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Blistering Indictment Leveled Against Obama Over His Handling of Bush-Era War Crimes December 12, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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Saturday 12 December 2009

by: Jason Leopold, t r u t h o u t | Report

During his 36-minute speech upon accepting the Nobel Peace Prize in Oslo, Norway Thursday, President Barack Obama explained to an audience of 1,000 how the United States has a “moral and strategic interest” in abiding by a code of conduct when waging war – even one that pits the US against a “vicious adversary that abides by no rules.”

“That is what makes us different from those whom we fight,” Obama said. “That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.”

Obama’s high-minded declaration, made on the 61st anniversary of Human Rights Day, rings hollow in light of fresh reports that his administration continues to operate secret prisons in Afghanistan where detainees have been tortured and where human rights organizations such as the International Committee for the Red Cross are refused access to the prisoners.

Obama has substituted words for action on issues surrounding torture since his first days in office nearly one year ago. Last June, on the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama said the US government “must stand against torture wherever it takes place” and that his administration “is committed to taking concrete actions against torture and to address the needs of its victims.”

But it’s clear that his pledge does not apply to torture committed by Bush administration officials.

That’s the point the American Civil Liberties Union (ACLU) made shortly after Obama’s acceptance speech. Officials from the civil rights organization issued a withering indictment of the Obama administration’s handling of clear-cut cases of war crimes they say were committed by former Bush officials who the Obama administration not only refuses to prosecute but has gone to extraordinary lengths to cover up.

“We’re increasingly disappointed and alarmed by the current administration’s stance on accountability for torture,” said Jameel Jaffer, director of the ACLU’s National Security Project, during a conference call with reporters. “On every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture.”

Before leaving office, Dick Cheney said he approved waterboarding on at least three “high value” detainees and the “enhanced interrogation” of 33 other prisoners. President Bush made a somewhat vaguer acknowledgement of authorizing these techniques.

The ACLU and other civil rights groups said Bush and Cheney’s comments amounted to an admission of war crimes.

Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders. In the case of the US’s refusal to do so, other nations would be obligated to act under the principle of universality.

But Jaffer said that while “the Bush administration constructed a legal framework for torture, now the Obama administration is constructing a legal framework for impunity.”

Defending John Yoo

Indeed, last week, Obama’s Justice Department asked a federal appeals court to dismiss a lawsuit filed against torture memo author John Yoo by Jose Padilla, a US citizen who was arrested in 2002 for allegedly planning to detonate a radioactive “dirty bomb” and detained in a Navy brig on US soil for three years as an enemy combatant, where he says he was tortured as a direct result of Yoo’s legal authorization.

The Obama administration argued, in a friend-of-the-court brief filed with the Ninth Circuit Court of Appeals, that DOJ lawyers who advise on torture or other human rights abuses are entitled to absolute immunity from lawsuits.

“The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally,” wrote Scott Horton, a human rights attorney and constitutional expert in a column published on the Harper’s web site. “Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.”

Constitutional law professor Jonathan Turley said the Obama administration “has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions.”

“If successful in [the Padilla] case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg,” Turley said. “Quite a legacy for the world’s newest Nobel Peace Prize winner.”

What’s remarkable about the Obama Justice Department’s amicus brief in the Padilla case is that it didn’t need to be filed to begin with. Yoo hired a private defense attorney, albeit one who is paid for with taxpayer dollars, earlier this year when the Justice Department backed out of representing Yoo due to undisclosed conflicts.

Suicides

In court papers filed last week, the Obama administration took a hard line in another case, arguing that a Supreme Court ruling that gave detainees the right to challenge their indefinite imprisonment doesn’t apply to the cases of Yasser Al-Zahrani and Salah Al-Salami, two Guantanamo prisoners who committed suicide in June 2006.

The fathers of the men, who were never charged with a crime, sued Bush administration Defense Department officials in federal court, arguing that the torture their sons endured drove them to hang themselves on June 10, 2006 after being detained for four years.

But the Obama administration said in a legal brief that the Military Commissions Act of 2006 stripped the courts of jurisdiction to hear lawsuits that challenged the “detention, transfer, treatment or conditions of confinement” of “enemy combatants.”

Moreover, in court papers filed in June, the Obama administration said, “Judicial intrusion into this politically sensitive area by creating a damages remedy for detainees could subvert these military and diplomatic efforts and lead to ‘embarrassment of our government abroad.'”

Besides, the Obama administration said, just as John Yoo is entitled to absolute immunity, Defense Department officials are entitled to “qualified immunity” because the “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

Earlier this week, a report prepared by the Seton Hall University School of Law Center for Policy & Research called into question the veracity of the government’s official version of the deaths of the two men and that of a third prisoner, who was also found hanging in his cell on June 10, 2006. The government attributed the suicides to “asymmetrical warfare.”

“Both the time and exact manner of the deaths remain uncertain, and the presence of rags stuffed in the detainees‘ throats is unexplained,” the report said.

CIA Renditions and State Secrets

The Obama administration has also mounted an aggressive defense of the Bush administration in another high-profile case, this one related to a lawsuit filed in 2007 against Jeppesen DataPlan, a subsidiary of Boeing. Jeppesen DataPlan is accused of knowingly flying people kidnapped by the CIA to secret overseas prisons where they were brutally tortured during the course of their interrogations.

The Bush administration invoked the state secrets privilege, arguing that national security would be threatened if the lawsuit moved forward, and urged a federal court to throw out the suit. The Bush administration had previously used the privilege as a means to conceal evidence of government misconduct and illegality, critics charged. Still, the judge in the Jeppesen case threw out the lawsuit. The ACLU, which filed the complaint on behalf of five former Guantanamo Bay prisoners, appealed the decision.

Last February, less than a month after Obama was sworn into office and after promising to break free from the abuses committed by the Bush administration, Obama’s Justice Department shocked civil liberties and human rights advocates when attorneys appeared in federal court in San Francisco and invoked the same state secrets privilege that Bush used to keep the Jeppesen case from moving forward.

Even the judge was baffled. She asked a Justice Department attorney if the change in leadership would lead to a change in the administration’s legal position with regard to state secrets, but the answer was a resounding “no.”

An appellate court ultimately ruled in April that the case could move forward. The panel noted that state secrets can only be cited with regard to specific evidence, and not used as a means to dismiss an entire lawsuit. Justice Department attorneys will be back in court Tuesday to appeal the decision, once again asserting state secrets to try and have the case dismissed.

Sen. Russ Feingold, (D-Wisconsin), who heads a subcommittee on the Constitution, said Obama’s use of state secrets during his first 100 days in office was “troubling” and earned the president a “D” for the way in which his administration has handled civil liberties lawsuits filed against the Bush administration, including the Jepessen lawsuit.

Going a step further, the Obama administration has tried to block Binyam Mohamed, one of the victims named in Jeppesen lawsuit, from obtaining documentary evidence to support his claims that he was tortured while in US custody and that the British government was complicit.

In a legal brief, the ACLU said Mohamed was beaten so severely on numerous occasions that he routinely lost consciousness, and during one gruesome torture session “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”

The Obama White House, repeating threats first leveled by the Bush administration, told British government officials that intelligence sharing between the US and Britain would cease if seven redacted paragraphs contained in secret US documents related to allegations about Mohamed’s torture were made public by a British High Court.

Those threats were reiterated by Secretary of State Hillary Clinton, the CIA and Obama’s National Security Adviser James Jones, according to British Foreign Secretary David Miliband.

