No Small Thing

[A] criminal defendant is entitled to an effective defense, especially in a death penalty case.

So said Governor Kasich.  

And then he said the other part.  Not the one we're so used to seeing.  Not "harmless error."  Not "close enough for government work." Not "but fuck, the guy's guilty."

No, this time he said,

The Parole Board’s conclusion is that Ronald Post did not come close to receiving such a defense. After my own careful review, I agree.

Which is kind of remarkable.  As was the Parole Board's opinion.

Post is guilty and won't acknowledge it even now, the Board said.  But we still shouldn't kill him.  The Governor was less explicit, but he said the same thing.

Therefore I am ordering that he spend the rest of his life in prison with no possibility of ever getting out.

Of course, that was actually his situation before.  As I've said repeatedly here, the difference between a death sentence and LWOP is the manner and timing of death, not its place.  Both are sentences of death in prison.  It's not clear to me which is worse.  

Certainly some prefer the idea of being murdered.  Get it over with.  Kill me now. 

But as I also keep saying, these decisions aren't really about the condemned.  They're about us.

Life does not need to be made torturous.  But murder is, simply, murder.

The difference matters.

Ronald Post will not be murdered by the State of Ohio, in our names, to make us all feel better or something, on January 16.

That's no small thing.

And doing it not because he deserves it, but because fairness and decency demand it.

No small thing at all.

Thanks, Gov.

Now, about that plan to use tolls from the Turnpike to pay for construction in Columbus.

12.17.12PostCommutation

Post Warrant of Commutation

Fingers in the Dike

I've been reading Naomi Wolf's 2007 screed The End of America: Letter of Warning to a Young Patriot in which she details "ten classic pressures" that are essential to and lead inevitably toward dictatorship if not promptly stopped.  If you let them go, she says, dictatorship is inevitable and unstoppable. 

Item by item, she reports on how various dictatorships (with special focus on Mussolini's Italy, Hitler's Germany, and Stalin's Soviet Union) adopted and used each of those pressures to cow any opposition, secure absolute control over the state, and destroy individual freedom.

Each of the steps is a chapter title.

1. Invoke an External and Internal Threat
2. Establish Secret Prisons
3. Develop a Paramilitary Force
4. Surveil Ordinary Citizens
5. Infiltrate Citizens' Groups
6. Arbitrarily Detain and Release Citizens
7. Target Key Individuals
8. Restrict the Press
9. Cast Criticism as "Espionage" and Dissent as "Treason"
10. Subvert the Rule of Law

Wolf sees and describes the Bush administration taking steps to adopt each of these.  The result is what she calls a "fascist shift." It's not fascism yet, she says, but it will be if we don't stop it. Soon.

All of us -- Republicans, Democrats, Independents, American citizens -- have little time to repeal the laws and roll back the forces that can bring about the end of the American system we have inherited from the Founders -- a system that has protected our freedom for over 200 years.
I have written this warning because our country . . . is in the process of being altered forever.

She blames all this on the Bush administration and sees the evil in Karl Rove's stated goal of a "permanent Republican majority." And she's concerned that the then-newly elected Democratic-controlled Congress won't undo all the damage.

OK, that was 2007.  Now we know.  The Democrats in Congress didn't fix it when they were in power, and while Obama's administration has eased some of it (apparently, though who really knows, we no longer waterboard ourselves, preferring to outsource direct torture through rendition), it's been more than happy to pursue an anti-civil-liberties agenda.  (As, by the way, did the Clinton administration.  It's folly to believe that any President - or any Congress - will embrace most of the Bill of Rights except, perhaps as a rhetorical device.)

Wolf, again, wrote that in 2007.  And with a built in hatred of the Bush administration.  Consider torture. The experts say it doesn't work.  So he asks this question.

Because torturing prisoners is counterproductive if the goal is securing the Homeland, and because it makes us pariahs in the eyes of the rest of the world, then what could be some genuine reasons why this is so important to this White House?

The implicit answer, of course, is that Bush and company were using the torture of the prisoners at Guantanamo to scare the rest of us. What we do to them, we can do to you. Maybe. But I doubt it. Wolf's question, after all, assumes that those driving the torturing, and those who did it, acted with a canniness I don't see any indication they had. And it assumes that they knew - and actually believed - torture to be counterproductive.

