemma" is actually making the time short enough to rule out traditional interrogation while still being able to acquire reliable information from someone who has the easy choice of lying for a few minutes. My response to this argument:

I think torture could result in accurate information, but only when there's time to corroborate the tortured person's claims and inflict more severe torture if it turns out he or she lied. Game theory has shown that repeat player games are the ones that establish a level of trust.

That's the main problem with many ticking time bomb scenarios, including the hypothetical one that didn't actually happen last Xmas - the tortured person's best strategy, if he's got useful info for the other side, is just to lie during the few minutes that he needs to lie. Soon he's in the hands of the police.

Or the bomb explodes, which is preferable to captured person and there's no way for the interrogator to know otherwise. Even if you defeated and captured Mohammed Atta on the plane he hijacked, he can deny he knows of other hijack attempts or even name wrong flights, and there's nothing you can do about it.

Ticking time bomb justifications seem to either come as a vague claims, or hypotheticals that haven't occurred in real life. I don't doubt that it's possible to come up with a dangerous hypothetical, and maybe torture would be justifiable then, but a pro-torture policy doesn't seem to have a lot of justifiable application in the real world.

The exception to this would be wartime. I finally watched Inglourious Basterds, an okay-but-not-great Tarantino World War II film. In one scene, the American soldiers fighting behind German lines have captured German soldiers and need info on what threats they face. This seems a good case of a ticking time bomb scenario, and the Americans could have set up a scenario to retaliate against an informer giving false information. I think this could happen a lot during war. The fact that wartime torture of enemy soldiers is the one area where torture is most disfavored seems meaningful to me.

What "torture doesn't work" actually means

Possible meaning:

1. "No accurate and useful information has ever been given by detainees while being tortured." No one, except for the shallowest, self-satisfied strawman builder would give the statement this possible meaning.

2. "The value of useful information given during torture is hidden and overwhelmed by the false information and false leads given during the detainees' attempt to stop the torture." Some people believe this; I don't know whether it's true.

3. Variation on number 2 above, adding "the torture prevents opportunities for rapport-building techniques that get better-quality information with fewer false leads." I think this is what expert interrogators actually believe. I suspect they're right except for the never-happened hypothetical ticking nuclear bomb situation (one other possible exception: during actual combat, where capturing an enemy soldier in the middle of a firefight could give very useful information).

4. Variation on number 2 above, adding "the interrogators are are also likely to believe the false information given by the detainee because the detainee is seeking to give the response that the interrogator wants to hear." I think this is what happened with a number of detainees who were willing to say Al Qaeda was tied to Saddam, and the interrogators actually believed it.

5. "The value of any good intel from torture is far outweighed by the harm done to the effort to win hearts and minds and separate the terrorists from public support." This is an independent reason that complements numbers 2 through 4 above and is the one that settles it, in my opinion. Of course, right wingers and the faux moderates who position themselves on interrogations could care less about what is the actual road to victory.

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A tangent about additional rightwing nonsense: in discussing the National Review's current semi-defense of its 1964 opposition to civil rights, WF Buckley's alleged renunciation of prior racist views came up in the comments. I wrote a follow-up comment saying that I find much mention of his renunciation, but no actual quotes. If anyone's seen where Buckley comes clean, I'd like to know.

Pelosi being slippery on torture and her response to it

I see something of an analogy between Nancy Pelosi and Elizabeth Edwards - neither are responsible for the scandal that each knew about, but both knew about the scandal when it was a secret and didn't take the needed steps. Elizabeth should have killed her husband's campaign. Pelosi, it appears, did nothing at all.

TPM makes the excellent point that Pelosi's denying she actually knew waterboarding was used doesn't eliminate the fact that she knew it might be used, and did nothing. There's additional slipperiness going on, though:

• A top aide was briefed about actual use of waterboarding in 2003, and it's hard to believe he never told Pelosi.

• With the latest document release, Pelosi's spokesman Brendan Daly said, "As this document shows, the speaker was briefed only once, in September 2002. The briefers described these techniques, said they were legal, but said that waterboarding had not yet been used."