“The United States Government’s position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided,” the High Court wrote in a ruling in February when it agreed to keep the paragraphs blacked out. “There is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

The Obama White House actually issued a statement after the High Court ruling thanking the British government “for its continued commitment to protect sensitive national security information” and added that the order would “preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens.”

It’s unclear why the Obama administration believed national security would be at risk if details of Mohamed’s torture were released. That’s the realization a two-judge panel arrived at when it decided last October to reverse its earlier decision, ruling that the paragraphs at issue should be disclosed because there was a “compelling public interest” and “for reasons of democratic accountability and the rule of law.”

The High Court found that there was insufficient evidence to support White House claims that intelligence sharing between the US and Britain would be endangered because there wasn’t an “explicit statement of consequences [of disclosure by the Court] by the Obama Administration.”

Most notably, however, the judges concluded that the seven paragraphs in question had nothing to do with “secret intelligence” as the Obama administration had claimed. Rather, they were related to the culpability of British intelligence agents in Mohamed’s torture.

Following the High Court’s reversal, The New York Times published a scathing editorial attacking the Obama administration’s hard-line position in the Mohamed case, saying, “The Obama administration has clung for so long to the Bush administration’s expansive claims of national security and executive power that it is in danger of turning President George W. Bush’s cover-up of abuses committed in the name of fighting terrorism into President Barack Obama’s cover-up.”

Mohamed was freed in February after being imprisoned for seven years, and was sent back to Britain. Terrorism-related charges against him were dropped last year when his attorneys sued to gain access to more than three dozen secret documents.

Torture Photos

Obama also reversed a commitment he made earlier this year to release photos of US soldiers torturing and abusing prisoners in Iraq and Afghanistan.

Obama said his decision stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan, but the reversal came after several weeks of mounting accusations portraying him as weak on national security.

It became clear that the president had succumbed to a propaganda barrage unleashed by former Bush administration officials, their congressional allies, the right-wing news media and holdovers that retain key jobs under Obama.

His administration decided to fight an appeals court order to the Supreme Court that it originally said it would honor, while his appointees personally worked with lawmakers in Congress to pass legislation that would authorize the secretary of defense to circumvent the Freedom of Information Act and keep the photographs under wraps.

The legislation was passed in November and Obama swiftly signed it into law. By blocking the release of photographs, Obama essentially killed any meaningful chance of opening the door to an investigation of the senior Pentagon and Bush administration officials responsible for implementing the policies that directly led to the abuses captured in the images.

Obama’s decision to fight to conceal the photos marked an about-face on the open-government policies that he proclaimed during his second day in office.

On January 21, President Obama signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests and promised to make the federal government more transparent.

“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

But the ACLU pointed out Thursday that it has seen a limited impact from that sweeping executive order.

“We have not seen the presumption translated into the release of more information,” Jaffer said. “There are several cases [in] which we are just at a loss to understand why the information we are requesting is still being withheld.” This information includes documents related to the Bush administration’s warrantless wiretapping program and transcripts of Combatant Status Review Tribunals in which detainees “describe the abuse they suffered at the hands of their CIA interrogators.”

Obama and Congress

In April, a set of legal memoranda written by Yoo and former OLC heads Jay Bybee and Steven Bradbury were released. The memos authorized the CIA to implement a list of torture techniques to be used against so-called “high-value” prisoners, including beatings, waterboarding, sleep deprivation, placing insects inside a confinement box to induce fear, exposing detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions.” The release prompted renewed pressure on members of Congress to investigate the Bush-era abuses.

Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, Rep. John Conyers, floated competing proposals early in the year for a 9/11-style “truth commission” and a blue-ribbon investigative panel to look into the circumstances that led the Bush administration to formulate a policy of torture.

Obama signaled that he was open to the idea of a “truth commission,” but said he was concerned “about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations.”

Yet he immediately shifted his stance after Republicans pilloried him in numerous op-ed columns in major publications and on cable news programs for backtracking on early promises to “look forward” instead of backwards.

That led Obama to call lawmakers to the White House for a closed-door meeting in late April to talk them out of moving forward with independent investigations. The president even discouraged oversight hearings into the Bush administration’s use of torture.

Underscoring Obama’s position on the issue, White House press secretary Robert Gibbs told reporters at the time, “The president determined the concept didn’t seem altogether workable in this case.”

“The last few days might be evidence of why something like this might just become a political back and forth,” Gibbs said.

While Republicans criticized the idea, Democrats weren’t eager to get behind the plan either, and it was scrapped as lawmakers said they were forced to deal with more pressing issues like the economy and health care.

Upcoming Hearings on Torture?

However, according to Christopher Anders, the ACLU’s senior legislative counsel, Leahy and Conyers have both said they intend to hold hearings next year once a long-awaited report by the Justice Department’s Office of Professional Responsibility (OPR) is released that delves into Yoo, Bybee and Bradbury’s legal work surrounding torture.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders said in an interview. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Anders added that while there is a time and place for independent commissions, the issue of torture is really a matter for Congress to probe.

“These are the hard issues that Congress should really be tackling” Anders said. “It’s squarely under their jurisdiction.”

Spokespeople for Conyers and Leahy did not return calls or respond to e-mails seeking comment.

Additional Revelations

Much of what the public knows thus far about the Bush administration’s torture policies is due to the ACLU Freedom of Information Act lawsuit against the government. Since 2004, the organization has obtained more than 100,000 pages of documents that show the Bush White House signed off on and authorized torture against detainees at Guantanamo Bay and at prisons in Iraq.

Several weeks ago, the organization obtained hundreds of new documents, one of which was a one-page questionnaire, apparently from the Justice Department’s Office of Legal Counsel, that asked (presumably inquiring of the CIA), “How close is each technique to the ‘rack and screw?'”

The rack and screw is a medieval torture device. As Alex Abdo, a legal fellow with the ACLU, pointed out in an interview, “Anytime you need to ask a question like that it is deeply disturbing and shows you’ve strayed from constitutional norms.

“You’re asking a question as to whether the conduct you’re about to authorize relates to rack and screw, and that in and of itself should be evidence enough that you’re going too far. It never should get to that point.”

But the release of these explosive documents, as well as others that showed the Bush White House was deeply involved in discussions surrounding the destruction of 92 torture tapes, was met with absolute silence by Congress and the White House.

The ACLU said that as much as the Obama administration may hope that additional revelations related to the Bush administration’s policy of torture will slip underneath the radar, numerous documents expected to be released in the weeks and months ahead will ensure the issue remains front and center for years to come, and calls for accountability will continue.

“The lesson that this is giving to the rest of the world is that countries do not have to be accountable for their actions even when torture and abuse occurs,” the ACLU’s Anders said. “That’s going to make it much more difficult for the United States to push other countries on human rights issues across the board, and it’s going to make it much easier for other countries to shirk their own duties to bring accountability for their own actions in the past.”

Still, that didn’t stop Obama from lecturing the Oslo audience about the importance of upholding human rights.

Jaffer said there is “an obvious tension on what the president is saying on the commitment to human rights and the work we’re doing here in the United States to actually hold people accountable for the violations of both domestic and international law.”

“A lot of what was authorized by senior Bush administration officials was illegal not only under international law but domestic law as well,” Jaffer said. “Many of the methods that were approved by CIA and [Department of Defense] interrogators had previously been described by multiple US administrations as war crimes and some of them have been prosecuted as war crimes.

“Waterboarding in particular is something that has been prosecuted as a war crime before September 11. And yet we are not holding people accountable for having used those techniques, authorized those techniques. Increasingly, we’re frustrated by the gap between the Obama administration’s rhetoric on accountability and reality. We see the Obama administration actively obstructing accountability on every front.”

