Miranda is Obama’s latest victim March 25, 2011Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights.
Tags: bush administration, civil liberties, Civil Rights, constitution, Criminal Justice, doj, miranda, obama administration, roger hollander, rule of law, terrorism, underwear bomber, war on terror, wsj
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(Roger’s note: “When the President does it, it’s not illegal:” Richard Milhous Nixon)
Glen Greenwald, www.salon.com, March 24, 2011
One of the central pledges of Barack Obama’s campaign was that — as he put it early in his presidency — the Bush administration had gone wildly wrong because it “established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable — a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass.” Instead, he implored, we must fight Terrorism only “with an abiding confidence in the rule of law and due process, in checks and balances and accountability.” Thus, he thunderously vowed, “We must never — ever — turn our back on its enduring principles for expedience sake.”
The number of instances in which Obama has violently breached his own alleged principles when it comes to the War on Terror and the rule of law are too numerous to chronicle in one place. Suffice to say, it is no longer provocative or controversial when someone like Yale Law Professor Jack Balkin writes, as he did the other day, that Obama “has more or less systematically adopted policies consistent with the second term of the George W. Bush Administration.” No rational person can argue that or even tries to any longer. It’s just a banal expression of indisputable fact.
Today, the Obama DOJ unveiled the latest — and one of the most significant — examples of its eagerness to assault the very legal values Obama vowed to protect. The Wall Street Journal reports that “new rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.” The only previous exception to the 45-year-old Miranda requirement that someone in custody be apprised of their rights occurred in 1984, when the Rehnquist-led right-wing faction of the Supreme Court allowed delay “only in cases of an imminent safety threat,” but these new rules promulgated by the Obama DOJ “give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.”
For that reason, the WSJ is surely correct when it calls these new guidelines “one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S.” Note that, in 7 years of prosecuting the War on Terror after 9/11, the Bush administration never tried to dilute Miranda guidelines (though doing so for them was irrelevant because they simply imprisoned even American citizens (such as Jose Padilla) without any charges or due process of any kind).
Ironically, it was the administration — and its followers — that defended the sanctity of Miranda back in late 2009, when the Cheney/Kristol/Limbaugh/Palin Right attacked Obama for Mirandizing the “underwear bomber” as soon as he was taken into custody. Back then, the White House and its loyalists stridently argued that Miranda does not interfere with effective interrogations and that, in any event, it is a pillar of our justice system that should not be eroded. We’ll undoubtedly be hearing from the same precincts now — from the very same people — that diluting Miranda is necessary to Keep Us Safe; that it’s fully within a President’s right to change Miranda guidelines without Congress (just like he can start wars on his own); and that it’s merely a tiny little change that pales in comparison to the Important Issues of the Day. For anyone who defends Obama’s new decision here, shouldn’t you also admit that Rush Limbaugh and Bill Kristol were right in criticizing Obama back then and demanding dilution of Miranda for Terrorism suspects?
The WSJ report says that the change was motivated not only by controversy over Mirandizing the Underwear Bomber, but also Times Square attempted bomber Faisal Shazad. Shazad, though, is an American citizen. Although the DOJ memo is not public — the WSJ saw a copy of it — this presumably means that the dilution of Miranda applies to non-citizens and U.S. citizens alike, including those captured on American soil. In other words, with the sweep of a unilateral pen, Miranda simply no longer compels the government to read you your rights if you are accused of involvement in Terrorism and FBI agents unilaterally decide that it shouldn’t.
Two weeks ago, when Obama issued his Executive Order providing for a system of indefinite detention at Guantanamo, GOP Rep. Peter King lavished him with praise. King has done the same thing with this decision, as the anti-Muslim, Terrorism-obsessed Congressman has long been one of the leading advocates for these Miranda changes. As usual in the national security and Terrorism areas, Obama’s most vocal cheerleaders are found on the Bush-following Right.
Although The Most Transparent Administration Ever continues to conceal this Miranda memo, it appears that some parts of Miranda-related rights remain, including the right to appear before a magistrate within 24 hours and a ban on the admissibility of statements made prior to the reading of rights. But the crux of Miranda is the right to be advised of one’s Constitutional rights upon being taken into custody — that’s why these guidelines for implementing the Supreme Court decision have been in place for so long — and it is this right which the Obama DOJ has simply waved away, despite this rather important fact:
The administration suggested legislation last year to alter Miranda but was rebuffed by Congress, administration officials said. Its proposals faltered due to objections from Democrats, who had no appetite for tinkering with Supreme Court precedent, and Republicans who aired civil-liberties concerns or rejected civilian custody for terror suspects.
The right here is established by the Supreme Court as guaranteed by the Constitution, and the specific right in question — not to have pre-Miranda statements admissible in court — is one the administration cannot change and does not purport to. But the guidelines long in place for reading a detainee his rights were vital to preserving the Miranda framework — for preventing abusive interrogations and coerced statements — and it is this protection which the Obama DOJ is seriously diluting with such a permissive and discretionary standard.
Worse, the administration tried but failed to convince Congress to modify it with legislation. But, as we well know, nothing deters a President’s will: so they just went ahead and did it on their own. The very same political faction that spent the last decade decrying assertions of unconstrained executive power and the ignoring of Congressional will in the area of civil liberties is now its enthusiastic champion.
When it comes to debates between Left and Right over the Constitution and due process, Miranda has always been viewed as one of the key defining issues. Richard Nixon was obsessed with demonizing the Warren Court for providing too many rights to the accused, and his attacks on Miranda were part of a decades-long war by the American Right on the constitutional liberties established over the last half-century. With a swoop of a pen — more than 9 years removed from the 9/11 attacks — Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving.
* * * * *
Speaking of abandoning one’s campaign pledges, PolitiFact yesterday compared (a) Obama’s 2007 statement that Presidents have no power to start wars without Congressional approval except to stop an attack or imminent on America with (b) his current conduct in Libya and positions to justify it, and found what it calls a “FULL FLIP”. But the good thing about being Barack Obama is that you’re justified in what you do even when you first do X and then do Not X.
Thus, when you argue that wars need Congressional approval, you’re standing up for the Constitution; when you start a war without Congressional approval, you’re a humanitarian. When you announce you will release torture photos in the government’s possession, you’re a stalwart defender of transparency; when you change your mind two weeks later and announce you’ll conceal those photos, you’re standing up for The Troops. When you give Miranda warnings to Terrorism suspects, you’re honoring the Rule of Law and protecting American values; when you turn around and deny those very same rights, you’re showing your devotion to Keeping us Safe.
Tags: al-Qaeda, Alberto Gonzales, bush administration, cia, detainees, dod, ethical standards, geneva conventions, Guantanamo, human experimentation, human rights, interrogations, jason leopold, jay bybee, jeffrey kaye, john yoo, Mohammed al-Qahtani, nazi atrocities, nuremberg, prisoners of war, psychological warfare, research, roger hollander, rumsfeld, sere, Taliban, torture, torture memos, waterboarding, wolfowitz
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(Roger’s Note: many people, including so-called liberals and progressives, balk at the use of the word “fascist” to describe the US government. They should read this article. Add Paul Wolfowitz, who already has major claim to infamy, to the list of torture enablers that includes Rumsfeld, John Yoo, Jay Bybee, et. al. The use of the term “breed” by Wolfowitz is particularly chilling [“We are dealing with a special breed of person here.”]. Since holding onto power [at the moment, the task of maintaining majorities in Congress] is the major objective of President Obama and the Democratic Party, don’t expect much attention to be paid to the Nazi-like human research described in this article, any more than the Obama Administration has paid attention to the massive human rights violations characterized by illegal detentions, rendition, and torture. History will judge.)
Thursday 14 October 2010
(Illustration: Lance Page / t r u t h o u t)
In 2002, as the Bush administration was turning to torture and other brutal techniques for interrogating “war on terror” detainees, Deputy Defense Secretary Paul Wolfowitz loosened rules against human experimentation, an apparent recognition of legal problems regarding the novel strategies for extracting and evaluating information from the prisoners.
Wolfowitz issued his directive on March 25, 2002, about a month after President George W. Bush stripped the detainees of traditional prisoner-of-war protections under the Geneva Conventions. Bush labeled them “unlawful enemy combatants” and authorized the CIA and the Department of Defense (DoD) to undertake brutal interrogations.
Despite its title – “Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research” – the Wolfowitz directive weakened protections that had been in place for decades by limiting the safeguards to “prisoners of war.”
“We’re dealing with a special breed of person here,” Wolfowitz said about the war on terror detainees only four days before signing the new directive.
One former Pentagon official, who worked closely with the agency’s ex-general counsel William Haynes, said the Wolfowitz directive provided legal cover for a top-secret Special Access Program at the Guantanamo Bay prison, which experimented on ways to glean information from unwilling subjects and to achieve “deception detection.”
“A dozen [high-value detainees] were subjected to interrogation methods in order to evaluate their reaction to those methods and the subsequent levels of stress that would result,” said the official.
A July 16, 2004 Army Criminal Investigation Division (CID) report obtained by Truthout shows that between April and July 2003, a “physiological warfare specialist” atached to the military’s Survival, Evasion, Resistance and Escape (SERE) program was present at Guantanamo. The CID report says the instructor was assigned to a top-secret Special Access Program.
It has been known since 2009, when President Barack Obama declassified some of the Bush administration’s legal memoranda regarding the interrogation program, that there were experimental elements to the brutal treatment of detainees, including the sequencing and duration of the torture and other harsh tactics.
However, the Wolfowitz directive also suggests that the Bush administration was concerned about whether its actions might violate Geneva Conventions rules that were put in place after World War II when grisly Nazi human experimentation was discovered. Those legal restrictions were expanded in the 1970s after revelations about the CIA testing drugs on unsuspecting human subjects and conducting other mind-control experiments.
