Friday, December 12, 2008

Books on torture and detainee policy

Here are some of my favorite books that cover both the theory (legal and philosophical) and practice of our post 9/11 detainee policy.

Clive Stafford Smith’s “Eight O’Clock Ferry to the Windward Side” is a riveting narrative of his experiences as a lawyer for prisoners at Guantanamo Bay, Cuba. Smith discusses the ordeals of his client, Binyam Mohamed, at the hands of the Moroccan secret service and at Bagram AFB in Afghanistan, as well as his understandable response to the surreal sham legal proceedings faced by detainees. Smith’s book is complementary to Joseph Margulies’ seminal “Guantanamo and the Abuse of Presidential Power.” Margulies lucidly and compassionately delineates the legal issues Guantanamo has set before us, whereas Smith focuses on the human cost of holding prisoners in what was intended to be the legal equivalent of outer space. Powerfully and persuasively argued, shocking and shaming, it is indispensable to any student of our foreign policy as it pertains to detainees. Unreservedly recommended.

“Torture and the Ticking Bomb” by Bob Brecher is a philosopher’s attempt to analyze the moral dilemma posed if an interrogator were confronted with a terrorist who knew the location of a bomb that will kill civilians but would not divulge it. One of the highest profile persons to argue that torture should be legal in this case is Alan Dershowitz, who does so on his interpretation of utilitarian principles. Dr. Brecher’s book is a thorough and thoughtful refutation of Dershowitz’s position on the basis of utilitarianism. Dr. Brecher begins his book by debunking the premises of the time bomb scenario, but he goes further. For example, Dr. Brecher points out that one cannot exclude torturing the terrorist’s children on utilitarian grounds, thus highlighting an inconsistency in the pro-legalization argument. Dr. Brecher also finds it telling that its advocates have not written draft legislation that would provide for Dershowitz’s torture warrants. Dr. Brecher goes on to discuss Jean Amery’s torture to delineate what it means to break someone, and these are among the most moving passages in his book. “Torture and the Ticking Bomb” is brief, and the arguments, while complex, are probably within the grasp of an undergraduate student in philosophy. This book is a powerful expose of an intellectually slipshod argument, too often justified by facile invocation of Jack Bauer’s fictitious exploits. Enthusiastically recommended.

“The Guantanamo Files” by Andy Worthington is an attempt to record the histories of a number of the detainees at the Naval base at Guantanamo, Cuba. One aspect of this book that is especially valuable is his narrative of how many came to be arrested in Pakistan and elsewhere. His discussion of the dark prison, where detainees are shackled to walls and not allowed to see sunlight is particularly disturbing. Worthington also describes how the Extreme Reaction Force brutalized a mentally ill detainee at Guantanamo. Others have recounted how this riot squad beat an American soldier who volunteered to play the role of a recalcitrant detainee so badly that the soldier had to be medically discharged from the armed services. “The Guantanamo Files” is (unfortunately) a highly useful addition to the literature on the treatment of detainees within the context of the war on terror.

“A Question of Torture” by Alfred W. McCoy is a valuable addition to the literature on the subject as it relates to the present detention policy of the United States. Professor McCoy teaches history at the University of Wisconsin-Madison, and his knowledge of Southeast Asia tends to frame his presentation. McCoy discusses the torture of Viet Cong as part of the CIA-directed Operation Phoenix, as well as other instances of twentieth century torture by the British and French. He makes a key connection, namely that torture often leads to extrajudicial killings, because neither trial nor release may be acceptable outcomes to the nation responsible for the torture. He also takes the position that the law has failed to keep pace with advances in what is sometimes called touchless torture (stress positions, sleep disturbance, extremes of heat and cold, sensory deprivation, etc.), despite its recent widespread practice. His book is most engrossing when it recounts contemporary events in Guantanamo, Abu Ghraib, Bagram, and elsewhere. Although McCoy has a tendency to mix in editorializing with scholarly research, his book is well worth reading.

