Archive for the ‘torture’ Category

Boiled in Oil

November 29th, 2009 No comments

A few years ago, Martina Navratilova was asked about how her openness about being a lesbian had affected her tennis career. In characteristically honest and amusing fashion, she had this assessment (and here I paraphrase): Well, it wasn’t great. It cost me some fans, I took some heat for it, and I lost almost all of my endorsements. But it could have been worse. In the Middle Ages, I would have been boiled in oil.

A great line from a terrific and warm champion. (I had the pleasure of meeting her a few years ago at yet another event where she was being honored, and she was both humble and funny in accepting.) But, with all respect: Worse things are happening to gays today.

Jamaica’s horrendous treatment of gays — by both officials and the public — has been well-documented, and is (again) sometimes justified by religion. In addition to the legion of under-noticed stories on the brutal murders and beatings of gay men goings on there, there is this “gem” from Wayne Besen at Huff Post, which chillingly attests to the extent of the homophobia:

[T]he Jamaica Cancer Society has raised concerns that the fear of being labeled gay is causing some Jamaican men to avoid prostate examinations, causing one of the highest prostate cancer rates in the world.

This also means that doctors are complicit in some way, which is worse – but not surprising. Both straight and gay men who undergo a prostate exam in the U.S. often hear snarky comments about the exam from their docs, an artifact of the fear of gay sex.

In Iraq, an unintended consequence of our “liberation” the people has been the coordinated — and militia-supported — murder of many gay men. Things were better for gays under Saddam Hussein. Again, the fear of gay sex is the driver: The linked story relates stories of gay men having their anuses glued shut, and then force-fed laxatives; a painful death ensues.

These heartbreaking stories find expression in the U.S. as well, where a collision of religious belief and homophobia lead to actions that are equally repugnant, yet little noticed.

The creepy, secretive  cabal known as “The Family” is supporting the Ugandan government’s push to make homosexuality punishable by death. This story is a good primer on this corrupt, politically powerful, organization, which uses religious belief chiefly to gain tax advantages and to support the opulent lifestyles of its members. Jeff Sharlot’s exhaustive account of the group, The Family, would be expected to drive these nuts out of business — but this is a nation where torture is redefined and no one who authorized blatantly illegal practices gets prosecuted for it, so I’m not optimistic.

You’ll notice that the stories, and the actions of these anti-gay groups, focus on gay men, not lesbians. While there’s plenty of anti-lesbian sentiment to go around (and well-documented economic costs to being lesbian), sex between males remains particularly transgressive. A few years ago, a colleague introduced me to a list serve for Constitutional Law professors (after about two days of endless, theoretical postings, I got out of there), and I was astonished to see a comment from one anti-gay law professor joking that he, himself, didn’t understand male sex (the comment was much worse than that; I’m sanitizing for your protection).  And this is a supposedly respectable law professor.

Of course, Obama would never make such a comment. But he would — and has — ignored the 720 murders of gays in Iraq, despite clear and persuasive reporting on the topic. As far as I can tell, he’s said nothing about Jamaica, either (and has not responded to this suggestion, either).

I’m not naive enough to think that the Administration can get involved in every controversy, or that it should put issues of concern to the gay community ahead of other diplomatic goals. But we’re not talking about small stuff here. People are being killed, with something at least close to official approval, and…silence. With no other group would this be considered business as usual.

There’s something else. It’s hard to say much about what’s going on in other countries when your own domestic record is less than exemplary. Here’s where all of this ties back to marriage equality, if only in theoretical political terms. By not committing himself to that goal, Obama is stating, in effect, that he doesn’t favor full citizenship for gay and lesbians. So even though Obama is leagues away from dangerous right-wing nuts like the members of “The Family,” his credibility on gay issues is compromised. Perhaps that explains his otherwise puzzling silence.

