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The Story of Mitchell Jessen & Associates: How a Team of Psychologists in Spokane, WA, Helped Develop the CIA’s Torture Techniques April 21, 2009

Posted by rogerhollander in Torture.
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www.democracynow.org, April 21, 2009

AMY GOODMAN: We’re on the road in Spokane, Washington, less than three miles from the headquarters of a secretive CIA contractor that played a key role in developing the Bush administration’s interrogation methods. The firm, Mitchell Jessen & Associates, is named after the two military psychologists who founded the company, James Mitchell and Bruce Jessen.

Beginning in 2002, the CIA hired the psychologists to train interrogators in brutal techniques, including waterboarding, sleep deprivation and pain. Both of the men had years of military training in a secretive program known as SERE—Survival, Evasion, Resistance, Escape—which teaches soldiers to endure captivity in enemy hands. Mitchell and Jessen reverse-engineered the tactics taught in SERE training for use on prisoners held in the CIA’s secret prisons.

The declassified torture memos released last week relied heavily on the advice of Mitchell and Jessen. In one memo, Justice Department attorney Jay Bybee wrote, quote, “Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged harm would result from the use of the waterboard.”

Well, today we’re going to take a detailed look at Mitchell Jessen’s role. We’re joined now by three journalists who have closely followed this story. Katherine Eban joins us from New York. Her 2007 article in vanityfair.com, “Rorschach and Awe,” gave a detailed account of the role of James Mitchell and Bruce Jessen. Mark Benjamin joins us from Washington, DC, national correspondent for Salon.com. He wrote about Mitchell and Jessen in his 2007 article called “The CIA’s Torture Teachers.” And here in Spokane, I’m joined by Karen Steele. She is a former reporter at The Spokesman-Review, where she covered this story.

We called Mitchell Jessen & Associates, based here in Spokane, not far from these studios, to invite them on the show, but, well, we did not hear back from them. Mitchell and Jessen have avoided speaking to the media for years. Two years ago, they released a statement to Vanity Fair that read, quote, “We are proud of the work we have done for our country.”

Well, why don’t we begin first with Mark Benjamin in Washington. How did you first hear of Mitchell and Jessen, Mitchell Jessen & Associates?

MARK BENJAMIN: I first heard of those two psychologists when I was doing my reporting a couple of years ago from—frankly, from some of their associates and people that worked with them in the military. And their associates were concerned, because this SERE training that you referred to, it’s not designed to be an interrogation tool. It’s designed to teach soldiers to resist, frankly, what are tools developed by communists, used by the Koreans, for example, during the Korean War to force false confessions out of soldiers. And so, we were teaching our soldiers how to—the SERE training teaches soldiers how to resist that kind of abuse. The reason it was brought to my attention is some of these Mitchell and Jessen’s colleagues were very, very concerned that these guys had, quote, “gotten their hands dirty,” unquote, by reverse-engineering these things. Frankly, their colleagues thought it was a very stupid idea, for obvious reasons.

AMY GOODMAN: Katherine Eban, tell us a little about these two men, exactly who they are, and what you found in this very comprehensive piece that you did called “Rorschach and Awe,” the first piece.

KATHERINE EBAN: Thanks very much, and it’s nice to be here, Amy.

You know, these were guys who have been described to me as op-docs. They were, you know, Ph.D.s who wanted to be sort of in the operational arena, which is a very seductive arena to be in. But effectively, they were teachers and overseers of a SERE program where they were just monitoring, you know, the well-being of troops. They weren’t scientists. They had no data, according to my sources, to show that if you reverse-engineered these tactics, they would be effective in eliciting information. So, you know, the description that I got, also from colleagues of theirs, is that these guys were wannabes. You know, they were wannabe operational psychologists, like, you know, Jodie Foster’s character in Silence of the Lambs. And they weren’t.

But apparently—and now we really see the extent of it—they were very convincing in selling the use of these tactics to the CIA. And I guess it was a moment in time when our government was really desperate for any kind of solutions. But the fact that they landed on this without any data to justify its use, without any proof of effectiveness, is really what was remarkable to me in my reporting.

AMY GOODMAN: Mark Benjamin—well, both of you, actually, have now written new pieces. Mark, as you look to the torture memos, how does Mitchell Jessen fit in? These new documents that have been released, well, pretty much unredacted; there are—you know, it is blacked out especially around the names of the people involved.

MARK BENJAMIN: Well, we already knew, because of reporting like mine and Katherine’s, how crucial these psychologists were in developing the CIA’s torture program. I think what the documents show is how crucial they were in carrying it out. In other words, if you look through these memos, these Justice Department memos, the whole rationale, you know, or the defense of the program from the Justice Department is that it’s safe. You know, in other words, it’s not torture according to doctors, and there are doctors there to monitor what’s going on, and there are doctors there to make sure that the person being interrogated doesn’t die on them. And they have data allegedly showing that, you know, SERE, this training, when we do it to soldiers, it doesn’t—you know, it doesn’t kill them, and it doesn’t make them crazy from the abuse they do during training. And so, it must be OK.