Torture a Terrorist for Jesus December 5, 2009

Posted by rogerhollander in About Torture, Torture.
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Roger Hollander, December 5, 2009

I remember from my studies in political science many years ago coming across a study with respect to the opinion of Americans about the provision of the Bill of Rights (the first ten Amendments to the Constitution).  Although when asked if they support the Bill of Rights most answered in the positive, when asked about the views on the contents of the rights contained in the individual Amendments (without identifying them as rights contained in the Bill of Rights), most were not in favor.  And this was before the hijacking of the political discourse in the United Sates by the religious radical right.

Some shocking statistics have emerged recently in a study conducted by the Pew Research Center for the People and the Press.  Two thousand adults 18 years of age or older living in the continental United States were asked between October 28 and November 8, 2009 their opinions about torture.  A majority, 54% opined that torture was often (19%) or sometimes (35%) justified.

I doubt if these figures would have been nearly as high prior to 9/11.  There is no doubt in my mind that they are to a large degree a product of the fear-mongering and misinformation that we have been subjected to from the extreme right, the majority of Republican and Democrat politicians, and the lapdog corporate mainstream media.

I would like to see the results of this survey if the respondents were fully informed of the overwhelming opinion of experts in the field that torture is counter-productive in eliciting reliable actionable information and reminded that the victims of torture are “suspects,” not convicted terrorists and that a policy of torture makes American prisoners of war more vulnerable to torture.

I would like to see the results of this survey if the respondents were shown these photos:

I would particularly like to see the results of this survey if the respondents were able to be present in the torture sessions depicted in these photos (of course I would not advocate such an experiment).

More than anything, I would like to see a revolution in thought and action in the United States that reflects a turn from racism, violence, intolerance and greed, away from religious bigotry and twoards truly human values.

Gates Invokes New Authority to Block Release of Detainee Abuse Photos November 18, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights, Iraq and Afghanistan, Torture.
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(Roger’s Note: here is just one more example of how Obama lied to the American people when he promised  transparency in government and change from the policies of the Bush torture machine. He re-appoints Bush’s Defense Secretary and uses his majority in Congress to authorize Gates to bury torture evidence — all, of course, in the name of the sacred cow known as national security.  Slowly what passes for the American left may be awakening to the fact that Obama is a fraud, a wolf in sheep’s clothing.  Much too slowly, however.)

Saturday 14 November 2009

by: Jason Leopold, t r u t h o u t | Report

Secretary of Defense Robert Gates has blocked the release of photographs depicting US soldiers abusing detainees in Iraq and Afghanistan, invoking new powers just granted to him by Congress that allows him to circumvent the Freedom of Information Act (FOIA) and keep the images under wraps on national security grounds.

In a brief filed with the US Supreme Court late Friday, Department of Defense General Counsel Jeh Johnson, and Solicitor General Elena Kagan, said Gates “personally exercised his certification authority” on Friday to withhold the photos and “determined that public disclosure of these photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.”

“Based on that determination, the Secretary has concluded that the photographs are ‘protected documents’” and are “exempt from mandatory disclosure under FOIA,” the government’s brief states.

In his certification included with the filing, Gates said his decision to withhold as many as 2,000 photos was based “upon the recommendations of the Chairman of the Joint Chiefs of Staff [Michael Mullen], the Commander of U.S. Central Command [David Petraeus], and the Commander of Multi-National Forces-Iraq [Ray Odierno]…”

As first reported by truthout, the photographs at issue include one in which a female solider is pointing a broom at a detainee “as if [she were] sticking the end of a broomstick into [his] rectum.”

Other photos are said to show US soldiers pointing guns at the heads of hooded and bound detainees in prisons in Iraq and Afghanistan. The Army’s Criminal Investigation Division investigated the matter and “three of the six investigations led to criminal charges and in two of those cases, the accused were found guilty and punished,” according to papers Kagan previously filed with the Supreme Court.

The ACLU filed a FOIA request in 2003 to gain access to photographs and videos related to the treatment of “war on terror” prisoners in US custody and sued the government a year later to enforce the FOIA filing. The US District Court for the Southern District of New York ordered the release of the photos in a June 2005 ruling that was affirmed by the US Court of Appeals for the Second Circuit in September 2008.

The Bush administration challenged the Second Circuit’s ruling, and in March the court denied that petition. In its earlier ruling, the appeals court also shot down the Bush administration’s attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as “an all-purpose damper on global controversy.”

The Obama administration indicated it would abide by the appeals court order and release at least 44 of the photographs in question, but, in May, after he was pilloried by Republicans, President Obama backtracked, saying he had conferred with high-ranking military officials who advised him that releasing the images would stoke anti-American sentiment and would endanger the lives of US troops in Afghanistan and Iraq.

As Truthout previously reported, the Obama administration petitioned the US Supreme Court to hear the case last summer. The petition raised similar arguments related to FOIA exemptions in this case as those made by the Bush administration and later rejected by the Second Circuit.

Justices were prepared to meet and decide whether to take the case, but the high court agreed last month to delay their decision at the request of Obama administration officials who wanted to wait and see if Congress would pass legislation authorizing the Defense Department to circumvent FOIA.

In other words, the Obama administration wanted Congress to pass a law that would effective quash the Second Circuit’s decision. And that’s exactly what lawmakers did last month when they passed the Homeland Security appropriations bill, signed into law by President Obama, which included a provision to amend FOIA. The provision gave Gates the power to withhold “protected documents” he believes would endanger the lives of US soldiers or government employees deployed outside of the country if publicly released.

The amendment was originally sponsored by Sens. Joe Lieberman, (I-Connecticut), and Lindsey Graham, (R-South Carolina). Obama sent a letter to the lawmakers last summer stating that he would work closely with Congress to help pass the measure to keep the abuse photographs sealed, according to a footnote in the administration’s Supreme Court petition.

Rep. Louise Slaughter, (D-New York), who opposed the FOIA amendment, said in a floor statement in October as Congress was debating the provision, that the language, stripped from an earlier version of the bill, was quietly reinserted “apparently under direct orders from the [Obama] administration.”

According to the bill, the phrase “protected documents” refers to photographs taken between September 11, 2001 and January 22, 2009, and involves “the treatment of individuals engaged, captured or detained” in the so-called “war on terror.” Photographs that Gates determines would endanger troops and government employees could be withheld for three years.

The ACLU said Gates’ certification “is categorical with respect to all of the photos and fails to provide the individualized assessment that the amendment’s language requires and also fails to provide any basis for the claim that disclosure of the photos would harm national security.”

The group intends to file a response to the administration’s brief next week.

In an oped column published in the Los Angeles Times last month, Jameel Jaffer, director of the ACLU’s National Security Project, said although the powers Congress granted Gates is meant to cover the abuse photos, it “could also cover, for example, video footage of aerial attacks that resulted in civilian casualties or photos showing the conditions of confinement at the Bagram detention center in Afghanistan.”

“The legislation establishes a regime of censorship that would extend to many images of the military’s activities abroad.” Jaffer wrote.

Obama’s decision to sign legislation into law that allows his administration to circumvent FOIA marks an about-face on the open-government policies that he proclaimed during his first days in office.

On January 21, Obama signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests, and promised to make the federal government more transparent.

“The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

Instead of withdrawing its petition now that legislation has been passed, the Obama administration on Friday asked the high court to vacate the Second Circuit’s ruling, and then “remand to allow the lower courts to address the effect of the new legislation on the litigation.”