More likely, they actually thought it worked. That's certainly the explanation they offered and the defense they continue to offer.

Torturing those guys kept us safe.  No longer torturing them endangers us.

Besides, look at the pictures from Abu Ghraib. The torturers were having fun. Shits and grins, as they say.

Ultimately, motivation probably doesn't matter. If you end up with a police state, it doesn't really matter much whether you got there by design or by accident.  If we're on the path, regardless of whether the road is carefully paved, we want to get off.

Rick Horowitz, looking more at his own practice and at how the police and courts treat his clients.makes essentially the same point right now. (I'm leaving in his links but deleting his footnote.)

To argue that we should never compare what’s happening in America today to what happened in Germany in the period leading up to the Nazi disaster is to risk ignoring the warning signs should it ever occur again. And don’t think it can’t happen here. As I’ve noted more than once previously (yes, I’m going to quote myself), pre-Nazi Germany wasn’t all that different from the United States today:

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’”

But, secondly, I’m not even trying to argue here that the police are Nazis.
Not yet, anyway.

And he's about had it.

One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.

It's all too easy to get to this point.  Follow Radley Balko's nearly daily links to stories of puppycide.  (Here, for instance.)  Look at Scott Greenfield's But for the Video series. (Here, for instance.)  Read . . . Aw, hell, there's too much to point to.

Wolf is right.  So is Horowitz.  We're edging down the path. The steps (they both recognize this) are incremental.  The thing is, enough small steps add up.

Here's the thing.  I can't change the system.  Neither can you.

And, frankly, most people don't really give a damn.  And can't be made to.

We can do it collectively, but frankly none of us with our blogs - not even all of us with our blogs - have the clout.

So we can speak up, each in our own way, and we should.

And we can band together as we can.  There is strength in institutional numbers.  But there are limits, too.

Beyond that, I'm a criminal defense lawyer. What I do is work for my clients.  This one today, that one tomorrow. Greenfield:

The criminal defense lawyers who hit the wall of frustration and break through are the ones who keep the system as honest as it can ever be. It may not be much, but without them, there is no one to impede the machinery of justice. We've all been there. We just keep fighting. Sometimes it help to make a joke of it just to keep our sanity. Sometimes a stiff drink helps. A vacation is always a good idea. Whatever it takes, break through the wall. Welcome to the other side.

Because, really, it's what we do.  One damn case at a time.

 

On a Sun-Kissed Island - Where We Tortured People

This is what you think of first.

Or maybe this.

 

But there's also this.

And this.

And of course, there's this.

All of it is Guantánamo Bay.

• Torture chamber.
• Prison camp.
• Caribbean port.
• Naval Base.

And oh, yeah, there's also this.

Because, of course, Guantánamo Bay, and our naval base there, is part of Cuba.

After the Spanish American War, when we wrested as spoils Puerto Rico and Hawaii and Guam and the Phillipines, we allowed Cuba a narrowly circumscribed autonomy, turning it into something of a vassal state.  Really, a colony.  And we made Guantánamo ours.

Sometimes sleepy, sometimes volatile, sometimes prison camp.

But ours.  For better or worse.

Before Castro, when the Bay (and the base) was part of our Cuban fiefdom.

After Castro, when the Kennedy administration considered plans to make him invade the base (or appear to - in a weird preview of what the Johnson administration would do with the Gulf of Tonkin Incident - so we'd have an excuse to invade.

Lately, of course, it's been for worse.

January 11 marked the 10 year anniversary of the opening of Camp X-Ray, the day the first prisoners (more delicately called "detainees") arrived at the concentration camp.  But we'd been there for 100 years by then.  And we'd detained and kept behind concertina wire tens of thousands of people who'd done nothing wrong.  And we tortured them.

We'd thought for decades that our base in Guantánamo Bay was a place that no law could reach.  It was part of Cuba, but Cuba had no authority.  But it was part of Cuba, so our courts had no authority.  Or so we believed.  And so the courts had mostly ended up agreeing.

So, really, if you want to hold prisoners without having to justify it. And if you want to torture them without anybody looking over your shoulder.  And if you want to keep them without due process or lawyers or courts or reporters.  And if you want to carefully circumscribe the whole damn thing.  

