"Ain't Gonna Study War No More"

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Sunday, December 18, 2005

Shocking The Conscience Of America

Bush And Cheney Call For The Right To Torture And Are Decisively and Correctly Rebuffed by the House

If the events I am about to describe were taking place in a movie, or novel, I would lose my ability to suspend disbelief: Who could conceive of an American President and Vice President demanding that Congress give them authority to torture anyone, under any circumstances?

Yet that is exactly what happened. Until Congress -- finally -- showed some institutional pride and told Bush and Cheney that it would not tolerate torture.

To place this activity in context, I have been trying to think of a similar "un-American" low point in the American presidency. Possible candidates might include John Adams's approval of the Alien and Sedition Act of 1798, or Abraham Lincoln's suspension of habeas corpus during the Civil War.

But neither of these moments strikes me as sufficiently shameful. Indeed, not even Franklin Roosevelt's horrific internment of Japanese-Americans during World War II is, in my view, as low a point as President Bush and Vice President Cheney's call for the unrestricted, unreviewable power to torture. It seems the precedent for Bush and Cheney's thinking resides in the Dark Ages, or Stalin's Russia.

The Bush/Cheney presidency has been pushing the nation toward an atrocity unmatched in the annals of American infamy and ignominy. Thankfully, a few wiser men and women in Washington have saved us from the national disgrace Bush and Cheney insisted upon imposing on the nation.

If you have not been following this shameful saga, here is a brief recounting of the key events. A sensible resolution appears to be at hand.

McCain's Torture Amendments

In October and November of 2005, Senator John McCain (R-AZ) offered amendments to the Defense Department's authorization bill and its appropriations bill. Apparently, McCain sought to avoid having his amendments defeated based upon a parliamentary technicality. And he succeeded, attaching the amendments to both pieces of legislation.

The first McCain-sponsored amendment is titled "Uniform Standards for the Interrogation of Persons Under the Detention of the Department of Defense." It simply states that persons "in the custody or under the effective control of the Department of Defense" can only be interrogated pursuant to the United States Army Field Manual on Intelligence Interrogation. (The new edition is about to be released; let us hope it does not contain unwelcome surprises for Senator McCain, and that the Army has proceeded, here, in good faith, rather than trying to undermine the Senator's legislation.)

The second McCain-sponsored amendment is titled "Prohibition On Cruel, Inhuman, or Degrading Treatment or Punishment of Person Under Custody or Control of the United States Government." This provision requires individuals in the custody of, or under the physical control of, the United States Government, regardless of nationality or physical location, not be subjected "to cruel, inhuman, or degrading treatment or punishment."

When officials in the White House leaned of these amendments, they tried to block them. Senate Majority Leader Bill Frist tried, but failed, to procedurally prevent Senator McCain from offering the amendments. Then the White House threatened that President Bush, who has not vetoed a single piece of legislation since assuming office, would veto any legislation that contained McCain's amendments, even if it meant shutting off funds for the Department of Defense (a move that would have posed no small threat to national security).

Senator McCain, joined by former military judge and current Senator Lindsey Graham (R-SC), called the bluff of the White House, and pushed forward. The U.S. Senate voted 90 to 9 in favor of McCain's amendments. (Senator Corzine (D-NJ), who was running for governor, was absent). The nine Senators who, with their votes, refused to prohibit torture deserve mention, for notwithstanding mealy rationalizations, their votes should haunt their political careers: Senators Allard (R-CL), Bond (R-MO), Coburn (R-OK), Cochran (R-MS), Cornyn (R-TX), Inhofe (R-OK), Roberts (R-KS), Sessions (R-AL), and Stevens (R-AK).

The Reasons For, and Importance of, The McCain Amendments

Bush has repeatedly said, "We do not torture." Secretary of State Condoleezza Rice has repeatedly claimed the United States does not engage in "cruel, inhuman, or degrading treatment." And CIA director Porter Goss says his agency "does not do torture. Torture does not work."

Why, then, was it necessary to clarify the law? Because no one believes the Bush Administration on this issue. Recall the torture memos, in which the White House was defining away torture. As The Economist commented, the words of these officials count "for little when the administration has argued, first, that during time of war, the president can make just about anything legal, and, second, that the UN Convention Against Torture does not apply to interrogations of foreign terrorist suspects outside the United States."

Senator McCain's agenda has been clear. His first amendment is based on the military's experiences in Afghanistan and Iraq: As he explained, "We placed extraordinary pressure of [American troops] to extract intelligence from detainees, but then threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And when things went wrong, we blamed them, and we punished them. I believe we have to do better than that."

