Monday, February 20, 2006

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See if this sounds familiar....

Last month I blogged about the Newsweek story on the rebellion of politically-appointed Justice Department lawyers against the Dick Cheney/David Addington approach of how to run the war on terror and the executive branch.

I got a powerful whiff of déjà vu upon seeing that The New Yorker's Jane Mayer has a story about Alberto J. Mora, the general counsel of the United States Navy until January of this year. Why? Well, three reasons.

First, the rebellion story sounds awfully familar:

One document, which is marked “secret” but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects.

The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guantánamo Bay, Cuba. It reveals that Mora’s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq’s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush’s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.” He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as “unlawful,” “dangerous,” and “erroneous” novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.

In important ways, Mora’s memo is at odds with the official White House narrative....

Mora thinks that the media has focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. “To my mind, there’s no moral or practical distinction,” he told me. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.”

Second, the description of Mora sounds similar to the conservative DOJ lawyers who nevertheless resisted Bush's proposed policy changes:
Mora—whose status in the Pentagon was equivalent to that of a four-star general—is known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed.... Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee. He strongly supported the Administration’s war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. “It’s my Administration, too,” he said.
Third, the degree of duplicity going on just depresses the living hell out of me. Consider this section:
Without Mora’s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in [Pentagon general counsel William] Haynes’s letter to [Senator Patrick] Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. “It seems that there was a two-track program here,” said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. “Otherwise, why would they share the final working-group report with [head of Southern Comabd General James] Hill and [Guantánamo commander General Geoffrey] Miller but not with the lawyers who were its ostensible authors?”....

The senior Defense Department official defended as an act of necessary caution the decision not to inform Mora and other legal advisers of official policy. The interrogation techniques authorized in the signed report, he explained, were approved only for Guantánamo, and the Pentagon needed to prevent the practices from spreading to other battlefronts. “If someone wants to criticize us for being too careful, I accept that criticism willingly, because we were doing what we could to limit the focus of that report . . . to Guantánamo,” the official said.

In fact, techniques that had been approved for use at Guantánamo were quickly transferred elsewhere. Four months after General Miller was briefed on the working-group report, the Pentagon sent him to Iraq, to advise officials there on interrogating Iraqi detainees. Miller, who arrived with a group of Guantánamo interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S. commander in Iraq at the time, used the report as a reference in determining the limits of their interrogation authority, according to a Pentagon report on Abu Ghraib.

A lawyer involved in the working group said that the Pentagon’s contention that it couldn’t risk sharing the report with its authors “doesn’t make any sense.” He explained, “We’d seen everything already.” The real reason for their exclusion, he speculated, was to avoid dissent. “It would have put them in a bind,” he said. “And it would have created a paper trail.”

UPDATE: Here's a link to Mora's memo (hat tip: Andrew Sullivan).

ANOTHER UPDATE: I've met John Yoo several times at conferences, and each time I've found him an engaging individual with a lively mind. But I have to think he's engaging in wishful thinking in this response to a interview:

I would like to say that it is my understanding that the United States does not engage in torture, and that the reports of abuses that have occurred in Iraq or elsewhere appear to have been the result of individuals acting outside official policy. Abuses, while regrettable, sometimes happen in large organizations when individuals violate the rules.
Link via Greg Djerejian.

posted by Dan on 02.20.06 at 01:04 PM


That "senior Defense Department official" badly needs his identity exposed. Anonymous sourcing should not be a cover for so blatantly dishonest an explanation of decisions within the government.

posted by: Zathras on 02.20.06 at 01:04 PM [permalink]

Re: "The degree of duplicity going on just depresses the living hell out of me..."