A naval base that we absolutely control on an island in the middle of the Caribbean that is a country that we treat as an enemy.

Really, what could be better?  Just ask John Yoo.  But he came late to the game that began decades ago.

There are some really good, seriously troubling books about what we've done at Gitmo in the last 10 years.  For reportage, there's Jane Mayer's The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.  From lawyers who represented the prisoners, there's Joseph Margulies's Guantánamo and the Abuse of Presidential Power and Clive Stafford Smith's Eight O'Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay.  From the officers stationed there, there's James Yee's For God and Country: Faith and Patriotism under Fire and Erik Saar's Insided the Wire: A Military Intelligence Soldier's Eyewitness Account of Life at Guantánamo.  Many others, too.

But they're books of a decade.  There's no shortage of context, but it's the context of permanent war on a tactic, of the Shrub administration's enthusiastic abandonment of any respect for civil liberties because we'll give up all our liberty to preserve our liberty.

Except, again, it wasn't just Bush II.

It was Bush I.  And Clinton.  And Eisenhower.  And Kennedy.  And Nixon.  And - you get the idea.

And our involvement in Guantánamo, it turns out, goes back at least as far as Lawrence Washington, half brother to George.

You don't learn all of that from the daily papers (or the Daily Show), or from any of those books I mentioned before, good as they are.  To get the history and the historical context, to see how what we've done at Guantánamo isn't an artifact only of an administration committed to the proposition that, as Condoleezza Rice said, echoing Tricky Dick (which really should have been a clue), 

When the president does it, that means it is not illegal.

And it's racism writ broad and deep and ingrained in a faux Donna Reed Show world.

For that understanding, and for the downright interesting details that go with it, you have to turn to Jonathan M. Hansen's terrific new book, Guantánamo: An American History.  (Note to the Feds: A gift from my son, not the publisher or author or a bookseller.)

Where else will you read the story of Charles Ryan.  He was 19 when his father was posted to Guantánamo, and went along.  But while living on the base, he came to join the Cuban resistance, smuggling guns and ammunition and along with two friends from the base joining Fidel Castro and the revolutionaries in their hideout in the Sierra Maestra mountains?

And where else will you get the context?

Here's Hansen, on part of the book's website.

After centuries, literally, of salivating over Cuba and Guantanamo Bay, we took the bay from newly independent Cuba, forcing the initial lease down Cuba’s throat. We exploited the bay to promote US commercial interests in Cuba over the interest of, especially black Cubans, settled in southeast Cuba; during the Cold War, we contemplated and sometimes launched secret and illegal operations against the Cuban government from Guantanamo Bay.
In short, the history of Guantanamo Bay reveals the complexity, the ambiguity of American history and refutes the idea that America had any grace to fall from. Grace has never been what nation-making is about, not American nation-making, not anybody else’s, notwithstanding the nation’s many acts of generosity and its noble founding principles.
I want to be crystal clear about this: those principles were, from the very beginning, shot through with paradox and contradiction, and Guantanamo’s history enables us to see this paradox in stark relief. Focus solely on recent political and legal decisions taken at or about Guantanamo does not begin to get at that complexity.
From the vantage point of history, in other words, post 9/11 Guantanamo is not a freakish departure from American history. Guantanamo out Americas America, in sociological, cultural, political, and legal ways. Guantanamo is part of who we are. 

All of which goes some to explain just why it is that for all his promises and commitments to shut down Gitmo, His Barakness is no more willing or able to do it than Shrub.  And if the formal torture stopped there - and it apparently did well before the end of the Bush presidency - Obama has stridently resisted efforts to examine who did and what they did and certainly to hold anyone accountable.  But he did say that he knows we treated Bradley Manning just fine because his captors said so.

Because in Cuba, and really, throughout this great land and frankly the rest of the world, the more things change, the more they stay the same.  The past really is prologue.

Hansen helps us see that.

Let's Call the Whole Thing Off

A couple of notes on perception.

I.
It must have been shortly before the bread pudding was brought out the other night that one of the guests at the dinner party mentioned, sort of in passing, that he and his partner of many years (who was out of the country and therefore not present) had recently gotten married. As one, we raised our glasses in congratulatory toast.

