Justice Dept. Gives Torture a Pass July 21, 2011Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
Tags: Alberto Gonzales, cia prisons, CIA torture, Criminal Justice, detainees, eric holder, International law, jay bybee, john yoo, lynndie england, nuremberg, olc, peter weiss, roger hollander, torture, torture memos, waterborading
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What will we say when other governments follow our example by providing immunity from prosecution to torturers?
The Romans had an expression for it: “Nulla poena sine lege,” no punishment without a law. But people sometimes forget that the opposite is also true: Without punishment for offenders, a law itself can die.
The Justice Department recently announced that, of the 101 cases involving alleged illegal treatment of post-9/11 detainees by the CIA and its contractors, 99 were being closed. The remaining two, which involved deaths in custody, would continue to be investigated.
The decision to drop virtually all these cases is based on a policy promulgated by Attorney General Eric Holder shortly after he took office. Reiterating this policy on June 30, Holder wrote that the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”
This refers to the infamous “torture memos” provided in 2002 to Alberto Gonzales while he was White House counsel by John Yoo, then Deputy Assistant Attorney General and Jay Bybee, who was Assistant Attorney General and now serves as a judge on the Court of Appeals for the Ninth Circuit. These memos, which sanctioned virtually all forms of “enhanced interrogation” (or torture, in common parlance), were withdrawn as legally deficient by Jack Goldsmith, President George W. Bush’s head of the Office of Legal Counsel, and specifically disavowed later by President Barack Obama himself.holder
Holder’s recent move is completely consistent with Obama’s insistence on looking “forward, not back” when it comes to accountability for torture. Prosecuting most of these cases would require seriously examining the perpetrators’ faith that the Yoo memos acted as a “golden shield,” as one Bush administration official called them. But the law says that this defense, “the defense of superior orders,” doesn’t work when the act in question is palpably or manifestly illegal.
It didn’t work for Lt. William Calley when he and his platoon killed over 300 women, children, and elderly men in the village of My Lai during the Vietnam War. It didn’t work for Lynndie England, the hapless army reservist convicted of torturing and abusing detainees at Abu Ghraib.
And it didn’t work for most of the defendants at Nuremberg.
Why should it now work for CIA agents and others who relied “in good faith” on the torture memos? The journalist Christopher Hitchens was himself waterboarded by Special Forces soldiers to help him decide whether it was torture. His conclusion: “If waterboarding does not constitute torture, then there is no such thing as torture.” Indeed, since the Spanish inquisition, waterboarding has never been considered anything other than torture, and in this century torture is absolutely forbidden under both domestic and international law.
And waterboarding is only one of several torture techniques used by U.S. personnel in the years following 9/11, including prolonged sleep deprivation, shackling in stress positions, and exposure to extreme cold and heat. All of these have been largely or completely abandoned under the Obama administration. But what lesson are we to draw from the fact that no prosecutions have been started, nor are likely to start, against those who authorized and practiced them? What will we say when other governments follow our example by providing immunity from prosecution to torturers on the basis of phony, made-to-order legal memos?
June 30, 2011 will go down as a dark day in the annals of the struggle against torture.
Tags: Abu Ghraib, cheney, cia prisons, convention against torture, detainees, doj, eric holder, george busy, george tenet, Guantanamo, hrw, human rights, International law, justice department, naseema noor, olc, rendition, roger hollander, rumsfeld, torture, torture memos, waterboarding
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Published on Tuesday, July 12, 2011 by Inter Press Service
WASHINGTON – Senior officials under the former George W. Bush administration knowingly authorized the torture of terrorism suspects held under United States custody, a Human Right Watch (HRW) report released here Tuesday revealed.
Titled “Getting Away with Torture”, the 107-page report presents a plethora of evidence that HRW says warrants criminal investigations against former Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, former Central Intelligence Agency (CIA) Director George Tenet and Bush himself, among others. (photo: pantagrapher)
Titled “Getting Away with Torture”, the 107-page report presents a plethora of evidence that HRW says warrants criminal investigations against former Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, former Central Intelligence Agency (CIA) Director George Tenet and Bush himself, among others.
Newly de-classified memos, transcriptions of congressional hearings, and other sources indicate that Bush officials authorized the use of interrogation techniques almost universally considered torture – such as waterboarding – as well as the operation of covert CIA prisons abroad and the rendition of detainees to other countries where they were subsequently tortured.
HRW also criticized the United States under the current Barack Obama administration for failing to meets it obligations under the United Nations Convention Against Torture to investigate acts of torture and other inhumane treatment.
“President Obama has defended the decision not to prosecute officials in his predecessor’s administration by arguing that the country needs ‘to look forward, not backward,’” said HRW executive director Kenneth Roth. “[He] has treated torture as an unfortunate policy choice rather than a crime.”
To date, both the Bush and Obama administrations have successfully prevented courts from reviewing the merits of torture allegations in civil lawsuits by arguing that the cases involve sensitive information, which, if revealed, might endanger national security.
Last year, Bush defended the use of waterboarding on the grounds that the Justice Department deemed it legal. In 2002, lawyers in the Office of Legal Counsel had drafted memos approving the legality of a list of abusive interrogation techniques, including waterboarding. However, HRW documents evidence that shows senior administration officials pressured the politically-appointed lawyers to write these legal justifications.