“Given Congress’s enactment of intervening legislation resolving the present dispute by providing for withholding of the records at issue, the Court now has no occasion to address the proper construction of [FOIA] Exemption 7(F) as set forth in the government’s petition,” the government’s filing states. “The appropriate disposition, after these events, is for this Court to [pull the case up from the Second Circuit and take jurisdiction of the case and the issue], vacate the judgment of the court of appeals, and remand for further proceedings… in light of the intervening legislation” passed by Congress.

In its earlier Supreme Court petition, the Obama administration argued that FOIA Exemption 7(F) allows for the withholding of information if it threatens the lives of individuals.

The Second Circuit, however, disagreed. The court ruled that FOIA “mandates the public disclosure of such photographs – regardless of the risk to American lives – because FOIA Exemption 7(F) requires the government to ‘identify at least one individual with reasonable specificity’ and show that disclosure ‘could reasonably be expected to endanger that individual.'”

The government argued that the Second Circuit misinterpreted the law when it ruled that the government had to identify specific individuals who would be harmed by the disclosure of the photographs

The Obama administration maintained that the Second Circuit’s interpretation of Exemption 7(F), “is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to ‘any individual,’ with no suggestion of the court’s extra-textual requirement of victim specificity. The history of drafting that exemption “underscores that conclusion. Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals – particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions.”

“The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action,” the government’s petition states. “There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation’s military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure.”

Alex Abdo, a legal fellow with the ACLU’s National Security Project, said the Obama administration’s argument for continuing to suppress the photos “sets a dangerous precedent – that the government can conceal evidence of its own misconduct precisely because the evidence powerfully documents gross abuses of power and of detainees.

“This principal is fundamentally anti-democratic. The American public has a right to see the evidence of crimes committed in their name.”

Abuse Photos Blocked November 15, 2009

Posted by rogerhollander in Criminal Justice, Iraq and Afghanistan, Torture.
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http://www.commondreams.org

11.14.09 – 8:56 PM

A sketch by Thomas Curtis, former Reserve M.P. sergeant, showing how a detainee in Afghanistan was allegedly chained to the ceiling of his cell.

Invoking newly granted powers allowing him to circumvent the Freedom of Information Act, Secretary of Defense Robert Gates has blocked the release of photos showing US soldiers abusing detainees in Iraq and Afghanistan. Alex Abdo of the ACLU said the argument against release “sets a dangerous precedent” that the government can conceal evidence of gross abuses of power.

“This principle is fundamentally anti-democratic. The American public has a right to see the evidence of crimes committed in their name.”

Will 39 Democrats Stand Up to Stop the War Funding? June 15, 2009

Posted by rogerhollander in Iraq and Afghanistan, Torture, War.
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Published on Monday, June 15, 2009 by RebelReports by Jeremy Scahill

The White House and the Democratic Congressional Leadership are playing a very dirty game in their effort to ram through supplemental funding for the escalating US war in Afghanistan and continued occupation of Iraq. In the crosshairs of the big guns at the White House and on Capitol Hill are anti-war freshmen legislators and the movement to hold those responsible for torture accountable.

In funding the wars, the White House has been able to rely on strong GOP support to marginalize the anti-war Democrats who have pledged to vote against continued funding (as 51 Democrats did in May when the supplemental was first voted on). But the White House is running into trouble now because of Republican opposition to some of the provisions added to the bill (and one removed), meaning the pro-war Democrats actually need a fair number of anti-war Democrats to switch sides. In short, the current battle will clearly reveal exactly how many Democrats actually oppose these wars. And, according to reports, the White House and Democratic Leadership have the gloves off in the fight:

Rep. Lynn Woolsey of California, a leader of the antiwar Democrats, said the White House is threatening to withdraw support from freshmen who oppose the bill, saying “you’ll never hear from us again.”She said the House leadership also is targeting the freshmen.

“It’s really hard for the freshmen,” she said. “Nancy’s pretty powerful.”

On June 11, the relevant committees in the House and Senate approved the $105.9 billion spending package. According to an analysis by the Center for Arms Control and Non-Proliferation:

The bill includes $79.9 billion for the Department of Defense, primarily to fund military operations in Iraq and Afghanistan, roughly $4.4 billion more than the amount sought by the Administration. This funding is in addition to the $65.9 billion “bridge fund” in war funding for FY’09 that Congress approved last June. To date Congress has approved over $814 billion for military operations in Iraq and Afghanistan, not including the $80 billion recommended by the Conference Committee, In addition, the Obama Administration is seeking $130 billion in for fiscal year 2010. Both the House and Senate could take up the conference agreement as early as this week.In addition to funding combat operations in Iraq and Afghanistan, the bill provides $10.4 billion for the State Department and the U.S. Agency for International Development (USAID), and $7.7 billion for Pandemic Flu Response.

The current battle over war funding has brought with it a couple of high-stakes actions, which have threatened passage of the bill. Many Democrats were up in arms about an amendment sponsored by Senators Joe Lieberman and Lindsey Graham that would have blocked the release of photos depicting US abuse of prisoners (which the White House “actively” supported. Facing warnings that the provision could derail the funding package, the White House stepped in, deploying Rahm Emanuel to the Hill to convince legislators to drop the amendment, while at the same time pledging that Obama would use his authority to continue to fight the release of more photos:

White House chief of staff Rahm Emanuel ‘rushed’ to Capitol Hill and prevailed upon Senate Democrats to remove the torture photo measure in exchange for an explicit White House promise that it would use all means at its disposal to block the photos’ release. Obama also issued a letter to Congress assuring it he would support separate legislation to suppress the photos, if necessary, and imploring it to speed passage of the war-spending bill. The rider would “unnecessarily complicate the essential objective of supporting the troops,” Obama wrote.

In other words, Obama took a position that amounted to providing political cover to Democrats to support the war funding, while pledging to implement, through other means, the very policy they supposedly found objectionable.

Secondly, the White House and Congressional leadership added a provision to the bill that extends up to $100 billion in credits to the International Monetary Fund. While this sent many Republicans to the microphones to denounce the funding, the Democratic leadership portrayed the IMF funding as a progressive policy:

House Speaker Nancy Pelosi, D-Calif., is trying to paint the IMF provision as a “very important national security initiative.” The IMF, she said, “can be a force for alleviating the fury of despair among people, poor people throughout the world.”

It is a pathetic symbol of just how bankrupt the Congressional Democratic leadership is when it comes to US foreign policy that Nancy Pelosi and Harry Reid are trying to use funding for the IMF to convince other Democrats to support war funding. The IMF has been a destabilizing force in many countries across the globe through its austerity measures and structural adjustment schemes. Remember, it was the policies of the IMF and its cohorts at the World Bank and World Trade Organizations that sparked global uprisings in the 1990s.

To support the IMF funding scam, the Center for American Progress, which has passionately supported Obama’s escalation of the war in Afghanistan, released a position paper today called, “Bailing Out the Bailer-Outer: Five Reasons Congress Should Agree to Fund the IMF.”

Thankfully, some anti-war Democrats seem to understand the atrocious role the IMF has played and have tried to impose rules on the funding that would attempt to confront the IMF’s austerity measures by requiring that “the funds allocated by Congress for global stimulus are used for stimulatory, and not contractionary, purposes.”

By adding the IMF provision to this bill, the White House is making a bold statement about the intimate relationship of the hidden hand of US neoliberal economic policy to the iron fist of US militarism.