So draw the natural conclusion for what should be done next:

Impeach George W. Bush.
Impeach Richard Cheney.
Do it now.

posted by: Brad DeLong on 02.20.06 at 01:04 PM [permalink]

Ah, Brad Delong, the voice of reason and moderation.

posted by: Robert Schwartz on 02.20.06 at 01:04 PM [permalink]

The voice of reason and moderation, trying to forestall a radical and unconstitutional distension of executive power and to halt lawless and unilateral acts, undertaken in secrecy, of snooping, detention, and torture.
As compared to an eminently reasonable and moderate impeachment in 1998 for the high crime of lying about being in receipt of acts of fellatio.

posted by: Comparativist on 02.20.06 at 01:04 PM [permalink]

It is a wonder: I do still think of myself as part of the centrist, bipartisan, fiscally conservative, internationalist *center*.

posted by: Brad DeLong on 02.20.06 at 01:04 PM [permalink]

What the hell is a document "marked 'secret' but not classified"?

When I used to write the things, the minute you typed (S) on a paragraph, the document was classified secret or higher until and unless downgraded on review.

posted by: Charlie (Colorado) on 02.20.06 at 01:04 PM [permalink]

It is a wonder: I do still think of myself as part of the centrist, bipartisan, fiscally conservative, internationalist *center*.

Brad, I don't think that opinion is universally shared.

Maybe in Berkeley you're a centrist.

posted by: Charlie (Colorado) on 02.20.06 at 01:04 PM [permalink]

Everyone's views on reason and moderation aside, I think it a mistake to relate every act of misfeasance or malfeasance on the part of the executive branch to a change in its leadership, rather than with a view to its causes and consequences.

The salient fact of American politics today is that the business of government has been overwhelmed by the permanent campaign. The record of the Bush administration itself (to say nothing of Congress') reflects this. The dominance of the permanent campaign has led to people getting deeply involved in policy who have no business there -- who lack public spirit and too frequently also lack the minimum level of knowledge required to address great issues of policy without botching them.

This group of people does not consist only of a few executive branch officials in the current administration, but many in the last two as well, large numbers of Congressional staff, and political operatives attached to the major parties or moonlighting as lobbyists and media talking heads. Unhappily it also includes most of the media, especially the electronic media, which being owned mainly by companies whose main business is entertainment seek to cover the most entertaining part of public affairs to the detriment of every else -- the most entertaining part being, naturally, election campaigns.

Pervasive as is the influence of the permanent campaign, though, it cannot change the fact that many important actions of the government normally have no electoral consequences or significance. This is especially true of actions taken before a Presidential election year actually begins. The public simply does not follow government in great enough detail or with a long enough memory to impose electoral penalties on an administration that errs, or even transgresses against black-letter law, years before a President is chosen. Brad DeLong may think it ungracious of me to point out that the public is especially unlikely to act on the basis of an issue -- like the treatment of detainees in Iraq -- that the opposition's national candidates are too cowardly to raise in the course of a Presidential campaign.

What is the relation of calls for impeachment to the permanent campaign? Is this not a question that answers itself? Impeachment is not even a remote possibility, certainly not after the experience of the last experiment with that procedure or with a Congress controlled by a member of the President's party. The public at large has no interest in it. But for zealous partisans it is a fine slogan with which to keep the blood warm until election day nears and it is time to kick the permanent campaign into high gear. It also neatly defines the battle lines as the President's party against the other guys, with the predictable result that "the other guys" have great difficulty in getting members of the President's party to take even very serious blunders (or worse) by an incumbent administration seriously.

All of this is not to say that zealous partisans of Brad DeLong's stripe are not entitled to their opinions, only that during discussions of policy they should know their place. To a large extent they are what is wrong with the American political system today; whatever the extent of the Bush administration's contribution to our problems, they are not the solution.

posted by: Zathras on 02.20.06 at 01:04 PM [permalink]

Ah, as the smoke clears and the mirrors shatter, perceptions of truth begin to emerge.

posted by: john on 02.20.06 at 01:04 PM [permalink]

Among the most popular management books of the last decade was Malcom Gladwell's "The Tipping Point", which describes the Stanford Prison Study, including the kinds of conditions that create abuse. It was published in 2000 and I'll bet at least half the CEO's in America read it, and probably many senior leaders in government.

Therefore, I would say that not only was it reasonable to assume that abuse was highly likely, it was also reasonable to assume that anybody who read anything would know exactly why it was likely.

