URGENT ALERT – LYNNE STEWART DENIED COMPASSIONATE RELEASE BY FEDERAL BUREAU OF PRISONS DIRECTOR July 6, 2013Posted by rogerhollander in Criminal Justice, War on Terror.
Tags: Criminal Justice, John Ashcroft, john koeltl, lynne stewart, michael steven smith, ralph poynter, roger hollander, Sheik Abdel Rahman, war on terror
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June 25th, 2013
Lynne Stewart’ husband Ralph Poynter was informed by Lynne this morning that she received a three-paragraph letter from Kathleen Kenney, General Counsel for the Federal Bureau of Prisons in Washington, D.C.:
Compassionate Release has been denied on the grounds that Lynne’s “health is improving.”
This claim is at once cynical and false. Lynne Stewart’s cancer continues to spread in her lungs. She remains in isolation as her white blood cell count remains so low that she is at risk for generalized infection. She weakens daily.
A message from Lynne will be released imminently.
We call upon all committed to the effort to secure Lynne Stewart’s release and to save her life to stand by for further notice of the response from Lynne, her husband Ralph Poynter, and her family and her lawyers – announcing the next actions that we, her supporters, will launch in response to this appalling betrayal of compassion and justice.
The Sentencing of Lynne Stewart by Michael Steven Smith
Lynne Stewart is a friend. She used to practice law in New York City. I still do. I was in the courtroom with my wife Debby the afternoon of July 19th for her re-sentencing. Judge John Koeltl buried her alive.
We should have seen it coming when he told her to take all the time she needed at the start when she spoke before the sentence was read. It didn’t matter what she said. He had already written his decision, which he read out loud to a courtroom packed with supporters. It was well crafted. Bulletproof on appeal. He is smart and cautious.
After about an hour into his pronouncement, he came to the buried alive part. He prefaced it by citing the unprecedented 400 letters of support people had sent him, all of which he said he read. He noted Lynne’s three decades of service to the poor and the outcast. He stressed that she is a seventy-year-old breast cancer survivor with high blood pressure and other serious health problems. And then he laid it on her: 120 months.
Everyone in the courthouse divided 120 by 12. He had given her a death sentence, we all thought. She’ll never get out. He almost quadrupled the 28 month sentence he had originally pronounced. She had told him that 28 months was a horizon, that she had hope. But no more.
Lynne’s granddaughter gasped. Then started sobbing. She kept crying even as Judge John Koeltl kept reading. And reading. And reading. It was awful. The sentence was pitiless and cruel. How to understand it?
Lynne’s lawyer Jill Shellow Levine rose after the judge finished. She asked him why. He was candid. He was told to do it by his supervisors, the judges on the Court of Appeals for the Second Circuit. This court is an institution of the elite. It is considered the second highest court in America next to the Supreme Court because it presides over the financial center of the empire, not its capital, that is in D.C., but its real capital. This court makes policy and Lynne Stewart was to be made an example of in “the war against terrorism” just as a half a century before, in the same court, Ethel and Julius Rosenberg were condemned to death in the war against communism, told that they had caused the deaths of 50,000 U.S. soldiers in the Korean War, and found guilty of the ridiculous charge of “stealing the secret” of the atomic bomb, when there was no secret, it was only a matter of technology. The sentencing Judge Kaufman knew they would leave behind two orphan children, Robert and Michael, ages six and three.
In 1947 George Kennan, the ideological father of the cold war, wrote that the United States had but six per cent of the world’s population and fifty per cent of its wealth. The problem was to keep it. Anti-communism served as the ideological cover the U.S. ruling classes used. But communism ceased to exist after capitalism was restored in the Soviet Union in 1991. A new ideological cover has been constructed in the wake of the September 11th criminal attack on the World Tread Center and the Pentagon: the War against Terror. Nationalist opposition to U.S. economic and foreign policy in parts of the Arab world is no longer led by communists but by fundamentalist Muslims.
Lynne Stewart represented one of them, Sheik Abdel Rahman, who was the leading oppositionist to the U.S.-sponsored Mubarak dictatorship in Egypt, which gets more money from America than any other country in the world except Israel. In 1993, at the behest of the Egyptian government, Sheik Rahman was criminally indicted and later convicted of the crime of “sedition” for suggesting to a government informer that rather than blow up New York City landmarks he choose “a military target.” It was on the occasion of a post-conviction prison visit that Lynne helped her client. She released his statement to Reuters press service announcing his withdrawal of support for a ceasefire between his group and the Egyptian government. This was in violation of a Special Administrative Measure (SAMs) that Lynne had agreed to with the U.S. Government. She wasn’t supposed to be a medium for communication between her client and the outside world. She should have challenged the constitutionality of the SAMs, she now realizes, and not just have violated them.
She wasn’t prosecuted for what she did, not under the Clinton administration, nor during the first years of George W. Bush. Then came 9.11. Bush’s Attorney General John Ashcroft flew into New York City in 2003 and announced Lynne’s indictment on the David Letterman show. The crime? A novel one. Conspiracy to provide material aid to a terrorist organization. What was the material aid? Her client. When Ashcroft did that, as the nation’s highest law enforcement officer, he committed an ethical violation for which any other attorney would have been sanctioned. He made sure that from the very beginning of her ordeal Lynne Stewart never had a chance. Not with the level of fear the government was able to generate and the scare they put into her jury.
In 2006 she was convicted and sentenced. The maximum was 30 years, but thanks to the superb legal work of National Lawyers Guild attorneys Elizabeth Fink and Sarah Kunstler and the outpouring of public support Judge Koeltl gave her 28 months. The government appealed the sentence to their U.S. Court of Appeals. Game over. The selective prosecution of Lynne Stewart was accomplished.
Judge John Walker, George W. Bush’s first cousin, sits on that court. His family made their fortune selling munitions during WWI. He wrote that the 28 months was “shockingly low.” Judge Koeltl was given his orders. The seemingly kindly boyish-looking jurist about whom it was said that he walks to work and looks after an elderly mother—not exactly a sadistic old lady killer—then reversed himself and on the same evidence nearly quadruped the sentence, putting a seventy-year-old grandmother on chemotherapy away for ten years and two years’ probation after that for good measure. This is much more than meanness. It is ideology.
Michael Steven Smith is the co-host of the WBAI radio show Law and Disorder and sits on the Board of the Center for Constitutional Rights.
America’s Disappeared July 18, 2011Posted by rogerhollander in Argentina, Barack Obama, Criminal Justice, Human Rights, Latin America, Torture.
Tags: Alberto Gonzales, Argentina, barry mccaffrey, bush adminsitration, cheney, chris hedges, cia prisons, Condoleezza Rice, david addington, detainees, dirty war, disappeared, drone missiles, george tenet, habeas corpus, human rights, Human Rights Watch, jay bybee, John Ashcroft, john rizzo, john yoo, pakistan, predator missiles, rendition, roger hollander, rumsfeld, torture, william j. haynes
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Dr. Silvia Quintela was “disappeared” by the death squads in Argentina in 1977 when she was four months pregnant with her first child. She reportedly was kept alive at a military base until she gave birth to her son and then, like other victims of the military junta, most probably was drugged, stripped naked, chained to other unconscious victims and piled onto a cargo plane that was part of the “death flights” that disposed of the estimated 20,000 disappeared. The military planes with their inert human cargo would fly over the Atlantic at night and the chained bodies would be pushed out the door into the ocean. Quintela, who had worked as a doctor in the city’s slums, was 28 when she was murdered.(Illustration by Mr. Fish)
A military doctor, Maj. Norberto Atilio Bianco, who was extradited Friday from Paraguay to Argentina for baby trafficking, is alleged to have seized Quintela’s infant son along with dozens, perhaps hundreds, of other babies. The children were handed to military families for adoption. Bianco, who was the head of the clandestine maternity unit that functioned during the Dirty War in the military hospital of Campo de Mayo, was reported by eyewitnesses to have personally carried the babies out of the military hospital. He also kept one of the infants. Argentina on Thursday convicted retired Gen. Hector Gamen and former Col. Hugo Pascarelli of committing crimes against humanity at the “El Vesubio” prison, where 2,500 people were tortured in 1976-1978. They were sentenced to life in prison. Since revoking an amnesty law in 2005 designed to protect the military, Argentina has prosecuted 807 for crimes against humanity, although only 212 people have been sentenced. It has been, for those of us who lived in Argentina during the military dictatorship, a painfully slow march toward justice.