At the end of the day, the real issue here is: How many Democrats will actually stand up on principle to the funding of the wars, regardless of the bells and whistles the White House and Democratic Leadership attach or the threats they need to endure from their own party?

In order to block passage, 39 Democrats need to vote against it in the House. As of this writing, 34 reportedly are committed to voting against it. Jane Hamsher at Firedoglake has been doing great coverage of this issue, much of which can be found here. So too has David Swanson at AfterDowningStreet. This does seem to be one issue where phone calls and letters matter-tremendously. See where your representative stands here. As of this writing, these are the legislators who are reportedly leaning toward a “No” vote, but have not yet committed. They are the people most likely to be convinced by hearing from constituents:

  1. Steve Cohen
  2. Keith Ellison
  3. Chakah Fattah
  4. Mike Honda
  5. Doris Matsui
  6. Ed Markey
  7. Jim McDermott
  8. Gwen Moore
  9. Jared Polis
  10. Jan Schakowsky
  11. Jackie Speier
  12. Mike Thompson
  13. John Tierney
  14. Mel Watt
  15. Anthony Weiner

UPDATE: I just spoke to Trevor Kincaid, Jan Schakowsky’s communications director and he told me that Schakowsky will not release a statement on her position on the supplemental “until after the vote.” I asked him if she was concerned about going back on her 2007 pledge never to vote for war funding that did not call for troop withdrawal. He said, “She is currently reviewing the pros and cons of the bill.” He would provide no further comment.

Also, Jane Hamsher reports that it now appears Keith Ellison is voting no.

© 2009 Jeremy Scahill

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.

Obama’s Support for the New Graham-Lieberman Secrecy Law June 1, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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(Roger’s note: I don’t know if I was the first person to coin the phrase “Plus ca change … we can believe in,” but if I was, then Obama is making a prophet out of me.  I hasten to add that, not out of any sense of false humility, I wish that it were not true.  What is most disturbing is that the man in whom so many millions of Americans have pinned their hopes is not only giving us “change” that is the “meme chose,” but that — inconceivably — he is going beyond what Bush himself had dared to accomplish.  What this tells me is that there is something really rotten not only in Denmark.  What this tells me that the word “change” will have little meaning as long as it is not preceded by the adjective “revolutionary.”)
 
Published on Monday, June 1, 2009 by Salon.com

by Glenn Greenwald

It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit’s ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU.  Agree or disagree with Obama’s decision, at least the basic legal framework of transparency was being respected, since Obama’s actions amounted to nothing more than a request that the Supreme Court review whether the mandates of FOIA actually required disclosure in this case.  But now — obviously anticipating that the Government is likely to lose in court again (.pdf) — Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself. 

The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman — called The Detainee Photographic Records Protection Act of 2009 — that literally has no purpose other than to allow the government to suppress any “photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.”  As long as the Defense Secretary certifies — with no review possible — that disclosure would “endanger” American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure.  The certification lasts 3 years and can be renewed indefinitely.  The Senate passed the bill as an amendment last week.

Just imagine if any other country did this.  Imagine if a foreign government were accused of systematically torturing and otherwise brutally abusing detainees in its custody for years, and there was ample photographic evidence proving the extent and brutality of the abuse.  Further imagine that the country’s judiciary — applying decades-old transparency laws — ruled that the government was legally required to make that evidence public.  But in response, that country’s President demanded that those transparency laws be retroactively changed for no reason other than to explicitly empower him to keep the photographic evidence suppressed, and a compliant Congress then immediately passed a new law empowering the President to suppress that evidence.  What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people?  Read the language of the bill; it doesn’t even hide the fact that its only objective is to empower the President to conceal evidence of war crimes.

That this exact scenario is now happening in the U.S. is all the more remarkable given that the President who is demanding these new suppression powers is the same one who repeatedly vowed “to make his administration the most open and transparent in history.”  After noting the tentative steps Obama has taken to increase transparency, the generally pro-Obama Washington Post Editorial Page today observed: “what makes the administration’s support for the photographic records act so regrettable” is that “Mr. Obama runs the risk of taking two steps back in his quest for more open government.”

What makes all of this even worse is that it is part of a broader trend whereby the Government simply retroactively changes the law whenever it decides it does not want to abide by it.  For decades, we had laws in place authorizing citizens to sue their telecommunication carriers if the telecoms allowed government spying on their communications in violation of the law, but when it was revealed that the telecoms did exactly this, the Congress simply changed the law retroactively so that it no longer applied.  For decades, we had laws imposing civil and criminal liability on government officials who engaged in or authorized torture, but when it was revealed that our government did that, the Congress just retroactively changed the law to protect the torturers.  And now that courts have ruled that our decades-old transparency law compels disclosure of this torture evidence, the Congress is just going to retroactively change the law — again — this time to empower the President to suppress that evidence anyway.

Other than creating an illusion of transparency and accountability, what’s the point of having laws that purport to restrict what the Government can do if political officials just retroactively waive those laws whenever they want?  What’s the point of having a FOIA law if the Government will simply pass a new law exempting itself from FOIA’s mandates any time it loses in court and wants to conceal evidence anyway?   And what conceivable rationale is there for limiting the President’s new secrecy powers to post-9/11 photographs?  Given that anything which reflects poorly on our Government can be said to endanger our troops and American citizens, why stop here?  Why not just have a general power of suppression whereby the President can keep any evidence secret as long as his Defense Secretary decrees that its disclosure will “endanger” the troops?

The debate over whether there is value in disclosing these specific photographs is entirely misplaced.  That isn’t how open government works.  The burden isn’t on citizens to prove that there is value in disclosure.  Everything that government does is supposed to be transparent to the public unless there is a compelling reason for secrecy — and the whole point of FOIA always has been that mere embarrassment, the mere fact that information reflects poorly on our government, isn’t a legitimate ground for concealment.  That’s a critical principle for open government.  This new law explicitly guts that principle.  It institutionalizes the pernicious notion that secrecy is justified where disclosure would reflect badly on the Government and thus “endanger” American citizens and/or our troops.

Combine all of this with the increasingly disturbing spectacle taking place in a California federal court in the Al-Haramain case — where the Obama DOJ is on the verge of being sanctioned by a federal judge for defying the court’s order to make available documents relating to Bush’s illegal eavesdropping activities — and the infatuation with excessive presidential secrecy, the linchpin of government abuse, appears alive and well in the new administration.  Is there really anyone who wants to argue that defiance of a federal court’s order and enacting a new law authorizing suppression of torture evidence — the disclosure of which is compelled both by courts and FOIA — are remotely consistent with anything Obama said he would do, or remotely consistent with what a healthy democratic government would do?

© 2009 Salon.com

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.

When Gibbs Attacks May 29, 2009

Posted by rogerhollander in History, Media, Torture.
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Published on Friday, May 29, 2009 by Rebel Reports

After Gen. Taguba Alleges Existence of Prisoner Rape Photos, Robert Gibbs Attacks. . . British Media

by Jeremy Scahill

Wow. White House spokesman Robert Gibbs is really embodying the idea that when the message is devastating, you attack the messenger. Except in this case, Gibbs is not even attacking the messenger, but rather the newspaper that quoted the messenger.

In a major story today, London’s Daily Telegraph quoted Maj. Gen. Antonio Taguba describing photos (that the Obama administration is fighting to keep secret), which allegedly depict US personnel raping prisoners, other sexual assaults on prisoners with objects including a truncheon, wire and a phosphorescent tube. “These pictures show torture, abuse, rape and every indecency,” Taguba said. Put that statement against this one from the president: In defending his decision to fight the ACLU in its efforts to have the photos publicly released, Obama said on May 13, “I want to emphasize that these photos that were requested in this case are not particularly sensational.”

