I’m here at Guantanamo to observe a hearing in the case of Noor Uthman Mohammed, who is being accused of material support for terrorism. There has been very little detail released about the evidence against him, because much of it is classified — possibly because Mohammed was caught in the same sweep in which the U.S. captured Abu Zubayda in 2002. The process of sorting through the classified material in his case means that his trial won’t begin until February 2011, if it happens. The chief prosecutor for the military commissions told me a few days ago that “as a practical matter, there’s very little difference” between the process for dealing with classified information in military commissions and civilian court.

That “day-to-day” process McCarthy is so concerned about is happening here at Guantanamo, much in the same way it would happen back home. It’s also happening twice, once prior to a hearing that will determine whether Mohammed is an “unprivileged enemy belligerent,” and then again as the evidence is reviewed prior to his likely trial.

Meanwhile, it’s not like the military commissions have an unblemished record in protecting classified information. One example off the top of my head: The existence of the military’s “Frequent Flier” sleep deprivation program was disclosed during Mohammed Jawad‘s military commission, which seems to me a much more significant disclosure than bin Laden finding out we’re after him several years after he’s issued fatwas calling for Muslims to fight the U.S.

In fairness, McCarthy told me he doesn’t carry any particular brief for military commissions. He favors the establishment of special national security courts for terrorism cases, an idea also favored by Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard — and, for that matter, by Sen. Lindsey Graham (R-S.C.) — but rejected by the Obama administration. (So far.)

“As a legal matter, it is a non-outrageous statement,” says Ben Wittes, a self-identified centrist and legal expert with the Brookings Institution who has proposed a legal framework for preventive detention of suspected terrorists. “It is a very difficult political position to sustain however.” Ken Gude, a human rights and national security expert at the Center for American Progress, agrees. “Technically the government can continue to detain an individual after they’ve been acquitted in a military court, as a matter of law,” says Gude. “As a matter of policy, it’s a terrible decision.”

It doesn’t make any sense to say — as both Johnson and Assistant Attorney General David Kris did at Tuesday’s hearing — that the administration’s preferred method for adjudicating terrorism cases is prosecution in federal courts and also that any acquital could theoretically be met with a prompt detention. That’s a surefire way to destroy the credibility of the criminal justice system. Johnson, to be fair, was asked a politically difficult question: So, you guys gonna just let terrorists go after incompetent courts don’t convict ‘em? But he still waded the administration out into the perilous legal waters of endorsing show trials.

Here are some excerpts from Freedman’s letter that I hope capture the point. (The whole thing is kind of too long to publish.) Setup:

In order for there to be *a war* the adversary must be an actual or nascent nation-state, that is, an entity capable of entering into a treaty to end the hostilities. Examples include the Confederate States of America and the Barbary States (with whom we entered into treaties despite earlier denunciations of their corsairs as *pirates*) and the former government of Afghanistan, which the United States defeated in a war in 2001.

The elementary reasons for this limitation are that *war* was so understood at the time the Constitution was ratified and that, as a practical matter, a *war* will end with an exchange of prisoners.

But there is a much deeper reason.  The framers were intensely worried about abuses of military power.  During a war enemy captives may be held without charges until the end of the conflict.  In contrast, when the military uses force in other situations captured prisoners must be brought to trial.  The Constitution mandates that the second situation be the norm * whether the evildoers be denominated *pirates* or *terrorists.*

And payoff:

In its court filings regarding the roughly 230 Guantanamo detainees who face indefinite detention (as opposed to the roughly 15 who might face military commissions in some form or another) the Obama Administration has rejected the term *enemy combatants* and thus abandoned the Bush Administration*s confabulation that the country is engaged in a *war* with al-Qaeda.  The government still argues, however, that it may detain members of al-Qaeda indefinitely without charges because Congress authorized the use of force against them.  But because such detentions are an incident of war, not of the use of force, this is incoherent.

