While the other side wanted to dismiss these folks as an un-American fringe or political terrorists, the truth is that citizens across this nation do not want Washington taking over our health care system.

It’s a curious argument, if only because the thousands of people coming out to these events, while they represent larger crowds than lawmakers are accustomed to seeing, still make up a tiny fraction of the voting public. Political columnist E.J. Dionne tackles the issue in today’s Washington Post, arguing that the town halls have seemed much more raucous than most have actually been for the simple reason that outbursts about death panels and socialized medicine make for better TV than quiet discussions about health care policy. The media, Dionne says, are complicit.

“There is an overwhelming case that the electronic media went out of their way to cover the noise and ignored the calmer (and from television’s point of view “boring”) encounters between elected representatives and their constituents,” Dionne writes, before pointing out what’s been ignored in the process.

Over the past week, I’ve spoken with Democratic House members, most from highly contested districts, about what happened in their town halls. None would deny polls showing that the health-reform cause lost ground last month, but little of the probing civility that characterized so many of their forums was ever seen on television.m[…]

The most disturbing account came from Rep. David Price of North Carolina, who spoke with a stringer for one of the television networks at a large town-hall meeting he held in Durham. The stringer said he was one of 10 people around the country assigned to watch such encounters. Price said he was told flatly: “Your meeting doesn’t get covered unless it blows up.” As it happens, the Durham audience was broadly sympathetic to reform efforts. No “news” there.

Dionne doesn’t offer any solutions to the timeless trouble of the major media outlets, being businesses, having to cater to the often mindless tastes of television viewers. But as a political strategy, Democrats might tap the logic of Donald Rumsfeld, the former defense secretary, who dismissed those enormous, high-profile protest rallies against the Iraq War by reasoning that more people didn’t march than did. The same, of course, can be said for the town halls.

As I’ve written before, Pelosi has been a bit cagey in the past about just what sort of criminal accountability she’s looking for.  She has previously mentioned holding former White House Counsel Harriet Miers and Bush aide and adviser Karl Rove — both of whom ignored congressional subpoenas while citing executive privilege — in contempt of Congress, as well as investigating the politicization of the Justice Department, but Pelosi has been relatively quiet on the authorization of torture by former Vice President Dick Cheney and former Defense Secretary Donald Rumsfeld.

Last night, Pelosi clarified her views a bit — sort of. Asked by Maddow if she’d support a ‘truth commission’ along the lines of the one proposed on the Senate floor yesterday by Sen. Patrick Leahy (D-Vt.), Pelosi said she supports an investigation, but she isn’t happy about providing immunity for Bush officials who broke the law. “I want to go forward but as we try to have reconciliation … I don’t think we should have immunity for some of those issues,” she said.

On one hand, this suggests that she’s even more gung-ho about prosecuting alleged criminal activity during the Bush administration than most members of Congress. But as Maddow pointed out later, that view also gives Pelosi a convenient excuse to oppose the Leahy truth commission, just as it’s gaining momentum — not only in Congress, but with the American public. That could be a way to prevent an in-depth investigation into exactly how it is that the U.S. government came to authorize the torture of terror suspects — including the role of Democrats who were briefed on the CIA’s tactics.

Not one to let such things go, Maddow specifically asked Pelosi about that as well. Pelosi’s response?

Sure, Pelosi said, some Democrats were briefed, but “they did not brief us that these enhanced interrogations were taking place … they were talking about an array of interrogations that they might have at their disposal.” In other words, the Bush administration briefed Democrats that they might use waterboarding and other “enhanced interrogation techniques” involving abuse and humiliation, they just didn’t tell the Democrats that they were already using those tactics.

Frankly, I’m not sure what difference that makes. So what if she knew that they might use waterboarding the next day, but hadn’t used it yet?  Pelosi’s subsequent point, that there was no way for the Democrats to object publicly about those techniques if they were unhappy about them, seems to me more valid. That is, after all, what a classified briefing means: you can’t talk about it later.

Pelosi said she’d like to change that:

These are issues you can’t even talk to your staff about. And that just isn’t right. Because it gives all the cards to the administration. And if you say anything about it you have violated national security … and that’s what we’re going to change. You don’t want any president, Democrat or Republican, to have that kind of authority.