“Senior Bush officials shouldn’t be allowed to shape and hand-pick legal advice and then hide behind it as if were autonomously delivered,” Roth said.
HRW further recommends that Congress establish an independent, nonpartisan commission to examine the mistreatment of detainees in U.S. custody since the Sept. 11, 2001 terrorist attacks against the World Trade Center and the Pentagon and compensate victims of torture, as required by the U.N. Convention Against Torture.
“Without [a commission], torture very much remains within the toolbox of accepted policies. People are not going to back away from it until there is accountability,” Karen Greenberg, executive director of New York University’s Center on Law and Security and author of “The Least Worst Place: Guantanamo’s First 100 Days”, told IPS.
In 2009, U.S. Attorney General Eric Holder appointed a special prosecutor to investigate detainee abuse, but limited the mandate to only “unauthorized” acts, which effectively excluded violations like waterboarding and forcing prisoners to maintain stress positions that were approved by the Bush administration.
But on Jun. 30 of this year, the Justice Department announced that it would continue probing only two of nearly 100 allegations of torture. The open cases involve the deaths of two men – Manadel al-Jamadi, an Iraqi, and Gul Rahman, an Afghan – in CIA custody.
Human and civil rights group criticized the narrow scope of the torture investigations, while HRW said they failed to address the systematic character of the abuses.
“The U.S. government’s pattern of abuse across several countries did not result from acts of individuals who broke the rules,” Roth said. “It resulted from decisions made by senior U.S. officials to bend, ignore, or cast aside the rules.” If the U.S. does not pursue criminal investigations, HRW is urging other countries to exercise universal jurisdiction under international law and prosecute the aforementioned officials.
A number of former detainees have already taken this step by filing criminal complaints in courts outside of the U.S.
In February 2011, alleged victims of torture living in Switzerland planned to file a suit against Bush, causing him to cancel his trip there.
Another investigation is underway in Spain, where the Center for Constitutional Rights and the European Center for Constitutional and Human Rights requested a subpoena for a former commander of the Abu Ghraib prison to explain his role in the alleged torture of four detainees.
Washington’s failure to investigate its own citizens for abuses like torture ultimately undercuts its efforts to hold other governments accountable for human rights violations, according to HRW.
“The U.S. is right to call for justice when serious international crimes are committed in places like Darfur, Libya, and Sri Lanka, but there should be no double standards,” Roth said.
“When the U.S. government shields its own officials from investigation and prosecution, it makes it easier for others to dismiss global efforts to bring violators of serious crimes to justice,” he added.
Failing to prosecute ultimately sends the message that “if you are powerful, you can get away with even torture,” Greenberg said.
The always-expanding bipartisan Surveillance State May 20, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy.
Tags: aclu, bipartisan, civil liberties, democracy, doj, eric holder, free speech, glenn greenwald, justice department, national security, obama administration, olc, patriot act, roger hollander, state secrets, surveillance state, war on terror, whistel blowers, whistle-blowers, whistleblowers
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When I wrote earlier this week about Jane Mayer’s New Yorker article on the Obama administration’s war on whistleblowers, the passage I hailed as “the single paragraph that best conveys the prime, enduring impact of the Obama presidency” included this observation from Yale Law Professor Jack Balkin: “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state.“ There are three events — all incredibly from the last 24 hours — which not only prove how true that is, but vividly highlight how it functions and why it is so odious.
First, consider what Democrats and Republicans just jointly did with regard to the Patriot Act, the very naming of which once sent progressives into spasms of vocal protest and which long served as the symbolic shorthand for Bush/Cheney post-9/11 radicalism:
Top congressional leaders agreed Thursday to a four-year extension of the anti-terrorist Patriot Act, the controversial law passed after the Sept. 11 attacks that governs the search for terrorists on American soil.
The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government. . . .
From its inception, the law’s increased surveillance powers have been criticized by liberals and conservatives alike as infringements on free speech rights and protections against unwarranted searches and seizures.
Some Patriot Act opponents suggest that Osama bin Laden’s demise earlier this month should prompt Congress to reconsider the law, written when the terrorist leader was at the peak of his power. But the act’s supporters warn that al-Qaida splinter groups, scattered from Pakistan to the United States and beyond, may try to retaliate.
“Now more than ever, we need access to the crucial authorities in the Patriot Act,” Attorney General Eric Holder told the Senate Judiciary Committee.
This will be the second time that the Democratic Congress — with the support of President Obama (who once pretended to favor reforms) — has extended the Patriot Act without any changes. And note the rationale for why it was done in secret bipartisan meetings: to ensure “as little debate as possible” and “to avoid a protracted and familiar argument over the expanded power the law gives to the government.” Indeed, we wouldn’t want to have any messy, unpleasant democratic debates over “the expanded power the law gives to the government.” Here we find yet again the central myth of our political culture: that there is too little bipartisanship when the truth is there is little in Washington but that. And here we also find — yet again — that the killing of Osama bin Laden is being exploited to justify a continuation, rather than a reduction, in the powers of the National Security and Surveillance States.
Next we have a new proposal from the Obama White House to drastically expand the scope of “National Security Letters” — the once-controversial and long-abused creation of the Patriot Act that allows the FBI to obtain private records about American citizens without the need for a subpoena or any court approval — so that it now includes records of your Internet activities:
White House proposal would ease FBI access to records of Internet activity
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. . .
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.” . . .
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.
