Was Hiroshima Necessary? August 11, 2012Posted by rogerhollander in History, Nuclear weapons/power, War.
Tags: alperovitz, atomic bomb, churchill, eisenhower, fdr, hiroshima, history, japanese surrender, macarthur, nagasaki, nuclear, potsdam, roger hollander, stalin, togo, truman, world war II, yalta
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Roger’s note: The “official” justification for the bombing of Hiroshima and Nagasaki is that it saved countless thousands of lives by avoiding a full-scale invasion of Japan to end the war. American soldiers heaved a sigh of relief when they saw the war was ended without further need for military action and the consequent loss of American lives. The following article debunks this view of history. From it one can only conclude that the bombing of these two civilian populated cities that had no strategic military value was an act of barbarism. From Hiroshima through to Vietnam through to today’s predator drone missiles, we see the logical extension of the American experiment, whose lofty an oft cited humanitarian and democratic goals are belied by its origins in the genocide of the First Nations’ peoples and the forced enslavement of Africans. And what do we see today? The astute leaders of both political parties of the first and only nation to use atomic weaponry, a nation with stockpiles of nuclear weapons that could blow up the entire planet several times over — we see this so-called leader ship leading us into the possible holocaust of nuclear war in the Middle East via the demonization of a country, Iran, which does not yet possess a single nuclear warhead. A deadly irony.
By Mark Weber
On August 6, 1945, the world dramatically entered the atomic age: without either warning or precedent, an American plane dropped a single nuclear bomb on the Japanese city of Hiroshima. The explosion utterly destroyed more than four square miles of the city center. About 90,000 people were killed immediately; another 40,000 were injured, many of whom died in protracted agony from radiation sickness. Three days later, a second atomic strike on the city of Nagasaki killed some 37,000 people and injured another 43,000. Together the two bombs eventually killed an estimated 200,000 Japanese civilians.
Between the two bombings, Soviet Russia joined the United States in war against Japan. Under strong US prodding, Stalin broke his regime’s 1941 non-aggression treaty with Tokyo. On the same day that Nagasaki was destroyed, Soviet troops began pouring into Manchuria, overwhelming Japanese forces there. Although Soviet participation did little or nothing to change the military outcome of the war, Moscow benefitted enormously from joining the conflict.
In a broadcast from Tokyo the next day, August 10, the Japanese government announced its readiness to accept the joint American-British “unconditional surrender” declaration of Potsdam, “with the understanding that the said declaration does not compromise any demand which prejudices the prerogatives of His Majesty as a Sovereign Ruler.”
A day later came the American reply, which included these words: “From the moment of surrender the authority of the Emperor and the Japanese Government to rule the State shall be subject to the Supreme Commander of the Allied Powers.” Finally, on August 14, the Japanese formally accepted the provisions of the Potsdam declaration, and a “cease fire” was announced. On September 2, Japanese envoys signed the instrument of surrender aboard the US battleship Missouri in Tokyo Bay.
A Beaten Country
Apart from the moral questions involved, were the atomic bombings militarily necessary? By any rational yardstick, they were not. Japan already had been defeated militarily by June 1945. Almost nothing was left of the once mighty Imperial Navy, and Japan’s air force had been all but totally destroyed. Against only token opposition, American war planes ranged at will over the country, and US bombers rained down devastation on her cities, steadily reducing them to rubble.
What was left of Japan’s factories and workshops struggled fitfully to turn out weapons and other goods from inadequate raw materials. (Oil supplies had not been available since April.) By July about a quarter of all the houses in Japan had been destroyed, and her transportation system was near collapse. Food had become so scarce that most Japanese were subsisting on a sub-starvation diet.
On the night of March 9-10, 1945, a wave of 300 American bombers struck Tokyo, killing 100,000 people. Dropping nearly 1,700 tons of bombs, the war planes ravaged much of the capital city, completely burning out 16 square miles and destroying a quarter of a million structures. A million residents were left homeless.
On May 23, eleven weeks later, came the greatest air raid of the Pacific War, when 520 giant B-29 “Superfortress” bombers unleashed 4,500 tons of incendiary bombs on the heart of the already battered Japanese capital. Generating gale-force winds, the exploding incendiaries obliterated Tokyo’s commercial center and railway yards, and consumed the Ginza entertainment district. Two days later, on May 25, a second strike of 502 “Superfortress” planes roared low over Tokyo, raining down some 4,000 tons of explosives. Together these two B-29 raids destroyed 56 square miles of the Japanese capital.