If President Obama is half the politician we know him to be, he will realize that triangulation in pursuit of liberty is no virtue. If fundamental matters of Constitutional law become mere policy differences that change with control of the White House, then a President Sarah Palin will be free to re-write whatever rules President Obama creates.  For both short-term and long-term reasons he needs to wrap himself in the flag of a return to long-held consensus values and to marginalize the Bush Administration  claims as the radical assertions they were.

I wonder what he makes of this point Brookings’ Benjamin Wittes made to Daphne, though: “… the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

Ever since President Obama said in his speech at the National Archives that he believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, legal and national security experts have been vigorously debating just what kind of “preventive detention” scheme the president can or should embrace.

As TWI’s Spencer Ackerman wrote on Wednesday, many civil liberties groups adamantly oppose the idea of “preventive” or “indefinite” detention at all. Since Obama made his pronouncement in May, representatives from Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center for Justice, the Constitution Project and many others have argued strenuously against the idea.

Illustration by: Matt Mahurin

So when the Washington Post and ProPublica reported on Friday that the Obama administration is considering issuing an executive order setting out a long-term preventive detention authority, and that some civil liberties groups had actually encouraged such an order, many of those groups were stunned.

“Our position is that there is no category of individual who can’t be prosecuted,” said Jonathan Hafetz, an attorney with the ACLU’s National Security Project. “To say the president can order indefinite detention by executive order, that’s just what Bush did for the last eight years.”

Even conservative scholars have been arguing against the idea since the Post reported that the administration was considering an executive order. As former Bush administration lawyer and Harvard Law Professor Jack Goldsmith wrote with Brookings Institution scholar Benjamin Wittes in an op-ed in the Washington Post on Monday: “Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

Wittes and Goldsmith instead argue that any preventive, indefinite detention scheme should be debated, authorized and spelled out clearly by Congress. Otherwise, they say, it will face opposition and modification by the courts, which will ultimately undermine the president’s detention power, as happened during the Bush administration. “Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief’s traditionally broad powers to detain enemy soldiers during war,” they write. “Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.” An act of Congress, then, would be a way of enhancing, rather than limiting, the executive power of indefinite detention.

And that’s where the debate now lies — between those that believe existing systems of detention under the laws of war and criminal prosecution are sufficient to handle current terrorist threats, and those who claim that the so-called “age of terrorism” demands a broader authority that Congress must create.

Although staunch civil libertarians oppose preventive detention altogether, many left-leaning lawyers would prefer an executive order issued by President Obama clarifying his authority to detain prisoners under the laws of war to an entirely new, broader system of preventive detention created by Congress, as Goldsmith and Wittes propose.

Perhaps most prominently, an influential group of military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of long-term preventive detention, but to rely on the systems we already have — with modifications, if necessary.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which has not been released publicly but was obtained by TWI. The letter is signed by eleven prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to President Obama; and Thomas Wilner, a corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” says the letter, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

Although the letter doesn’t explicitly call for an executive order, that’s one obvious way such “modifications” could be made. Ken Gude at the Center for American Progress made a similar argument recently, supporting preventive detention of fighters captured in a combat zone during a military conflict, on the Center’s web site and in The Guardian. And in a memo written with Kate Martin, director of the Center for National Security Studies, the authors write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail on Wednesday, Gude said that although he didn’t specifically propose an executive order to the administration, he supports the idea and opposes new legislation. Martin has said the same thing.

Even Georgetown law professor David Cole, ordinarily a staunch civil libertarian, has argued that the administration has such detention authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.”

Of course, there’s plenty of disagreement about who is an “enemy fighter” and how to define the “war on terror.”

The Supreme Court in Hamdi v. Rumsfeld affirmed that the executive can detain enemy fighters during wartime, but that case pertained directly only to the detention of Taliban fighters while the United States was at war with the Afghan government. Since then, the Bush administration and now the Obama administration has argued for much broader authority than that. In habeas corpus cases for Guantanamo detainees, the Obama Justice Department has argued it has “the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001?; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or [al-Qaeda] forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Different judges have interpreted that authority slightly differently, and some haven’t accepted that the president’s authority reaches those providing “substantial support” to terrorist groups, but they all agree that the President has the authority to detain indefinitely those fighting a war with the United States.