The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. “You’re bringing a big category of data — records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information — outside of judicial review,” said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.
So first they conspire with the GOP to extend the Patriot Act without any reforms, then seek to expand its most controversial and invasive provisions to obtain the Internet activities of American citizens without having to bother with a subpoena or judicial approval — “they” being the Democratic White House.
Most critically, the government’s increased ability to learn more and more about the private activities of its citizens is accompanied — as always — by an ever-increasing wall of secrecy it erects around its own actions. Thus, on the very same day that we have an extension of the Patriot Act and a proposal to increase the government’s Internet snooping powers, we have this:
The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.
The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department’s Office of Legal Counsel violated federal open-records laws by refusing to release the memo.
The suit was prompted in part by McClatchy’s reporting that highlighted the existence of the memo and the department’s refusal to release it. Earlier this year, McClatchy also requested a copy and was turned down.
The decision not to release the memo is noteworthy because the Obama administration — in particular the Office of Legal Counsel — has sought to portray itself as more open than the Bush administration was. By turning down the foundation’s request for a copy, the department is ensuring that its legal arguments in support of the FBI’s controversial and discredited efforts to obtain telephone records will be kept secret.
What’s extraordinary about the Obama DOJ’s refusal to release this document is that it does not reveal the eavesdropping activities of the Government but only its legal rationale for why it is ostensibly permitted to engage in those activities. The Bush DOJ’s refusal to release its legal memos authorizing its surveillance and torture policies was unquestionably one of the acts that provoked the greatest outrage among Democratic lawyers and transparency advocates (see, for instance, Dawn Johnsen’s scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: “reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”
The way a republic is supposed to function is that there is transparency for those who wield public power and privacy for private citizens. The National Security State has reversed that dynamic completely, so that the Government (comprised of the consortium of public agencies and their private-sector “partners”) knows virtually everything about what citizens do, but citizens know virtually nothing about what they do (which is why WikiLeaks specifically and whistleblowers generally, as one of the very few remaining instruments for subverting that wall of secrecy, are so threatening to them). Fortified by always-growing secrecy weapons, everything they do is secret — including even the “laws” they secretly invent to authorize their actions — while everything you do is open to inspection, surveillance and monitoring.
This dynamic threatens to entrench irreversible, absolute power for reasons that aren’t difficult to understand. Knowledge is power, as the cliché teaches. When powerful factions can gather unlimited information about citizens, they can threaten, punish, and ultimately deter any meaningful form of dissent: J. Edgar Hoover infamously sought to drive Martin Luther King, Jr. to suicide by threatening to reveal King’s alleged adultery discovered by illicit surveillance; as I described earlier today in my post on New York’s new Attorney General, Eliot Spitzer was destroyed in the middle of challenging Wall Street as the result of a massive federal surveillance scheme that uncovered his prostitution activities. It is the rare person indeed with nothing to hide, and allowing the National Security State faction unfettered, unregulated intrusive power into the private affairs of citizens — as we have been inexorably doing — is to vest them with truly awesome, unlimited power.
Conversely, allowing government officials to shield their own conduct from transparency and (with the radical Bush/Obama version of the “State Secrets privilege”) even judicial review ensures that National Security State officials (public and private) can do whatever they want without any detection and (therefore) without limit or accountability. That is what the Surveillance State, at its core, is designed to achieve: the destruction of privacy for individual citizens and an impenetrable wall of secrecy for those with unlimited surveillance power. And as these three events just from the last 24 hours demonstrate, this system — with fully bipartisan support — is expanding more rapidly than ever.
- More: Glenn Greenwald
Tags: contituion, Criminal Justice, dawn johnsen, fran quigley, Guantanamo, legal counsel, obama administation, olc, roger hollander, rule of law, torture
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Last month, Indiana University Maurer School of Law Professor Dawn Johnsen withdrew as the nominee to head the U.S. Justice Department’s Office of Legal Counsel.
Johnsen’s statement cited “lengthy delays and political opposition,” and indeed several Senators openly opposed her nomination, including Senator Jeff Sessions of Alabama, the Senate Judiciary Committee’s ranking Republican member.
But Johnsen may have faced less obvious barriers as well.
The Office of Legal Counsel, where Johnsen worked during the Clinton administration, has been described as the constitutional conscience of the executive branch of government. Ironically, it was also the source during the Bush administration of the so-called “torture memos,” which used shoddy and disingenuous legal reasoning to approve illegal acts of torture.
Johnsen was one of the most eloquent and passionate critics of this breach of duty. “OLC, the office entrusted with making sure the President obeys the law, instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted,” she wrote.
Johnsen has been equally outspoken in calling for the current president to openly disclose past torture and reject any retroactive immunity for crimes committed during the Bush administration.
As civil rights lawyer and Slate.com columnist Glenn Greenwald points out, these views may have seemed fine to the President when he nominated Johnsen over a year ago, but they became increasingly at odds with an Obama administration that continues to detain prisoners indefinitely without charges, claims authority to assassinate U.S. citizens, and has gone to court to block civil claims by torture victims and the release of photographs depicting torture.
“Virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done,” Greenwald wrote after her nomination was withdrawn.
“If you were Barack Obama and were pursuing the policies that he ended up pursuing, would you want Dawn Johnsen in charge of the office which determines the scope of your legal authority as President?”