“Beyond the Law” by Jordan J. Paust is a critique of the Bush administration’s War on Terror from the perspective of a scholar of international law. Professor Paust discusses how only the expressed will of congress can override an international treaty in the context of showing the many ways in which the administration’s policies are in conflict with international law. However, from this nonlawyer’s perspective, one of the most illuminating and useful portions of this book is its clarification of the various terms for our detainees, such as “enemy combatant.” Moreover, Professor Paust also takes to task Jon Yoo and the other administration lawyers who argued for unchecked executive power to combat terrorism. “Beyond the Law” is written with legal scholars as the primary audience; however, nonspecialists can find the book a rewarding, if uphill, journey.

“Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy” by Charlie Savage considers the relative balance of power between the executive versus the other two branches of our federal government, as well as the struggle between political appointees and career government servants within the executive branch. Mr. Savage won a Pulitzer prize for his coverage of presidential signing statements, and how the Bush presidency has expanded their scope. Takeover charts the intellectual underpinnings of enhanced executive branch power to young lawyers in the Reagan administration, among them John Roberts and Samuel Alito, both of whom presently are members of the Supreme Court. Mr. Savage examines the torture debate from several points of view, including the Judge Advocates General of the armed forces. He also relates the conflict between Harold Koh, Dean of the Yale School of Law, and his former pupil, John Yoo, then in the Office of Legal Counsel at the Department of Justice, over the memos governing torture and the Geneva Conventions. While at OLC, Professor Yoo played the president’s commander-in-chief of the armed forces card as if it were an ace that could never be trumped. Takover also recounts the story of how the state secrets privilege, a rule by which the government excludes certain evidence in a legal proceeding, grew out of a falsehood. The report on the crash of an Air Force B-29 was kept out of the courts, but fifty years later, the daughter of a crash victim learned that the report no real secrets but would have embarrassed the armed forces. Mr. Savage is rarely satisfied with conventional wisdom; his discussions generally go to the kernel most topics. His prose is crisp, making Takeover easy to read without being superficial. This book is essential reading to anyone interested in the political philosophies that shape current events.

“The Dark Side” by investigative journalist Jane Mayer is the most comprehensive book on the treatment of our detainees in the War on Terror that has yet appeared. Ms. Mayer explores at length how America’s survival, evasion, resistance, escape (SERE) program for torture-resistance was co-opted into a blueprint for how we would use interrogational torture. She discusses extraordinary rendition, sending prisoners to other countries with interrogational methods even harsher than our own. Her investigation paints a more sympathetic portrait of John Walker Lindh, the “American Taliban,” who was reviled as a traitor in the aftermath of 9/11 and who was tortured and denied access to the lawyer his parent had hired. “The Dark Side” gives specific examples of how our methods have destroyed minds and led to the deaths of detainees. In one of the most chilling passages, Ms. Mayer describes Vice President Cheney reading approvingly about Operation Phoenix, the Viet Nam-era program that led to thousands of extrajudicial killings. She explains how important the Office of Legal Counsel (a branch of the Justice Department) is in deciding what is or is not lawful. This gives context to Jack Goldsmith’s dilemma in whether or not to withdraw an infamous memo drafted under the supervision of a previous head of the OLC. Ms. Mayer’s book is deeply troubling to those who admire America’s extremely longstanding commitments to the rights of prisoners of war and to human rights more generally. One of the best books of 2008.

“Top Secret” by University of Chicago law professor Geoffrey R. Stone covers the subject of how to balance the need of government to keep certain secrets with the public’s need for transparency and accountability. Stone makes a strong case for a journalist-source privilege, similar to the attorney-client privilege, and his discussion of these zones of privacy alone is worth the price of the book. His arguments are sometimes densely written, but clear and balanced, and the reader who takes the time to ponder them is generously rewarded. “Top Secret” should prove valuable to legal scholars, journalists, and political scientists, especially in the post 9/11 era.

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