Even before the Hiroshima attack, American air force General Curtis LeMay boasted that American bombers were “driving them [Japanese] back to the stone age.” Henry H. (“Hap”) Arnold, commanding General of the Army air forces, declared in his 1949 memoirs: “It always appeared to us, atomic bomb or no atomic bomb, the Japanese were already on the verge of collapse.” This was confirmed by former Japanese prime minister Fumimaro Konoye, who said: “Fundamentally, the thing that brought about the determination to make peace was the prolonged bombing by the B-29s.”
Japan Seeks Peace
Months before the end of the war, Japan’s leaders recognized that defeat was inevitable. In April 1945 a new government headed by Kantaro Suzuki took office with the mission of ending the war. When Germany capitulated in early May, the Japanese understood that the British and Americans would now direct the full fury of their awesome military power exclusively against them.
American officials, having long since broken Japan’s secret codes, knew from intercepted messages that the country’s leaders were seeking to end the war on terms as favorable as possible. Details of these efforts were known from decoded secret communications between the Foreign Ministry in Tokyo and Japanese diplomats abroad.
In his 1965 study, Atomic Diplomacy: Hiroshima and Potsdam (pp. 107, 108), historian Gar Alperovitz writes:
Although Japanese peace feelers had been sent out as early as September 1944 (and [China's] Chiang Kai-shek had been approached regarding surrender possibilities in December 1944), the real effort to end the war began in the spring of 1945. This effort stressed the role of the Soviet Union …
In mid-April  the [US] Joint Intelligence Committee reported that Japanese leaders were looking for a way to modify the surrender terms to end the war. The State Department was convinced the Emperor was actively seeking a way to stop the fighting.
A Secret Memorandum
It was only after the war that the American public learned about Japan’s efforts to bring the conflict to an end. Chicago Tribune reporter Walter Trohan, for example, was obliged by wartime censorship to withhold for seven months one of the most important stories of the war.
In an article that finally appeared August 19, 1945, on the front pages of the Chicago Tribune and the Washington Times-Herald, Trohan revealed that on January 20, 1945, two days prior to his departure for the Yalta meeting with Stalin and Churchill, President Roosevelt received a 40-page memorandum from General Douglas MacArthur outlining five separate surrender overtures from high-level Japanese officials. (The complete text of Trohan’s article is in the Winter 1985-86 Journal, pp. 508-512.)
This memo showed that the Japanese were offering surrender terms virtually identical to the ones ultimately accepted by the Americans at the formal surrender ceremony on September 2 — that is, complete surrender of everything but the person of the Emperor. Specifically, the terms of these peace overtures included:
- Complete surrender of all Japanese forces and arms, at home, on island possessions, and in occupied countries.
- Occupation of Japan and its possessions by Allied troops under American direction.
- Japanese relinquishment of all territory seized during the war, as well as Manchuria, Korea and Taiwan.
- Regulation of Japanese industry to halt production of any weapons and other tools of war.
- Release of all prisoners of war and internees.
- Surrender of designated war criminals.
Is this memorandum authentic? It was supposedly leaked to Trohan by Admiral William D. Leahy, presidential Chief of Staff. (See: M. Rothbard in A. Goddard, ed., Harry Elmer Barnes: Learned Crusader , pp. 327f.) Historian Harry Elmer Barnes has related (in “Hiroshima: Assault on a Beaten Foe,” National Review, May 10, 1958):
The authenticity of the Trohan article was never challenged by the White House or the State Department, and for very good reason. After General MacArthur returned from Korea in 1951, his neighbor in the Waldorf Towers, former President Herbert Hoover, took the Trohan article to General MacArthur and the latter confirmed its accuracy in every detail and without qualification.
In April and May 1945, Japan made three attempts through neutral Sweden and Portugal to bring the war to a peaceful end. On April 7, acting Foreign Minister Mamoru Shigemitsu met with Swedish ambassador Widon Bagge in Tokyo, asking him “to ascertain what peace terms the United States and Britain had in mind.” But he emphasized that unconditional surrender was unacceptable, and that “the Emperor must not be touched.” Bagge relayed the message to the United States, but Secretary of State Stettinius told the US Ambassador in Sweden to “show no interest or take any initiative in pursuit of the matter.” Similar Japanese peace signals through Portugal, on May 7, and again through Sweden, on the 10th, proved similarly fruitless.
