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The 13 People Who Made Torture Possible May 18, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
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The Bush administration’s Torture 13. They authorized it, they decided how to implement it, and they crafted the legal fig leaf to justify it.

by Marcy Wheeler

On April 16, the Obama administration released four memos that were used to authorize torture in interrogations during the Bush administration. When President Obama released the memos, he said, “It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

Yet 13 key people in the Bush administration cannot claim they relied on the memos from the DOJ’s Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy and the legal process to “preauthorize” torture in the days after 9/11. Others helped implement torture, and still others helped write the memos that provided the Bush administration with a legal fig leaf after torture had already begun.

The Torture 13 exploited the federal bureaucracy to establish a torture regime in two ways. First, they based the enhanced interrogation techniques on techniques used in the U.S. military’s Survival, Evasion, Resistance and Escape (SERE) program. The program — which subjects volunteers from the armed services to simulated hostile capture situations — trains servicemen and -women to withstand coercion well enough to avoid making false confessions if captured. Two retired SERE psychologists contracted with the government to “reverse-engineer” these techniques to use in detainee interrogations.

The Torture 13 also abused the legal review process in the Department of Justice in order to provide permission for torture. The DOJ’s Office of Legal Counsel (OLC) played a crucial role. OLC provides interpretations on how laws apply to the executive branch. On issues where the law is unclear, like national security, OLC opinions can set the boundary for “legal” activity for executive branch employees. As Jack Goldsmith, OLC head from 2003 to 2004, explains it, “One consequence of [OLC's] power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.” OLC has the power, Goldsmith continues, to dispense “get-out-of-jail-free cards.” The Torture 13 exploited this power by collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a “get-out-of-jail-free card” for torturing.

Between 9/11 and the end of 2002, the Torture 13 decided to torture, then reverse-engineered the techniques, and then crafted the legal cover. Here’s who they are and what they did:

1. Dick Cheney, vice president (2001-2009)

On the morning of 9/11, after the evacuation of the White House, Dick Cheney summoned his legal counsel, David Addington, to return to work. The two had worked together for years. In the 1980s, when Cheney was a congressman from Wyoming and Addington a staff attorney to another congressman, Cheney and Addington argued that in Iran-Contra, the president could ignore congressional guidance on foreign policy matters. Between 1989 and 1992, when Dick Cheney was the elder George Bush’s secretary of defense, Addington served as his counsel. He and Cheney saved the only known copies of abusive interrogation technique manuals taught at the School of the Americas. Now, on the morning of 9/11, they worked together to plot an expansive grab of executive power that they claimed was the correct response to the terrorist threat. Within two weeks, they had gotten a memo asserting almost unlimited power for the president as “the sole organ of the Nation in its foreign relations,” to respond to the terrorist attacks. As part of that expansive view of executive power, Cheney and Addington would argue that domestic and international laws prohibiting torture and abuse could not prevent the president from authorizing harsh treatment of detainees in the war against terror.

But Cheney and Addington also fought bureaucratically to construct this torture program. Cheney led the way by controlling who got access to President Bush — and making sure his own views preempted others‘. Each time the torture program got into trouble as it spread around the globe, Cheney intervened to ward off legal threats and limits, by badgering the CIA’s inspector general when he reported many problems with the interrogation program, and by lobbying Congress to legally protect those who had tortured.

Most shockingly, Cheney is reported to have ordered torture himself, even after interrogators believed detainees were cooperative. Since the 2002 OLC memo known as “Bybee Two” that authorizes torture premises its authorization for torture on the assertion that “the interrogation team is certain that” the detainee “has additional information he refuses to divulge,” Cheney appears to have ordered torture that was illegal even under the spurious guidelines of the memo.

2. David Addington, counsel to the vice president (2001-2005), chief of staff to the vice president (2005-2009)

David Addington championed the fight to argue that the president — in his role as commander in chief — could not be bound by any law, including those prohibiting torture. He did so in two ways. He advised the lawyers drawing up the legal opinions that justified torture. In particular, he ran a “War Council” with Jim Haynes, John Yoo, John Rizzo and Alberto Gonzales (see all four below) and other trusted lawyers, which crafted and executed many of the legal approaches to the war on terror together.In addition, Addington and Cheney wielded bureaucratic carrots and sticks — notably by giving or withholding promotions for lawyers who supported these illegal policies. When Jack Goldsmith withdrew a number of OLC memos because of the legal problems in them, Addington was the sole administration lawyer who defended them. Addington’s close bureaucratic control over the legal analysis process shows he was unwilling to let the lawyers give the administration a “good faith” assessment of the laws prohibiting torture.

3. Alberto Gonzales, White House counsel (2001-2005), and attorney general (2005-2008)

As White House counsel, Alberto Gonzales was nominally in charge of representing the president’s views on legal issues, including national security issues. In that role, Gonzales wrote and reviewed a number of the legal opinions that attempted to immunize torture. Most important, in a Jan. 25, 2002, opinion reportedly written with David Addington, Gonzales paved the way for exempting al-Qaida detainees from the Geneva Conventions. His memo claimed the “new kind of war” represented by the war against al-Qaida “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” In a signal that Gonzales and Addington adopted that position to immunize torture, Gonzales argued that one advantage of not applying the Geneva Convention to al-Qaida would “substantially reduce the threat of domestic criminal prosecution under the War Crimes Act.” The memo even specifically foresaw the possibility of independent counsels’ prosecuting acts against detainees.