For its part, the DoD insists that it “has never condoned nor authorized the use of human research testing on any detainee in our custody,” according to spokeswoman Wendy Snyder.
However, from the start of the war on terror, the Bush administration employed nontraditional methods for designing interrogation protocols, including the reverse engineering of training given to American troops trapped behind enemy lines, called the SERE techniques. For instance, the near-drowning technique of waterboarding was lifted from SERE manuals.
Retired US Air Force Capt. Michael Shawn Kearns, a former SERE intelligence officer, said the Wolfowitz directive appears to be a clear attempt to shield then-Defense Secretary Donald Rumsfeld from the legal consequences of “any dubious research practices associated with the interrogation program.”
Scott Horton, a human rights attorney and constitutional expert, noted Wolfowitz’s specific reference to “prisoners of war” as protected under the directive, as opposed to referring more generally to detainees or people under the government’s control.
“At the time that Wolfowitz was issuing this directive, the Bush administration was taking the adamant position that prisoners taken in the’ war on terror’ were not ‘prisoners of war’ under the Geneva Conventions and were not entitled to any of the protections of the Geneva Conventions.
“Indeed, it called those protections ‘privileges’ that were available only to ‘lawful combatants.’ So the statement [in the directive] that ‘prisoners of war’ cannot be subjects of human experimentation … raises some concerns – why was the more restrictive term ‘prisoners of war’ used instead of ‘prisoners’ for instance.”
The Wolfowitz directive also changed other rules regarding waivers of informed consent. After the scandals over the CIA’s MKULTRA program and the Tuskegee experiments on African-Americans suffering from syphilis, Congress passed legislation known as the Common Rule to provide protections to human research subjects.
The Common Rule “requires a review of proposed research by an Institutional Review Board (IRB), the informed consent of research subjects, and institutional assurances of compliance with the regulations.”
Individuals who lack the capacity to provide “informed consent” must have an IRB determine if they would benefit from the proposed research. In certain cases, that decision could also be made by the subject’s “legal representative.”
However, according to the Wolfowitz directive, waivers of informed consent could be granted by the heads of DoD divisions.
Professor Alexander M. Capron, who oversees human rights and health law at the World Health Organization, said the delegation of the power to waive informed consent procedures to Pentagon officials is “controversial both because it involves a waiver of the normal requirements and because the grounds for that waiver are so open-ended.”
The Wolfowitz directive also changes language that had required DoD researchers to strictly adhere to the Nuremberg Directives for Human Experimentation and other precedents when conducting human subject research.
The Nuremberg Code, which was a response to the Nazi atrocities, made “the voluntary consent of the human subject … absolutely essential.” However, the Wolfowitz directive softened a requirement of strict compliance to this code, instructing researchers simply to be “familiar” with its contents.
“Why are DoD-funded investigators just required to be ‘familiar’ with the Nuremberg Code rather than required to comply with them?” asked Stephen Soldz, director of the Center for Research, Evaluation and Program Development at Boston Graduate School of Psychoanalysis.
Soldz also wondered why “enforcement was moved from the Army Surgeon General or someone else in the medical chain of command to the Director of Defense Research and Engineering” and why “this directive changed at this time, as the ‘war on terror’ was getting going.”
The original impetus for the changes seems to have related more to the use of experimental therapies on US soldiers facing potential biological and other dangers in war zones.
The House Armed Services Committee proposed amending the law on human experimentation prior to the 9/11 attacks. But the Bush administration pressed for the changes after 9/11 as the United States was preparing to invade Afghanistan and new medical products might be needed for soldiers on the battlefield without their consent, said two former officials from the Defense Intelligence Agency.
Yet, there were concerns about the changes even among Bush administration officials. In a September 24, 2001, memo to lawmakers, Bush’s Office of Management and Budget (OMB) said the “administration is concerned with the provision allowing research to be conducted on human subjects without their informed consent in order to advance the development of a medical product necessary to the armed forces.”
The OMB memo said the Bush administration understood that the DoD had a “legitimate need” for “waiver authority for emergency research,” but “the provision as drafted may jeopardize existing protections for human subjects in research, and must be significantly narrowed.”
However, the broader language moved forward, as did planning for the new war on terror interrogation procedures.
In December 2001, Pentagon general counsel Haynes and other agency officials contacted the Joint Personnel Recovery Agency (JPRA), which runs SERE schools for teaching US soldiers to resist interrogation and torture if captured by an outlaw regime. The officials wanted a list of interrogation techniques that could be used for detainee “exploitation,” according to a report released last year by the Senate Armed Services Committee.
These techniques, as they were later implemented by the CIA and the Pentagon, were widely discussed as “experimental” in nature.
Bryan Thomas, a spokesman for the Senate Armed Services Committee, declined to comment on the Wolfowitz directive.
Back in Congress, the concerns from the OMB about loose terminology were brushed aside and the law governing how the DoD spends federal funds on human expirementation and research, was amended to give the DoD greater leeway regarding experimentation on human subjects.
A paragraph to that law, 10 USC 980, which had not been changed since it was first enacted in 1972, was added authorizing the defense secretary to waive “informed consent” for human subject research and experimentation. It was included in the 2002 Defense Authorization Act passed by Congress in December 2001. The Wolfowitz directive implemented the legislative changes Congress made to the law when it was issued three months later.
The changes to the “informed consent” section of the law were in direct contradiction to presidential and DoD memoranda issued in the 1990s that prohibited such waivers related to classified research. A memo signed in 1999 by Secretary of Defense William Cohen called for the prohibitions on “informed consent” waivers to be added to the Common Rule regulations covering DoD research, but it was never implemented.
As planning for the highly classified Special Access Program began to take shape, most officials in Congress appear to have averted their eyes, with some even lending a hand.
The ex-DIA officials said the Pentagon briefed top lawmakers on the Senate Defense Appropriations Committee in November and December 2001, including the panel’s chairman Sen. Daniel Inouye (D-Hawaii) and his chief of staff Patrick DeLeon, about experimentation and research involving detainee interrogations that centered on “deception detection.”
To get a Special Access Program like this off the ground, the Pentagon needed DeLeon’s help, given his long-standing ties to the American Psychological Association (APA), where he served as president in 2000, the sources said.
According to former APA official Bryant Welch, DeLeon’s role proved crucial.
“For significant periods of time DeLeon has literally directed APA staff on federal policy matters and has dominated the APA governance on political matters,” Welch wrote. “For over twenty-five years, relationships between the APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon….
“When the military needed a mental health professional to help implement its interrogation procedures, and the other professions subsequently refused to comply, the military had a friend in Senator Inouye’s office, one that could reap the political dividends of seeds sown by DeLeon over many years.”
John Bray, a spokesman for Inuoye, said in late August he would look into questions posed by Truthout about the Wolfowitz directive and the meetings involving DeLeon and Inuoye. But Bray never responded nor did he return follow-up phone calls and emails. DeLeon did not return messages left with his assistant.
Legal Word Games
Meanwhile, in January 2002, President Bush was receiving memos from then-Justice Department attorneys Jay Bybee and John Yoo as well as from Defense Secretary Rumsfeld and Bush’s White House counsel Alberto Gonzales, advising Bush to deny members of al-Qaeda and the Taliban prisoner-of-war status under the Geneva Conventions.
Also, about a month before the Wolfowitz directive was issued, the Defense Intelligence Agency (DIA) asked Joint Forces Command if they could get a “crash course” on interrogation for the next interrogation team headed out to Guantanamo, according to the Armed Services Committee’s report. That request was sent to Brig. Gen. Thomas Moore and was approved.
Bruce Jessen, the chief psychologist of the SERE program, and Joseph Witsch, a JPRA instructor, led the instructional seminar held in early March 2002.
The seminar included a discussion of al-Qaeda’s presumed methods of resisting interrogation and recommended specific methods interrogators should use to defeat al-Qaeda’s resistance. According to the Armed Services Committee report, the presentation provided instructions on how interrogations should be conducted and on how to manage the “long term exploitation” of detainees.
There was a slide show, focusing on four primary methods of treatment: “isolation and degradation,” “sensory deprivation,” “physiological pressures” and “psychological pressures.”
According to Jessen and Witsch’s instructor’s guide, isolation was the “main building block of the exploitation process,” giving the captor “total control” over the prisoner’s “inputs.” Examples were provided on how to implement “degradation,” by taking away a prisoner’s personal dignity. Methods of sensory deprivation were also discussed as part of the training.
Jessen and Witsch denied that “physical pressures,” which later found their way into the CIA’s “enhanced interrogation” program, were taught at the March meeting.
However, Jessen, along with Christopher Wirts, chief of JPRA’s Operational Support Office, wrote a memo for Southern Command’s Directorate of Operations (J3), entitled “Prisoner Handling Recommendations,” which urged Guantanamo authorities to take punishment beyond “base line rules.”
So, by late March 2002, the pieces were in place for a strategy of behavior modification designed to break down the will of the detainees and extract information from them. Still, to make the procedures “legal,” some reinterpretations of existing laws and regulation were needed.
For instance, attorneys Bybee and Yoo would narrow the definition of “torture” to circumvent laws prohibiting the brutal interrogation of detainees.
In his directive, Wolfowitz also made subtle, but significant, word changes. While retaining the blanket prohibition against experimenting on prisoners of war, Wolfowitz softened the language for other types of prisoners, using a version of rules about “vulnerable” classes of individuals taken from regulations meant for civilian research by the Department of Health and Human Services (DHHS).
This research and experimentation examined physiological markers of stress, such as cortisol, and involved psychologists under contract to the CIA and the military who were experts in the field, the ex-DIA officials said.
One study, called “The War Fighter’s Stress Response,” was conducted between 2002 and 2003 and examined physiological measurements of mock torture subjects drawn from the SERE program and other high-stress military personnel, such as Special Forces Combat Divers.