Most of the disappeared in Argentina were not armed radicals but labor leaders, community organizers, leftist intellectuals, student activists and those who happened to be in the wrong spot at the wrong time. Few had any connection with armed campaigns of resistance. Indeed, by the time of the 1976 Argentine coup, the armed guerrilla groups, such as the Montoneros, had largely been wiped out. These radical groups, like al-Qaida in its campaign against the United States, never posed an existential threat to the regime, but the national drive against terror in both Argentina and the United States became an excuse to subvert the legal system, instill fear and passivity in the populace, and form a vast underground prison system populated with torturers and interrogators, as well as government officials and lawyers who operated beyond the rule of law. Torture, prolonged detention without trial, sexual humiliation, rape, disappearance, extortion, looting, random murder and abuse have become, as in Argentina during the Dirty War, part of our own subterranean world of detention sites and torture centers.
We Americans have rewritten our laws, as the Argentines did, to make criminal behavior legal. John Rizzo, the former acting general counsel for the CIA, approved drone attacks that have killed hundreds of people, many of them civilians in Pakistan, although we are not at war with Pakistan. Rizzo has admitted that he signed off on so-called enhanced interrogation techniques. He told Newsweek that the CIA operated “a hit list.” He asked in the interview: “How many law professors have signed off on a death warrant?” Rizzo, in moral terms, is no different from the deported Argentine doctor Bianco, and this is why lawyers in Britain and Pakistan are calling for his extradition to Pakistan to face charges of murder. Let us hope they succeed.
We know of at least 100 detainees who died during interrogations at our “black sites,” many of them succumbing to the blows and mistreatment of our interrogators. There are probably many, many more whose fate has never been made public. Tens of thousands of Muslim men have passed through our clandestine detention centers without due process. “We tortured people unmercifully,” admitted retired Gen. Barry McCaffrey. “We probably murdered dozens of them …, both the armed forces and the C.I.A.”
Tens of thousands of Americans are being held in super-maximum-security prisons where they are deprived of contact and psychologically destroyed. Undocumented workers are rounded up and vanish from their families for weeks or months. Militarized police units break down the doors of some 40,000 Americans a year and haul them away in the dead of night as if they were enemy combatants. Habeas corpus no longer exists. American citizens can “legally” be assassinated. Illegal abductions, known euphemistically as “extraordinary rendition,” are a staple of the war on terror. Secret evidence makes it impossible for the accused and their lawyers to see the charges against them. All this was experienced by the Argentines. Domestic violence, whether in the form of social unrest, riots or another catastrophic terrorist attack on American soil, would, I fear, see the brutal tools of empire cemented into place in the homeland. At that point we would embark on our own version of the Dirty War.
Marguerite Feitlowitz writes in “The Lexicon of Terror” of the experiences of one Argentine prisoner, a physicist named Mario Villani. The collapse of the moral universe of the torturers is displayed when, between torture sessions, the guards take Villani and a few pregnant women prisoners to an amusement park. They make them ride the kiddie train and then take them to a cafe for a beer. A guard, whose nom de guerre is Blood, brings his 6- or 7-year-old daughter into the detention facility to meet Villani and other prisoners. A few years later, Villani runs into one of his principal torturers, a sadist known in the camps as Julian the Turk. Julian recommends that Villani go see another of his former prisoners to ask for a job. The way torture became routine, part of daily work, numbed the torturers to their own crimes. They saw it as a job. Years later they expected their victims to view it with the same twisted logic.
Human Rights Watch, in a new report, “Getting Away With Torture: The Bush Administration and Mistreatment of Detainees,” declared there is “overwhelming evidence of torture by the Bush administration.” President Barack Obama, the report went on, is obliged “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”
But Obama has no intention of restoring the rule of law. He not only refuses to prosecute flagrant war crimes, but has immunized those who orchestrated, led and carried out the torture. At the same time he has dramatically increased war crimes, including drone strikes in Pakistan. He continues to preside over hundreds of the offshore penal colonies, where abuse and torture remain common. He is complicit with the killers and the torturers.
The only way the rule of law will be restored, if it is restored, is piece by piece, extradition by extradition, trial by trial. Bush, Dick Cheney, Donald Rumsfeld, former CIA Director George Tenet, Condoleezza Rice and John Ashcroft will, if we return to the rule of law, face trial. The lawyers who made legal what under international and domestic law is illegal, including not only Rizzo but Alberto Gonzales, Jay Bybee, David Addington, William J. Haynes and John Yoo, will, if we are to dig our way out of this morass, be disbarred and prosecuted. Our senior military leaders, including Gen. David Petraeus, who oversaw death squads in Iraq and widespread torture in clandestine prisons, will be lined up in a courtroom, as were the generals in Argentina, and made to answer for these crimes. This is the only route back. If it happens it will happen because a few courageous souls such as the attorney and president of the Center for Constitutional Rights, Michael Ratner, are trying to make it happen. It will take time—a lot of time; the crimes committed by Bianco and the two former officers sent to prison this month are nearly four decades old. If it does not happen, then we will continue to descend into a terrifying, dystopian police state where our guards will, on a whim, haul us out of our cells to an amusement park and make us ride, numb and bewildered, on the kiddie train, before the next round of torture.
Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America. His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle.
Tags: cia, davic margolis, eric holder, geneva conventions, house judiciary, interrogation, jason leopold, jay bybee, John Ashcroft, John Conyers, john yoo, justice department, mary patrice brown, Michael Chertoff, nuremberg, olc, opr, patrick leahy, roger hollander, senate judiciary, special prosecutor, steven bradbury, torture, torture memo, waterboarding
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(Roger’s note: Harry Truman famously said, “The buck stops here.” This is a rare admission of accountability coming from government. The entire cover up of the notorious and illegal Cheney/Bush torture program, including the conviction of the likes of Lynndie England at Abu Ghraib and focusing on “rogue” CIA agents, is a typical government maneuver to shirk ultimate responsibility. Many of us thought the OPR report might finally give some satisfaction at a higher level, but the buck has been passed from President Obama to Attorney General Holder to Associate Deputy Attorney General David Margolis, who has put a kibosh on the findings that would have led to sanctions against Yoo and Bybee.
[Oct.9, 2009: Yoo and Bybee submit their responses to final report to Associate Deputy Attorney General David Margolis, who is tasked with reviewing OPR’s conclusions. http://www.mainjustice.com/2010/02/19/a-timeline-of-the-opr-report/ ]
My question is: who “tasked” David Margolis to whitewash the OPR report’s conclusions? Call my cynical, but could it have been Holder who was told by Obama to find a reliable subaltern to do the dirty deed?
I would also point out that the jurists who provoided the legal framework for Hitler’s halocaust were subject to accountability by the Nuremberg Tribunal along with the high level government officials who carried out the genocide. We can be thankful that the likes of Obama and Holder were not calling the shots then, which would have resulted in some low level “rogue Nazis” convicted and punished for the extinction of millions of Jews, Gypsies, Gays, communitsts, etc. while Hess, Goring, Bormann and the rest of the Hitler A Team got off scott free.)
Friday 19 February 2010
For background on Jason Leopold’s extensive work on the Yoo/Bybee torture memo report please see here, here, here, and here. Leopold will also be writing a through analysis of the voluminous report this weekend.
A long-awaited report into the legal memos former Justice Department attorneys John Yoo and Jay Bybee prepared for the Bush administration on torture was released Friday afternoon and concluded that the men violated “professional standards” and should be referred to state bar associations where a further review of their legal work could have led to the revocation of their law licenses.