By mid-June, six members of Japan’s Supreme War Council had secretly charged Foreign Minister Shigenori Togo with the task of approaching Soviet Russia’s leaders “with a view to terminating the war if possible by September.” On June 22 the Emperor called a meeting of the Supreme War Council, which included the Prime Minister, the Foreign Minister, and the leading military figures. “We have heard enough of this determination of yours to fight to the last soldiers,” said Emperor Hirohito. “We wish that you, leaders of Japan, will strive now to study the ways and the means to conclude the war. In doing so, try not to be bound by the decisions you have made in the past.”
By early July the US had intercepted messages from Togo to the Japanese ambassador in Moscow, Naotake Sato, showing that the Emperor himself was taking a personal hand in the peace effort, and had directed that the Soviet Union be asked to help end the war. US officials also knew that the key obstacle to ending the war was American insistence on “unconditional surrender,” a demand that precluded any negotiations. The Japanese were willing to accept nearly everything, except turning over their semi-divine Emperor. Heir of a 2,600-year-old dynasty, Hirohito was regarded by his people as a “living god” who personified the nation. (Until the August 15 radio broadcast of his surrender announcement, the Japanese people had never heard his voice.) Japanese particularly feared that the Americans would humiliate the Emperor, and even execute him as a war criminal.
On July 12, Hirohito summoned Fumimaro Konoye, who had served as prime minister in 1940-41. Explaining that “it will be necessary to terminate the war without delay,” the Emperor said that he wished Konoye to secure peace with the Americans and British through the Soviets. As Prince Konoye later recalled, the Emperor instructed him “to secure peace at any price, notwithstanding its severity.”
The next day, July 13, Foreign Minister Shigenori Togo wired ambassador Naotake Sato in Moscow: “See [Soviet foreign minister] Molotov before his departure for Potsdam … Convey His Majesty’s strong desire to secure a termination of the war … Unconditional surrender is the only obstacle to peace …”
On July 17, another intercepted Japanese message revealed that although Japan’s leaders felt that the unconditional surrender formula involved an unacceptable dishonor, they were convinced that “the demands of the times” made Soviet mediation to terminate the war absolutely essential. Further diplomatic messages indicated that the only condition asked by the Japanese was preservation of “our form of government.” The only “difficult point,” a July 25 message disclosed, “is the … formality of unconditional surrender.”
Summarizing the messages between Togo and Sato, US naval intelligence said that Japan’s leaders, “though still balking at the term unconditional surrender,” recognized that the war was lost, and had reached the point where they have “no objection to the restoration of peace on the basis of the  Atlantic Charter.” These messages, said Assistant Secretary of the Navy Lewis Strauss, “indeed stipulated only that the integrity of the Japanese Royal Family be preserved.”
Navy Secretary James Forrestal termed the intercepted messages “real evidence of a Japanese desire to get out of the war.” “With the interception of these messages,” notes historian Alperovitz (p. 177), “there could no longer be any real doubt as to the Japanese intentions; the maneuvers were overt and explicit and, most of all, official acts. Koichi Kido, Japan’s Lord Privy Seal and a close advisor to the Emperor, later affirmed: “Our decision to seek a way out of this war, was made in early June before any atomic bomb had been dropped and Russia had not entered the war. It was already our decision.”
In spite of this, on July 26 the leaders of the United States and Britain issued the Potsdam declaration, which included this grim ultimatum: “We call upon the government of Japan to proclaim now the unconditional surrender of all Japanese armed forces and to provide proper and adequate assurance of good faith in such action. The alternative for Japan is prompt and utter destruction.”
Commenting on this draconian either-or proclamation, British historian J.F.C. Fuller wrote: “Not a word was said about the Emperor, because it would be unacceptable to the propaganda-fed American masses.” (A Military History of the Western World , p. 675.)
America’s leaders understood Japan’s desperate position: the Japanese were willing to end the war on any terms, as long as the Emperor was not molested. If the US leadership had not insisted on unconditional surrender — that is, if they had made clear a willingness to permit the Emperor to remain in place — the Japanese very likely would have surrendered immediately, thus saving many thousands of lives.
The sad irony is that, as it actually turned out, the American leaders decided anyway to retain the Emperor as a symbol of authority and continuity. They realized, correctly, that Hirohito was useful as a figurehead prop for their own occupation authority in postwar Japan.