Researchers measured cortisol and other hormone levels via salivary swabbing and blood samples, a process that also was reportedly done to war on terror detainees.
Three weeks after the Wolfowitz directive was signed, SERE psychologist Jessen produced a Draft Exploitation Plan for use at Guantanamo. According to the Armed Services Committee’s report, JPRA was offering its services for “oversight, training, analysis, research, and [tactics, techniques, and procedures] development” to Joint Forces Command Deputy Commander Lt. Gen. Robert Wagner. (Emphasis added.)
There were other indications that research was an important component of JPRA services to the DoD and CIA interrogation programs. When three JPRA personnel were sent to a Special Mission Unit associated with Joint Special Operations Command (JSOC) in August 2003 for what was believed to be special training in interrogation, one of the three was JPRA’s manager for research and development.
Three former top military officials interviewed by the Armed Services Committee have described Guantanamo as a “battle lab.”
According to Col. Britt Mallow, the commander of the Criminal Investigative Task Force (CITF), he was uncomfortable when Guantanamo officials Maj. Gen. Mike Dunleavy and Maj. Gen. Geoffrey Miller used the term “battle lab,” meaning “that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DoD in other places.”
CITF’s deputy commander told the Senate investigators, “there were many risks associated with this concept … and the perception that detainees were used for some ‘experimentation’ of new unproven techniques had negative connotations.”
In May 2005, a former military officer who attended a SERE training facility sent an email to Middle East scholar Juan Cole stating that “Gitmo must be being used as a ‘laboratory’ for all these psychological techniques by the [counter-intelligence] guys.”
The Al-Qahtani Experiment
One of the high-value detainees imprisoned at Guantanamo who appears to have been a victim of human experimentation was Mohammed al-Qahtani, who was captured in January 2002.
A sworn statement filed by Lt. Gen. Randall M. Schmidt, al-Qahtani’s attorney, said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Major General Miller, commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003.
The treatment of al-Qahtani was cataloged in an 84-page “torture log“ that was leaked in 2006. The torture log shows that, beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IVs and left to urinate on himself.
Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights who represents al-Qahtani, had said in a sworn declaration that his client, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.
“At Guantánamo, Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’” Gutierrez said. “These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”
In addition, the Senate Armed Services Committee report said al-Qahtani’s treatment was viewed as a potential model for other interrogations.
In his book, “Oath Betrayed,” Dr. Steven Miles wrote that the meticulously recorded logs of al-Qahtani’s interrogation and torture focus “on the emotions and interactions of the prisoner, rather than on the questions that were asked and the information that was obtained.”
The uncertainty surrounding these experimental techniques resulted in the presence of medical personnel on site, and frequent and consistent medical checks of the detainee. The results of the monitoring, which likely included vital signs and other stress markers, would also become data that could be analyzed to understand how the new interrogation techniques worked.
In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day on November 14, 2006, hinted strongly at the serious issues behind the entire review.
The Navy presentation framed the problem in the light of the history of US governmental “non-compliance” with human subjects research protections, including “US Government Mind Control Experiments – LSD, MKULTRA, MKDELTA (1950-1970s)”; a 90-day national “stand down” in 2003 for all human subject research and development activities “ordered in response to the death of subjects”; as well as use of “unqualified researchers.”
The Training Day presentation said the review found the Navy “not in full compliance with Federal policies on human subjects protection.” Furthermore, DDR&E found the Navy had “no single point of accountability for human subject protections.”
DoD refused to respond to questions regarding the 2004 review. Moreover, Maj. Gen. Ronald Sega, who at the time was the DDR&E, did not return calls for comment.
Meanwhile, the end of the Bush administration has not resulted in a total abandonment of the research regarding interrogation program.
Last March, Director of National Intelligence Dennis Blair, who recently resigned, disclosed that the Obama administration’s High-Value Detainee Interrogation Group (HIG), planned on conducting “scientific research” to determine “if there are better ways to get information from people that are consistent with our values.”
“It is going to do scientific research on that long-neglected area,” Blair said during testimony before the House Intelligence Committee. He did not provide additional details as to what the “scientific research” entailed.
As for the Wolfowitz directive, Pentagon spokeswoman Snyder said it did not open the door to human experimentation on war on terror detainees.
“There is no detainee policy, directive or instruction – or exceptions to such – that would permit performing human research testing on DoD detainees,” Snyder said. “Moreover, none of the numerous investigations into allegations of misconduct by interrogators or the guard force found any evidence of such activities.”
Snyder added that DoD is in the process of updating the Wolfowitz directive and it will be “completed for review next year.”
Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, “News Junkie,” a memoir. Visit newsjunkiebook.com for a preview.
Jeffrey Kaye, a psychologist living in Northern California, writes regularly on torture and other subjects for Firedoglake. He also maintains
CIA Rendition: US Court Throws Out Torture Case, Citing State Secrets September 9, 2010Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
Tags: aclu, bush administration, checks and balances, cia, civil liberties, Criminal Justice, executive privilege, interrogation, national security, rendition, roger hollander, state secrets, torture, warren richey
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(Roger’s note: this court decision is a great disappointment for those of us who wish to see accountability and justice for the Bush administration’s barbarous rendition and torture program and the Obama administration’s criminal cover-up complicity. Unfortunately, when this gets to the Supreme Court we can expect a similar outcome. Obama picked Judge Kagan for her demonstrated Quisling like attitude to executive privilege; and it will be a huge surprise if she doesn’t uphold the bogus application of the state secrets doctrine. Obama promised change (a cruel joke) and transparency and gives us more of the same. Only History will judge.)
Wednesday 08 September 2010
Washington – A federal appeals court in San Francisco on Wednesday threw out a lawsuit seeking to hold a government contractor partly responsible for a secret CIA program to whisk terror suspects to undisclosed prisons overseas for brutal interrogations.
The Ninth US Circuit Court of Appeals voted 6 to 5 to dismiss the lawsuit filed on behalf of five individuals who charged they were seized and imprisoned without legal process, and tortured at the behest of the Central Intelligence Agency.
The appeals court action ends the litigation before it was able to formally begin. The majority judges said they felt compelled to throw the suit out under legal precedents upholding the so-called state secrets doctrine.
The plaintiffs sued Jeppesen Dataplan, a Boeing subsidiary, that allegedly provided air transport and other international logistical support to the CIA operation. The CIA program, known as “extraordinary rendition,” was instituted during the Bush administration and has continued with some changes under President Obama.
Although the executive branch won in court, the majority judges were troubled by their ruling.
“After much deliberation, we reluctantly conclude … the plaintiff’s action must be dismissed,” wrote Judge Raymond Fisher.
The plaintiffs’ lawyer, Ben Wizner of the American Civil Liberties Union, said it was a sad day. He pledged to appeal to the US Supreme Court.
“To date, not a single victim of the Bush administration’s torture program has had his day in court,” Mr. Wizner said in a statement. “If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”
Richard Samp, a lawyer with the conservative Washington Legal Foundation, praised the decision.
“The judicial branch is simply not the appropriate forum for airing these types of issues,” he said in a statement. “The CIA could not maintain the confidentiality of its affairs if those who oppose its policies were free to air their opposition in an open courtroom.”
Under the state secrets doctrine, courts have generally granted deference to executive branch claims that certain litigation may involve highly sensitive US government information which, if disclosed, would cause significant damage to national security.
The Bush administration argued that Mohamed v. Jeppesen was just such a case. The Obama administration continued with that argument.
The majority judges said because of state secrets concerns they were precluded from explaining in detail why the case could not move forward without harming national security. But they said they were convinced such harm would result.
“Any effort by Jeppesen to defend [against the suit] would unjustifiably risk disclosure of state secrets,” Judge Fisher wrote.
In a dissent joined by four other judges, Judge Michael Hawkins said the court was wrong to dismiss the entire lawsuit at such an early stage. He said the case should be remanded to a federal judge to determine to what extent actual evidence in the case might raise a threat of disclosing state secrets.
Hawkins acknowledged that the state secrets doctrine is an established precedent. But he said the privilege need not be so broadly enforced.
“The doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights of due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets,” he wrote.
The majority concluded its opinion with a quasi apology to the plaintiffs. “Our holding today is not intended to foreclose – or to prejudge – possible nonjudicial relief, should it be warranted for any of the plaintiffs,” Judge Fisher said.
He said in the interest of justice the government might examine the plaintiffs’ claims and – if warranted – award reparations to them. In addition, he suggested there might be a Congressional investigation and remedial action by lawmakers.
“It should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case,” Fisher wrote. “This is one of those rare cases.”
Judge Hawkins countered in his dissent that the majority’s suggested alternative remedies undercut the concept of checks and balances. “Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role,” he said, “but also deprive the plaintiffs of a fair assessment of their claims by a neutral arbiter.”
Tags: bush administration, cheney, George Bush, journalism, los angeles times, Media, new york times, reporting, thurgood marshall, torture, truth, waterboardng, will bunch
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I’m sorry — there is no other hand. Waterboarding is torture, period. It’s been that way for decades — it was torture when we went after Japanese war criminals who used the ancient and inhumane interrogation tactic, it was torture when Pol Pot and some of the worst dictators known to mankind used it against their own people, and it was torture to the U.S. military which once punished soldiers who adopted the grim practice.
And waterboarding was described as “torture,” almost without fail, in America’s newspapers.
Until 2004, after the arrival of George W. Bush, Dick Cheney, and their criminal notions of “enhanced interrogations.” For four years — in what would have to be the bizarro-world version of “speaking truth to power,” waterboarding was almost never torture on U.S. newsprint. Then waterboarding-as-torture nearly made a mild comeback in journo-world, until perpetrators like Cheney and Inquirer op-ed columnist John Yoo began the big pushback, when American newspapers bravely turned their tails and fled.
