Sullivan: Bybee's "Good Faith"

Great post from Sullivan today about the legal precedents Bybee should have examined before signing off on the Aug. 1, 2002 torture memo. He also cites an NYT article from yesterday in which a former colleague of Bybee's from UNLV seems to validate my thesis below (see "Mormon Church members helped shape Bush torture program"). Looking forward to the Office of Professional Responsibility report.

Moment of Clarity

There's a huge amount of back-and-forth on the web and elsewhere right now about whether torture "worked" in extracting information from al Qaeda suspects and, if so, whether that means that the Bush administration was justified in ordering it. I just wanted to post something I noted in a discussion on Times and Seasons (which is a really great forum, by the way) about whether Bybee should be impeached. ("Bye, Bye, Bybee?") This is from the UN Convention on Torture, signed and supported by Ronald Reagan. To me, it cuts through the whole debate:

Article 1.1 (definition of torture):

"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

Article 2.2 (prohibition of use):

"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Got that? I'm not a lawyer, but this seems pretty unequivocal to me. No severe pain or suffering to elicit a confession. Period. Never justified, ever - including when there might be another attack coming. Period.

This isn't to say that Bush, Bybee, et al should have just read this statute and gone home. I understand that there must have been immense pressure in 2002 to do whatever it took to prevent another attack. (Leaving aside the likelihood that Bush and Cheney endorsed torture in an attempt to bolster the case for war in Iraq.)

What the statute says is that the question of whether a democratic nation may torture a suspect is more profound than whether that suspect possesses potentially useful information or not. The "ticking time bomb" scenario is not new; it's something political leaders - including Reagan - have grappled with for generations. It's the central question that determines whether a democracy lives or dies. The UN Convention on Torture makes the verdict crystal clear: No torture. Ever.

Not Buying in to the Sucker's Rally

Generally speaking, I think gauging the viability of the recent stock market rally comes down to a few basic indicators. They're not hard to spot for anyone who's willing to look. A few reasons I remain skeptical:

1. Auto sales. Don't let anyone tell you that manufacturing is some sort of a sideline business in America anymore. Industrial production is still a massive part of our economy (about 12% of total GDP as of the end of 2007, per the BEA, with a lot of that tied in to auto production). For the Big Three automakers, sales are down 49% (GM), 46% (Chrysler), and 43% (Ford) year-on-year right now, and 2008 was far from a banner year. Those are cataclysmic numbers, the kinds of numbers no business can survive - particularly a heavily leveraged business like GM. GM is now saying that they're cutting an additional 21,000 people and shuttering 13 plants before the end of 2010. It looks like it's going to continue to get worse, and the ripple effects for the economy will be horrific.

2. Option ARM resets. Most people seem to think that the worst of the foreclosure crisis is behind us. Those people apparently need to take a look at the massive number of ARM loans that are due to reset (ie, jack up homeowners' rates) over 2010 and 2011. It's potentially even worse than the wave we experienced in 2007 and 2008. This is the basic reason why the securitization markets have been all but frozen, and why so many people (Krugman, Stiglitz, et al) are so pessimistic about the Geithner plan to take "toxic assets" off the banks' books (the PPIP plan). Based on the number of ARMs that will be resetting in the next few years, investors can say with a pretty high degree of confidence right now that most of the mortgage-backed securities and troubled straight mortgage loans polluting the banks' balance sheets are going to end up being worthless. It's unfortunately not a matter of injecting liquidity, as Geithner seems to think it is. Again, the impact is going to be enormous.

3. The "other shoe" (consumer credit card debt) has yet to drop. Citi and other major card issuers are reporting growing charge-off rates in their consumer credit operations. In other words, more people are defaulting on their credit card balances. Americans are spending less and saving more these days, but they may not be able to deleverage quickly enough on their credit lines to prevent more big write-downs at the banks.

There are obviously other indicators to look at, such as the prospect of inflation, the value of the dollar, potential increases in interest rates, etc, but the underlying drivers of the economy - and the factors that dictate how long this recession will last - are the ones outlined above.