I don't know where they went for the wedding, though it certainly wasn't held in Ohio. I'm also not much concerned about that right now. What interests me about it is that it seemed the most natural and sensible thing in the world and that none of us so much as blinked at the idea. OK, we were a selected group. I know not everyone would feel as we did about a couple of men getting married. To many (most, if election returns from around the country are meaningful), it's a horror and an outrage.

In my world (not my state or nation, alas, but my circumscribed world of people with whom I regularly interact) the only question about same sex marriage is why same-sex couples would want to marry. It's a variation on the question we raise about women in combat.

It's not a matter of whether women should be allowed in combat. Of course they should. Rather, we're inclined to ask why they would want to be in combat? Why, we might ask, are you pressing for the right to do something you should be running from?

And so it is with same-sex marriage. As a long-time, happily married man, I'm comfortable with the institution of marriage. But what moves me about it is the commitment ceremony, not the legal institution. If there's no desire (or ability) to obtain an religious union (and if that's all you want, and you can find a religious leader who will perform a ceremony, you're in; no need to worry about government acceptance) and no progeny to legitimate, then why is marriage better than (or even different from) civil union except linguistically?

And while I fully understand the power of the word (which is why so many people who have no formal objection to civil unions are so bitterly opposed to marriages) I wonder at society's willingness to cave to that power.

II.
A few hours ago, I was commenting on the concertina wire in Costa Rica. I wondered, as I do, if the wire didn't induce in me a greater fear than was deserved. A couple of months ago, addressing a different subject, I wrote this.

When I was in Central America in the mid 90s, I was struck by the ubiquitous presence of armed guards. Every McDonald's had a kid in a paramalitary uniform carrying an automatic weapon. And I mean kid. The average age of armed security in the fast food places looked to be about 16. The miracle is that more people didn't get killed.

When I was in Central America a couple of years ago, I found that, along with all the armed kids guarding businesses and directing traffic, the entire landscape was now bound with concertina wire. Every home, every business. Mansions and shanties.

My subject then was surveillance and how it is, ubiquitous. There's no getting out from under the blossoming eye. My subject today is perception and response, and what really struck me about all the concertina wire and the armed guards in San Jose was that it created, at least in me, not a sense of security but a sense of fear.

If we have to live in an armed camp, how dangerous it must be to step outside. And even inside we're cowering.

I doubt that the natives shared my perspective. I doubt that the expats who were happily ensconced behind the barbed wire did, either. They felt safer because of the security, safer in their homes and, I suspect, safer on the street (though I don't even begin to see how that last could be so).

III.
We have a friend whose child had never heard "Let's Call the Whole Thing Off" but was supposed to sing it. She saw the lyrics and just couldn't make sense of "You say 'potato' and I say 'potato.'"

***********
I tell these stories because I think they're interesting in themselves. I tell them together and today because what they point to is directly relevant to Ohio's new and allegedly improved execution protocol.

Here's a question.

Imagine yourself a committed abolitionist. Government should not be in the murder business. Period. The killings are cold, brutal, immoral, perhaps evil. And they cannot be made less so.

Now the opportunity comes along to fix the death penalty. We'll stop killing those with mental retardation, stop killing kids, stop killing the seriously mentally ill and the plausibly innocent. We'll make the deaths painless and peaceful. We'll treat everyone with dignity and honor. We'll kill so that a 21st century society can say, honestly,

If you're going to kill, this is how to do it.

What do you do?

Do you embrace this humane form of death dealing? Or do you declare that since all state killing is evil, trying to pretty it up is a sham. More, it encourages the killing. After all, we're more willing to do what doesn't seem offensive. But if we're going to kill, shouldn't we admit to it? Own up to the horror of what we're doing? And might no that demand lead to revulsion and abandonment of the death penalty?

The capital lawyer's answer is necessarily peculiar to the task. As counsel, I ask if it will advance my client's interests. I can't endorse torture for my client who wants not to make a statement but to die without pain. I have to favor taking my client with mental retardation off the row, even if removing those categories of people from death makes it easier to say,

Now we can kill the rest with a clear conscience.

But as an abolitionist? As an activist? How do I feel about the more-humane-way-to-do-an-inhumane-thing?