An executive order, some argue, would further clarify the Obama administration’s position — and, potentially, limit its authority going forward.

Their primary aim, however, seems to be to prevent legislation that codifies a new, broader system of preventive detention based on “dangerousness”, as Goldsmith, Wittes, and Deputy Solicitor General Neal Katyal (before he was in the Obama administration) have promoted.

Wittes, in particular, a Brookings Institution scholar, last week proposed, with his colleague Colleen Peppard, model legislation that would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war. In his op-ed co-authored with Wittes on Monday, Goldsmith, who briefly headed the Justice Department’s Office of Legal Counsel under George W. Bush, appeared to endorse such a plan. (Goldsmith declined to be interviewed for this article.) Last Friday, NPR’s Ari Shapiro reported that the proposal is “already being discussed in the Obama administration.”

The idea is to create a system that allows the government to detain an individual who officials believe is dangerous and acting as an agent of an organization that is fighting the United States, yet against whom it does not have enough evidence, or the right kind of evidence, that would support a criminal prosecution. Instead of having to prove guilt “by a reasonable doubt,” which is the standard in criminal law, the government would need only prove “dangerousness” by a “preponderance of the evidence,” which is the standard of proof in civil cases. Evidence provided by intelligence officers based on hearsay, for example, would be admissible, even though it would not be allowed in a criminal proceeding. Coerced evidence, however, would not be admissible.

“It’s a lot of probablilistic human intelligence stuff that people use every day, including to target and even kill people, that U.S. courts choose not to admit,” Wittes said on Wednesday. “There are all sorts of people who you wouldn’t have a problem going to court and saying, ‘we can show this guy is dangerous. But if you force us to make a criminal case, we can’t do it. Either we don’t have enough evidence, or the proof we have, a lot of it won’t be admissible.’ ”

Civil liberties and criminal defense lawyers argue strenuously that such evidence is unreliable and therefore shouldn’t be used to deny a suspect their liberty, potentially forever. In Wittes’ proposal, the government could detain a suspect for up to 14 days without providing him a right to a lawyer or to challenge his detention. After that, the government would have to justify continued detention to a judge every six months. Wittes compares this sort of detention authority to the government’s authority to detain criminal defendants before trial, some illegal aliens, and mentally ill people who a court has deemed a danger to himself or others.

“The concept of ‘dangerousness’ is inherently somewhat speculative,” Wittes admitted. “By its nature it’s based on future activity. Imagined future activity,” he added. But “we do manage the concept of dangerousness” in these other situations. “It’s not ideal. You’d like a moral certainty as to whether or not someone is going to do something scary. As a practical matter you can’t do that.”

Gude and Martin, in their memo sent to the Obama administration’s Detainee Policy Task Force, “strongly oppose” such a plan. “While we strongly support the effort to prevent such individuals from engaging in future terrorist activities, experience demonstrates that sufficient intelligence and law enforcement tools exist to meet real national security requirements and disable such persons. Legislating a new legal framework for detaining such individuals would be unprecedented and unjustifiable as an application of the law of war. To the contrary, it would blur the important line between criminal and military spheres and undo decades of effort by the United States to encourage other countries to cabin properly the realm of military vis a vis civilian authority.”

David Golove, a Constitutional law professor at New York University, similarly calls the Wittes plan “extraordinarily problematic and dangerous.”

“One of the core features of liberal democracy is precisely that preventive detention is not allowed,” he said. “The struggle for constitutional liberty is in many ways a struggle against preventive detention.” The Wittes proposal “treats that whole problem incredibly cavalierly.” The wartime detention model, by contrast, has “deep historical roots,” he said. And detention of the the mentally ill or the accused in pretrial detention are “carved out exceptions based on very specific rationales. Every time we add a new one we’re breaking down the whole idea that preventive detention is problematic in a liberal country.”

