DOJ Report on Torture Memo: Yoo Said Bush Could Order Civilians “Exterminated” February 20, 2010
Posted by rogerhollander in Criminal Justice, Torture.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
by: Jason Leopold, t r u t h o u t | Report
(Image: Lance Page / t r u t h o u t; Adapted: amarine88, Bebopsmile, dog ma)
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.”
Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit newsjunkiebook.com for a preview.
Two Colombian Generals Face Charges June 9, 2009
Posted by rogerhollander in Latin America, Colombia, Foreign Policy.Tags: USAID, School of the Americas, Alvaro Uribe, roger hollander, human rights, Colombia, Colombia atrocities, Colombian generals, plan colombia, colombia paramilitary, fort benning, soa, nation magazine, colombia military, patrick leahy, human rights abuses, colombia drugs, sherwood ross, colombia human rights, colombian farmers, colombia palm oil
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Sherwood Ross
consortiumnews.com
June 8, 2009
Two Colombian generals, both of whom received training at the U.S. Army’s “School of The Americas”(SOA) at Ft. Benning, Ga., have been accused by authorities there of crimes involving narcotics and collaborating with criminal paramilitary groups, according to a report in the June 15th issue of The Nation magazine.
Brig. Gen. Pauxelino Latorre has been charged “with laundering millions of dollars for a paramilitary drug ring, and prosecutors say they are looking into his activities as head of the Seventeenth Brigade,” investigative journalist Teo Ballve reports, noting that criminal probes repeatedly linked Latorre’s unit “to illegal paramilitary groups that had brutally killed thousands” of Colombian farmers in an effort to seize their land for palm oil production.
Another general, Rito Alejo Del Rio, former Seventeenth Brigade leader, is in jail on charges of collaborating with paramilitaries, gangs that have been responsible for widespread atrocities. He also received training at SOA.
Various firms engaged in palm oil development since 2002 apparently have received $75 million in U.S. Agency for International Development money under “Plan Colombia,” Ballve writes. And some of the firms appear to be tied to narco-traffickers, “in possible violation of federal law.” The writer notes Colombia’s paramilitaries are on the State Department’s list of foreign “terrorist” organizations.
“Plan Colombia is fighting against drugs militarily at the same time it gives money to support palm, which is used by paramilitary mafias to launder money,” The Nation quotes Colombian Senator Gustavo Petro, as saying. “The United States is implicitly subsidizing drug traffickers.”
President Alvaro Uribe has urged Colombians to increase palm production from 750,000 to 15 million acres to cash in on the expected boom in biofuels.
“Oil palm, or African palm, is one of the few aid-funded crops whose profits can match coca profits,” Ballve notes. But human rights groups have long accused palm companies, notably Urapalma, of cultivating stolen lands, he adds.
Sen. Patrick Leahy, D-Vermont, has attached an amendment to this year’s Plan Colombia funding (for 2010) to ban palm projects that “cause the forced displacement of local people” but in the bill’s current draft, Ballve says, Leahy’s amendment is marked for deletion.
Urapalma submitted a grant application to the Bogota, Colombia, offices of ARD Inc., a rural development contractor based in Burlington, Vermont, which The Nation reports does business in 43 countries and has received $330 million in revenue from USAID.
In January, 2003, ARD began administering $41.5 million for USAID’s Colombia Agribusiness Partnership Program and Urapalma was one of its beneficiaries. Urapalma has been accused of taking land illegally from Colombian peasants.
In July, 2003, just before Urapalma’s USAID application, Colombia’s national daily El Tiempo reported that “the African palm projects in the southern banana region of Uraba are dripping with blood, misery, and corruption.” The region is where Urapalma is active.
The Nation article goes on to report that in 2003, the Inter-American Court of Human Rights singled out Urapalma for collusion with paramilitaries in these words: “Since 2001, the company Urapalma SA has initiated cultivation of the oil palm on approximately 1,500 hectares of the collective land of these communities, with the help of ‘the perimetric and concentric armed protection of the Army’s Seventeenth Brigade and armed civilians’”, i.e., paras.
All of the above, of course, has gone on by fleecing American taxpayers, courtesy of SOA and USAID.
Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes”-. Reach him at sherwoodr1@yahoo.com.
Disclosure of ‘Secrets’ in the ’70s Didn’t Destroy the Nation April 29, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, Torture.Tags: Abu Ghraib, aclu, amrit singh, amy goodman, bagram, baltasar garzon, bethine church, bush administration, bush six, carl levin, church committee, cia assassination, cia videotapes, COINTELPRO, denis moynihan, detainees, Diane Feinstein, Dick Cheney, enhanced interrogation, frank church, geneva conventions, Guantanamo, independent prosecutor, John Conyers, martin luther king, Nancy Pelosi, nuremburg, patrick leahy, pentagon photos, president obama, roger hollander, rumsfeld, senate armed services, torture, torture memos, waterboarding, watergate, william hayes
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Published on Wednesday, April 29, 2009 by TruthDig.com
The Senate interest in investigation has backers in the U.S. House, from Speaker Nancy Pelosi, D-Calif., to Chairman of the House Judiciary Committee John Conyers, D-Mich., who told The Huffington Post recently, “We’re coming after these guys.”