No, we don’t. Because we’ve already seen the consequences. If we take Pelosi at her word,  she’s now supporting prosecution of former Bush officials for all sorts of lawbreaking, as well reforming restrictions on how members of Congress can use classified information to object to the executive’s tactics.

In the end, though, who knew what, when and why it all happened still remains muddled. It sounds more and more like both a truth commission that gets at the whole story AND targeted prosecutions based on the evidence that comes out, is going to be the best way to move forward. However, as human rights lawyers have pointed out to me (and as I discussed with Rachel Maddow on her TV show last week) the two really have to happen simultaneously. Otherwise, given the strict statutes of limitations on torture and other federal crimes, we could end up with a thorough report on senior Bush officials who broke the law, and no way left for the government to prosecute them for it.

Of course, it will take some convincing to get a majority in Congress — not to mention President Obama — to agree to that; but the American public, according to the latest polls, is already well on its way.

It seems Americans have taken to heart the much-cited mantra that we’ve now heard from both Pelosi and the new president: “No one is above the law.”

On a question about detainees not being “subject to cruel, inhuman, or degrading treatment or punishment,” he replies:

[T]his prohibition is in the best interest of the United States, the national security interests of the United States, and is consistent with fundamental American values.

He follows up by saying he’ll “review carefully” how his predecessors defined cruel, inhuman and degrading treatment. On Judge Advocates-General of the services — many of whom tried to stand up to Donald Rumsfeld on torture — Johnson pledges that they should “play a prominent role… [on] matters related to the treatment of detainees.” He gives a simple “yes” when asked whether he supports the revised, Geneva Conventions-compliant Army field manual on interrogations and Pentagon directive on detainee treatment.

On Guantanamo: Johnson says he’ll “provide legal advice to the secretary of defense on the status of the Guantanamo detainees and determinations whether the United States should continue to hold such detainees.” Perhaps more importantly, given President-elect Obama’s apparent intent to close Guantanamo, here’s something Johnson says that’s germane to potential civil trials for Guantanamo detainees:

If confirmed, I anticipate looking carefully at whether use of coerced testimony is ever appropriate in the criminal trial of a detainee.

As it happened, the following month I took a reporting trip to Guantanamo, where I was shepherded around the detention facility by three very nice soldiers. I was not allowed to interview any detainees. But I asked about the interrogation log. Oh, I was told, you can’t trust Time magazine. Do you really think that someone could endure as much forced hydration as that story said? Really? You’re that gullible? Come on.

And now, Bob Woodward reports, the convening authority for U.S. military commissions, Judge Susan Crawford, says unequivocally that al-Qatani was tortured:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. [...]

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.

One of the things I’ll miss the least about the Bush administration is being told not to believe my lying eyes and my common sense.

Writing about the case of Rasul v. Myers, in which four British former Gitmo detainees are suing for allegedly being tortured and denied their religious rights while imprisoned by US authorities — the Times bravely writes that “Part of the process of undoing that ugly legacy [of detainee abuse] is making clear that detainees have the right to sue if they were tortured or otherwise abused.”

Doing that could change everything. Imagine if hundreds of even thousands of victims around the world sued the US government for damages. How much do you get for being tortured? for indefinite detention? for religious abuse and humiliation? Canada paid Maher Arar — the Canadian sent to Syria to be tortured — $11 million in compensation. Will the US be liable for many billions?

So far, there have been surprisingly few civil cases brought against the US by torture victims, in part because suing is costly, the outcome is uncertain and appeals can go on for years. The Rasul case was made possible by the pro bono representation of the Washington law firm Baach Robinson & Lewis, working with the Center for Constitutional Rights, and hoping to establish exactly the precedent the Times is advocating for now.

The DC Circuit, instructed to reconsider its ruling in light of Boumediene v. Bush, which made clear that detainees imprisoned by the US in Cuba do have rights under the US Constitution, could now decide that US officials are not immune from lawsuits brought by torture victims, because the right not to be tortured has long been well established in both US and international law. It could also decide that the 750 or so men who’ve been held at Gitmo are indeed “persons” protected under the Religious Freedom Restoration Act, something the court oddly denied before. And there are thousands of others held by US authorities abroad whose rights under the US Constitution have yet to be decided.