From the early 1930′s until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5% (44 of 54) of articles on the subject and The Los Angeles Times did so in 96.3% of articles (26 of 27). By contrast, from 2002-2008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4%). The Los Angeles Times did so in 4.8% of articles (3 of 63). The Wall Street Journal characterized the practice as torture in just 1 of 63 articles (1.6%). USA Today never called waterboarding torture or implied it was torture.
The report also notes that waterboarding had constantly been referred to as torture by newspapers when other nations did it, but when the United States did it in the 2000s, it was, to paraphrase Richard Nixon, not illegal. The study proves scientifically something we’ve been talking about here at Attytood since Day One, about the tragic consequences of the elevation of an unnatural notion of objectivity in which newspapers abandoned any core human values — even when it comes to something as clear cut as torture — to give equal moral weight to both sides of an not-so-debatable issue (not to mention treating scientific issues like climate changes in the same zombie-like manner).
Never before in my adult life have I been so ashamed of my profession, journalism.
As soon as Republicans started quibbling over the definition of torture, traditional media outlets felt compelled to treat the issue as a “controversial” matter, and in order to appear as though they weren’t taking a side, media outlets treated the issue as unsettled, rather than confronting a blatant falsehood. To borrow John Holbo’s formulation, the media, confronted with the group think of two sides of an argument, decided to eliminate the “think” part of the equation so they could be “fair” to both groups.
The irony that Serwer notes — and I completely agree — is that in claiming they were working so hard not to take “a side,” the journalists who wouldn’t call waterboarding “torture” were absolutely taking a side and handing a victory to the Bush administration, which convinced newspapers to stop unambiguously describing this crime as they had done for decades prior to 2004. It’s a tactic that has continued to this day. It’s the reason why Cheney– who’d been nearly invisible when he was in power — and Yoo were suddenly all over the place beginning on Jan. 21, 2009, because they were desperately trying to keep framing this debate as the newspapers had, that their torture tactics were a public, political disagreement, and not a war crime.
And tragically, they succeeded. They were America’s leaders, they tortured, and they got away with it. And newspapers and other journalists drove the getaway car.
I do think this report frames a much broader problem in America, which is that we’ve lost our ability to distinguish right from wrong on its most basic level, because of our need to filter everything through some kind of bogus political prism. Look past torture, and look at the Elena Kagan hearings down in Washington, and the shameful way that Republican senators have desecrated the memory of the late Supreme Court Justice Thurgood Marshall. What made Marshall a great American is that he started with an alienable truth — that segregation and other unequal treatment of blacks or other minorities are a sin against mankind — and that it was our duty not just as Americans but as human beings to end that injustice by any peaceful means necessary. If Marshall had behaved the way that the 2010 Republican Party would want him to act, forget the notion of an African-American president — there would be water fountains in some American states where Barack Obama could not get a drink.
Increasingly, we’re losing our perspective, maybe our minds. We have candidates for the U.S. Congress comparing the taxes that we pay to finance the U.S. military or to pay for public schools to slavery, or to the Nazi-led Holocaust. As Americans, we should all seek higher ground over what we talk about when we talk about slavery, and what we talk about when we talk about torture.
And yet even some of my own colleagues failed — journalists who started out with a mission to tell the truth and who got very, very lost in a thicket of politics and perhaps self-importance along the way.
And that is beyond shameful.
© 2010 Media Matters for America
The death of Dawn Johnsen’s nomination April 11, 2010Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
Tags: bush administration, civil liberties, congress, constitution, Criminal Justice, dawn johnsen, democrats, due process, executive power, FISA, illegal surveillance, imperial presidency, indefinite detention, legal counsel, obama nominee, Obama presidency, olc, presidential power, rule of law, state secrecy, terrorism, torture, war on terror
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(updated below – Update II)
After waiting 14 months for a confirmation vote that never came, Dawn Johnsen withdrew today as President Obama’s nominee to head the Office of Legal Counsel. As I documented at length when the nomination was first announced in January, 2009, Johnsen was an absolutely superb pick to head an office that plays as vital a role as any in determining the President’s record on civil liberties and adherence to the rule of law. With 59 and then 60 Democratic votes in the Senate all year long (which included the support of GOP Sen. Richard Lugar, though the opposition of Dem. Sen. Ben Nelson and shifting positions from Arlen Specter), it’s difficult to understand why the White House — if it really wanted to — could not have had Johnsen confirmed (or why she at least wasn’t included in the spate of recently announced recess appointments).
I don’t know the real story behind what happened here — I had an email exchange with Johnsen this afternoon but she was only willing to provide me her official, pro forma, wholly uninformative statement — but here’s what I do know: virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:
The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.
What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that ”opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.” Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President ”must not do”?
I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.
UPDATE: ABC News‘ Jake Tapper quotes an anonymous “Senate Democratic leadership source” regarding a Senate vote to confirm Johnsen: ”Bottom line is that it was going to be close. If they wanted to, the White House could have pushed for a vote. But they didn’t want to ’cause they didn’t have the stomach for the debate.” Take that anonymous quote for what it’s worth, but what is clear is that they were very close to having the votes last year if they did not in fact have them (when the Senate had 60 Democrats plus Lugar’s support) and, in any event, could have included her among last month’s recess appointments. Had there been real desire to secure her confirmation, it seems likely it would have happened; at the very least, a far greater effort would have been made.
UPDATE II: Dave Weigel, now of The Washington Post, becomes the latest to observe the core similarity between the Obama and Bush/Cheney approaches to civil liberties, Terrorism and national security. If you were Barack Obama and were pursuing the policies that he ended up pursuing, would you want Dawn Johnsen in charge of the office which determines the scope of your legal authority as President?
When Presidential Sermons Collide March 25, 2010Posted by rogerhollander in Barack Obama, Criminal Justice.
Tags: bush administration, Criminal Justice, geneva conventions, glenn greenwald, human rights, indonesia, marc theissen, nuremberg, president obama, roger hollander, suharto, torture, War Crimes
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President Obama gave an interview earlier this week to an Indonesian television station in lieu of the scheduled trip to that country which was canceled due to the health care vote. In 2008, Indonesia empowered a national commission to investigate human rights abuses committed by its own government under the U.S.-backed Suharto regime “in an attempt to finally bring the perpetrators to justice,” and Obama was asked in this interview: ”Is your administration satisfied with the resolution of the past human rights abuses in Indonesia?” He replied:
We have to acknowledge that those past human rights abuses existed. We can’t go forward without looking backwards . . . .
When asked last year about whether the United States should use similar tribunals to investigate its own human rights abuses, as well his view of other countries’ efforts (such as Spain) to investigate those abuses, Obama said:
I’m a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there.
That “Look-Forward/Not-Backward” formulation is one which Obama and his top aides have frequently repeated to argue against any investigations in the U.S. Why, as Obama sermonized, must Indonesians first look backward before being able to move forward, whereas exactly the opposite is true of Americans? If a leader is going to demand that other countries adhere to the very “principles” which he insists on violating himself, it’s probably best not to use antithetical clichés when issuing decrees, for the sake of appearances if nothing else.
The New Yorker‘s Jane Mayer — in the last paragraph of her new article documenting the multiple lies told by former Bush speechwriter and current Washington Post columnist Marc Theissen in his pro-torture book — offered the best summary yet as to why Obama’s “Look Forward/Not Backward” mentality is so destructive:
The publication of “Courting Disaster” suggests that Obama’s avowed determination “to look forward, not back” has laid the recent past open to partisan reinterpretation. By holding no one accountable for past abuse, and by convening no commission on what did and didn’t protect the country, President Obama has left the telling of this dark chapter in American history to those who most want to whitewash it.
Nothing enables the glorification of crimes, and nothing ensures their future re-occurrence, more than shielding the criminals from all accountability. It’s nice that Barack Obama is willing to dispense that lecture to other countries, but it’s not so nice that he does exactly the opposite in his own.
© 2010 Salon.com
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.
Obama and the Denial of Genocide March 15, 2010Posted by rogerhollander in Barack Obama, Genocide, Human Rights.
Tags: 1915 genocide, armenia, armenian genocide, armenians, bush administration, congress, crimes against humanity, ethnic cleansing, foreign relations, genocide, genocide denial, hillary clinton, history, human rights, obama administration, orhan pamuk, ottoman empire, pelosi, roger hollander, stephen zunes, turkey, War Crimes
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The Obama administration, citing its relations with Turkey, has pledged to block the passage in the full House of Representatives of a resolution passed this past Thursday by the Foreign Relations Committee acknowledging the 1915 genocide by the Ottoman Empire of a 1.5 million Armenians. Even though the Obama administration previously refused to acknowledge and even worked to suppress well-documented evidence of recent war crimes by Israel, another key Middle Eastern ally, few believed that the administration would go as far as to effectively deny genocide.
Following the committee vote, Secretary of State Hillary Clinton announced that “We are against this decision,” and pledged that the administration would “work very hard” to prevent the bill from coming to the floor. Despite widespread support for the resolution by House Democrats, she expressed confidence that the administration would find a means of blocking the resolution, saying, “Now we believe that the U.S. Congress will not take any decision on this subject.”
As candidates, both Clinton and Barack Obama had pledged that their administrations would be the first to formally recognize the Armenian genocide. Clinton acknowledged that this was a reversal, but insisted that circumstances had “changed in very significant ways.” The State Department, however, has been unable to cite any new historical evidence that would counter the broad consensus that genocide had indeed taken place in the waning years of the Ottoman Empire. The official excuse is that it might harm an important rapprochement between Armenia and Turkey. However, there is no indication the Armenian government is at all concerned about potential negative fallout in their bilateral relations over a resolution passed by a legislative body in a third country.