At the White House press briefing [on Thursday], Gibbs lashed out-not at Gen. Taguba, who made the allegation on the record, and not even specifically at the paper that quoted Taguba. Instead, Gibbs went after the entire British media, saying “I think if you do an even moderate Google search (heh) you’re not gonna find many of these newspapers and ‘truth’ within say 25 words of each other:”

“I want to speak generally about some of reports I’ve witnessed over the past few years in the British media and in some ways I’m surprised it filtered down,” Gibbs said. “Let’s just say that if I wanted to look up, if I wanted to read a writeup today of how Manchester United fared last night in the Champions League Cup, I might open up a British newspaper… If I was looking for something that bordered on truthful news, I’m not sure that would be the first stack of clips I picked up.”

No, instead perhaps Gibbs would pick up one of those stellar US papers with spotless track records on “the truth.” He could start with The New York Times, which was basically a conveyor belt for the lies of the Bush administration during the lead up to the Iraq war. Or he could turn to any number of US lie factories masquerading as media outlets.

This is pathetic. Really. Hey, Gibbs, here’s a suggestion: go after Gen. Taguba, a 34 year, decorated military veteran whose career was brought to an end for battling Rumsfeld and the torture machine at the Pentagon. Go after the General who last year (when Bush was still in power) called for prosecutions of the torturers. “There is no longer any doubt that the current administration committed war crimes. The only question is whether those who ordered torture will be held to account,” Taguba wrote in June 2008. Go after him, Gibbs. Call him a liar. Say he is a dirty propagandist that wants to hurt US troops. Oh, right, you can’t. Taguba actually agrees with Obama on this issue, as he told the lying, evil British media:

“I am not sure what purpose their release would serve other than a legal one and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them.”

I’ll wait to see if the Telegraph produces a tape of the interview (they should) or for Gen. Taguba to say he was misquoted before I would even mildly question the veracity of this story. Everything about it rings true to everything Sy Hersh has written, every torture document and photo we have seen thus far and every testimonial we have heard from those former military/intelligence and other government officials with the guts to speak out. As Raw Story pointed out today, this allegation of rape of prisoners is not new:

“The American public needs to understand, we’re talking about rape and murder here,” said Sen. Lindsey Graham (R-SC), telling reporters in 2004 why the Abu Ghraib photos should not be released as former Secretary of Defense Donald Rumsfeld faced calls for his resignation. “We’re not just talking about giving people a humiliating experience. We’re talking about rape and murder and some very serious charges.”

As for the Pentagon’s statement [Thursday] (reiterated by Gibbs as the official US line on this story) that the Telegraph “demonstrated an inability to get the facts right,” here is what I say: the Pentagon, whose personnel allegedly commited the torture described by Gen. Taguba, is not an independent observer here to say the least. In fact, the Pentagon has “demonstrated an inability to get the facts right.”

© 2009 Jeremy Scahill

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.

Abu Ghraib Abuse Photos ‘Show Rape’ May 28, 2009

Posted by rogerhollander in Human Rights, Iraq and Afghanistan, Torture.
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Published on Thursday, May 28, 2009 by The Telegraph/UK

Photographs of alleged prisoner abuse which Barack Obama is attempting to censor include images of apparent rape and sexual abuse, it has emerged.

by Duncan Gardham, Security Correspondent and Paul Cruickshank

At least one picture shows an American soldier apparently raping a female prisoner while another is said to show a male translator raping a male detainee.

 

[PHOTOGRAPHS of Iraqi prisoner abuse which US President Barack Obama does not want released include images of apparent rape and sexual abuse, Britain's Daily Telegraph newspaper reported. Prison guards secure the main gate of the newly named Baghdad Central Prison in Baghdad's Abu Ghraib February 21, 2009. REUTERS/Mohammed Ameen]PHOTOGRAPHS of Iraqi prisoner abuse which US President Barack Obama does not want released include images of apparent rape and sexual abuse, Britain’s Daily Telegraph newspaper reported. Prison guards secure the main gate of the newly named Baghdad Central Prison in Baghdad’s Abu Ghraib February 21, 2009.REUTERS/Mohammed Ameen

Further photographs are said to depict sexual assaults on prisoners with objects including a truncheon, wire and a phosphorescent tube.

Another apparently shows a female prisoner having her clothing forcibly removed to expose her breasts. 

Detail of the content emerged from Major General Antonio Taguba, the former army officer who conducted an inquiry into the Abu Ghraib jail in Iraq.

Allegations of rape and abuse were included in his 2004 report but the fact there were photographs was never revealed. He has now confirmed their existence in an interview with the Daily Telegraph.

The graphic nature of some of the images may explain the US President’s attempts to block the release of an estimated 2,000 photographs from prisons in Iraq and Afghanistan despite an earlier promise to allow them to be published.

Maj Gen Taguba, who retired in January 2007, said he supported the President’s decision, adding: “These pictures show torture, abuse, rape and every indecency.

“I am not sure what purpose their release would serve other than a legal one and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them, and British troops who are trying to build security in Afghanistan.

“The mere description of these pictures is horrendous enough, take my word for it.”

In April, Mr Obama’s administration said the photographs would be released and it would be “pointless to appeal” against a court judgment in favour of the American Civil Liberties Union (ACLU).

But after lobbying from senior military figures, Mr Obama changed his mind saying they could put the safety of troops at risk.

Earlier this month, he said: “The most direct consequence of releasing them, I believe, would be to inflame anti-American public opinion and to put our troops in greater danger.”

It was thought the images were similar to those leaked five years ago, which showed naked and bloody prisoners being intimidated by dogs, dragged around on a leash, piled into a human pyramid and hooded and attached to wires.

Mr Obama seemed to reinforce that view by adding: “I want to emphasise that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib.”

The latest photographs relate to 400 cases of alleged abuse between 2001 and 2005 in Abu Ghraib and six other prisons. Mr Obama said the individuals involved had been “identified, and appropriate actions” taken.

Maj Gen Taguba’s internal inquiry into the abuse at Abu Ghraib, included sworn statements by 13 detainees, which, he said in the report, he found “credible based on the clarity of their statements and supporting evidence provided by other witnesses.”

Among the graphic statements, which were later released under US freedom of information laws, is that of Kasim Mehaddi Hilas in which he says: “I saw [name of a translator] ******* a kid, his age would be about 15 to 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard screaming I climbed the door because on top it wasn’t covered and I saw [name] who was wearing the military uniform, putting his **** in the little kid’s ***…. and the female soldier was taking pictures.”

The translator was an American Egyptian who is now the subject of a civil court case in the US.

Three detainees, including the alleged victim, refer to the use of a phosphorescent tube in the sexual abuse and another to the use of wire, while the victim also refers to part of a policeman’s “stick” all of which were apparently photographed.

© Copyright of Telegraph Media Group Limited 2009

If Obama Cedes Ground on Torture to Cheney, We’ll All Pay a Heavy Price May 25, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, Torture.
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Published on Monday, May 25, 2009 by The Guardian/UK

By acknowledging recent crimes while refusing to pursue the criminals, the president has made his position untenable

by Gary Younge

‘Every government ­assumes deeds and ­misdeeds of the past,” writes Hannah Arendt in Eichmann and the Holocaust. “It means hardly more, generally speaking, than that every generation, by virtue of being born into a historical continuum, is burdened by the sins of the fathers as it is blessed with the deeds of the ancestors.”