I mean, in other words, I think that—I don’t think you can overemphasize the extent to which the Justice Department relied on the advice and consent and participation of these psychologists, not just in designing the program, but carrying it out and arguing that it was safe and that it wasn’t torture. I mean, they were an absolutely vital part of this program, either in the room while these people were being tortured or watching on videotape.

AMY GOODMAN: Karen Dorn Steele, you were writing for The Spokesman-Review, and after Mark Benjamin’s piece came out, you did your first. Of course, this is a local story. We’re broadcasting here at the PBS station in Spokane, KSPS, that’s run by the Spokane Public Schools. Not three miles from here is the American Legion Building. Tell us what you learned in the reports that you started to do here in Spokane.

KAREN DORN STEELE: Yeah, after we had read Mark’s piece, we did some research, Bill Morlin and I, on who these guys are. We pulled their corporate records and other records, and we found out that they had 120 employees. And they opened their rather large offices here in March of 2005, although they had had contracts with the CIA prior to that. We learned that they came out of the SERE program, as has been discussed, and that they lived here because Spokane is a good place to live. They had many military connections here. These programs are still very big, the SERE program at Fairchild Air Force Base and the—

AMY GOODMAN: How far is Fairchild Air Force Base from here?

KAREN DORN STEELE: It’s just about three miles west of town. It’s very, very close. It’s the big Air Force community. And the agency, the overarching agency that runs the SERE program nationwide also has a major facility here. It’s called the Joint Personnel Recovery Agency. And sources within JPRA knew a lot about Mitchell and Jessen. They said they were self-promoters, they were cowboys. They disapproved of the kind of techniques and their cozying up to the CIA. But they told us that they live here because it’s a nice place to live. And even though their mailing address is Langley, Virginia, they’re based in Spokane.

AMY GOODMAN: I understand Mitchell doesn’t live here anymore, but Jessen does.

KAREN DORN STEELE: That’s correct. That’s right.

AMY GOODMAN: And why was SERE big at Fairchild?

KAREN DORN STEELE: SERE was big at Fairchild because every pilot in the US Air Force is required to go through this Survival, Evasion, Resistance and Escape programming to learn what they might be subject to if they ever fell into the hands of an enemy that didn’t follow the Geneva Accords. And of course we know that these techniques were reversed by Mitchell and Jessen for the CIA and the black sites overseas.

We also followed rather closely the debate within the American Psychological Association about the ethics of psychologists participating in sites where they were arguably doing harm, not doing no harm, as their guidelines say. And APA distanced themselves from Mitchell and Jessen, so they were not APA members, but we found out that one of their board members, Joseph Mazzarato [sic.]—Matarazzo, excuse me—who’s an emeritus psychology professor at Oregon Health Sciences University in Portland, is a former president of the APA. And so, after we broke that story, then the APA could no longer say there weren’t ties between this organization and their organization.

AMY GOODMAN: We’re going to break. Then we’re going to come back to this discussion. Our guest in studio is a former reporter with The Spokesman-Review. Like many newspapers in this country, there have been a number of buyouts and layoffs at the paper here. Karen Dorn Steele is a George Polk Award-winning reporter for her work on the Hanford Reservation. We’ll talk about that in a minute. But today we’re talking in light of the memos that have just been released by the US government about Jessen, Mitchell, psychologists who run a firm here, well, that are involved in the coercive interrogations around the world. Our guests in New York, Katherine Eban, and in Washington, DC, Mark Benjamin. We’ll be back in a minute.


AMY GOODMAN: Here in Spokane, we’re broadcasting from the PBS station KSPS, run by the Spokane Public Schools, and we’re talking about an institution, a company, not three miles from here, operating out of the American Legion Hall in Spokane.

Our guest here in the studio is Karen Dorn Steele, a George Polk Award-winning journalist. She wrote for The Spokesman-Review a series of pieces on Jessen, Mitchell. In Washington, DC, Mark Benjamin. In New York, in our firehouse studio, we’re joined by Katherine Eban of Vanity Fair.

I wanted to ask about Dick Cheney’s latest comments. Dick Cheney is demanding that the CIA release memos that show that these enhanced interrogation techniques were effective. He said, “What we authorized wasn’t torture. But it worked. We got actionable intelligence from these techniques.” Katherine Eban, from your research, what did you find?

KATHERINE EBAN: Well, from my research, I found exactly the opposite, that there had been an FB—the issue is very active over the detainee Abu Zubaydah, and there had been an FBI interrogation team with him initially, which had basically nursed him back to health after gunshot wounds and used rapport-building, classic rapport-building tactics, which is what the FBI excels at, and it was because of those tactics that he revealed that KSM, Khalid Sheikh Mohammed, was the architect of 9/11 and also revealed the name of Jose Padilla, and that in fact he was talking to interrogators until Mitchell showed up along with the CIA interrogation team, began imposing these harsh tactics, and Zubaydah clammed up.

