Notes On Reliability of Coerced Confessions, Plus How That Relates To The Woman Appointed to Head The CIA

Gina Haspel, on left coming in to Senate hearing with respect to her nomination

According to the Innocence Project, of all the people whom DNA evidence later exonerates as wrongfully convicted, more than 1 out of 4 made a false confession or incriminating statement.

That’s why the Innocence Project recommends mandatory recording of interrogations.  Recording of interrogations can reveal whether police are communicating facts, elements and information about a crime to suspects which suspects later communicate back to them as somehow proof of their involvement in the crime and the way it unfolded.  It enables suspects to repeat back to the police essentially what the police have predetermined they want to hear.  To be absolutely blunt, at that point, the interrogated suspect is essentially collaborating with the interrogators to recast falsehoods as documented fact. Suspects may be inclined to do so particularly if they feel helpless to do anything else and especially if they are under duress and being coerced.  In the United States (since at least the 1936 ruling in Brown v. Mississippi) physically brutal torture to achieve a confession is, quite sensibly, a clear denial of due process.

Recorded interrogations are more reliable and can point back to what is more likely true when coercion causes the confessions to veer from the production of truth to falsehood.  Recordings have value, including retroactively, to  seek out and establish truth.

In the great grand scheme of what justice is and should be, it is not just the determination of the guilt or innocence of the particular suspect that is in issue.  And it is not just a question of who should be charged for a crime instead given that every conviction of an innocent man probably means guilty parties remain free.–   Yes, false confessions can help the actual perpetrators of crime avoid detection.–  Recordings can also point back to improper bias, and perhaps point back, perhaps in even incriminating ways, to improper goals and agenda on the part of the interrogators.  For instance, the interrogators may want to make themselves look good (like Det. "I've done nothing wrong" Louis Scarcella) through the easy convenience of finding a quick scapegoat (as in the 1989 Central Park Jogger case); they may also be indifferent or worse to the suffering of the already marginalized and persecuted minority individuals they target for such convenient scapegoating.

Therefore recordings take on a very special importance if there is any possibility of questionable motives on the part of the interrogation team.  They also help uproot and exorcise flaws that make the failure of justice systematic.

All of the above is probably intuitively clear to the reader without my writing it.  But I am starting with the basics to come in the back door to talk about something else, a bigger topic.  It’s something that no one else seems to have talked about in the mainstream media or even most of its fringes even as we whirled through an event that otherwise got a huge amount of media attention: Our nomination of Gina Haspel to head to become the head of the Central Intelligence Agency. 

It’s our country’s latest affront and embarrassing communication to the world that we feel that we and our allies are above and immune to such laws as the Geneva Convention and Nuremberg Principles.

Gina Haspel, “Bloody Gina” as many of her detractors refer to her, was quickly confirmed by the senate to head the CIA.  She shouldn’t have been.  Although outrage over her nomination was dutifully expressed in various quarters, not much was done to effectively prevent her from assuming the office.  What was done did not discourage six Democrats from joining with Republicans to produce an approval vote of 54 to 45.  The vote would have been lopsidedly the other way had the Democrats not switched given that three Republican senators were opposing the nomination.

The expressions of why Ms. Haspel was unacceptable to head the CIA were superficial . . . as if nothing extra needed to be expressed in opposition.  They mostly amounted to the reasons a New York Times editorial opposing her confirmation expressed; that she should not be confirmed because of:

    •    “her role at the center of one of . .  a brutal interrogation regime that used torture against terrorism suspects after the Sept. 11 attacks.”

    •    Her taking the lead in advocating for and drafting instructions to order the destruction of tapes documenting torture interrogations for which she was responsible.

Furthermore, it was far from absolutely clear at the Senate hearing that Ms. Haspel would not do or let such similar things happen again, even though she gestured at checking the box of sounding like she would not do it again with a collection of statements:

    •    “I would not put C.I.A. officers at risk by asking them to undertake risky, controversial activity again.”

    •    “My moral compass is strong. I would not allow C.I.A. to undertake activity that I thought was immoral, even if it was technically legal. I would absolutely not permit it.”