Probably not, which may explain why Obama never pushed too hard for a Senate vote to approve Johnsen. A Senate Democratic leadership source told ABC News that, in this particular nomination, the Obama administration “didn’t have the stomach for the debate.”
Perhaps the debate they really dreaded was the one that would have occurred if Dawn Johnsen assumed the legal watchdog role in the White House. Presidential counsel Greg Craig left his position in January, reportedly forced out because he advocated that Obama stick to his promises to close Guantanamo Bay and fully disclose evidence of torture crimes.
Johnsen would have been at least as loyal to the rule of law as Craig was. Saying “no” to the president, Johnsen once wrote, “is OLC’s core job description.”
It seems President Obama may not want someone to tell him no, even if that person is pointing to the Constitution at the time.
© 2010 The Indianapolis Star
Quigley is an Indianapolis attorney working on local and international poverty issues. His column appears in The Indianapolis Star every other Monday.
The death of Dawn Johnsen’s nomination April 11, 2010Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
Tags: bush administration, civil liberties, congress, constitution, Criminal Justice, dawn johnsen, democrats, due process, executive power, FISA, illegal surveillance, imperial presidency, indefinite detention, legal counsel, obama nominee, Obama presidency, olc, presidential power, rule of law, state secrecy, terrorism, torture, war on terror
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(updated below – Update II)
After waiting 14 months for a confirmation vote that never came, Dawn Johnsen withdrew today as President Obama’s nominee to head the Office of Legal Counsel. As I documented at length when the nomination was first announced in January, 2009, Johnsen was an absolutely superb pick to head an office that plays as vital a role as any in determining the President’s record on civil liberties and adherence to the rule of law. With 59 and then 60 Democratic votes in the Senate all year long (which included the support of GOP Sen. Richard Lugar, though the opposition of Dem. Sen. Ben Nelson and shifting positions from Arlen Specter), it’s difficult to understand why the White House — if it really wanted to — could not have had Johnsen confirmed (or why she at least wasn’t included in the spate of recently announced recess appointments).
I don’t know the real story behind what happened here — I had an email exchange with Johnsen this afternoon but she was only willing to provide me her official, pro forma, wholly uninformative statement — but here’s what I do know: virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:
The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.
What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that ”opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.” Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President ”must not do”?
I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.
UPDATE: ABC News‘ Jake Tapper quotes an anonymous “Senate Democratic leadership source” regarding a Senate vote to confirm Johnsen: ”Bottom line is that it was going to be close. If they wanted to, the White House could have pushed for a vote. But they didn’t want to ’cause they didn’t have the stomach for the debate.” Take that anonymous quote for what it’s worth, but what is clear is that they were very close to having the votes last year if they did not in fact have them (when the Senate had 60 Democrats plus Lugar’s support) and, in any event, could have included her among last month’s recess appointments. Had there been real desire to secure her confirmation, it seems likely it would have happened; at the very least, a far greater effort would have been made.
UPDATE II: Dave Weigel, now of The Washington Post, becomes the latest to observe the core similarity between the Obama and Bush/Cheney approaches to civil liberties, Terrorism and national security. If you were Barack Obama and were pursuing the policies that he ended up pursuing, would you want Dawn Johnsen in charge of the office which determines the scope of your legal authority as President?
Defining Torture March 13, 2010Posted by rogerhollander in Torture.
Tags: Abu Ghraib, Abu Zubaydah, al-Qaeda, andy worthington, bagram, cia, david margolis, detainees, eric holder, geneva conventions, Guantanamo, guantanamo files, International law, interrogation, jay bybee, john yoo, justice department, nuremberg, olc, opr, roger hollander, susan crawford, torture, torture memos, waterboarding
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Monday 01 March 2010
It’s now over two weeks since veteran Justice Department (DOJ) lawyer David Margolis dashed the hopes of those seeking accountability for the Bush administration’s torturers, but this is a story of such profound importance that it must not be allowed to slip away.
Margolis decided that an internal report into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of “professional misconduct,” and should be referred to their bar associations for disciplinary action.
Instead, Margolis concluded, in a memo that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DOJ’s ethics watchdog, that Yoo and Bybee had merely exercised “poor judgment.” As lawyers in the Office of Legal Counsel (OLC), which is charged with providing objective legal advice to the executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”
Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person …
Obsessed with finding ways in which “severe pain” could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques – waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation – might cause “significant psychological harm of significant duration,” or physical pain rising to a level that a judge might regard as torture.
In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the “high-value detainees” in Guantánamo have been prevented – first under Bush, and now under Obama – from revealing anything publicly about their clients.
However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration’s military commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.
An even more pertinent example is Abu Zubaydah, a supposed high-value detainee, held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah’s case may well be the most shocking in Guantánamo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, “al-Qaeda’s chief of operations,” but was, instead, a “kind of travel agent” for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.
Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute “significant psychological harm of significant duration.” Margolis wrote:
No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah’s mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.
Moreover, when it came to defining physical torture, the OPR report’s authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts’ decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture “of an especially cruel and even sadistic nature,” and, as the authors noted, he also argued that only ‘acts of an extreme nature’ that were ‘well over the line of what constitutes torture’ have been alleged in TVPA cases.”
The authors continued:
Thus, the memorandum asserted, “there are no cases that analyze what the lowest boundary of what constitutes torture.”[sic]
That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated and held at gunpoint, constituted torture with respect to one claimant.