Torture’s Effects — the Growing Catalogue

September 21st, 2009 No comments

To the profound moral and political dimensions of torture, add the cognitive. According to this story, a prominent neuroscientist now claims that the sort of prolonged stress that was the hallmark of many of the torture tactics employed during the Bush Administration has this result: the victims become cognitively impaired to the point where they can’t provide reliable information.

The list of techniques the CIA used…cause the brain to release stress hormones that, if their release is repeated and prolonged, may result in compromised brain function and even tissue loss, [Shane] O’Mara [of Trinity College] wrote.

He warned that this could lead to brain lobe disorders, making the prisoners vulnerable to confabulation – the pathological production of false memories based on suggestions from an interrogator. Those false memories mix with true information in the interrogation, making it difficult to distinguish between what is real and what is fabricated.

I’d like to see more on this, but it seems plausible on its face. Yet in absence of  (at least) any kind of systematic evaluation, will any of it matter? Or will this latest consequence be added to the list of things from which we’ll learn nothing that will help us avoid these same mistakes in the wake of the next national calamity?

Here’s Andrew Sullivan’s eloquent plea for Bush to own what happened. I actually believe it could work, if Bush would read it. But if his personal history is any guide, he won’t. Why upset your careless verities?

A Conversation with Alex Nicholson

May 19th, 2009 No comments

Here’s something to think about:

Getting married, or civilly united, as a same-sex couple can get you discharged under the military’s “Don’t Ask, Don’t Tell” policy. As the New Jersey Civil Union Commission Report pointed out, declaring that you’re in a civil union is actually “worse” (read: more hazardous) than saying “I Got Married!” — since civil unions are limited to same-sex couples, that simple speech act will do you in. You might be able to get away with saying you’re married, at least until someone asks you “to whom” (and you dare to answer truthfully) or until someone finds out that you’re “gay married.”

At least these acts of commitment are solid evidence that one has a same-sex orientation. Contra the reading of Anne Rice novels, or the possession of art that’s seen as “too lesbian”; these have also passed for “evidence” in the administrative hearings that often lead to discharge for “violation” of this policy.

This last bit of information came courtesy of Alex Nicholson, former Army (multi) lingual “human intelligence collector” discharged under the policy when another soldier discovered his “gay” letter — written in Portugese. He’s the founder and Executive Director of Servicemembers United (“SU”), the primary mission of which is to advocate for the repeal of the DADT policy.

Among the “human intelligence” Nicholson was able to collect surely would not have been a justification for the DADT policy; in fact, there’s not a shred of evidence in support of it. No, this document from former officers no longer serving isn’t evidence; worse, the embedded “Issues Overview” is a distressing hash of homophobic arguments that I’ll address in an upcoming post. For now I’ll just mention that the world is changing more quickly than some retired soldiers know or want to acknowledge. As explained here, that other bastion of presumed heterosexuality, the Greek fraternity/sorority system, has also undergone rapid transformation. (The writer describes her experience at the College of William and Mary, which I also attended. When I was there, in the 1970s, we were all living under “don’t ask, don’t tell. That doesn’t mean there were no same-sex acts. In fact, one of the fraternities had a reputation as being the one to join if you were so disposed! Is this a digression? Not really; a socially enforced (then), or legally required (now, under DADT) invisibility doesn’t “solve” “the gay problem”; it simply drives it underground.)

I recently had a long sit-down with Alex Nicholson, whom I’d briefly met a couple of weeks ago at the Equality Forum event for which I was blogging. Between an appearance on National Public Radio, a screening of the documentary “Ask Not” (which features him among others; see it June 16 on PBS) and a likely appearance on Campbell Brown’s CNN show, he graciously spent a couple of hours with me discussing all manner of things; some related to his organization and its mission, some about his life and background, and some general chitchat (a mutual specialty, it seems).

Alex grew up an only child in South Carolina, the son of a military dad, and left college after one year to join the Army. I asked the obvious question: “Did you know you were gay then?” Yes, he did. Well, then, why on earth join the military? His answer should have been unsurprising: “It was a non-issue in my head.” He knew of the policy, but wasn’t educated about it and somehow didn’t think it would be much of a problem. He might have been right, even though it didn’t turn out that way. The DADT policy is unclear, and randomly enforced. Some can go years with many fellow soldiers knowing they’re gay, while others are pushed out quickly. This inconsistency itself is enough to alert reasonable people that the policy ain’t right.