But career prosecutor David Margolis, who reviewed the final version of the report, changed the disciplinary recommendations to “exercised poor judgment.” [There are three versions of the report, all of which can be found here.]
That means Yoo and Bybee will not be punished for having fixed the law around Bush administration policy that allowed the CIA to subject suspected terrorists to torture techniques, such as waterboarding, beatings, and sleep deprivation, as the report notes.
Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge. Former Justice Department official Steven Bradbury also authored several torture memos and was criticized in the OPR report. Investigators said they had “serious concerns about his analysis.” But the report did not charge him with ethical violations.
Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department’s criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation.
According to a January 5 memo Margolis sent to Attorney General Eric Holder, the Justice Department’s Office of Professional Responsibility (OPR) issued a final report on July 29, 2009 and “concluded that former Office of Legal Counsel (OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to provide ‘thorough, candid, and objective’ analysis in memoranda regarding the interrogation of detained terrorist suspects.”
Yoo specifically was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
The report says that Yoo believed that George W. Bush’s Commander-in-Chief powers gave him the authority to unilaterally order the mass murder of civilians.
In the final version of the report, an OPR investigator questioned Yoo about what he referred to as the “bad things opinion,” where Yoo discussed what the president could do during wartime.
“What about ordering a village of resistants to be massacred?” an OPR investigator asked Yoo. “Is that a power that the president could legally—”
“Yeah,” Yoo said.
“To order a village of civilians to be [exterminated]?” the questioner replied.
“Sure,” Yoo said.
But Margolis, who suggested Yoo and Bybee’s flawed legal work was due to efforts to prevent another 9/11, said he was “unpersuaded” by OPR’s “misconduct” conclusins and declined to endorse its findings.
An earlier version of the report rejected that line of reasoning.
“Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear,” says the earlier draft of the report from OPR head Mary Patrice Brown. Her report, like the original draft, was sharply critical of the legal work that went into the torture memos and found that it lacked “thoroughness, objectivity and candor.”
“OPR’s own framework defines ‘professional misconduct’ such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct,” Margolis wrote in the 69-page memo. “I am unpersuaded that OPR has identified such a standard. For this reason…I cannot adpot OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.”
Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration’s torture policy, Margolis said he did “not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions.”
“While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” Margolis added.
Margolis concluded his review, stating that “these memos contained some significant flaws.
“But as all that glitters is not gold, all flaws do not constitute professional misconduct,” he wrote. “The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the Department will make no referral.”
Margolis described himself in the memo as a “Department of Justice official who [beginning in the 1990s] has resolved challenges to negative OPR findings against former Department attorneys, most often in the context of proposed bar referrals.”
Yoo’s attorney, Miguel Estrada, said in an October 9, 2009 rebuttal to the final version of the report that “this perversion of the professional rules and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror.”
“But policy disputes are for the ballot box, not for the bar,” Estrada said. “Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security.”
Estrada claims that Yoo and Bybee were well aware of what the “CIA wanted” in the areas of subjecting detainees to brutal torture techniques.
“Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so,” he said.
OPR investigators noted that during the course of their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said that “most” of Yoo’s emails they sought during the critical time period the memos were drafted prior to August 2002 “had been deleted and were not recoverable.”
House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing to discuss the findings “shortly.”
In a statement accompanying the report, Conyers said the report makes clear that the torture memos “were legally flawed and fundamentally unsound.”
“Even worse,” Conyers said. “It reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this.”
Senate Judicary Chairman Patrick Leahy also condemned the findings and announced that he will hold a hearing on the report’s findings next Friday. In a statement, Leahy said the report “is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees.”
“The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country,” Leahy added. “I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.”
The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached and for Holder to order a criminal probe headed by a special prosecutor.
In a statement, CCR said the report makes it “makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program.”
“Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately,” CCR aaid. “We call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command.”
Jameel Jaffer, director of the ACLU’s National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”
“It also makes clear that the investigation initiated by the Justice Department last year, which focuses on ‘rogue’ interrogators, is too narrow,” Jaffer added. “Interrogators should be held accountable where they violated the law, but the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes. The Justice Department should immediately expand its investigation to encompass not just the interrogators who used torture but the senior Bush administration officials who authorized and facilitated it.”
Groups Seek Disbarment for Bush’s Top Lawyers May 18, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: Abu Ghraib, Alberto Gonzales, Alice Fisher, bagram, bush administation, david addington, disbarment, doj, douglas feith, eric holde, geneva conventions, Guantanamo, interrogation, jay bybee, John Ashcroft, john yoo, justice department, Michael Chertoff, michael mukasey, nuremberg, office of legal counsel, olc, roger hollander, stephen bradbury, Timothy Flanigan, torture, torture lawyers, torture memos, torture techniques, torture videos, War Crimes, William Haynes II
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CNN, May 18, 2009
Washington – A coalition of progressive groups sought Monday to have 12 Bush administration lawyers disbarred for their roles in crafting the legal rationale for so-called enhanced interrogation techniques that many view as torture.
Alberto Gonzales is among the former attorneys general named in the complaints.
“It is time to hold these lawyers accountable for violating their legal oath,” Kevin Zeese, an attorney for the coalition, said in a written statement.
“Just as the bar would suspend an attorney who advised a police officer to torture and brutalize a detained immigrant or criminal defendant, the bar must suspend these attorneys for advocating and causing the torture of war detainees. The disciplinary boards that hear these complaints must act or they will be seen as complicit in the use of torture.”
Zeese called disbarment “an important step toward the ultimate accountability of criminal prosecution.”
The group registered formal complaints against David Addington, John Ashcroft, Stephen Bradbury, Jay Bybee, Michael Chertoff, Douglas Feith, Alice Fisher, Timothy Flanigan, Alberto Gonzales, William Haynes II, Michael Mukasey and John Yoo.
Ashcroft, Gonzales and Mukasey served as attorney general in former President George W. Bush’s administration. Chertoff served as homeland security secretary.
The complaints, filed with the bars in California, the District of Columbia, New York, Pennsylvania and Texas, also seek other forms of disciplinary action in addition to disbarment.
A preliminary internal report on the Justice Department investigation into the authors of the Bush administration’s “torture memos” indicated that the federal government might also urge state bar associations to take sanctions against the memo writers, according to two government sources.
The draft, which has been sent to Attorney General Eric Holder for approval or revisions, reportedly does not call for criminal prosecutions.
Sources said investigators for the Justice Department’s ethics unit, the Office of Professional Responsibility, have focused heavily on internal communications involving Bradbury, Bybee and Yoo.
The three former Office of Legal Counsel lawyers were top officials who provided legal guidance, including permissible interrogation procedures to the CIA and other executive branch agencies. Guidance written by Bybee and Yoo in the aftermath of the September 11 attacks allowed for harsh interrogation techniques that later were withdrawn.
The draft report is said to be critical of Yoo and Bybee in particular.
Anatomy of Bush’s Torture ‘Paradigm’ April 16, 2009Posted by rogerhollander in George W. Bush, Torture, Criminal Justice, Dick Cheney.
Tags: John McCain, roger hollander, Alberto Gonzales, human rights, Abu Ghraib, torture techniques, torture, al-Qaeda, Dick Cheney, John Ashcroft, human rights violations, Colin Powell, Condoleezza Rice, George Bush, Taliban, eric holder, george tenet, executive order, justice department, carl levin, ricardo sanchez, waterboarding, john yoo, enhanced interrogation, david addington, geneva conventions, doj, richard clarke, special prosecutor, military commissions, detainee abuse, John Walker Lindh, senate armed services, donald rumsfeld, steven bradbury, olc, jack goldsmith, torture memos, richard myers, international red cross, william j. haynes, office legal counsel, ray mcgovern, habaes corpus, against all enemies, suspected terrorists, radack, prisoners of war, andrew card, james schlesinger, iraq detaines, anti-torture
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www.consortiumnewscom, April 14, 2009
The prose of the recently leaked report of the International Committee of the Red Cross on torture seems colorless. It is at the same time obscene — almost pornographic.