All this could — and perhaps should — open the door to a flood of lawsuits by alleged victims of torture, physical and psychological abuse and religious deprivation, as I’ve explained before. As in the Arar case, there are strong arguments for why victims of torture at the hands of the US government deserve a remedy.

But should torture victims really have to pay a lawyer to take their case to court and wait years for a result? And is the US willing to pay billions of dollars in damages?

The better approach might be one suggested to me by Carolyn Patty Blum, a consultant for the International Center for Transitional Justice: have an investigatory commission set up both to investigate what crimes were committed and compensate their victims. That’s a common role for Truth and Reconciliation Commissions that have been created or considered around the world, and while it wouldn’t and shouldn’t preclude prosecution of criminals, it could make compensating the victims far easier for everyone involved.

The three British plaintiffs involved in this case — Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed — claim they traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians displaced by the war. In late November, they were kidnapped by Rashid Dostum, the Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim, they were imprisoned in cages, tortured and humiliated, forced to watch their korans decimated and have their beards shaved, until they were returned to Britain in 2004. None was ever charged with a crime.

Seven months later, the three men, plus another British citizen picked up in Afghanistan and imprisoned at Gitmo, sued former Defense Sec. Donald Rumsfeld and a host of other military commanders for authorizing their torture and violating their religious rights.

In January, the federal appeals court decided that even if all their claims are true, the US officials are immune from suit because, even though torture, physical abuse and humiliation of prisoners violate domestic and international law, the officials were doing all this “within the scope of their employment” and so aren’t personally responsible. They were also immune, the court added, because it wasn’t clear when they authorized the torture that detainees at Guantanamo Bay had rights. As for the men’s religious rights, the court decided that as foreigners, they were not “persons” entitled to the protection of the Religious Freedom Restoration Act.

As I’ve written before, this case could be the tip of the iceberg — given how many hundreds of people were detained at Gitmo and then released. (Tens of thousands more have been held in Iraq and Afghanistan, at prisons like Abu Ghraib and Bagram — and some of those could try to bring claims as well.)

And as I noted last week, it’s yet another reason for the new administration to quickly appoint an investigatory commission, with the authority not only to prosecute those who committed and authorized crimes, but to compensate the victims.

DiRita’s basic argument is that Shinseki’s reputation is constructed around a “myth” of resistence to the Bush administration. It’s a curious argument — the mouthpiece for the former secretary of defense is actually arguing that Shinseki should have dissented more from his ex-boss’s ludicruous and irresponsible proposals if he wants to be considered truly a dissenter. But this is just an outright lie:

Shinseki was not forced from office. He retired on time in June 2003, with the full honors due a retiring chief of staff of the U.S. Army.

What DiRita is hoping you don’t understand is that Rumsfeld announced over a year before Shinseki’s scheduled retirement that he was in the market for a new Army chief of staff after the two men tousled over an Army artillery system. It was a typically classy and productive way to handle things. DiRita might be literally correct that Shinseki wasn’t formally fired, but the actual context of what happened makes his statement have the same relationship to the truth as most of his official statements from the Pentagon press shop. Here’s how ret. Gen. Paul van Riper described the reaction to Rumsfeld’s premature cashiering of Shinseki:

I know of nothing, other than the failure to plan adequately for the war in Iraq, that upset the retired community nearly as much as Mr. Rumsfeld’s treatment of the chief of staff of the Army, Gen. Shinseki. Just irate. I’ve been in meetings and breakfasts and lunch where this is a subject of conversation and just a very, very bitter feeling that he would treat someone like that.

The idea that DiRita is interested in the truth is just too absurd to take seriously. What rankles him is that Shinseki was right and Rumsfeld was wrong, and everyone knows it. This effort to get people to believe DiRita instead of their own lying eyes is an artifact of the Bush era that most people are happy to see drift off into the distance on another month and five days.

A slew of lawsuits isn’t hard to imagine. About 750 people have been detained as suspected terrorists at Guantanamo Bay. Thousands more have been held around the world. Many claim they were tortured, and we know from the Bush administration’s own documents that tactics such as waterboarding, stress positions, extreme hot and cold, blaring music and sleep deprivation, and sexual and religious humiliation were all among the tactics used to wring information out of them.