A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the DC District Court held, “Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of ‘torture’ in the Torture Victim Protection Act.” The judges based their ruling on the following:
David Daliberti and William Barloon allege that they were “blindfolded, interrogated and subjected to physical, mental and verbal abuse” while in captivity. They allege that during their arrests one of the agents of the defendant threatened them with a gun, allegedly causing David Daliberti “serious mental anguish, pain and suffering.” During their imprisonment in Abu Ghraib prison, Daliberti and Barloon were “not provided adequate or proper medical treatment for serious medical conditions which became life threatening.” The alleged torture of Kenneth Beaty involved holding him in confinement for eleven days “with no water, no toilet and no bed.” Similarly, Chad Hall allegedly was held for a period of at least four days “with no lights, no window, no water, no toilet and no proper bed.” Plaintiffs further proffer that Hall was “stripped naked, blindfolded and threatened with electrocution by placing wires on his testicles … in an effort to coerce a confession from him.”
Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun and deprivation of water, in one case for 11 days, none of which feature in the OLC’s memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantánamo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.
Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators.
Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in “severe pain or suffering, whether physical or mental,” which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.
First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, “We prosecuted our own soldiers for using it in Vietnam.” With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.
In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA’s high-value detainees (as revealed in the leaked International Committee of the Red Cross (ICRC) report based on interviews with the 14 men transferred to Guantánamo from secret CIA prisons in September 2006) completes a picture that surely “shocks the conscience” more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.
Should any further doubts remain about the definition of torture – and how it was implemented in the “War on Terror” – these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantánamo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.
Crawford told Woodward that the reason she had not pressed charges against Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three other men, was because he was tortured in Guantánamo.
“We tortured Qahtani,” she said. “His treatment met the legal definition of torture.”
“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” Crawford explained. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.
As I explained in an article at the time:
Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.
In addition, as I explained in my book The Guantánamo Files:
The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently – sometimes as often as three times a day – and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.
The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the high-value detainees had been subjected in CIA custody – on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani’s well-publicized ordeal – it is clear from the ICRC report on the high-value detainees that their treatment also “met the legal definition of torture.” In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantánamo and the treatment of over 100 prisoners in Guantánamo, who were subjected to versions of the “enhanced interrogation techniques” used on al-Qahtani would also constitute torture.
For these reasons, David Margolis’ whitewash of Yoo and Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report’s conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting, “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.”
This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), “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.”
The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each state, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.”
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.”
Cheney Admits to War Crimes, Media Yawns, Obama Turns the Other Cheek February 16, 2010Posted by rogerhollander in Criminal Justice, Dick Cheney, Torture.
Tags: Abu Ghraib, al-Qaeda, bagram, binya mohamed, cheney, CIA torture, detainees, enhanced interrogation, eric holder, geneva convention, Guantanamo, International law, jason leopold, jay bybee, john yoo, jonathan karl, journalism, justice department, Media, nuremberg, olc, opr, Rahm Emanuel, roger hollander, torture, torture tapes, War Crimes, waterboarding
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Monday 15 February 2010
Dick Cheney is a sadist.
On Sunday, in an exclusive interview with Jonathan Karl of ABC News’ “This Week,” Cheney proclaimed his love of torture, derided the Obama administration for outlawing the practice, and admitted that the Bush administration ordered Justice Department attorneys to fix the law around his policies.
“I was a big supporter of waterboarding,” Cheney told Karl, as if he were issuing a challenge to officials in the current administration, including President Barack Obama, who said flatly last year that waterboarding is torture, to take action against him. “I was a big supporter of the enhanced interrogation techniques…”
The former vice president’s declaration closely follows admissions he made in December 2008, about a month before the Bush administration exited the White House, when he said he personally authorized the torture of 33 suspected terrorist detainees and approved the waterboarding of three so-called “high-value” prisoners.
“I signed off on it; others did, as well, too,” Cheney said in an interview with the right-wing Washington Times about the waterboarding, a drowning technique where a person is strapped to a board, his face covered with a cloth and then water is poured over it. It is a torture technique dating back at least to the Spanish Inquisition.
The US has long treated waterboarding as a war crime and has prosecuted Japanese soldiers for using it against US troops during World War II. And Ronald Reagan’s Justice Department prosecuted a Texas sheriff and three deputies for using the practice to get confessions.
But Cheney’s admissions back then, as well as those he made on Sunday, went unchallenged by Karl and others in the mainstream media. Indeed, the two major national newspapers–The New York Times and The Washington Post–characterized Cheney’s interview as a mere spat between the vice president and the Obama administration over the direction of the latter’s counterterroism and national security policies.
The Times and Post did not report that Cheney’s comments about waterboarding and his enthusiastic support of torturing detainees amounted to an admission of war crimes given that the president has publicly stated that waterboarding is torture.
Ironically, in March 2003, after Iraqi troops captured several U.S. soldiers and let them be interviewed on Iraqi TV, senior Bush administration officials expressed outrage over this violation of the Geneva Convention.
“If there is somebody captured,” President George W. Bush told reporters on March 23, 2003, “I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals.”
Nor did the Times or Post report that the “enhanced interrogation techniques” Cheney backed was, in numerous cases, administered to prisoners detained at Guantanamo and in detention centers in Iraq and Afghanistan who we would come to discover were innocent and simply in the wrong place at the wrong time. The torture methods that Cheney helped implement as official policy was also directly responsible for the deaths of at least 100 detainees.
