The Organization of American States (OAS) just held its 42^nd general assembly in Cochabamba, Bolivia. During the general assembly, Ecuador's President Rafael Correa, in a renewed attack against freedom of the press, sought to block the release the Inter-American Commission on Human Rights' (IACHR) report of press freedom in the Americas.

Freedom of speech is not the only right under fire from Ecuador's leader. For years, Rafael Correa has used all available government resources to concentrate governmental power in his hands. The result has been to hide crimes committed by him or his inner circle. Every time he attacks a journalist, nationalizes a TV station, or leaves unpunished people engaged in drug trafficking, Correa does so knowing that he manipulates the judicial system and intimidates his country's media.

Astoundingly, not long ago Correa said this on television: "The president of therRepublic is not only the head of the executive, but the head of all the Ecuadorian state, and the Ecuadorian state is the executive branch, the legislative branch, the judicial branch, the electoral system, the state comptroller... [and every other major function of the government]." Correa's strategy has been described by Ecuadorian constitutional lawyers as a "de facto coup d'état."

As an example, in May 2011, President Correa called for a referendum to restructure the Supreme Court. Correa's purpose was to dominate the court and the result of the referendum was the replacement of the system through which judges were appointed with a new system controlled by the president through the following mechanism: a new "judicial council" was established, composed of three members, one from the executive, one from congress (where Correa has a majority), and a third from the comptroller's branch -- which also reports to the president.  

Correa wasted no time: The new Council has already appointed all twenty-one new judges to the Supreme Court. To no one's surprise, fourteen of the new judges have been former Correa officials, relatives of current cabinet ministers, or peopble involved in controversial, pro-Correa judicial decisions. One of the latter, for example, is Wilson Merino, who as a lower court judge sided with President Correa in a sham defamation lawsuit launched by Correa against the newspaper El Universo. Merino not only ruled for Correa but awarded the president $40 million dollars in "damages." This sentence was later "forgiven" by Correa due to international criticism by international press organizations and the very Inter-American Human Rights Commission that Correa now wants to silence.

As a result of his sycophantic ruling, Merino was appointed to the Supreme Court. This was only possible because Correa shamelessly manipulates the judicial appointments process. This process establishes a series of requirements, qualifications, and tests that the candidates are required to pass in order to be selected. Wilson Merino did not meet the minimum qualifications, but since the three members of the judicial appointments council respond to Correa, Merino's final score was artificially increased, giving him the necessary points for appointment to the Supreme Court, as the president wished.

Freedom-loving Ecuadoreans, however, have not remained silent. Opposition congressmen such as Andres Paez have denounced the executive's manipulation of the judicial appointments system. Congressman Paez has identified at least seven additional judges that have been appointed by similar deceit. President Correa is now openly harassing Congressman Paez due to his public accusations. 

An international committee led by former Spanish Judge Baltasar Garzon oversaw the appointment process. Judge Garzon is expected to release a final report shortly concerning the process' transparency and legitimacy. Several members of Ecuador's national assembly have officially advised Mr. Garzon of additional cases of fraud and manipulation.

Correa is attempting to destroy the Ecuadorian judiciary system in three steps. First, he restructured the judicial appointment system in order to control it. Second, by using his control to designate his subordinates, such as Wilson Merino, to the Supreme Court. The third step is under way, and consists of legitimizing the process internationally. The success or failure of Correa's plan depends on Mr. Garzon's forthcoming oversight report and on the international reaction to this scheme. For the sake of Ecuador's liberties, it is necessary that defenders of democracy around the world raise their voices for freedom in Ecuador and that Mr. Garzon teach Correa the difference between representative democracy and autocracy.

Otto J. Reich is president of the consulting firm Otto Reich & Associates LLC. He is a former U.S. assistant secretary of state for the Western Hemisphere, and U.S. ambassador to Venezuela. Follow him on Twitter: @ottoreich

Ezequiel Vázquez Ger is an associate at Otto Reich Associates LLC and collaborates with the non-profit organization The Americas Forum. Follow him on Twitter: @ezequielvazquez

Australian citizen and WikiLeaks founder Julian Assange is clearly an "enemy of the United States," as the Wall Street Journal argues, and the Obama administration is rightly considering prosecuting him for espionage. I agree with my colleague Peter Feaver that the disclosure of State Department cables hurts our diplomats' abilities to do their jobs. But a more pressing and complex question is whether the New York Times should be prosecuted as well.

It is a crime to disclose classified information under the Espionage Act of 1917 (see 18 U.S. Code § 793, paragraph e). The Supreme Court upheld its constitutionality in Schenck vs. United States (1919). The Court ruled that "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent." The First Amendment does not protect espionage.

