Jonathan Adler Raises Questions About Key Democrat Views on Interrogation Techniques

Update, Friday, December 5.  Eric Posner was kind enough to cite me on this and some other posts referenced under the Guantanamo tag.  Eric might well be right in saying that this is premature; I am blogging about this, but will look more seriously (i.e., assign a research assistant to dig out What They Said Under Bush, What They Said Under Obama and see whether this thesis has legs sometime next year once things have sorted themselves out.  The post below runs together different themes – improperly, perhaps, but the general point is one about walking back the dog in war on terror matters generally, including detention and interrogation issues.  

I think it is relevant that newspaper front pages are writing stories in a very different tone than they did during the past couple of years; if you regard the NYT front page, for example, as a kind of undeclared opinion magazine, then it is relevant how William Glaberson and his editors present things.  We legal scholars are more interested in what legal scholars have said then and now, but in many respects what the newspaper opinion-reporters say is more relevant to the political phenomenon.  

In any case, the world of opinion-maker opinion in this area seems to be moving now into four categories:

• the Kantian purists who have not budged from try or release, at one extreme;  
• at the other extreme, the consequentialists, represented by Eric and Adrienne Vermuele’s outstanding book applying cost benefit analysis to counterterrorism, and unapologetically so; 
• in the middle, those of us (Ben Wittes, for example, or Jack Goldsmith, or me) who have always been ‘impurists’; 
• and, finally, an emerging category that, I and Michael Ratner (if no one else) discern, of purists-turned impurists-but protesting their purity.  

I’m told by reputable sources that this last category doesn’t actually exist, but Ratner does not seem to agree (see below).  For my own part, I don’t recall those formerly urging try or release following up with me to offer anything like the detailed legal analyses of battlefield detention and the like that I seem to be offered today.  But, I’m expressing this as a blogger, and will see whether it looks worth the trouble to inquire, as a genuinely researched matter, whether indeed there seems to be a gap between then and now.  That’s with regard to scholars and international lawyers such as Professor Scheinin, who was kind enough to respond in a post linked by tags below.  With regard to opinion generators such as the Times, I think the change in tone and argument and implied cover is quite plain, as are the motivations behind it.

Finally, apologies that this link was down for a while – trouble trying to edit it so I took it offline until I get could back to the server.  And thanks to Eric for raising this.

Jonathan Adler, over at Volokh, cites to Glenn Greenwald on the possibility that key Congressional Democrats, starting with Senator Feinstein, may not be moving to require that the CIA conform to DOD standards on interrogation.  Here is the post.  It’s what I have sometimes called “serial absolutism.”  Not, in this case, I hasten to add, Human Rights First or Human Rights Watch.  But I figure at this point it is easier to let Michael Ratner keep track of who might conceivably be thought to have changed their views in the arrival of the new administration; his incentives are greater (he says below “some who may have Obama’s ear” – whom exactly does he mean?  I have said, well, the NYT, the LAT, the Economist, to start with, but Ratner is referring to Obama advisors).  

I’m sure there is a perfectly plausible explanation for why this is consistent with what was said under Bush; there always is, and were I a better lawyer I’m sure I could see it.  As it is, it all just looks to me like some people, at least, are changing their minds and grabbing some convenient cover.  I don’t see any other plausible way, for example, to read William Glaberson’s reporting for the NYT – both as the Times changing its mind and, once clear that Obama was going to win (the day before), moving to provide front page cover for why the positions it and its allies had taken re Guantanamo under Bush were suddenly shifting and why that was suddenly obvious and prudent and even … brave.

I know, I know, every time I put up one of these little bits suggesting that someone, somewhere is … changing their tune on detention, interrogation, etc., I get a wave of emails at school explaining to me in impressive legal detail how it’s not really a change, and that I just misunderstood what I thought I understood over the past five years.  Well, maybe, perhaps, I suppose … Or maybe it’s more like the Important New York Law Partner years ago when I was in practice who, after it became obvious we had given bad advice to a client on an important and expensive matter, said, “Look ’em straight in the eye and just say, ‘Consistent with our earlier advice to x, not x.’ ”

Are key Senate Democrats moderating their unequivocal opposition to the use of torture or less-severe coercive interrogation techniques? Glenn Greenwald thinks so. In particular, he notes that Senators Dianne Feinstein (who is the incoming Senate Intelligence Chair) and Ron Wyden had previously insisted that the CIA comply with the Army Field Manual when conducting interrogations, and even co-sponsored legislation to write this limitation into law. Now, however, both are indicating a more flexible stance.