Renowned human rights attorney and Harper’s magazine contributor Scott Horton said, “Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques.”
In addition to Obama, Attorney General Eric Holder said during his confirmation hearing last year that waterboarding is torture.
“Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants,” Horton wrote in a Harper’s dispatch Monday.
Karl also made no mention of the fact that the CIA’s own watchdog concluded in a report declassified last year that the torture of detainees Cheney signed off on did not result in any actionable intelligence nor did it thwart any imminent attacks on the United States. To the contrary, torture led to bogus information, wrongful elevated threat warnings, and undermined the war-crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 attacks because the evidence against him was obtained through torture.
Karl also failed to call out Cheney on a statement the former vice president made during his interview in which he suggested the policy of torture was carried out only after the Bush administration told Justice Department attorneys it wanted the legal justification to subject suspected al-Qaeda prisoners to brutal interrogation methods.
Cheney told Karl that he continues to be critical of the Obama administration “because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had — had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who’d done what we asked them to do.”
In an interview with Karl on December 15, 2008, Cheney made a similar comment, which Karl also allowed to go unchallenged, stating that the Bush administration “had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross.”
Bush’s Key Line of Defense Destroyed
Those statements, both on Sunday and in his December 2008 interview with Karl, destroys a key line in the Bush administration’s defense against war crimes charges. For years, Cheney and other Bush administration officials pinned their defense on the fact that they had received legal advice from Justice Department lawyers that the brutal interrogations of “war on terror” detainees did not constitute torture or violate other laws of war.
Cheney’s statements, however, would suggest that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis.
In fact, as I reported last year, an investigation by the Department of Justice’s Office of Professional Responsibility (OPR) determined that DOJ attorneys John Yoo and Jay Bybee blurred the lines between attorneys charged with providing independent legal advice to the White House and policy advocates who were working to advance the administration’s goals, according to legal sources who were privy to an original draft of the OPR report.
That was a conclusion Dawn Johnsen reached. Johnsen was tapped a year ago by Obama to head the Office of Legal Counsel (OLC), where Yoo and Bybee worked, but her confirmation has been stuck in limbo.
In a 2006 Indiana Law Journal article, she said the function of OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”
“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” said Johnsen, who served in the OLC under President Bill Clinton. “In short, OLC must be prepared to say no to the President.
“For OLC instead to distort its legal analysis to support preferred policy outcomes undermines the rule of law and our democratic system of government. Perhaps most essential to avoiding a culture in which OLC becomes merely an advocate of the Administration’s policy preferences is transparency in the specific legal interpretations that inform executive action, as well as in the general governing processes and standards followed in formulating that legal advice.”
In a 2007 UCLA Law Review article, Johnsen said Yoo’s Aug. 1, 2002, torture memo is “unmistakably” an “advocacy piece.”
“OLC abandoned fundamental practices of principled and balanced legal interpretation,” Johnsen wrote. “The Torture Opinion relentlessly seeks to circumvent all legal limits on the CIA’s ability to engage in torture, and it simply ignores arguments to the contrary.
“The Opinion fails, for example, to cite highly relevant precedent, regulations, and even constitutional provisions, and it misuses sources upon which it does rely. Yoo remains almost alone in continuing to assert that the Torture Opinion was ‘entirely accurate’ and not outcome driven.”
The original draft of the OPR report concluded that Yoo and Bybee violated professional standards and recommended a referral to state bar associations where they could have faced disciplinary action and have had their law licenses revoked.
The report’s findings could have influenced whether George W. Bush, Cheney and other senior officials in that administration were held accountable for torture and other war crimes. But two weeks ago, it was revealed that officials in Obama’s Justice Department backed off the earlier recommendation and instead altered the misconduct findings against Yoo and Bybee to “poor judgment,” which means neither will face disciplinary action. The report has not yet been released.
For his part, Yoo had already admitted in no uncertain terms that Bush administration officials sought to legalize torture and that he and Bybee fixed the law around the Bush administration’s policy.
As I noted in a report last year, in his book, “War by Other Means: An Insider’s Account on the War On Terror,” Yoo described his participation in meetings that helped develop the controversial policies for the treatment of detainees.
For instance, Yoo wrote about a trip he took to Guantanamo Bay, Cuba, with other senior administration officials to observe interrogations and to join in discussions about specific interrogation methods. In other words, Yoo was not acting as an independent attorney providing the White House with unbiased legal advice but was more of an advocate for administration policy.
The meetings that Yoo described appear similar to those disclosed by ABC News in April 2008.
“The most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al-Qaeda suspects would be interrogated by the CIA,” ABC News reported at the time, citing unnamed sources.
“The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed, these sources said, some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.
“These top advisers signed off on how the CIA would interrogate top al-Qaeda suspects – whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding,” according to unnamed sources quoted by ABC News.
Torture Preceded Legal Advice
If ABC’s Karl had a firmer grasp on the issues he queried Cheney about he would have known that as recently as last week, three UK high-court judges released seven paragraphs of a previously classified intelligence document that proved the CIA tortured Binyam Mohamed, a British resident captured in Pakistan in April 2002 who was falsely tied to a dirty bomb plot, months before the Bush administration obtained a memo from John Yoo and Jay Bybee at the Justice Department’s Office of Legal Counsel (OLC) authorizing specific methods of torture to be used against high-value detainees, further undercutting Cheney’s line of defense.