The most famous prosecution under the Espionage Act was the Pentagon Papers case, New York Times vs. United States (1971), in which the Nixon administration attempted to stop the publication of a Department of Defense internal history of the Vietnam War. The Nixon administration lost the case and the New York Times (and others) published the history in full. Since the Pentagon Papers case, administrations have been generally reluctant to prosecute under the Espionage Act both because of the perceived difficulty of winning a conviction and because of general discomfort with the idea of suing the media for the content of what they publish.

Read on

Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts.  The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America's "commitment" to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.

The 1949 Geneva Conventions consist of four separate treaties originally signed by 59 countries in Geneva, Switzerland. In light of the horrific experiences of World War II, the first three agreements revised previous treaties dating from 1864, 1906, and 1929 that provided humanitarian protections for sick or wounded soldiers on land, sailors at sea, and prisoners of war. The fourth agreement, added in 1949, establishes protections for civilians in conflict zones. The best known of the agreements is the Third Geneva Convention, which provides detailed articles of protection for those who qualify as Prisoners of War (POWs).

The Geneva Conventions apply to conflicts between the 194 countries that are now party to them. Since 1949, three Additional Protocols have been added to the Conventions to provide further protections in light of changes in modern warfare. The United States has long objected to certain provisions in the First Protocol, although it has stated its support for others. President Reagan submitted the Second Protocol to the Senate in 1987, but the Senate has not acted on it. The Bush administration was a driving force behind (and signed and ratified) the Third Protocol, which created an alternative protective symbol (a Red Diamond) for countries (primarily Israel) that do not use the Red Cross or Red Crescent.

Together, the four 1949 Conventions and the three protocols form the bedrock of the international laws of war.

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I have been struck by how the various sides in the war on terror debate have all found justification for their prior positions in the unfolding drama of the Times Square terrorist. Advocates of treating terrorism primarily as a law enforcement problem praise the rapid forensics that caught the suspect (albeit, just barely). Critics point to the near-misses and other troubling details and renew their complaints about the Obama-Holder approach to terrorism.

So far, everyone seems pretty sure that their prior convictions were sound. Alas, I am no exception. It seems to me that the following four points, all of which I already believed, are supported by this case:

• We are safer but not yet safe. It is much harder today for terrorists to launch the kind of mass-casualty terrorist spectacle they launched on 9/11 -- let alone an even more devastating WMD attack -- than it was a decade ago. That does not mean the terrorists have given up their desire to kill Americans. There is still a terrorist threat.
• The amateurish nature of recent attacks is not proof that we can relax our guard. On the contrary, the amateurish nature of recent attacks seems rather to confirm the wisdom of many of the counter-terrorism policies the United States has adopted since 9/11. The attacks are amateurish because more devastating options have been made harder to execute.
• We cannot avoid taking action that motivates at least some terrorists. Reportedly, the Times Square terrorist was motivated by the drone strikes, a tactic that was begun under Bush (though had antecedents in the Clinton and even Reagan eras) and substantially ramped up under Obama. While some on the far left have rejected the drone-strike tactic altogether, and many more have raised questions about certain aspects, there is a strong bipartisan consensus that some version of this tactic -- killing key terrorist leaders that cannot be captured -- is a necessary component of any sound counter-terrorism policy. During the Bush years, many partisan Democrats advanced the theory that terrorists were motivated chiefly by Bush foreign-policy choices, choices the critics thought were foolish anyway like invading Iraq or not coercing Israel into making more concessions to Palestinians in the peace process. Obama's campaign accepted this premise, and seemed to offer a new era in which America would stop doing things to fuel the terrorists. It is now obvious that even Obama has not avoided actions that motivated someone to become a terrorist. Of course, this does not mean that we should cavalierly ignore Muslim sensibilities or gratuitously insult them. Obama is right to try to calibrate our language and approach to avoid pointless provocations. Likewise, we should debate the wisdom of foreign policy choices like the invasion of Iraq or the proper approach to Middle East peace and in those debates the extent to which terrorists can exploit the issue for propaganda purposes is a relevant, but by no means dispositive, consideration. For a hardened core of would-be terrorists, however, there is nothing we can or should do to fully assuage their hatred.
• Terrorist safe havens still matter, even in the age of al Qaeda 2.0. The terrorist movement may be more decentralized and web-based -- a necessary response to our counter-terrorism policies -- but terrorists still exploit safe havens if they can get access to them. Al Qaeda's great innovation was leveraging a vast infrastructure devoted to the weaponization of resentment and targeting it on the United States and our global interests -- turning angry individuals into terrorists willing to kill Americans and be killed for their cause. There were many key nodes in this infrastructure, but one of the most important was a safe-haven, a destination where would-be recruits were assembled, winnowed, trained, equipped, and finally commissioned. The invasion of Afghanistan and the denial of safe havens in that country is thus a vital step in the war on terror. Since the success of the initial invasion, however, some have speculated that the terrorist threat has morphed into an entirely web-based phenomenon, where the only "safe-haven" the terrorist needs is a virtual on-line one. If that day ever comes -- and I am skeptical -- we are certainly not there yet. Even an attack as unsophisticated as the Times Square attack, which in theory could have been hatched entirely through individual web-based research, apparently involved trips to North Waziristan. Control of territory still matters, which means that the Bush-era emphasis on helping responsible regimes establish effective governance is still an important part of the war on terror.