The 41-page ICRC report depicts scenes of prisoners forced to remain naked for long periods, sometimes in the presence of women, often with their hands shackled over their heads in “stress positions” as they are left to soil themselves.
The report’s images of sadism also include prisoners slammed against walls, locked in tiny boxes, and strapped to a bench and subjected to the drowning sensation of waterboarding.
How could it be that we Americans tolerate the kind of leaders who would subject others to systematic torture — yes, that’s what the official report of the international body charged with monitoring the Geneva agreements on the treatment of prisoners concludes — torture.
Over the past week I have been asked to explain how this could have happened; who authorized the torture in our name? The Red Cross report lacks the earmarks of rogues or “rotten apples” at the bottom of some barrel.
This is what I have been telling those who ask:
Rather than Harry Truman’s famous motto on his Oval Office desk, “The Buck Stops Here,” this was a case of “The Buck Starts Here.” President George W. Bush set the tone and created the framework, with strong support from Vice President Dick Cheney and Defense Secretary Donald Rumsfeld.
The first hints of what was in store came from the President himself in the White House bunker late on Sept. 11, 2001, at a meeting with his closest national security advisers after his TV address to the nation about the terrorist attacks that morning.
The vengeful bunker mentality prevailing at that meeting comes through clearly in the report of one of the participants, Richard Clarke in his book, Against All Enemies. Describing the President as confident, determined, forceful, Clarke provides the following account of what President Bush said:
“We are at war.… Nothing else matters. … Any barriers in your way, they’re gone.”
When, later in the discussion, Secretary Rumsfeld noted that international law allowed the use of force only to prevent future attacks and not for retribution, Bush nearly bit his head off.
“No,” the President yelled in the narrow conference room, “I don’t care what the international lawyers say, we are going to kick some ass.”
‘Taking the Gloves Off’
In the weeks that followed, the air in Washington hung heavy with demons of retribution. Afghanistan was invaded in October 2001, and during a prisoner uprising on Nov. 25, a CIA officer was killed there.
A young American citizen, John Walker Lindh, was discovered among the prisoners in the area. There was not the slightest evidence that Lindh had anything to do with the killing.
But documents show that U.S. Joint Special Operations troops were told that the office of the Defense Secretary’s counsel (William J. Haynes II, was Pentagon general counsel at the time) had authorized an Army intelligence officer “to take the gloves off and ask whatever he wanted” of Lindh.
Despite urgent intervention by Justice Department ethics attorney Jesselyn Radack, Lindh was not properly read his rights. Instead, the FBI agent on the scene ad-libbed in an offhand way, “You have the right to an attorney. But there are no attorneys here in Afghanistan.”
Lindh had been seriously wounded in the leg. Despite that, U.S. troops put a hood over him, stripped him naked, duct-taped him to a stretcher for days in an unheated and unlit shipping container, and threatened him with death.
Parts of his humiliating ordeal were captured on film (a practice that became tragically familiar with the photos of Abu Ghraib).
In her book, Canary in the Coalmine: Blowing the Whistle in the Case of John Walker Lindh, attorney Radack comments that official documents pertaining to this case provide “the earliest known evidence that the Bush Administration was willing to push the envelope on how far it could go to extract information from suspected terrorists.”
(Because she protested, Radack was fired as Justice Department legal ethics advisor, put under criminal investigation, and even added to the “no-fly” list.)
End-Run Around Geneva
But the Bush administration was just getting started.
On Jan. 18, 2002, White House Counsel Alberto Gonzales advised the President that the Justice Department had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply with respect to al Qaeda.
Gonzales added that he understood that Bush had “decided that GPW does not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW.”
On Jan. 19, 2002, Defense Secretary Rumsfeld told combat commanders that the President had “determined that al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.”
Secretary of State Colin Powell asked the President to reconsider his decision and to conclude, instead, that the GPW does apply to both al Qaeda and the Taliban. But Powell’s protest was couched in bureaucratic politeness, rather than in anger and outrage. [See Consortiumnews.com’s “Cowardice in the Time of Torture.”]
The next step took the form of the fateful memorandum of Jan. 25, 2002, signed by Alberto Gonzales but drafted by counsel to the Vice President David Addington. That memo outlined for the President “the ramifications of your decision and the Secretary’s [Powell’s] request for reconsideration.”
It described a “new paradigm” that, the writers claimed “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners, and renders quaint some of its provisions.”
Gonzales and Addington urged the President to disregard Powell’s misgivings and move ahead. But they cloaked their argument in lawyerly language that obscured what was to come.
The lawyers argued that it was “appropriate” and “consistent with military necessity” to waive Geneva regarding the treatment of al Qaeda and Taliban detainees, but they inserted assurances that the prisoners would be treated “humanely” and “in a manner consistent with the principles of GPW.”
Brushing aside Powell’s objections, President Bush adopted the Gonzales/Addington language and signed a memorandum to that effect on Feb. 7, 2002. The memo went to Vice President Cheney, Secretary of State Powell, Defense Secretary Rumsfeld, Attorney General John Ashcroft, Chief of Staff to the President Andrew Card, Director of Central Intelligence George Tenet, Assistant to the President for National Security Affairs Condoleezza Rice, and Joint Chiefs Chairman Gen. Richard Myers.
The memo amounted to an executive order, although it was not labeled as such. In it, the President alludes fulsomely to Justice Department opinions and recommendations, as well as “facts” supplied by the Defense Department.
Bush then takes clear responsibility for the decision to spurn Geneva: “I determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees. … I determine that Taliban detainees … do not qualify as prisoners of war under Article 4 of Geneva … and that al Qaeda detainees also do not qualify as prisoners of war.”
The Feb. 7, 2002, memo bears the Orwellian title “Humane Treatment of al Qaeda and Taliban Detainees.” In it, Bush lifts verbatim the language from the Gonzales/Addington memo of Jan. 25, 2002, and makes it his own.
Bush claimed, for example, “the war against terrorism ushers in a new paradigm [that] requires new thinking in the law of war.”
Bush then tries to square a circle, directing (twice in the two-page memo) that “detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of GPW.”
The smoking-gun memorandum of Feb. 7, 2002, was released to the media, together with other documents, by Gonzales on June 22, 2004, but it did not receive the attention it deserved until recently.
On Dec. 11, 2008, Sen. Carl Levin, D-Michigan, and Sen. John McCain, R-Arizona, ranking members of the Senate Armed Services Committee, released, without dissent, the summary of their committee’s report on the abuse of detainees.
The report’s first subhead was: Presidential Order Opens Door to Considering Aggressive Techniques, and the first words of the first sentence of the first paragraph were, “On Feb. 7, 2002, President Bush signed a memorandum stating…”
Referring to the “President’s order,” the first paragraph adds that “the decision to replace well-established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees.”
“Conclusion Number One” of the Senate Armed Services Committee report states: “Following the President’s determination [of Feb. 7, 2002], techniques such as waterboarding, nudity, and stress positions … were authorized for use in interrogations of detainees in U.S. custody.”
Once Bush had opened the door with his Feb. 7, 2002, memo, other actions followed to implement the President’s “new paradigm.”
White House lawyers worked with Deputy Assistant Attorney General John Yoo of the Office of Legal Counsel to develop constitutional theories about expansive presidential powers that effectively let Bush operate beyond the law.
The OLC traditionally is the office that tells presidents the limits of their constitutional authorities. However, in this case, Yoo collaborated with Gonzales, Addington and other White House lawyers in hammering out arguments that the administration could use to implement harsh interrogations of al Qaeda suspects.
On Aug. 1, 2002, Yoo and his OLC superior, Assistant Attorney General Jay Bybee, issued an opinion that so narrowly defined “torture” that it cleared the way for a variety of “enhanced interrogation techniques,” including waterboarding, which creates a near-drowning experience.