For Barack Obama this cuts both ways. Talented as he is, he looks much more so when compared with the man who preceded him. Just by showing up and stringing a few coherent sentences together, he embodies an improvement. To earn acclaim in these early months, he hasn’t had to do anything good. He merely had to announce that he would stop doing things that were bad.

On the other hand, he has inherited the scarred landscape of his predecessor’s tenure. Bush’s wars, banks, car companies, secret prisons and untried prisoners are now his. As the candidate he may have promised change, but as the president he must also simulate some sense of continuity. Soaring ­rhetoric, however hopeful about the future, cannot erase the past, which has a habit of remaining with us.

Herein lies the tension in Obama’s deeply flawed attempts to come to terms with America’s recent disgraceful record of torture and detainment. As a candidate he was consistent on two points. First, he was opposed to torture and would close Guantánamo Bay. “I believe that we must reject torture ­without equivocation because it does not make us safe, it results in unreliable intelligence, it puts our troops at risk, and it contradicts core American ­values.” Second, he had no desire to prosecute those who have been guilty of human rights abuses. “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch-hunt, because I think we’ve got too many problems to solve.”

In short, by acknowledging the crimes while refusing to pursue the criminals he has promised to rectify America’s grim recent history without ever ­reckoning with it.

Events over the past few weeks have shown just how ethically and politically untenable this situation really is. His first term looks as though it may be ­consumed by these issues anyway – and not on his terms. Having released the torture memos, Obama then reversed his position on releasing photographs that accompanied them on the grounds that to do so would endanger US troops. Having opposed trying Guantánamo prisoners under military commissions, he now supports it. His decision to close Guantánamo has been delivered a huge blow by the Senate, which voted 90-6 to deny the funds necessary to do so. Now he has proposed that suspects who cannot be tried in a federal court because evidence against them was obtained under torture could be held in “prolonged detention” in the US ­without trial.

In essence, he would transfer the legal architecture of Guantánamo to the mainland, as though the problem were one of geography rather than principle. So much for core American values.

On one level we should not be surprised. Obama was elected by Americans to represent American interests – which, in turn, are informed by American political realities. And the reality is that, with a few notable exceptions, the Democrats have consistently failed to provide an unswerving, principled opposition to torture whenever they have had the power to do so, for fear of being branded unpatriotic. Like their spinelessness over the Iraq war, this complicity in the name of pragmatism ultimately makes them more vulnerable to political attack, rather than less.

The speaker of the US House of ­Representatives, Nancy Pelosi, knows this only too well. When asked why she took impeachment off the table before the 2006 elections, she said: “What about these other people who voted for that war with no evidence … Are they going to be voting with us to impeach the president? Where are these ­Democrats going to be? Are they going to be voting for us to impeach a ­president who took us to war on ­information that they had also?”

This makes the recent fiasco over her confused accounts of whether and when the CIA mislead her on ­waterboarding seem all the more ­disingenuous. Allegations of torture from various sources were prevalent by that stage, and she chose not to believe them. Her silence made her complicit, leaving her territory on the moral high ground foreclosed.

This should leave us in no doubt as to where the ultimate responsibility lies. “Where all are guilty, no one is,” wrote Arendt. “Confessions of collective guilt are the best possible safeguard against the discovery of culprits, and the very magnitude of the crime the best excuse for doing nothing.”

This is precisely how those who have now left the Bush administration have played it. “The president instructed us that nothing we would do would be outside of our legal obligations under the convention against torture,” Condoleezza Rice said recently. “So by definition, if it was authorised by the president, it did not violate our obligations under the convention against torture.”

But in the absence of moral leadership the national conversation has morphed seamlessly from human rights to national security, where the issue of torture and detention is debated not on the grounds of morality but efficacy.

With the former vice-president Dick Cheney leading the charge, the right has managed to mount a spirited defence of torture in which America’s rights as the potential, abstract victim of terrorism supersede detainees’ rights as actual victims of torture.

In the heady days following 9/11, argues Cheney, observing constitutional niceties and international conventions was a luxury they could not afford. Waterboarding, he said just last week, “prevented the violent deaths of thousands, if not hundreds of thousands, of innocent people”. Cheney insists that by closing Guantánamo and putting a halt to torture Obama is making the country less safe.

These arguments are not difficult to counter. There is not one shred of evidence any intelligence obtained as a result of torture has been used to prevent further attacks. The best intelligence the Bush administration ever had was a month before 9/11, when it rec­eived a memo entitled “Bin Laden determined to attack inside the US” from the FBI, warning of “patterns of suspicious activity in this country consistent with preparations for hijackings”. No torture was involved; no action was taken.

Conventions are devised precisely to set boundaries in moments of crisis – in periods of relative harmony there is not much need to refer to them. The Geneva convention, in particular, was devised to establish the rules of engagement during times of war. If the very fact of being at war is reason enough to discard it, then it has no meaning.

And finally, if showing the world what America has done would inflame anti-American sentiment then maybe America shouldn’t do it in the first place.

The Obama administration’s desire to concentrate on the future is understandable. But the past has a legacy and the present has consequences. By ceding the principle to Cheney now we will all pay for it later.
© 2009 Guardian News and Media Limited

Gary Younge is a Guardian columnist and feature writer based in the US

EXCLUSIVE: Documents Describe Prisoner Abuse Photos Obama is Withholding May 16, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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Jason Leopold

www.opednews.com, Friday, 15 May 2009 06:46

U.S. Army soldiers in Afghanistan took dozens of pictures of their colleagues pointing assault rifles and pistols at the heads and backs of hooded and bound detainees and another photograph showed two male soldiers and one female solider pointing a broom to one detainee “as if I was sticking the end of a broom stick into [his] rectum,” according to the female soldier’s account as told to an Army criminal investigator.

President Barack Obama said Wednesday he would not release these photographs, reversing a promise he made a month ago, fearing it would stoke anti-American sentiment and endanger U.S. troops.

I found the documents that describes the photographs on the website of the American Civil Liberties Union. The ACLU obtained the files, but not the photographs, in 2005 as part of the organization’s wide-ranging Freedom of information Act lawsuit against the federal government related to the Bush administration’s treatment of “war on terror” prisoners in U.S. custody.

About 31 digital photographs contained on a compact disc discovered in June 2004 during an office clean-up at Bagram Airfield also depicted the corpse of “local national” who died from “apparent gunshot wounds” and uniformed U.S. soldiers from the Second Platoon of the 22nd Infantry Battalion stationed at Fire Base Tycze and Dae Rah Wod (DRW) kicking and punching prisoners whose heads were covered with “sand bags” and blindfolds and hands were “zipped-tied,” according to a U.S. Army criminal investigation. The documents related to that investigation can be found in these five separate files: [part 1] [part 2] [part 3] [part 4] [part 5].

The soldiers said they intended to keep the prisoner abuse photographs as “mementos” to recall their deployment in Afghanistan, according to an Army criminal investigation.

The Pentagon banned the use of hoods following the Abu Ghraib prison scandal, where shocking photos were leaked of sexual and physical abuse in 2004.  According to a report on prisoner abuse prepared for the Department of Defense by James Schlesinger, orders signed by Bush and Rumsfeld in 2002 and 2003 authorizing brutal interrogations “became policy” at Guantanamo and Abu Ghraib.

Amrit Singh, an ACLU staff attorney, confirmed that the photographs described in the documents were those that Obama has decided to withhold and that the ACLU has fought to gain access to the images for nearly six years.