More likely, the concern is over not wanting to jeopardize the cooperation of Turkey, which borders Iran, in the forthcoming enhanced sanctions against the Islamic republic.
Back in 2007, a similar resolution acknowledging the Armenian genocide also passed through the House Foreign Relations Committee. Speaker of the House Nancy Pelosi promised that she would allow it to come for a vote. With 226 cosponsors – a clear majority of the House – there was little question it would pass. However, in response to claims by the Bush White House and Republican congressional leaders that it would harm the “Global War on Terror,” Pelosi broke her promise and used her power as speaker to prevent a vote on the resolution. She will also certainly buckle under pressure from an administration of her own party.
The Historical Record
Between 1915 and 1918, under orders of the leadership of the Ottoman Empire, an estimated two million Armenians were forcibly removed from their homes in a region that had been part of the Armenian nation for more than 2,500 years. Three-quarters of them died as a result of execution, starvation, and related reasons.
According to Henry Morgenthau, U.S. ambassador to the Ottoman Empire during that period, “When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant to a whole race; they understood this well, and, in their conversations with me, they made no particular attempt to conceal the fact.” While issuing a “death warrant to a whole race” would normally be considered genocide by any definition, this apparently isn’t the view of the Obama administration.
The Convention on the Prevention and Punishment of the Crime of Genocide, signed and ratified by the United States, officially defines genocide as any effort “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The earliest proponent of such an international convention was Raphael Lemkin, a Polish Jewish lawyer who originally coined the term “genocide” and identified the Armenian case as a definitive example.
Dozens of other governments – including Canada, France, Italy, and Russia – and several UN bodies, as well as 40 U.S. states, have formally recognized the Armenian genocide. The Obama administration does not, however, and is apparently determined to prevent Congress from doing so.
Congress has previously gone on record condemning Iranian president Mahmoud Ahmadinejad for refusing to acknowledge the German genocide of the Jews. Congress appears unwilling, however, to challenge Obama’s refusal to acknowledge the Ottoman genocide of the Armenians. While awareness of anti-Semitism is fortunately widespread enough to marginalize those who refuse to acknowledge the Holocaust, tolerance for anti-Armenian bigotry appears strong enough that it’s still considered politically acceptable to deny their genocide.
The Turkey Factor
Opponents of the measure argue that they’re worried about harming relations with Turkey, the successor state to the Ottoman Empire and an important U.S. ally. However, the United States has done much greater harm in its relations with Turkey through policies far more significant than a symbolic resolution acknowledging a tragic historical period. The United States clandestinely backed an attempted military coup by right-wing Turkish officers in 2003, arming Iraqi and Iranian Kurds with close ties to Kurdish rebels in Turkey who have been responsible for the deaths of thousands of Turkish citizens. The United States also invaded neighboring Iraq. As a result, the percentage of Turks who view the United States positively declined from 52 percent to only 9 percent.
Generations of Turks have been taught that there was no Ottoman genocide of the Armenians, but that there were scattered atrocities on both sides. Indeed, most Turks believe their country is being unfairly scapegoated, particularly when the United States refuses to label its treatment of American Indians as genocide or acknowledge more recent war crimes. As a result, some argue that a more appropriate means of addressing the ongoing Turkish denial of historical reality would be through dialogue and some sort of re-education, avoiding the patently political device of a congressional resolution that would inevitably make Turks defensive.
Failure to acknowledge the genocide, however, is a tragic affront to the rapidly dwindling number of genocide survivors as well as their descendents. It’s also a disservice to the many Turks who opposed the Ottoman Empire’s policies and tried to stop the genocide, as well as the growing number of Turks today who face imprisonment by their U.S.-backed regime for daring to publicly concede the crimes of their forebears. For example, Orhan Pamuk, the Turkish novelist who won the 2006 Nobel Prize for literature, was prosecuted and fled into exile to escape death threats after making a number of public references to the genocide.
Some opponents of the resolution argue that it is pointless for Congress to pass resolutions regarding historical events. Yet there were no such complaints regarding resolutions commemorating the Holocaust, nor are there normally complaints regarding the scores of dedicatory resolutions passed by Congress in recent years, ranging from commemorating the 65th anniversary of the death of the Polish musician and political leader Ignacy Jan Paderewski to noting the 150th anniversary of the first meeting of the Republican Party in Wisconsin.
The Obama administration insists that that this is a bad time to upset the Turkish government. However, it was also considered a “bad time” to pass the resolution back in 2007, on the grounds that it not jeopardize U.S. access to Turkish bases as part of efforts to support the counter-insurgency war by U.S. occupation forces in Iraq. It was also considered a “bad time” when a similar resolution was put forward in 2000 because the United States was using its bases in Turkey to patrol the “no fly zones” in northern Iraq. And it was also considered a “bad time” in 1985 and 1987, when similar resolutions were put forward because U.S. bases in Turkey were considered important listening posts for monitoring the Soviet Union during the Cold War.
For deniers of the Armenian genocide, it’s always a “bad time.”
While the passage of the resolution would certainly lead to strong diplomatic protests from Turkey, it is dubious that there would be much of a rupture between Ankara and Washington. When President Ronald Reagan, a major backer of the right-wing military dictatorship then ruling Turkey, once used the term genocide in relation to Armenians, U.S.-Turkish relations did not suffer.
The Obama administration, like administrations before it, simply refuses to acknowledge that the Armenian genocide even took place. As recently as the 1980s, the Bulletin of the Department of State claimed that “Because the historical record of the 1915 events in Asia Minor is ambiguous, the Department of State does not endorse allegations that the Turkish government committed genocide against the Armenian people.” Even more recently, Paul Wolfowitz, who served as deputy secretary of defense in President George W. Bush, stated in 2002 that “one of the things that impress me about Turkish history is the way Turkey treats its own minorities.”
The operative clause of the resolution simply calls upon Obama “to ensure that the foreign policy of the United States reflects appropriate understanding and sensitivity concerning issues related to human rights, ethnic cleansing, and genocide documented in the United States record relating to the Armenian Genocide and the consequences of the failure to realize a just resolution.” Therefore, if Obama really doesn’t want Congress to pass such a resolution, all he needs to do is make an executive order acknowledging the genocide. Despite whatever excuses one wants to make, failure to do so amounts to genocide denial.
Given the indisputable record of the Armenian genocide, many of those who refuse to recognize Turkey’s genocide of Armenians, like those who refuse to recognize Germany’s genocide of European Jews, are motivated by ignorance and bigotry. The Middle East scholar most often cited by members of Congress as influencing their understanding of the region is the notorious genocide-denier Bernard Lewis, a fellow at Washington’s Institute of Turkish Studies.
Not every opponent of the current resolution explicitly denies that there was genocide. Some acknowledge that genocide indeed occurred, but have apparently been convinced that it’s detrimental to U.S. security to state this publicly. This is still inexcusable. Such moral cowardice is no less reprehensible than refusing to acknowledge the Holocaust if it were believed that doing so might upset the German government, which also hosts critical U.S. bases.
Obama is not the first Democratic president to effectively deny the Armenian genocide. President Bill Clinton successfully persuaded House Speaker Dennis Hastert to suppress a similar bill, after it passed the Republican-led Foreign Relations Committee by a vote of 40-7 and was on its way to easy passage before the full House. President Jimmy Carter also suppressed a Senate effort led by Bob Dole, whose miraculous recovery from near-fatal wounds during World War II was overseen by an Armenian-American doctor who had survived the genocide.
Interestingly, neoconservatives – quick to defend crimes against humanity by the Bush administration, the Israeli government, and others – are opportunistically using Obama’s flip-flop on this issue as evidence of the moral laxity of Democrats on human rights.
Adolf Hitler, responding to concerns about the legacy of his crimes, once asked, “Who, after all, is today speaking of the destruction of the Armenians?” Obama is sending a message to future tyrants that they can commit genocide without acknowledgement by the world’s most powerful country.
Indeed, refusing to recognize genocide and those responsible for it in a historical context makes it easier to deny genocide today. In 1994, the Clinton also refused to use the word “genocide” in the midst of the Rwandan government’s massacres of over half that country’s Tutsi population, a decision that contributed to the delay in deploying international peacekeeping forces until after the slaughter of 800,000 people.
As a result, the Obama administration’s position on the Armenian genocide isn’t simply about whether to commemorate a tragedy that took place 95 years ago. It’s about where we stand as a nation in facing up to the most horrible of crimes. It’s about whether we are willing to stand up for the truth in the face of lies. It’s about whether we see our nation as appeasing our strategic allies or upholding our longstanding principles.
© 2010 Foreign Policy in Focus
Stephen Zunes is Middle East editor for Foreign Policy In Focus. He is a professor of Politics at the University of San Francisco and the author of Tinderbox: U.S. Middle East Policy and the Roots of Terrorism (Common Courage Press, 2003.)
George W. Obama January 15, 2010Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights, Torture.
Tags: aclu, black sites, bush administration, cheney, cia, cia renditions, constitution, Criminal Justice, eric holder, FISA, fourth amendment, Guantanamo, justice department, nat hentoff, obama administration, permanent detention, presidential immunity, rendition, Robert Gates, roger hollander, rumsfeld, sovereign immunity, state secrets, supreme court, thurgood marshall, torture, wiretap act
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After his first year, Obama shows his true face
By Nat Hentoff
Tuesday, January 12th 2010 at 3:33pm
“The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.”
”Mr. Obama’s ratifications of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them,” Mr. Balkin said, “Mr. Obama is consolidating them as entrenched features of government.”
”Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution . . . can shelter us forever against the dangers of such unchecked power.”
Before President Obama, it was grimly accurate to write, as I often did in the Voice, that George W. Bush came into the presidency with no discernible background in constitutional civil liberties or any acquaintance with the Constitution itself. Accordingly, he turned the “war on terror” over to Dick Cheney and Donald Rumsfeld—ardent believers that the Constitution presents grave obstacles in a time of global jihad.