    •    “what I believe, sitting here today [today?], is that I support the higher moral standard we [who?] have [now?] decided to hold ourselves to.”

Asked whether she thought the CIA program of torture interrogation was immoral, Haspel refused to say that it was immoral, which is essentially to say that her strong “moral compass” would permit it in the future.  Further her hint that she interprets the law to be even less restrictive makes it sounds like she would view it as legal as well.  Therefore, what would hold her back right now is her assessment that the practice  is “controversial” (only if it is known about), and perhaps not presently a good “risk,” (weighed against others?) plus, lastly, that she supports “the higher moral standard we have” we have now “decided to hold ourselves to”— The thing is though that Haspel will be serving under a president who says that torture “absolutely works” and publicly communicated great enthusiasm about using it.  (Haspel, incongruously argued she did not expect the enthusiastic Trump to implement such a practices again.— There was also a fair amount floated in various reports that the reason Haspel earned the sobriquet “Bloody Gina” is because people suspect that she, herself, actually liked the cruelty.)
   
When it comes to the central question of whether it is wrong or right to torture people your nation holds captive, many will stop at the simple answer that it is, always without question, morally wrong.  Others, will go another step, invoking a more “hard-nosed” standard either proving their tough practicality either to themselves or the satisfaction of others: They will conclude that since torture doesn’t work there is nothing that can make it right.

We’ve known for hundreds of years that torture doesn’t work, because, at best, the tortured, to make the torture stop, will simply tell the torturer whatever they want to hear, which may or may not have any basis in truth.  As such, when asked about this at the senate hearing, Ms. Haspel did not make a risible, goofball statement directly refuting such wisdom from the ages.  Instead, this was how the exchange in question began:

“The president has asserted that torture works,” Senator Kamala Harris, Democrat of California, said. “Do you agree with that statement?”

“Senator, I — I don’t believe that torture works,” Ms. Haspel said.

But then Haspel played cat and mouse with some `wink, wink, nudge, nudge,’ dog whistle type evasions suggesting that maybe torture does work . . .  and hence that torture is “moral,” for those who compliment themselves as being superior for basing their standards on hardnosed pragmatism:

GINA HASPEL: [continuing]. . .  I believe that in the CIA’s program—and I’m not attributing this to enhanced interrogation techniques—I believe, as many people, directors, who have sat in this chair before me, that valuable information was obtained from senior al-Qaeda operatives, that allowed us to defend this country and prevent another attack.

SEN. KAMALA HARRIS: Is that a yes?

GINA HASPEL: No, it’s not a yes. We got valuable information from debriefing of al-Qaeda detainees. And I don’t—I don’t think it’s knowable whether interrogation techniques played a role in that.

If you will, this hedging on Haspel’s part must be viewed as laying out nearly the only road by which Haspel can avoid conceding that torture is immoral.

A somewhat misleading headline from National Public Radio: Did this kind of inexactitude help Haspel get nominated?

The Times editorial, and others, offered one other last point of objection to confirming Haspel, which was that with her record at the CIA remaining secret and was being vetted by essentially nobody else. It was essentially being vetted by just Haspel herself serving as acting CIA Director during the process.  The editorial commented:

We are constrained in assessing Ms. Haspel because much about her record is not public. Ms. Haspel controls what of her record can be declassified, and most details released so far have been flattering. She should recuse herself and allow Dan Coats, the director of national intelligence, to make the call on declassifying more of her record.

Ignoring that the notion that so many details of Haspel’s career and qualifications are unknown and that only flattering details were selectively released, the Times editorial nevertheless offered an insanely appeasing assessment of Ms. Haspel venturing that “Gina Haspel has shown she has all the qualities to become the next director of the Central Intelligence Agency” and that she was a “shoo-in for the top job.”  That kind of double-talk is certainly shoots yourself in the foot if your goal is to write a damning indictment to stop a confirmation of a nomination.  This kind of language is also the kind of thing that makes it easy for Democrats to cross the aisle to vote to approve a torturer to head the CIA.