So here's where we've come. The three-drug sequence for lethal injection is a time bomb. We really don't know how often it goes wrong, but we (and by "we" I mean everyone with even a little bit of knowledge about how these drugs work; these claims just aren't in dispute) know that if it goes wrong in certain sorts of ways the condemned person, the victim, will suffer a horrible, agonizing, excruciatingly painful, torturous death. And we know that we can reduce the risk of that very substantially by going to the one-drug system Ohio just adopted.

Is that something we should do?

In Baze v. Rees Chief Justice Roberts noted that the one-drug system

has problems of its own, and has never been tried by a single state.

So we don't actually know that the one-drug system will work as intended. We don't know what will happen because we haven't used it on people.

But should we favor it?

How we respond to the newly married gay couple is in large part a function of our culture. Not the broader American culture, but the culture of our own communities, not geographical but social. Similarly, whether the concertina wire comforts or scares is a function of how we view it.

And so with a new and improved killing system. We don't want the inmates tortured. But maybe open torture of a few would lead to abolition. After all, we've given up waterboarding.

Haven't we?

Will they sterilize the needles now that they know they may not actually kill anyone?

So they think torture is OK.

Without explanation, without comment, without dissent, and without a shred of apparent concern or human decency, the Supreme Court of Ohio today refused to stop the murder of Lawrence Reynolds. The court thus proved again the applicability to it of Justice Jackson's words about the U.S. Supreme Court.

We are not final because we are infallible, but we are infallible only because we are final.

There were two entries, issued simultaneously here. I reproduce them in their entirety.

MERIT DECISIONS WITHOUT OPINIONS

2009-1740. In re Reynolds.
In Habeas Corpus. On petition for writ of habeas corpus of Lawrence Reynolds and respondent’s motion to dismiss. Motion to dismiss granted. Cause dismissed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, and Cupp, JJ., concur.
O’Connor, J., not participating.

MOTION AND PROCEDURAL RULINGS

1996-1956. State v. Reynolds.
Summit App. No. 16845. This cause came on for further consideration upon the filing of appellant's motion for stay of execution scheduled for October 8, 2009.
It is ordered by the court that the motion is denied.
O’Connor, J., not participating.

That's it. Cold and spare. I suppose when you say that it's OK to kill someone knowing that torture is a real possibility you really don't want to explain why. But you know, they ought to own up to it.

The good news is that there's plenty of time for intervention. The bad news is that time is running out. There remains the 6th Circuit. SCOTUS, perhaps. And the Governor.

It seems a safe bet that all the others wished the folks in Columbus had stopped this, so that they wouldn't need to go on record. None of them want much to stop it or let it go on. None want to be part of this legal and moral mess. But they all are. Whether they speak to this particular case at this particular time or not. They brought us this far.

They signed off on this killing before. They've signed off on others. They've said, some more explicitly than others, but they've all said it, that the details don't matter. It's all close enough for government work. Your government. And mine. At work.

BECAUSE IT'S WHO WE ARE OR WANT TO BE: THE BOTCHED EXECUTION EDITION

One informal definition of insanity is doing the same thing over and over and expecting a different result.

On Tuesday, a team of trained killers (and yes "killers" is a harsh term, but it's strictly accurate) at the Southern Ohio Correctional Facility, a prison in Lucasville, Ohio, spent two hours trying to obtain access to insert shunts and then IV lines into the veins of Romell Broom so that they could then inject a series of drugs in his body and kill him. The killers were, apparently, so worn and stressed from the process (we won't talk about Mr. Broom's state of mind) that they needed a break. While they went off to grab a Coke or smoke, the Governor called a halt. Enough, he said. Give it a rest. You can do it again next week. (All this, and more, is detailed here and here and here and all over the web.)

I suppose.

But what will change? Will Broom's veins be in better shape next Tuesday, after the damage done to them this week? Will he have sprouted new limbs with new veins? Will the killers have discovered that they're supposed to use needles not chopsticks to poke holes in Broom's arms?

The historical record of botched executions is lengthy. The guillotine sometimes required more than one drop. The firing squad sometimes missed. Hangings result in slow strangulation or decaptiation. The electric chair misfires. The gas chamber so repulses the witnesses that they require psychological treatment. And now lethal injection. (For a partial list of botched executions since 1976 see here.)