So, in response to that, they made a request to accelerate these tactics. I think they refer to it in the memos that were just released as an “intense pressure phase.” You know, basically, what my sources say is, “Sure, these tactics, these coercive tactics, can get you to talk. But about what? So how do you verify the legitimacy of the information?” Well, apparently, under torture, Zubaydah gave investigators a lot of false leads, which ate up the time of American intelligence back at home. So, you know, the debate is a very live one. There are people in the CIA who say these tactics absolutely worked, and I do think that this is going to be a central question of investigations as they go forward, is the effectiveness of these tactics. And people are now—yeah.

AMY GOODMAN: You know, I thought it was very interesting, Katherine Eban, how you describe what happened. The FBI there, they’re getting intelligence that they think is actually useful. George Tenet, then Director of Central Intelligence, hears about this. He’s very proud that intelligence is coming out from the interrogation. And then he’s informed it’s not coming from CIA interrogators, it’s coming from FBI interrogators. And he hits the roof. And that’s when they send in Jessen and the other CIA interrogators. You could take it from there.

KATHERINE EBAN: Right. You know, and let me just say that they sent in Mitchell. I don’t believe that Jessen was there at that point. But it was interesting—

AMY GOODMAN: I mean Mitchell.

KATHERINE EBAN: —that Mitchell Jessen—Mitchell’s company at that point closed up shop about a day before—the day after Zubaydah was captured, and then he was deployed to Thailand to the safe house where they were interrogating Zubaydah. But what you had in this situation was a classic turf war. You know, you had the CIA wanting to take the credit for getting actionable intelligence.

As soon as they started using these coercive tactics, it had a rather profound effect, which is that the FBI felt compelled to withdraw their investigators from the scene. The effect of that, the end result, is that the CIA had total control over these interrogations. So, by using these coercive tactics, they also won a turf war.

AMY GOODMAN: Mark Benjamin, as you look at these torture memos right now and the whole cachet around Mitchell Jessen, if you can call it that, around getting effective intelligence when, as Katherine Eban was saying, it was the opposite.

MARK BENJAMIN: Well, that’s right. And when you look at the memos, there are even some hints there that show what interrogators have long believed, which is that these are not effective ways to gather intelligence, what Mitchell and Jessen were doing is just—it’s just not an effective way of running an intelligence operation.

And I would just add, you know, my reporting suggests that when the CIA put together this interrogation program, this torture program, they didn’t involve any experienced interrogators. There were no interrogators involved. Nobody who knows how to question—effectively question a suspect set this thing up. The CIA didn’t have anybody on board that knew how to do this stuff. I mean, it was people who just frankly didn’t know what they were doing. I mean, you know, they knew how to train soldiers how to resist torture, but not how to get effective intelligence.

And, in fact, if you look at the memos that came out last week, there is a reference in one of the memos to a CIA inspector general report. And according to the reference, the CIA inspector general criticized the CIA’s own interrogation program, saying essentially they didn’t know when somebody was being recalcitrant and wouldn’t talk and when they just didn’t know anything. That’s the problem with torture. And so, they ended up torturing people even though they had already said everything they know. I mean, it was just—and that’s the problem with torture. You don’t know—I mean, how do you know when to torture somebody and when not to? How do you know when they’re telling you the truth and when they’re not? It’s just, you know—and I think the memos, you know, while they’re meant to back up and say that this torture program is defensible, I think if you look at them pretty closely, that that facade starts to fall apart pretty fast.

AMY GOODMAN: Karen Dorn Steele?

KAREN DORN STEELE: Yes, we interviewed two former SERE instructors here in Spokane, who—one person who’s now a lawyer, another who’s a psychologist. And the psychologist, Mark Mays, told us that the most important function of the psychologist in the legitimate SERE program is to make sure that the interrogators aren’t going out of bounds, because when they do, you get bad information.

AMY GOODMAN: Mark Benjamin, we were both covering in 2007 the APA national convention that was taking place in San Francisco. At that time, the dissident psychologists who wanted the APA to impose a ban on members participating in coercive interrogations lost. They ultimately found this loophole in the bylaws and found that they could put out the referendum to the membership instead of keep getting it voted down by the leadership. But what about the APA and—well, and Mitchell Jessen?

MARK BENJAMIN: Well, you know, as we mentioned, Mitchell and Jessen were not members of the APA. But I think the sort of, you know, Reader’s Digest version is that I think it’s safe to say that the psychologists have been traditionally very, very close to the military. You know, they’ve been working with the military and the CIA for years and are closer than, say, psychiatrists and other doctors. I think it’s fair to say that the APA, the psychologists, as opposed to psychiatrists and doctors, have been much more willing since September 11th to play ball, essentially, to not remove themselves from interrogations as doctors and psychiatrists did, to continue to participate.

