Tuesday, May 13, 2008

Tortured thinking, Part III -- the last witnesses

By Carol Gee

The House Committee on the Judiciary/Subcommittee on the Constitution, Civil Rights and Civil Liberties, held an important hearing on "Detainee Interrogation Rules" May 6. Today's post wraps up a series detailing what I think are the most significant aspects of that hearing.

What we learned is that, from very early on the lawyers at the Department of Defense, the Department of Justice, and the Office of Legal Counsel were tasked by their bosses to figure out how the law could be construed to immunize interrogators of U.S. detainees from torture charges. That is a serious accusation, but that seems to be what went on shortly after the first suspect was captured and was discovered to be uncooperative. Many in the administration, if not most, were convinced that another attack was imminent, and they were desperate to prevent that. Unfortunately that desperation seemed to mean "at almost any cost" to the integrity to the U.S. rule of law.

The first two posts in my recent series were:

  1. Tortured Thinking, Part I -- the Players focused on the committee members and the hearing agenda. The hearing was chaired by New York Democrat Jerrold Nadler. His House Judiciary Committee Chairman, Democrat John Conyers of Michigan, sat in and skillfully supported the very pointed questioning from all members. I also covered the way the Republican Members generally approached the agenda with considerable seriousness, and a relative minimum of politics. The agenda was to find out more about the various memos defining extreme interrogation (what many of us call torture), written by Bush administration officials during the aftermath of the 9/11 attacks in 2001.

  2. Tortured Thinking, Part II -- the Witnesses focused on two of the four witnesses' sworn testimony, that of British law Professor Phillipe Sands and Georgetown Professor David Luban. Sands has spent a year interviewing almost all of the people involved in this emerging scandal for his excellent historical analysis book, "The Green Light." He wrote a fascinating related article published in this month's Vanity Fair, referenced below. David Luban specializes in legal ethics; he pulled no punches in his testimony.

The last two witnesses, whose testimony is covered here, were former Reagan and Bush administration Counsel's Office lawyer David B. Rivkin and Professor Marjorie Cohn, President of the National Lawyers Guild. Their approaches to questions stood as contrasting bookends within the judgments of the four witnesses. Cohn used the term "war crimes" as opposed to Rivkin's statement, ". . . attorneys were subjected to great criticism, villified, even though the Supreme Court has upheld the key tenets of the policy saying that the Geneva Conventions do not apply to members of al Qaeda."

Professor Cohn:
Witness prepared statement: Marjorie Cohn
Professor of Law, Thomas Jefferson School of Law
President of National Lawyers Guild

Professor Cohn was asked by Chairman Nadler about criminal prosecution for a lawyer's giving his client advice. She posited that "conspiracy involves a common plan of wrong-doing." She added that this law does not have a statute of limitations. That statement must have put the professor in the spotlight with Republican committee members, who questioned her repeatedly. I paraphrase and summarize the most significant of the interchanges, in my opinion:
To Ranking Rep. Franks'
assertion that water-boarding is "controlled and only for a short time, and that some of our own soldiers were water-boarded," Cohn replied that the statutes regarding handling techniques involve the severest things we can do and that torture is illegal. She added that the information given by Khalid Sheikh Mohammed and Abu Zubaida was useless. Cohn asserted that relationship-building yields better results in the long run.
Republican Rep. Darrell Issa of California stated that he supported a ban on torture, and that "I do want to get this right and move on with that bipartisan decision made earlier" [later vetoed]. Issa asked Cohn if it is fair to lie to prisoners. She stated that interrogators cannot lie with threats against those close to the prisoner, "killing their wives, for example."
Republican Rep. Steve King of Iowa asked Professor Cohn if there had ever been a case of successfully saving lives through relationship building and gaining the trust of a prisoner. She named "Saddam Hussein, a rich source of information, who was treated with kindness by admirable soldiers, not interrogators who were mercenaries."
Bobby Scott, D-VA, asked Professor Cohn about the power of international law. It was pointed out that the Supreme Court has referred to ratified treaties in opinions. Cohn said, "There is no justification for torture under three different U.S. ratified treaties. There is no retroactive immunity allowed for torture, even when good information is obtained."
Mel Watt, D-NC, asked Professor Cohn to explain the concept of universal jurisdiction among nations over prosecutions of foreigners for heinous crimes around the world, such as the prosecution of Adolf Eichman. She encouraged foreign prosecutions for torture, if the U.S. does not.