Have a super day, though!

Cheney Flipped Out, Man

I've read maybe hundreds of stories trying to figure out how the US slid into torturing-nation status, what motivated people at the top to do what they did, etc. The picture is still coming into focus. One clarifying point that Lawrence Wilkerson really drove home on Rachel Maddow a couple of nights ago, though, was that Cheney is a "fearful" man. Wilkerson was practically challenging Cheney to a street fight, saying that his five deferments during Vietnam were a result of Cheney's fear of service, or you know, getting anywhere close to one of those "war" things he's so fond of advocating. The charge seems to fit, and not just because I think Cheney is a bad guy (although I do).

Think about the scenario after the 2001 terrorist attacks as Hubie Brown might recount it (hat tip to Bill Simmons here): "You're Dick Cheney. According to everything we know, you're one of the best-prepared men in the world to face a disaster or attack. You were doing end-of-the-world preparedness drills at secret locations in the desert before a lot of us were born."

Sticking with the Hubie voice: "Now a major attack happens. Boom! This is what you're supposed to be prepared for. This is what George Bush is counting on you to deal with. But you know something no one else realizes - all your training was geared toward a threat from the Soviets. They're gone now. Your training is all totally irrelevant. But George and the rest of the team still think you know what's up."

"So what do you do? You're scared. You missed the signs that an attack was coming and now Americans are dead. You start grasping at straws. A friend of a friend of your dentist's golf partner's aunt told you that Mohammed Atta met with Iraqi agents in Prague. So you go with that. Richard Clarke and others tell you there's no way that happened, but that's all you've got. You're supposed to be the tough guy, the guy who knows everything, and that's all you've got."

"Your instinct is to bomb something - these terrorists have to have a base, right? - but Rumsfeld says there are no targets in Afghanistan. You're still panicking. Iraq. The targets have got to be in Iraq. But there's no proof. So now what? Do you torture this Zubaydah guy hoping he can give you something? If you're Dick Cheney in this situation, you go with that play every time."

The Hubie explanation resonates for me. Anybody else?

Mormon Church members helped shape Bush torture program

Hey folks, thanks for visiting the new site. Fair warning, this first post is a long one. Hope you'll stick with me.

I was raised Mormon and served a mission in Japan. I learned everything I know about honesty, service and loving thy neighbor as thyself in LDS Sunday School. The church’s members (which include most of the people in my extended family) are some of the most sincerely decent people I know. So I’m having a harder time than most understanding how Jay Bybee, returned Mormon missionary and honors graduate of BYU Law, could have authored the most clinical and most terrifying of the “torture memos” released by the Obama administration on April 16.

You know about Bybee. Facing a choice of whether to faithfully interpret the law or appease his superiors in the Bush administration, Bybee chose the latter. In a memo dated August 1, 2002, he invented a twisted justification for waterboarding, a controlled drowning technique used by torturers from Augusto Pinochet to the Khmer Rouge. The memo shows a man with a powerful ability to see what he wants to see: even though Bybee acknowledges that waterboarding constitutes a “threat of imminent death,” he concludes that it is not torture because it does not cause “mental harm lasting months or years.”

As the Washington Post reported, though, the people who oversaw the program from which the “enhanced interrogation” tactics were derived, the Joint Personnel Recovery Agency, knew what these tactics were. In a memo dated July 2002, the JPRA referred to the practices as torture and warned that they would only yield “unreliable information.” Presumably Bybee never saw this memo, but its existence demonstrates that there was no doubt in the minds of those who had seen the program at work that it constituted torture, contrary to Bybee’s opinion.

Moreover, Bybee must have known that the CIA was implementing a broadening dragnet to locate and detain terror suspects, and that some of the people caught up in this effort would likely be innocent. By creating a rationale for waterboarding and other brutal techniques out of thin air, Bybee’s opinion enabled the torture of those suspects as well.