Now to move on to what is most important to discuss.  There are other reasons to consider why Haspel’s known actions make her a very bad choice to head the CIA and they involve the destruction of the torture tapes; this is from a standpoint we will now address that went undiscussed by nearly everybody.

The destruction of the torture tapes is probably most often simply viewed as a coverup compounding the original wrongdoing of the torturing while reconfirming with emphasis how horrible the wrongdoing must have been given these efforts to hide it.  Haspel herself and those she was working with her offered a probably the less believed explanation and excuse for destroying the tapes.  That excuse was that she sought to destroy the tapes because their release would pose a security risk (or “potential security risk”) to the officers involved or that it would put agents in the field at risk.  It’s very hard to believe that the CIA can’t keep things secret enough and its agents secure without actually destroying the tapes.  Plus, as an intelligence gathering agency, it’s surprising to think that the CIA is ever inclined to zoom any information into a black hole from which it cannot retrieved in the future if it later wants it again for its own purposes.

Our most skilled horror film makers know that the best approach to keeping their audience on the edge of their seats is to avoid showing the flick’s monster; let the audience’s imagination do the work of conjuring up what is awful and their imagination will surely come up with something far more terrifying than the monster you can actually depict by supplying more information and images.  So, on its face, it might seem that destruction of the torture tapes is thus an obvious tactical mistake for those who would like to whitewash their torture sins.  Indeed, maybe it is, but what if, through misdirection, what gets imagined is not the worst that actually happened?

What’s that possible misdirection?: It’s routinely been suggested, typically in passing asides dropping references to natural assumptions, that even if the torture interrogators were making errant, troublesome and cruel decisions that the they were part of valiant efforts to discover the truth about 9/11 in a “fraught” time so as to protect the country against future attacks.  But should that be so quickly assumed?

So far, it’s only in a low-Googling article in Consortium News that have I been able to find writing that suggests another possibility that seems obvious to me and one that responsible people considering Haspel’s nomination should have been considering:

It’s been widely assumed the tapes were destroyed because of the potentially graphic nature of the abuse, or to hide the identity of those doing the torture. But there’s another distinct possibility: That they were destroyed because of the questions they document being asked. Do the torturers ask: “Is there another terrorist attack?” Or do they compel: “Tell us that Iraq and Al-Qaeda are working together”? The video evidence to answer that question has been destroyed by order of Haspel — with barely anyone raising the possibility of that being the reason.

See: Torture is Not Only Immoral, but a Tool for War, By Sam Husseini, May 8, 2018

Mr. Husseini’s article also helpfully supplied a beginning list of questions that ought to have been asked of Ms. Haspel during her nomination.  (They weren’t asked.)

What could a review of the tapes reveal about the agenda of the torturers and Haspel?  It is far from a fantasy to believe that those involved might have been involved in the efforts to build up false facts in order to lead the United States into war with Iraq, something the Bush administration wanted almost immediately and prior to collecting any reasons.  We know that this was going on in the United State government and intelligence community on a widespread basis.  As for whether these coercive interrogators actually wanted to track down what truly happened with respect to 9/11 and who was involved, we know that were many clear trails to be investigated that pointed toward Saudi Arabian involvement in bringing about the 9/11 events.  They were apparently were not earnestly pursued by our government.  In fact, on Democracy Now this past fall there was coverage of the thinking that the coercive interrogations were conducted for the purpose of supporting a “concocted” story about 9/11.

With the torture tapes assumed to be destroyed it does unleash our imaginations to imagine the worst.  In fact, as citizens of this country looking to be properly governed as well as responsible for our own government, we probably have a duty to engage in such speculative imaginings and follow up on their implications. The worst that can be imagined isn’t the inhumanity or brutal cruelty of the torture; it is that such inhumane and brutal practices might have been pursued to tell us and the rest of the world lies, not truth. . .

If that is something that Ms. Haspel believes can be a proper and moral objective of the CIA, then maybe that is the road by which she reaches her conclusion that torture is not necessarily immoral.  (CIA goals do include misinforming the public.)  Is that what Haspel actually thinks is moral?  We are in a difficult position when trying to guess: The story is that the tapes are destroyed and nobody asked Ms. Haspel to answer this question of what she thinks.  In fact, when the senate had a chance, there was a dearth of clamor to insist that Ms. Haspel answer such hard and difficult questions.