If Senators Feinstein and Wyden have indeed altered their positions — and Greenwald makes a pretty strong case that they have — this would be consistent Orin’s postulate that Democrats must now be more supportive of broad executive power now that a Democrat will occupy the White House. We’ll have to see whether Republicans who took a permissive view of the Bush Administration’s interogation policies also have a change of heart.

And what has Ratner said about the “rehabilitation” of Gitmo?

But what of others whom the Bush administration asserts cannot be released? And what will be the fate of any new detainees under the Obama administration? These questions should be answered as they have been for 200 years in this country: if there is sufficient evidence, charge them with crimes and have trials in federal courts; if not, release them. Not much will have been accomplished if Guantánamo is shuttered while the practices that underlie it continue. Yet this is being suggested by some who may have Obama’s ear. They argue that holding some terror suspects without trial or charges is necessary. A National Security Court composed of specially appointed judges without juries, using watered-down, minimal due process, would make the decisions.

Suggestions to repackage Guantánamo with a legal gloss must be rejected. Congress would in effect be legitimizing the long-term, perhaps lifelong, detention of people without charging or trying them in federal courts. It would be correctly perceived by the world as a continuation of Guantánamo, would undermine Obama’s pledge to restore our moral standing and would weaken the foundation of one of our most precious civil liberties.

Oh heck, let’s just quote a big chunk of Eric’s post:

Ken Anderson has been working up a head of a steam about the incipient hypocrisy of Democrats who are quietly adopting Bush administration positions, or moderate variants thereof, after having spent eight years calling these very positions idiotic & criminal & similar things—also known as the Orin postulate. I had thought Anderson premature in his outrage—so far, he’s pointed mainly to NYT articles and the like which he thinks are setting the stage—but now erstwhile Obama supporters have begun to worry about the same thing, with respect to a range of issues, including torture, international law, and the war in Iraq. The evidence remains slim, but it is growing; it includes the machinations of Democratic senators, signals from the Obama administration about Iraq troop withdrawal, and—most of all—appointments of Clinton-era officials. Virtually everyone has forgotten that the Clinton administration took a pretty casual approach to international law and, while it did not torture people, had little compunction about rendering terrorist suspects to countries where they would likely be tortured. You might think that Clinton was less contemptuous of international law than Bush was (though this is less clear than it might seem), but this is at best a matter of degree, and a clean break, “change,” does not seem to be in the cards.

Lawyerly talents will be harnessed to the rationalization process—what was illegal under Bush turns out not to be illegal under Obama because of some subtle variation in the structure of the project (which itself will be used to prove that the Obama administration takes the law more seriously—why else, after go to the trouble of rationalizing law-breaking?). Obama defenders will also seize on subtleties in timing and emphasis to inflate the differences between the two administrations. We already hear that Obama will support the Law of the Sea treaty while Bush did not (in fact, he did), or that Obama will take a climate treaty more seriously than Bush (maybe, but the Bush administration committed itself to greenhouse-gas reductions at Bali). It will be of great interest to see how the Obama administration approaches the International Criminal Court. Here, too, the Bush administration has been willing to work with the institution without signing America up. Will Obama go farther? This will be a key test. The ICC offers little material advantage to the United States unless you subscribe to “international rule of law” arguments that we will all be safer when international legal institutions are stronger. Obama could face a fight from the military and the security agencies, especially if the latter understand that harsh interrogation will continue to occur. Are the speculative gains worth these real political costs, or will Obama’s advisors remember Clinton’s gays-in-the-military debacle and decide that a better use of Obama’s political capital lies elsewhere?