Barry Eisler

Tuesday, February 01, 2011

Donald Rumsfeld, Defender of the Constitution (Really)

Cross-posted at the American Constitution Society.

Here's what I thought when I heard the Conservative Political Action Conference has decided to honor former Secretary of Defense Donald Rumsfeld with something CPAC calls the "Defender of the Constitution Award."

As I imagine CPAC is aware, Rumsfeld is the man who signed the very first memo authorizing the torture techniques that later became infamous with the revelations of photos from Abu Ghraib prison. Philippe Sands wrote the definitive book on the subject; it's called "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." The topic is also thoroughly covered in the bipartisan report of the Senate Armed Services Committee, "Inquiry into the Treatment of Detainees in U.S. Custody," which concluded:

The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld's December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.


I thought about how different things might be today if, instead of Rumsfeld, America had been blessed with a Defense Secretary who really was a defender of the Constitution, and who therefore would have refused to partake in its violation. Someone who valued the Constitution's prohibition on cruel and unusual punishment, who understood that the Constitution elevates to the Supreme Law of the Land treaties like the Geneva Conventions and the United Nations Convention Against Torture. Certainly we'd be safer. Our standing in the world, and in our own eyes, would be undiminished. And of course the Constitution itself would be stronger, having been spared a withering assault.

I thought about people like Alberto Mora, who fought Rumsfeld's torture memos as the Navy's General Counsel, and Major General Antonio Taguba, who was forced to retire for his critical report on torture at Abu Ghraib, and Air Force interrogators like Major Matthew Alexander and Col. Steve Kleinman, who have fought heroically against torture (Alexander's most recent book, "Kill or Capture," comes out today). I thought again of the Constitution, and of the condition it might be in today if these men had won and Rumsfeld had lost.

And then I thought about what kind of person, in the face of all this, would choose to honor a key architect and enabler of America's torture regime as a "Defender of the Constitution." You'd have to be an unfortunate combination: partisan, cynical, intellectually empty. You'd have to perceive of the Constitution primarily as a cheap prop in a public relations campaign, and be willing to exploit it that way. You'd have to be ignorant of irony and oblivious to Orwell.

All of which is a pretty fair description of what today in America passes for conservatism. It's a movement that doesn't know the difference between a defense and a desecration, and celebrates them as one and the same.
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26 Comments:

OpenID jahlishong said...

Barry,

Is the current use by the Obama administration of "rendition" to places like Egypt (Well, at least until this last week) better or worse? Are you going to condemn this, or is it only torture and unconstitutional when the president is a republican?

Tuesday, February 01, 2011 7:35:00 PM  
OpenID jahlishong said...

http://articles.latimes.com/2009/feb/01/nation/na-rendition1

But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.

The decision underscores the fact that the battle with Al Qaeda and other terrorist groups is far from over and that even if the United States is shutting down the prisons, it is not done taking prisoners.

"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."

Tuesday, February 01, 2011 7:53:00 PM  
Blogger Barry said...

J, if you were to read some of my other posts here, you would know that I oppose torture regardless of which party might be behind it. In fact, Obama, by his failure to investigate torturers from the previous administration, is himself in violation of Article 12 of the UNCAT. If he has been continuing the process of rendition to Egypt, he is in violation of Article 3. And if CPAC had decided to honor Obama with a Defender of the Constitution award, I would have had a lot to say about all of this, along with Obama's claimed power to imprison without due process and assassinate American citizens, too. But, as it happens, CPAC decided to honor Rumsfeld, instead.

It's always so odd to me when someone's first impulse is to try to turn torture into some sort of partisan litmus test. But if you look at the world through your own partisan prism, you'll probably assume others are the same.

Tuesday, February 01, 2011 9:39:00 PM  
OpenID jahlishong said...

Barry,

So Obama's presidency is also "America's torture regime", by your definition?

Wednesday, February 02, 2011 7:02:00 AM  
OpenID jahlishong said...

Barry,

Is SERE and stress positions used in military basic training torture as you define it?