The “Criminal Mind” When It Comes to Income Tax Fraud, Political Crimes and Voting

Meshing headlines about tax fraud and influencing elections

Let’s talk about the kind of frightfully improper influence and interference with our political system and process the criminally minded might be inclined to wield, that we may need to fend off, including actions by those lawbreakers willing to commit tax fraud.  A warning however: This discussion is ultimately headed toward what you may find to be an unlikely turn.

First, we are forever bedeviled by Trump headlines in an increasingly Trump-centric media universe?  Let’s just surrender to the trend and general convention these days by starting with one . . .

There’s a new set of headlines burbling recent days, including in the New York Times, about Mr. Trump and his family being engaged in tax fraud.  The New York State Attorney General is suing Trump’s “charity,” essentially Trump himself together with family members involved, for, as we said, tax fraud.  Mixed into the stew of asserted misuses and self dealing to benefit Trump (using the charity to “settle legal claims against” Trump’s “various businesses, even spending $10,000 on a portrait of Mr. Trump that was hung at one of his golf clubs”) is the abuse of the charity to politically benefit Trump, to “curry political favor” giving control over the charity funds it raised to senior Trump campaign staff, who decided how to use them.  Among other things there was a disguised illegal campaign contribution to Florida’s attorney general, Pam Bondi.  Not mentioned by the Times in its article is that this was at the same time that Bondi’s office, like the New State Attorney General, was to consider investigating Trump’s sham university.

According to the Times:

The petition notes that Mr. Trump himself signed annual I.R.S. filings, under penalty of perjury, in which he attested that the foundation did not engage in political activity. “This statutory prohibition is absolute.”

The Times accompanied the story reporting the facts with an editorial run the same day drubbing Trump’s so-called charity with its “gifts to himself” calling it “just another of his grifts” and saying that from its pretenses of being “in the public interest” the charity is not “remotely what it purports to be.”

The main Times article includes, with an insert in its web version, an opportunity to read the lawsuit itself, but, as harshly as the Times express its sentiments about Trump grifting, it does not pick up the fraud language itself in those formally stated charges, that the Trump charity has conducted itself in a “persistently fraudulent and illegal manner.”  MSNBC did pick that up however, spicing up its coverage with a worthwhile interview with Trump biographer David Cay Johnston:  New York A.G. files fraud lawsuit against Trump family, foundation.

Johnston remarks that Trump has had two previous income tax fraud trials.

Headlines this last March reported that Trump son-in-law Jared Kushner was engaged in illegal activities in his real estate business, regularly falsifying filings for work permits by declaring “that the company had no rent-regulated tenants in the buildings, when in fact they had hundreds.”  This allowed Kushner to gentrify the buildings more quickly and likely subjected tenants to harassment as they tried to live with quiet enjoyment of their premises amidst construction work.  At the time, a lawyer friend of mine (actually a Trump-loathing Democrat) who does a great deal of work for another major developer in New York worried about possible unfairness if Trump’s son-in-law were to be selectively prosecuted for activities engaged that are actually part of a pattern widespread abuse across the city by many, many people in the real estate industry. 

Indeed, amongst the powerful, Trump is surely brazen and perhaps sometimes more extreme, but he does many of the same things that other powerful and wealthy people do that should be stopped when they do them too.  If you have read Jane Mayer’s “Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right” you know that the Koch brothers and those in their club of billionaires exerting heavy influence on our national politics using charitable organizations to do so whenever they can.  In New York City where Trump hails from, charities are heavily intertwined with politics and were used by Mayor Michael Bloomberg (who has hoped to be a Republican nominee for president) to secure a third term as Mayor.  Forest City Ratner, a real estate developer, created New York charities for the purpose of developing its Atlantic Yards project and then used one of its charities to run a candidate (Ms. Delia Hunley-Adossa) against the local city council member opposing the project.