McCain's second amendment offers nothing new - yet is, paradoxically, extremely important nonetheless. The amendment restates what is, in fact, the law under the Universal Declaration of Human Rights, adopted by the United States in 1948; the International Covenant on Civil and Political Rights, to which the United States is a signatory; and the Convention Against Torture, negotiated by the Reagan Administration.

When ratifying the Convention Against Torture, the Senate imposed a reservation: that the implementing laws should define "cruel, inhuman, or degrading treatment" as prohibited by the U.S. Constitution's Fifth, Eighth and Fourteenth Amendments. The Supreme Court has held that such treatment must "shock the conscience" to be beyond the pale. Strikes me that Bush and Cheney have shocked America's conscience.

In addition, in 2004, Congress passed a bipartisan amendment to the Defense Authorization bill, reaffirming that detainees in U.S. custody could not be subject to torture or cruel treatment as those terms have been previously defined by the U.S. Government. "But since last year's DOD bill," Senator McCain informed his colleagues, "a strange legal determination was made that the prohibition in the Convention Against Torture against cruel, inhuman, or degrading treatment does not legally apply to foreigners held outside the United States." Or as the Senator put it more bluntly, "They can apparently be treated inhumanely."

The Bush/Cheney Administration's reading of the law is malarkey. Judge Abe Sofaer, who negotiated the torture convention, wrote an OpEd explaining that there was never any intention to limit the torture convention to American soil. And this is another reason why McCain's amendments are needed: The Washington Post's report of an international network of CIA-run secret prisons raises the fear that the U.S. may, based on this distortion of the law, be torturing its prisoners whenever it finds it expedient to do so.

Common sense tells the world if Bush and Cheney did not want to engage in torture, they would not have been pulling out all the stops to block these amendments.

Stated Reasons For Opposition To McCain's Amendments

The Administration's public explanation for its opposition to McCain's amendments, as made by those willing to carry sewage for them, bordered on pathetic. Senator Ted Stevens (R-AK) claimed during the Senate debate on the amendments that they would have a reverse impact, resulting in more torture.

Stevens reached this conclusion by claiming that the international teams that pursue terrorists, being aware of restrictions on Americans, would not give the United States custody of terrorists that they found. This contention is so full of holes that it is barely necessary to refute it.

Not all groups that sniff out terrorists are international. To the contrary, that is the exception to the rule. And typically, Americans command these undertakings, so the idea that prisoners accused of terrorism would be somehow taken away from America and tortured - against America's will -- by other nations is absurd.

In fact, the current practice is exactly the opposite: Through what is called "rendition," America now allows its own suspects to be turned over to countries that torture more shamelessly, and that do not honor the kind of rights the U.S. Constitution guarantees.

McCain's second amendment, by prohibiting torture of anyone, anywhere, who "in the custody of, or under the physical control of, the United States Government" ought to preclude rendition - and surely is intended to do so. (But clever lawyers may try to evade it with sophistry: If the U.S. truly transfers custody of a prisoner to another sovereign, is he still under the U.S.'s physical control? What if another country captures a U.S. suspect, and tortures him before turning him over?)

Reports indicated that Dick Cheney's favorite argument - the one he makes in trip after trip to closed door meetings on Capitol Hill to get authority, at minimum, for the CIA to be able to torture -- is the old "ticking bomb" argument. So frequently has this specious argument been employed to justify torture, it deserves to be shot down with more than a passing reference.

The "Ticking Bomb" Argument For Torture

The argument goes like this: A nuclear bomb has been planted in the heart of a major American city, and authorities have in custody a person who knows where it is located. To save possibly millions of lives, would it not be justified to torture this individual to get the information? Is not this lesser evil justified?

Of course it is. And this argument is a wonderful means to comfort those who have moral problems with torture. The beauty of this argument is that once you concede there are circumstances were torture might be justified, morally and legally (through what criminal law calls the defense of necessity: that an act is justified to save lives), you are on the other side of the line. You've joined the torture crowd.

Those who've invoked the argument range from Alan Dershowitz, to the Israeli Supreme Court, to the Schlesinger Report on Abu Ghraib, to the Robb/Silberman Pre-Iraq War Intelligence Report.

Most recently, and eloquently, the argument was set forth in the pages of The Weekly Standard, by Charles Krauthammer. His powerful essay, "The Truth about Torture: It's time to be honest about doing terrible things," received wide circulation on the internet.