Amrit Singh, staff attorney for the American Civil Liberties Union, said the Pentagon’s photos “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.” The ACLU also won a ruling to obtain documents relating to the CIA’s destruction of 92 videotapes of harsh interrogations. The tapes are gone, supposedly, but notes about the content of the tapes remain, and a federal judge has ordered their release.
In December 2002, when the Bush torture program was well under way, then-Secretary of Defense Donald Rumsfeld signed off on a series of harsh interrogation techniques described in a memo written by William Hayes II (one of the “Bush Six” being investigated by Spanish Judge Baltasar Garzon). At the bottom of the memo, under his signature, Rumsfeld scrawled: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” Rumsfeld zealously classified information in his years in government.
A similar crisis confronted the U.S. public in the mid-1970s. While the Watergate scandal was unfolding, widespread evidence was mounting of illegal government activity, including domestic spying and the infiltration and disruption of legal political groups, mostly anti-war groups, in a broad-based, secret government crackdown on dissent. In response, the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities was formed. It came to be known as the Church Committee, named after its chairman, Idaho Democratic Sen. Frank Church. The Church Committee documented and exposed extraordinary activities on the CIA and FBI, such as CIA efforts to assassinate foreign leaders, and the FBI’s COINTELPRO (counterintelligence) program, which extensively spied on prominent leaders like Dr. Martin Luther King Jr.
It is not only the practices that are similar, but the people. Frederick A.O. Schwarz Jr., general counsel to the Church Committee, noted two people who were active in the Ford White House and attempted to block the committee’s work: “Rumsfeld and then [Dick] Cheney were people who felt that nothing should be known about these secret operations, and there should be as much disruption as possible.”
Church’s widow, Bethine Church, now 86, continues to be very politically active in Idaho. She was so active in Washington in the 1970s that she was known as “Idaho’s third senator.” She said there needs to be a similar investigation today: “When you think of all the things that the Church Committee tried to straighten out and when you think of the terrific secrecy that Cheney and all of these people dealt with, they were always secretive about everything, and they didn’t want anything known. I think people have to know what went on. And that’s why I think an independent committee [is needed], outside of the Congress, that just looked at the whole problem and everything that happened.”
Denis Moynihan contributed research to this column.
Correcting America’s Dark Chapter of Torture April 19, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.Tags: 9/11, Abu Ghraib, aclu, al-Qaeda, Alberto Gonzales, bradbury, civil liberties, coerced confessions, commission of inquiry, david addington, Dick Cheney, enhanced interrogation techniques, extrajudicial detention, geneva conventions, George Bush, Guantanamo, international red cross, jay bybee, john yoo, leon panetta, muslim, national security, nurnmberg, painful chapter, patrick leahy, pierre tristam, president obama, qur'an, rizzo, roger hollander, rumsfeld, special prosecutor, torture, torture memos, truth commission, War Crimes, waterboarding
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Published on Sunday, April 19, 2009 by Daytona Beach News-Journal
‘There’s a disturbing parallel between the way the posse and al-Qaida went about justifying their mutually indefensible deeds. The Quran specifically forbids the killing of women and children. It declares in one of the Quran’s most humanistic passages that “anyone who murders one innocent person shall be treated as if he murdered all of humanity.” No Muslim cleric worth his turban would have sanctioned 9/11, designed exclusively to murder innocent people by way of suicide bombing. So Osama bin Laden shopped around for a rationale. He found it in the twisted sophistry of branding suicide bombers as martyrs, and innocents as infidels. Then he got himself an obscure cleric to sign off on the rationale. He had his secret memos, too.”
There’s a bomb of a contradiction at the heart of what’s passing for a debate on the torture regime of the past eight years. President Barack Obama calls those years of secret prisons and “enhanced interrogation techniques” a “dark and painful chapter in our history.” That’s not just a suggestion of something amiss. It’s an admission and an indictment of wrongs, in terms that have been applied to atrocities like war crimes and slavery. The secret Bush administration memos Obama released — the black book of those years, translating Soviet torture methods into “corrective” and “coercive techniques” like sleep deprivation, simulated drowning, beatings, starvation, hanging from hooks — prove the point.
Little of it is new information. Obama is merely documenting what’s been coming to light in newspaper reports, books and a graphic Red Cross report for the past several years. And he’s not doing it of his own initiative. We have the American Civil Liberties Union to thank for forcing his hand. Still, he’s removed all doubts about what Jane Mayer, in “The Dark Side” (Doubleday, 2008) summed up: “The Bush administration invoked the fear flowing from the attacks on September 11 to institute a policy of deliberate cruelty that would have been unthinkable on September 10. President (George W.) Bush, Vice President (Dick) Cheney and a small handful of trusted advisers sought and obtained dubious legal opinions enabling them to circumvent American laws and traditions. In the name of protecting national security, the executive branch sanctioned coerced confessions, extrajudicial detention, and other violations of individuals’ liberties that had been prohibited since the country’s founding.”