The point is that far too many of the wealthiest and most powerful do engage in such abuses.  In fact, they probably often also do cross the line where there should be prosecution and consequences.  Still, how often do we ever see them suffering such consequences?
   
As for such prevalence of abuse, try this for another taste, a very likely tax fraud by Trump where  “the available evidence suggests” that Donald Trump illegally sidestepped paying gift tax by “selling” two Manhattan condominiums to his son at what was apparently barely half their true value in order to masquerade a gift as a business transaction.  According to the Washington Post article reporting it, the “fraudulent failure to file” a gift tax return by Trump if it involves any “overt act of evasion” would make this a serious felony on his part normally entailing the possibility of serious fines and prison.  See: This Trump real estate deal looks awfully like criminal tax fraud, - Two tax lawyers break down the president’s sale of two condos to his son.  By David Herzig and Bridget Crawford August 4, 2017.

Most people reading this probably already have a pretty good grasp that there is much to be troubled by of this nature going on in the world.  But I am headed with somewhere different from what you expect.  I think it is terrible when the wealthy shamelessly cheat on their income taxes.  And it is awful when they change the laws to legalize what should be illegal cheating.  Worse still is the unequal political power and influence wielded by the wealthy by virtue of their retained and accumulated wealth. The so-called charities for which the wealthy take self-serving deductions although they are not true charities are abominable.

Part of what needs to be done is to cut the wealthy down to political size and strip them of some of this out-sized power. . . .  In fact, one of the things that the New York State State Attorney General lawsuit seeks as a remedy in its Trump Foundation tax fraud lawsuit is a court declaration that Mr. Trump’s three eldest children be banned from the boards of nonprofits based or operating in New York or operate in New York.

Nevertheless, in the unlikely case that Donald Trump or any of his minions are convicted of felonies and jailed for such abuses, including as the case may be, unfairly influencing the political system for their own benefit, there is one thing that I would not want to take away from them: Their right to vote.  While I may worry and be concerned about the disproportionate influence their wealth has in the political system,  I am not afraid of their right to express themselves politically by exercising their right to vote as individual citizens. . . . That is something that I would never take away from them, no matter how much their bad actions have connected them to abuse of the political system.   

The idea that Trump might be convicted of a felony may seem like an academic question to muse about, fanciful given that Trump has expressed a willingness to pardon himself for federal crimes, and given that he may actually be able to do so because he is president.  On the other hand, Trump’s violations of the Constitution’s emoluments clause (just another aspect of his self-serving, cheating-the-public brazenness) are surely, among other things, grounds for impeachment and removal from office if ever there is ever a congress willing to do so. At that point he wouldn’t be president with pardon power.  Also, his pardon power does not extend to state and local crimes.

All such speculation notwithstanding, this discussion is not really intended to be about Trump himself.  It has been perspicaciously observed that (sorry Bobby De Niro), `Trump negativity,’ facile and in isolation, does not, amount to any kind of coherent world view.  So rather than have this particular discussion be about Trump, it was intended only that Trump provide an easy to identify stand-in reference for what is going on more broadly in our culture and how extreme and flagrant it’s gotten.

With the forgoing as the juxtapatory context it was meant to provide, now let’s move on to what was meant to the key point of this little disquisition in most in need of attention. . . .

. . .  It also concerns someone charged with tax fraud.  It also involves efforts to proscribe as out-of-bounds and illegal that same someone’s attempted participatory influencing of the political system. . .  That effort at political influence is being severely punished.

Here’s how it was reported in the day’s headlines for Democracy Now (emphasis and bracketed insertion are mine):   

In Texas, a black woman sentenced to five years in prison for voter fraud has lost her bid for a new trial. Crystal Mason was convicted of illegal voting in March, after she cast a provisional ballot [A provisional ballot is used to record a vote when there are questions about a given voter's eligibility, and so that whether a provisional ballot is counted is contingent upon the planned verification of the voter's eligibility] in the 2016 presidential election despite having a past felony conviction for tax fraud that prevented her from voting. Mason says she did not know that she wasn’t allowed to vote in Texas due to her criminal record. According to a 2016 report by The Sentencing Project, policies restricting the voting rights of convicted felons disenfranchise more than 6 million people. Crystal Mason’s supporters are demanding charges be dropped, arguing that her conviction was racially biased. This follows a voter fraud conviction in Iowa, where Terri Lynn Rote—a white woman—was convicted of the same crime, after she tried to vote for President Trump twice. Rote was sentenced to two years’ probation and fined $750.