It's supposed to be peaceful, like putting a pet to sleep. Yet we use a combination of drugs that veterinarians don't use on animals because of the chance of causing horrific pain and suffering. (See here.)

Three times in three years we in Ohio have demonstrated wholesale inability to kill humanely. There is no reason, none, to believe that what we could not do this week we will suddenly be able to do next week. Or for Lawrence Reynolds in October or Darryl Durr in November or Kenny Biros in December or . . . . You get the idea.

There are, then, two alternatives. We can abandon the effort or abandon the pretense.

Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.

Thomas de Quincey's great satirical essay is called, "On Murder, Considered as One of the Fine Arts." Or maybe it's just Lord of the Flies.

BECAUSE THEY COULD: WATERBOARDING EDITION

A couple of years ago, I debated Robert Alt, ostensibly on the subject of warrantless wiretapping, in a forum put on by the Federalist Society at The Ohio State University Moritz School of Law. (They care about the whole name, especially that initial "The," which serves to distinguish OSU from all those other Ohio State Univerisities - wait, there are no others.) In fact, what we ended up debating (these things have a tendency to take on a life and direction of their own) was the foreign policy powers of the President.

Alt's position (which I'm oversimplifying here and which I'm certain he would say I'm misrepresenting, though he didn't say that at the time; he just said he was right and I was wrong), which roughly inheres in and follows from the idea of the unitary executive was something like this:

The President has plenary power under Article II of the Constitution to conduct foreign policy. Any limitation on that power, by Congress or the courts, violates the Constitution. Whatever the President does in the exercise of that power is legal because there can be no legal check on its exercise. The power ought, and certainly can, be exercised in secret. There is no right to oversight of what the President does in the exercise of that power. Not by Congress, the courts, or the public. The only Constitutional remedies for abuse are impeachment or defeat at the polls.

If you look at what he said carefully, it comes to this:

If we approve of the things the President does in secret and about which we don't know, we should reelect him. If we disapprove of the President's secret actions about which we don't know, we should remove him from office. Either way, it is constitutionally proper that we remain ignorant of the facts on which we should base that decision.

As I said at the time, I think that's nonsense. Alt, a distinguished scholar and professor and government insider who has a CV I can't possibly match for relevant credentials as a scholar of and expert on Constitutional Law and foreign policy, thought I was as full of shit as I thought, and continue to think, he was.

The debate was friendly and colleagial. A good time was had by all. Then we had a bit of pizza and went our separate ways, each convinced, I expect, that the other is both misguided and a fool.

Despite Alt and Dick Cheney and John Yoo and Gonzo and Shrub and the rest of them, it really is untenable to maintain that waterboarding isn't torture or that torture is legal when the President authorizes it.

This isn't news.

It's also not, ultimately, news to learn that torture doesn't work. And despite Cheney's public insistence that it does (now that he's emerged from his undisclosed location he's doing his best to be everywhere), the newly public record reveals what many of knew to begin with. Torture is worthless. Doubt it? Read this important piece by former FBI agent Ali H. Soufan, entitled "What Torture Never Told Us," in today's NY Times.

The "Us" in that title is real, since Soufan reveals how the FBI (and hence the government) got valuable intelligence from Khalid Shaikh Mohammed and other key Al Queda figures through traditional interrogation techniques. More, he explains that the flow of information stopped when they started torturing. Much of the evidence comes from the recently released CIA inspector general's report and other CIA memos on intelligence and "enhanced interrogations." Soufan concludes this way.

The inspector general's report was written precisely because many of the C.I.A. operatives complained about what they were being ordered to do. The inspecgtor general then conducted an internal audit of the entiree program. In his report, he questions the effectiveness of the harsh techniques that were authorized. And he slams the use of "unauthorized, improvised, inhumane and undocumented detention and interrogation techniques." This is probably why the enhanced interrogation program was shelved in 2005.
Meanwhile, the professionals in the field are relieved that an ineffective, unreliable, unnecessary and destructive program - one that may have given Al Qaeda a second wind and damaged our country's reputation - is finished.

So what now?