“Dark and painful chapter” isn’t an exaggeration. Nor would be a truth commission, a tribunal, punishment for the perpetrators — not as retribution, but as correction. And not to appease the rest of the world or even rehabilitate America’s image in the world’s eyes. World opinion doesn’t define who we are. American principles do, for our sake. Yet the response to that dark and painful chapter is turning into its own crime.
Sen. Patrick Leahy’s “commission of inquiry” would stop at an inquiry and grant all participants immunity. Obama wants to look forward, not back, because “nothing will be gained by spending our time and energy laying blame for the past.” But justice is all about squaring proper blame with past and proven crimes. Otherwise, might as well release the 2.4 million people in American prisons and jails, most of whose crimes were victimless, non-violent or less heinous than torturers’.
CIA Director Leon E. Panetta opposed so much as the release of the memos, claiming it set a dangerous precedent for the disclosure of intelligence sources and methods. But sources of intelligence aren’t being revealed. Methods of torture are. Keeping them secret would only safeguard them for use in the future. And to date, not a single name of actual torturers (“interrogators,” as the preferred euphemism goes) has been released. Only the names of a posse of Bush administration staffers and lawyers tasked with finagling legality out of indefensible practices have: David Addington, John Yoo, Jay Bybee, Steven Bradbury.
There’s a disturbing parallel between the way the posse and al-Qaida went about justifying their mutually indefensible deeds. The Quran specifically forbids the killing of women and children. It declares in one of the Quran’s most humanistic passages that “anyone who murders one innocent person shall be treated as if he murdered all of humanity.” No Muslim cleric worth his turban would have sanctioned 9/11, designed exclusively to murder innocent people by way of suicide bombing. So Osama bin Laden shopped around for a rationale. He found it in the twisted sophistry of branding suicide bombers as martyrs, and innocents as infidels. Then he got himself an obscure cleric to sign off on the rationale. He had his secret memos, too.
Should interrogators and the lawyers of a rogue administration be punished? They were just following orders. That, anyway, is the Nuremberg defense — despicable then, despicable today. In Israel, the country most justifiably outraged by the Nuremberg defense, soldiers may disobey orders they personally consider illegal or unconscionable. Some lawyers and interrogators, we now know, heroically did just that during the Bush regime, and paid the price. Others didn’t. Following orders is no defense. Nor is “moving on.”
But if there’s a bomb of a contradiction at the heart of this debate, there’s also an elephant: George W. Bush. His name is hardly mentioned in all these stories of shame and torture. It’s all about the lawyers, the process, the exigencies of the moment. But it isn’t. The decisions were his. “I am the decider,” as he put it. And so he was. This “dark and painful chapter” began with him. His orders for secret memos. His orders to torture. It should end with him.
A Real Criminal Investigation of Bush/Cheney; No Truth Commission! March 16, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush.Tags: al-Qaeda, Alberto Gonzales, anti-torture act, blue ribbon commission, bush administrations, bush prosecutions, cheney, cia, constitution, crimes against humanity, criminal code, david addington, democracy, doj, geneva conventions, George Bush, illegal survelance, interrogation tapes, Iran-Contra, John Dean, john yoo, justice department, ken lay, martin garbus, patrick leahy, pelosi, president obama, reconciliation commission, roger hollander, scooter libby, senate judiciary, special prosecutor, Taliban, torture, truth commission, war crimes act, watergate
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By Martin Garbus, Huffington Post. Posted March 9, 2009.
Judges and jurors, not politicians or unelected commission members, should determine whether Bush & Co. broke the law.
It’s really quite simple. Truth and Reconciliation commissions, Congressional committees and blue ribbon commissions like the 9/11 Commission, are not deterrents to torture, illegal surveillance or lawyers on the Justice Department who attempted to justify the torture. They have a very limited function.
But they don’t punish anyone; don’t deter anyone, don’t even put pressure on the people who committed the acts and cannot really get at the truth to determine responsibility. They do not bring the full force of America’s 230 years of law down on the offenders. They don’t truly help rein in the powers of future presidents or defense secretaries who want to do the same or similar acts the next time they react to what they see as an extraordinary crisis. And different presidents, Democrats and Republicans from Woodrow Wilson and the prosecutions during the Red Scare, to Franklin D. Roosevelt and the internment of 110,000 Japanese, Lyndon Johnson, lying about the Gulf of Tonkin and to dramatically increase troop strength, nearly always find crisis and overreact.
Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee, has called at different times for either a Truth and Reconciliation commission or a Blue Ribbon commission. Neither is appropriate.
The best truth and reconciliation model comes from the South African experience. In South Africa, these commissions were used to begin the healing after the brutality of apartheid. It grants the confessing wrongdoers immunity. It was for a different time and place.
The Blue Ribbon commission gets attention and, along with Congressional committees, can get exposures and may help lead to better laws. But they create the danger of interfering and at times making impossible criminal trials of criminals. And they let criminals go unpunished.
Senator Sheldon Whitehouse, a member of both the Judiciary Committee and Intelligence Committees and a former U.S. Attorney, supporting Leahy’s call, said that a torture commission might need the power to immunize witnesses on a case-by-case basis, and “it is beside the point” if it endangers criminal prosecutions.