In fact, the document says the briefing included a "description of the particular EIT's [Enhanced Interrogation Techniques] that had been employed." Pelosi is challenging whether this document is accurate, but the spokesman's description of the document is flatout wrong - it does the opposite of absolving her.

• Finally, there's this statement from Pelosi: "It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred." This one really bothers me - exactly how did you express your concurrence, Madam Speaker? She's using language that suggests she did something, when I believe she did exactly nothing.

Amazing that so many Republicans thinks this absolves the need for truth commissions and legal investigations. It does the exact opposite. There's no potential legal violation by the Democrats, but those who knew and did nothing need to take their lumps, and stop being slippery about it.

Is Obama insane enough to let torture stay legal?

I find it a little hard to believe, but Andrew Sullivan reports "Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight."

Sullivan adds "It's obviously being placed by some Clinton and Bush officials angling for more continuity with Bush's torture regime."

A (still-Obama-hating FWIW) blogger at Talk Left refers to a John Brennan of Bush/Clinton CIA years as Obama's head of intelligence transition issues.

The New Yorker describes Brennan as a supporter of CIA torture techniques even despite the practical problems: "Setting aside the moral, ethical, and legal issues, even supporters, such as John Brennan, acknowledge that much of the information that coercion produces is unreliable."

It's all hard to believe. I'm actually hoping that the torture has even stopped with Mukasey now heading DOJ, so why Obama would want to keep the door open?

I'm seeing some blogs saying, don't criticize Obama until he's actually done something wrong, but what we're seeing is a push from the Democrats' right, and we need to push back.

Somewhat related issue on the other end of the spectrum is the rumor about appointing Robert F. Kennedy Jr. to the Environmental Protection Agency. A great environmentalist and fine lawyer, RFK Jr. has not used science appropriately in the whole mercury-vaccine issue and wouldn't be right for the job. Again we're told not to respond to rumors, but again I see a trial balloon sent up by somebody, and it's a problem.

A final footnote: I had read somewhere that RFK was representing mercury-vaccine plaintiffs, although I can't find confirmation of it. If true, it makes it very difficult for him to renounce the claims following new scientific results. I'd give a little slack to a lawyer stuck in the position of being a mouthpiece for his clients, but still....

Even McCain's fig leaf on torture is a lie

I knew that McCain betrayed his anti-torture principles by allowing CIA to torture while prohibiting the military from doing it. I didn't know that military interrogators could be temporarily designated as CIA officers. There is nothing left of McCain's anti-torture stance.

UPDATE: Somewhat tangential issue regarding Troopergate. Palin's use of her official power to fight her ex-brother in law is unquestionably corrupt, but I had thought it had a modest level of justification in him being a rogue cop. Turns out though that many of the allegations aren't as bad as she says.

Would you betray your beliefs after being slapped a few times?

I've been listening to more Intelligence Squared debates via podcast, including "Tough interrogation of terror suspects is necessary."

I think the anti-torture folks could have added a few more arguments. One of them is that I believe "minor torture" must become "torture" because minor pain isn't going to break a committed terrorist.

John McCain wrote that everyone has a breaking point, and after severe torture he reached his own point. I don't personally claim to be a tough guy, but it would take more than minor physical inconvenience, what Rumsfeld referred to as similar to standing at a desk, to get me to betray my beliefs. I expect that these hard, evil terrorists that the pro-"harsh interrogations" folks are talking about as meriting these interrogations are going to be tougher than me, and more like John McCain. The way to break them is torture, so pretending you're only going to barely intrude on comfort is a lie.

The alternative approach is better. Anything else is better.

UPDATE: Testimony from Colin Powell's former chief of staff (page 11):

Likewise, no one seems to have considered what I call the basic soldier test (how could they?—none of them were soldiers and they had removed the real soldiers from their deliberations).

What I mean by this is, for example, if you tell a soldier under pressure to produce
actionable intelligence that he can use a muzzled dog, he will do it faithfully. And when that doesn't work—and it isn’t likely to—the soldier will remove the muzzle. And when that doesn't work, he will let the dog take a bite.