Alex Nicholson and his colleagues at Servicemembers United are doing something about it. When he founded the organization three years ago,  he followed the “do it yourself” model that seems to be the signature talent of millenials. Without funding,  SU established a website toehold, and then leveraged its influence through a series of ad hoc projects and initiatives co-sponsored by different, better established organizations. For example, SU created “the 12000 Flags for 12000 Patriots” campaign and then invited participation from the Human Rights Campaign, the (evil) Log Cabin Republicans, and the Servicemembers Legal Defense Network. “12,000 Flags” marked the shameful fact that 12,000 able servicemen and servicewomen had been discharged within fourteen years of the enactment of DADT. Here’s Alex, speaking at the event:

SU work is more of a calling than a job. Alex and his partner, co-founder Jarrod Chlapowski, work well into the night — for no pay! (There is no paid staff, still.)  It seems as though their work is starting to claw its way into the collective consciousness. The issue is everywhere, lately, and Presidential press conferences and briefings continue to feature awkward circumlocutions on when and how DADT will finally be given an indecent burial. (Jon Stewart is predictably devastating on the issue here; points out absurdity of our different policies on torture, release of torture videos, and DADT). In the midst of this, Alex Nicholson continues to work on his Ph.D. dissertation in Political Science for the University of South Carolina. The topic is one you might have expected to interest him: How people move from passive to active support of social movements, with emphasis on the involvement of non-affected supporters (e.g., men for feminism, straights for gay rights).1

So, does he want to become a professor? He’d much rather…rejoin the military. He hopes to attend law school, preferably in D.C., where he’s now located, and then join the JAG Corps.  After our long and interesting conversation, I somehow didn’t find this surprising at all. SU exists because Alex Nicholson and others have not given up on an organization that, even now, would rather not acknowledge their existence. That’s persistence.

  1. I’d say that everyone is affected by whatever happens to everyone else, but I understand the point to be about direct effects.

Andrew Sullivan’s “Familiar Feeling” — and a Qualified Defense of Obama

May 14th, 2009 No comments

Well, we’re not even four months into the Obama Administration and already the LGBT community is frustrated at the pace of developments. And, really, who can blame us, after the betrayals of the Clinton Administration and the hostility of his successor who-must-not-be-named? Here’s Andrew Sullivan, in a sobering and angry piece on the Atlantic website (“The Fierce Urgency of Whenever”):

“I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

“Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike most non-Americans with HIV who have no options at all).

“And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We’re firing Arab linguists? So sorry. We won’t recognize in any way a tiny minority of legally married couples in several states because they’re, ugh, gay? We had no idea. There’s a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know.”

Steve Sanders over at Sexual Orientation and the Law Blog expands on the point, noting that some of the things Obama’s promised to do might be accomplished without legislative action; arguably, he already has the executive authority to stop the discharges under the completely indefensible “don’t ask, don’t tell” policy.

These points are fair, and we’re right to be concerned about both the pace of change and, perhaps as important, the weakening or outright disappearance of rhetorical commitment on central issues, such as federal civil unions; the Employment Non-Discrimination Act; and the repeal of  DADT. But the story isn’t this simple.

Sullivan himself is of two minds on this, as are many of us. He prefaces the eviscerating remarks quoted above with the following:

“[I]t’s tedious to whine and jump up and down and complain when a wand isn’t waved and everything is made right by the first candidate who really seemed to get it, who was even able to address black church congregations about homophobia. And obviously patience is necessary; and legislative work takes time; and there are real challenges on so many fronts….No one expects a president to be grappling with all this early on, or, God help us, actually leading on civil rights. That’s our job, not his.”

So, where are we and how concerned should we be?