4. James Mitchell, consultant

Even while Addington, Gonzales and the lawyers were beginning to build the legal framework for torture, a couple of military psychologists were laying out the techniques the military would use. James Mitchell, a retired military psychologist, had been a leading expert in the military’s SERE program. In December 2001, with his partner, Bruce Jessen, Mitchell reverse-engineered SERE techniques to be used to interrogate detainees. Then, in the spring of 2002, before OLC gave official legal approval to torture, Mitchell oversaw Abu Zubaydah’s interrogation. An FBI agent on the scene describes Mitchell overseeing the use of “borderline torture.” And after OLC approved waterboarding, Mitchell oversaw its use in ways that exceeded the guidelines in the OLC memo. Under Mitchell’s guidance, interrogators used the waterboard with “far greater frequency than initially indicated” — a total of 183 times in a month for Khalid Sheikh Mohammed and 83 times in a month for Abu Zubaydah. 

5. George Tenet, director of Central Intelligence (1997-2004)

As director of the CIA during the early years of the war against al-Qaida, Tenet had ultimate management responsibility for the CIA’s program of capturing, detaining and interrogating suspected al-Qaida members and briefed top Cabinet members on those techniques. Published reports say Tenet approved every detail of the interrogation plans: “Any change in the plan — even if an extra day of a certain treatment was added — was signed off on by the Director.” It was under Tenet’s leadership that Mitchell and Jessen’s SERE techniques were applied to the administration’s first allegedly high-value al-Qaida prisoner, Abu Zubaydah. After approval of the harsh techniques, CIA headquarters ordered Abu Zubaydah to be waterboarded even though onsite interrogators believed Zubaydah was “compliant.” Since the Bybee Two memo authorizing torture required that interrogators believe the detainee had further information that could only be gained by using torture, this additional use of the waterboard was clearly illegal according to the memo.

6. Condoleezza Rice, national security advisor (2001-2005), secretary of state (2005-2008)

As national security advisor to President Bush, Rice coordinated much of the administration’s internal debate over interrogation policies. She approved (she now says she “conveyed the authorization”) for the first known officially sanctioned use of torture — the CIA’s interrogation of Abu Zubaydah — on July 17, 2002. This approval was given after the torture of Zubaydah had begun, and before receiving a legal OK from the OLC. The approval from the OLC was given orally in late July and in written form on Aug. 1, 2002. Rice’s approval or “convey[ance] of authorization” led directly to the intensified torture of Zubaydah.

7. John Yoo, deputy assistant attorney general, Office of Legal Counsel (2001-2003)

As deputy assistant attorney general of OLC focusing on national security for the first year and a half after 9/11, Yoo drafted many of the memos that would establish the torture regime, starting with the opinion claiming virtually unlimited power for the president in times of war. In the early months of 2002, he started working with Addington and others to draft two key memos authorizing torture: Bybee One (providing legal cover for torture) and Bybee Two (describing the techniques that could be used), both dated Aug. 1, 2002. He also helped draft a similar memo approving harsh techniques for the military completed on March 14, 2003, and even a memo eviscerating Fourth Amendment protections in the United States. The Bybee One and DOD memos argue that “necessity” or “self-defense” might be used as defenses against prosecution, even though the United Nations Convention Against Torture explicitly states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war … may be invoked as a justification of torture.” Bybee Two, listing the techniques the CIA could use in interrogation, was premised on hotly debated assumptions. For example, the memo presumed that Abu Zubaydah was uncooperative, and had actionable intelligence that could only be gotten through harsh techniques. Yet Zubaydah had already cooperated with the FBI. The memo claimed Zubaydah was mentally and physically fit to be waterboarded, even though Zubaydah had had head and recent gunshot injuries. As Jack Goldsmith described Yoo’s opinions, they “could be interpreted as if they were designed to confer immunity for bad acts.” In all of his torture memos, Yoo ignored key precedents relating both specifically to waterboarding and to separation of powers.

8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)

As head of the OLC when the first torture memos were approved, Bybee signed the memos named after him that John Yoo drafted. At the time, the White House knew that Bybee wanted an appointment as a Circuit Court judge; after signing his name to memos supporting torture, he received such an appointment. Of particular concern is the timing of Bybee’s approval of the torture techniques. He first approved some techniques on July 24, 2002. The next day, Jim Haynes, the Defense Department’s general counsel, ordered the SERE unit of DOD to collect information including details on waterboarding. While the record is contradictory on whether Haynes or CIA General Counsel John Rizzo gave that information to OLC, on the day they did so, OLC approved waterboarding. One of the documents in that packet identified these actions as torture, and stated that torture often produced unreliable results.9. William “Jim” Haynes, Defense Department general counsel (2001-2008)

As general counsel of the Defense Department, Jim Haynes oversaw the legal analysis of interrogation techniques to be used with military detainees. Very early on, he worked as a broker between SERE professionals and the CIA. His office first asked for information on “exploiting” detainees in December 2001, which is when James Mitchell is first known to have worked on interrogation plans. And later, in July 2002, when CIA was already using torture with Abu Zubaydah but needed scientific cover before OLC would approve waterboarding, Haynes ordered the SERE team to produce such information immediately.Later Haynes played a key role in making sure some of the techniques were adopted, with little review, by the military. He was thus crucial to the migration of torture to Guantánamo and then Iraq. In September 2002, Haynes participated in a key visit to Guantánamo (along with Addington and other lawyers) that coincided with requests from DOD interrogators there for some of the same techniques used by the CIA.

Haynes ignored repeated warnings from within the armed services about the techniques, including statements that the techniques “may violate torture statute” and “cross the line of ‘humane’ treatment.” In October 2002, when the legal counsel for the military’s Joint Chiefs of Staff attempted to conduct a thorough legal review of the techniques, Haynes ordered her to stop, because “people were going to see” the objections that some in the military had raised. On Nov. 27, 2002, Haynes recommended that Secretary of Defense Donald Rumsfeld authorize many of the requested techniques, including stress positions, hooding, the removal of clothing, and the use of dogs — the same techniques that showed up later in the abuse at Abu Ghraib.