President Truman steadfastly defended his use of the atomic bomb, claiming that it “saved millions of lives” by bringing the war to a quick end. Justifying his decision, he went so far as to declare: “The world will note that the first atomic bomb was dropped on Hiroshima, a military base. That was because we wished in this first attack to avoid, insofar as possible, the killing of civilians.”
This was a preposterous statement. In fact, almost all of the victims were civilians, and the United States Strategic Bombing Survey (issued in 1946) stated in its official report: “Hiroshima and Nagasaki were chosen as targets because of their concentration of activities and population.”
If the atomic bomb was dropped to impress the Japanese leaders with the immense destructive power of a new weapon, this could have been accomplished by deploying it on an isolated military base. It was not necessary to destroy a large city. And whatever the justification for the Hiroshima blast, it is much more difficult to defend the second bombing of Nagasaki.
All the same, most Americans accepted, and continue to accept, the official justifications for the bombings. Accustomed to crude propagandistic portrayals of the “Japs” as virtually subhuman beasts, most Americans in 1945 heartily welcomed any new weapon that would wipe out more of the detested Asians, and help avenge the Japanese attack on Pearl Harbor. For the young Americans who were fighting the Japanese in bitter combat, the attitude was “Thank God for the atom bomb.” Almost to a man, they were grateful for a weapon whose deployment seemed to end the war and thus allow them to return home.
After the July 1943 firestorm destruction of Hamburg, the mid-February 1945 holocaust of Dresden, and the fire-bombings of Tokyo and other Japanese cities, America’s leaders — as US Army General Leslie Groves later commented — “were generally inured to the mass killing of civilians.” For President Harry Truman, the killing of tens of thousands of Japanese civilians was simply not a consideration in his decision to use the atom bomb.
Amid the general clamor of enthusiasm, there were some who had grave misgivings. “We are the inheritors to the mantle of Genghis Khan,” wrote New York Times editorial writer Hanson Baldwin, “and of all those in history who have justified the use of utter ruthlessness in war.” Norman Thomas called Nagasaki “the greatest single atrocity of a very cruel war.” Joseph P. Kennedy, father of the President, was similarly appalled.
A leading voice of American Protestantism, Christian Century, strongly condemned the bombings. An editorial entitled “America’s Atomic Atrocity” in the issue of August 29, 1945, told readers:
The atomic bomb was used at a time when Japan’s navy was sunk, her air force virtually destroyed, her homeland surrounded, her supplies cut off, and our forces poised for the final stroke … Our leaders seem not to have weighed the moral considerations involved. No sooner was the bomb ready than it was rushed to the front and dropped on two helpless cities … The atomic bomb can fairly be said to have struck Christianity itself … The churches of America must dissociate themselves and their faith from this inhuman and reckless act of the American Government.
A leading American Catholic voice, Commonweal, took a similar view. Hiroshima and Nagasaki, the magazine editorialized, “are names for American guilt and shame.”
Pope Pius XII likewise condemned the bombings, expressing a view in keeping with the traditional Roman Catholic position that “every act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man.” The Vatican newspaper Osservatore Romano commented in its August 7, 1945, issue: “This war provides a catastrophic conclusion. Incredibly this destructive weapon remains as a temptation for posterity, which, we know by bitter experience, learns so little from history.”
Authoritative Voices of Dissent
American leaders who were in a position to know the facts did not believe, either at the time or later, that the atomic bombings were needed to end the war.
When he was informed in mid-July 1945 by Secretary of War Henry L. Stimson of the decision to use the atomic bomb, General Dwight Eisenhower was deeply troubled. He disclosed his strong reservations about using the new weapon in his 1963 memoir, The White House Years: Mandate for Change, 1953-1956 (pp. 312-313):
During his [Stimson's] recitation of the relevant facts, I had been conscious of a feeling of depression and so I voiced to him my grave misgivings, first on the basis of my belief that Japan was already defeated and that dropping the bomb was completely unnecessary, and secondly because I thought that our country should avoid shocking world opinion by the use of a weapon whose employment was, I thought, no longer mandatory as a measure to save American lives. It was my belief that Japan was, at that very moment, seeking some way to surrender with a minimum loss of “face.”
“The Japanese were ready to surrender and it wasn’t necessary to hit them with that awful thing … I hated to see our country be the first to use such a weapon,” Eisenhower said in 1963.