The documents describing the photographs were part of separate reports prepared in May, August, and July 2004 by the Army’s Criminal Investigative Division into the abuse of detainees in U.S. custody in Afghanistan and Iraq.

Another photograph that was set for release at the end of month that is now being withheld was taken in December 2003 and was found on a government computer. The image shows three soldiers at the St. Mere Forward Operating Base posing with three Iraqi detainees “zip-tied to bars in a stress position, fully clothed, with hoods over their heads.”

One female soldier in the photo is pointing a broom “as if I was sticking the end of a broom stick into the rectum of a restrained detainee,” she testified to Army investigators in April 2004.

On March 27, 2004, this soldier sent an e-mail to an undisclosed number of her colleagues. She discovered that the photograph she appeared in had been widely disseminated and that she was under investigation.

“You guys have a picture of me holding a broom near a detainee,” says her e-mail, under the subject line “VERY IMPORTANT!!!!!” “I don’t have a copy of this picture anywhere…but some Marine got a hold of it and now I’m being investigated for detainee abuse. I guess one of you share the photos with the Marines…but either way, they have a copy of that picture.

“Anyway, this email serves two purposes. First, I know that at least one more of you guys is in the picture, but I cannot remember who. If I’m being investigated…I’m sure that the other individuals in this picture will be investigated as well, so heads up! Secondly, can I please have a copy of this picture ASAP!!! I can’t stress how badly I need this picture so I can show people that it was just a posed shot, and that I wasn’t physically beating anyone with a broom

One of the recipients of the soldier’s e-mail replied the same day with a copy of the photograph and a note that said “I can’t see how they think this is anything but fun.”

The female soldier interviewed by Army criminal investigators testified that she did not remember why the Iraqi prisoners in the photograph were “flexicuffed to the bars…and have sandbags covering their heads,” but “detainees were put in that stress position either because the interrogators felt that the detainee could provide further intelligence, or because the detainee was a disciplinary problem.” She said the detainees weren’t placed in that position for the photograph but were “already there when we decided to take the picture.”

That investigation was initiated by the Office of the Secretary of Defense, which was headed by Donald Rumsfeld and found evidence that several soldiers “committed the offenses of conspiracy, failure to obey a general order, and cruelty and maltreatment when they posed for an inappropriate photograph with detainees.  

The female solider who appeared in the photo testified, “The other interrogators and I did not have a lot of work to do for a couple of days. Myself and several other MPs… were fooling around in the prison, and SGT [redacted] took several photographs.”

The soldier said “everyone” was taking pictures and he was unaware of a “no picture” taking policy. “It was always an [military interrogator] call to zip-tie them and put them in certain positions.”

The Army investigative report into the photographs found on the compact disc is more than 500 pages and determined that eight soldiers, whose identities were redacted, “committed the offense of dereliction of duty, when as guards detailed to secure and protect detainees, they willfully failed to perform their duties with no reasonable or just excuse, by jokingly pointing weapons at the bound detainees, and exposed photographs of this unwarranted activity.”

Soldiers admitted that dozens of other photographs of prisoner abuse were destroyed after the Abu Ghraib prison scandal broke in May 2004. A separate Army criminal report prepared that month also found that a soldier “possessed a photograph of himself pointing what appears to be a pistol at an unidentified [prisoner], whose hands were tied and his head covered laying down.”

The soldiers interviewed said Special Forces out of Fort Bragg was in charge of operating the military facilities where the photographs were taken and had never provided soldiers with any written guidelines on how to handle detainees.

In addition, soldiers interviewed said Special Forces Psyops and military interrogation teams authorized them to “play loud music and keep detainees awake if the interrogators wanted them to.”

One soldier said they “kept the detainees awake by holding them up or by playing the loud music,” the report noted. The soldier said Special Forces instructed soldiers that prisoners who were “violent or had information” were “flex-cuffed on their hands, heads covered and not allowed to sleep.”

Sleep deprivation, which is what the soldier appears to be describing, would be a violation of the Geneva Conventions ban on cruel and inhumane treatment and underscores how the Bush administration’s interrogation policies trickled down to low-level soldiers in Afghanistan and Iraq.

One solider admitted during a July 2004 interview with an Army investigator that he took “bad photographs” before “the incident in Iraq,” which is likely a reference to the Abu Ghraib prison scandal. The soldier characterized the “bad photographs” as those in which the “public would be outraged” if it was released. He went on to state “that he was standing behind a prisoner with a weapon holding it at their head” in one of the two photographs he appeared in.

The corpse of the dead Afghanistan national was photographed sometime in January 2004 after he was shot to death by U.S. soldiers who believed he was responsible for a rocket-propelled grenade attack on Fire Base Tycze that seriously wounded three U.S. Soldiers. However, an investigation into the incident was never conducted.

Most of the soldiers interviewed in all of the incidents stated that they were not aware of any set policy on the treatment of detainees, and did not realize at the time that their actions were wrong nor did they believe it was inappropriate. A sergeant stated that he had also seen pictures on Army computers of detainees being kicked, hit or inhumanely treated while in U.S. custody.

Another soldier said he had “seen a few pictures of this nature before but thought nothing of it since these people are the ones that are trying to kill us.”

On Wednesday, Obama told reporters that the photographs “are not particularly sensational.”

Obama said that his decision to withhold the photographs stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan. But pressure from Bush administration holdovers, the media and two senators also played a role.

Obama’s reversal marks a renewal of U.S. hypocrisy regarding the abuse of detainees and the hiding of evidence about such crimes.

For instance, last September in upholding a lower court ruling ordering the release of the photos, the U.S. Court of Appeals for the 2nd Circuit noted that past U.S. administrations had championed the release of photos that showed prisoners of war being abused and tortured.

Notably, after World War II, the U.S. government publicized photos of prisoners in Japanese and German prisons and concentration camps, which the court noted, “showed emaciated prisoners, subjugated detainees, and even corpses. But the United States championed the use of the photos as a means of holding the perpetrators accountable.”

The Bush administration’s legal arguments were rife with other examples of hypocrisy, including an argument that release of the photos – even with the personal characteristics of detainees obscured – would violate their privacy rights under the Geneva Conventions.

The irony was that the Bush administration – with the help of legal opinions drafted by Justice Department lawyers – had maintained that detainees from the war in Afghanistan and the larger “war on terror” were not entitled to prisoner of war protections under the Geneva Conventions.

Indeed, an action memo signed by President Bush on Feb. 7, 2002, opened the door to abusive treatment by declaring that the Third Geneva Convention, which sets standards for treatment of prisoners from armed conflicts, did not apply to the conflict with al-Qaeda and that Taliban detainees were not entitled to the convention’s legal protections.

The ACLU argued that the Bush administration’s legal strategy was “surprising because there would be no photos of abuse to request had the government cared this much about the Geneva Conventions before the abuses occurred and the photos were taken.”

In disputing the administration’s selective application of these international standards, the ACLU noted “the Geneva Conventions were designed to prevent the abuse of prisoners, not to derail efforts to hold the government accountable for those abuses.”

Federal courts agreed with the ACLU’s arguments. The 2nd Circuit Court of Appeals deemed the Bush administration’s position legally flawed and added that releasing “the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”

The appeals court also shot down the Bush administration’s attempt to radically expand Freedom of Information Act exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as “an all-purpose damper on global controversy.”

The Obama administration has until June 9 either to reargue the case before the 2nd U.S. Circuit Court of Appeals in New York or to petition the U.S. Supreme Court to review the matter.

Copyright © 2008 The Public Record. All rights reserved.

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