10. Donald Rumsfeld, secretary of defense (2001-2006)

As secretary of defense, Rumsfeld signed off on interrogation methods used in the military, notably for Abu Ghraib, Bagram Air Force Base and Guantánamo Bay. With this approval, the use of torture would move from the CIA to the military. A recent bipartisan Senate report concluded that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantánamo Bay was a direct cause of detainee abuse there.” Rumsfeld personally approved techniques including the use of phobias (dogs), forced nudity and stress positions on Dec. 2, 2002, signing a one-page memo prepared for him by Haynes. These techniques were among those deemed torture in the Charles Graner case and the case of “20th hijacker” Mohammed al-Qahtani. Rumsfeld also personally authorized an interrogation plan for Moahmedou Ould Slahi on Aug. 13, 2003; the plan used many of the same techniques as had been used with al-Qahtani, including sensory deprivation and “sleep adjustment.” And through it all, Rumsfeld maintained a disdainful view on these techniques, at one point quipping on a memo approving harsh techniques, “I stand for eight to 10 hours a day. Why is standing limited to four hours?”

11. John Rizzo, CIA deputy general counsel (2002-2004), acting general counsel of the Central Intelligence Agency (2001-2002, 2004-present)

As deputy general counsel and then acting general counsel for the CIA, John Rizzo’s name appears on all of the known OLC opinions on torture for the CIA. For the Bybee Two memo, Rizzo provided a number of factually contested pieces of information to OLC — notably, that Abu Zubaydah was uncooperative and physically and mentally fit enough to withstand waterboarding and other enhanced techniques. In addition, Rizzo provided a description of waterboarding using one standard, while the OLC opinion described a more moderate standard. Significantly, the description of waterboarding submitted to OLC came from the Defense Department, even though NSC had excluded DOD from discussions on the memo. Along with the description of waterboarding and other techniques, Rizzo also provided a document that called enhanced methods “torture” and deemed them unreliable — yet even with this warning, Rizzo still advocated for the CIA to get permission to use those techniques.

12. Steven Bradbury, principal deputy assistant attorney general, OLC (2004), acting assistant attorney general, OLC (2005-2009)

In 2004, the CIA’s inspector general wrote a report concluding that the CIA’s interrogation program might violate the Convention Against Torture. It fell to Acting Assistant Attorney General Steven Bradbury to write three memos in May 2005 that would dismiss the concerns the IG Report raised — in effect, to affirm the OLC’s 2002 memos legitimizing torture. Bradbury’s memos noted the ways in which prior torture had exceeded the Bybee Two memo: the 183 uses of the waterboard for Khalid Sheikh Mohammed in one month, the gallon and a half used in waterboarding, the 20 to 30 times a detainee is thrown agains the wall, the 11 days a detainee had been made to stay awake, the extra sessions of waterboarding ordered from CIA headquarters even after local interrogators deemed Abu Zubaydah to be fully compliant. Yet Bradbury does not consider it torture. He notes the CIA’s doctors’ cautions about the combination of using the waterboard with a physically fatigued detainee, yet in a separate memo approves the use of sleep deprivation and waterboading in tandem. He repeatedly concedes that the CIA’s interrogation techniques as actually implemented exceeded the SERE techniques, yet repeatedly points to the connection to SERE to argue the methods must be legal. And as with the Bybee One memo, Bradbury resorts to precisely the kind of appeal to exceptional circumstances — “used only as necessary to protect against grave threats” — to distinguish U.S. interrogation techniques from the torture it so closely resembles around the world.

13. George W. Bush, president (2001-2009)

While President Bush maintained some distance from the torture for years — Cheney describes him “basically” authorizing it — he served as the chief propagandist about its efficacy and necessity. Most notably, on Sept. 6, 2006, when Bush first confessed to the program, Bush repeated the claims made to support the Bybee Two memo: that Abu Zubaydah wouldn’t talk except by using torture. And in 2006, after the CIA’s own inspector general had raised problems with the program, after Steven Bradbury had admitted all the ways that the torture program exceeded guidelines, Bush still claimed it was legal.

 “[They] were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively, and determined them to be lawful.”

With this statement, the deceptions and bureaucratic games all came full circle. After all, it was Bush who, on Feb. 7, 2002, had declared the Geneva Conventions wouldn’t apply (a view the Supreme Court ultimately rejected).

Bush’s inaction in torture is as important as his actions. Bush failed to fulfill legal obligations to notify Congress of the torture program. A Senate Intelligence timeline on the torture program makes clear that Congress was not briefed on the techniques used in the torture program until after Abu Zubaydah had already been waterboarded. And in a 2003 letter, then House Intelligence ranking member Jane Harman shows that she had not yet seen evidence that Bush had signed off on this policy. This suggests President Bush did not provide the legally required notice to Congress, violating National Security Decisions Directive-286. What Bush did not say is as legally important as what he did say.

Yet, ultimately, Bush and whatever approval he gave the program is at the center of the administration’s embrace of torture. Condoleezza Rice recently said, “By definition, if it was authorized by the president, it did not violate our obligations in the Convention Against Torture.” While Rice has tried to reframe her statement, it uses the same logic used by John Yoo and David Addington to justify the program, the shocking claim that international and domestic laws cannot bind the president in times of war. Bush’s close allies still insist if he authorized it, it couldn’t be torture.