Wednesday, February 02, 2011 7:06:00 AM  
Blogger Barry said...

J, as I've already alluded, your questions are answered in many of my previous posts on torture. You can just search for the word "torture" in the search bar in the upper lefthand corner; that ought to get you started.

Still:

1. In addition to the allegations of renditions to torturing countries and Obama's complicity with torture by virtue of his failure to investigate it as he is obliged by the UNCAT, discussed above, there are also credible reports of the use of Appendix M of the Army Field Manual to torture suspects at JSOC-run secret prisons (link below), and there is also the ongoing torture of Bradley Manning. So in the face of all this, how could the Obama administration not also be a torture regime? It is indeed, and the answer is so obvious I wonder why you would even ask it. Are you trying to determine if I'm sufficiently politically impartial? Would your energies not be better spent focusing on torture, rather than trying to sift through the politics of someone who condemns it?

2. No, SERE and stress training are no more torture than consensual sex is forcible rape. Is this another trick question? Again, the answer is so obvious I wonder why you would ask the question.

http://my.firedoglake.com/valtin/2010/10/18/soros-foundation-links-afms-appendix-m-to-u-s-torture-in-afghanistan/

Wednesday, February 02, 2011 11:22:00 AM  
OpenID jahlishong said...

1.
I'm trying to determine where you stand exactly. As an example, I define torture differently than you do.

2. I don't think waterboarding, stress positions, loud noise, sleep deprivation, exposure to heat/cold amount to torture. I don't think your rape concept applies. They consented to wage a terroristic jihad, and gosh, jihad can indeed be a struggle sometimes. I guess that if we are not allowed to interrogate them, then death by hellfire missile will have to do.

Wednesday, February 02, 2011 11:42:00 AM  
OpenID jahlishong said...

http://en.wikipedia.org/wiki/The_Falling_Man

I define the above as torture.

Wednesday, February 02, 2011 12:02:00 PM  
Blogger Barry said...

"I'm trying to determine where you stand exactly. As an example, I define torture differently than you do."

These are not the same thing. Nor do I understand the relevance of your personal definition of torture (or mine, for that matter). Torture is defined at law, for example, in the UNCAT and US 2340. You can easily find these on the Internet. You could even just Google something like, "legal definition of torture."

That mention of finding things on the Internet was a hint, by the way.

"I don't think waterboarding, stress positions, loud noise, sleep deprivation, exposure to heat/cold amount to torture."

If you would say the same were such things being done to American servicemen and women by Iranian captors, you would at least be consistent. Regardless, as a matter of law, you would be wrong. Again, I don't know why you would think your personal thoughts about the definition of something defined at law would be relevant.

"I don't think your rape concept applies."

But you haven't said why. Perhaps you would be equally comfortable being waterboarded by instructors in a course you had signed up for, knowing that you could stop the treatment at any time of your choosing simply by uttering a safe word, on the one hand; and being waterboarded by, say, jihadist captors six times a day for a month with no control over the process whatsoever, on the other. I doubt it. As for the rest of your opinion, is it based on any sort of firsthand experience? Any sort of research? (My impression from this exchange so far is that research is somewhat foreign to you).

Here's something you can watch free on the Internet: the documentary Torturing Democracy.

http://www.torturingdemocracy.org/

"They consented to wage a terroristic jihad, and gosh, jihad can indeed be a struggle sometimes. I guess that if we are not allowed to interrogate them, then death by hellfire missile will have to do."

You could only say "if we are not allowed to interrogate them" if you believe torture and interrogation are synonymous. This is so twisted, misguided, and empirically incorrect a notion it's not even worth addressing.

J, I've responded politely several times now to questions that are answered in depth all over this blog, answers that are easily findable here and through rudimentary Internet search skills. Please, do me a similar courtesy in now doing a little research before you post again. At least watch the video I've linked to. Thank you.

Wednesday, February 02, 2011 12:08:00 PM  
Blogger Barry said...