It is possible that these and other similar points are merely evidence that I am a victim of confirmation bias, seeing in a new case only those things that confirm what I already believed. If so, I am probably in very good company. At least I am willing to ask: what in this case disproves these four points?

By Christian Brose

This New Republic profile by Michael Crowley of U.S. Ambassador Dan Fried, the man charged with finding foreign homes for many of the Guantanamo detainees, is worth reading:

Perhaps half the 240 detainees now in custody will have to be relocated to countries other than their native lands because they risk being tortured there (or worse) upon their return. For Fried, that means shuttling endlessly between foreign capitals to plead for help, and often to be met by extortionist demands and haughty lectures from foreign diplomats. It is grueling work, making the respected career diplomat something like a door-to-door salesman peddling the human equivalent of radioactive waste.

But perhaps the hardest part is handling the obstacles that keep cropping up in Washington itself. First, there's the ticking clock of Barack Obama's pledge to shut Guantanamo by January 2010 -- a bold statement that defied the warnings of advisers who said that, if closing Guantanamo were easy, George W. Bush would have made good on his own stated wishes to do so himself. Then, there's the craven opportunism of members of Congress who want to look tough on terrorism by vowing to block any effort to resettle the wrongly detained here in America. "It is a tough job, to put it mildly," says Fried. Or, as one friend simply commented after the latest round of congressional grandstanding against accepting the detainees, "Poor Dan."

Full disclosure: I worked with Dan for four years at the State Department, and at the risk of making his life even more difficult by singing his praises on this blog, I'll say that he is one of the most impressive and talented Foreign Service Officers I encountered. But more than that, he spent the past four years helping to rebuild America's bridges to our European allies, and rather than doing what any normal person his age would have done -- which was retire to make money, or live out his days in peace, or both -- Dan chose instead to take the single most thankless job in government because he's a great American.

As for the ultimate goal of Dan's job, consider this quote from John Bellinger, who worked as much as anyone to solve this problem in recent years:

Ultimately, says Bellinger, the former Bush official, it may be impossible to find homes in humane countries for the vast majority of the men at Guantanamo. As a fallback, the United States might have to repatriate some of the men to their repressive home countries after all -- which would leave Fried the task of winning promises of good treatment from those governments. "Those are some of the toughest negotiations," says Bellinger, "where we say we have to have high-level, ironclad, specific assurances that [detainees] will not be mistreated, but with some kind of monitoring mechanism."

What is dawning on the Obama administration is that, in the moral interest of closing Guantanamo, they'll have to cut some moral corners elsewhere. This is not a new idea, and it's what makes the prison dilemma so hard. Maybe those "assurances" and "monitoring mechanisms" will hold up. But it's very possible they won't, and to some degree the administration will just have to look the other way, or else Guantanamo will be open forever. Other moral corner-cutting might (and likely will) include holding more detainees in Bagram Air Base, or just killing more of them preemptively on the battlefield so as to avoid the whole problem of detention altogether, as Jack Goldsmith suggested this weekend in the Washington Post. There is no easy or morally straightforward answer.

Poor Dan. Poor us.

By Christian Brose

Say what you will about Vice President Cheney's decision to come out swinging so soon after leaving office, or President Obama's decision to launch a preemptive strike against him today, the speech that each man gave this morning was smart, serious, sober, and civil. Here we had one of the hardest national security issues of our time debated head to head in front of the entire country by the two best advocates for their respective sides. It was a fascinating occasion. And yet I am left thinking, now even more than before, that this is an argument that will never end, for two reasons: facts and fear.

One thing that rubbed me the wrong way about Obama's speech was how dismissive he was of fear and the people who rightly felt it (and still do). The decisions made after 9/11, he said, were "based upon fear rather than foresight," as if that alone discredits them. Cheney and others are "fear-mongering" by reminding the voting public that there are people out there who want to kill us, and that Americans differ over how to prevent that from happening. The truth is, fear is a human emotion, and thus an inherently political issue. Obama and company are perfectly willing to play on people's fears when it comes to jobs, or health care, or the environment. People are legitimately afraid for those things, just as they are for their security. And one purpose of policymaking is to assuage those fears.