But now, Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.
On January 22, 2009, the apostle of “change we can believe in” proclaimed: “Transparency and the rule of law will be the touchstones of my presidency.” But four months into his first year in command, Obama instructed his attorney general, Eric Holder, to present in a case, Jewel v. National Security Agency, a claim of presidential “sovereign immunity” that not even Dick Cheney had the arrant chutzpah to propose.
Five customers of AT&T had tried to go to court and charge that the government’s omnipresent spy, the NSA, had been given by AT&T private information from their phone bills and e-mails. In a first, the Obama administration countered—says Kevin Bankston of Electronic Frontier Foundation, representing these citizens stripped of their privacy—that “the U.S. can never be sued for spying that violated federal surveillance statutes, the Foreign Intelligence Surveillance Act, or the Wiretap Act.”
It is one thing, as the Bush regime did, to spy on us without going to court for a warrant, but to maintain that the executive branch can never even be charged with wholly disregarding our rule of law is, as a number of lawyers said, “breathtaking.”
On the other hand, to his credit, Obama’s very first executive orders in January included the ending of the CIA “renditions”—kidnapping terrorism suspects off the streets in Europe and elsewhere and sending them for interrogation to countries known to torture prisoners. However, in August, the administration admitted that the CIA would continue to send such manacled suspects to third countries for detention and interrogation.
Why send them to a foreign prison if they’re not going to be tortured to extract information for the CIA? Oh, the U.S. would get “guarantees” from these nations that the prisoners would not be tortured. That’s the same old cozening song that Condoleezza Rice and George W. Bush used to sing robotically.
President Obama also solemnly pledged to have “the most open administration in American history.” Nonetheless, his Justice Department lawyers have already invoked “state secrets” to prevent cases brought by victims of the CIA renditions from being heard.
In February, in a lawsuit brought by five graduates of CIA “black sites” before the Ninth Circuit Court of Appeals in San Francisco, one of the judges, visibly surprised at hearing the new “change” president invoking “state secrets,” asked the government lawyer, Douglas Letter, “The change in administration has no bearing on this?”
The answer: “No, your honor.” This demand for closing this case before it can be heard had, he said, been “thoroughly vetted with the appropriate officials within the new administration, [and] these are authorized positions.”
Said the torture graduates’ ACLU lawyer, Ben Wizner: “Much is at stake in this case. If the CIA’s overboard secrecy claims prevail, torture victims will be denied their say in court solely on the basis of an affidavit submitted by their torturers.”
Barack Obama a torturer? Not exactly. In this particular case, the torture policy had been set by George W. Bush. President Obama is just agreeing with his predecessor. Does that make Obama complicit in these acts of torture? You decide.
What is clear, beyond a doubt—and not only in “rendition” cases, but in other Obama validations of what Dick Cheney called the necessary “dark side” of the previous administration—has been stated by Jameel Jaffer. Head of the ACLU’s National Security Project, he is the co-author of the definitive evidence of the Bush-Cheney war crimes that Obama is shielding, Administration of Torture (Columbia University Press).
After the obedient Holder rang the “state secrets” closing bell in the San Francisco case, Jaffer described the link between the Bush and Obama presidencies: “The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.”
It’s become an Obama trademark: reversing a vigorous position he had previously taken, as when he signed into law the FISA (Foreign Intelligence Surveillance Act) Amendments Act that, as a senator, he had vowed to filibuster as a protest against their destruction of the Fourth Amendment. And now he’s done it again. His government is free to spy on us at will.
For another example of the many Obamas, the shifting president had supported the release of photographs of Bush-era soldier abuses of prisoners in Iraq and Afghanistan. (The Second Circuit Court of Appeals in New York had approved the publication of these “intensive interrogations.”) But Obama changed his mind, and Defense Secretary Robert Gates flat-out censored the photos. Not surprisingly, the Roberts Supreme Court agreed with Gates and Obama and overruled the Second Circuit.
In a December 5 editorial, The New York Times helped explain why Obama—who doesn’t want to “look backward” at Bush cruelties—changed his mind: “The photos are of direct relevance to the ongoing national debate about accountability for the Bush-era abuses. No doubt their release would help drive home the cruelty of stress positions, mock executions, hooding, and other ‘enhanced interrogation techniques’ used against detainees and make it harder for officials to assert that improper conduct was aberrational than the predictable result of policies set at high levels.”
Barack Obama may well go down in history as the President of Impunity for Bush, Cheney, and, in time, himself, for continuing the CIA “renditions.”
But he will also be long remembered as the President of Permanent Detention. At the Supreme Court in 1987, in U.S. v. Salerno, Justice Thurgood Marshall, strenuously dissenting, warned: “Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution . . . can shelter us forever against the dangers of such unchecked power.”
Not forever. The Obama government is working to assure that its purchase of the supermax prison, the Thomson Correctional Center in Illinois, will be the permanent forced residence of certain Guantánamo terrorism suspects who can’t be tried in our regular courtrooms because—gasp—they have been tortured, preventing the admission of “incriminating” statements they have made or—”state secrets” again!—a due process trial “would compromise sensitive sources and methods.”
I increasingly wonder whose Constitution Barack Obama was teaching at the University of Chicago. China’s? North Korea‘s? Robert Mugabe‘s? Glenn Greenwald, a former constitutional lawyer, whose byline I never miss on the Internet, asks: “What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people?”
You may not be surprised to learn that my next book—to be published by Cato Institute, where I’m now a senior fellow—will be titled, Is This America?
I often disagree with ACLU Executive Director Anthony Romero—though I’m almost always in synch with his lawyers in the field—but Romero is right about Obama creating “Gitmo North”: “While the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proved guilty and the right to confront one’s accusers. . . . The Obama administration’s announcement contradicts everything the president has said about the need for America to return to leading with its values. American values do not contemplate disregarding our Constitution and skirting the criminal justice system.”
If Dick Cheney were a gentleman, instead of continuing to criticize this president, he would congratulate him on his faithful allegiance to many signature policies of the Bush-Cheney transformation of America.
But never let it be said that President Obama is neglecting the patriotic education of America’s young. On December 13, Clint Boulton reported on eweek.com, “The Electronic Frontier Foundation and Berkeley‘s Samuelson Clinic have sued the Department of Justice and five other government organizations (including the CIA and the Office of the Director of National Intelligence) for cloaking their policies for using Facebook, Twitter, and other social networks to investigate citizens in criminal and other matters. [The plaintiffs] want to know exactly how, and what kinds of information, the feds are accessing from users’ social networking profiles.”
Maybe Dick Cheney can ask Barack to confirm him as a friend on Facebook.
Charlie Savage, the Times ace reporter of constitutional violations, chillingly shows how Yale Law School professor Jack Balkin got to the core of the consequences of our “yes, we can” president by predicting that “Mr. Obama’s ratifications of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them,” Mr. Balkin said, “Mr. Obama is consolidating them as entrenched features of government.”
Do Congressional Democratic leaders Harry Reid and Nancy Pelosi give a damn about this historic legacy of the Obama administration that they cluelessly help to nurture by providing lockstep Democratic majorities for?
Do you give a damn?
Guantánamo: The Definitive Prisoner List (Updated for 2010) January 6, 2010Posted by rogerhollander in George W. Bush, Torture, War.
Tags: abdulmatalab, andy worthington, bin Laden, bush administration, cheney, enemy combatants, geneva conventions, Guantanamo, guantanamo prisoners, habeas corpus, International law, military commissions, muslim, nuremberg, obama administration, roger hollander, rumsfeld, Taliban, torture, war criminals, yemen, yemenis
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(Roger’s note: I am making an exception here to my policy of not posting fund solicitation)
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Back in March, I published a four-part list identifying all 779 prisoners held at Guantánamo since the prison opened on January 11, 2002, as “the culmination of a three-year project to record the stories of all the prisoners held at the US prison in Guantánamo Bay, Cuba.” Now updated (as my ongoing project nears its four-year mark), the four parts of the list are available here: Part One, Part Two, Part Three and Part Four.
As I explained at the time, the first fruit of my research was my book The Guantánamo Files, in which, based on an exhaustive analysis of 8,000 pages of documents released by the Pentagon (plus other sources), I related the story of Guantánamo, established a chronology explaining where and when the prisoners were seized, told the stories of around 450 of these men (and boys), and provided a context for the circumstances in which the remainder of the prisoners were captured.
The list provided references to the chapters in The Guantánamo Files where the prisoners’ stories can be found, and also provided numerous links to the hundreds of articles that I wrote between May 2007 and March 2009, for a variety of publications, expanding on and updating the stories of all 779 prisoners. In particular, I covered the stories of the 143 prisoners released from Guantánamo from June 2007 onwards in unprecedented depth, and also covered the stories of the 27 prisoners charged in Guantánamo’s Military Commission trial system in more detail than was available from most, if not all other sources.
In addition, the list also included links to the 12 online chapters, published between November 2007 and February 2009, in which I told the stories of over 250 prisoners that I was unable to include in the book (either because they were not available at the time of writing, or to keep the book at a manageable length).
As a result — and notwithstanding the fact that the New York Times had made a list of documents relating to each prisoner available online — I believe that I was justified in stating that the list was “the most comprehensive list ever published of the 779 prisoners who have been held at Guantánamo,” providing details of the 533 prisoners released at that point (and the dates of their release), and the 241 prisoners who were still held (including the 59 prisoners who had been cleared for release by military review boards under the Bush administration), for the same reason that my book provides what I have been told is an unparalleled introduction to Guantánamo and the stories of the men held there: because it provides a much-needed context for these stories that is difficult to discern in the Pentagon’s documents without detailed analysis.