To Wittes and some others, however, the terrorist attacks of September 11 demand just such a new exception. A preventive detention system “is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats,” he writes with Peppard in their paper, Designing Detention: A Model Law for Terrorist Incapacitation.

Whether such a system would be constitutional is another matter, and one that Wittes does not directly address in his proposal. “All of these issues are up for grabs in the courts, and both sides of the administrative detention debate can point to recent signals by the Supreme Court in Guantanamo cases to support their claims,” said Matthew Waxman, a law professor at Columbia University whose work Wittes cites for support in his paper.

It’s not clear where the Obama administration will come down in this debate, and administration officials have insisted that no decision has yet been made. On Monday, White House spokesman Robert Gibbs assured reporters that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people.” But he did not rule out reliance on a preventive detention system based on some other authority — which could be the laws of war, or an act of Congress.

The debate over so-called “preventive detention” has obscured the real issues facing the administration. The laws of war have always allowed the military to detain fighters seized on the battlefield, indefinitely without charge until the end of hostilities. The Supreme Court’s Hamdi decision in 2004 approved such traditional law of war detention for fighters seized in Afghanistan. Some such fighters are now detained in Guantanamo (where they are entitled to habeas) and some are detained in Afghanistan. US forces are still engaged in combat in Afghanistan and now in the border region of Pakistan and will be for some indefinite period. I have no doubt that the Obama administration will continue to claim the authority to “preventively” detain fighters seized on the battlefields of Afghanistan or the mountains of Pakistan. No additional authority from Congress is necessary for them to do so and we and other civil libertarians for many years have recognized that such traditional law of war detentions without charge are perfectly proper.

The issue that has yet to be resolved by the Obama administration is whether they will continue the Bush administration’s claim of authority to pick up suspected terrorists far from any zone of active hostilities and hold them without criminal charge but with some form of ersatz due process. The [Jack] Goldsmith/[Benjamin] Wittes etc. faction has long been urging a new statute to allow detentions of suspected terrorists without any criminal trials based on secret evidence from intelligence agencies. I take the Washington Post article that the administration may not endorse legislation as a potentially positive sign that this pernicious idea may be rejected.

If that happens, we will have much to rejoice about. At the same time, the Obama administration will still have to deal with the so-called “legacy” cases; individuals who should never have been picked up under the laws of war, who are now in Guantanamo (and a handful in Bagram) and who in order to continue to be detained, should immediately be charged with criminal offenses.

Recall that Martin told me on Friday that she was a civil-libertarian defender of using an executive order as a way of forestalling an over-broad legislative proposal for preventive detentions.

“Pursuing a policy of indefinite detention without charge would send the Obama administration down the same misguided path as its predecessor,” said Joanne Mariner, terrorism and counterterrorism director at Human Rights Watch. “It would be a major break from longstanding principles of American justice.”

Human Rights Watch emphasized that US law provides ample grounds to prosecute and imprison anyone who has taken even a small step toward committing an act of terrorism. Preventive detention, which allows imprisonment on suspicion that someone will take dangerous action in the future, is unjust and inconsistent with US law and traditions.

Mariner adds in the statement that to shut down Guantanamo while preserving a mechanism for preventive detention will be to close the facility “in name only.” And adding to my clarification of my Friday post about Brookings’ Benjamin Wittes, an advocate of a constrained system of preventive detention, see Adam Serwer’s TAPPED post today and Wittes’ op-ed in The Washington Post with Jack Goldsmith.