We should go ahead with criminal prosecutions. It is the only way, through grand juries, subpoenas and trials, to get the facts and help America clean up some of its recent past.
The American people, immersed as they are in the economic crisis, are angry about torture and other illegalities of the Bush administration and want those prosecutions.
The February, 2009 USA Today/Gallup Poll shows 38 percent of Americans favor criminal prosecution of torturers, 38 percent for prosecution of those who used illegal surveillance, and 41 percent for those involved in the subversion of the Justice Department. Americans by a wide margin are in favor of criminal prosecutions than independent or Congressional panels. Seventy-five percent of Americans believe something must be done — we can’t walk away from the crimes against humanity committed in our name.
The argument is made that criminal prosecutions area too difficult, too lengthy, too expensive, too political and will keep the country divided. But there have always been political expensive and difficult trials. We have had long, expensive, political trials for John Dean during Watergate, Eliot Abrams during Iran-Contra, Scooter Libby today and even Aaron Burr nearly two hundred years ago.
Leahy argues against criminal prosecutions because “a failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying dishonest actions.” But that’s true for every criminal prosecution — should murderers, John Ehrlichmann, Scooter Libby or Enron officials not be prosecuted because the possibility of an acquittal justifies their actions? If so, junk the criminal system.
We can’t leave it to politicians. Many Democrats, including House Speaker Nancy Pelosi, are alleged to have known about the torture and surveillance programs and either approved or said nothing. Pelosi (who, interestingly, has called for criminal prosecutions) has consistently equivocated on what she knew and when she knew it. It’s unlikely Democrats on commissions, let alone Republicans, are going to pursue the inquiry to its final end. They will undermine Congressional Commissions, and blue ribbon Commissions, but they cannot so easily undermine criminal prosecutions.
The criminal trials of the chief of the Bush defendants can certainly be shorter and probably less expensive than the Barry Bonds or Scooter Libby prosecution, and less purely political than Thomas Jefferson’s presidentially controlled prosecution of Aaron Burr.
The Bush people violated some clear specific crimes. Failing to get wiretaps permission from the Federal Internal Security Courts is a felony. Representatives of the Justice Department, local police and federal agent who participated in break-ins or wiretaps without warrants, are guilty of clear and unambiguous federal crimes. Federal Agents who did illegal surveillance even when the Justice Department refused to sign off on its illegality can be found guilty. Violation of the Federal Anti-Torture Act, which has been on the books for years, bars citizens from committing torture abroad, is a felony.
The War Crimes Act of 1996 is violated even if there is not what the Bush defendants would claim is “torture.” That act punishes those who act cruelly and inhumanely. Waterboarding, vicious dogs, and exposing detainees to temperature extremes could all be punished by a jury.
Bush’s people, afraid of the applicability of the War Crimes Act, inserted a provision into a 2006 law that made the War Crimes Act retroactively ineffective. But Congress can change that now, that law can be used for prosecutions.
The defense will claim, say opponents of criminal trials, that defendants relied on the now infamous August 1, 2002 legal opinion of the Attorney General, Alberto Gonzales, and his assistants justifying torture and the opinions on illegal surveillance creating fog and evasion and therefore, they will get off. And that all the lawyers did was give their albeit controversial opinions, a full defense. Jurors will get confused by legal experts who support the views of the Bush lawyers. It’s too complicated for a jury, we are told.
But we have prosecuted lawyers, experts and those who rely on legal or accounting opinions in many cases. Kenneth Lay could refer to legal or accounting documents prepared to justify his case all day long and not be saved. The legal opinions rendered by Alberto Gonzales, John Yoo and David Addington are such transparent documents that an American jury of citizens is, at the very least entitled to have an opportunity to pass judgment on them. Even as lawyers within the Bush administration repudiated the opinions, the illegal practices went on. No jury would have difficulty in rejecting John Yoo’s memorandum that reject the basic tenets of an American democracy.
Can a jury really decide the tough questions, such as whether Alberto Gonzales’ opinion, concluding the Geneva Convention Protections do not apply to prisoners of war captured for Al Qaeda or the Taliban? Of course. A jury can determine if the legal opinion was a facade to justify actions already taken — only the legal process with grand juries and subpoenas has any hope of piercing the wall of defense that will be used to block that inquiry. Those memos were not used to interpret the law — they were intentionally written to change the law. No Commission can hope to get facts behind these opinions as quickly as the Courts.
Our criminal law has specific status that reach overseas to punish torturers. Section 2340A of our Federal Criminal Code makes it a crime for any person “outside the United States to commit or attempt to commit torture.” But, say the critics of criminal prosecution, torture is too vague a word for a prosecution. Not so. Judges and juries routinely define much vaguer terms – what does “reasonable doubt of guilt” or “reasonable doubt of guilt with a degree of moral certainty.” What does cruel and inhuman treatment mean? They are always past precedents to help us define these terms.
Juries determine competency in cases interpreting wills and estates, and sanity in criminal cases, with the help of experts, whom they often barely understand.