Shortly after “V-J Day,” the end of the Pacific war, Brig. General Bonnie Fellers summed up in a memo for General MacArthur: “Neither the atomic bombing nor the entry of the Soviet Union into the war forced Japan’s unconditional surrender. She was defeated before either these events took place.”
Similarly, Admiral Leahy, Chief of Staff to presidents Roosevelt and Truman, later commented:
It is my opinion that the use of the barbarous weapon at Hiroshima and Nagasaki was of no material assistance in our war against Japan … The Japanese were already defeated and ready to surrender because of the effective sea blockade and the successful bombing with conventional weapons … My own feeling was that in being the first to use it, we had adopted an ethical standard common to the barbarians of the Dark Ages. I was not taught to make war in that fashion, and wars cannot be won by destroying women and children.
If the United States had been willing to wait, said Admiral Ernest King, US Chief of Naval Operations, “the effective naval blockade would, in the course of time, have starved the Japanese into submission through lack of oil, rice, medicines, and other essential materials.”
Leo Szilard, a Hungarian-born scientist who played a major role in the development of the atomic bomb, argued against its use. “Japan was essentially defeated,” he said, and “it would be wrong to attack its cities with atomic bombs as if atomic bombs were simply another military weapon.” In a 1960 magazine article, Szilard wrote: “If the Germans had dropped atomic bombs on cities instead of us, we would have defined the dropping of atomic bombs on cities as a war crime, and we would have sentenced the Germans who were guilty of this crime to death at Nuremberg and hanged them.”
US Strategic Bombing Survey Verdict
After studying this matter in great detail, the United States Strategic Bombing Survey rejected the notion that Japan gave up because of the atomic bombings. In its authoritative 1946 report, the Survey concluded:
The Hiroshima and Nagasaki bombs did not defeat Japan, nor by the testimony of the enemy leaders who ended the war did they persuade Japan to accept unconditional surrender. The Emperor, the Lord Privy Seal, the Prime Minister, the Foreign Minister, and the Navy Minister had decided as early as May of 1945 that the war should be ended even if it meant acceptance of defeat on allied terms …
The mission of the Suzuki government, appointed 7 April 1945, was to make peace. An appearance of negotiating for terms less onerous than unconditional surrender was maintained in order to contain the military and bureaucratic elements still determined on a final Bushido defense, and perhaps even more importantly to obtain freedom to create peace with a minimum of personal danger and internal obstruction. It seems clear, however, that in extremis the peacemakers would have peace, and peace on any terms. This was the gist of advice given to Hirohito by the Jushin in February, the declared conclusion of Kido in April, the underlying reason for Koiso’s fall in April, the specific injunction of the Emperor to Suzuki on becoming premier which was known to all members of his cabinet …
Negotiations for Russia to intercede began the forepart of May 1945 in both Tokyo and Moscow. Konoye, the intended emissary to the Soviets, stated to the Survey that while ostensibly he was to negotiate, he received direct and secret instructions from the Emperor to secure peace at any price, notwithstanding its severity …
It seems clear … that air supremacy and its later exploitation over Japan proper was the major factor which determined the timing of Japan’s surrender and obviated any need for invasion.
Based on a detailed investigation of all the facts and supported by the testimony of the surviving Japanese leaders involved, it is the Survey’s opinion that certainly prior to 31 December 1945 and in all probability prior to 1 November 1945 [the date of the planned American invasion], Japan would have surrendered even if the atomic bombs had not been dropped, even if Russia had not entered the war, and even if no invasion had been planned or contemplated.
In a 1986 study, historian and journalist Edwin P. Hoyt nailed the “great myth, perpetuated by well-meaning people throughout the world,” that “the atomic bomb caused the surrender of Japan.” In Japan’s War: The Great Pacific Conflict (p. 420), he explained:
The fact is that as far as the Japanese militarists were concerned, the atomic bomb was just another weapon. The two atomic bombs at Hiroshima and Nagasaki were icing on the cake, and did not do as much damage as the firebombings of Japanese cities. The B-29 firebombing campaign had brought the destruction of 3,100,000 homes, leaving 15 million people homeless, and killing about a million of them. It was the ruthless firebombing, and Hirohito’s realization that if necessary the Allies would completely destroy Japan and kill every Japanese to achieve “unconditional surrender” that persuaded him to the decision to end the war. The atomic bomb is indeed a fearsome weapon, but it was not the cause of Japan’s surrender, even though the myth persists even to this day.