Marcy Wheeler writes her blog, emptywheel, for FireDogLake.com

Ignatieff has much to answer for April 30, 2009

Posted by rogerhollander in Barack Obama, Canada, Criminal Justice, Torture.
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Toronto Star, www.thestar.com,  April 30, 2009

Obama’s repudiation of torture makes it vital for the Liberal leader to come clean on his advocacy of ‘coercive interrogation’

Yesterday marked Barack Obama’s 100th day as president. Fortunately, the hoopla did not obscure the one topic that has Americans duly disturbed: torture.

Tuesday was the fifth anniversary of the release of the infamous Abu Ghraib pictures.

A week earlier, Obama had released the 2002-05 “torture memos.” They outlined the approved procedures against terrorism suspects: sleep deprivation, nudity, slamming against walls, locking in a confined space with insects, and subjecting detainees to extreme cold and water-boarding.

Simulated drowning was common during the Spanish Inquisition. It was used by the French colonialists in Algeria, Pol Pot in Cambodia, and the Japanese during World War II.

Last week, a declassified congressional report officially ended the fiction that torture was the work of “a few American troops who dishonoured our country and disregarded our values,” as George W. Bush said. It was a systematic policy approved by him, Dick Cheney, Donald Rumsfeld, et al. and about which they systematically lied.

Their refusal to call torture by its proper name (arguing that it was not torture until it led to bone breaking, flesh burning or organ failure) is now seen as the sophistry it was – a way to “legalize” the illegal.

There’s also consensus that their rationale (to get “actionable information” on impending terrorist attacks) was false; the tortured would say anything to end the barbaric cruelty. Defence Secretary Robert Gates and Robert Mueller, former FBI director, have conceded so.

It is also recognized that the torture policy offended allies, fanned hostility toward America, and galvanized jihadists.

Americans are rapidly moving to the next stage: what to do now?

Opt for full accountability, prosecuting those who designed, approved and implemented torture? Establish a Truth and Reconciliation Commission, as was done in post-apartheid South Africa?

Or just “move on,” as Obama says? He has promised immunity to the CIA agents involved in torture. While Bush went after the little fish (remember Lynndie England of Abu Ghraib?) and let the big fish go, Obama seems ready to let both the little and big fish go. But he has also promised the rule of law.

There’s no easy escape from this ugly chapter. More prisoner pictures are to be released May 28. Gruesome details will emerge once the Guantanamo detainees are transferred to the federal justice system.

All this brings us, inevitably, to Michael Ignatieff.

The Bush administration maintained that it did not do torture. It talked about and wrote memos on “coercive interrogation,” “aggressive interrogation” and “enhanced interrogation techniques.”

Ignatieff opposed torture. He wrote essays on “acceptable degrees of coercive interrogation,” or “vigorous interrogation,” without crossing the line into torture.

“Permissible duress might include forms of sleep deprivation that do not result in lasting harm to mental or physical health, together with disinformation and disorientation (like keeping prisoners in hoods) that would produce stress.

“What crosses the line into the impermissible would be any physical coercion or abuse, any involuntary use of drugs or serums, any withholding of medicines or basic food, water and essential rest.”

Ignatieff’s rationale was about the same as Bush’s: extracting information from detainees to prevent “the greater evil” of terrorist attacks.

For that – and for advocating indefinite detention of suspects, targeted assassinations and pre-emptive wars – Ignatieff was seen as one of the intellectual enablers of Bush’s war on terror.

That he was then the director of the Center for Human Rights at Harvard University gave added weight to his words.

Given the current rethinking in the U.S., has Ignatieff had reason to rethink his own position?

Canadians are entitled to know.

A good place for him to break his silence would be at the Liberal convention in Vancouver this weekend.

Haroon Siddiqui is the Star‘s editorial page editor emeritus. His column appears Thursday and Sunday. hsiddiq@thestar.ca

Obama’s Immunity for CIA Agents Still Leaves Prosecutions of Senior Bushies on the Table April 18, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
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Posted by Ali Frick, Think Progress at 5:34 PM on April 17, 2009.

Obama’s statement was carefully worded to include only “those who carried out their duties relying in good faith upon legal advice.”

Yesterday, as he released four Bush-era legal memos authorizing the torture of terrorist suspects, President Obama made it clear he would not support any prosecutions of low-level interrogators who actually carried out Bush’s policies. “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

 

 

Obama also added, “This is a time for reflection, not retribution,” and said “nothing will be gained by spending our time and energy laying blame for the past.” Some progressive commentators were outraged; Keith Olbermann pleaded, “Prosecute, Mr. President.” CBS’s Andrew Cohen interpreted this to mean Obama would not support any prosecutions for torture:

 

 

 

 

One by one, the hammer blows fell upon civil libertarians and millions of other Americans who believe that the people who legally sanctioned and then implemented torturous “enhanced interrogation tactics” should have had to defend their conduct in our courts of law. One by one, those enthusiastic supporters of the Obama administration’s legal values and policies realized that they had just lost a battle (been wiped out, in fact) that they had every reason to believe they would win. There will be no torture trials. Period.

 

 

 

 

However, Obama’s statement was carefully worded to include only “those who carried out their duties relying in good faith upon legal advice” — not the Bush officials who actually gave out that advice. ACLU lead counsel Jameel Jaffer told Glenn Greenwald that Obama did not shut the door to all prosecutions:

 

 

 

 

I think it’s a mistake to read the grant of immunity too broadly. I don’t think that President Obama’s statement should be taken as a sign that there’s no chance that the architects of torture program will be prosecuted. And even with respect to the interrogators, it’s only the interrogators who relied “in good faith” on legal advice who are protected.

 

 

 

 

 Indeed, Marc Ambinder reported yesterday that “senior administration officials have made it clear” to him that the immunity would not apply to those officials who “who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.” Obama himself seemed to indicate that some sort of investigations have already begun, telling CNN en Espanol, “I think that we are moving a process forward here in the United States to understand what happened.”