It is wrong to say that lower level officials, or lower level military personnel can get off by claiming they followed higher orders. They did what fellow soldiers did – they followed the morality culture created by their environment and superiors. That’s not a defense. When police officers in Los Angeles, Jackson, or New York beat prisoners, or deny them rights, most know they are violating the laws — they do it nonetheless. And they can be and often are prosecuted.
At times CIA personnel and people within the White House knew with certainty they were acting illegally. When the CIA destroyed at least 92 interrogation tapes to cover up what was done to the detainees, they violated a specific court order that prohibited that destruction.
I don’t have a religious faith in the majesty of the law. It is just the far best alternative.
Is the criminal prosecutors and the process itself often flawed? Of course. At times, are the guilty declared innocent and the innocent declared guilty? Of course. Do conviction make it far less likely that torture will continue? Probably so. Will a string of successful prosecutions ensure that we will never have Americans participate in torture or illegal surveillance? Probably not. Does it make torture and illegal surveillance less likely? Yes.
At the end of the day, I would rather have American jurors, bound by the Constitution and the law, make the decision rather than politicians or unelected blue ribbon commission members. I would rather have the judges, bound by precedent and law, determine what is, and is not legal.
President Obama has said this is not the time to look back but to look forward. There was a claim that the need for bipartisanship argued against prosecution. But the illusion of bipartisanship, if it ever truly existed, has been broken.
President Obama and the Congress should now name a Special Prosecutor.
Obama, Bush Secret-Keeper March 8, 2009
Posted by rogerhollander in Criminal Justice.Tags: bush administratio, bushs secret keeper, Criminal Justice, dahlia lithwick, eric holder, executive privilege, Guantanamo, harriet miers, john yoo, Karl Rove, olc, patrick leahy, president obama, roger hollander, sheldon whitehouse, state secrets privilege, stephen bradbury, torture, torture memos, us attorney firings, War Crimes, war on terror, warrantless surveillance, warrantless wiretapping, yoo memos
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Posted Friday, March 6, 2009, at 6:40 PM ET
Having inherited an undifferentiated mass of legal “war on terror” doctrine from the Bush administration’s constitutional chop shop, President Obama finds himself in the position of being Bush’s Secret-Keeper. Picking its way warily through a minefield of secrecy and privacy claims, the Obama administration this week released nine formerly classified legal opinions produced in the Office of Legal Counsel (while holding back others that are being sought) and brokered a deal whereby Karl Rove and Harriet Miers will finally testify about the U.S. attorney firings (but not publicly). Meanwhile, the administration clings to its bizarre decision to hold fast to the Bush administration’s all-encompassing view of the “state secrets” privilege, and the Nixonian view of executive power deployed to justify it. The Obama administration has also been quick to embrace the Bush view of secrecy in cases involving the disclosure of Bush era e-mails and has dragged its feet in various other cases seeking Bush-era records. If there is a coherent disclosure principle at work here, I have yet to discern it.
Trying to tease out a unifying theme here is probably not possible; there are not, as yet, enough data points. I have argued before that one of the reasons Obama will want to keep Bush’s secrets is that he wants to protect his own. What’s good for the goose and all. But it seems to me that along with good (or at least plausible) reasons for shielding Bush-era misconduct from public scrutiny, President Obama may also have some wrongheaded ideas about protecting Americans from knowing the truth.
Americans beg to differ. The president has been proved wrong in his claim that there is no political will in this country for unearthing wrongdoing. Polls increasingly show that—despite the tanking economy—close to two-thirds of the public want investigations into the Bush team’s use of coercive interrogation and warrantless wiretapping. My guess is that those numbers will only go up, as America digests the OLC’s newly released constitutional quilting projects. This latest batch of memos, after all, offers us the proposition that U.S. citizens wouldn’t be protected by the Fourth Amendment if the military were deployed against suspected terrorists in the United States and that the president (as channeled by then-OLC lawyer John Yoo) had secretly granted himself the right to suspend free speech and a free press.
What else might the president be wrong about when it comes to concealing Bush’s mistakes from Americans? Here’s a partial list:
The line between “before” and “after.” The position of the executive branch is that Obama believes in looking forward. America needs to turn the page; nothing is to be gained by digging up old skeletons; choose your future-facing metaphor. But as Sen. Patrick Leahy has taken to saying, “We need to be able to read the page before we turn the page.” All crimes happen in the past. A legal regime that perpetually looked forward would be absurd. For years now, conservatives and victims’ rights groups have used the language of “closure” to demand that rights be wronged and reparations be made when crimes occur. That’s why 9/11 families were invited to witness tribunals at Guantanamo. Yet liberals, somehow, are loath to demand “closure” or “healing” or “resolution.” When it comes from the left, such sentiment is perceived as bloodlust. Conservatives don’t have a monopoly on looking backward.
Yikes! We can’t criminalize “policy differences.” This was Attorney General Eric Holder’s line at his confirmation hearings last month, when asked if he would take action against Bush administration officials who authorized waterboarding or warrantless surveillance. But as Sen. Sheldon Whitehouse has pointed out, that very formulation is offensive. What Whitehouse has called the “pervasive, deliberate, and systematic damage the Bush administration did to America” cannot really be brushed aside as a mere difference in policy. One can choose between two legal options and call it a policy dispute. When one’s policy is to break the law, that’s what we call a crime.