With all these great minds, and moral authorities, relying on this argument, it is with some trepidation that I point out that it is phony. I do so for a number of very real reasons.

Fallacies In The "Ticking Bomb" Argument -- The Clock Does Not Work

It is a rhetorical device. It is seductively simplistic, and compellingly logical. It is also pure fantasy. The conditions of ticking bomb scenarios are seldom real.

No one has more effectively probed the fallacies of this argument than Georgetown University School of Law professor David Luban. Writing in the Washington Post, in a piece entitled "Torture, American-Style," Luban explains why, while it makes good television melodrama, this scenario does not produce critical thinking.

Professor Luban surgically dissects this argument at greater length in the October 2005 Virginia Law Review. His essay "Liberalism, Torture, and the Ticking Bomb" is very much worth the read. Citing moral philosopher Bernard Williams, Luban writes that "there are certain situations so monstrous that the idea that the processes of moral rationality could yield an answer in them is insane," and "to spend time thinking what one would decide if one were in such a situation is also insane, if not merely frivolous."

Indeed, shouldn't the President, the Vice President, and those members of the Senate and House embracing the power to torture without justification, without court oversight, and without limits, look, instead, at what they are doing to us as a society? As professor Luban notes, "McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words."

Which brings us to the present situation.

Resolution Of The McCain Amendments

The House of Representatives, as far as the Republican leadership was concerned, was not willing to accept the McCain Amendments. No surprise there. Last year, Speaker of the House Dennis Hastert tried to slip a provision into a law authorizing the CIA to torture. But he got caught, and the effort died.

The House GOP leaders wanted to avoid letting this matter come to a recorded vote in the House. How many members would dare to vote for torture? Even though public opinion polls are all over the lot, as Maggie Gallagher found, when Gallup asked more specific questions, Americans recoiled.

For example, Gallup asked, "Would you be willing, or not willing, to have the U.S. Government torture known terrorists if they know details about future terrorist attacks in the U.S.?" Fifty-nine percent were not willing.

The poll asked if the following activities were right or wrong: forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours: (79 percent said this was wrong); having female interrogator make physical contact with Muslim men during religious observances that prohibit such contact (85 percent said this was wrong); threatening to transfer a prisoner to a country known to use torture: (62 percent said this was wrong); threatening prisoners with dogs (69 percent said this was wrong); using the technique of waterboarding, which simulates drowning (82 percent said this was wrong). The only 50/50 split came on sleep deprivation.

Senator McCain has been in negotiations with the House, and with the White House. Then Congressman John P. Murtha (D-Pa.) forced the issue in the House, calling for a motion to instruct the House conferee to accept the language of the McCain Amendments. "No circumstance whatsoever justifies torture. No emergencies, no state of war, no level of political instability," Murtha, a heavily decorated and much respected veteran, said.

Only one lonely voice dared to speak on the House floor against this motion. Congressman C.W. Bill Young of Florida opposed the McCain amendments because he did not believe terrorists should have the protection of our Constitution. The argument was absurd. They already have that protection, and McCain's amendments do not change the existing law. Young's contention went nowhere. The vote sent a clear message to Bush and Cheney. The motion carried by 308 yeas and 122 nays. Those are 122 members of the House who have shamed themselves.

The Congress has given the Bush/Cheney White House no choice: Back down. Both the Senate and the House have told the President, if you veto, we will cram this down your throat. As Mr. Murtha put it: "No torture and no exceptions."

Since Dick Cheney is so keen on torture, maybe he will give the nation a demonstration of waterboarding, which he does not seem to believe is cruel, inhumane, or degrading. No doubt he could be given a ticking clock to keep with him under water as well.

John W. Dean, a FindLaw columnist, is a former counsel to the president.


Christian Bailey

So, Just Who Is Christian Bailey?

A 30-year-old Oxford graduate with no public relations experience has been handed a $100m contract by the Pentagon - to plant false stories in Iraqi papers.

The office building situated at 1420 K Street NW has nothing obvious to commend it other than its prime location. Just a couple of streets from the north-west gates of the White House, it sits in the heart of lobbying land - the K Street corridor that represents one of the most crucial centres of power, influence and money in the United States.

This grey building, neighboured to one side by an off-licence and to the other by a travel agent, is home to the Lincoln Group, a previously little-known "business intelligence" company headed by a heretofore little known young Briton, Christian Bailey, an Oxford graduate and consummate net worker. He is at the centre of a mounting storm of controversy surrounding the Bush administration's covert propaganda war in Iraq.