In photos, the clean-cut Bybee looks like he could have been one of my Cub Scout leaders growing up. Many who know him, including Orrin Hatch, consider him a good and decent person. There’s evidence that he regrets his involvement in justifying torture, and may even oppose it personally. According to one of his former clerks on the Ninth Circuit Court of Appeals, when news of his involvement in the “enhanced interrogation” program first surfaced in 2004, Bybee remarked at a staff meeting, “When the republic would countenance the use of torture as an instrument of forging policy, truly the spirit of liberty has gone out of us.”

Yet the documents he authored are now disclosed for the world to see, and to paraphrase Andrew Sullivan, they are a window on how a democracy dies. I really don’t understand how any citizen of a democracy could write what Bybee did, much less a practicing member of the LDS church. Didn’t Christ say, “Inasmuch as ye have done it unto one of the least of these, my brethren, ye have done it unto me”?

At this point you may be asking, rightly, “What does Bybee’s religion have to do with anything?” His opinions presumably stem from his own reasoned understanding of the law, regardless of his faith. To attribute one of those opinions, right or wrong, to Bybee’s religious background would be to engage in blatant anti-Mormon bigotry. I get it, and I agree. Unfortunately, Bybee was not the only Mormon involved in these atrocities. Members of my former faith figured prominently at every stage in the development of the Bush / Cheney torture regime.

Bybee seems to have been recruited for his post at the Office of Legal Counsel by Tim Flanigan, a lawyer in the Bush White House Counsel’s Office who was also Mormon and was a friend of Bybee’s. As a member of a group of lawyers that called themselves “The War Council,” Flanigan was involved in early discussions on how to handle Abu Zubaydah, the high-value detainee who became the first US prisoner subjected to the torture program. So far Flanigan has flown under the radar in the scandal, but all the other members of the “War Council” – including David Addington, John Yoo, Alberto Gonzalez and William Haynes – were indicted by Spanish prosecutors earlier this month for their roles in the torture of five Spanish citizens held at Guantanamo. (Bybee was also named in that indictment.)

There’s more. It’s been widely reported that the tactics outlined in the Bybee memo were imported by the CIA from a military training program called SERE, for “Survival, Evasion, Resistance and Escape.” The SERE program subjects US soldiers and aviators to techniques used by the North Koreans in the Korean War to elicit false confessions from captured US military personnel. These tactics include waterboarding, sleep deprivation and excruciating stress positions; they’re the techniques addressed in the JPRA memo in July 2002. Military lawyers (per opinions written later in 2002) also believed that these techniques violated US law and the Geneva Conventions. But after Abu Zubaydah was captured, a Mormon contractor for the CIA named James Mitchell decided – possibly at the direction of those further up the chain of command – to use many of these brutal tactics to wring information out of Zubaydah anyway, despite protests from the FBI. Mitchell’s partner, Bruce Jessen, is also LDS and was also involved in implementing the torture tactics. The techniques Mitchell and Jessen introduced are now at the core of the debate on whether America will allow itself to become a torturing nation or not. In fact, Mitchell and Jessen feature prominently in the Senate Armed Services Committee report on US treatment of detainees that was declassified on April 21.

What’s going on here? How did four members of the LDS faith come to find themselves at the forefront of the unfolding war on terror, literally writing the rules as they went along? More importantly, how did they convince themselves, in each case, that the most extreme path was the right one? Why didn’t their common religious background provide an ethical barrier against the use of illegal interrogation tactics? I can only speculate, but I have some ideas. One possible answer (or at least, one source of insight) may come from understanding how many Mormons get into government service in the first place.

It is common knowledge that LDS church members are prized recruits for the CIA and FBI. Time Magazine reported in 1997 that both agencies have formal recruiting programs targeted specifically at Mormons. The intelligence and law enforcement communities – and presumably other sectors within the government – value LDS recruits for their honesty, work ethic and ability to pass background checks with flying colors. Their language skills (many are returned missionaries) are also coveted for translation and interrogation work. But many believe that LDS church members are valued by these agencies for another reason: their highly developed sense of obedience.