 

 

Greenwald notes that the door for investigations and prosecutions is still open, but it will take enormous pressure from the American public to push Obama through. “[T]he burden is on us to demand that something be done,” he writes.

 

 

Ali Frick is a Research Associate for The Progress Report and ThinkProgress.org at the Center for American Progress Action Fund.

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How Obama Excused Torture April 17, 2009

Posted by rogerhollander in Barack Obama, Dick Cheney, George W. Bush, Torture.
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Former Reagan Justice Department official Bruce Fein writes that Obama’s decision to release CIA memos without prosecuting Bush administration officials flouts his constitutional duty.

by Bruce Fein

On Thursday, April 16th, in response to a lawsuit initiated by the American Civil Liberties Union, President Barack Obama released four redacted Office of Legal Counsel (OLC) memoranda from the Bush administration to the CIA justifying torture or cruel, inhumane, or degrading treatment. (The CIA’s enhanced interrogation techniques were modeled on the Chinese Communist coercive brainwashing program against Americans captured in the Korean War to induce false confessions). Each memorandum hedged its conclusions with substantial caveats, such as the absence of judicial precedents and concessions that reasonable persons could dispute their exculpatory conclusions. The memoranda were later renounced as bad law.

Obama, however, promised non-prosecution of all CIA personnel complicit in torture who relied on the flawed OLC advice. He further pledged to defend them from criminal investigations initiated by foreign jurisdictions and to indemnify them if they are held liable in damages for constitutional or statutory wrongdoing. Obama is similarly defending former OLC Deputy Assistant Attorney General John Yoo against a torture suit initiated by Jose Padilla, convicted of terrorism in 2007 after the government dropped charges that as an “enemy combatant” he plotted to set off a “dirty bomb.” The Yoo memoranda on torture have also been renounced and discredited. Obama also promised to follow the Bush-Cheney duumvirate in claiming secrecy for alleged national security secrets because “the world is dangerous.” Indeed, he did not voluntarily initiate release of the four OLC memoranda, but responded to a Freedom of Information Act suit. And President Obama has echoed the Bush-Cheney state secrets arguments to block lawsuits challenging the legality of spying on Americans without warrants in contravention of the Fourth Amendment or federal law, or seeking damages for torture. Moreover, Obama has been unable to recite a single instance where transparency proved more dangerous to the liberties of the American people than has secrecy, the birthplace of COINTELPRO, Shamrock, Minaret, Abu Ghraib, and torture of 14 so-called “High Value Al Qaeda” detainees in secret prisons abroad (according to the International Committee of the Red Cross).

On the same day Obama was excusing torture and promising more secret government, The New York Times published a front page story disclosing the National Security Agency’s apparently illegal interceptions of emails and phone calls of American citizens in the United States without individual judicial warrants. The interceptions exceeded even the sweeping group warrant authority to spy on persons reasonably believed to be outside the United States that were authorized in amendments to the Foreign Intelligence Surveillance Act (FISA) enacted last September. President Obama has declined to sanction a single official implicated in the latest apparent violation of a statute he supported as a senator. He has similarly chosen non-prosecution for former President Bush, former Vice President Cheney, and high level officials at the National Security Agency (NSA) and CIA who authorized more than five years of FISA felonies: namely, warrantless NSA spying on American citizens on American soil in flagrant contravention of FISA, about which more anon.

The evidence is now undeniable. President Barack Obama is flouting his unflagging constitutional obligation enshrined in Article II, Section 3 to “take Care that the Laws be faithfully executed.” He is also reneging on his signature campaign promise to restore the rule of law, transparency, and accountability to the White House. He is displaying the psychology of an arrogant Empire as opposed to a modest Republic in continuing and escalating the Bush-Cheney duumvirate’s global and perpetual war against international terrorism heedless of foreign sovereignties or the lives of civilians.

Even more disappointing, Obama has proven a political coward dangerous to the Republic. Before April 16, he had decided against any criminal investigation of the Bush-Cheney duumvirate or their inner circles for their boasted complicity in torture, i.e., waterboarding, which Attorney General Eric Holder has declared is torture. He has similarly declined investigations of extraordinary renditions that have occasioned, among other things, the indictments and in absentia trials of 26 CIA operatives in Milan, Italy, for the kidnapping and torture of Egyptian cleric Abu Omar.

Obama made no effort to square his refusal to investigate credible and substantial evidence of felonies with his constitutional obligation to faithfully execute, not sabotage the laws. He relied solely on politics, as though law was nothing more than a constellation of political calculations with ulterior motives. Obama insisted that investigations of Bush-Cheney would disturb the Toscanini-like symphony he had promised to the political class in the corridors of power. Comparable political calculations explain why Afghanistan’s President Hamid Karzai declines to prosecute the countless officials implicated in staggering corruption, inefficiency, and subjugation of women-all of which are deplored by President Obama.

In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any Commander-in-Chief eager to appear “tough on terrorism” and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national security defense to torture or commit FISA felonies.

President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA’s interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney’s chief of staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient. Pardons leave unsullied the doctrine of Ex parte Milligan (1866):”The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and in all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

Obama can be summoned against his own non-prosecution policy, secrecy, and non-accountability. In releasing the four OLC memoranda on April 16, Obama asserted: “Enlisting our values [like the rule of law or transparency] in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals [like the rule of law or government in the sunshine]… I believe strongly in transparency and accountability… The United States is a nation of laws.”

These words should be taken cum granis salis. Bush and Cheney also insisted that everything they did was constitutional and indispensable to thwarting another 9/11. Obama’s promise of change has proven nothing more than verbal jugglery.

Bruce Fein was associate deputy attorney general under President Ronald Reagan, and has authored Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.

