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Federalist Society Tries - and Fails - to Defend Bush Torture Team

April 27, 2009

Not content with its past role in screening candidates for positions in the Bush judiciary and Justice Department, the conservative Federalist Society is back to defend the Bush torture team it helped create. Ironically, the Federalists' conference call today came just three days after McClatchy reported that Steven Bradbury - one of its members and a figure at the center of the storm over the release of the OLC torture members - refuted their claim that the military's SERE training program proved the United States did not torture terror detainees.
As Politico reported, the National Review hosted a media conference call featuring many of the usual suspects among the Bush torture apologists:

The lawyers' group, which was a pipeline for judges in the Bush White House, is hosting a call this morning with National Review writer Andy McCarthy, a former federal prosecutor, lawyer David Rivkin, and Chapman University Law School Dean John Eastman.

Their claim, as Politico noted, was that the "much-criticized memos from the Office of Legal Counsel were perfectly reasonable." While McCarthy brushed off the CIA's use of waterboarding on terror suspects by proclaiming "they were not going to be killed by the tactic," Eastman insisted the treatment was no worse than that undergone by American service personnel:

Eastman responded to The New York Times's Scott Shane about the use of waterboarding during the Spanish Inquisition and by the Japanese military, and responded "that psychological reviews of graduates of the military's SERE program, in which members of the U.S. military were waterboarded, is a more relevant example.
"Why would I go and look at something the Spanish Inquisition did just because it was also called 'waterboarding'?" he asked.

Perhaps because, as the Bush Office of Legal Counsel chief and 2005 torture memo author Steven Bradbury concluded four years ago, "SERE trainees know it is part of a training program."
As McClatchy detailed Friday, the CIA inspector general concluded in 2004 "there was no conclusive proof that waterboarding or other harsh interrogation techniques helped the Bush administration thwart any 'specific imminent attacks.'" While at the OLC, the Federalist Bradbury acknowledged as much:

"It is difficult to quantify with confidence and precision the effectiveness of the program," Steven G. Bradbury, then the Justice Department's principal deputy assistant attorney general, wrote in a May 30, 2005, memo to CIA General Counsel John Rizzo, one of four released last week by the Obama administration.
"As the IG Report notes, it is difficult to determine conclusively whether interrogations provided information critical to interdicting specific imminent attacks. And because the CIA has used enhanced techniques sparingly, 'there is limited data on which to assess their individual effectiveness'," Bradbury wrote, quoting the IG report.

And on Eastman's key point regarding SERE- echoed last week by his colleague David Rivkin who praised "the many measures taken to ensure that interrogations did not cause severe pain or degradation" - Bradbury disagreed. As McClatchy related from the recently released Justice Department memos:

The Bush administration erred by depending on a military training program, Survival, Evasion, Resistance, Escape, (SERE) to assess the risks that a suspected terrorist might face when being waterboarded.
"Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program," Bradbury wrote, borrowing from the IG report's conclusion.
Waterboarding terrorist suspects also differed substantially from its limited use in the SERE program.

"Nobody," the famous Monty Python skit joked, "expects the Spanish Inquisition." Certainly not prisoners of the United States. Not, that is, until George W. Bush assumed the presidency and the Federalist Society came to dominate the administration of justice in America.

2 comments on “Federalist Society Tries - and Fails - to Defend Bush Torture Team”

  1. There is a far more obvious refutation of the SERE argument:
    If the techniques used on trainees in the SERE program were NOT torture, then SERE would have no value whatsoever, since the purpose of that part of the SERE training is explicitely to train people to RESIST TORTURE, using the very torture techniques they would likely be subjected to if captured by an enemy which did not adhere to the Geneva Conventions (like the U.S. under Bush, for example).
    Game. Set. Match.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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