And I think that’s reflected in the way Mitchell and Jessen, you know, were so important here. I think the psychologists saw a way to be players at the table, and that was reflected in their association, in the APA. And the APA essentially allowed their—you know, wrote rules, year after year after year, that would allow the continued participation of psychologists in these brutal interrogations. And now that these memos have come out, I think it’s really clear how important the government saw those psychologists were, in having them in the room or watching on video or designing the program or carrying it out.

AMY GOODMAN: Katherine Eban, I think you’d like to chime in here, as you talk with a number of top military psychologists and even those at the beginning who were recruited into an APA committee that would investigate whether psychologists should continue, people like Kleinman and others who you quote saying, “I think Mitchell and Jessen have caused more harm to American national security than they’ll ever understand.”

KATHERINE EBAN: Yeah. I mean, what was interesting is, is that there was suspicion initially that the psychologists who participated on this APA committee that basically sort of approved participation in interrogations, that they were somehow behind these coercive tactics. What you really had was almost what I describe as a Wizard of Oz scenario. You had Mitchell and Jessen behind the curtain driving, you know, the sort of good name of psychologists, as it were, into this very murky, dark area.

And I think, you know, what’s really important in the debate going forward among psychologists is the extent to which psychologists loaned their names and loaned their credentials and their Ph.D.s to this kind of activity and essentially were used by the Bush administration to provide a kind of “get out of jail free” card for the people who were, you know, doing these interrogations, because the logic, which I think Mark had mentioned, is, you know, this circular logic. So long as there are trained psychologists from the SERE program who are on site at these interrogations who are saying that these detainees can withstand this treatment, are not being harmed psychologically, then it’s not torture. So, you know, you’ve got this sort of [inaudible] tortured—tortured logic, which is the phrase that has come up, but it’s this sort of self-justifying loop in which professionals are loaning their credentials to this kind of activity.

And you see the same thing in the Office of Legal Counsel, where you have, you know, lawyers loaning their credentials to approving what are clear violations of the Geneva Conventions.

AMY GOODMAN: Karen Dorn Steele, this is both a global issue and, as is usually the case, a local one, because Mitchell Jessen is right here in Spokane. There were local protests after your reports came out. Describe what happened.

KAREN DORN STEELE: Yes, they were about a month after our first stories and some of the follow-ups on the APA debate. There was a street protest. Maybe three dozen people showed up. Many of them were psychology students from local colleges who said, “Not in our names should this be done, and this is a violation of everything we’ve been taught in schools.” And there were intelligence agents there. We couldn’t determine who they were, but they were photographing everybody in the crowd. But Spokane is not a place that’s given to street protests normally, although there have been some anti-Iraq war protests. But this was an unusual event, and it triggered some passion here.

AMY GOODMAN: And yet, they continue, and they not only have Mitchell Jessen, but little other companies that are right in the American Legion Hall.

KAREN DORN STEELE: Yeah. There’s a cluster of national security companies that all come out of the SERE and JPRA program that are still here and functioning.

AMY GOODMAN: I went over to The Spokesman-Review yesterday and was speaking to the editor. I said, “Have you ever been able to speak to Mitchell Jessen? I mean, they’re a local company.” And he said, “No, they do not respond.”

KAREN DORN STEELE: No, they just gave us the same response that you read earlier on the program, that they condemn torture.

AMY GOODMAN: Mark Benjamin, do you think we’re going to see any arrests? Do you think—well, President Obama has said they’re not going after CIA interrogators, questioners. What do you think?

MARK BENJAMIN: No, I don’t think we’re going to see any arrests. And I think that the significance of what the Obama administration has done over the last few days or announced over the last few days has been largely missed, which is, if you look at the President’s statements and you combine them with the statements of Rahm Emanuel, the Chief of Staff, and Eric Holder, the Attorney General, if you put those together, you will see that over the last couple of days the Obama administration has announced that no one, not the people who carried out the torture program or the people who designed the program or the people that authorized the program or the people who said that it was legal even though they knew that it frankly wasn’t, none of those people will ever face charges. The Attorney General has announced that not only that, the government will pay the legal fees for anybody who is brought up on any charges anywhere in the world or has to go before Congress. They will be provided attorneys.

And not only that, they have given this blanket immunity, if you will, in return for nothing. I mean, in other words, you know, as you said at the top of the program, Obama yesterday—President Obama was at the CIA and called these things “mistakes,” even though they were very carefully designed, and hasn’t demanded anything in return for this immunity. I mean, you know, in other words, it’s not like the Obama administration said, “Hey, let’s take a close look at this, and let’s have some people come forward and testify, and let’s take a close look at this program and see if the claims of former Vice President Dick Cheney are really true, that we really did get some good information out of this program, it really was effective.” The Obama administration has demanded nothing and has announced, you know, effectively that the story is over and nobody will be held to account ever.