In a trenchant new book, The Decision to Drop the Atomic Bomb (Praeger, 1996), historian Dennis D. Wainstock concludes that the bombings were not only unnecessary, but were based on a vengeful policy that actually harmed American interests. He writes (pp. 124, 132):
… By April 1945, Japan’s leaders realized that the war was lost. Their main stumbling block to surrender was the United States’ insistence on unconditional surrender. They specifically needed to know whether the United States would allow Hirohito to remain on the throne. They feared that the United States would depose him, try him as a war criminal, or even execute him …
Unconditional surrender was a policy of revenge, and it hurt America’s national self-interest. It prolonged the war in both Europe and East Asia, and it helped to expand Soviet power in those areas.
General Douglas MacArthur, Commander of US Army forces in the Pacific, stated on numerous occasions before his death that the atomic bomb was completely unnecessary from a military point of view: “My staff was unanimous in believing that Japan was on the point of collapse and surrender.”
General Curtis LeMay, who had pioneered precision bombing of Germany and Japan (and who later headed the Strategic Air Command and served as Air Force chief of staff), put it most succinctly: “The atomic bomb had nothing to do with the end of the war.”
From The Journal of Historical Review, May-June 1997 (Vol. 16, No. 3), pages 4-11.]
Is the White House Pressuring DOJ to Delay Torture Report Until Health Care Bill Passes? January 27, 2010Posted by rogerhollander in Criminal Justice, Torture.
Tags: aclu, constitution, Criminal Justice, doj, eric holder, foia, geneva conventions, jason leopold, jaybee, john yoo, justice, justice department, nuremberg, olc, opr, roger hollander, steven bradbury, supreme court, torture, torture memo, truman
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Tuesday 26 January 2010
Did the Obama administration pressure the Department of Justice (DOJ) to suppress a long-awaited report from one of the agency’s watchdogs on issues revolving around torture until Congress passes a health care bill?
That’s what senior aides to two Democratic lawmakers who have been closely tracking the report have alleged in interviews conducted over the past month.
The report, prepared by the DOJ’s Office of Professional Responsibility (OPR), examined the legal work former Office of Legal Counsel (OLC) attorneys John Yoo, Jay Bybee and Steven Bradbury performed for the Bush administration after 9/11 and is said to have reached damning conclusions.
It was supposed to be released last November, according to testimony Attorney General Eric Holder gave to Congress, after a career prosecutor completed a review, which Holder said at the time was in its “final stages.”
But the aides said in December, a couple of weeks after Holder testified, they participated in an informal meeting about the possibility of holding hearings when the report was released. During the discussion, someone raised questions about why the report was not yet released as Holder had promised.
The aides said that a senator, whose name they would not reveal, then disclosed that he was told by senior White House officials that if the report were released as planned it would have hurt the administration’s efforts to get a health care bill passed and impact the possibility of trying to win Republican support for the legislation, which never came to pass.
So, in early December, the senator claimed, according to the account given by the aides, the administration told the DOJ to delay releasing it.
Spokesmen for Democratic Sens. Sheldon Whitehouse and Dick Durbin, who have been instrumental in pushing for the report’s release, said they did not know why it has not yet surfaced nor were they aware of any claims that the report has been delayed until a health care bill passes.
In an interview early this month, Tracy Schmaler, a DOJ spokeswoman, disputed claims that the White House was pressuring the agency to withhold the report in lieu of a health care bill.
“That is absolutely untrue,” Schmaler said. “One thing has nothing to do with another.”
During our interview, Schmaler said the review “process is ongoing and we hope to have [the report] complete and released soon.”
Two DOJ officials familiar with details of the report said a delay in releasing it in the time frame Holder had promised was due, in part, to the fact that the career prosecutor charged with reviewing the final version was hospitalized in December for pneumonia.
However, they noted that that the prosecutor’s illness doesn’t account for why the report has still not been released, which they claim is due to “politics.” These sources requested anonymity because the details surrounding the report remain secret.
The possibility that politics may be the reason the report remains under wraps was not lost on the ACLU, which filed a lawsuit Friday in hopes of compelling the DOJ to immediately release the report.
In an interview, ACLU lawyer Alex Abdo, who, along with other attorneys at the civil rights organization, has successfully pried loose previously withheld documents related to the Bush administration’s torture policies, said “it’s possible political reasons might be holding up the release of the report.”
“It’s long overdue and this is an unacceptable delay,” Abdo said. “We haven’t seen any progress or received any public explanation.”