People just doin’ their jobs. Former Bush administration officials do themselves no good when they simultaneously argue that their actions were lawful and necessary—and saved our lives many times over—and that they should also be excused because they were terrified. Stephen Bradbury, then acting head of OLC tells us that the appalling work in the newly declassified memos should be filtered through the prism of temporary insanity: “It is important to understand the context of the [2001] Memorandum,” Bradbury wrote, in a memo to the file. “It was the product of an extraordinary—indeed, we hope, a unique—period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
Obama made the same leap when he said “part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up.” But of course nobody is saying that everyone at the CIA needs a lawyer, or will be prosecuted for mistakes made in the field. This isn’t about going after people who were just doing their jobs under tough conditions. It’s about understanding how just doing their jobs came to include torture.
The fundamental mistake underpinning all the thinking above is that openness about past errors leads inexorably to ugliness, politicization, and rancor. But it’s worth recalling for a moment that we are already knee-deep in ugliness, politicization, and rancor. Transparency is not necessarily the first step toward indiscriminate prosecutions of everyone who ever worked for President Bush. It doesn’t mean that from now until forever, each administration will criminalize the policy differences of the administration before. It doesn’t mean that all mistakes are war crimes, or that hereinafter all investigations are all “perjury traps.” That’s the kind of binary, good/evil thinking we were supposed to have left behind us last November.
If President Obama has some better rationale for hiding the markers along the road to torture or eavesdropping from the American people, it’s time we heard it. But keeping this information from us for our own good is not an acceptable argument. The most recent OLC memos demonstrate precisely why the last eight years were so extraordinary. The suggestion that we just need to get over it is starting to sound extraordinary, too.
War Crimes and Double Standards March 5, 2009
Posted by rogerhollander in Criminal Justice, George W. Bush, Media.Tags: american journalism, Colin Powell, condoleezza, constitution, darfur, geneva conventions, George Bush, hassan al-bashir, house judiciary, icc, international crimnal court, iraq children, iraq illegal invasion, Iraq war, John Conyers, journalism, kucinich, media double standard, media responsibility, milbank, nicholas kristof, patrick leahy, republicans, robert parry, roger hollander, sentate judiciary, snowcroft, sudan, the hague, torture, torture commision, War Crimes, war on terror, waterboarding
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Robert Parry, March 5, 2009, www.consortiumnews.com
New York Times columnist Nicholas D. Kristof – like many of his American colleagues – is applauding the International Criminal Court’s arrest order against Sudanese President Omar Hassan al-Bashir for his role in the Darfur conflict that has claimed tens of thousands of lives.
In his Thursday column, Kristof describes the plight of an eight-year-old boy named Bakit who blew off his hands picking up a grenade that Kristof suspects was left behind by Bashir’s forces operating on the Chad side of the border with Sudan.
“Bakit became, inadvertently, one more casualty of the havoc and brutality that President Bashir has unleashed in Sudan and surrounding countries,” Kristof wrote. “So let’s applaud the I.C.C.’s arrest warrant, on behalf of children like Bakit who can’t.”
By all accounts, Kristof is a well-meaning journalist who travels to dangerous parts of the world, like Darfur, to report on human rights crimes. However, he also could be a case study of what’s wrong with American journalism.
While Kristof writes movingly about atrocities that can be blamed on Third World despots like Bashir, he won’t hold U.S. officials to the same standards.
Most notably, Kristof doesn’t call for prosecuting former President George W. Bush for war crimes, despite hundreds of thousands of Iraqis who have died as a result of Bush’s illegal invasion of their country. Many Iraqi children also don’t have hands – or legs or homes or parents.
But no one in a position of power in American journalism is demanding that former President Bush join President Bashir in the dock at The Hague.
Tortured Commission
As for the unpleasant reality that Bush and his top aides authorized torture of “war on terror” detainees, Kristof suggests only a Republican-dominated commission, including people with close ties to the Bush Family and to Bush’s first national security adviser Condoleezza Rice.
“It could be co-chaired by Brent Scowcroft and John McCain, with its conclusions written by Philip Zelikow, a former aide to Condoleezza Rice who wrote the best-selling report of the 9/11 commission,” Kristof wrote in a Jan. 29 column entitled “Putting Torture Behind Us.”
“If the three most prominent members were all Republicans, no one on the Right could denounce it as a witch hunt — and its criticisms would have far more credibility,” Kristof wrote.
“Democrats might begrudge the heavy Republican presence on such a commission, but surely any panel is better than where we’re headed: which is no investigation at all. …
“My bet, based on my conversations with military and intelligence experts, is that such a commission would issue a stinging repudiation of torture that no one could lightly dismiss.”
In an earlier formulation of this plan, Kristof suggested that the truth commission be run, in part, by Bush’s first Secretary of State Colin Powell.