AMY GOODMAN: I want to thank you, Mark Benjamin of Salon.com in Washington, DC; Katherine Eban in New York at the firehouse studio, vf.com, your pieces appear. But before I say goodbye to you, Karen Dorn Steele, I wanted to ask you about one other issue that is very close to here in Spokane, and it’s the issue of the Hanford Reservation, for which your coverage, “Wasteland,” won a George Polk Award.


Obama’s Legal Team Copies Bush’s ‘State Secrets’ Trick to Cover Up Torture and Renditions February 11, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, George W. Bush, Human Rights, Torture.
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(Note from Roger: More “plus ca change …” you can believe in.  ‘Anthony Romero, executive director of the American Civil Liberties Union said in an impassioned statement. “This is not change. This is definitely more of the same.”‘)

 Liliana Segura, AlterNet. Posted February 10, 2009.

Attorneys representing the Obama administration are defending one of the most controversial practices of the Bush administration.

On Monday in San Francisco, attorneys representing the Obama administration did what many of the president’s supporters would have considered unthinkable on election day: they arrived in a federal courtroom and defended one of the most controversial practices of the Bush administration.

“Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government,” Anthony Romero, executive director of the American Civil Liberties Union said in an impassioned statement. “This is not change. This is definitely more of the same.”

The case was Mohamed et al. v. Jeppesen Dataplan, a lawsuit originally brought in 2007 by the ACLU on behalf of five victims of extraordinary rendition, the notorious CIA program in which terror suspects are kidnapped, thrown on a plane and flown to another country to be tortured and interrogated.

Jeppesen Dataplan, a subsidiary of Boeing, is said to have provided the logistical support for the rendition of all five plaintiffs, among them, Binyam Mohamed, an Ethiopian national who, in July 2002, was taken from Pakistan to Morocco, where for 18 months he was imprisoned and brutally tortured, including being cut with razorblades on his testicles. Mohamed was later sent to Guantanamo Bay, where he supposedly awaits imminent plans for his release. He has never stood trial.

Under Bush, the ACLU’s lawsuit was thrown out multiple times on “state secrets” grounds — a bogus excuse according to human rights lawyers who have long argued that the real goal was to keep evidence of the sort of torture endured by Mohamed away from a courtroom.

“To date, not a single torture victim has had his day in court in the United States,” ACLU attorney Ben Wizner told reporters last week. Thus, the objective of yesterday’s hearing was simple: the ACLU was asking that the lawsuit move forward. But to the dismay of many who believed Obama would open the door to justice for torture victims in the so-called war on terror, it appears his administration is instead following in Bush’s footsteps.

“This case cannot be litigated,” Department of Justice lawyer Douglas Letter said on Monday. “The judges shouldn’t play with fire in this national security situation.”

For those who spent the past eight years fighting back against cynical claims of “national security” to justify illegal and inhumane practices, the words smack of the Bush era.

“If the Obama administration, so early on, is toeing the Bush line,” Romero warns, “that speaks volumes for where we might end up years from now.”

The Debate Over Rendition

The Jeppesen hearing came on the heels of a week that saw the topic of extraordinary rendition — and Obama’s approach to it — under particular scrutiny. On Feb. 1, the Los Angeles Times ran a story that caused a stir around the issue in the media, the blogosphere and the human rights community.

“The CIA’s secret prisons are being shuttered,” the article began. “Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

“But even while dismantling these programs, President Obama left intact an equally controversial counterterrorism tool.

“Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.”

The article quoted an anonymous administration official, who said,

“Obviously you need to preserve some tools — you still have to go after the bad guys.

“The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice.”

The official’s statement was backed up with a quote from a representative from Human Rights Watch: “‘Under limited circumstances, there is a legitimate place'” for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.”

The article sparked anger and controversy from op-ed pages to the blogosphere. (“So, it would appear that we will not see the end of torture under this administration after all,” lamented blogger Digby.) But backlash against the LA Times quickly followed.

In a post titled “Renditions Buffoonery,” attorney Scott Horton, who writes the Harpers blog “No Comment,” called it a “breathless piece of reporting,” which, among other problems, “misses the difference between the renditions program, which has been around since the Bush 41 administration at least … and the extraordinary renditions program which was introduced by Bush 43 and clearly shut down under an executive order issued by President Obama in his first week.”

The earlier renditions program regularly involved snatching and removing targets for purposes of bringing them to justice by delivering them to a criminal justice system. It did not involve the operation of long-term detention facilities and it did not involve torture. There are legal and policy issues with the renditions program, but they are not in the same league as those surrounding extraordinary rendition.

The LA Times, said Horton, “got punk’d.”

Constitutional lawyer and blogger Glenn Greenwald had his own criticisms about the article, and got into an e-mail debate with its author, Greg Miller, whose response defending his report was posted on Greenwald’s blog.

“The story made clear that Obama intends to administer the rendition program in a very different way,” Miller argued. “… This is not a story saying it’s business as usual under Obama.”