David Rivkin
Witness prepared statement:
David B. Rivkin, Jr.
Partner, Baker & Hostetler, LLP.
Former Reagan administration attorney David Rivkin also worked for the Bush White House. As such he received almost as many questions as Professor Sands and regularly interceded during the hearing with counter arguments to the other three witnesses' testimony. What follows is what struck me about Rivkins' testimony:
To Rep. Franks' interchange with Professor Cohn [above] regarding the effectiveness of severe interrogation vs. relationship-building with prisoners, Rivkin characterized it as "naive, a moral cop-out. Coercive techniques need to be debated, but nobody wants to define them. What about psychological coercion? And there is a temporal element to pain and suffering -- 10 minutes and 10 hours are different. It just can't be protracted pain. There is plenty of case law on this."
Chairman Conyers, D-MI, commended all the witnesses, "This is a good way to get at the truth. We will use the legislative coercive process of subpoena to get others to testify." He asked Rivkin to submit a "pain" definition for the record.
Republican Rep. Mike Pence of Indiana made the point to Rivkin about "keeping all this secret so terrorists can't train to resist us." The attorney posited that "Psychological coercion might work. Unlawful combatants are different. Coercive techniques do work. And this needs to be decided in the light of day." After Professor Sands comments about the Brits' conclusions regarding how to fairly treat members of the IRA, Rivkin asserted that, "Some Brits disagree. Actually the Brits 'squeezed out' 700 IRA operatives, and the British lawyers were not prosecuted." Rivkin finished this discussion by defining al Qaeda as an "existentialist threat" as contrasted with the IRA.
Another southern Democrat, Artur Davis, debated with Rivkin's assertions, using as examples the different lawful methods used in Vietnam, and Israel under the Geneva Conventions. Davis defined torture as "medieval, barbarous, and from the terrorists. Torture is illegal in Israel, even if they are under daily siege and face an existential threat." Rivkin responded that "Israel made the decision to take very high risks." Davis asked Rivkin about a presidential pardon for members of the administration and the attorney answered "he may need to consider the reasons to do so, perhaps a blanket pardon."
Republican Darrell Issa wanted to know about the fairness of lying to prisoners to obtain information. David Rivkin said that the Supreme Court has ruled it is OK to lie to them "that their partner has already confessed, or to make threats of widening the arrest net. " Rivkin mentioned that "Andrew Fastow [Enron] was subjected to threats -- horrible pressure."
Rep. Keith Ellison, D-MN, wanted Rivkin to explain to him "what works?" Rivkin said that with coerced information,"In most situations, you can check out their claims. You usually have time to check out false leads." Ellison asked him for an example of a successful intervention involving the "ticking time bomb theory." Rivkin attempted the example of capturing Khalid Sheikh Mohammed, as noted in a National Review article by Stewart Taylor, calling it "as close as you can get." Rep. Ellison did not buy his argument, nor did Professor Cohn.
Rep. Mel Watt, D-NC, asked Attorney Rivkin, "What should the committee do next?" Rivkin urged him to"just find out the narrative of what happened, exercising prosecutorial discretion." He termed Congress' pursuing prosecutions, "madness, given the facts involved."

In conclusion, Chairmen Conyers and Nadler are absolutely on the right track. The committee has issued a number of subpoenas for those more directly involved in this episode. David Addington, VP Cheney's Chief of Staff, has been ordered to appear at the next hearing on June 26. Stay tuned.


(Cross-posted at South by Southwest.)

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