(According to what I have been reading and researching, this article that you are reading will Google higher if I include a link to the New York Times version of the story rather than only giving you the Democracy Now link that Google’s algorithm ranks lower.)

Whatever may happen to the likes of Trump, the Koch brothers, or those of their ilk who have good lawyers and connections if they ever get charged for income tax fraud in the first place, Crystal Mason, convicted of tax fraud, served three years in prison and was still serving out the rest of an even longer sentence on probation when “at the behest of her mother, she went to her local church to vote in the 2016 presidential election.”  Now she is being sent to prison for five more years for wanting to vote.

Within the Democracy Now headline telling of the story the far less serious consequence (in effect just a $750 fine) for the white woman consciously doing a far more execrable thing by voting twice for Trump makes this obviously a racial justice issue.  But with nationwide mass incarceration with arrests, prosecutions and convictions all disproportionately targeting and penalizing people of color across the board for the same or similar crimes, the entire criminal justice system is one giant racial justice issue.  And if race is inherently also politics, which it is, then it is also important to understand this population from a political prisoner standpoint.  That makes it all the more nefarious that these people who have been convicted should be deprived of their votes, and also thus voting power of people of color diminished overall. . . 

 . . . The flip side, of course (see the Ava DuVernay Documentary 13th), is to understand the political thirst of many to take these voting rights away: Arguably, without disenfranchisement of convicted felons, Florida would always be a blue state in national presidential elections.

It needn't be this way.  Allowing prisoners and convicted felons to vote could easily be the rule: Maine and Vermont permit prisoners to vote, and that’s the general rule followed by most countries in the world.  In Europe most countries respect the European Court of Human Rights ruling that automatic disenfranchisements resulting from convictions are against human rights, that a presumption of universal suffrage should obtain unless the government can specifically rebut it.  The United States is an outlier in placing the most voting restrictions on those convicted of crimes.

The logic is very thin for saying that loss of voting rights should be an automatic consequence of felony crime convictions.  The basic argument is usually: “If you aren't willing to follow the law, you can't claim the right to make the law for everyone else.”  That sort of side-steps the big-picture parallel that in a system that’s ever more rigged, when the privileged elite of our country “aren't willing to follow the law,” they do change the law with dismaying consequences “for everyone else.”

Conversely, those who do not see this as a basis to strip voting right point out the lack or proportion or relationship:

The argument rests on collapsing “the law” into a single entity: Because I violated a law, I am no longer allowed to affect any law, even if the law I violated was relatively trivial and the law I’d like to oppose is, say, a repeal of the First Amendment.

And what about unjust laws, laws that so arguably ought to be broken as a matter of conscience by whistle-blowers like Pvt. Manning or Edward Snowden, those who protested the Trump inauguration, or laws that are civilly disobeyed as Martin Luther King, Jr. suggested because they were in need of the repeal that only the visibility of civil disobedience would bring.  And how many of us have follow all laws strictly every day of our lives never erring?

That then is the juxtaposition offered. .   Tax fraud?  Criminally convicted?  Wanting to do something frightful to influence elections? . .  I am very afraid when Trump, the Kochs and the rest of their club manipulate our electoral systems, including when that manipulation extends to such things as income tax fraud concerning foundations and charities deployed for such purposes, but I would never seek to deprive them of their right to vote as individuals if they ever get convicted for such exploits. And I don’t fear their votes!  Conversely, Crystal Mason’s persecution for “voting while Black” will likely send a discouraging message to other potential voters of color and is part of an overall pattern of racially discriminatory voter suppression. . .  Why is that being allowed to happen?: Because the individual vote of Crystal Mason and the 6 million other United States citizens who might rise and vote along with her if duly re-enfranchised are feared by those in power seeking to prevent our elections from more democratic outcomes.