“Nevertheless, the rendition program is controversial. Even if administered in the most enlightened manner, it is a program that involves the use of the CIA in secret abductions and prisoner transfers.”

Even as some backpedaled on their initial reactions (“You’d think I’d know better than to take a newspaper article about the intelligence community at face value by now,” Digby wrote), for some who have closely followed the Obama administration’s handling of torture in his first days in office, the discussion was far from over.

“Liberal bloggers have jumped on the bandwagon defending President Obama’s executive order calling for a review of the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States,” wrote psychologist and blogger Jeffrey Kaye, who has spent the past few months waging a one-man crusade against the torture loophole embedded in the Army Field Manual. “Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), ‘Under limited circumstances, there is a legitimate place’ for renditions.”

According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) “Legal” renditions — as defined by Richard Clarke in a recent article … are examples of “renditions performed by the American government [and] are legal, effective and done within the scope of human rights” (emphasis added). And if you think differently, then you are “ridiculously misinformed,” a “buffoon,” a “moron” (the latter by a Daily Kos commenter to yours truly).

Like other defenders of Obama’s right to maintain some version of the policy in place, Clarke, a counterterror advisor to Bill Clinton, sought to clear up “the confusion over rendition.” Rendition “proved workable before the Bush administration,” Clarke wrote, “And it need not be something to fear in the future.”

What Is Really at Stake

The differences between Bush-era rendition and its precursors are not insignificant — in fact, Horton and Center for Constitutional Rights President Michael Ratner debated them on Democracy Now! last week. But, given that they largely boil down to what the CIA did as a matter of policy under Bush (torture) versus what was allegedly done under Clinton unofficially (torture), neither are they the most urgent issue at hand. Obama’s much-lauded executive orders are vague enough to elicit endless speculation when it comes to rendition and other intelligence policies. But the actions of his Department of Justice on Monday were not.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” Ben Wizner said. “Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.”

Indeed, at stake in the Jeppesen case is not only justice for the victims of a hideous policy — one that, in whatever form, should not be exercised by a country that claims to be a beacon of democracy and human rights — but a changing of course when it comes to the flagrant abuse of the state-secrets doctrine, which was repeatedly used by the Bush administration to stamp out lawsuits against the government for its myriad abuses, from torture to illegal spying.

Both Obama and his Attorney General, Eric Holder, have vowed to review the Bush administration’s use of the state secrets privilege. As a DOJ spokesperson told the Washington Post yesterday. “It is vital that we protect information that if released could jeopardize national security, but the department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know.”

But as Romero told reporters last week, the actions of the Obama administration “are unfortunately speaking louder than their words.”

“What this is clearly about is shielding the U.S. government and Bush officials from any accountability,” wrote Glenn Greenwald following the Jeppesen hearing Monday. “Worse, by keeping Bush’s secrecy architecture in place, it ensures that any future president — Obama or any other — can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.”

Holy Cow: Top Dems Are Serious About Investigating Bush’s Criminal Acts January 26, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Torture.
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Jason Leopold, Consortium News. Posted January 26, 2009.

To the surprise of progressives and anger of the GOP, leading Dems support investigations.

As President Barack Obama reverses some of ex-President George W. Bush’s most controversial “war on terror” policies, a consensus seems to be building among Democratic congressional leaders that further investigations are needed into Bush’s use of torture and other potential crimes.

On Wednesday – the first working day of the Obama administration – Senate Majority Leader Harry Reid said he would support funding and staff for additional fact-finding by the Senate Armed Services Committee, which last month released a report tracing abuse of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002, decision to exclude terror suspects from Geneva Convention protections.

Senate Armed Services Committee Chairman Carl Levin, who issued that report, echoed Reid’s comments, saying “there needs to be an accounting of torture in this country.” Levin, D-Michigan, also said he intends to encourage the Justice Department and incoming Attorney General Eric Holder to investigate torture practices that took place while Bush was in office.

Two other key Democrats joined in this growing chorus of lawmakers saying that serious investigations should be conducted.

Sen. Sheldon Whitehouse, D-Rhode Island, a former federal prosecutor and a member of the Senate Judiciary Committee, said in a floor speech, “As the President looks forward and charts a new course, must someone not also look back, to take an accounting of where we are, what was done, and what must now be repaired.”

Democratic Majority Leader Steny Hoyer of Maryland told reporters: “Looking at what has been done is necessary.”

On Jan. 18, two days before Obama’s inauguration, House Speaker Nancy Pelosi expressed support for House Judiciary Committee Chairman John Conyers’s plan to create a blue-ribbon panel of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers.”

In an interview with Fox News’ Chris Wallace, Pelosi specifically endorsed a probe into the politicization of the Justice Department, but didn’t spell out a position on Conyers’s plan to examine the Bush administration’s torture and rendition policies, which could prove embarrassing to Pelosi and other Democratic leaders who were briefed by the CIA about these tactics.