"I define the [falling man] as torture."

Well, this confirms what I had suspected but tried to ignore. Your attitude is, "someone did a terrible thing to us, and this justifies any subsequent behavior of ours." I come across this mentality fairly often. Its incidence is unfortunate, but the emotion behind it is powerful enough to eclipse rational thought, morality, and even self-interest. Ironically, it's the very mentality deployed by the people behind 9/11.

Wednesday, February 02, 2011 12:14:00 PM  
OpenID jahlishong said...

I think the Bybee Memo-8/1/02 Interrogation Opinion covers the legalities, although I'd be willing to have the US withdraw from UNCAT, if it makes you feel better.

I'm pretty sure Al Qaeda has never signed any international treaty, so why would they fall under any treaty protections?

I note that China and Cuba are among the signers of UNCAT. How's that working out for the Tibetans in China's custody, or the Cuban dissidents? At least the UN won't let them on their Human Right Council, right?

As far as US servicemen/women, they have a legal status when in the custody of signatories of the Geneva Conventions. As said before, AQ is not a signatory of any treaty.

http://mypetjawa.mu.nu/archives/183865.php

Their rules come from the koran, sunna and ahadith, not the Geneva Conventions, why should we treat them as honorable soldiers?

Your rape model does not comply, as they are not innocents we are waterboarding without reason, they are illegal combatants who knowingly and with deliberate thought target our non-combatant populations, as well as other non-combatants around the world, placing themselves in a Hostis humani generis status.

Were you in a match with another judo player, and he drew a knife and was attempting to sever your femoral artery, would you say "Ah, even though he has stepped outside the rules of the dojo, I will not."

Would you recognize the immediate threat of serious bodily injury or death and use deadly force in that scenario?

A final note, if you'll read the theology and theory that inspires the global jihad, you'll see that their motivation is not revenge, but what they see as a religious mandate to "smite the unbelievers" until we are submissive to the caliphate.

Wednesday, February 02, 2011 3:15:00 PM  
Blogger Luke said...

Barry, your argument becomes laughable when you say things such as "...being waterboarded by, say, jihadist captors six times a day..."

The jihadists cut off their captives' heads (as well as those of news reporters and other innocents). Jihadist terrorists behave worse than animals. They don't used controlled non-lethal methods like waterboarding, and to try to create any sort of moral equivalency between the methods of jihadists and our intelligence forces is beyond silly.

Barry, I suggest that you find a new topic, just as I will find another blog to visit.

Wednesday, February 02, 2011 7:02:00 PM  
Blogger ccressley said...

Is this argument a joke? Jahlishong and Luke aren’t making any sense. They are obviously arguing from emotion and belief, while Barry is clearly creating a rational and fact based argument.
Not until Jahlishong’s last comment does he or she even try to use facts. Though, it is done poorly. A memo supersedes actual law? Seriously? The memo does nothing but offer the Assistant Attorney General’s opinion if something is legal or not, and in this case it even states that torture ‘might’ be legal. Not that it is. Of course, I don’t even know why I bother to bring up facts, as they don’t matter to your kind. This is all about animal emotions from your point of view.

“I note that China and Cuba are among the signers of UNCAT. How's that working out for the Tibetans in China's custody, or the Cuban dissidents? At least the UN won't let them on their Human Right Council, right?” - Jah

Jah is also arguing that the U.S. should follow China’s lead in treating prisoners. Why should we follow China’s lead? Should we also become communist? Based on your logic China is a country we should emulate. If we should only emulate certain things from China, what is the determining factor? Obviously, I’m baiting you, as there is no answer for these questions.

You are also suggesting that the UN should, and you want them to based on wanting the U.S. to follow China’s lead, kick the U.S. off the Human Rights Council. I doubt you even realized you suggested that in your comments. Why? Because, they are emotional/belief driven comments.