Let me start with Sullivan’s “familiar feeling.” I’m less concerned than he is (of course, I’m not about to get kicked out of the country, either), principally because Clinton and Obama are so different, tempermentally. Clinton, for all of his obvious intelligence, was in many ways an incautious, borderline reckless, man: “I’ll just issue an order allowing gays into the military. What could be hard about that?” Obama’s endlessly analyzed personality is that of the careful incrementalist, who listens to all parties, decides on a course of action (and sometimes reconsiders his position, as with yesterday’s about-face on the release of prisoner abuse photos), and then works patiently and tirelessly for consensus. Anyone who could herd the divas on the Harvard Law Review has some accomplishment to commend his approach.

So what looks the same from one perspective — the lack of progress on gays in the military — may be quite different in underlying significance. We don’t know what Obama is doing (or thinking) behind the scenes, but I’m willing to bet it’s…something.

Not exactly reassuring, is it? I don’t have any way of verifying my suspicion on this issue, and I might be totally off. (I really hope not. DADT is just nuts; made even more so now that same-sex couples can marry or civilly unite. That legal act is now a ground for discharge under the policy. My next post will be of a conversation I had with the unceremoniously brilliant Alex Nicholson, the founder of an organization dedicated to repealing the policy, Service Members United.)

But there is movement. Let’s put this into context. For approximately forever, the only traction gay issues had at the federal level had been as a wedge issue — against us. I’m talking about DADT and the Defense of Marriage Act, not to mention the Federal Marriage Amendment (which never had a chance of passage but was conveniently unsheathed whenever an election loomed), and of course the epidemiologically and ethically indefensible ban on HIV-positive immigrants.

Now we have a gay-inclusive hate crimes bill set to pass and be enacted into law, likely quite soon. (I don’t agree that this is entirely symbolic; but even if it were, symbols matter). “Sources” tell me that there is a place on the legislative agenda this year for the Employment Non-Discrimination Act. (Whether it will be trans-inclusive is less certain, but vital: Who most needs this protection? Not me.) ENDA has been around since, if I’m remembering correctly, the Truman Administration. Neither Sullivan nor Sanders discusses this issue, on which progress looks quite likely.

Meanwhile, lifting of the HIV ban is moving along — albeit at the glacial pace of the federal regulatory process. Again, Sullivan (first quoting):

“’The Department of Health and Human Services has submitted for OMB review a notice of proposed rule-making to implement this change.’

“Translation: we’re doing the bare minimum to make us look no worse than Bush, but we have no real interest in this and are letting the bureaucracy handle it, and we guarantee nothing.”

I think that’s too critical. HHS Secretary Sebelius acted within one week of her confirmation to get this long-overdue repeal moving through the process. As this site reports, the bureaucrats are following standard procedure here, needed to put into practical effect the legislative repeal (changing the law meant that HIV was no longer required to be on the list of excludable diseases; now it must be removed).

Imagine it’s the end of 2009: The hate crimes bill is law, so is ENDA, and the HIV repeal is lifted (in time for Sullivan, I sincerely hope; but as he points out, there are many others for whom the ban leaves fewer, or no, options). DADT continues to be assaulted, relentlessly, from many perspectives, but is still in place. Civil unions, flowering all over the country, lie beneath still-frozen soil in D.C.

Would we regard this record as one of success? Let’s see if we get there, first. And let’s continue the relentless advocacy that is finally, I believe and dare to hope, beginning to push on the hinge of history.

Tortured Legal Analysis

April 19th, 2009 No comments

Last Thursday’s release of the so-called “torture memos,” written by the Justice Department’s Office of Legal Counsel in the Bush Administration to justify “harsh interrogation techniques,” has brought down a hail of commentary from all points along the political spectrum. I’m reluctant to wade into this mess, mostly because it’s hard to find an angle that’s not been taken.

One point that’s been insufficiently reflected on, though, is the paradox of the “top-drawer”  lawyer. Whenever a client has an extremely complex, embarrassing, or possibly illegal idea, they make every effort to find the very “best” attorneys; those whose legal acumen and skill at minute parsing of argument and language give them the best chance of success.