Although the Military Commissions Act tries to preclude lawsuits filed by enemy combatants, many of the people held were never determined to be enemy combatants, or were still held after they were cleared for release. Of the lawsuits already filed against US officials by detainees, none of them were ever deemed enemy combatants. The Second Circuit heard arguments in the case of Maher Arar this week, and lawyers on the other case (Rasul v. Rumsfeld) have asked the US Supreme Court for review. The court will consider the request when it meets on Friday.

Although all sorts of immunities protect US officials from wrongdoing on the job, there’s a strong argument to be made that torture can never be considered part of a government official’s job, so those immunities shouldn’t apply. And the Religious Freedom Restoration Act, which protects against violations of detainees’ religious rights, such as having their Koran flushed down the toilet or being forcibly shaven, is very broad. (That didn’t stop the DC Circuit from dismissing four British detainees’ claims under it earlier this year, though, as I’ve written about before.)

But as I was talking to Carolyn Patty Blum the other day, an emeritus law professor at Berkeley and consultant to the International Center for Transitional Justice, she mentioned that a commission set up to investigate torture and other abuses perpetrated by Bush officials could also recommend, in addition to prosecution, a means by which torture victims can be compensated. Even if Bush were to pardon himself and his officials, a topic of much recent discussion, that wouldn’t shield anybody from future civil lawsuits demanding monetary compensation. But a statute that set up an investigative commission that had the power to, among other things, recommend compensating victims of torture and arbitrary detention, could also protect the US government from some costly future litigation.

“If a commission led to the creation of some sort of process that allows people to clear their name and apply for some sort of monetary compensation for being arbitrarily detained, one of the benefits is it would foreclose the ability for people to pursue another remedy,” Blum explained. “That would be a net gain in terms of cost savings for the new administration.”

Although that’s not the primary reason why Obama should create an investigative commission — Scott Horton at Harper’s has made the case for one quite well — it’s yet another argument in its favor.

Today the committee released an unclassified version of its report into the origins of torture in the Bush administration. Methodically, the committee establishes how the United States turned away from a historic commitment to the preservation of human rights in the mistaken belief that it could rely on torture to secure the country. A flavor:

A week after the visit from those senior lawyers, two GTMO behavioral scientists who had attended the [Joint Personnel Recovery Agency]-led training at Fort Bragg drafted a memo proposing new interrogation techniques for use at GTMO. According to one of those two behavioral scientists, by early October 2002, there was “increasing pressure to get ‘tougher’ with detainee interrogations.” He added that if the interrogation policy memo did not contain coercive techniques, then it “wasn’t going to go very far.”

Call it the bureaucrat-ese of evil. Here’s what I believe is a new piece of information: Instructors from the military’s Survival, Evasion, Resistance, Escape (SERE) program — intended to train U.S. forces how to withstand torture — visited Guantanamo to train interrogators how to torture detainees:

On December 30, 2002, two instructors from the Navy SERE school arrived at GTMO. The next day, in a session with approximately 24 interrogation personnel, the two SERE instructors demonstrated how to administer stress positions, and various slapping techniques. According to two interrogators, those who attended the training even broke off into pairs to practice the techniques.

And here’s another — how Donald Rumsfeld specifically approved the torture of a Guantanamo detainee:

Just a few months later, one such request for “additional interrogation techniques” arrived on Secretary Rumsfeld’s desk. The detainee was Mohamedou Ould Slahi. While documents relating to the interrogation plan for Slahi remain classified, a May 2008 report from the Department of Justice Inspector General includes declassified information suggesting the plan included hooding Slahi and subjecting him to sensory deprivation and “sleep adjustment.” The Inspector General’s report says that an FBI agent who saw a draft of the interrogation plan said it was similar to Khatani’s interrogation plan. Secretary Rumsfeld approved the Slahi plan on August 13, 2003.