The group first filed a Freedom of Information Act (FOIA) request on December 4, 2009, when it became clear that the report was not going to be released in the time frame Holder promised that it would be. Abdo said the ACLU never received a response to its FOIA request. So, the organization filed another one last week. Earlier this month, a coalition of attorneys, journalists and activists also filed a FOIA request with the DOJ to obtain a copy of the report and other documents.
Abdo noted that when the report is finally released, “we will almost certainly see redactions [and the FOIA lawsuit will] serve as a placeholder to lodge challenges to excessive redactions in the report.”
In response to the ACLU’s complaint, Schmaler said that Holder has already stated “the department would make [the report] available as much as possible when it’s done.”
She added that there is “no delay” in releasing the report and, as she noted in a previous interview, she pointed to OPR “post investigation” guidelines, which details the process that takes place during the course of such internal investigations.
The OPR report was completed more than a year ago. It was revised after former Attorney General Michael Mukasey and his deputy, Mark Filip, insisted that Yoo, Bybee and Bradbury be given an opportunity to respond to its conclusions.
In his testimony last November, Holder said the report had not been released sooner due to “the amount of time we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then [OPR] had to react to those responses.”
Last month, several legal sources knowledgeable about the review process said Yoo filed additional responses to the report’s findings via his attorney, Miguel Estrada.
Estrada told Truthout he was bound by a confidentiality agreement he entered into with the DOJ and could not comment on the claims that he submitted another set of responses on behalf of Yoo.
Schmaler said she could not comment on the veracity of those claims.
According to the two DOJ officials, an original draft of the report had already concluded that when writing the August 2002 torture memo, Yoo failed to cite the key precedent relating to a president’s war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War.
Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.
But the Supreme Court overturned Truman’s order, saying, “the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Since Congress hadn’t delegated such authority to Truman, the Supreme Court ruled that Truman’s actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
Yoo’s memoranda concluded that the laws governing torture violated President Bush’s commander-in-chief powers under the Constitution because it prevented him “from gaining the intelligence he believes necessary to prevent attacks upon the United States.”
Yoo’s lengthy response to the OPR expanded upon a defense he first cited in his 2006 book, “War by Other Means,” in explaining why he didn’t cite Youngstown.
Yoo wrote: “we didn’t cite [Justice Robert] Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the president’s conduct of foreign affairs and national security.
“Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war …
“Far from inventing some novel interpretation of the Constitution, [Office of Legal Counsel, where Yoo, Bybee and Bradbury worked] was really doing little more than following in the footsteps of the Clinton Justice Department and all prior Justice Departments.”
It’s unknown whether Yoo made a convincing argument to OPR in defending his reasons for not citing the landmark ruling.
But a July 10, 2009, report by the inspectors general of the CIA, National Security Agency, DOJ and Defense Department into the Bush administration’s warrantless wiretapping program, which were based on legal opinions written by Yoo, also took Yoo to task for failing to cite Youngstown.
Yoo “omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches,” the report said.
“Justice [Robert] Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions,” the report said.
Ironically, as Congress continues to try and pass a health care bill that Democrats say wil expand insurance benefits to millions of Americans, the issue also plays a particularly important role in the OPR report.
The early draft of the OPR report concluded, legal sources said, that Yoo misinterpreted an obscure 2000 health benefits statute and wrongly applied it to August 2002 and March 2003 interrogation opinions he wrote, according to the DOJ officials.
Again, expanding upon a defense that first appeared in his book, Yoo placed some of the responsibility on Congress for forcing him to rely upon the statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.
In passing an anti-torture law, Congress only prohibited “severe physical or mental pain or suffering,” Yoo wrote. “The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe … OLC interpreted ‘severe’ as a level of pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions. [Emphasis added.]
“OLC’s first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’”
Jack Goldsmith, who succeeded Bybee at the OLC in October 2003 after Bybee was confirmed as an appeals court judge on the Ninth Circuit, wrote in his book, “The Terror Presidency,” that Yoo’s torture memo “was legally flawed” and sloppily written and he was harshly critical of Yoo’s use of a medical benefits statute to define torture.
“That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote.
“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”
Goldsmith rescinded the torture memo in mid-2004 and resigned shortly thereafter. His questions as to whether Yoo and Bybee provided the White House with sound legal advice sparked the OPR investigation.
Nothing to Fear But No Health Care January 13, 2009Posted by rogerhollander in Barack Obama, Health.