As the legal framework for Bush’s torture policies took shape, senior officers and lower-level participants in the interrogations understood that the basis for the newly permitted harsh tactics stemmed from a presidential decision.
In a report on Abu Ghraib prisoner abuses, former Defense Secretary James Schlesinger indicated that Lt. Gen. Ricardo Sanchez, the top commander in Iraq, instituted a “dozen interrogation methods beyond” the Army’s standard practice under the Geneva Convention.
Sanchez said he based his decision on “the President’s memorandum,” which he said allowed for “additional, tougher measures” against detainees, according to the Schlesinger report.
An FBI e-mail of May 22, 2004, from a senior FBI agent in Iraq stated that President Bush had signed an Executive Order approving the use of military dogs, sleep deprivation and other tactics to intimidate Iraqi detainees.
The FBI official sought guidance in confronting an unwelcome dilemma. He asked if FBI personnel in Iraq were required to report the U.S. military’s harsh interrogation of detainees when such treatment violated Bureau standards but fit within the guidelines of a presidential Executive Order.
In sum, abundant evidence indicates that the torture techniques applied in the jail cells and interrogation chambers — the “alternative set of procedures” about which Bush boasted publicly on Sept. 6, 2006 — resulted directly from Bush’s Feb. 7, 2002, memo and implementing actions by his administration.
Interrogators also were egged on by comments from Bush, Cheney and Rumsfeld regarding the “tough” treatments they favored.
One fig leaf left covering the otherwise exposed role of Bush and his top aides remains the clever inclusion of the word “humane” in the memo that made possible what the International Committee of the Red Cross condemned as “inhuman” treatment of terror suspects in U.S. custody.
There’s also the-Justice-Department-told-me-it-was-legal excuse, though the evidence is now clear that the Bush administration essentially stage-managed the Yoo-Bybee opinions.
For instance, when the Yoo-Bybee opinions were withdrawn by Bybee’s OLC successor, Assistant Attorney General Jack Goldsmith, Addington and other administration officials successfully pressured Goldsmith to resign and then welcomed a new OLC chief, Steven Bradbury, who reinstated the key opinions in May 2005.
And – as the evidence built of illegal torture in 2006 – the Bush administration pushed the “Military Commissions Act” through the Republican-controlled Congress with phrasing that granted a degree of retroactive immunity.
The law states that “no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.”
That provision was interpreted as a broad amnesty for U.S. officials, including President Bush and other senior executives who may have authorized torture, murder or other violations of human rights.
The law also granted Bush the authority “to interpret the meaning and the application of the Geneva Conventions.” [For details, see Consortiumnews.com’s “Shame on Us All.”]
However, there remain legal questions about whether the law’s language would prevent prosecutions under pre-existing anti-torture laws.
The sudden appearance of the damning report by the International Committee of the Red Cross, initially given to the CIA’s acting general counsel on Feb. 14, 2007, greatly complicates any rotten-apples-at-the-bottom-of-the-barrel-type disingenuousness.
In a departure from the usual diplomatic parlance, the ICRC minces not a word in referring to those who authorized torture. In the report itself, the Red Cross calls on current U.S. authorities “to punish the perpetrators, where appropriate, to prevent such abuses from happening again.”
What do you suppose is holding Attorney General Eric Holder back from appointing an independent prosecutor to investigate, with a view toward rubbing out, once and for all, this shameful stain on our collective conscience?
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in inner-city Washington. An Army officer and CIA analyst for almost 30 years, he now serves on the Steering Group of Veteran Intelligence Professionals for Sanity.
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Cowardice in the Time of Torture April 5, 2009Posted by rogerhollander in Dick Cheney, Torture.
Tags: al-Qaeda, Alberto Gonzales, bronx, bronxites, Colin Powell, cowadice, david addington, Dick Cheney, douglas feith, eric holder, geneva conventions, John Ashcroft, john yoo, legal torture, nation of cowards, president obama, ray mcgovern, roger hollander, rule of law, special prosecutor, Taliban, torture, torture memos, waterboarding
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Published on Sunday, April 5, 2009 by ConsortiumNews.com
I used to take a certain pride by association with prominent Bronxites who have “made it.” Cancel that for Attorney General Eric Holder and former Secretary of State Colin Powell.
You might think that as African-Americans, they would be especially outraged by torture, given what blacks have suffered at the hands of white torturers in this country and abroad.
Why is it that they seem to value more their admittance into a privileged white-dominated ruling class than doing the right thing? How else to explain their stunning reluctance to hold torturers accountable and thus remove the stain of torture from our nation’s soul and reputation?
One might say that Attorney General Holder is proving himself to be part of that “nation of cowards” that he called the United States in a different context, i.e. our unwillingness to address the issue of race. What about when the victims of torture are Muslims? Where’s Holder’s courage then?
Surely, I was not the only one stunned by former Vice President Dick Cheney’s public admission that he helped authorize waterboarding of detainees. But, on reflection, there seems to have been a method to his madness; and, so far at least, the method seems to be working.
Have Holder and Colin Powell forgotten from their days growing up in the Bronx the typical reaction of bullies when caught in the act? “Okay, so waddaya gonna do ‘bout it!” It was an attempt at intimidation, and it was generally effective with those who felt not quite up to the challenge.
Looks very much as if Cheney sized up Holder correctly. During his confirmation hearings, Holder manfully agreed with Sen. Patrick Leahy that waterboarding, which subjects a person to the panicked gag reflex of drowning, is torture.
But Holder has been out to lunch since then, no doubt leaving Cheney and his torture-friendly friends smirking at having been correct in taking the measure of the new Attorney General. Call it chutzpah, intimidation, bullying – whatever; it does seem to be working.
Cheney endorsing waterboarding; Holder labeling it torture; and – Hello? Anyone home? Deafening silence.
Never mind that Holder, like President Barack Obama, took a solemn oath to faithfully execute the laws of the land. Why are they still afraid of Dick Cheney, whom even the neo-con editors of the Washington Post in 2005 branded “Vice President for Torture?”
Holder seems to be taking his cue from the pitiable Colin Powell, now traversing the country giving lucrative speeches on leadership. Powell knew he was welcome into the club, or in this case the White House, only as long as he toed the line and was willing to offer up what was left of his reputation to the Bush/Cheney war effort.
True, in one brief spurt of behind-the-scenes assertiveness, Powell insisted that arch-prevaricator (and former CIA director) George Tenet sit behind him during Powell’s unforgettable/unforgivable speech at the UN on Feb. 5, 2003.
Could he have been so unaware as to think this might somehow shame the shameless Tenet into coming clean with the intelligence?
No way; and he knew it. Powell had already confided to then-British Foreign Secretary Jack Straw that the case against Iraq was what in the Bronx we call a “crock.”
I know Powell. In the early 1980s, when he wore but one star as military assistant to the Secretary of Defense – and I was a CIA intelligence briefer – I used to do him the courtesy of pre-briefing him, to the extent I could, on what I was about to discuss during my early-morning one-on-ones with his boss, Casper Weinberger. I found Powell to be anything but naïve.
He and I had a good bit in common – growing up at about the same time a mile from each other in the Bronx, “Distinguished Military Graduates” commissioned via Army R.O.T.C. – he from City College in 1958, I from Fordham in 1961.
Initially, I was blissfully unaware of the many times he had compromised himself – in doing Weinberger’s bidding on Iran-Contra, for example. And so in 1989, I took a certain pride by association when Powell made it to the very top as chairman of the Joint Chiefs of Staff.
That pride dissipated quickly as I watched Powell bend to those who were bent on launching a war of aggression on Iraq. Republican elder statesman James Baker, who was secretary of state under George H.W. Bush, has referred to Powell as the one person who could have stopped that war. Baker is right.
Caving on Torture
More to the point, Colin Powell betrayed the U.S. Army and the nation on the issue of torture.
When he got a whiff of the tortured reasoning for torture – being urged on the President by the likes of Alberto Gonzales and David Addington to somehow make torture “legal” – Powell took the coward’s way out.