One of the obvious problems with Kristof’s timid proposal is that Rice and Powell were among the senior Bush officials who allegedly sat in on meetings of the Principals Committee that choreographed the abuse and torture of specific detainees.
Zelikow remained a close associate of Rice even after she replaced Powell as Secretary of State. And Scowcroft was President George H.W. Bush’s national security adviser and one of Rice’s key mentors.
It’s also not true that any investigation is always better than no investigation. I have witnessed cover-up investigations that not only failed to get anywhere near the truth but tried to discredit and destroy whistleblowers who came forward with important evidence. [For examples, see Secrecy & Privilege.]
In other words, bogus and self-interested investigations can advance bogus and self-interested history, which only emboldens corrupt officials to commit similar crimes again.
No Other Context
Kristof’s vision of having President Bush’s friends, allies and even co-conspirators handle the investigation of Bush’s crimes would be considered laughable if placed in any other context.
But Kristof’s cockeyed scheme passes almost as conventional wisdom in today’s Washington.
On Wednesday, the Washington Post assigned its satirical writer, Dana Milbank, to cover – and mock – Sen. Patrick Leahy’s Judiciary Committee hearing on his own plan for a truth commission to examine Bush-era abuses.
Milbank’s clever article opened with the knee-slapping observation: “Let’s be truthful about it. Things aren’t looking so good for the Truth Commission.”
The derisive tone of the article also came as no surprise. Milbank has made a cottage industry out of ridiculing anyone who dares think that President Bush should be held accountable for his crimes.
In 2005, when the Democrats were in the minority and the Republicans gave Rep. John Conyers only a Capitol Hill basement room for a hearing on the Downing Street Memo’s disclosures about “fixed” intelligence to justify the Iraq War, Milbank’s column dripped with sarcasm.
“In the Capitol basement yesterday, long-suffering House Democrats took a trip to the land of make-believe,” Milbank wrote. “They pretended a small conference room was the Judiciary Committee hearing room, draping white linens over folding tables to make them look like witness tables and bringing in cardboard name tags and extra flags to make the whole thing look official.”
And the insults – especially aimed at Conyers – kept on coming. The Michigan Democrat “banged a large wooden gavel and got the other lawmakers to call him ‘Mr. Chairman,’” Milbank wrote snidely. [For details, see Consortiumnews.com’s “Mocking the Downing Street Memo.”]
Then, last July, Milbank ridiculed a regular House Judiciary Committee hearing on Bush’s abuses of presidential power. The column ignored the strong case for believing that Bush had violated a number of international and domestic laws, the U.S. Constitution, and honorable American traditions, like George Washington’s prohibition against torture.
Instead, it was time to laugh at the peaceniks. Milbank opened by agreeing with a put-down from Rep. Lamar Smith, R-Texas, calling the session “an anger management class.” Milbank wrote: “House Democrats had called the session … to allow the left wing to vent its collective spleen.”
Milbank then insulted Rep. Dennis Kucinich, who had introduced impeachment resolutions against Bush, by calling the Ohio Democrat “diminutive” and noting that Kucinich’s wife is “much taller” than he is.
What Kucinich’s height had to do with an issue as serious as abuses of presidential power was never made clear. What Milbank did make clear, through his derisive tone and repeated insults, was that the Washington Establishment takes none of Bush’s crimes seriously.
So, Milbank’s mocking of Leahy’s latest initiative fits with this pattern of the past eight years – protecting Bush from the “nut cases” who think international law and war-crimes tribunals should apply to leaders of big countries as well as small ones.
The pattern of “American exceptionalism” also can be seen in Kristof cheering the application of international law against an African tyrant but suggesting that Bush’s offenses should be handled discreetly by his friends.
Journalist Murray Waas often used the saying, “all power is proximate.” I never quite understood what he meant, but my best guess was that Waas was saying that careerists – whether journalists or from other professions – might have the guts to take on someone far away or who lacked power, while ignoring or excusing similar actions by someone close by with the power to hurt them.
That seems to be especially true about Washington and its current cast of “respected” journalists. They can be very tough on President Bashir but only make excuses for President Bush.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there. Or go to Amazon.com.
Release of Memos Fuels Push for Inquiry Into Bush’s Terror-Fighting Policies March 4, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Uncategorized.Tags: bush administration, charlie savage, cia, detention, Dick Cheney, doj, extraordinary rendition, geneva conventions, George Bush, house judiciary, International law, interrogation, jay bybee, John Conyers, john yoo, jose padila, justice department, national security, neil lewis, nsa, Obama, office professional responsibility, patrick leahy, rendition, roger hollander, scott shane, senate judiciary, steven bradbury, terrorism, torture, warantless wiretapping, waterboarding
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WASHINGTON – A day after releasing a set of Bush administration opinions that claimed sweeping presidential powers in fighting terrorism, the Obama administration faced new pressure on Tuesday to support a broad inquiry into interrogation, detention, surveillance and other practices under President George W. Bush.
![[Representative John Conyers Jr. has called for an investigation. (Susan Walsh/Associated Press)]](http://www.commondreams.org/files/article_images/conyers-2.jpg "conyers-2.jpg")
Representative John Conyers Jr. has called for an investigation. (Susan Walsh/Associated Press)Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.