“Reconciliation” and “Looking Forward Not Backward:” Code for No Justice? February 19, 2009

Posted by rogerhollander in About Barack Obama, About Justice, Barack Obama, Criminal Justice, Dick Cheney, George W. Bush.
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nuremberg-trial

The President of the Tribunal, Lord Chief Justice Lawrence, pronounces the sentences and reads the dissenting Russian opinion

 by Roger Hollander

www.rogerhollander.wordpress.com, February 19, 2009

 

(SEE UPDATE BELOW)

 

An essay entitled “Obama’s Justice: Reconciliation Not Retribution” appeared recently in the progressive online journal, Truthout.com (http://www.truthout.org/021809J).  Its author is Cynthia Boaz, assistant professor of political science at Sonoma State University, who is described as a specialist “in political development, quality of democracy and nonviolent struggle.”

 

Professor Boaz’s approach was most annoying in that she felt the need to set up a straw man (the notion that those who want justice want it for purposes of retribution) and resort to the ad hominem by characterizing those who are pushing for investigations and prosecution of the Bush era crimes as “disgruntled, self-identified progressives” and comparing them to “villagers wielding torches and pitchforks.”

 

But such annoyances pale in light of the implication of her thesis in support of Obama as a “unifier,” and his mission of “reconciliation, not retribution” in an attempt to justify Obama’s oxymoronic and disingenuous statement that he believes in the rule of law but would rather look forward rather than backward.

 

(To her credit Professor Boaz acknowledges that the Bush administration may have committed misdeeds “which in some cases, rise to the level of crimes against humanity” and does not argue that they should not be brought to justice.  Her point is that justice should not be politicized, that the president should not seek “retribution” for his predecessor)

 

In the real world justice in fact usually occurs in a political context – especially when crimes occur at the higher levels of government.  Obama recognizes this and his remarks to George Stephanopoulos were in response to overwhelming public sentiment for him to appoint a special prosecutor as reflected in his transition sounding exercise.  Presidents do appoint Special Prosecutors and the United States Attorney General.  Presidents grant pardons, often controversial and often of a political nature (Ford/Nixon; Reagan/Weinberger, North, Irangate).  The political and the judicial are indeed intertwined.

 

Talking about “reconciliation” and “looking forward rather than backward” is in itself a blatant political intrusion in the world of justice.  If Obama were not signaling to the heads of the Justice Committees in both houses of Congress (and the American people) that he would prefer for them to back off, then he simply would have affirmed his commitment to the rule of law and left it at that.

 

The evidence that is already in the public domain with respect to the knowingly false pretense for the invasion of Iraq, the high level authorization of torture, the extraordinary renditions, the wiretapping, the U.S. Attorney firings, etc. is so overwhelming that – in spite of the sacred principle of “innocent until proven guilty” – the American and world public cannot be faulted for demanding that the Nuremberg principles be applied to the neo-fascist Bush clique.  That former Vice President Cheney, who is universally considered to have been the Bush administration Godfather, has been making the rounds boasting about his role in committing in effect what are crimes against humanity, constitutes an open challenge to anyone who takes the rule of law seriously.  Given the literally millions of human beings whose lives have been destroyed or seriously debilitated by the actions of the Bush administration and the gross violations of constitutional and international law, the imperative for speedy justice within the context of due process is overwhelming.

 

What I fear is some kind of Truth Commission based on the premise of giving immunity for the sake of getting the truth out.  This, I believe, is what Obama was getting at with his “looking forward” remark and what Professor Boaz would like to see.  Such a notion mocks the concept and dignity of Justice.  It gives no closure to those who have suffered at the hands of high level war criminals and it has little or no deterrent effect.  What it is is politically expedient. 

 

Do I expect to ever see Bush, Cheney, Rumsfeld, Gonzales, Wolfowitz et. al. in a United States court of law charged with high crimes?  Honestly I do not (but I didn’t ever expect to see the election of an Afro-American president in my lifetime either).  But genuine truth, reconciliation and justice demand that such high crimes be investigated and prosecuted; those who suffered deserve justice; and the future of what is left of constitutional democracy is worth fighting for.

What is more, if President Barak Obama or anyone else acts in any way to impede or frustrate the carrying out of justice, they become to some extent complicit with the principal perpetuators.

UPDATE (May 1, 2009)

There has been a lot of -pardon the pun – wate(boarding) under the bridge since I wrote this piece in mid February.  If you surf around my Blog or the many Blogs I post on it, you will find dozens if not hundreds of articles on the issue of torture and criminal responsibility for it.  Just today, for example, I posted an excellent article by Glenn Greenwald that appeared in salon.com which documented the words of, of all people, Ronald Reagan, who, in introducing the law that made torture a serious crime in the United States, states that torture is a crime, with no exception for extraordinary circumstances (including, presumably, the phony “ticking time bomb” scenario).  Ronald Reagan!

 

Professor Boaz, who is the target of my criticism in the original article above, had argued that those of us demanding that now President Obama take criminal action against the Torturers were misunderstanding the role of the presidency.  Investigation and criminal prosecution in the bailiwick of the Judicial System, not the presidency she tells us.  I wonder what she is thinking now that President Obama has heard, tried and exonerated the CIA agents who carried out the war crime known as torture.

 

During the longest eight years in history that we lived through under Bush/Cheney, one felt that what was happening as if it were in the realm of the surreal.  Anti-war election results, and the war escalates (excuse me, surges).  Torture with impunity.  Habeas Corpus out the window.  Warrantless wiretapping.  An ideologically politicized Justice Department.  Signing Statements allowing the President to ignore laws passed by Congress.  Dr. Strangeglove figures such as Rumsfeld, Wolfowitz, Rice, Gonzales; and Darth Vader himself disguised as Dick Cheney, bunker and all.