He had his lawyer get in touch with the Mafia-type lawyers in the White House to ask them please, could they please ask the President to reconsider his decision to exempt al-Qaeda and the Taliban from the protections of the Geneva Convention on the Treatment of Prisoners of War.
Powell’s gentle demurral appears in a MEMORANUM FOR THE PRESIDENT, dated Jan. 25, 2002, drafted by Addington but signed by Gonzales. They included Powell’s argument in a paragraph at the bottom of a list of “negative” consequences of ignoring Geneva:
“A determination that Geneva does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.”
Powell got that right. Too bad he did not have the courage of his convictions. Too bad he lacked the guts to confront the President directly. Too bad, for he is perhaps the one person who could have stopped the torture and the debasement of the Army to which he owed so much.
Rather than put into play the wide respect he still enjoyed, in order to stop a war he knew to be illegal, Powell decided to trade in that respect for the equivalent of 30 pieces of silver.
As the Executive Summary of the Senate Armed Services Committee report on torture, released on Dec. 12, 2008, indicates, President Bush threw in his lot with the early opinions of Addington and Gonzales.
(What most folks don’t realize is that this was long before everyone’s favorite bête noire John Yoo and associates served up their ex post facto “justifications.”)
Incorporating Addington’s language, the President signed an executive order on Feb. 7 that, in the words of the Senate committee, “opened the door” to torture.
Powell not only acquiesced in this but also allowed himself to be sucked into a series of discussions in the White House Situation Room regarding which torture techniques might be most appropriate to apply to which “high-value” detainee.
Those are the sessions that then-Attorney General John Ashcroft referred to in commenting, “history will not be kind” to us.
What brings this painful flashback to mind is Rachel Maddow’s interview with Colin Powell on April 2. Not surprisingly, he danced around her questions about the White House seminars on torture. Most telling of all, however, Powell could not bring himself to admit, even now, that waterboarding is torture.
On April 3, former Undersecretary of Defense for Policy Douglas Feith, the fabulous fabricator of the fabled Saddam-al-Qaeda connection, upped the ante in the “so-wattaya gonna-do-‘bout-it” challenge, and held up to ridicule the timidity of Holder and the President.
Writing in the Wall Street Journal, Feith pretended to be shocked at the temerity of a Spanish court that seems to be on the verge of bringing criminal charges against Feith, Gonzales, Addington, John Yoo, and two other lawyers who served up the desired opinions on how the White House could make an end-run around domestic and international law and approve the systematic torture of detainees.
Disregarding the provisions of international law that clearly do apply, Feith makes liberal use of reductio ad absurdum to “prove” that Spain has no jurisdiction to put Americans on trial for torture.
More important, Feith is so cocksure of himself that he throws down the gauntlet at the feet of the new administration: “If President Barack Obama and the prosecutors see a crime to be prosecuted, they can act.”
What, I wonder, gives Feith such confidence that he will not one day rue having said that? Has it been his watching of a long line of timid officials – both Republicans and Democrats – who lack the courage of their convictions?
Clearly, the Cheneys and Feiths of this world are betting on Obama being cut of the same cloth. The President will prove them right if it turns out that his oft-repeated “No one is above the law” proves to be just rhetoric.
And it will remain just rhetoric, if Obama delays much longer in ordering the reluctant Holder to appoint a nonpartisan, independent special prosecutor to bring the torturers to justice and end this shameful chapter in American history once and for all.
Obstruction of Justice March 30, 2009Posted by rogerhollander in Criminal Justice, Racism.
Tags: bush administration, chris hedges, Criminal Justice, gordon kromberg, injustice, John Ashcroft, judge brinkema, judge moody, judicial lynching, judicial system, kucinich, obstruction of justice, patriot act, racism, racism justice, roger hollander, rule of law, sami amin al-arian
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Published on Monday, March 30, 2009 by TruthDig.com
U.S. District Judge Leonie M. Brinkema is scheduled to issue a ruling in the Eastern District of Virginia at the end of April in a case that will send a signal to the Muslim world and beyond whether the American judicial system has regained its independence after eight years of flagrant manipulation and intimidation by the Bush administration. Brinkema will decide whether the Palestinian activist Dr. Sami Amin Al-Arian, held for over six years in prison and under house arrest in Virginia since Sept 2, is guilty or innocent of two counts of criminal contempt.
Brinkema’s ruling will have ramifications that will extend far beyond Virginia and the United States. The trial of Al-Arian is a cause célèbre in the Muslim world. A documentary film was made about the case in Europe. He has become the poster child for judicial abuse and persecution of Muslims in the United States by the Bush administration. The facts surrounding the trial and imprisonment of the former university professor have severely tarnished the integrity of the American judicial system and made the government’s vaunted campaign against terrorism look capricious, inept and overtly racist.
Government lawyers made wild assertions that showed a profound ignorance of the Middle East and exposed a gross stereotyping of the Muslim world. It called on the FBI case agent, for example, who testified as an expert witness that Islamic terrorists were routinely smuggled over the border from Iran into Syria, apparently unaware that Syria is separated from Iran by a large land mass called Iraq. The transcripts of the case against Al-Arian-which read like a bad Gilbert and Sullivan opera-are stupefying in their idiocy. The government wiretaps picked up nothing of substance; taxpayer dollars were used to record and transcribe 21,000 hours of banal chatter, including members of the Al-Arian household ordering pizza delivery. During the trial the government called 80 witnesses and subjected the jury to inane phone transcriptions and recordings, made over a 10-year period, which the jury curtly dismissed as “gossip.” It would be comical if the consequences were not so dire for the defendant.
A jury, on Dec. 6, 2005, acquitted Dr. Al-Arian on eight of the counts in the superseding indictment after a six-month trial in the U.S. District Court for the Middle District of Florida. On the 94 charges made against the four defendants, there were no convictions. Of the 17 charges against Al-Arian-including “conspiracy to murder and maim persons abroad”-the jury acquitted him of eight and was hung on the rest. The jurors, who voted 10 to 2 to acquit on the remaining charges, could not reach a unanimous decision calling for his full acquittal. Two others in the case, Ghassan Ballut and Sameeh Hammoudeh, were acquitted of all charges.
The trial result was a public relations disaster for the Bush White House and especially then-Attorney General John Ashcroft, who had personally announced the indictment and reportedly spent more than $50 million on the case. The government prosecutors threatened to retry Al-Arian. The Palestinian professor accepted a plea bargain that would spare him a second trial, agreeing that he had helped people associated with Palestinian Islamic Jihad with immigration matters. It was a very minor charge given the high profile of the case. The U.S. Attorney’s Office for the Middle District of Florida and the counterterrorism section of the Justice Department agreed to recommend to the judge the minimum sentence of 46 months. But U.S. District Judge James S. Moody Jr., who made a series of comments during the trial that seemed to condemn all Muslims, sentenced Al-Arian to the maximum 57 months. In referring to Al-Arian’s contention, for example, that he had only raised money for Palestinian Islamic Jihad’s charity for widows and orphans, the judge told the professor that “your only connection to orphans and widows is that you create them.”
I spent an afternoon with Dr. Al-Arian in his small apartment in Arlington, Va., on Friday. His lawyers have asked that he make no public statements about his case. But we talked widely about the Middle East, the new Israeli government, the siege of Gaza, our families and the changes he hopes will come with an Obama administration. He sat on a couch wearing an electronic monitoring bracelet on his ankle, thankful to be with his wife and children after being shuttled between jails across the South and kept for 45 months in solitary confinement during his five-and-a-half-year ordeal. But he remains perplexed, as are many, by the gross miscarriage of justice and the ferocity of the government’s campaign to smear him with terrorism charges.
The government originally sought a standard cooperation provision as part of the final plea agreement. Al-Arian objected. He refused to plead guilty if he had to cooperate with the Justice Department. The Justice Department-including lawyers from the counterterrorism section of Main Justice-then negotiated to take out the cooperation provision in return for a longer sentence on the one count. That was the deal. He was to have been held in jail until April 2007 and then deported. But that never happened.