The document stated bluntly that Mohamed’s treatment “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.”
Under the United Nations Convention Against Torture, the treatment of Mohamed and the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders.In the case of the US’s refusal to do so, other nations would be obligated to act under the principle of universality.
However, instead of living up to that treaty commitment, the Obama administration has time and again resisted calls for government investigations and has gone to court to block lawsuits that demand release of torture evidence or seek civil penalties against officials implicated in the torture.
Though it’s true, as Vice President Joe Biden stated Sunday on “Meet the Press,” that Cheney is rewriting history and making “factually, substantively wrong” statements about the Obama administration’s track record and approach to counterterrorism, it’s difficult, if not near impossible, to defend this president from the likes of Cheney.
Case in point: last week the Obama administration treated the disclosure by British judicial officials of the former prisoner’s torture as a security breach and threatened to cut off an intelligence sharing arrangement with the UK government.
In what can only be described as a stunning response to the revelations contained in the intelligence document, White House spokesman Ben LaBolt said “the [UK} court's judgment will complicate the confidentiality of our intelligence-sharing relationship with the UK, and it will have to factor into our decision-making going forward."
"We're deeply disappointed with the court's judgment today, because we shared this information in confidence and with certain expectations," LaBolt said, making no mention of Mohamed's treatment nor even offering him an apology for the torture he was subjected to by the CIA over the course of several years. Mohamed was released from Guantanamo last year and returned to the UK.
As an aside, as revelatory as the disclosures were, news reports of Mohamed's torture were buried by the mainstream print media and went unreported by the cable news outlets, underscoring how the media's interest in Bush's torture policies has waned.
The Obama administration's decision to ignore the past administration's crimes has alienated civil liberties groups, who he could once count on for support.
Last December, on the day Obama received a Nobel Peace prize, Jameel Jaffer, director of the ACLU’s National Security Project, told reporters that "on every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture.”
That being the reality is what makes Cheney’s claim on Sunday that the Obama administration is attempting to prosecute “CIA personnel that had carried out our counterterrorism policy or disbarring lawyers” laughable.
Holder has expanded the mandate of a special counsel, appointed during the Bush administration, who is investigating the destruction of torture tapes, to conduct a “preliminary review” of less than a dozen torture cases involving CIA contractors and interrogators to determine whether launching an expanded criminal inquiry is warranted. That hardly amounts to a prosecution. It’s not even an investigation.
And “disbarring lawyers, a clear reference to Yoo and Bybee, which is beyond the scope of the Justice Department watchdog’s authority to begin with, is no longer a possibility given that the OPR report reportedly does not recommend disciplinary action.
In a statement, the ACLU said, “to date, not a single torture victim has had his day in court.”
As Jane Mayer reported in a recent issue of the New Yorker, Holder’s limited scope authorization to Durham did not go over well with the White House and Obama’s Chief of Staff Rahm Emanuel made sure Holder knew where the administration stood.
“Emanuel worried that such investigations would alienate the intelligence community…,” Mayer reported. “Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, ‘Didn’t he get the memo that we’re not re-litigating the past?’”
Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit www.newsjunkiebook.com for a preview.
Is the White House Pressuring DOJ to Delay Torture Report Until Health Care Bill Passes? January 27, 2010Posted by rogerhollander in Criminal Justice, Torture.
Tags: aclu, constitution, Criminal Justice, doj, eric holder, foia, geneva conventions, jason leopold, jaybee, john yoo, justice, justice department, nuremberg, olc, opr, roger hollander, steven bradbury, supreme court, torture, torture memo, truman
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Tuesday 26 January 2010
Did the Obama administration pressure the Department of Justice (DOJ) to suppress a long-awaited report from one of the agency’s watchdogs on issues revolving around torture until Congress passes a health care bill?
That’s what senior aides to two Democratic lawmakers who have been closely tracking the report have alleged in interviews conducted over the past month.
The report, prepared by the DOJ’s Office of Professional Responsibility (OPR), examined the legal work former Office of Legal Counsel (OLC) attorneys John Yoo, Jay Bybee and Steven Bradbury performed for the Bush administration after 9/11 and is said to have reached damning conclusions.
It was supposed to be released last November, according to testimony Attorney General Eric Holder gave to Congress, after a career prosecutor completed a review, which Holder said at the time was in its “final stages.”
But the aides said in December, a couple of weeks after Holder testified, they participated in an informal meeting about the possibility of holding hearings when the report was released. During the discussion, someone raised questions about why the report was not yet released as Holder had promised.
The aides said that a senator, whose name they would not reveal, then disclosed that he was told by senior White House officials that if the report were released as planned it would have hurt the administration’s efforts to get a health care bill passed and impact the possibility of trying to win Republican support for the legislation, which never came to pass.
So, in early December, the senator claimed, according to the account given by the aides, the administration told the DOJ to delay releasing it.
Spokesmen for Democratic Sens. Sheldon Whitehouse and Dick Durbin, who have been instrumental in pushing for the report’s release, said they did not know why it has not yet surfaced nor were they aware of any claims that the report has been delayed until a health care bill passes.
In an interview early this month, Tracy Schmaler, a DOJ spokeswoman, disputed claims that the White House was pressuring the agency to withhold the report in lieu of a health care bill.