It was recently revealed that Bailey's company was the recipient of a $100m (?56m) contract from Donald Rumsfeld's Department of Defence for buying space in Iraqi newspapers to place deliberately one-sided stories written by US "psy-ops" troops, at a time when the chaos of Iraq makes genuine journalism all but impossible and when journalists risk their lives on a daily basis to report the truth.

As part of the project - in which the US military hid its involvement - Lincoln Group staff paid Iraqi journalists to write similarly misleading stories about US forces and the Iraqi government that ignored anything negative about the occupation. One headline read: "Iraqis Insist on Living Despite Terrorism."

The revelations have created a furore. President Bush is said to be "very troubled" by the news, while on Capitol Hill members of both the Senate and House armed services committees demanded inquiries. The Pentagon said it would launch an immediate investigation.

Much is unclear about the Lincoln Group, its youthful executive vice-president and his string of previous companies that have left only the faintest paper trail. Indeed, Christian Bailey may not be his real name: a number of student associates said at some point during his four years that he changed his name from Yusefovich - an unlikely surname for someone called Christian.

The Independent has been unable to confirm this. Yet the details known about Bailey and the contract his company won provide a remarkable insight into the way influence and power operate in Washington. Just two years after arriving here, Bailey, 30, who has a penchant for socialising, has apparently developed contacts both within the Republican establishment and the world of private intelligence.

Senator John Warner, the Republican chairman of the Senate Armed Services Committee, said of the false news operation: "I remain gravely concerned about the situation." Since the controversy broke Bailey has kept a low-profile and has offered just the fewest public words about his organisation and what it does. (He failed to respond to requests for an interview.) It also appears a number of internet references linking him to the Republicans can no longer be found.

Yet it is clear the Lincoln Group and its contract with the Joint Psychological Operations Support Element, part of the Pentagon's Special Operations Command, is inextricably linked with Bailey. He apparently named the company and its various offshoots after Lincoln College, Oxford, from which he graduated in 1997 with an MA in economics and management.

Many observers have been surprised Bailey, from Surrey, has been awarded such a sizable contract, give that he appears to have no experience in public relations. Indeed, since he moved to the US in the late 1990s, he has spent much of his time in private finance, working in hedge funds in San Francisco and New York.

It appears he has been especially interested in new technology markets. A brief biography presented by the organisers of a conference held earlier this year in Dubai at which Bailey was listed as a speaker, said he had worked in Palo Alto, California, "where he advised portfolio companies and identified, evaluated and developed emerging technology investments".

The Briton has always enjoyed a reputation for business. Several Oxford associates said it was rumoured that the popular student kept two computers in his room to monitor the stock markets. Bailey has said he founded and sold two companies while an undergraduate. "He was quite enterprising, I believe," said Graham De'ath, of Winchester, who was in the same year.

Kate Smurthwaite, who is now a stand-up comic but shared a flat with Bailey in his third year, told The Independent that the young entrepreneur hired a personal assistant to work for him in his student digs as he ran an operation selling self-help advice on cassettes.

He also had a reputation as a hard-working networker. While in New York he became treasurer of the Oxonian Society, a club for graduates of Oxford and other universities, which invites high-profile figures to speak. He was involved in at least one charity fundraising effort with other hedge-funders. Perhaps of more significance, Bailey became the co-chairman of the New York chapter of Lead21, a networking group for young Republicans. At least a dozen of its members have gone on to work for either the Bush administration, Congress or the Governor of California, Arnold Schwarzenegger.

During a Lead21 trip to the Republican National Convention in New York last autumn, Bailey said of his colleagues to one reporter: "These are going to be the big supporters, the big donors, to the Republican Party in five years."

According to other members, Bailey was very popular. Auren Hoffman, chair of Lead21 and chairman of the Stonebrick Group, a San Francisco-based consulting firm, said Bailey was a good friend. "Christian is a terrific guy personally. Everyone I know that has ever met him instantly likes him. He is very likeable and charming. Very intelligent. Very interesting."

When he moved to Washington, his reputation as a networker continued. He often hosted parties at home and mixed with a set of young, up-and-coming journalists and congressional staffers. He enjoyed a reputation as a good cook, a welcoming host and for making cappuccinos with a machine in his kitchen. He also enjoyed flying: Federal Aviation Administration records show that he is qualified to fly aeroplanes and helicopters.

How and when did Bailey make the switch from hedge funds to private intelligence and PR? One clue is provided by the Alternative Investment News newsletter of 1 March 2003, just weeks before the invasion of Iraq. It reported Bailey's hedge fund, Lincoln Asset Management Group, had launched a buyout fund to start buying companies in the defence and security industries. Bailey said he had obtained commitments of $100m from six institutional investors, whom he declined to name.