Right-wing ideologues, led by Assistant United States Attorney Gordon Kromberg, had no intention of letting him leave the country. Kromberg, a staunch supporter of Israel, arranged to keep Dr. Al-Arian behind bars even after he had finished serving his sentence. He blocked the deportation and subpoenaed Al-Arian to appear in Virginia to testify in an unrelated investigation of a Muslim think tank. This subpoena was a clear violation of the original plea bargain, and Al-Arian, heeding the advice of his lawyers, refused to give in to Kromberg’s demands. This led Kromberg to set in motion the newest charges of criminal contempt. Criminal contempt, bolstered by something called terrorism enhancement under Patriot Act II, is the only charge in U.S. statutes that does not carry a maximum penalty. The enhanced criminal contempt charge increases Al-Arian’s sentence from the usual 14 to 21 months for criminal contempt to a staggering 17 to 24 years for obstructing a state terrorism investigation. A handful of members of the House, including Jim Moran and Dennis Kucinich, have denounced Kromberg’s newest attempt to orchestrate a judicial lynching.
Kromberg, like many involved in the case, has also repeatedly made derogatory and insulting comments about Muslims. When Al-Arian’s lawyers asked Kromberg to delay the transfer of the professor to Virginia, for example, because of the Muslim holy month of Ramadan, they were told “if they can kill each other during Ramadan they can appear before the grand jury.” Kromberg, according to an affidavit signed by Al-Arian’s attorney, Jack Fernandez, also said: “I am not going to put off Dr. Al-Arian’s grand jury appearance just to assist in what is becoming the Islamization of America.”
Judge Brinkema, in one of the rare examples of judicial courage during this saga, defied the government to allow Al-Arian out on bail.
The case against Al-Arian, in the eyes of the grand inquisitors like Kromberg, is a battle against a culture and a religion that they openly denigrate and despise. This racism, the driving engine behind the campaign against Al-Arian, mocks the integrity of the American judicial system. Let us hope that in a few weeks we will witness a new era. Justice delayed is better than justice denied. We owe Dr. Al-Arian, and ourselves, a return to the rule of law.
Cheney War Crimes: Just Look at the Statute March 26, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney.
Tags: antonio taguba, criminal code, cruel inhuman, Dick Cheney, eric holder, extraordinary interrogation, geneva conventions, human rights, John Ashcroft, matthew rothschild, nation of laws, president obama, roger hollander, rule of law, torture, War Crimes, waterboarding
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Published on Wednesday, March 25, 2009 by The Progressive
President Obama needs to tell Attorney General Eric Holder to indict Dick Cheney, right now, for war crimes.
Just look at the statute, Title 18 of the U.S. Criminal Code, Section 2441. It says that someone is guilty of a war crime if he or she commits a “grave breach of common Article 3″ of the Geneva Conventions. And then it defines what a grave breach would be.
One such breach is torture, or the conspiracy to commit torture, which Cheney was clearly in on, as when he repeatedly defended waterboarding and talked about the need to go to the “dark side” Here’s the language from the statute: “The act of a person who commits, or conspires to commit, an act specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.”
Another grave breach is “cruel or inhuman treatment,” or the conspiracy to inflict such treatment. Again, Cheney was supervising such treatment in the White House, which would qualify as committing this crime. One time, it got so ghoulish that Attorney General John Ashcroft asked the other principals, “Why are we talking about this in the White House? History will not judge this kindly.”
Here’s the language on “cruel or inhuman treatment”: “The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering . . . including serious physical abuse, upon another within his custody or control.”
An additional breach is “mutilation or maiming.” Since some detainees say they no longer have the complete functioning of arms or limbs, Cheney may be on the hook here, too. “The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons . . . by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb or organ of his body, without any legitimate medical or dental purpose.”
“Intentionally causing serious bodily harm” is yet another grave breach. The statute defines this as: “The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.”
For each of these offenses, Cheney could receive life in prison, according to the statute.
That is where he belongs.
And it’s time for Obama to stop pussyfooting around. He should indict, arrest, and prosecute Cheney.
“There is no longer any doubt as to whether the current administration has committed war crimes,” said Major General Antonio Taguba, USA (Ret.), in the preface to the Physicians for Human Rights report, “Broken Laws, Broken Lives“. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
That question is now firmly on Obama’s desk.
And if he continues to dodge it, he’ll make a sick joke of the pious claim that we are a nation of laws, not men.
Get Away From Those Spinning Doors February 8, 2009Posted by rogerhollander in Barack Obama, Political Commentary.
Tags: beltwa, citizens for responsibility, crew, daschle, home depot, influence peddling, John Ashcroft, lobyists, lucent technolgies, michael winship, Nancy Killefer, president obama, Raytheon, registered lobbyists, revolving door, Robert Gates, roger hollander, spencer abraham, spinning doors, Tom Ridge, tommy thompson, William J. Lynn
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07 February 2009, www.truthout.org
by: Michael Winship, t r u t h o u t | Perspective
Not even three weeks in office and President Barack Obama is discovering that being in charge is no bed of roses, even when you have a garden of them just outside your Oval Office windows. February’s frost has bitten a bit of the bloom off the new president’s aspirations as the swamp of hypocrisy and partisan inertia that is Beltway Washington took its toll.
Weighed down by tax return problems and charges of DC influence-peddling, former Senate Majority Leader Tom Daschle pulled out as President Obama’s candidate for secretary of Health and Human Services – just as the president was trying to accelerate momentum for Senate passage of his economic stimulus plan, and the Republicans were equally trying to slam on the brakes.
Daschle’s withdrawal, coupled with the same day, tax-inflicted stepping down of Nancy Killefer, who was to be the White House’s chief performance officer, forced Obama to use a lightning round of network interviews he’d intended as stimulus promotion to defend himself against charges that his oratorical hopes of cleaning up government and solving all its problems had hit a speed bump.
The resulting “I screwed up” mea culpas were refreshing in a town where shifting blame to the other guy is the standard modus operandi. But whether contrition for the cameras, combined with President Obama’s continued high popularity, can translate into forward-moving action remains unknown. By week’s end, Obama had dropped his conciliatory tone of bipartisanship and gone on the attack to try to rescue the stimulus package.
But one thing the Daschle affair and the problems with other Obama appointments makes clear is that while new administrations come and go, what hasn’t changed – yet – is the phenomenon of the revolving door, the back-and-forth fandango of lobbyists moving into government jobs at the same time that officials out of power parlay their resumes into suites on K Street. Republicans and Democrats, liberals and conservatives – all are guilty.
A recent report from the nonpartisan organization CREW, Citizens for Responsibility and Ethics in Washington, found that of 24 men and women who served as cabinet members during the Bush administration, seventeen of them left office and raced to private sector jobs with some 119 companies. Sixty-five of those businesses spend money lobbying the United States government – and 40 are directly hitting up government agencies the former cabinet secretary was in charge of.
Former Attorney General John Ashcroft started his own lobbying firm. Energy Secretary Spencer Abraham joined the board of Occidental Petroleum. Tom Ridge, the first secretary of Homeland Security, is well-known for his involvement with companies profiting from the fear of terrorist attack or natural disaster, including Lucent Technologies and Home Depot, where duct tape is king.
But the poster boy seems to be former Health and Human Services Secretary Tommy Thompson, whom CREW says has worked for 42 different companies since he left the Bush cabinet in 2005. They include Centene Corporation, which runs Medicaid plans in seven states; the pharmaceutical company Novartis; and even an operation called Whey Cool Health Foods. Logistics Health, a medical readiness company of which Thompson is president, saw its federal contracts go from $19.9 million in 2003 to $104.8 million in 2007. The company claims Thompson never contacted folks at Health and Human Services on its behalf, but Logistics’ founder and chairman told a Wisconsin newspaper, “Tommy really is able to get us in to see the right people.”