What seems reasonable and moderate is to assume that anyone involved with the formulation of interrogation of policies either did know or should have known what to expect.

posted by: Robert Bell on 02.20.06 at 01:04 PM [permalink]

They opened the door to a little bit of torture, and a whole lot of torture walked in. As the people in charge knew or absolutely should have known it would.

So, Dan (et al.), at what point does this cruelty and abuse become systemic? For a person who self-identifies with the conservative side of the American spectrum, are there values that trump loyalty to the Republican party and the person of George W. Bush? When do they come into play?

posted by: Doug on 02.20.06 at 01:04 PM [permalink]

My father would have called all of you "over educated idiots." Most of the current government officials have 20, 30, 40 years service. ie they are mostly 44 and older. And every official is obstructing George for patriotic reasons. Not because he has upset their careers. And they are always right. Ha ha ha.

posted by: Huggy on 02.20.06 at 01:04 PM [permalink]

Our government has institutionalized cruelty to certain prople. Some of whom, it seems, really didn't terrorize anyone. And gone to great lengths to ensure it could get by with it.

What, as a nation, should we do about it?

Impeachment? I don't think enough of the nation thinks the crime worthy of it to entertain going through all that again. But I am minding talking about it less and less. I just hope the Soros-funded understand what is an impeachable offense and what is just differences in policy.

I think Z's discuission of the permanent campaign -- though certainly true -- is a bit beside the point. It feels like cover that allows everyone to make a sophisticated argument about everything being politics, and place an intellectual veneer on our apathy about the nasty things done in our name. As Z argues persuasively elsewhere, it isn't our job to heal the sins of the world. But surely we do need to do what we can about our own sins.

Well, Congress passed a law. That might settle things. We know that our President has the utmost respect for the laws he has passed in the name of national security.

Funny. Why do I feel like talking about impeachment again?

posted by: Appalled Moderate on 02.20.06 at 01:04 PM [permalink]

Dan, the New Yorker has a huge stake in pushing the prisoner abuse/torture line. Can you say Seymour Hersch?

posted by: Don Mynack on 02.20.06 at 01:04 PM [permalink]

"Zealous partisans of Brad DeLong's stripe"?


I was a John M. Olin Fellow at the National Bureau of Economic Research. The first thing I worked on in the Clinton administration was the 1993 budget--a proposal which Bob Dole, Bob Michel, and Newt Gingrich said made sense was squarely in the fiscally-responsible bipartisan center, but that they were going into opposition in the hope that if the economy tanked in 1994-1996 they could make political hay. The second thing I worked on in the Clinton administration was NAFTA, with 75% of Congressional Democrats initially opposed. GATT and the WTO. Welfare reform. The Mexican peso crisis. I wrote memos on what kinds of private accounts would strengthen the Social Security system. I headed an internal Treasury group on whether it would be possible to write an effective, useful balanced-budget amendment.

Give me a Republican Party leadership that is less malevolent, mendacious, incompetent, and idiotic, and I would be a *lot* less "partisan." The call for impeachment is not a move in any partisan "permanent campaign": it is a sober judgment of what is in the national interest. It's unlikely to happen. But is there anybody here whose heart would not be lifted if Bush and Cheney were to resign today?

Brad DeLong

posted by: Brad DeLong on 02.20.06 at 01:04 PM [permalink]

President Dennis Hastert, Prof De Long?

Well, well, viva K Street!

posted by: Appalled Moderate on 02.20.06 at 01:04 PM [permalink]

A lot better than what we got now...

posted by: Brad DeLong on 02.20.06 at 01:04 PM [permalink]


"ANOTHER UPDATE: I've met John Yoo several times at conferences, and each time I've found him an engaging individual with a lively mind."

There's a common thing among intellectuals, confusing 'lively mind' with 'not evil'. Dan, John Yoo should be put to death, and in a somewhat better world, Brad would see John's head on a spike eveytime he passed the Berkeley Law School building. In a more than somewhat better world, of course, Yoo would have never gotten near power.

posted by: Barry on 02.20.06 at 01:04 PM [permalink]

I'm not up on impeachment law, but here's a question:

Can Rumsfeld be impeached?