 

May the goddess help me, I am having the same surrealistic dizziness all over again.  The Attorney General declares that waterboarding is torture.  Torture is a crime.  Therefore … do nothing about it.  The President releases evidence in the form of the infamous torture memos that, that along with photographic and other (International Red Cross, for example) evidence, leaves no doubt about the nature and extent of the torture; and then he proceeds to grant amnesty to those who committed the crimes.  They were only following orders, he says, as the Nuremburg amnesia sets in alongside the swine flu.  Pelosi and Reid want investigations … in secret (!).  The mainstream media, as it did under Bush/Cheney, plays along with the Alice in Wonderland fantasies, and the maniacs on the neo-Fascist Right have convinced a signficant percentage of Americans that torture is not a crime under “certain circumstances.”  The torture memos written by John Yoo and Jay Bybee are so patently phony and Kafkesque that Yoo is invited to teach law in Orange County and Bybee is made a Federal Judge.

 

It has been suggested that President Obama doesn’t feel there is the political will to prosecute the war criminals, which is why he has been so wishy-washy, but that he has released the tortue memos and is soon to release more photos as a way to achieve that will.  I don’t believe this, but that doesn’t matter.  Only by latching on to the the issue like a pit bull and refusing to let go can we who believe in Decency and Justice bring the American War Criminals to justice.

torture-with-bush

abu-ghraib-matthew-langley

 

 

 

 

Will War Crimes Be Outed? December 19, 2008

Posted by rogerhollander in Criminal Justice, George W. Bush, Human Rights, Iraq and Afghanistan, Torture, War.
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78244074WM004_Supreme_Court(Photo: Jean-Marc Bouju / pdnonline.com)

www.truthout.org

17 December 2008

by: Jeremy Brecher and Brendan Smith, The Nation

As the officials of the Bush administration pack up in Washington and move into their posh suburban homes around the country, will they be able to rest easy, or will they be haunted by the fear that they will be held accountable for war crimes?

    There are many reasons to anticipate that the incoming Obama administration and the new Congress will let sleeping dogs lie. Attention to criminal acts by the former administration would probably anger Republicans, whose support Obama is hoping to win for his first priority, his economic program. Democratic Congressional leaders have known a great deal about Bush administration lawlessness, and in some cases have even given it their approval–making an unfettered review seem unlikely.

    Some of Obama’s own top appointees would undoubtedly receive scrutiny in an unconstrained investigation–Obama’s reappointed defense secretary Robert Gates, for example, has had responsibility not only for Guantánamo but also for the incarceration of tens of thousands of Iraqis in prisons in Iraq like Camp Bucca, which the Washington Post described in a headline as “a Prison Full of Innocent Men,” without even a procedure for determining their guilt or innocence–unquestionably a violation of the Geneva Conventions in and of itself.

    But the repose of the Cheneys, Bushes, Gonzaleses and Rumsfelds may not turn out to be so undisturbed. In his notorious torture memo, Alberto Gonzales warned about “prosecutors and independent counsels” who may in the future decide to pursue “unwarranted charges” based on the US War Crimes Act’s prohibition on violations of the Geneva Conventions. While no such charges are likely to be brought anytime soon, neither are they likely to vanish. In the short run, Obama and his team face inescapable questions about the legal culpability of the Bush administration. And in the long run, such charges are likely to grow only more unavoidable once the former officials of that administration have lost the authority to quash them.

    In April Obama said that if elected, he would have his attorney general initiate a prompt review of Bush-era action to distinguish between possible “genuine crimes” and “really bad policies.”

    “If crimes have been committed, they should be investigated,” Obama told the Philadelphia Daily News. He added, however, that “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

    Obama’s nominee for attorney general, Eric Holder, speaking to the American Constitution Society in June, described Bush administration actions in terms that sound a whole lot more like “genuine crimes” than like “really bad policies”:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning.”

 

    A Reckoning?

    While attention has focused on whether, once president, Obama will move quickly to close Guantánamo, shut down secret prisons, halt rendition and ban torture, there’s a less visible struggle over whether and how to provide a reckoning for war crimes past.

    A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators.

    In a December 3 Chicago Sun-Times op-ed, law professors Anthony D’Amato (the Leighton Professor at Northwestern University School of Law) and Jordan J. Paust (the Mike & Thersa Baker Professor at the Law Center of the University of Houston) ask whether president-elect Barack Obama will have “the duty to prosecute or extradite persons who are reasonably accused of having committed and abetted war crimes or crimes against humanity during the Bush administration’s admitted ‘program’ of ‘coercive interrogation’ and secret detention that was part of a ‘common, unifying’ plan to deny protections under the Geneva Conventions.”

    They answer, “Yes.”

    “Under the US Constitution, the president is expressly and unavoidably bound to faithfully execute the laws.” The 1949 Geneva Conventions “expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty” and bring them before their own courts for “effective penal sanctions” or, if they prefer, “hand such persons over for trial to another High Contracting Party.”

    The statement is particularly authoritative–and particularly striking–because Paust is also a former captain in the United States Army JAG Corps and member of the faculty at the Judge Advocate General’s School.

    Michael Ratner of the Center for Constitutional Rights says that one of Barack Obama’s first acts as president should be to “instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.”

    Parallel to the legal community, members of Congress and president-elect Obama are trying to chart a strategy that avoids the appearance of seeking to punish Bush administration officials without appearing blatantly oblivious to their apparent war crimes. According to the AP’s Lara Jakes Jordan, “Two Obama advisors say there’s little–if any–chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.” Instead, “Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture.”