Everyone was afraid after 9/11, for one good reason: a lack of facts -- about whether more attacks were coming, and if so, how, and when, and from where, and by whom. Uncertainty is the greatest fear of all, and like it or not, in the weeks after 9/11, that was the climate in which new policies had to be made on a host of hard problems for which there were few precedents, legal or historical. Cheney and others contend that those policies worked. They generated facts, and those facts saved lives. And if only Obama would release the CIA memos that supposedly lay out what was learned, the American people could see those facts for themselves and draw their own conclusions about "enhanced" interrogation.

Would that settle things once and for all? Somehow I doubt it. For when it comes to intelligence, facts are strange things.

Cheney himself acknowledged today that some people who have reviewed the CIA memos think they are "inconclusive." Others agree. In time, it's easy to imagine there will be other memos, if there aren't already, that look at the same record of "enhanced" interrogations and the same resulting intelligence and yet draw the opposite conclusion from the CIA, which is after all justifying a CIA program. I'm not sure we will ever be able to say with absolute certainty that one specific "enhanced" interrogation led to the disruption of a specific terrorist plot that definitely would have killed Americans. With any luck, the Senate Intelligence Committee's comprehensive investigation of this issue will reach firm conclusions. But I'm just not sure intelligence works this way, that it's this conclusive. It's like pulling one strand of a tightly knit sweater and saying it is the decisive thread holding the whole thing together. And of course, even if you were able to corroborate that judgment, you still wouldn't be able to prove the negative -- that this piece of intelligence could not have been gained through other, less harsh means.

This is what I mean by an argument without end. For all of the facts we now have, and those that may still emerge, I doubt they will convince the American public decisively to side either with Obama or Cheney. And where there is uncertainty there will continue to be fear. This helps to explain the recent paradoxical findings from a major Gallup poll that a slight majority of Americans believe both that "enhanced" interrogations were justified and that past instances of their use should be investigated for misconduct.

Fear isn't going anywhere. The question is, how best to manage and assuage it while not exploiting it.

I don't fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney's current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush's stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney's argument is with Bush as much as it is with Obama.

What does make me fearful, though, is the way the White house has handled this entire thing -- deciding to release the Justice Department memos, but saying there would be no prosecutions, but then reversing and saying, actually, there may be some prosecutions after all. Obama said he released those memos because the information they contained was already widely known. Well, that works just as well as an argument for not releasing them, because nothing would be gained by doing so. We already knew that senior Al-Qaeda terrorists had been waterboarded; how many times it was done is just a detail, gory though it is. What the release of those memos did accomplish, though, was to greatly exacerbate the fear on the part of our national security professionals. And here, I think, Cheney gets it right:

[A]t the CIA, operatives are left to wonder if they can depend on the White House or Congress to back them up when the going gets tough. Why should any agency employee take on a difficult assignment when, even though they act lawfully and in good faith, years down the road the press and Congress will treat everything they do with suspicion, outright hostility, and second-guessing?

I would add that this applies to the military as well.

The debate over "enhanced" interrogation, the rule of law, and national security will never end. But I fear the tragedy is just beginning. Before 9/11, America's counter-terrorism policies suffered from excessive caution and risk-aversion. After 9/11, that pendulum swung too far in the other direction, toward what Cheney once called "the dark side." Now that pendulum is swinging right back toward the other extreme again -- not because Obama wants it to, or believes it should, or mandated that it must in his policies, but because of unnecessary actions he took without adequate "foresight," and the manner in which he took them. The professionals entrusted to keep America safe now work in fear of taking the risks that their jobs entail. And the people they're charged with protecting still don't have the facts to reach a political consensus on this issue (and likely never will, even if Cheney were to get his way).

This debate may reduce to a low boil, but it won't go away. And when the next attack comes, as everyone believes it inevitably will, we will be right back in the teeth of this thing. It is a fight without end, and I fear it will only get nastier.

By Christian Brose

Before tomorrow's battle royale of speechmaking between President Obama and former Vice President Cheney regarding the conflict formerly known as the War on Terror, make sure you first check out Jack Goldsmith's spot-on piece in the New Republic. It's a must-read:

Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

Also, over at AEI's great new blog, Danielle Pletka makes a good case for why Obama, despite running the "savviest information ops of any White House in modern history," still has his work cut out for him tomorrow.

This will be very interesting...

By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.

1. The focus on water-boarding misses the main point of the program. 

Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time. 

The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important. 

2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.

A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable. 

But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods? 

For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.

Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK."  Well, not really. They say it might be legal. They don't know about OK.

3. The legal opinions have grave weaknesses. 

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law. 

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

• the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;

• the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

• the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.