“The jihadists cut off their captives' heads (as well as those of news reporters and other innocents). Jihadist terrorists behave worse than animals.” - Luke

Based on Luke’s logic (of course we are still ignoring law) we should bring ourselves down to the Jihadists’ level and become animals like them. We shouldn’t live up to our ideals. We should destroy ourselves to join them in the mud.

“They don't used controlled non-lethal methods like waterboarding, and to try to create any sort of moral equivalency between the methods of jihadists and our intelligence forces is beyond silly.” – Luke

It’s beyond silly to suggest our methods are non-lethal or controlled. Prisoners have been killed and captors have gotten out of control numerous times. Plenty of photos out there to document it.
“Your rape model does not comply, as they are not innocents we are waterboarding without reason…” – Jah

Really? In the thousands of individuals who have been captured and tortured, not one of them was innocent? Wow! I guess our government is perfect. Who knew?

“Were you in a match with another judo player, and he drew a knife and was attempting to sever your femoral artery, would you say ‘Ah, even though he has stepped outside the rules of the dojo, I will not.’” – Jah

Thursday, February 03, 2011 5:46:00 AM  
Blogger ccressley said...

Your Judo analogy is incorrect on a lot of levels, but let’s focus on only one…the knife. In your example the “knife” represents torture. So, if this was real, it would actually be a rubber knife because torture has been proven ineffective time and again. So, the judo competitor with the rubber knife would be focused on using a weapon that didn’t work, and he would be defeated easily. On top of that, the millions of spectators would start to form opinions of the two combatants. Over time they would see the non-rubber knife user as trusted, honorable, and smart, while viewing the idiot with the rubber knife as untrustworthy and not even smart enough to be deceitful with a weapon that works. Who in the end wins the hearts and minds? Of course, that’s one of the real battles the pro-torture crowd just can’t comprehend.
In the end none of what I said will matter. Why? Because, neither of you are presenting a rational argument. A rational argument can be made for torture (it doesn’t have much going for it, but it can be made), but you two aren’t making one. Both of you are making emotional and belief based arguments. Thus, the facts don’t matter, so further response to either of you is useless.

Thursday, February 03, 2011 5:46:00 AM  
OpenID jahlishong said...

If torture is so useless, why is Obama rendering jihadists to Egypt, Syria and other places that take human rights oh so seriously?

As the outrage for the left has been muted, I guess torture became ok after the seas stopped rising and the earth began to heal. Kind of how the anti-war movement showed that it wasn't really serious about being anti-war, just anti-Bush/pro-al qaeda.

The above mentioned memo was an analysis as to what could be done legally in regards to "enhanced interrogation". Waterboarding, stress positions and other techniques were found to be lawful for the CIA to use.

The UN and UN treaties have proven to be less than worthless, yet we are to take them seriously? China and Cuba on the Human Rights Council?

Anyone think that a Chinese jihadist in the custody of the Chinese Ministry for State Security is going to be interrogated pursuant to the UNCAT?

Thursday, February 03, 2011 7:09:00 AM  
Blogger ccressley said...

"If torture is so useless, why is Obama rendering jihadists to Egypt, Syria and other places that take human rights oh so seriously?"

Again, using your logic, everything the government does is done because it works. The government is infallible in your argument.

Also, I the vast majority of experienced interrogators say torture doesn't work.

Here is a link to a page with multiple expert interrogators stating torture doesn't work.
http://georgewashington2.blogspot.com/2009/04/top-interrogation-experts-say-torture.html

To be clear, the above mentioned memo does not state what is legal. The above mentioned memo says what MIGHT be legal. Though, it is far from the spirit of the law.

I love how every part of your argument I refuted, you now conviently ignore, and you add stuff no one mentioned (Left, Obama, etc.) The assumption that someone opposed to what the Right is doing is automatically Left is amusing, but not unexpected.

As I predicted it is useless to respond to you. I just added the little bit above to prove it.

Thursday, February 03, 2011 8:05:00 AM  
OpenID jahlishong said...

I'd never argue that the government is infallible, but there seems to be many within the nat'l security structure in various administrations, including this one that seem to find value in the rendition policy and the interrogations performed by foreign security services in places not well liked by Amnesty Int'l.