    Asked if Bush administration officials would face prosecution for war crimes, Senate Judiciary Chairman Patrick Leahy flatly said, “In the United States, no,” but he does intend to continue to investigate Bush administration officials and their interrogation policies. “Personally, I would like to know exactly what happened. Torture is going to be a major issue.”

Continue the Cover-Up?

 

    President-elect Obama may well seek to delay taking a stand for or against such accountability actions. But he is likely to be confronted early in his administration by choices about whether to continue or terminate legal cover-up operations the Bush administration currently has under way.

    For example, the Bush administration has blocked the civil suit against US officials by Canadian Maher Arar for his “rendition” to Syria and his torture there by invoking the “state secrets” privilege. According to Christopher Anders, senior legislative counsel for the ACLU, they have appointed a prosecutor to investigate the destruction of videotapes of CIA interrogations, but the investigation is limited only to whether crimes were committed in relation to the destruction of the tapes–not whether what was being videotaped is a crime. The administration has refused to cooperate with the trial of twenty-six Americans, mostly CIA agents, who kidnapped a terrorism suspect in Milan and flew him to Egypt where, he says, he was tortured. And they have refused to provide secret documents to the British High Court in the case of Guantánamo detainee Binyam Mohamed that may demonstrate that US officials were complicit in his torture in Morocco.

    If the Obama administration continues the Bush administration’s efforts to prevent investigators from investigating and courts from hearing such cases, it will rapidly become part of the cover-up. If it begins to, at a minimum, stop obstructing such proceedings, the result could be a rapid crumbling of the wall of silence the Bush administration has tried so assiduously to build around its “war on terror.”

    A bipartisan report issued by the Senate Armed Services Committee on December 11 will make it far more difficult to evade the responsibility of holding Bush administration officials legally accountable for war crimes. Released by Senators Carl Levin and John McCain after two years of investigation, the report concluded:

The abuse of detainees in US custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own…. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees…. Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.

 

    In an interview published in the Detroit News, Senator Levin said he was not responsible for deciding whether officials should be prosecuted for authorizing torture, but he admitted that there is enough evidence that victims of abuse could file civil lawsuits against their assailants. Levin also suggested that the Obama administration “needs to look for ways in which people can be held accountable for their actions.”

    An Accountability Movement

    Outside the Beltway, a movement to hold Bush administration officials accountable for torture and other war crimes after they leave office is gradually emerging. It received a boost when over a hundred lawyers and activists met in Andover, Massachusetts on September 20 at a conference entitled “Planning for the Prosecution of High Level American War Criminals.” The conference created an ongoing committee to coordinate accountability efforts. At the close, conference convener Dean Lawrence Velvel of the Massachusetts School of Law noted more than twenty strategies and specific actions that had been proposed, ranging from the state felony prosecutions proposed by former district attroney Vincent Bugliosi to the international prosecutions pioneered by the Center for Constitutional Rights’ Rumsfeld cases; and from impeaching Bush appointees like Federal Judge Jay Bybee to public shaming of torture-tainted former officials like ohn Yew, now a professor at the University of California Law School.

    One of proposals discussed at the Andover conference was the creation of a citizens’ War Crimes Documentation Center, modeled on the special office set up by the Allied governments before the end of World War II to investigate and document Nazi war crimes. Such a center could be the nexus for research, education and coordination of a wide range of civil society forces in the US and abroad that are demanding accountability. It could bring together the extensive but scattered evidence already available, to compile a narrative of what actually happened in the Bush administration. It could help or pressure Congress to conduct investigations to fill in the blanks. It could pull together high-profile coalitions to campaign around the issue of accountability for specific crimes like torture. If Obama does initiate some kind of investigating commission, such a center could provide it with information and help hold it accountable.

    A Moral Education

    There are a myriad of reasons for urgently holding the Bush regime to account, ranging from preventing unchallenged executive action from setting new legal precedent to providing a compelling rationale for the immediate cessation of bombing civilians in the escalating Afghan war.

    But the issue raised by Bush administration war crimes is even larger than any person’s individual crimes. As Thomas Paine wrote in Common Sense, “A long habit of not thinking a thing wrong gives it a superficial appearance of being right.” The long history of aggressive war, illegal occupation, and torture, from the Philippines to Iraq, have given the American people a moral education that encourages us to countenance war crimes. If we allow those who initiated and justified the illegal conquest and occupation of Iraq and the use of torture at Abu Ghraib and Guantánamo to go unsanctioned, we teach the world–and ourselves–a lesson about what’s OK and legal.

    As countries like Chile, Turkey and Argentina can attest, restoration of democracy, civic morality and the rule of law is often a slow but necessary process, requiring far more than simply voting a new party into office. It requires a wholesale rejection of impunity for the criminal acts of government officials. As Rep. Robert Wexler (D-FL) put it, “We owe it to the American people and history to pursue the wrongdoing of this administration whether or not it helps us politically…. Our actions will properly define the Bush Administration in the eyes of history.”

    ———

    Jeremy Brecher is a historian whose books include Strike!, Globalization from Below, and, co-edited with Brendan Smith and Jill Cutler, In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan/Holt). He has received five regional Emmy Awards for his documentary film work. He is a co-founder of WarCrimesWatch.org.

    Brendan Smith is a legal analyst whose books include Globalization From Below and, with Brendan Smith and Jill Cutler, of In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan). He is current co-director of Global Labor Strategies and UCLA Law School’s Globalization and Labor Standards Project, and has worked previously for Congressman Bernie Sanders (I-VT) and a broad range of unions and grassroots groups. His commentary has appeared in the Los Angeles Times, The Nation, CBS News.com, YahooNews and the Baltimore Sun. Contact him at smithb28@gmail.com.

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