And if so, and if it's correct that he ordered cruel treatment of prisoners in violation of law, then should he be impeached?

I think there are much stronger grounds for impeaching Rumsfeld than Bush, on this issue at least. The NSA program is another matter.

posted by: Anderson on 02.20.06 at 01:04 PM [permalink]

"Give me a Republican Party leadership that is less malevolent, mendacious, incompetent, and idiotic, and I would be a *lot* less "partisan.""

It is really kind of humorous.

posted by: Robert Schwartz on 02.20.06 at 01:04 PM [permalink]

The reply to R. Schwartz has recently been made by Glenn Greenwald:

"It used to be the case that in order to be considered a "liberal" or someone "of the Left," one had to actually ascribe to liberal views on the important policy issues of the day – social spending, abortion, the death penalty, affirmative action, immigration, "judicial activism," hate speech laws, gay rights, utopian foreign policies, etc. etc. These days, to be a "liberal," such views are no longer necessary.

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based. And the more one criticizes him, by definition, the more "liberal" one is. Whether one is a "liberal" -- or, for that matter, a "conservative" -- is now no longer a function of one’s actual political views, but is a function purely of one’s personal loyalty to George Bush."

posted by: Doug on 02.20.06 at 01:04 PM [permalink]

To quote that Frenchman who wrote during his country's dirty, torture-ridden war in Algeria, I should like to love justice and love my country.

Or, I should like to support a vigorous and unstinting war against islamist fascism and support a scrupulous and principled concern for our Constitution and democratic, humane principles.

That said, the calls for impeachment are IMO a stunt that undermines the effectiveness of the very valid anger expressed by Brad DeLong. I share that anger. Would impeachment be legally justified? Perhaps, but I'm not convinced that the Bush admin's transgressions are, all in all, significantly worse than the incompetence and negligence shown by Gorelick, Berger et al in the late 1990s. Not to mention that inexcusable, shambolic strike against the aspirin factory in E Africa.

I don't think a fair-minded centrist would skewer one admin only and let the other off the hook. So while I can agree with Brad (and Dan, and Greg D) that the Bushies' mendacity and incompetence is disgraceful, it's important to remember the context for their excesses: Clinton's extreme hesitation to pursue any kind of militarily-serious, full-court press against AQ in any theatre, coupled with a disgraceful willingness to launch missiles on third-party civilian sites in peaceful African nations and empty Taliban tents.

So fine, let's get angry. Shout if you like, and roll up your sleeves and roll your eyes and tongues in best Deanian form. But blaming one admin only doesn't cut it with me or with most Americans. The real problem is that our leaders, of both parties, are obviously winging this.

It's a bit like watching Lincoln and his generals' performance up to late 1863. There wasn't a more competent, non-Copperhead alternative then, and I don't really see one today. With the possible exception of McCain, neither party offers real leadership that's capable of doing much better right now. (Sorry, Brad, but John Kerry is an ass. Our party owes the nation much better than anyone-but-Bush.)

posted by: thibaud on 02.20.06 at 01:04 PM [permalink]

Doug: you are replying to a question I didn't ask. I was pulling Delong's chain for giving the same explanation for his outburst, that little kids give for theirs. "I wouldn't hit Tommy, cause he was teasing me." Anyone who allows the actions of others to control his thinking, emotions or behavior is acting childishly. There are a lot astute observers who think that Karl Rove is now running the Democrat party.

posted by: Robert Schwartz on 02.20.06 at 01:04 PM [permalink]

Re: Robert Schwartz: "I was pulling Delong's chain for giving the same explanation for his outburst, that little kids give for theirs. 'I wouldn't hit Tommy, cause he was teasing me'. Anyone who allows the actions of others to control his thinking, emotions or behavior is acting childishly."

So to believe that George W. Bush's violations of the law of the land are reason for impeachment is to act "childishly"? I'd hate to see Mr. Schwarz acting in what he thinks is an "adult" fashion.

posted by: Brad DeLong on 02.20.06 at 01:04 PM [permalink]

Well, it's not deleting comments of people who don't agree with you.

posted by: Robert Schwartz on 02.20.06 at 01:04 PM [permalink]

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