It's not a new question, and the administration and Congress and the public and Dick Cheney and activist organizations have been wrangling about it for some time. Roughly, here are the options:

• Do nothing because everything that was done was right and proper and saved us from more 9/11esque attacks.
• Do nothing and hope that it all goes away (the ostrich approach).
• Do nothing because it would cost political capital to do anything and neither the administration nor Congress has any political capital, having dithered away what they once had.
• Investigate with the promise that there will be no consequences should it happen that there were misdeeds.
• Investigate with the promise that there will be no consequences for low-level folks who were just following orders because really, they're just poor schumck's who didn't know better, but that those who authorized and approved criminal behavior might be held accountable.
• Investigate with the promise that there will be no consequences for high-level folks who authorized and approved criminal behavior because, well, because they're high-level folks, but stick it to any poor schmuck who just didn't know better.
• Some sort of truth and reconciliation commission that will give a pass to anyone who fesses up and seems honestly apologetic.
• Prosecute the hell out of everyone or someone.

Ultimately, the choice is political.

But if we're serious about the rule of law, that hazy fuzzy thing that means equal justice and that nobody's above the law and that government officials, especially, should be accountable for their actions and that what we do is the measure of who we are and how we should be perceived, then there's really no choice.

Except, as I said, the choice is ultimately political.

What's in a name?

I recently finished reading Neil deGrasse Tyson's The Pluto Files: The Rise and Fall of America's Favorite Planet which explores the background to and public controversy over the decision to remove Pluto from the collection of things astronomer's call "planets" and confer upon it the lesser status, "dwarf planet." (Publisher's blurb here.) Then Dick Cheney, in his speech the other day explaining that Obama's embrace of American values would lead to the deaths of thousands, maybe hundreds of thousands, said, "You don't want to call them enemy combatants? Fine. Call them what you want - just don't bring them into the United States. Tired of calling it a war? Use any term you prefer." (Text of speech here.)

Whatever Pluto was, it didn't become something different when the International Astronomical Union changed its status. And Cheney is right that keeping prisoners locked up at Guantanamo without meaningful legal protections is the same whether you call those prisoners "enemy combatants" or, say, "forensic accountants" (or "detainees," by the way, which is a word I'm not using) and that war by any other name kills just as many people. Things are what they are, no matter what you call them.

As Juliet said,

What's in a name? That which we call a rose
By any other name would smell as sweet.

On the other hand, words do matter and what we call things makes a difference. If Juliet was right, so was Hamlet. So when Polonious asked what he was reading, Hamlet's snarky response was "Words, Words, Words." Well, sure. But the (non) answer, while perhaps true, also obscured and obfuscated. That's what Orwell was talking about in "Politics and the English Language." (Here.) And it's what he let us see in action through the "Doublespeak" of 1984.

"Enhanced interrogations" may have the same referent as "torture" in the context of waterboarding, but the insistence of various folks on the term of their choice makes exactly the point that the two aren't the same. Michael Ratner, president of the Center for Constitutional Rights, referring to Obama's plan to establish a system of "prolonged detention" in the U.S. for the prisoners at Guantanamo, said, "Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name.” (Quoted in NYTimes here.) So maybe it does matter what we call things.

But it also matters what we actually do.

And whatever we call holding people in prison forever without trial (or after acquittal, if that should happen), it's not something we ought to feel good about. Obama's insistence that he can do it consistently with "our values" is true or false, I suppose, based on what those values are.

Here's one that's been with us a long time: You're innocent until found guilty by proof beyond a reasonable doubt. It's enshrined in the Constitution. See In re Winship, 397 U.S. 358 (1970). It's tied to the presumption of innocence, a value with roots that apparently go back at least to Deuteronomy. (See discussion here.)

Here's another: If you're innocent, the government has no business holding you in prison forever.

So what's the real problem? What truth do we fear? That we can't actually prove these guys are as bad as we're quite sure they are? That our "proof" is based on evidence so shoddy that nobody would believe it? That our proof came only from torture which gives unreliable results so even we don't really know if it's right? Then maybe, just maybe, we ought to reconsider that "prolonged detention." Maybe we ought to acknowledge that what we're really dealing with, no matter how we try to pretty it up, is a star chamber and that we're just planning to keep a bunch of innocent people locked up forever 'cause, well, 'cause we can.

But consistent, of course, with our values.