When I first published the list in March, I promised — perhaps rather rashly — that I would update the list as more prisoners were released, a task that proved easier to promise than to accomplish. As a result, this update to the four parts of the list draws on the 290 or so articles that I have published in the last ten months, tracking the Obama administration’s stumbling progress towards closing the prison, reporting the stories of the 41 prisoners released since March, and covering other aspects of the Guantánamo story; in particular, the prisoners’ habeas corpus petitions in the US courts, in which, since March, nine prisoners have had their habeas corpus petitions granted by the US courts, and six have had their petitions refused (the total, to date, is 32 victories for the prisoners, and just nine for the government). Overall, as it stood at December 31, 2009, 574 prisoners had been released from Guantánamo (42 under Obama), one — Ahmed Khalfan Ghailani — had been transferred to the US mainland to face a federal court trial, six had died, and 198 remained, including one man, Ali Hamza al-Bahlul, who is serving a life sentence after a one-sided trial by Military Commission in 2008.
As for my intention, it remains the same as it did when I first published the list. As I explained at the time:
It is my hope that this project will provide an invaluable research tool for those seeking to understand how it came to pass that the government of the United States turned its back on domestic and international law, establishing torture as official US policy, and holding men without charge or trial neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trial in a federal court, but as “illegal enemy combatants.”
I also hope that it provides a compelling explanation of how that same government, under the leadership of George W. Bush, Dick Cheney and Donald Rumsfeld, established a prison in which the overwhelming majority of those held — at least 93 percent of the 779 men and boys imprisoned in total — were either completely innocent people, seized as a result of dubious intelligence or sold for bounty payments, or Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the terrorist attacks of September 11, 2001, and that had nothing to do with al-Qaeda, Osama bin Laden or international terrorism.
To this I would only add that, nearly a year after President Obama took office, I hope that the list and its references provide a useful antidote to the current scaremongering regarding the failed Christmas plane bomber, Omar Farouk Abdulmutallab, and his alleged ties with one — just one — of the 574 prisoners released from Guantánamo, in a Yemen-based al-Qaeda cell. This purported connection is being used by those who want the evil stain of Guantánamo to endure forever (still led by former Vice President Dick Cheney, but also including a number of spineless Democrats) to argue that no more of the Yemenis — who make up nearly half of the remaining prisoners — should be released, even though the ex-prisoner in question is a Saudi, even though no more than a dozen or so of the 574 prisoners released have gone on to have any involvement whatsoever with terrorism, and even though all of these men were released during the presidency of George W. Bush.
One year ago, it looked feasible that Guantánamo would close by January 2010. We now know that President Obama’s self-imposed deadline will be missed, partly through the unprincipled agitating of opportunistic opponents in Congress and the media, and partly through the government’s own lack of courage in the face of this opposition, but this is no reason for complacency. As the eighth anniversary of the prison’s opening approaches, it remains imperative that those who oppose the existence of indefinite detention without charge or trial — and who call, instead, for the full reinstatement of the Geneva Conventions for prisoners of war, and federal court trials for terrorists — maintain the pressure to close Guantánamo, and to charge or release the prisoners held there, as swiftly as possible.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
Cross-posted on The Public Record. Also discussed by Andrew Sullivan on The Daily Dish, by Juan Cole on Informed Comment (with a link to my recent article about the six Yemenis released before Christmas) and by The Talking Dog. It was also highlighted on the front page of Common Dreams, an edited version was posted in the UK on Liberal Conspiracy and Counterpoint, the blog of the British Council, and it was also cross-posted on various other sites including Global Research, The World Can’t Wait, psychologist and anti-torture blogger Jeff Kaye’s Invictus, Psyche, Science and Society, the blog of psychoanalyst, psychologist, researcher and activist Stephen Soldz, Free Detainees, Uruknet, Blog from Middle East and Shadow on the Sun. It was also discussed on Open Salon by Debra Sweet of The World Can’t Wait (and on Debra’s own site) and on Democratic Underground, was mentioned on The Guantánamo Blog, was linked to prominently on the front page of Antiwar.com, and was “Website of the Day” on CounterPunch.
Blistering Indictment Leveled Against Obama Over His Handling of Bush-Era War Crimes December 12, 2009Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
Tags: Abu Ghraib, aclu, afghan detainees, bagram, binyam mohamed, bush administration, cheney, constitution, convention against torture, detainees, doj, enemy combatants, geneva conventions, Guantanamo, guantanamo suicides, human rights, International law, jason leopold, jay bybee, jeffesen dataplan, john yoo, jose padilla, justice department, miliatry commissions, nuremberg, obama nobel, rendition, roger hollander, state secrets, steven bradbury, torture, torture memos, torture photos, War Crimes, waterboarding
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Saturday 12 December 2009
During his 36-minute speech upon accepting the Nobel Peace Prize in Oslo, Norway Thursday, President Barack Obama explained to an audience of 1,000 how the United States has a “moral and strategic interest” in abiding by a code of conduct when waging war – even one that pits the US against a “vicious adversary that abides by no rules.”
“That is what makes us different from those whom we fight,” Obama said. “That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.”
Obama’s high-minded declaration, made on the 61st anniversary of Human Rights Day, rings hollow in light of fresh reports that his administration continues to operate secret prisons in Afghanistan where detainees have been tortured and where human rights organizations such as the International Committee for the Red Cross are refused access to the prisoners.
Obama has substituted words for action on issues surrounding torture since his first days in office nearly one year ago. Last June, on the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama said the US government “must stand against torture wherever it takes place” and that his administration “is committed to taking concrete actions against torture and to address the needs of its victims.”
But it’s clear that his pledge does not apply to torture committed by Bush administration officials.
That’s the point the American Civil Liberties Union (ACLU) made shortly after Obama’s acceptance speech. Officials from the civil rights organization issued a withering indictment of the Obama administration’s handling of clear-cut cases of war crimes they say were committed by former Bush officials who the Obama administration not only refuses to prosecute but has gone to extraordinary lengths to cover up.
“We’re increasingly disappointed and alarmed by the current administration’s stance on accountability for torture,” said Jameel Jaffer, director of the ACLU’s National Security Project, during a conference call with reporters. “On every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture.”
Before leaving office, Dick Cheney said he approved waterboarding on at least three “high value” detainees and the “enhanced interrogation” of 33 other prisoners. President Bush made a somewhat vaguer acknowledgement of authorizing these techniques.
The ACLU and other civil rights groups said Bush and Cheney’s comments amounted to an admission of war crimes.
Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders. In the case of the US’s refusal to do so, other nations would be obligated to act under the principle of universality.
But Jaffer said that while “the Bush administration constructed a legal framework for torture, now the Obama administration is constructing a legal framework for impunity.”
Defending John Yoo
Indeed, last week, Obama’s Justice Department asked a federal appeals court to dismiss a lawsuit filed against torture memo author John Yoo by Jose Padilla, a US citizen who was arrested in 2002 for allegedly planning to detonate a radioactive “dirty bomb” and detained in a Navy brig on US soil for three years as an enemy combatant, where he says he was tortured as a direct result of Yoo’s legal authorization.
The Obama administration argued, in a friend-of-the-court brief filed with the Ninth Circuit Court of Appeals, that DOJ lawyers who advise on torture or other human rights abuses are entitled to absolute immunity from lawsuits.
“The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally,” wrote Scott Horton, a human rights attorney and constitutional expert in a column published on the Harper’s web site. “Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.”
Constitutional law professor Jonathan Turley said the Obama administration “has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions.”
“If successful in [the Padilla] case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg,” Turley said. “Quite a legacy for the world’s newest Nobel Peace Prize winner.”
What’s remarkable about the Obama Justice Department’s amicus brief in the Padilla case is that it didn’t need to be filed to begin with. Yoo hired a private defense attorney, albeit one who is paid for with taxpayer dollars, earlier this year when the Justice Department backed out of representing Yoo due to undisclosed conflicts.
In court papers filed last week, the Obama administration took a hard line in another case, arguing that a Supreme Court ruling that gave detainees the right to challenge their indefinite imprisonment doesn’t apply to the cases of Yasser Al-Zahrani and Salah Al-Salami, two Guantanamo prisoners who committed suicide in June 2006.
The fathers of the men, who were never charged with a crime, sued Bush administration Defense Department officials in federal court, arguing that the torture their sons endured drove them to hang themselves on June 10, 2006 after being detained for four years.
But the Obama administration said in a legal brief that the Military Commissions Act of 2006 stripped the courts of jurisdiction to hear lawsuits that challenged the “detention, transfer, treatment or conditions of confinement” of “enemy combatants.”
Moreover, in court papers filed in June, the Obama administration said, “Judicial intrusion into this politically sensitive area by creating a damages remedy for detainees could subvert these military and diplomatic efforts and lead to ‘embarrassment of our government abroad.’”
Besides, the Obama administration said, just as John Yoo is entitled to absolute immunity, Defense Department officials are entitled to “qualified immunity” because the “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”
Earlier this week, a report prepared by the Seton Hall University School of Law Center for Policy & Research called into question the veracity of the government’s official version of the deaths of the two men and that of a third prisoner, who was also found hanging in his cell on June 10, 2006. The government attributed the suicides to “asymmetrical warfare.”
“Both the time and exact manner of the deaths remain uncertain, and the presence of rags stuffed in the detainees‘ throats is unexplained,” the report said.
CIA Renditions and State Secrets
The Obama administration has also mounted an aggressive defense of the Bush administration in another high-profile case, this one related to a lawsuit filed in 2007 against Jeppesen DataPlan, a subsidiary of Boeing. Jeppesen DataPlan is accused of knowingly flying people kidnapped by the CIA to secret overseas prisons where they were brutally tortured during the course of their interrogations.