Maybe you thought the in-and-out revolving door would shudder to a halt with a new president who vowed to clean up Dodge and campaigned on the promise that no lobbyist would find job security in the White House. The day after his swearing-in, President Obama signed an executive order barring former lobbyists in government positions from overseeing anything related to their past business interests.
Apparently, that presidential executive order comes with an asterisk: no lobbyists in charge – except when they are. Take Deputy Secretary of Defense-designate William J. Lynn III, former executive and lobbyist with Raytheon, world’s largest manufacturer of guided missiles, including the Patriot missile. Raytheon received more than $10 billion in defense contracts last year. Lynn says he lobbied for “only a handful” – missiles, destroyers, warheads, a radar system, a spy satellite. Some handful. But because both the President and Defense Secretary Robert Gates insist he’s the only man for the job, Lynn’s been given a waiver.
Also please give a big welcome to anti-tobacco lobbyist William Corr, the newly designated number two at Health and Human Services. He insists he’ll stay out of any HHS business that has to do with tobacco, won’t even yell at anyone smoking in the elevator. We’ll see.
According to The Washington Times, nearly two dozen of President Obama’s executive-level appointments have worked as registered lobbyists. “Even the toughest rules require reasonable exceptions.” That was the explanation of White House Press Secretary Robert Gibbs. True, there’s an argument to be made for bringing in people with expertise and experience in maneuvering the mazelike intricacies of big government. But with so much money at stake, so much power too easily corrupted, the perpetual revolving door remains a big problem.
Ah, sigh the jaded cynics and opportunists who spawn along the shores of the Potomac, the more things stay the same, so what can you do? What you can do is speak up, and, as the late Molly Ivins would say, keep raising hell. Otherwise, that breeze you’ll feel blowing out of Washington will never be the winds of change; just a fetid gust generated by Beltway blusters of hot air and the endless spin of those damned revolving doors.
Michael Winship is senior writer of the weekly public affairs program Bill Moyers Journal, which airs Friday nights on PBS. Check local airtimes or comment at The Moyers Blog at www.pbs.org/moyers.
Tags: al-Qaeda, cia, Colin Powell, condolezza rice, constitution, convention against torutre, detainees, Dick Cheney, eric holder, george tenet, glenn greenwald, goerge bush, Guantanamo, intrrogation, John Ashcroft, justice department, mukasey, nuremberg, paul drugman, Qahtani, roger hollander, ronald reagan, rule of law, simulated drowning, susan crawford, torture, treaties, waterboarding
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Glenn Greenwald, www.salon.com
(updated below – Update II)
It seems fairly easy — even for those overtly hostile to the basic rules of logic and law — to see what conclusions are compelled by these clear premises:
Bush administration officials from Vice President Dick Cheney on down signed off on using harsh interrogation techniques against suspected terrorists after asking the Justice Department to endorse their legality, The Associated Press has learned.
The officials also took care to insulate President Bush from a series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved. . . .
The meetings were held in the White House Situation Room in the years immediately following the Sept. 11 attacks. Attending the sessions were Cheney, then-Bush aides Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security adviser Condoleezza Rice.
The administration of US President George W. Bush authorized the CIA to waterboard Al-Qaeda suspects according to two secret memos issued in 2003 and 2004, The Washington Post reported Wednesday.
President-elect Barack Obama’s nominee for attorney general said unequivocally Thursday that waterboarding is torture . . .
Early on he was asked whether waterboarding, a technique that makes a prisoner believe he is in danger of drowning, constitutes torture and is illegal.
“If you look at the history of the use of that technique, ” Holder replied, “we prosecuted our own soldiers for using it in Vietnam. . . . Waterboarding is torture.”
The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”
“We tortured [Mohammed al-] Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.”
“Torture is a crime,” Mr. Mukasey said in an interview Friday . . . .
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . .
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
“No one is above the law.”
These premises — conclusively established by undisputed news reports and the statements of the person about to become the country’s top law enforcement officer as well as a top Bush official — are clear, and the conclusions they compel are inescapable. The Bush administration authorized, ordered and practiced torture. The U.S., under Ronald Reagan, legally obligated itself to investigate and prosecute any acts of torture committed by Americans (which includes authorization of torture by high level officials and also includes, under Article 3 of the Convention, acts of “rendering” detainees to countries likely to torture, as the Bush administration unquestionably did).
All of the standard excuses being offered by Bush apologists and our political class (a virtual redundancy) — namely: our leaders meant well; we were facing a dangerous enemy; government lawyers said this could be done; Congress immunized the torturers; it would be too divisive to prosecute — are explicitly barred by this treaty (i.e., binding law) as a ground for refusing to investigate and prosecute acts of torture.
This is also why the standard argument now being offered by Bush apologists (such as University of Chicago Law Professor Eric Posner, echoing his dad, Court of Appeals Judge Richard Posner in Chicago) as to why prosecutions are unnecessary — namely: there is “prosecutorial discretion” that should take political factors into account in order not to prosecute — are both frivolous and lawless. The Convention explicitly bars any such “discretion”: “The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall . . . submit the case to its competent authorities for the purpose of prosecution.” The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke (“we were dealing with real threats; there were ‘exceptional circumstances’ that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on”).
International treaties which the U.S. signs and ratifies aren’t cute little left-wing platitudes for tying the hands of America. They’re binding law according to the explicit mandates of Article VI of our Constitution. Thus, there simply is no way to (a) argue against investigations and prosecutions for Bush officials and simultaneously (b) claim with a straight face to believe in the rule of law, that no one is above the law, and that the U.S. should adhere to the same rules and values it attempts to impose on the rest of the world. Last week, Paul Krugman stated about as clearly as possible why this is so:
I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.
It’s just as simple as that. Once Eric Holder stated unequivocally that waterboarding is torture, and once a top Bush official used the word “torture” to describe what the U.S. did at Guantanamo using authorized techniques other than waterboarding, the “discretion” to investigate and prosecute disappeared– at least for people who believe in the most basic precepts of the rule of law and equality under it, Western principles of justice established at Nuremberg, and the notion that the U.S. is bound by the treaties it signs. There simply is no way to argue against investigations and prosecutions (and no way to argue that we should use torture-obtained evidence against Guantanamo detainees) without fully rejecting all of those principles.
While many Americans, especially American political elites, may be eager to overlook the implications of immunizing Bush officials for these crimes (as citizens typically are eager to avoid having their leaders branded as torturers and war criminals), it’s rather difficult to understand how people think that we’re going to “send a message to the world” about the restoration of American values as we deliberately protect the people who have systematically tortured and thereby transparently violate the core provisions of this Convention. Doesn’t that conduct rather clearly send the exact opposite message?
It seems to me that these facts imply that if Barack Obama, or his administration, believe that there are reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution, if the officials who committed or sanctioned those acts are found on US territory. If they are on the territory of some other party to the Convention, then it has that obligation. Under the Convention, as I read it, this is not discretionary. And under the Constitution, obeying the laws, which include treaties, is not discretionary either.
It’s just not possible to argue with that. In light of Holder’s testimony, the “if” component of Hilzoy’s argument — “if Barack Obama, or his administration believe that there are reasonable grounds to believe that members of the Bush administration have committed torture . . . .” — is now a certainty. In Slate, Dahlia Lithwick and Phillipe Sands made a similar argument regarding Bush official Susan Crawford’s statement that the U.S. “tortured” Mohammed al-Qahtani: “These states [who are parties to the Convention] must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions.”
While those who argue that the U.S. was right to torture because it’s the U.S. that did it are expressing a repugnant form of exceptionalism, at least they’re being honest — far more so than those who argue that Bush officials shouldn’t be investigated or prosecuted while paying deceitful lip service to “the rule of law” and the idea that “no one is above the law.”
UPDATE II: Several commenters note, correctly, that the U.S. Senate, in 1994, ratified the Convention by specifying that its provisions were not self-executing, but instead, required specific legislation implementing its provisions. As this 2004 Report from the Congressional Research Service (.pdf) details (beginning at page CRS-4), Congress enacted legislation to do exactly that, with minor reservations not relevant to the argument here.