Tags: ama, amy goodman, Clinton, daschle, democrats, denis moynihan, fdr, francis perkins, general motors, health, health care, healthcare, insurance industry, iococca, medicare, michael moore, New Deal, nixon, Obama, roger hollander, sicko, single payer, truman, uninsured, universal health care, universal healthcare
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Posted on Jan 13, 2009 By Amy Goodman
Fifty million Americans are without health insurance, and 25 million are “underinsured.” Millions being laid off will soon be added to those rolls. Medical bills cause more than half of personal bankruptcies in the U.S. Desperate for care, the under- and uninsured flock to emergency rooms, often dealing with problems that could have been prevented. The U.S. auto giants are collapsing in part due to extraordinary health-care expenses, while they are competing with companies in countries that provide universal health care. Economist Dean Baker calculated how General Motors would fare if its health-care costs were the same as costs in Canada: “GM would have had higher profits, making no other changes … that would equal $22 billion over the course of the last decade. They wouldn’t have to be running to the government for help.” GM is sometimes referred to as a health-care company that makes cars. Former Chrysler Chairman Lee Iacocca said in 2005, “It is a well-known fact that the U.S. automobile industry spends more per car on health care than on steel.” He supports national health care. Barack Obama said in 2007 that “affordable, universal health care for every single American must not be a question of whether, it must be a question of how. … Every four years, health-care plans are offered up in campaigns with great fanfare and promise. But once those campaigns end, the plans collapse under the weight of Washington politics.” Franklin Delano Roosevelt, in his March 1933 inaugural address, famously declared: “We have nothing to fear but fear itself. … This nation asks for action, and action now.” Deep in the Great Depression, a flurry of ambitious policies followed, detailed by New York Times editorial writer Adam Cohen in his new book, “Nothing to Fear.” He writes that FDR developed the New Deal with key, visionary advisers and Cabinet members who enacted bold policies, among them Frances Perkins, the United States’ first woman Cabinet member. Perkins, FDR’s secretary of labor, pushed for a rapid, national relief program that formed the basis of the welfare system, and for regulations on minimum wage, maximum hours and a ban on child labor. But she failed to achieve universal health care. Cohen told me: “She really was the conscience of the New Deal in many ways … she chaired the Social Security committee. And she wanted it to go further … to include national health insurance, but the AMA (American Medical Association), even back then, was very strong and opposed it. And she and a couple other progressives on the committee said, you know, ‘We better just settle for what we can get.’ They didn’t want to lose the whole Social Security program.” Obama appointed former Sen. Tom Daschle as secretary of health and human services, and director of the new White House Office of Health Reform. Daschle’s health-care book, “Critical,” recalls historical failures to achieve universal care: “Like Clinton, Truman had reason to be confident. His fellow Democrats controlled both houses of Congress, and polls showed that Americans were anxious about the high cost of health care and eager for change. But both presidents underestimated the strength of the forces arrayed against them … [s]pecial-interest lobbyists—led by doctors in Truman’s time, and insurance companies in Clinton’s.” Obama knows well the issue—while his mother lay dying of cancer, she still had to battle the insurance industry. He said in that 2007 speech, “Plans that tinker and halfway measures now belong to yesterday … we can’t afford another disappointing charade … we need to look at … how much of our health-care spending is going toward the record-breaking profits earned by the drug and health-care industry.” Yet Daschle proposes not much more than tinkering—improving Medicare, Medicaid and the Veterans Health Administration, all examples of “single-payer health care”—in which the government is the single payer for the health care – while preserving the inefficient, multipayer, for-profit insurance model. In December 2007, the American College of Physicians compared U.S. health care with other countries’, writing, “Single-payer systems generally have the advantage of being more equitable, with lower administrative costs than systems using private health insurance, lower per capita health care expenditures, high levels of consumer and patient satisfaction.” Michael Moore, in his film “SiCKO,” includes a recording of John Ehrlichman speaking to Richard Nixon, discussing medical-insurance profits: “The less care they give ‘em, the more money they (the insurance companies) make.” Obama is in charge now. Who will he emulate—Nixon or FDR? People across the political and economic spectrum, from big business to the little guy, are dying to know.
Denis Moynihan contributed research to this column.
Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 700 stations in North America. She was awarded the 2008 Right Livelihood Award, dubbed the “Alternative Nobel” prize, and received the award in the Swedish Parliament in December. © 2009 Amy Goodman Distributed by King Features Syndicate