Many, many things are curious here, including how much process the unilaterally created detention system would allow. Finn and Linzer rightfully observe that the logic here is the logic of the Bush administration. There’s not much administration effort, judging from the piece, put into explaining why a detainee can’t be charged with a crime. And then there’s this absolutely bizarre claim:

“Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

What? What civil liberties organization actually encouraged the administration to set up a system of “prolonged detention” — the less euphemistic term would be indefinite detention — in the first place; let alone urged the administration to do it without congressional approval?

Update: Zach Roth at TPM reports that the Center for Constitutional Rights certainly doesn’t approve of the idea.

Update 2: CCR representatives say that in a recent White House meeting, they conveyed to administration officials that “any prolonged detention scheme was unacceptable, no matter how it was dressed.”

Similar sentiments come from the ACLU, whose executive director, Anthony Romero, has released this statement:

This is not change – this is more of the same. If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush, and his policies will be destined to fail as were his predecessor’s. How justice is served in America should not be an open question in a country where we have a rule of law and a time-tested criminal justice system. Throwing people into prison without charge, conviction or providing them with a trial is about as un-American as you can get. While President Obama might be experiencing difficulty with Congress when it comes to implementing his decision to close Guantánamo, the answer is not to issue an executive order authorizing a system which is unconstitutional and counter to the most fundamental American values.

However, Kate Martin of the Center for National Security Policy thinks that contrary to my insta-read above, the executive order reported in Linzer and Finn’s piece doesn’t sound like the Wittes proposal. She doesn’t have any knowledge about the order aside from what she’s read, but says, “If the administration issues an executive order like the one [Linzer and Finn] describe, it’ll be a major victory.” That’s because Martin thinks that established law holds that the administration doesn’t require any additional legal authorization to hold anyone captured on the battlefields of Afghanistan without charge until the end of hostilities — that comes from the September 2001 Authorization to Use Military Force, as does dispensation for the 9/11 plotters — but would need to charge or release any detainee picked up outside either Afghanistan or Iraq. Martin thinks the reported executive order might be the only thing standing in the way of an even broader congressional effort of the sort seen in the war supplemental that Daphne critiqued yesterday. Martin has expressed her organization’s longstanding perspective on detainee matters to the administration’s detentions task force.

Update 3: The above reference to Wittes was pretty poorly phrased. I should have written that it seemed like the administration may embrace his substantive proposals for detention. As it reads, my sentence implies that Wittes embraces an executive order as a vehicle to change the rules about detention, when his proposal is obviously a piece of legislation.

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Will the administration be more swayed by an author of books about fighting terrorism than by its own deputy attorney general at the Office of Legal Counsel, Marty Lederman? The choice is stark, and if NPR’s Ari Shapiro is correct that Wittes is planning to reveal proposed legislation on the matter today, and that he has the ear of the Obama administration, then it may ultimately come down to whose view the administration credits more.

Wittes has no formal legal training and has proposed a potentially unconstitutional system of indefinite detention of terror suspects without trial; Lederman is an esteemed constitutional law professor at Georgetown University with eight years of prior experience advising the executive branch from the Justice Department — and he has previously expressed serious concerns about preventive detention.

As Spencer pointed out, before his appointment to the Office of Legal Counsel in the Obama administration, Lederman, in an online colloquy with Wittes, specifically denounced the idea of preventive detention based on the president’s determination of who is dangerous.

“’Dangerousness,’ as such — particularly dangerousness as evidenced primarily by one’s ‘deeply held beliefs’ — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial,” he wrote in Opinio Juris. “Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention.” He continued that the Supreme Court has repeatedly held that deterrence of dangerous people “is a function ‘properly … of criminal law, not civil commitment.’”

Wittes may have a very “pragmatic approach to fighting terrorism,” as NPR describes it. (He’s also in the past proposed a system of “national security courts” that would suspend some of the usual criminal justice procedures — which sounds a lot like the new Obama military commissions proposal.) But it’s worth recalling that we’re in this situation to begin with because the Bush administration, dominated by non-lawyers, had insufficient respect for constitutional parameters.