The Bush administration invoked the state secrets privilege, arguing that national security would be threatened if the lawsuit moved forward, and urged a federal court to throw out the suit. The Bush administration had previously used the privilege as a means to conceal evidence of government misconduct and illegality, critics charged. Still, the judge in the Jeppesen case threw out the lawsuit. The ACLU, which filed the complaint on behalf of five former Guantanamo Bay prisoners, appealed the decision.
Last February, less than a month after Obama was sworn into office and after promising to break free from the abuses committed by the Bush administration, Obama’s Justice Department shocked civil liberties and human rights advocates when attorneys appeared in federal court in San Francisco and invoked the same state secrets privilege that Bush used to keep the Jeppesen case from moving forward.
Even the judge was baffled. She asked a Justice Department attorney if the change in leadership would lead to a change in the administration’s legal position with regard to state secrets, but the answer was a resounding “no.”
An appellate court ultimately ruled in April that the case could move forward. The panel noted that state secrets can only be cited with regard to specific evidence, and not used as a means to dismiss an entire lawsuit. Justice Department attorneys will be back in court Tuesday to appeal the decision, once again asserting state secrets to try and have the case dismissed.
Sen. Russ Feingold, (D-Wisconsin), who heads a subcommittee on the Constitution, said Obama’s use of state secrets during his first 100 days in office was “troubling” and earned the president a “D” for the way in which his administration has handled civil liberties lawsuits filed against the Bush administration, including the Jepessen lawsuit.
Going a step further, the Obama administration has tried to block Binyam Mohamed, one of the victims named in Jeppesen lawsuit, from obtaining documentary evidence to support his claims that he was tortured while in US custody and that the British government was complicit.
In a legal brief, the ACLU said Mohamed was beaten so severely on numerous occasions that he routinely lost consciousness, and during one gruesome torture session “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”
The Obama White House, repeating threats first leveled by the Bush administration, told British government officials that intelligence sharing between the US and Britain would cease if seven redacted paragraphs contained in secret US documents related to allegations about Mohamed’s torture were made public by a British High Court.
Those threats were reiterated by Secretary of State Hillary Clinton, the CIA and Obama’s National Security Adviser James Jones, according to British Foreign Secretary David Miliband.
“The United States Government’s position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided,” the High Court wrote in a ruling in February when it agreed to keep the paragraphs blacked out. “There is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”
The Obama White House actually issued a statement after the High Court ruling thanking the British government “for its continued commitment to protect sensitive national security information” and added that the order would “preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens.”
It’s unclear why the Obama administration believed national security would be at risk if details of Mohamed’s torture were released. That’s the realization a two-judge panel arrived at when it decided last October to reverse its earlier decision, ruling that the paragraphs at issue should be disclosed because there was a “compelling public interest” and “for reasons of democratic accountability and the rule of law.”
The High Court found that there was insufficient evidence to support White House claims that intelligence sharing between the US and Britain would be endangered because there wasn’t an “explicit statement of consequences [of disclosure by the Court] by the Obama Administration.”
Most notably, however, the judges concluded that the seven paragraphs in question had nothing to do with “secret intelligence” as the Obama administration had claimed. Rather, they were related to the culpability of British intelligence agents in Mohamed’s torture.
Following the High Court’s reversal, The New York Times published a scathing editorial attacking the Obama administration’s hard-line position in the Mohamed case, saying, “The Obama administration has clung for so long to the Bush administration’s expansive claims of national security and executive power that it is in danger of turning President George W. Bush’s cover-up of abuses committed in the name of fighting terrorism into President Barack Obama’s cover-up.”
Mohamed was freed in February after being imprisoned for seven years, and was sent back to Britain. Terrorism-related charges against him were dropped last year when his attorneys sued to gain access to more than three dozen secret documents.
Obama also reversed a commitment he made earlier this year to release photos of US soldiers torturing and abusing prisoners in Iraq and Afghanistan.
Obama said his decision stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan, but the reversal came after several weeks of mounting accusations portraying him as weak on national security.
It became clear that the president had succumbed to a propaganda barrage unleashed by former Bush administration officials, their congressional allies, the right-wing news media and holdovers that retain key jobs under Obama.
His administration decided to fight an appeals court order to the Supreme Court that it originally said it would honor, while his appointees personally worked with lawmakers in Congress to pass legislation that would authorize the secretary of defense to circumvent the Freedom of Information Act and keep the photographs under wraps.
The legislation was passed in November and Obama swiftly signed it into law. By blocking the release of photographs, Obama essentially killed any meaningful chance of opening the door to an investigation of the senior Pentagon and Bush administration officials responsible for implementing the policies that directly led to the abuses captured in the images.
Obama’s decision to fight to conceal the photos marked an about-face on the open-government policies that he proclaimed during his second day in office.
On January 21, President Obama signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests and promised to make the federal government more transparent.
“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
But the ACLU pointed out Thursday that it has seen a limited impact from that sweeping executive order.
“We have not seen the presumption translated into the release of more information,” Jaffer said. “There are several cases [in] which we are just at a loss to understand why the information we are requesting is still being withheld.” This information includes documents related to the Bush administration’s warrantless wiretapping program and transcripts of Combatant Status Review Tribunals in which detainees “describe the abuse they suffered at the hands of their CIA interrogators.”
Obama and Congress
In April, a set of legal memoranda written by Yoo and former OLC heads Jay Bybee and Steven Bradbury were released. The memos authorized the CIA to implement a list of torture techniques to be used against so-called “high-value” prisoners, including beatings, waterboarding, sleep deprivation, placing insects inside a confinement box to induce fear, exposing detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions.” The release prompted renewed pressure on members of Congress to investigate the Bush-era abuses.
Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, Rep. John Conyers, floated competing proposals early in the year for a 9/11-style “truth commission” and a blue-ribbon investigative panel to look into the circumstances that led the Bush administration to formulate a policy of torture.
Obama signaled that he was open to the idea of a “truth commission,” but said he was concerned “about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations.”
Yet he immediately shifted his stance after Republicans pilloried him in numerous op-ed columns in major publications and on cable news programs for backtracking on early promises to “look forward” instead of backwards.
That led Obama to call lawmakers to the White House for a closed-door meeting in late April to talk them out of moving forward with independent investigations. The president even discouraged oversight hearings into the Bush administration’s use of torture.
Underscoring Obama’s position on the issue, White House press secretary Robert Gibbs told reporters at the time, “The president determined the concept didn’t seem altogether workable in this case.”
“The last few days might be evidence of why something like this might just become a political back and forth,” Gibbs said.
While Republicans criticized the idea, Democrats weren’t eager to get behind the plan either, and it was scrapped as lawmakers said they were forced to deal with more pressing issues like the economy and health care.
Upcoming Hearings on Torture?
However, according to Christopher Anders, the ACLU’s senior legislative counsel, Leahy and Conyers have both said they intend to hold hearings next year once a long-awaited report by the Justice Department’s Office of Professional Responsibility (OPR) is released that delves into Yoo, Bybee and Bradbury’s legal work surrounding torture.
Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders said in an interview. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”
Anders added that while there is a time and place for independent commissions, the issue of torture is really a matter for Congress to probe.
“These are the hard issues that Congress should really be tackling” Anders said. “It’s squarely under their jurisdiction.”
Spokespeople for Conyers and Leahy did not return calls or respond to e-mails seeking comment.
Much of what the public knows thus far about the Bush administration’s torture policies is due to the ACLU Freedom of Information Act lawsuit against the government. Since 2004, the organization has obtained more than 100,000 pages of documents that show the Bush White House signed off on and authorized torture against detainees at Guantanamo Bay and at prisons in Iraq.
Several weeks ago, the organization obtained hundreds of new documents, one of which was a one-page questionnaire, apparently from the Justice Department’s Office of Legal Counsel, that asked (presumably inquiring of the CIA), “How close is each technique to the ‘rack and screw?’”
The rack and screw is a medieval torture device. As Alex Abdo, a legal fellow with the ACLU, pointed out in an interview, “Anytime you need to ask a question like that it is deeply disturbing and shows you’ve strayed from constitutional norms.
“You’re asking a question as to whether the conduct you’re about to authorize relates to rack and screw, and that in and of itself should be evidence enough that you’re going too far. It never should get to that point.”
But the release of these explosive documents, as well as others that showed the Bush White House was deeply involved in discussions surrounding the destruction of 92 torture tapes, was met with absolute silence by Congress and the White House.
The ACLU said that as much as the Obama administration may hope that additional revelations related to the Bush administration’s policy of torture will slip underneath the radar, numerous documents expected to be released in the weeks and months ahead will ensure the issue remains front and center for years to come, and calls for accountability will continue.
“The lesson that this is giving to the rest of the world is that countries do not have to be accountable for their actions even when torture and abuse occurs,” the ACLU’s Anders said. “That’s going to make it much more difficult for the United States to push other countries on human rights issues across the board, and it’s going to make it much easier for other countries to shirk their own duties to bring accountability for their own actions in the past.”
Still, that didn’t stop Obama from lecturing the Oslo audience about the importance of upholding human rights.
Jaffer said there is “an obvious tension on what the president is saying on the commitment to human rights and the work we’re doing here in the United States to actually hold people accountable for the violations of both domestic and international law.”
“A lot of what was authorized by senior Bush administration officials was illegal not only under international law but domestic law as well,” Jaffer said. “Many of the methods that were approved by CIA and [Department of Defense] interrogators had previously been described by multiple US administrations as war crimes and some of them have been prosecuted as war crimes.
“Waterboarding in particular is something that has been prosecuted as a war crime before September 11. And yet we are not holding people accountable for having used those techniques, authorized those techniques. Increasingly, we’re frustrated by the gap between the Obama administration’s rhetoric on accountability and reality. We see the Obama administration actively obstructing accountability on every front.”