Why?

Why is Gitmo still holding prisoners? Where are the civilian trials Obama promised?

Thursday, February 03, 2011 8:12:00 AM  
Blogger ccressley said...

By the way, I apologize to everyone reading this for my tone and letting emotion taint my argument a little. I knew I was doing it and didn't care. I'm just so tired of listening to opinions backed by nothing being propped up as legit arguments, when they aren't even close.

Thursday, February 03, 2011 8:14:00 AM  
Blogger ccressley said...

Dude, if you can't see how your previous argument suggests the government is infallible you shouldn't even be commenting. Either all of what the government does has merrit or you can't use the "they still do it" arguement.

Thursday, February 03, 2011 8:17:00 AM  
OpenID jahlishong said...

I get that Bush was evil and stupid, but why would the wonderful and enlightened Obama (peace be upon him) use rendition, especially if it doesn't work?

Thursday, February 03, 2011 8:21:00 AM  
OpenID jahlishong said...

http://www.nytimes.com/2009/08/25/us/politics/25rendition.html

WASHINGTON — The Obama administration will continue the Bush administration’s practice of sending terrorism suspects to third countries for detention and interrogation, but pledges to closely monitor their treatment to ensure that they are not tortured, administration officials said Monday.


Maher Arar testified in 2007 before a House panel about his transfer by the United States to Syria, where he was tortured.


Human rights advocates condemned the decision, saying that continuing the practice, known as rendition, would still allow the transfer of prisoners to countries with a history of torture. They said that promises from other countries of humane treatment, called “diplomatic assurances,” were no protection against abuse.

“It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture,” said Amrit Singh, a lawyer with the American Civil Liberties Union, who tracked rendition cases under President George W. Bush.

Thursday, February 03, 2011 8:29:00 AM  
Blogger Coral Russell said...

Barry, glad to see your intelligent discourse on politics. Now to go check out some of your books! :)

Thursday, February 10, 2011 12:07:00 PM  
Blogger wheelchairs : Manish Steel Works said...

I really appreciate your post and you explain each and every point very well.Thanks for sharing this information.And I’ll love to read your next post too.

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Friday, February 18, 2011 3:39:00 AM  
Blogger Travis said...

"If torture is so useless,"

Whether torture works or not isn't (and shouldn't be) the issue.

Killing political dissenters has been shown to have a certain utility throughout history. Still wrong, still evil.

Taking your stuff might have a certain sefulness for me, especially if you've got some nice things. Still not right.

Friday, March 18, 2011 9:10:00 AM  
Blogger Travis said...

Although to be fair I do realize you were responding to "[torture]proven ineffective time and again"

It's true that there are many cases that can be cited to show torture is ineffective. There are also cases where it has worked. A big distinction is if you simply want a confession or you want reliable information. Beating confessions out of people has a long history of successfully getting confessions. But are the people actually guilty? Who knows?

Friday, March 18, 2011 9:16:00 AM  
Blogger Not-a-neo_con said...

Barry,
First, I’ve been enjoying your books. Thanks for some great reads.
Looking through your blog archives, I came across the entry about Rumsfeld, Defender of the Constitution (Really).
I don’t disagree with the assertions you make about our leaders overstepping the boundaries of their legal authority. But, I would like your take on this thought.
At the end of the Rumsfeld blog you state
“All of which is a pretty fair description of what today in America passes for conservatism. It's a movement that doesn't know the difference between a defense and a desecration, and celebrates them as one and the same.”
Here’s my problem with your statement. To my mind there is an enormous difference between a conservative and a Republican. I don’t think we’ve had a truly conservative president in a very long time. There may be a few in congress, but they are overshadowed by the Party they belong to. The media has done a great job making the two synonymous and you seem to have bought into that thinking. I disagree. The best word we have at the moment for that side of the isle is neo-con, but they are not conservatives.

Tuesday, February 05, 2013 9:58:00 AM  

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