This situation may be partly due to the lack of leadership in the OLC: Republicans have stalled the confirmation of Dawn Johnsen, President Obama’s nominee to head the office, for months now. That may be giving outsiders more say in the administration’s plans than they would ordinarily have.

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The approach is disingenuous and misleading for a number of reasons I’ll get into below. And the effect is to offer an excuse for those officials who approved what many real experts on the international and domestic laws against torture and cruel treatment have been saying for years are clearly illegal.

After discussing the recently-obtained e-mails, apparently revealed during the much-anticipated investigation by the Justice Department’s Office of Professional Counsel, here’s The Times’ attempt at stepping back and putting the situation in context:

Some outside experts agree that the language of the 1994 [anti-torture] law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.

But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”

Setting aside the obvious problem of approaching such a serious issue by just cherry-picking one expert from each side, this sets up the legal issue incorrectly, and relies on an outside “expert” on legal compliance who doesn’t even have a law degree.

Sure, Benjamin Wittes, a Washington Post editorial writer before moving to Brookings, has written about law as a journalist and opinion writer; but Wittes is neither a lawyer nor a law professor — usually the bare minimum required to qualify someone as an expert on the laws of war, interrogation and torture. Shouldn’t the one expert cited by the so-called paper of record as saying the manipulative abuse of prisoners by the CIA was undoubtedly legal at least have the requisite educational background to offer the opinion?

Maybe Wittes is a brilliant autodidact. But there’s an obvious problem with his whole analysis. The law is not nearly so narrow as Wittes and The Times’ article portray it.

As anyone who’s read either the Convention Against Torture or the 1994 U.S. law implementing it knows, interrogation techniques don’t have to rise to the level of “torture” to be unlawful.

Human Rights First – a collection of actual legal experts on international human rights law – explains on its Website: “Even if the practices alleged in the recent press reports do not constitute ‘torture,’ article 16 of the Torture Convention obliges states not to commit “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

When the U.S. Senate ratified the treaty in 1994 and adopted a parallel domestic law, it included this reservation:

“[T]he United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment’, only insofar as the term `cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”

In other words, it prohibits the sorts of things that the U.S. Constitution would prohibit doing to prisoners here in the United States.

Can one really say that “there’s no doubt whatsoever” that the interrogation techniques used by the CIA would not violate that ban?  Is it even conceivable that U.S. courts would allow federal officials to use those techniques on U.S. prisoners held in the United States? Didn’t the Bush administration create the prison at Guantanamo Bay precisely because it wanted to avoid constitutional obligations?

If The Times is going to take up this serious issue on its front page, then it should take the topic seriously enough not to act as an apologist for Justice Department lawyers, but to present it honestly, accurately, and with real expertise.

UPDATE: For more on the misleading Times’ story and a close reading of the Jim Comey e-mails, check out these excellent posts from Glenn Greenwald and Marcy Wheeler.

2nd UPDATE: I’d like to make a clarification. Upon reflection, I think I was too hard on Wittes here. I read his quote, in the context in which it was presented in The Times’ story, as saying that the harsh but less-than-torture techniques discussed in the article were undoubtedly lawful, which is, of course, a matter in much dispute.  After re-reading his statement, it seems that he was saying only that many interrogation techniques that Americans would ordinarily think of as torture don’t rise to the level of being defined as “torture” as set out in the 1994 federal anti-torture statute, 18 U.S.C. 2340. And that’s correct.

My point was a larger one, and was directed at The Times, not at Wittes. The article sets him up as an expert to make the point that the Bush administration lawyers reportedly made (though that in itself is a matter of some contention), which is that, as Times reporters Scott Shane and David Johnston put it, “the methods themselves were legal.”

But as I point out above, saying that they don’t rise to the legal definition of “torture” does not mean that they’re legal. Even if Bush administration lawyers thought they were, there are many very learned, respected and legitimate experts who disagree. And The New York Times should have noted that, instead of using a quote that makes a very narrow point to suggest a far broader conclusion.

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