“That is absolutely untrue,” Schmaler said. “One thing has nothing to do with another.”
During our interview, Schmaler said the review “process is ongoing and we hope to have [the report] complete and released soon.”
Two DOJ officials familiar with details of the report said a delay in releasing it in the time frame Holder had promised was due, in part, to the fact that the career prosecutor charged with reviewing the final version was hospitalized in December for pneumonia.
However, they noted that that the prosecutor’s illness doesn’t account for why the report has still not been released, which they claim is due to “politics.” These sources requested anonymity because the details surrounding the report remain secret.
The possibility that politics may be the reason the report remains under wraps was not lost on the ACLU, which filed a lawsuit Friday in hopes of compelling the DOJ to immediately release the report.
In an interview, ACLU lawyer Alex Abdo, who, along with other attorneys at the civil rights organization, has successfully pried loose previously withheld documents related to the Bush administration’s torture policies, said “it’s possible political reasons might be holding up the release of the report.”
“It’s long overdue and this is an unacceptable delay,” Abdo said. “We haven’t seen any progress or received any public explanation.”
The group first filed a Freedom of Information Act (FOIA) request on December 4, 2009, when it became clear that the report was not going to be released in the time frame Holder promised that it would be. Abdo said the ACLU never received a response to its FOIA request. So, the organization filed another one last week. Earlier this month, a coalition of attorneys, journalists and activists also filed a FOIA request with the DOJ to obtain a copy of the report and other documents.
Abdo noted that when the report is finally released, “we will almost certainly see redactions [and the FOIA lawsuit will] serve as a placeholder to lodge challenges to excessive redactions in the report.”
In response to the ACLU’s complaint, Schmaler said that Holder has already stated “the department would make [the report] available as much as possible when it’s done.”
She added that there is “no delay” in releasing the report and, as she noted in a previous interview, she pointed to OPR “post investigation” guidelines, which details the process that takes place during the course of such internal investigations.
The OPR report was completed more than a year ago. It was revised after former Attorney General Michael Mukasey and his deputy, Mark Filip, insisted that Yoo, Bybee and Bradbury be given an opportunity to respond to its conclusions.
In his testimony last November, Holder said the report had not been released sooner due to “the amount of time we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then [OPR] had to react to those responses.”
Last month, several legal sources knowledgeable about the review process said Yoo filed additional responses to the report’s findings via his attorney, Miguel Estrada.
Estrada told Truthout he was bound by a confidentiality agreement he entered into with the DOJ and could not comment on the claims that he submitted another set of responses on behalf of Yoo.
Schmaler said she could not comment on the veracity of those claims.
According to the two DOJ officials, an original draft of the report had already concluded that when writing the August 2002 torture memo, Yoo failed to cite the key precedent relating to a president’s war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War.
Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.
But the Supreme Court overturned Truman’s order, saying, “the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Since Congress hadn’t delegated such authority to Truman, the Supreme Court ruled that Truman’s actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
Yoo’s memoranda concluded that the laws governing torture violated President Bush’s commander-in-chief powers under the Constitution because it prevented him “from gaining the intelligence he believes necessary to prevent attacks upon the United States.”
Yoo’s lengthy response to the OPR expanded upon a defense he first cited in his 2006 book, “War by Other Means,” in explaining why he didn’t cite Youngstown.
Yoo wrote: “we didn’t cite [Justice Robert] Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the president’s conduct of foreign affairs and national security.
“Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war …
“Far from inventing some novel interpretation of the Constitution, [Office of Legal Counsel, where Yoo, Bybee and Bradbury worked] was really doing little more than following in the footsteps of the Clinton Justice Department and all prior Justice Departments.”
It’s unknown whether Yoo made a convincing argument to OPR in defending his reasons for not citing the landmark ruling.
But a July 10, 2009, report by the inspectors general of the CIA, National Security Agency, DOJ and Defense Department into the Bush administration’s warrantless wiretapping program, which were based on legal opinions written by Yoo, also took Yoo to task for failing to cite Youngstown.
Yoo “omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches,” the report said.
“Justice [Robert] Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions,” the report said.
Ironically, as Congress continues to try and pass a health care bill that Democrats say wil expand insurance benefits to millions of Americans, the issue also plays a particularly important role in the OPR report.
The early draft of the OPR report concluded, legal sources said, that Yoo misinterpreted an obscure 2000 health benefits statute and wrongly applied it to August 2002 and March 2003 interrogation opinions he wrote, according to the DOJ officials.
Again, expanding upon a defense that first appeared in his book, Yoo placed some of the responsibility on Congress for forcing him to rely upon the statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.
In passing an anti-torture law, Congress only prohibited “severe physical or mental pain or suffering,” Yoo wrote. “The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe … OLC interpreted ‘severe’ as a level of pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions. [Emphasis added.]
“OLC’s first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’”
Jack Goldsmith, who succeeded Bybee at the OLC in October 2003 after Bybee was confirmed as an appeals court judge on the Ninth Circuit, wrote in his book, “The Terror Presidency,” that Yoo’s torture memo “was legally flawed” and sloppily written and he was harshly critical of Yoo’s use of a medical benefits statute to define torture.
“That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote.
“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”
Goldsmith rescinded the torture memo in mid-2004 and resigned shortly thereafter. His questions as to whether Yoo and Bybee provided the White House with sound legal advice sparked the OPR investigation.