According to Amnesty International, Slahi was implicated in the failed “Millenium Plot” and turned himself in to authorities in Mauritania shortly after 9/11. He was then rendered to Jordan — a country known to torture — for several months before the U.S. took custody of him and transfered him to Guantanamo by the summer of 2002. Here’s what Amnesty pieced together about Slahi’s treatment before Rumsfeld’s new plan took effect:

According to Mohamedou Slahi, his FBI interrogator told him on 22 May 2003 that Slahi “was not going to enjoy the time to come”. One of the new interrogators assigned to his case was “a special guy” who was always masked so “we would never see his face”. On 17 June 2003, Mohamedou Slahi was put in “total isolation” in India Block of the Guantánamo detention facility, and “they took all of my stuff from me”. He has described his cell as built of steel from floor to ceiling with a very cold temperature setting on the air conditioner. According to the information released under the FOIA, another detainee has called this room the “freezer”. Mohamedou Slahi recalled to his ARB in 2005 that “I could not bear sleeping on the metal because of my back and you never know how much pain I could take. I could end up dead or something.” He says that he refused painkillers in protest, as what he needed was something to sleep on.

Heavily redacted documents made public under FOIA litigation contain references to this period such as “every morning the detainee was scared…”, “the detainee stated that he refused to eat food when he was humiliated”, and “the detainee was awaken [sic] every hour or two and only [sic] and forced to drink one liter of water.”(17) Although pages of further details have been censored out, the detainee would appear to be Mohamedou Slahi.

Can’t wait to read how Rumsfeld justifies this in his forthcoming memoir.

First, and unavoidably, the appointment of Gen. Eric Shinseki to head the Veterans Affairs Dept. is a reminder of just how repudiated Rumsfeld is. One of the best pieces ever written about the Rumsfeld era came long before the Iraq war. In the New Yorker in August of 2002, Peter J. Boyer mined the depths of disagreement between Rumsfeld and the Army over the future of U.S. ground forces. As Army chief of staff, Shinseki was an advocate of significant ground-force transformation away from a ponderous, mechanized force and toward something lighter and more deployable — he’d tell his subordinates, “If you don’t like change, you’re going to like irrelevance a lot less” — and you’d have thought that Rumsfeld would enlist Shinseki as a natural uniformed ally for what was, ostensibly, the same goal. But no.

Unfortunately, the piece is behind a subscriber-only firewall, but here’s an excerpt, harvested from Nexis. [Update: Avi Zenilman at the New Yorker has lifted the firewall! Here's the piece.]

[T]he advent of the Bush team opened a second front with which Shinseki has had to contend. Not only does he have to persuade the Army to transform, he also has to argue for the Army’s utility in war. At the heart of this argument is the belief that no technological wizardry can eliminate the risks of close combat, and that even the new, unconventional conflicts that loom will ultimately hinge on the skill, commitment, and courage of the American soldier.

And it’s clear in Iraq and Afghanistan who was right and who was wrong. One tragic irony of the Iraq war — among many — is that in the fall of 2006, Rumsfeld went to tell the families of the 172nd Stryker Brigade that its tour of duty in Iraq would be extended, an anguished moment that was captured on video and uploaded to YouTube. Rumsfeld called the Strykers “the best, most capable, most mobile unit” around. The Strykers were the brainchild of Shinseki  and were used when Rumsfeld’s pet theories about the irrelevance of ground power were disproven.

Speaking of ground power, it’s clear from Bob Gates’ recent comments — and, for that matter, his tenure at the Pentagon to date — that Gates views ground power not as a quaint relic of outmoded warfare but the key to victory in the conflicts of the future. When he writes in Foreign Affairs that it’s ludicrous to think “it is possible to cow, shock, or awe an enemy into submission,” he’s clearly got his predecessor’s preferred visions in mind.

Today, for instance, they’ll be another example of this.  Gen. William S. Wallace will step down as the commander of the U.S. Army’s Training and Doctrine Command at Ft. Monroe, Va., where over the past three years he’s overseen and nurtured such ground-force doctrinal shifts as the new Army field manuals on counterinsurgency and stability operations and the creation of the U.S. Army/Marine Corps COIN Center. Wallace is perhaps most famous, though, for a comment he gave when commanding a division during the invasion of Iraq that ran into unexpectedly tough resistance from a Saddamist guerilla force. “The enemy we’re fighting is different from the one we wargamed against,” Wallace told The New York Times. It was Rumsfeld, of course, who forced his assumptions about the shape of the Iraq war onto the Army.

Gates will speak at the change-of-command ceremony — another indication of the end of the Rumsfeld era.