Mormonism works as both a belief system and a tightly structured social system, with each reinforcing the other. For young men, social status (and even status within one’s own family) depends on achieving certain milestones within the priesthood every few years: deacon at twelve, teacher at fourteen, priest at sixteen, elder at eighteen, then serving a mission at nineteen. Each promotion or calling is conditioned on strict obedience to LDS doctrine and the guidance of leadership. Miss a scheduled promotion and Mormon girls literally will not date you (after they turn sixteen, of course).

Church members are also told that they will forfeit God’s protection, both spiritual and physical, if they are disobedient. The myriad stories of faithful members saved from gunfire by their temple garments basically imply that, unless you have a valid temple recommend, you’re on your own the next time you get into a shootout at the OK Corral. There is also the bit about being separated from your family for eternity unless you live right, reinforced by “disciplinary councils” for those who go seriously astray. Add it all up and you have a group of people who know how to toe the line. (There are varying degrees of this “obedience bias” among the church’s members, of course, but compliance with doctrine and leadership is a ubiquitous refrain at all levels of LDS education.)

Republicans are better positioned to capitalize on this “obedience bias” among Mormons, since GOP views on social issues, leadership by prayer / divine guidance and the quasi-religious nature of the Constitution mesh with LDS social and doctrinal beliefs. The LDS tendency toward compliance with authority (particularly Republican authority), in conjunction with the sense of crisis that pervaded the White House throughout 2002 and the Bush culture of slavish loyalty, could help to explain why Bybee was willing to go so far over the line in his legal justification for torture. It may also partly explain why Flanigan failed to use his position to rein in Addington and Cheney as the torture program took shape. As for the ghoulish Mitchell and Jessen…I have no idea. Good luck with that “final judgment” thing, fellas. I personally think you’re screwed.

I want to point out that I am not questioning the relationship between LDS church members and their leaders. Mormons believe that their leaders are inspired by God to give the proper guidance to their respective congregations. Obedience to this guidance is a foundational principle of the faith, and I respect that. Nor is it my intention to cast aspersions on the church itself. What I am saying is that Mormons, particularly those in government, need to be careful not to allow their culturally-reinforced tendency to follow authority to permeate their view of the law or their professional responsibilities. This is especially true when your boss holds himself up as a pseudo-religious leader, as George W. Bush did. Your boss can be wrong – sometimes criminally wrong – even if he goes to church on Sunday.

The obvious counterpoint to all this is that there are hundreds of Mormons who serve and have served honorably in government. (I believe that ethically strong Mormons are more the rule than the exception, actually; we only hear about them when they skirt the line or cross it outright.) Brent Scowcroft, National Security Advisor to both George H.W. Bush and Gerald Ford, is an example of an LDS official who faced down countless difficult challenges during his career and managed to keep his values and ethics intact. If W had followed Scowcroft’s advice in 2002, we might have been spared the shameful and dishonest war in Iraq. (Incidentally, Bush and Cheney’s frustration at the absence of a link between Saddam Hussein and Al Qaeda appears now to have been a driving force behind the torture program.)

So, to young Mormons considering working for the CIA, or the Justice Department, or even the White House: ask yourselves why Uncle Sam wants you. Is it because you can be counted on to honor the laws and institutions of the United States and come up with the right answer in a time of crisis, even if it means saying “no” to those in power? Or is it because you can be trusted to “work the dark side,” as Cheney put it, even if some of your other cherished values get tossed aside along the way? Does the CIA or DOJ really want you for your honesty and intellect, or do they simply think you can be counted on to follow orders without pushing back? If you answered “yes” to part B of any of these questions, consider becoming a mob lawyer instead; it pays more and you’ll hurt fewer people.

UPDATE: Alyssa Peterson, the Arabic interpreter who killed herself after refusing to take part in "enhanced interrogations" of prisoners in Iraq, was also LDS. She had been reprimanded for showing empathy to torture victims. Thanks to Glen Warchol at the Salt Lake Tribune.