The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.
Officials who discussed the process spoke on the condition of anonymity because memorandums still under review might involve classified information. Among those that have not been disclosed but are believed to exist are a memorandum from the fall of 2001 justifying the National Security Agency’s program of domestic surveillance without warrants and one from the summer of 2002 that listed specific harsh interrogation techniques, including waterboarding, that the C.I.A. was authorized to use.
The Justice Department officials said the decision to release the nine memorandums on Monday came after some of the opinions were sought in a civil lawsuit in California. They said department lawyers had determined that the opinions did not contain classified information.
The lawsuit was filed by Jose Padilla, a United States citizen who was arrested in Chicago in 2002 and detained for years as an enemy combatant before eventually being tried and convicted in a civilian criminal procedure. Mr. Padilla is suing John C. Yoo, a former Bush administration lawyer who was the author of many of the opinions justifying detention and interrogation policies.
The Senate Judiciary Committee has scheduled a hearing on Wednesday on whether to create a commission to look into the Bush administration’s counterterrorism policy. The committee chairman, Senator Patrick J. Leahy, Democrat of Vermont, has already called for a commission, and another Democrat on the panel said Tuesday that he would support such an approach.
But David B. Rivkin Jr., an associate White House counsel under the first President Bush who is scheduled to testify at the hearing on Wednesday, said he planned to urge Congress not to move forward with that proposal, which he said would violate the rights of Bush administration officials and set them up for prosecutions by foreign courts.
“They want to pillory people,” Mr. Rivkin said. “They want to destroy their reputation. They want to drag them through the mud and single them out for foreign prosecutions. And if you get someone in a perjury trap, so much the better.”
President Obama has signaled a reluctance to open a wide-ranging investigation into his predecessor’s policies, saying he preferred to fix the policies and move on. In his first days in office, he issued executive orders requiring strict adherence to rules against torture. As a senator, he voted for legislation that brought surveillance efforts into alignment with federal statutes.
The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.
The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.
The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.
Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.
Although he was a critic of Mr. Yoo’s work, Mr. Bradbury himself wrote three memorandums on the use of harsh interrogation techniques in 2005. Those documents are believed to be part of the Office of Professional Responsibility’s investigation.
In a footnote to Mr. Bradbury’s January memorandum that sharply criticized Mr. Yoo’s work, Mr. Bradbury signaled that he did not want a repudiation of Mr. Yoo’s legal reasoning to be used against him as part of the ethics inquiry.
Mr. Bradbury wrote that his retractions were not “intended to suggest in any way that the attorneys involved in the preparation of the opinions in question” violated any “applicable standards of professional responsibility.”
Scott Shane contributed reporting.
National Archives, Watchdog Demand DOJ Probe Destruction of John Yoo’s Emails February 26, 2010
Posted by rogerhollander in Criminal Justice, Torture.Tags: Criminal Justice, eric holder, interrogation, jack goldsmith, jason leopold, jay bybee, john yoo, justice department, opr, patrick leahy, patrick philbin, roger hollander, senate judiciary, torture, torture memos, waterboarding
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(Roger’s note: do we live in a banana republic or what? Government officials illegally destroy millions of vital records that document criminal activity, and the political/judicial system at best makes half-assed efforts to hold them accountable. Read the last paragraphs of this article. When the representative of the Department of Justice was asked by a Congressional Committee if he had made any attempt to recover the missing emails, his response in effect is, don’t worry, we’ve got some of them, i.e. the ones that didn’t go missing. A classic non-answer answer. George Orwell would be proud.)
Friday 26 February 2010
by: Jason Leopold, t r u t h o u t | Report
(Photo: YooTube; Edited: Lance Page / t r u t h o u t)
The National Archives and a watchdog group sent letters to the Justice Department (DOJ) Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002, when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize war on terror detainees.
The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’s web site, emails fall under FRA if they pertain to government business.
Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.
Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.
Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.
Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.
But Yoo, the report concluded, 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.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.
The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”
OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”
OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation.
In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to the [National Archives and Records Administration ..."
Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.
The destruction of Yoo's and Philbin's emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and preserve others.
Melanie Sloan, CREW's executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn't be surprised that crucial emails also disappeared from the Bush Justice Department."
“The question now is what is the Attorney General going to do about it?" she said.
Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.
She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.
"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.
Indeed, the DOJ's web site said emails are federal records if it:
The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."
Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."
Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.
Under the terms of the agreement, 94 days of missing emails will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.
The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.
Congressional Hearing
The destruction of Yoo's and Philbin's email was raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.
Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler whether the Justice Department has taken any steps to try and recover the emails.
Grindler said the report does not "suggest there was anything nefarious" and disclosed that he has spoken with technical staff at the Justice Department to determine what "was going on with the emails."
"If they are retrievable, I will direct [technical staff] to retrieve them,” Grindler told Leahy. However, “the report does include a review of some of Mr. Yoo’s emails. The [OPR] report doesn’t have a complete lack of his emails.”
Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit newsjunkiebook.com for a preview.