Still, when Wallace cited Obama’s apparent unwillingness to investigate the Bush administration, Pelosi responded: “I think that we have to learn from the past, and we cannot let the politicizing of the — for example, the Justice Department, to go unreviewed. Past is prologue. We learn from it. And my views on the subject — I don’t think that Mr. Obama and Mr. Conyers are that far apart.”

The emerging consensus among top congressional Democrats for some form of investigation into Bush’s controversial policies has surprised some progressives who had written off the leadership long ago for blocking impeachment hearings and other proposals for holding Bush and his subordinates accountable.

In 2006, for instance, Pelosi famously declared that “impeachment is off the table,” and prior to Election 2008, the Democratic leadership largely acquiesced to Bush’s demands for legislation that supported his “war on terror” policies, including a compromise bill granting legal immunity to telecommunications companies that assisted in Bush’s warrantless wiretaps.

A Changed Tone

Since the election – in which the Democrats increased their congressional majorities and won the White House – key Democrats have begun releasing more information about Bush’s abuses of power.

Besides Levin’s findings on mistreatment of detainees, Conyers published a 487-page report entitled “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush” that calls for the creation of a blue-ribbon panel and independent criminal probes into the Bush administration’s conduct in the “war on terror.”

Conyers urged the Attorney General to “appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

Last year, Bush’s Attorney General Michael Mukasey appointed U.S. Attorney John Durham as special counsel to investigate whether the destruction of CIA videotapes that depicted interrogators waterboarding alleged terrorist detainees violated any laws. Durham was not given the authority to probe whether the interrogation techniques themselves violated anti-torture laws.

“At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law,” Conyers’s report said.

“Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law. … Appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).”

Additional evidence about the Bush administration’s actions is expected to become available in the coming weeks as the Obama administration loosens the secrecy that has surrounded Bush’s “war on terror,” a phrase that Obama and his team have effectively dropped from Washington’s lexicon.

Obama’s aides have indicated that there soon may be a “public airing” of secret Justice Department legal opinions and other documents that provided the underpinning for the Bush administration’s brutal interrogation policies.

Levin also indicated that he expects to release the full Armed Services Committee report – covering an 18-month investigation – in about two or three weeks.  Levin added that he would ask the Senate Intelligence Committee to conduct its own investigation of torture as implemented by the CIA.

Meanwhile, Republicans have grown increasingly worried that Holder, as Attorney General, will launch a criminal investigation into Bush’s interrogation policies. They delayed a vote on his nomination demanding that he respond to questions about whether he intends to investigate and/or prosecute Bush administration officials.

Sen. John Cornyn, R-Texas, said he wants to ask Holder whether he intends to investigate the Bush administration and intelligence officials for torture

Last week, at his confirmation hearing before the Senate Judiciary Committee, Holder was asked about the practice of waterboarding, a form of simulated drowning that the Bush administration has acknowledged using against three terror suspects. Holder answered that “waterboarding was torture.”

Cornyn said Holder’s view means there is a possibility that investigations might be on the horizon.

“Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was,” Cornyn said Wednesday.

Are We Civilized Enough to Hold Our Leaders Accountable for War Crimes? The World Is Watching January 26, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture, War.
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 John W. Dean, FindLaw.com. Posted January 24, 2009.

Other countries are likely to take action against officials who condoned torture, even if the United States fails to do so.

Remarkably, the confirmation of President Obama’s Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.

It is difficult to believe that Eric Holder would agree not to enforce the law, like his recent Republican predecessors. Indeed, if he were to do so, President Obama should withdraw his nomination. But as MSNBC “Countdown” anchor Keith Olbermann stated earlier this week, even if the Obama Administration for whatever reason does not investigate and prosecute these crimes, this still does not mean that the Bush Administration officials who were involved in torture are going to get a pass.

With few exceptions, the discussion about what the Obama Administration will do regarding the torture of detainees during the Bush years has been framed as a domestic matter, and the fate of those involved in torturing has been largely viewed as a question of whether the Department of Justice will take action. In fact, not only is the world watching what the Obama Administration does regarding Bush’s torturers, but other countries are very likely to take action if the United States fails to do so.

Bush’s Torturers Have Serious Jeopardy

Philippe Sands, a Queen’s Counsel at Matrix Chambers and Professor of International law at University College London, has assembled a powerful indictment of the key Bush Administration people involved in torture in his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. He explains the legal exposure of people like former attorney general Alberto Gonzales, Dick Cheney’s counsel and later chief of staff David Addington, former Office of Legal Counsel attorney John Yoo, the former Department of Defense general counsel Jim Haynes, and others for their involvement in the torture of detainees at Guantanamo, Abu Ghraib, and CIA secret prisons.

After reading Sands’s book and, more recently, listening to his comments on Terry Gross’s NPR show “Fresh Air,” on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity — for which the world is ready to hold them responsible.