Apparently with an eye to the preparations for war being made in the deserts of northern Kuwait, he added: "[The] timing is extremely good to look at defence companies." Shortly afterwards, a subsidiary called Lincoln Alliance Corp was established, offering what it called "tailored intelligence services [for] government clients faced with critical intelligence challenges".

By last autumn Bailey had formed another Lincoln subsidiary, called Iraqex, which seems to have formed a partnership with another American PR firm called Rendon, famous in Washington for having promoted Ahmed Chalabi and his Iraqi National Congress.

At some point Bailey also went into business with Paige Craig, 31, a former US Marine who served in Iraq and elsewhere. [Bailey and Craig are flatmates in a fashionable part of Washington, close to U Street. The flat is just yards away from Caf? Saint- Ex, popular with young professionals.]

In September, Iraqex won a $6m Pentagon contract to design and execute "an aggressive advertising and PR campaign that will accurately inform the Iraqi people of the Coalition's goals and gain their support". It appears one project was an attempt to persuade the Iraqi and US public that Iraqi troops played a vital role in last year's effort to clear Fallujah.

A strategy document obtained by ABC News revealed the Lincoln Group was seeking to promote the "strength, integrity and reliability of Iraqi forces during the fight for Falujah". In reality, most assessments suggest the small number of Iraqi troops present were minimally involved.

But the real breakthrough came this summer when Bailey's company, having again changed its name to the Lincoln Group, secured a $100m contract for information and psychological operations. Part of the contract was for placing "faux" news stories in some of the 200 Iraqi-owned newspapers that now exist.

Pentagon officials have said that, while not factually incorrect, these stories only presented one side of the story and would not include anything negative about the occupation. It was reported this week that the $10Om was part of a larger $300m "stealth PR effort" in a number of countries around the world.

One PR consultant with experience of the private-intelligence sector, said: "Doctrinally, this is all part of what the military calls information superiority. It is part of the plan for what they call, rather upsettingly, full-spectrum dominance. The truth is that it is just propaganda. And there has always been propaganda in a war. And this is a war, so ... thus runs the thinking."

According to reports from former Lincoln employees, their main task was to take news dispatches, called storyboards, which had been written by specially trained psy-ops troops, have them translated into Arabic and then distribute them to the newspapers. They would also deal directly with members of the Iraqi media through something called the Baghdad Press Club, a group of journalists who were paid to write and publish positive stories. Typically, Lincoln paid newspapers between $40 and $2,000 to run the articles as either news or adverts.

To help it carry out its work, Bailey and Craig - the latter is apparently responsible for most of the Iraq-based end of the business - have reached out to some of the foremost specialists in security and intelligence. Among "advisers" listed on their website is Andrew Garfield, a former British military-intelligence officer and specialist in psychological warfare who has advised the Ministry of Defence. In an e-mail to The Guardian Garfield confirmed his collaboration with Lincoln but gave no details.

Another adviser is Colin Rees Mason, who two years ago received an OBE for his service as a lieutenant-colonel in the Territorial Army, and who for almost 20 years has been a consultant to the Centre for Operational Research and Defence Analysis, a subsidiary of BAE Systems.

The Lincoln Group also has Republican links. Among lobbyists registered to represent it are Charles Black, an adviser to Presidents Ronald Reagan and George Bush Sr and Marlin "Buzz" Hefti, who served as a director at the Pentagon.

Lincoln Group also lists as a partner the Virginia-based private intelligence group WCV3 Security. Last year that company's executive vice-president took unpaid leave to produce Stolen Honour: Wounds That Never Heal, a film that, at a critical time in the presidential election campaign, condemned the Democrat John Kerry and questioned his version of events in Vietnam.

Despite the concern on Capitol Hill about the placing of false stories in foreign media outlets - a practice that dates back to the Cold War - it is unknown what will be the outcome of the Pentagon's investigation. It is also unclear how the controversy has affected the ability of the Lincoln Group or Bailey to fulfil its contract. In a statement the company said: "Lincoln Group has consistently worked with the Iraqi media to promote truthful reporting across Iraq. We counter the lies, intimidation, and pure evil of terror with factual stories that highlight the heroism and sacrifice of the Iraqi people and their struggle for freedom and security."

Andrew Buncombe
12/17/05 "The Independent"

Additional reports: Simon Usborne

? 2005 Independent News and Media Limited