So it is at the highest levels of government, populated in the main by attorneys churned out by the most elite law schools: Lawyers like John Yoo, Jay Bybee, and Steven Bradbury, each of whom played a substantial role in the creation of the crucial memos (from 2002 and 2005) authorizing the interrogation techniques that have generated the justified outrage that has spewed forth over the last several days.

A little background: The United States is signatory to the UN Convention Against Torture, which these and other attorneys had to gyrate around in order to green-light what the Bush Administration wanted to do to terror suspects. How to justify waterboarding, for example? Well, even though the 2002 memo conceded that the technique “constitutes a threat of imminent death,” it didn’t violate the Convention’s prohibition against the “infliction of severe mental pain or  suffering” because the mental harm wasn’t “prolonged.” Apparently, the drafters “forgot” that, in describing the technique, they stated that “it may then be repeated.” At what point would it add up to “prolonged” mental harm? This just in: 183 times was OK, according to a Times story detailing the detective work of bloggers who managed to read the number in a redacted memo.

That number is (I hope) an outlier, but it showcases what will happen when “top” lawyers are turned loose on a document. Unless they have a moral compass beyond their sere legal knowledge, virtually any reading of a qualitative standard (“severe” or “prolonged”) can be argued for (if not ultimately supported). (Quantitative restrictions are harder to get around: Maybe the Convention should have said: No more than x hours of sleep deprivation; or only y waterboardings are permitted. Let y=0.) This isn’t surprising, really; when I read the memos, I found myself using my own analytical abilities to agree or disagree with various of the conclusions the writers reached.

What is the check on this, other than the probably impossible attempt to predict and then prohibit or quantify every method of cruelty the human mind can devise? I can think of two: James Comey1 and the sheer moral repugnance of enough of those “in the field.”

As Deputy Attorney General under John Ashcroft, Comey is perhaps best known for a bizarre confrontation in 2004 with disgraced White House counsel Alberto Gonzales and Chief of Staff Andrew Card; the two were on their way to the ailing Ashcroft’s hospital bed to try to persuade him to re-authorize a domestic spying program that Justice had just determined was illegal. Comey learned of this maneuver and raced in ahead of these ghoulish opportunists, putting a stop to their plan. But Comey also supported Jack  Goldsmith’s rescission of the 2002 memo, and objected to Bradbury’s 2005 memos. Could he have done more? Frankly, I don’t know. But if more had been as moral and determined as he, perhaps some of this could have been prevented.

Then there are those in the field. As Seth Kreimer, a law professor at Penn, details in his article, “‘Torture Lite,’ ‘Full-Bodied Torture,’ and the Insulation of Legal Conscience,” 2 much of what we’ve learned about the abuses committed in the name of the war on terror came out because of the simple moral outrage of those on the ground level:  “Specialist Joseph Darby, outraged by his discovery of photographs depicting the abuse at Abu Ghraib, was impelled to bring the matter to investigation because ‘it violated everything I personally believed in and everything I was taught about the rules of war.’ Master at Arms William Kimbro, a ‘dog handler,’ as recounted by the dry prose of the Taguba Report, ‘knew his duties and refused to participate in improper interrogation despite significant pressure.’ General Anthony Taguba put his career at risk by actively investigating and accounting for the abuse at Abu Ghraib. Members of the JAG Corps resisted the effort to dilute protections for prisoners, and ultimately they revealed that dilution to the human rights bar.”

Moral outrage indeed. Let me close with the power of one image, selected from among literally thousands, that makes the point that the Bush lawyers’ language sought to occlude:


  1. This is odd, because Jim Comey and I shared an apartment in Hoboken for about a year in the mid-1980’s. We lost touch some time after that, and evidently his politics and mine aren’t identical. But I have tremendous respect for him for reasons mentioned above.
  2. 1 J. Nat’l Security L. & Pol’y 187 (2005)