Here is what Professor Sands told Terry Gross on NPR: “In talking to prosecutors around the world, as I have done, they all recognize the very real political difficulties of taking on someone who has been Vice President of the United States, or President of the United States, or Secretary of Defense of the United States. But those arguments melt away as you go a little down the chain. And I don’t think the same arguments would apply in relation to the man, for example, who was Vice President Cheney’s general counsel, at the time the decisions were taken, David Addington … I think he faces a very real risk of, you know, investigation for complicity in an act that amounts to torture … ” Later, referring to “international investigations,” he added that Addington (and others) were at “serious risk of being investigated.”

These are remarkable statements from a very well-informed man. Because we have a common publisher, I was able to contact him in London, and pose a few questions. I find his book, statements and responses to my questions chilling.

Q & A With Professor Philippe Sands

The following is my email exchange with Professor Sands:

John W. Dean: When talking to Ms. Gross you said you were not calling for such international investigations because we all need more facts. Given the fact that Judge Susan Crawford has now made clear that torture occurred, do you — and others with your expertise and background — have sufficient information to call for other countries to take action if the Obama Administration fails to act?

Philippe Sands: Last week’s intervention by Susan Crawford, confirming that torture occurred at Guantanamo, is highly significant (as I explain in a piece I wrote with Dahlia Lithwick: “The Turning Point: How the Susan Crawford interview changes everything we know about torture”). The evidence as to torture, with all that implies for domestic and foreign criminal investigation, is compelling. Domestic and foreign investigators already have ample evidence to commence investigation, if so requested or on their own account, even if the whole picture is not yet available. That has implications for the potential exposure of different individuals, depending on the nature and extent of their involvement in acts that have elements of a criminal conspiracy to subvert the law.

JD: If yes, can you share what you and others might do, and when?

PS: I am in the process of completing the epilogue to my book Torture Team, which will be published in May 2009. That will set out, in detail, what I learned when I made a return visit to the European judge and prosecutor with whom I met in the summer of 2007, as described in the book. Watch this space.

JD: If no, what would it take for those like you to call for all countries with potential jurisdiction to take action?

PS: More than 140 countries may potentially exercise jurisdiction over former members of the Bush Administration for violations of the 1984 Torture Convention and the 1949 Geneva Conventions, including the standards reflected in their Common Article 3. Whether they do so, and how they might do so, turns on a range of factors, including their domestic procedural rules. In the United Kingdom, one criminal investigation is already underway, in relation to the alleged treatment of Binyam Mohammed, a Guantanamo detainee who is a British resident. I doubt it will be the last. That said, having set out the relevant facts in one case [in my book], to the best of my abilities, I feel it will now be for others to take this forward as they consider appropriate.

JD: Also, when talking to Ms. Gross you said that you did not think that David Addington and others involved in torture were likely to be travelling outside the United States. Do you know for a fact that any country might take action? Have you discussed this with any prosecutors who could do so?

PS: This will be addressed in the epilogue to Torture Team.

JD: Do you believe that a failure of the Obama Administration to investigate, and if necessary, prosecute, those involved in torture would make them legally complicit in the torture undertaken by the Bush Administration?

PS: No, although it may give rise to violations by the United States of its obligations under the Torture Convention. In the past few days there have been a series of significant statements: that of Susan Crawford, of former Vice President Cheney’s confirming that he approved the use of waterboarding, and by the new Attorney General Eric Holder that he considers waterboarding to be torture. On the basis of these and other statements it is difficult to see how the obligations under Articles 7(1) and (2) of the Torture Convention do not cut in: these require the US to “submit the case to its competent authorities for the purpose of prosecution”. What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards (“authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”) and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.

JD: Finally, you mentioned the case proceeding in the UK regarding possible torture of a British national. Is it possible that even an American ally like Great Britain could seek extradition, and undertake prosecution, of U.S. officials like Addington and Yoo for facilitating the torture of a citizen of Great Britain — if the U.S. fails to act?

PS: It is possible. The more likely scenario, however, is that which occurred in Senator Pinochet’s case: the unwitting traveller sets foot in the wrong country at the wrong time.

What Will The Obama Administration Do?

As all who have followed this issue know, President Obama hedged after he was elected as to what he may or may not do. So too did his Attorney General nominee. After Eric Holder declared waterboarding to be unlawful, no one on the Senate Judiciary Committee truly followed up as to what he was going to do, but it appears they are going to now press him on that point.

My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be “change we can believe in” if the new administration harbors war criminals — which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?

One would think that people like Cheney, Rumsfeld, Addington, Gonzales, Yoo, Haynes and others, who claim to have done nothing wrong, would call for investigations to clear themselves if they really believed that to be the case. Only they, however, seem to believe in their innocence — the entire gutless and cowardly group of them, who have shamed themselves and the nation by committing crimes against humanity in the name of the United States.

We must all hope that the Obama Administration does the right thing, rather than forcing another country to clean up the mess and seek to erase the dangerous precedent these people have created for our country. A first clue may come when Holder resumes testifying.